A. General Overview of Collaborative Law in Arizona

Those facing civil litigation may use a process called Collaborative Law to resolve their dispute out of court. Collaborative Law means that both parties retain collaboratively trained attorneys to help resolve the matter using interest-based negotiations. The parties also enter into participation agreements requiring their collaborative attorneys and other professionals retained to withdraw if there is no settlement. The agreement also requires voluntary disclosure of relevant information.

B. How Other Professionals Are Used.

Parties can use a team approach in the collaborative process. The parties can jointly retain other professionals to assist in resolution. The teams may include a neutral – such as a mediator or a mental health provider – who helps facilitate settlement discussions. A mental health professional may also be used to help parties communicate well or to deal with anger or grief, depending on the nature of the case. The parties may also use financial professionals for business appraisals, forensic accounting, estimates of economic damages, and tax advice on settlement proceeds, structured annuities and special needs trusts. Other experts may be used as the specifics of a case dictate. For example, a construction case may utilize an engineer.

C. What Type Of Civil Cases Can Benefit From Collaborative Law?

The following types of cases have already successfully used collaborative law: partnership dissolutions, several disputes in probate courts regarding guardianships, trusts and the administration of estates, and employment law.

Other areas could include: special education, real estate disputes (construction, permits, landlord tenant, financing), personal injury, regulated industries, insurance disputes, and any other number of areas.

In the medical error cases, the parties can use the process to engage in less expensive discovery and obtain creative solutions that may include apologies and agreements to change procedures.

D. How Is A Collaborative Case Different Than A Cooperative Case?

Some cases can be settled using collaborative skills but without the participation agreement or provisions for withdrawal. They cannot be considered collaborative cases, but they are still generally preferable to litigation.

E. Can An Attorney Take A Collaborative Case On A Contingency Basis?

Contingency fees are still allowed, and the lawyer is just like any other attorney with a limited scope engagement. If settlement is unsuccessful, the collaborative attorney is in the same position as a litigation attorney who loses at trial or hands off the case to another attorney. Like any other attorney, the collaborative attorney must still keep track of his/her time.

Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

The dispute between the NFL and the players has been described as a case of billionaires fighting millionaires.  The NFL wants to renegotiate the terms of its contract with the players.  The players feel the requested changes are unfair.  Currently, there is a lockout in place that has been temporarily upheld by the Court.  A hearing is scheduled on the issue for June 3, 2011.    The parties attended voluntary mediation in Washington in March.  The Court ordered continued mediation, and the parties attended their sixth day of talks last week.
Is mediation a good idea for the players and the League?  The short answer is: “yes.”  Any time parties sit down to talk with a mediator (a neutral person trained in conflict resolution), there is the possibility of reaching an amicable solution.  That solution is almost always going to be better than litigating.
First, litigation takes time.  In this case, neither the parties nor the owners have time.  The 2011-2012 season depends on a quick decision, especially with training camps are scheduled to start in approximately two months.  Even if the Court issues a ruling early next month, one or both parties may be able to challenge the decision or instigate further litigation.  The ruling on the lock out is only one facet of the conflict.  Mediation can address conflicts quicker than litigation.
Second, litigation is risky.  When the stakes are so high, both parties have to mitigate the risk of losing.  No one can guess the outcome of litigation.  In a short period of time, there have been two contradictory rulings regarding which side of the dispute would suffer more irreparable injury with or without the lockout.  The parties, the fans and the economy will lose if the football season does not proceed.  A mediated agreement would reflect a compromise in which neither side gets everything it wants.  However, both sides would avoid a catastrophe.  In mediation, the parties fully consider the risks of litigation and the benefits of certainty.
Third, there is little to lose in trying mediation.  The Court confirmed that discussions must be confidential (as most mediations are), so no party is comprising its position in court or in the court of public opinion.
Will mediation work?  Mediation does work most of the time, and the fact that the parties have not yet reached an agreement in this highly complex and high stakes conflict is not a reflection on the efficacy of mediation.  Mediation does require some sort of desire to settle, and there have been some speculation that one or both parties are not really trying to resolve the conflict because of the impending ruling.  However, if both parties have some desire for resolution, mediation is the perfect forum to end conflict as advantageously as possible for all involved.

Alona M. Gottfried is a mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona(at)sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Everyone who watched “The Social Network” (or one of the many news programs and articles featuring Mark Zuckerberg) is familiar with the case between Facebook and ConnectU, Inc. (the Winklevoss twins (hereinafter “the Twins”)).  The Twins sued Facebook for allegedly stealing their idea, and Facebook countersued.  The District Court ordered the parties to attend mediation.

The parties agreed in writing that their mediation would be confidential.  The confidentiality agreement provided:  “all statements made during mediation were privileged, non-discoverable and inadmissible for any purpose including in any legal proceeding. . . . No aspect of the mediation shall be relied upon or introduced as evidence in any arbitral, judicial, or other proceeding.”

The parties entered into a full and binding agreement in mediation in the form of a written agreement.  The Twins were awarded money and an interest in Facebook, in exchange for ConnectU, Inc.

