Alternative Dispute Resolution (ADR) takes various forms: Mediation, Arbitration, Collaborative practice. Each of these methods is designed to keep your matter out of the courtroom and in the hands of the parties to the case. Resolving your matter outside of the courtroom allows for more creative, more flexible outcomes. The idea behind methods of ADR is to provide an alternative to filing a lawsuit and going to court, which is the traditional method for resolving legal disputes. ADR alternatives were primarily designed to provide for a streamlined and cost-conscious option to deal with a legal issue. The appropriate method to resolve any given dispute can only be chosen after a careful assessment of the facts and circumstances of the case, including the interests of the parties, the nature of the dispute, and any statutory or policy restrictions governing the use of a particular dispute resolution process.

Mediation/ Arbitration/ Collaborative Practice

WHAT IS MEDIATION?

Mediation is simple; it is designed to help all participants and can be especially helpful for people who believe their differences are so great that they will never be able to agree. It’s also for those who agree on some issues, but need help coming to resolution on that “last matter” that continues to hold up the process. Mediators do not render decisions like a judge or arbitrator.
Both participants meet with a neutral mediator and work together to reach the best possible agreement of their dispute in a respectful and amicable way. The best agreement is one that meets the most important interests of all participants.
Mediation is a voluntary process that requires an agreement by both parties to participate. However, in some court cases, mediation is mandatory prior to proceeding through traditional litigation.

WHAT IS ARBITRATION?
Arbitration is a more formal process than mediation. In general, the arbitration process involves many of the same components as a courtroom trial. For example, evidence is presented, arguments are made, witnesses are called and questioned by the parties, and so forth. However, many of these facets are simplified or limited so as to make the process quicker than the typical courtroom trial. The process is governed by rules of arbitration which control the presentation of evidence and information to a neutral arbitrator. Following the required hearings, the arbitrator will usually deliver a ruling to the parties within a specific period of time. Depending on the type of arbitration, this ruling may be final, or there may be options to appeal.
The difference between arbitrators and judges is important. When someone files a case in court, neither they nor the defending party get any input into who the judge will be. Judges are typically assigned randomly to a case. However, with an arbitration, the parties often have some input into who will end up being their arbitrator.
Depending on the nature of the dispute, arbitration can be a voluntary process where both parties agree to submit their dispute to arbitration, or it can be mandatory as an adjunct to the traditional litigation process. Many courts have mandatory arbitration for claims below a certain value.

WHAT IS COLLABORATIVE PRACTICE?

Collaborative practice, also known as collaborative law, is a legal process primarily used in the family law context. It is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of litigation. The process allows parties to have a fair settlement. The voluntary process is initiated when the couple signs a contract (a “participation agreement”) binding each other to the process and disqualifying their respective lawyer’s right to represent either one in any future family-related litigation.
The Collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. As the traditional method of drawing up pre-marital contracts is oppositional, many couples prefer to begin their married life with documents drawn up consensually and mutually.
The Collaborative dispute resolution process presents the opportunity for cost efficiencies as the matter is a slightly less formal process than formal litigation processes. Also, in the Collaborative process, parties often assign by agreement important tasks to specialist professionals without duplication, so that cost savings may be realized. These cost efficiencies, in addition to other potential benefits, have led parties in other contexts to explore the use of Collaborative law to resolve other types of disputes. All parties considering the Collaborative dispute resolution processes should be aware that the Collaborative process does not guarantee a resolution and should such process fail to produce a resolution, the formal litigation process may be necessary to achieve a resolution to the dispute regardless of their best intentions
The appropriate method to resolve any given dispute can only be chosen after a careful assessment of the facts and circumstances of the case, including the interests of the parties, the nature of the dispute, and any statutory or policy restrictions governing the use of a particular dispute resolution process. The lawyers at McKean Smith have the depth of experience to guide you through this assessment process and successfully represent your interests through whichever ADR process is best suited to your dispute.

There are various aspects of employment that may require you to seek legal advice.

At McKean Smith, our experienced attorneys have represented both employers and employees and have a deep understanding of employment law. Our attorneys will help you navigate whatever issues may arise, whether you are an employer who needs help drafting an employment agreement or an employee who has recently experienced an issue of wrongful termination. We can assist you in the following areas and more:

• Employment Agreement Review
• Termination of Employment
• Wage and Hour Law
• Equal Pay Law
• Discrimination and Harassment
• Family and Medical Leave Law
• Non-Compete Agreements

 

Sonia Montalbano and Collin McKean are employment law attorneys who have the knowledge and experience necessary to help you achieve your goals.

