They said: This case is impossible to settle.  I responded:  It is only impossible if you don’t try. I am not referring to one specific mediation, but to a commonly identified obstacle to resolution.  Parties often say in frustration “this is impossible.”  But the important thing to understand is that the “impossible” obstacle often isn’t the underlying dispute, but the mindset of those involved.  If you just try, sometimes you can achieve the impossible. To illustrate, let’s consider Tracey Corderoy’s It’s Impossible. In this story, Dog runs a successful laundry service in a busy and noisy city.  Dog also longs to visit the ocean, but it is very far away.  Instead of traveling to the ocean, Dog brings a little bit of the ocean to him.  He sleeps with an ocean nightlight.  He reads ocean tales.  He relaxes in a hammock as if he were on the deck of a ship. One day, Dog buys a new laundry detergent called Ocean Magic.  It is indeed magical.  As the washer runs, the room smells just like the ocean.  Dog loves it. Then, Dog hears something.  He turns and finds a crab in his laundry basket.  Neither Dog nor Crab knows how he got there, but Crab really wants to go home to the ocean. Crab asks to borrow a bike, but his feet won’t reach the pedals.  Crab asks Dog to mail him back, but he would be squashed in the mail.  Crab then announces that he will just walk back, but Dog shows him a map and it is miles and miles away. Dog laments “I’ve always wanted to go to the ocean.  But it’s too far to drive.  It’s impossible.” Crab keeps probing and pushing until, one day, Dog comes home from the laundry to find that Crab has packed Dog’s suitcase and is ready to go.  Dog again protests that “It’s impossible.”  To which Crab responds “It’s only impossible if you say it is. . . Can’t we try?” And that’s just what they did.  They loaded up Dog’s car and off they went on their cross-country road trip.  Along the way, they saw many sights, made lots of new friends, and overcame many obstacles from long and windy roads to fierce winds to downed trees and roadblocks.  Finally, they reached the ocean.  And it was just as magical as Dog had hoped it would be. But all vacations must come to an end.  It was time for Dog and Crab to say goodbye.  Crab wanted Dog to stay.  Dog started to say – it’s impossible – but then he stopped himself and said – it’s only impossible if I say it is.  Dog and Crab now run a magical café on a magical beach at the ocean’s edge.  And they learned that, when they work together, nothing is impossible. So let’s examine this.  Dog’s mindset was it’s impossible.  With help from Crab to explore his concerns, Dog’s mindset shifted to let’s try.  While their journey was filled with obstacles, working together, they overcame these obstacles to make the impossible possible. Which is exactly what can happen in mediation.  The mediation process allows parties to shift their mindset, explore ways to overcome obstacles, and find their path to resolution thus making the impossible possible. Author’s Note: As a mediator, I am a “forever student” always seeking new ways to help people find a path to resolution in mediation.  As a parent, I have spent a gazillion hours reading books to my children.  Oftentimes, these books teach me new ways to approach conflict resolution.  In this case, Tracey Corderoy’s “It’s Impossible” inspired this post. Disclaimer:  Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. Mediator Insights - It's Impossible The post Mediator Insights: It’s Impossible appeared first on Sylvia Mayer Law.

