Getting divorced is emotionally trying time for everyone involved. Once it starts to sink in that this is really happening, there can be a lot of fear and anxiety as you face an uncertain future. You may go back and forth between sadness, anger, depression, and other emotions as you try to make sense of everything. But in the midst of all of this, you also realize that it will be much better for you and everyone else in the long run if you try to end your marriage with you and your spouse on good terms.
For divorcing spouses who understand that it is better to remain civil throughout the process, divorce mediation is often the right way to go. Through mediation, couples work out the terms and conditions of their divorce together with the guidance of a neutral, third-party mediator. Mediation is a cooperative process that gives participants the opportunity to come up with a settlement that is better suited to their needs than what is likely to come out of the courts.
Although the mediator facilitates the process, no divorce settlement can become legally binding unless both spouses agree to it. This gives the spouses ultimate control over their own settlement rather than leaving it in the hands of the court.
With mediation, spouses can delve deeper into the issues that are most important to them, giving them the ability to develop more creative solutions around often difficult issues such as dividing the marital estate and parenting time. This kind of flexibility is nearly impossible to attain in a court setting.
Here are some of the other benefits couples receive when they use divorce mediation:
- Cost-Effective: Divorces can often be worked out through the mediation process at a fraction of the cost of traditional divorce litigation.
- Timing: Mediation is conducted on your own time, so you do not have to follow the court calendar and sessions can usually be completed much more quickly. This is especially true in recent times as the courts still have not cleared the backlog that was created by the Covid-19 shutdown.
- Privacy: Mediation sessions are kept private and unlike litigation, what is said during these sessions does not become part of the public court record.
Making Divorce Mediation Work for You
Mediation is a great solution for many divorcing couples. However, since no settlement can become legally binding without the approval of both spouses, they must be willing to work together to come up with an agreement. Here are some important tips to help you get the most out of divorce mediation:
Choose an Experienced and Reputable Divorce Mediator
Not all divorce mediators are the same. Some do mediation part-time as an add-on to another profession, while others are trained and focused mostly or exclusively on mediation.
It is important to understand that the mediation process is different from other dispute-resolution processes like litigation. The mediator is an equal participant who is there to facilitate a discussion that guides the participants toward a workable resolution. This is a skill that is learned and developed over time, and for this reason, it is generally best to look for a mediator who is an expert in this field and solely dedicated to this profession.
Here are some other qualities and characteristics to look for in a good mediator:
- A neutral third-party facilitator who will ensure that the rights of both spouses are protected.
- Validates the feelings and opinions of both participants and makes them feel that they are “heard”.
- Is flexible and willing to work around busy schedules, including offering virtual/remote mediation sessions.
- Is a natural troubleshooter and problem solver.
- Has an in-depth understanding of challenging issues such as finances and parenting issues.
- Works closely with other specialists who can assist with complex matters such as dividing large marital estates that contained more complicated and unique assets.
- Compassionate and genuinely cares about ensuring that participants emerge from the process healthy and whole.
Focus on the Future
With any divorce, there is a certain amount of emotional baggage from past wounds that have brought the spouses to the place where they are dissolving their marriage. While these old wounds may be valid, it is not productive to focus too much of your attention on them during mediation.
Prior disputes will only distract from the issues at hand and move you further away from a peaceable and workable resolution. When you enter divorce mediation, your focus should be less on “what went wrong” and more on “where do we go from here”.
Enter the Process with Realistic Expectations
When you start divorce mediation, you need to go in with the understanding that you are not going to get everything you want. Every negotiation involves a give-and-take, and you need to be willing to give up something in order to get something that is more important to you. This is how negotiation works, and everyone needs to have a willingness to compromise in some areas.
Be Open to New Ideas
During mediation, you might discuss some solutions that you may not have heard about from others who have gone through traditional divorce litigation. For example, the mediator may know of some ways to resolve challenging parenting schedules or complicated financial matters. Be open to new and innovative ideas that might be suggested to help resolve some of your unique challenges.
Look Out for the Well-Being of Your Children
Although you surely have differences with your spouse, try not to minimize the impact your spouse has on your children. For the sake of the kids, it is best to treat the other parent respectfully and maintain a civil tone. Doing this costs you nothing, but it can mean everything for your kids to see that their parents are at least making an effort to get along.
Stay Committed to the Process
You might not resolve everything in your first mediation session, and this is completely normal. Most couples will need at least a few sessions to work out everything, so do not get discouraged if you feel like you did not make adequate progress in your first session. Oftentimes, participants just need to get all of their issues and grievances out in the open during the initial session, then they can move forward and work on a resolution.
Be mindful that this might happen and keep focused on the big picture. Even if mediation takes one or two more sessions than you initially expected, it is still far better than going through a long, drawn out and costly court battle.
There are a lot of reasons why couples decide to get divorced. Financial troubles, lack of communication, continual arguing, unrealistic expectations, lack of intimacy, infidelity, and abuse are among the more common reasons why couples split up. Sometimes, both spouses are partially to blame for the breakup, while in other cases, the divorce is triggered primarily by the actions of one of the spouses.
Many people believe that if they were not the ones who caused the divorce, they should not have to share in equitable distribution or pay spousal support (if this type of support is applicable in their case). For example, if one of the spouses was unfaithful and that is the event that triggers the divorce, shouldn’t that spouse be penalized by receiving less of the marital estate?
The short answer to this question is “no” in most cases. This is because every state in the US has what is called a “no-fault” divorce, and this is the reason that is used in the vast majority of divorce cases.