We provide representation, advice, and counsel for many issues of business law including:

 

Business Formation:

Business formation is often the first major step for entrepreneurs wishing to establish a new company; your business structure can be used to acquire financing, obtain experienced executives, and secure various other pillars that are necessary to hold up a company. We provide formation advising for corporations, LLCs, and partnerships. A solid business structure will provide your organization with the best possible chance of success; we advise clients on the various types of legal entities and help them evaluate which options will work best for their unique situation. We can also advise them on what steps they will need to take in order to be successful and minimize potential conflict in the future. Usually one of the first major steps for anybody wishing to establish a new company is to develop a clearly articulated and well thought out operating agreement.

 

Shareholder, Partnership and Operating Agreements:

There are very few aspects of building a company that are more important than effectively defining the rights and responsibilities of the company owners; thus drafting an effective Shareholder Agreement for a corporation (or Operating Agreement for a partnership/LLC) is essential to providing our clients with a valuable balances of control and flexibility over their company’s operations because they are critical for any potential business dispute or dissolution that may occur down the road. Our primary goal is to prevent business litigation in the future by helping our clients to anticipate any potential problems that may arise today. We work closely with our clients to create a document that effectively addresses the company’s unique circumstances and accounts for both expected and unexpected future developments.

 

Buying and Selling Businesses:

We can represent both buyers and sellers in the purchase or sale of businesses; this includes the purchase of assets, shares of stock, or acquiring the business as a whole. Buying or selling a business is a momentous decision that requires the skilled guidance of an experienced business lawyer. We provide counsel through all phases of an acquisition including but not limited to purchase negotiations, purchase agreements, and due diligence. We work closely with CPAs in business valuation, drafting acquisition, or sale agreements with the goal of preventing potential problems and business disputes from arising in the future. We can also provide assistance with structuring your business succession plans.

 

Business Succession:

Preparing for the succession of a business is a critical aspect of business formation as how assets are distributed and conveyed can have significant tax consequences or other implications for subsequent generations. For a business that is owned by multiple individuals (such as several members of a family) business succession involves careful planning to ease the transition whenever there is a change of ownership. This typically happens when a majority owner or manager dies, retires, or becomes disabled. We help draft agreements for the company and its owners (as well as personal estate planning documents) to accomplish our clients’ objectives and minimize any tax or financial burdens.

 

Business Litigation Issues

 

Shareholder and Partnership Disputes:

Business professionals (as well as family members) enter into business ventures on a regular basis; at the businesses’ creation, it is typical for partners to enter into shareholder or partnership agreements. At inception, the parties involved usually only have one goal in mind: ensuring steady growth for their business. However, as time passes and challenges begin to surface, one of the biggest threats to the stability of a business can be disagreements within management and/or among shareholders. We represent clients who have been financially wronged or damaged by the acts of other parties in a business; regardless of the type of business, many of our clients are able to settle their disputes without going to court. When cases do need to be litigated, we are ready to provide you with a depth of judicial knowledge and superior litigation services. Don’t let an internal dispute among partners or shareholders wrongfully deprive you of your investments in the company that you have worked so hard to build.

 

Breach of Contract:

Business in today’s economy depends heavily on contracts; they are absolutely critical in the modern corporate world because contracts clarify the parties’ obligations and expectations. When a breach of contract occurs in a complex commercial transaction, it requires an experienced business attorney to interpret the contractual obligations of the parties involved. This is essential to build a foundation for a breach of contract case and help resolve the dispute in a timely and effective manner. We will work to resolve the disputes of the involved parties and prevent a costly, drawn out litigation process. In the event that an agreed resolution cannot be reached, we are ready to litigate your case in court.

 

Breach of Fiduciary Duty:

Business owners, officers, directors, majority shareholders, and others have a responsibility to perform certain duties and to maintain their integrity in the doing of those activities. When they do not, they may be liable for breach of fiduciary duty. Breach of fiduciary duty claims are quite common in business litigation and it is a broad concept that may arise in the context of shareholder disputes, partnership disputes, or even fraud. We represent clients who have been wronged and financially damaged by the acts of other parties in a business.

 

Non-Compete Agreements:

We advise and represent clients in the drafting and litigation of non-compete agreements; the court interprets these agreements very strictly so they must be drafted carefully in order to be enforceable. Frequently, these agreements are governed by statute and the case law surrounding the interpretation of these agreements and their subsequent requirements. We assist in drafting enforceable non-compete agreements and challenging overbearing or unenforceable agreements.
Our dedicated attorneys and staff serve a wide range of business clients in transactional and commercial litigation services; we are flexible and responsive to our clients’ individual needs.

Sonia Montalbano and Collin McKean are highly experienced attorneys who are here to help, whether you are a business owner with growth issues or in need of guidance navigating the legal issues that can arise in business ownership.