Sometimes we all just need to roar.  By roar, I mean let out our anger.  Anger is an emotional iceberg.  What we see is the angry outburst, but underneath we find the hidden causes like fear, rejection, regret, grief, and more.  In my experience as a mediator, parties often bring anger with them to the mediation.  And sometimes, one of the most important steps in a mediation is to just let them roar. To illustrate, let’s consider Tom Percival’s Ravi’s Roar. In this story, Ravi is the youngest and smallest in his family. Most of the time, he loves being the smallest. But not all of the time. One day he and his family go to the park. They race from their house to the train. Being the smallest, Ravi is left behind. When they get to the park, they play hide and seek. His older siblings hide, but he cannot find them anywhere. They move on to the playground. Ravi is too small to reach the monkey bars. Ravi is too small to jump over the logs. Ravi is too small to go down the big slide. Ravi gets mad. Hoping it will make Ravi feel better, his dad offers to buy everyone ice cream. They run to the ice cream cart and line up. Ravi is last in line. When it is Ravi’s turn, there’s no ice cream left.  Ravi is furious.  In a fit of rage, Ravi turns into a tiger.  He goes wild.  He roars and growls.  Others are scared of him.  He takes their ice cream.  He takes their seats.  He takes over the playground, swings on the monkey bars, jumps over the logs, and slides down the big slide. But no one wants to play with him.  No one wants to be with him.  Ravi is all alone.  Once his anger is spent, he can’t even remember why he got so angry. In a very quiet voice, Ravi says to his family “I’m sorry.”  His family hugs him.  His family accepts him.  Ravi turns back into a boy and the kids go off and play. How does this play out in a mediation?  Let’s examine what happened to Ravi. Ravi felt abandoned when he was left behind as they ran for the train. Ravi felt hopeless when he failed at hide and seek. Ravi felt incompetent when he couldn’t do the monkey bars or jump the logs. Ravi felt excluded when he was too small for the big slide. Ravi felt wronged when there was no more ice cream. Abandoned, hopeless, incompetent, excluded, and wronged.  These are often the underlying hurts driving emotions in a mediation.  So, what do we do when faced with someone who needs to roar?  Let’s follow Ravi’s family’s lead. Space: Anger is a valid human emotion.  We all feel it and sometimes we all just need to get it out.  A safe space to roar may be exactly what someone needs. Do Not Take It Personally: Anger is rarely about the receiver, but instead often masks underlying hurts, so try not to take it personally. The Calm: Once their anger is spent, there is often a quiet calm.  This is an opportunity. Parties often need a safe space to process their emotions in mediation before they are able to move forward and find a path to resolution.  For some parties, that may come out as a need to roar.  Give them space, do not take it personally, and then take the opportunity of the calm to find the path to resolution. Author’s Note: As a mediator, I am a “forever student” always seeking new ways to help people find a path to resolution in mediation.  As a parent, I have spent a gazillion hours reading books to my children.  Oftentimes, these books teach me new ways to approach conflict resolution.  In this case, Tom Percival’s “Ravi’s Roar” inspired this post. Disclaimer:  Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. Mediator Insights - When They Need to Roar The post Mediator Insights: When They Need to Roar appeared first on Sylvia Mayer Law.

Many readers of our blog posts and emails are aware that at Shenwick & Associates, we represent numerous borrowers who have defaulted on or not repaid their SBA EIDL loans. Many borrowers had hoped or prayed that SBA EIDL loans would be forgiven, similar to PPP grants. However, as one Boston lawyer stated, "Hope is not a legal strategy." Borrowers frequently inquire about the actions the government may take if they fail to repay their SBA EIDL loans. If payments are not received by the SBA, the agency will issue a Final Notice of Delinquency and Collection Actions. This notice states that unless you remit the full balance owed or contact the SBA Customer Service Center to discuss repayment options within 15 days from the date of the notice, the SBA may take further actions.Those actions include:1. Acceleration of the entire loan amount being due immediately,2. Interest accruing at the higher default rate,3. A lawsuit against you for the full amount owed,4. Foreclosure against the collateral of the Borrower, as provided in the Loan Agreement and Security Agreement,5. Garnishment of up to 15% of wages,6. Reporting that may disqualify you from obtaining a loan/guaranty from federal agencies,7. Reporting of your name and other information to credit bureaus, which may adversely affect your credit rating,8. Transfer of your account to the U.S. The Department of the Treasury ("Treasury Direct") who will pursue further collection actions, including offsetting any government payments owed to you, 9.Treasury Direct imposes a 30% penalty on the balance of monies owed to the SBA.10. Referral to private collection agencies and the U.S. Department of Justice for litigation, 11. The accruing of “Cancellation of Debt Income” under section 108 of Internal Revenue Code to the Borrower or the Guarantor (on loans greater than $200,000.00), which income is reported to the IRS by the SBA pursuant to a Form 1099-C Borrowers who have defaulted or are contemplating defaulting on an SBA EIDL loan should contact Jim Shenwick, Esq., as soon as possible.Jim Shenwick, Esq  917 363 3391  [email protected] Please click the link to schedule a telephone call with me. https://calendly.com/james-shenwick/15minWe held individuals & businesses with too much debt!