Thereafter, the Twins would not cooperate with executing the agreement, alleging the agreement was not binding.  They alleged that they were mislead as to the price of the Facebook shares and that the mediated agreement excluded material terms.  Facebook filed to enforce the agreement.  The District Court found the agreement enforceable, and the Twins appealed the decision.

On April 11, 2011, the Ninth Circuit Court of Appeals found that the confidentiality provision in the mediation agreement was binding and refused to let the Twins introduce evidence of discussion that occurred during the mediation.  The Court further found that the agreement reached in mediation was binding.  Without being able to introduce information regarding the mediation, the Twins could not support their securities claim (that they were misled as to the value of the stock).  In any event, the Court found that the Twins were sophisticated parties, and they could have made the agreement contingent on determining the accuracy of the share price.  The Court noted:  “There are also very important policies that favor giving effect to agreements that put an end to the expensive and disruptive process of litigation.”

The decision was a win not only for Facebook, but for mediation.  What can we take from the decision?

• Compelling parties to attend mediation is an effective way to end conflict. Many states and nations do have compulsory mediation programs.  Unfortunately, in Arizona, Courts do not compel mediation, except for justice court cases.
• Confidentiality agreements work. Many people choose to resolve disputes in mediation specifically because, unlike litigation, they are afforded confidentiality.  Confidentiality allows parties to keep private information private, and it allows people to negotiate and problem solve openly without fear that, one day, their words can be used against them.
• Agreements made in mediation are binding. While one can allege a mediated agreement is not binding for the same reasons one can attack the binding nature of any other contract (such as fraud), the presumption is that the agreement is binding, and courts recognize the public policy in upholding mediated agreements.

Alona M. Gottfried is a mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Your neighborhood should be a stress-free zone.  However, we have all had a neighbor or two who made our very existence intolerable:

Arizona Neighborhood Mediation

• the one with the car alarm that goes off every night (you know who you are);

• the ones who want everyone to enjoy their colorful marital fights (your door does close, Sir.  You know that, don’t you?); or

• the ones who will not remove their lawn ornaments from your side of the property (do you really need both the donkey and the gnome?)

The list goes on and on, and problems range from the mere annoying to the financially destructive (barking dogs, malodorous fumes, property line disagreements, substandard house maintenance that destroys your property value…).   As it is probably not in your best interests to get in a big, ugly fight with someone you have to see almost every day – and with someone who knows when you are not home – you may want to propose mediation to address the dispute.

With mediation, all parties sit down with a neutral third party who is trained to help people peacefully resolve disputes.  Mediation is confidential, relaxed, usually successful, and it allows neighbors to move forward with a positive relationship.  Perhaps, with the issue resolved, you will even borrow each other’s lawn tools again.

You could always sell your house and move, or hire expensive attorneys, but isn’t it better to make peace?

Alona M. Gottfried is a mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona(at)sglawaz.com.  You can also visit:  www.azmediator.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Choosing  Mediation in Arizona is a great option to resolve or prevent conflict in your life.  Mediation, and other forms of Alternative Dispute Resolution (“ADR”), including Collaborative law and facilitation, are powerful methods of resolving conflict that allows the participants to end disputes without the unnecessary expense and stress that litigation can bring.

Using a Mediator, and other forms of ADR, have many benefits.

The Benefits of Using A Mediator in Arizona:

• Time-efficient. Litigation can take a year or more to complete. Mediation can take a day or less.
• Cost effective. In a highly litigated case, it is not unusual to amass many tens of thousands of dollars per party in attorney’s and expert’s fees and costs. Mediation costs substantially less, and the parties generally share the cost.
• Amicable. While litigation destroys relationships and often causes participants great stress and disruption in their lives, ADR often preserves relationships and eases stress.
• Flexible. With Mediation the participants are in charge of the resolution, and the participants have flexibility in crafting win-win solutions.  Courts are limited in how they can decide the case, and often there is a winner and a loser.
• Certain. Litigants always risk losing in Court.  No attorney can ever guarantee a win.  With Mediation, the participants control the outcome, and they do not have to gamble on the result by leaving their fate in the hands of a judge or jury.
• Confidential. Trials and Court decisions are a matter of public record. Settlement discussions remain confidential, with few exceptions.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

When Going to court in Arizona can cost tens to hundreds of thousands of dollars, who can afford pay to litigate in this current economy?  Okay, who can afford to litigate other than corporations that received TARP money?

Conflicts do not generally disappear when money is short supply.  Typically, more conflicts tend to arise when money is short.  It has been said that money problems are one of the top reasons for relationship issues.  Further, with a bad economy, more people are failing to comply with contractual terms, such as repaying a loan or credit cards.

The bad economy has sent individuals and companies alike back to the drawing board to find new ways to get things done.  For example,  people are cutting coupons out of the paper, and companies are letting their employees go.

Perhaps the economy is the push that people and companies need to try mediation instead of slugging it out in the courtroom.  Mediation is generally a much less expensive process than litigation.  Instead of paying two attorneys and often multiple experts for their assistance over a period frequently lasting a year or more, both parties pay one mediator who can often help resolve the conflict in a couple of days or less.

Using a Mediator makes good sense, especially when financial capabilities are limited.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260