Archives for May 2023

May 23, 2023

The goal of mediation, unlike litigation, is voluntary settlement between the parties. There is no winning or losing, the goal is a compromise where both parties can walk away feeling satisfied. Because it is up to the parties whether they will or will not settle, it is imperative that you arrive prepared for mediation with a true understanding of your goals and realistic concessions you are willing to make to avoid litigation. By taking the following considerations into account before you begin mediation, you will be well prepared to advocate your position.

• What are your goals?

By identifying your key interests, you and your attorney can strategize so that the settlement addresses all of your goals. This step allows you to prioritize your interests while also considering broader areas of importance. Is this a business relationship you hope to preserve in the future? Is confidentiality particularly important to protect you moving forward? Your attorney should help you recognize these interests in addition to what is required for a financial settlement.

• Do not shy away from making the first offer.

Studies show that parties who make the opening offer in negotiation are more pleased upon settlement than their adversaries. This is thanks to “anchoring” and the fact they define the range for the negotiation to follow.

• Estimate your success at litigation.

Your attorney should help you realistically estimate your chances for success should the dispute go to litigation. Depending on this estimate, you will have a better understanding of how you should handle mediation. Perhaps you can hold out longer for a more favorable outcome given the strength of your position, or maybe you need to identify reasonable points of compromise in favor of settlement. Also, considering the costs of litigating the dispute should factor in as potential liability when determining your mediation strategy.

• Prepare to speak at the plenary session.

While it can seem easier to leave the talking to the attorneys, it can be very powerful, and beneficial to your position, if you address the opposing party directly. Authentic expressions of emotion can assist your counterparty in grasping your perspective and even shift their position closer to yours.

• How will you fund the settlement?

Arrange for funding in advance and come prepared with realistic settlement parameters. Ensure you have proof of funding and the authority to agree to settlement terms.

• Back up your position with an actual explanation.

Rather than make bare demands, come ready to assist your counterparty in understanding why you are asking for what you want. Helping them understand your why will increase your chances of success that your demand will be accepted.

• Remember the role of the mediator.

The mediator is unbiased and is there to help you reach a resolution, not hand down a verdict. Use the mediator to your advantage and remember all communications with them remain confidential and are not disclosed to your counterparty. The mediator should serve as a sounding board for your strategy for reaching a settlement and can help you get there faster.

With adequate preparation, you will arrive at mediation in the best possible position to settle favorably and avoid litigation.

To read how Castaybert PLLC can assist you with mediation, click here.

May 23, 2023

A new article from the BBC explores the importance of punctuation in contracts, focusing in particular on the comma, and how its misuse can cost companies considerably when drafters get things wrong.

Oakhurst Dairy out of Portland, ME owes delivery drivers back overtime pay after a $5M settlement reached earlier this year. Attorneys for the drivers argued the lack of a comma in the state’s overtime laws meant their clients were entitled to payments their employer believed were not owed. The key statutory language concerned those workers who were not entitled to overtime pay, including those involved in: “the canning, processing, preserving, freezing, drying, marketing, storing, packaging for shipment or distribution of: 1) agricultural produce; 2) meat and fish products; 3) perishable foods.”

The entire argument hinged on the missing comma between the words “shipment” and “or distribution.” Had a comma been used, the law would have ruled out the Oakhurst Dairy delivery drivers as those workers who distribute perishable foods.

Ken Adams, author of A Manual of Style for Contract Drafting says, “punctuation matters… [but] it boils down to commas… they matter, and exactly how depends on the context.” Commas serve to connect separate clauses in a way that leaves their reading open to interpretation, and in contract drafting this ambiguity can either be a useful strategy tool employed by the drafter, or a detrimental oversight.

US courts are turning more to textual interpretation and give more weight to the words in the contract than the testimony of the contracting parties themselves. A misplaced comma can entirely change the meaning of a sentence, an important consideration as more courts rely on the written word to decide contractual disputes. For this reason, it is essential we are “not just dotting the Is and crossing the Ts but also making sure every comma is in the right place.”

During the drafting process, if punctuation seems ambiguous, it is paramount that parties speak up and nail down the actual meaning of their negotiated terms on the page. “The purpose of a contract is to help people get the outcomes they both expected and know what they’re supposed to get from the other side,” so there should not be misunderstandings. If there are disagreements over contract interpretation, argue the issues upfront rather than down the road. Doing so may save all involved a painful legal headache in the future.

To read the full article from the BBC, The Commas That Cost Companies Millions, click here.

To read how Castaybert PLLC can assist you with contractual matters, click here.