--------Other SBA EIDL posts by James Shenwick, Esq.Misuse or Misapply SBA EIDL Loan Proceeds and Chapter 7 Bankruptcy Filings https://shenwick.blogspot.com/2023/08/misuse-or-misapply-sba-eidl-loan.html SBA EIDL HARDSHIP PROGRAM https://shenwick.blogspot.com/2023/07/sba-eidl-hardship-program.html Defaulted SBA EIDL Loans, Limited Liability Company (LLC) and Cancellation of Debt Income (COD) under Section 108 of the Internal Revenue Code https://shenwick.blogspot.com/2023/07/defaulted-sba-eidl-loans-limited.html Offers In Compromise ("OIC") for Defaulted SBA EIDL loans and Section 108 of the Internal Revenue Code ("IRC"), Relief of Indebted Income, a Trap for the Unwary! https://shenwick.blogspot.com/2023/05/offers-in-compromise-oic-for-defaulted.html EIDL LOAN WORKOUTS AND BANKRUPTCY https://shenwick.blogspot.com/2022/07/eidl-loan-workouts-and-bankruptcy.html EIDL Loan Default Questions & Answers https://shenwick.blogspot.com/2022/10/eidl-loan-default-questions-answers.html EIDL LOAN DEFAULT DOCUMENT REVIEW, WORKOUT, BANKRUPTCY FILING & OFFER IN COMPROMISE https://shenwick.blogspot.com/2022/07/eidl-loan-default-document-review.html EIDL Defaulted Loans https://shenwick.blogspot.com/2022/07/eidl-defaulted-loans.html New Relief Program for SBA EIDL Borrowers Who are Having Difficulty Repaying EIDL Loans " Hardship Accommodation Plan" https://shenwick.blogspot.com/2023/05/new-relief-program-for-sba-eidl.html

Do you know who participates in mediation?  People.  People participate in mediation.  Whether for themselves or a business, they are still people.  And many people who participate in mediation are grieving.  Their grief may or may not be related to the underlying dispute.  Regardless, their grief is often palpable and can be a barrier to resolution. When grief is in the room, it is important to allow time in the mediation process for participants to cycle through their grief and become receptive to resolution. To illustrate, let’s consider Gabby Gonzalez’s I Love You Bigger Than the Sky. In this story, Carmen’s beloved grandmother has passed away.  Carmen’s father tells her “You’re grandma has gone to heaven.”  Then her father begins to cry.  Carmen’s response is disbelief.  She thinks – this cannot be. Carmen runs away from her father to a nearby playground.  He follows her.  Carmen yells at him.  “Leave me alone.”  “I don’t want to talk.”  Her father quietly sits with her as she cries. Then, Carmen’s father suggests they go home.  Carmen is reluctant and insists that she will only go home if grandma is there.  But her father cannot promise that. They return home and Carmen cries.  And cries.  Her father comforts her.  He shares that they will always be connected because grandma will be in their hearts forever. Time passes.  Carmen remembers how grandma loved butterflies, flowers, and the sky.  Carmen feels grandma’s love in her heart as she watches the butterflies fly from the flowers to the sky.  Carmen looks up into the sky and whispers to her grandma – “I love you bigger than the sky.” This touching story beautifully explores the five stages of grief and shows the value of giving someone who is grieving the opportunity to move through these stages: Denial – Carmen thinks this cannot be. Anger – Carmen yells at her father. Bargaining – Carmen insists she will only go home if grandma is there. Depression – Carmen cries and cries. Acceptance – Carmen feels grandma’s love and looks to the sky to tell grandma she loves her. Grief may be present in a mediation because the dispute is related to a death or serious bodily injury.  Grief may be present because one or both parties are grieving a business loss related to the dispute as is common in business separations and dissolutions.  Or grief may be in the room if one party has suffered a personal loss that they are still processing.  Even if the loss is wholly unrelated to the dispute, grief can impact the process because it impacts a party’s mental and emotional states. Regardless of why grief is in the room, processing grief takes time, a safe space, and a nonjudgmental and empathic listener.  Mediation offers this. When one or both parties are grieving, take the time to let them cycle through the stages of grief and reach acceptance.  Acceptance leads to receptivity, which allows the parties to find their path to resolution. Author’s Note: As a mediator, I am a “forever student” always seeking new ways to help people find a path to resolution in mediation.  As a parent, I have spent a gazillion hours reading books to my children.  Oftentimes, these books teach me new ways to approach conflict resolution.  In this case, Gabby Gonzalez’s “I Love You Bigger Than the Sky” inspired this post. Disclaimer:  Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. Mediator Insights - The Grief in the Room The post Mediator Insights: The Grief in the Room appeared first on Sylvia Mayer Law.

Toddlers love the word “no.”  Some grownups do too.  I see this in mediations all too often.  One side is stuck on “no” and my job is to help them become unstuck. To illustrate, let’s consider Tracey Corderoy’s No! Otto is adorable.  Everyone says so – his parents, his grandparents, and even the mailman.  But then Otto learns a new word.  No.  He loves his new word so much that he says it all the time. At mealtime, at bath time, at bedtime, and even at preschool. While Otto loves saying his favorite word, sometimes he regrets saying no.  Like when the teacher asked who wants a surprise.  Otto said no.  And everyone else got a cupcake. One day, the kids are on the playground when it is about to rain.  The teacher asks everyone to come inside.  Otto says no.  Otto doesn’t just say no, he says no, no, no, NO!  Otto stays outside.  In the rain.  Otto is alone.  Otto is very wet and very sad. When Otto’s dad picks him up, he realizes something is wrong.  He kneels down and asks – would you like a hug?  Otto starts to say no, but then he rushes into his dad’s arms and says “yes!”  After that, Otto has a new favorite word – yes. Otto missed out on a lot of great things by saying no.  Cupcakes and hugs.  Playmates and playdates.  Otto was alone and sad.  Otto realized that saying no was only hurting him, but he needed a helping hand from his dad so he could shift from no to yes. Otto’s story is a perfect analogy for mediation.  Parties come to mediation because they’ve been saying no.  Perhaps the no was no to even discussing settlement or the no was the rejection of an offer.  Regardless, they begin the mediation stuck on no.  And that’s where the mediation process makes the difference. By exploring the downside of no and the upside of yes, probing the strengths and weaknesses of each side’s position, and giving the parties time to vent, share, and process, the mediator is effectively holding out a helping hand.  Through this process, the mediator helps the parties get unstuck on no and shift to yes.  And that yes then paves the path to resolution. Author’s Note: As a mediator, I am a “forever student” always seeking new ways to help people find a path to resolution in mediation.  As a parent, I have spent a gazillion hours reading books to my children.  Oftentimes, these books teach me new ways to approach conflict resolution.  In this case, Tracey Corderoy’s “No!” inspired this post. Disclaimer:  Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. Mediator Insights - Stuck on No The post Mediator Insights: Stuck on No appeared first on Sylvia Mayer Law.

You can go your own way, go your own way.  (Fleetwood Mac’s Go Your Own Way) (Written by Lindsey Buckingham) This is the last in the “Breaking Up is Hard to Do” nine-part series exploring dispute resolution for business divorces. After working through emotions, grief, and valuation, if unable to reconcile, then business partners must go their own way.  The form of separation varies widely.  There may be a buyout, a separation with a division of the assets or operations, a liquidation and dissolution, or anything in between. Things to consider when negotiating the form of separation include whether to have a clean break or some ongoing connection, forms of compensation, issuance of promissory notes or preferred or nonvoting stock, treatment of personal guaranties, assumption or satisfaction of liabilities, covenants not to compete, consulting arrangements, license agreements, nondisclosure agreements, and retirement and healthcare benefits. Regardless of the form of separation, ultimately, the goal is closure.  Closure moves the parties from uncertainty to certainty of outcome.  Closure allows former co-owners to put behind them the pain, shame, or anger that led to this moment.  Closure puts an end to the mental distraction, emotional toll, time drain, and financial expense of the business divorce.  Closure allows former business partners to move into the future and let go of the past conflict. The economic outcome of the separation may be calculable, but the intrinsic value of closure can be priceless.  With closure, the former business partners can indeed go their own way. Disclaimer: “You’re So Vain, You Probably Think This Song is About You” (written and sung by Clary Simon).  Please note that this series is drawn from over 30 years of experience as counsel or neutral in business separations, reconciliations, and divorces.  Nothing in this series is based on any specific dispute in which I have been involved.  In addition, nothing contained herein constitutes legal advice nor does it create a professional relationship. ADR Insights on Business Divorces - You Can Go Your Own Way (Part 9 of 9) The post ADR Insights on Business Divorces: You Can Go Your Own Way (Part 9 of 9) appeared first on Sylvia Mayer Law.

Reunited, and it feels so good Reunited ’cause we understood There’s one perfect fit And, sugar, this one is it We both are so excited ’cause we’re reunited.  (Peaches and Herb’s Reunited) (Written by Dino Fekaris and Freddie Perren) This is the eighth in the “Breaking Up is Hard to Do” nine-part series exploring dispute resolution for business divorces. In the world of family law, not all divorce proceedings end in divorce.  Sometimes, couples reconcile.  The same is true in business divorces.  Sometimes business owners reconcile too. Whatever the dispute resolution forum (mediation, arbitration, or litigation), the ingredients for reconciliation are similar: reconnection, listening, and realignment.  In this context, the only difference between mediation v. arbitration or litigation is that, in mediation, a neutral third party (the mediator) facilitates the reconciliation, whereas, in arbitration or litigation, the parties engage directly. Reconnection: At inception, business partners have a shared dream.  They have a sense of unity and connection.  However, over time, as their shared dream is reality-tested, tensions may arise.  Some owners can constructively work through any friction and maintain their connection, but that is not always the case.  It is those situations that end up in a business divorce. To reconcile, business partners may need to take a step back and remember what brought them together originally.  A shared vision?  A desire to effect change?  Specific goals for the return on their investment?  Friendship or family ties?  Something else?  Or they may need to take a step back to focus on the basic building blocks of their business and partnership.  Looking back to look ahead may help them reconnect and shift the focus from past disagreements or hurts to future potential and opportunities. Listening: Listening is a crucial element for reconciliation for two reasons. First, while a specific event or series of events may trigger a business divorce, the actual catalyst for the schism between business partners is typically bound up in a knot of disagreements and emotions.  Co-owners may need a safe space to share and be heard in order to untangle that knot and move from conflict to reconciliation.  Active and nonjudgmental listening is critical at this stage. Second, once some of the emotional baggage has been untangled, the owners may become more receptive to competing views.  As they listen and learn, they transition from focusing solely on their wants to exploring ways to balance each other’s needs. Realignment: There is typically no way to return to the status quo in a business divorce situation.  Instead, to reconcile, owners must adapt and realign their priorities to address the current circumstances and the challenges they face.  This is an opportunity for them to roll up their sleeves and work cooperatively to find a mutually beneficial solution. Being reunited does indeed feel good when business partners can work through their problems and find a shared path to reconciliation and resolution. Disclaimer: “You’re So Vain, You Probably Think This Song is About You” (written and sung by Clary Simon).  Please note that this series is drawn from over 30 years of experience as counsel or neutral in business separations, reconciliations, and divorces.  Nothing in this series is based on any specific dispute in which I have been involved.  In addition, nothing contained herein constitutes legal advice nor does it create a professional relationship. ADR Insights on Business Divorces - Reunited and It Feels So Good (Part 8 of 9) The post ADR Insights on Business Divorces: Reunited and It Feels So Good (Part 8 of 9) appeared first on Sylvia Mayer Law.

Money, money, money, must be funny in the rich man’s world. Money, money, money, always sunny in the rich man’s world.  (ABBA’s Money, Money, Money) (Written by Benny Goran Bror Andersson and Bjoern K. Ulvaeus) This is the seventh in the “Breaking Up is Hard to Do” nine-part series exploring dispute resolution for business divorces. While emotions swirl in a business divorce, very often the primary substantive issue is money.  Depending on the situation, “money” may mean value, compensation, buy-out price, or something else. Common areas of disagreement regarding money include valuation procedures, measures of value, application of discounts (if any) to minority interests, assumptions underlying estimated value, financial reporting methods and reliability, access to books and records, and who gets how much. On the front end, with careful advance planning, parties may be able to mitigate some of the money issues by adding specific provisions to their corporate formation and governance documents.  For example, the owners may choose to incorporate a robust buy/sell provision specifying triggers, mechanics, and valuation methods and procedures.  Similarly, they may incorporate provisions regarding financial reporting requirements, audit rights, and access to books and records, including how these processes work if there is a dispute amongst the owners. On the back end, in the arbitration context, parties and/or arbitrators may choose to have valuation experts present concurrent evidence (a/k/a hot tubbing).  While the process can be tailored to serve the unique needs of each dispute, generally, this process entails each expert producing a report, then a meeting of the experts to discuss their reports and the underlying issues, followed by the issuance of a joint report by the experts, and culminating in the concurrent testimony and questioning of the experts during the arbitration hearing.  Concurrent evidence is not a good fit for every case, but for the right dispute, the process narrows the issues of contention and allows for a more focused and detailed exploration of the disputed issues during the hearing. In my experience, whether in mediation or arbitration, the most notable aspect of disputes over money is not where the parties disagree, but where they agree.  And often those areas of agreement lay the foundation for finding the path to resolution of the dispute. Disclaimer: “You’re So Vain, You Probably Think This Song is About You” (written and sung by Clary Simon).  Please note that this series is drawn from over 30 years of experience as counsel or neutral in business separations, reconciliations, and divorces.  Nothing in this series is based on any specific dispute in which I have been involved.  In addition, nothing contained herein constitutes legal advice nor does it create a professional relationship. ADR Insights on Business Divorces - Money, Money, Money (Part 7 of 9) The post ADR Insights on Business Divorces: Money, Money, Money (Part 7 of 9) appeared first on Sylvia Mayer Law.

You lost that lovin’ feelin’ Whoa, that lovin’ feelin’ You’ve lost that lovin’ feelin’ Now it’s gone … gone … gone…woah. (The Righteous Brothers’ You’ve Lost that Lovin’ Feeling’) (Written by Phil Spector, Barry Mann, and Cynthia Weil) This is the sixth in the “Breaking Up is Hard to Do” nine-part series on exploring dispute resolution for business divorces. In any legal dispute, two parallel processes are underway: the legal process and the emotional one.  This is particularly true in a business divorce where grief is very often the elephant in the room.  With the loss of that lovin’ feeling’, the co-owners may be grieving the end of their shared vision, loss of their relationship, financial losses, lost employment, or business failure. Whatever the reason, their grief is often a barrier to resolution in a business divorce.  Grief clouds judgment.  Grief results in irrational behavior.  Grief can emotionally incapacitate decision-makers.  As a result, where there is grief, there is a need to understand the process of grieving. Grief is neither linear nor uniform.  Instead, each individual’s grieving process is unique to them.  However, in 1969, Swiss psychiatrist Elisabeth Kübler-Ross identified five emotional stages often experienced by those who are grieving.  These are commonly referred to as the five stages of grief: denial, anger, bargaining, depression, and acceptance.  These five stages are evident in most business divorces and particularly in business divorce mediations. Denial. Denial, which is often the first step in the grief process, is a coping mechanism.  It allows us to survive in the moment.  It is a temporary fix that puts off the inevitable.  It is akin to putting a Band-Aid on a gaping wound.  Denial may ebb and flow over time. In a business divorce, denial takes many forms.  Maybe one owner refuses to accept that the co-owners no longer share a vision and need to part ways.  Perhaps denial led to the crisis when one owner ignored the challenges the business faced.  Or one owner refuses to even engage in dialog about the future. Whatever form denial takes, in the denial stage, a co-owner may be hindered in their ability to negotiate a resolution as they cannot accept and adjust to the new situation. Anger. Anger is a powerful emotion.  It can become all-consuming and may impede progress.  In business divorces, anger frequently presents as blame.  Blaming the other for their actions or inactions.  Blaming the other for the loss or shame or failure.  Blaming the other for some form of betrayal. When in the anger stage, a desire to hurt or penalize the one blamed may underlie a party’s settlement proposals. Bargaining. The bargaining stage is internal.  Instead of blaming the other, the bargaining stage is a series of “what if’s” – what if I had agreed to this, what if I had insisted on that, what if I had offered to do things differently, etc.  Guilt often drives this mindset. Sometimes, in the bargaining stage, a party may offer options for resolution that are unrealistic or impractical as they try to compensate for their guilt. Depression. Depression can be paralyzing.  In the depression stage, an owner may feel that all is lost.  They feel hopeless.  In this stage, a party may struggle to even frame a settlement proposal or see any viable options for resolution. Acceptance. Acceptance occurs when emotions stabilize, and the individual has accepted the new situation.  Acceptance may bring a sense of relief.  Acceptance may bring clarity.  Acceptance may be empowering.  In the acceptance stage, parties are able to adapt and adjust to the new situation.  It is when parties become receptive to resolution. Griefs’ Impact on Mediation So how do the five stages of grief factor into the mediation of a business divorce?  Processing grief takes time, a safe space, and a nonjudgmental and empathic listener.  Mediation offers this.  The back and forth and back and forth in mediation provide time and the opportunity for parties to cycle through their grief and reach acceptance.  Acceptance then allows the parties to find their path to resolution. Disclaimer: “You’re So Vain, You Probably Think This Song is About You” (written and sung by Clary Simon).  Please note that this series is drawn from over 30 years of experience as counsel or neutral in business separations, reconciliations, and divorces.  Nothing in this series is based on any specific dispute in which I have been involved.  In addition, nothing contained herein constitutes legal advice nor does it create a professional relationship. ADR Insights on Business Divorces - You've Lost that Lovin' Feelin' (Part 6 of 9) The post ADR Insights on Business Divorces: You Lost that Lovin’ Feelin’ (Part 6 of 9) appeared first on Sylvia Mayer Law.

Hit me with your best shot, Why don’t you hit me with your best shot, Hit me with your best shot, Fire away. (Pat Benatar’s Hit Me With Your Best Shot) (Written by Eddie Schwartz) This is the fifth in the “Breaking Up is Hard to Do” nine-part series exploring dispute resolution for business divorces. When interpersonal relations sour among co-owners, often the “gloves come off” and aggressive tactics are prevalent.  In arbitration, this may take the form of a party engaging in constant motion practice, serving abusive discovery requests, obstructing discovery compliance, or delaying simply for the sake of delay.  In mediation, aggressive tactics often include bullying, stonewalling, weaponizing time, and deputizing someone with inadequate authority. As a party, you can take steps to mitigate these challenges.  First, know the applicable procedural rules.  In some instances, the rules provide guidance or specify relief for these situations.  Second, focus on the problem, not the person, when considering your options and if seeking intervention.  Third, keep your eyes on the prize (the ultimate outcome), and do not get drawn into time-consuming and expensive skirmishes.  Fourth, instead of fighting fire with fire, find the areas of agreement.  Find the common ground and build on that.  Nothing deflates an antagonist faster than agreeing with them. As a neutral (mediator or arbitrator), our job is to establish guardrails.  On the roadways, guardrails are designed to protect motorists from straying into dangerous territory.  In dispute resolution, guardrails are intended to safeguard the process leading to resolution. Arbitrators use a variety of guardrails to keep an arbitration on track.  For example, discovery costs are often the biggest expense in litigation and, in some cases, an area ripe for abuse.  Arbitrators may establish strict discovery schedules narrowly tailored to the needs of that specific dispute.  Similarly, motion practice may be limited, or a briefing and hearing schedule may be established early on to address preliminary matters, discovery, and other pre-hearing disputes.  At the preliminary scheduling conference, arbitrators typically set the final hearing date and provide that the date can only be changed upon good cause shown.  While each of these tools is useful in many arbitrations, they may be particularly helpful to establish guardrails in “gloves are off” litigation. Mediators also utilize guardrails to keep the process on track.  Active listening and empathy are used by mediators to help parties process their emotions without derailing the process.  Listening sessions can be used when a party comes in “hot” at the start of the mediation.  A listening session is when the mediator begins the mediation by simply listening to each of the parties, separately, without any discussion of settlement or the sharing of information.  Reframing is often used to help a party pivot from provocative or incendiary commentary to more productive dialog.  Technology may help address limited authority. Whether mediation or arbitration, parties in a business divorce may start out ready to “fire away,” but a skilled neutral can implement various guardrails to safeguard the process leading to resolution. Disclaimer: “You’re So Vain, You Probably Think This Song is About You” (written and sung by Clary Simon).  Please note that this series is drawn from over 30 years of experience as counsel or neutral in business separations, reconciliations, and divorces.  Nothing in this series is based on any specific dispute in which I have been involved.  In addition, nothing contained herein constitutes legal advice nor does it create a professional relationship. ADR Insights on Business Divorces - Hit Me With Your Best Shot (Part 5 of 9) The post ADR Insights on Business Divorces: Hit Me With Your Best Shot (Part 5 of 9) appeared first on Sylvia Mayer Law.