A couple seeks a no-fault divorce in New Jersey based on “irreconcilable differences”, which is a shorthand way of saying that the marriage is broken beyond repair and there is no reasonable chance that the couple will be reconciled. And with a no-fault divorce, there is no basis for which to penalize either of the spouses for whatever acts they may have committed.
In other words, in a no-fault divorce, it doesn’t matter who did what. If your spouse was cheating on you, for example, it is a reprehensible act of betrayal. But because the divorce is no-fault, your spouse is still allowed to share in equitable distribution.
You may think this is unfair; but consider that if you have reached the point where your marriage is irretrievably broken, chances are it is not exclusively because your spouse “ruined” your marriage. If everyone is being honest, both spouses usually bear some responsibility for their marriage reaching the point where it is about to be dissolved. It may be difficult to realize this at first, but after a little time passes and the emotions are removed, spouses are often able to see the situation more clearly.
Divorce Mediation for No-Fault Divorces
Couples who have decided their marriage is over can make their divorce go much more smoothly by settling the issues that need to be resolved through mediation. Divorce mediation is an increasingly popular alternative to traditional litigation that allows spouses to work out the terms and conditions of their divorce together with the help of a professional, third-party mediator.
Mediation does require cooperation between the spouses and a willingness to compromise on some issues. This does not mean you have to agree on everything, you just need to be civil with each other and have reasonable expectations. If you and your spouse are able and willing to do this, you can complete your divorce for a fraction of the cost of litigation while crafting an agreement that is far more tailored to your specific needs than what you would normally end up with in court.
If you believe your spouse’s actions ruined your marriage, you may be understandably skeptical of a process like divorce mediation. But it is important to keep in mind that even a contentious marital breakup can be settled with mediation, as long as both spouses are willing to work together toward a more positive outcome.
The key is to try to put past hurts behind you as much as possible and look towards the future benefits of settling your divorce in a more peaceful manner. For example, if you and your spouse have children together, then you will probably have to maintain some type of contact with your spouse for the rest of your life. This being the case, it is better for everyone involved (especially the kids) if you and your spouse can part on good terms.
Contact AMS for Professional Divorce Mediation in New Jersey
If divorce mediation sounds appealing to you and you would like further details about this option, Advanced Mediation Solutions (AMS) is here to help. Message us online or call our office today at (856) 669-7172 for a free consultation to find out how we can help you.
A surprising number of businesses operate without an operating agreement or with a poorly crafted one that was put together without a lot of thought and foresight. When owners of a new business form a partnership or LLC, they are already being pulled in numerous different directions just getting the new entity off the ground. In the midst of all of this, many of them forget to take time to establish firm operating rules and put them in writing.
Why is a Business Operating Agreement Important?
A business operating agreement is very important, because it allows the owners to set up specific rules for how the business will be run. In the absence of such an agreement, the business will fall under the standard rules of the particular state in which it is located. Not having a written operating agreement also significantly increases the chances of misunderstandings and disputes arising between owners.
A partnership or operating agreement is a contract between owners that establishes the operational, managerial, and financial rules of the organization. This provides clear guidelines and protocols that owners and managers are required to follow.
Some of the most important areas of the business that can be covered with an operating agreement include:
- The capital contributions of each owner.
- The percentage of the business that each partner owns.
- The roles and responsibilities of each owner.
- The powers and duties of owners (and managers if applicable).
- Owner salaries and the procedures for distributing profits and losses.
- Procedures for hiring, training, and managing employees.
- Procedures for selling interest in the business, transferring interest to a new owner, buyout clauses, what happens in the event of the death of an owner, and other buy-sell provisions.
- Conflict/dispute resolution procedures.
- Business dissolution provisions and procedures.
As a business evolves, some of the rules, procedures, and provisions that are established in an operating agreement may become outdated and no longer makes sense. For this reason, it is wise to revisit your business agreement on a regular basis; if not annually, at the very least as part of a three or five-year plan. This helps ensure that your agreement remains in alignment with your business goals and objectives.
One smart way to keep things up to date is to weave your business operating agreement review/discussions into your annual budget and strategy meetings. During these meetings, be proactive in discussing any disconnects, changes needed, etc., and create an environment where owners and managers can voice their opinions on these matters. Giving the stakeholders a fair hearing can often result in new ideas being voiced that might make the business better, and it also helps avoid the buildup of frustrations and resentment that can lead to serious conflicts.
Creating Your Business Operating Agreement
If your business currently does not have an operating agreement or all you have is one of those cookie-cutter templates you get online, the good news is that it is never too late to set one up the right way. One of the most effective and cost-efficient ways to accomplish this is through mediation. Mediation can be used to develop an initial business agreement or to modify an existing agreement.
Business mediation is facilitated by a neutral, third-party mediator who has no vested interest in the outcome of the process. This gives participants an outside perspective on their business, something that is often needed in order to point out issues that those who are too close to the situation might have overlooked. The mediator has no authority to implement any particular rule or provision, their expertise lies in their ability to establish common ground among participants and guide them toward an agreement that everyone can be happy with.
For business owners who decide to go this route, it is important to choose a mediator with a good amount of business experience under their belt. The business and corporate world is growing increasingly complicated with each passing year, and it is very helpful to work with a professional mediator who has been in business themselves and has an in-depth understanding of the many challenges that owners face in today’s world.
Trust AMS For an Operating Agreement Your Business Can Live With
If your business needs a partnership or operating agreement, Advanced Mediation Solutions (AMS) is here to help. Our business mediator Carmela DeNicola is a lifelong entrepreneur who also has over three decades of executive experience in the corporate world. Carmela has worked extensively with businesses and entities of all types and sizes, and her depth of knowledge gives her unique insights that help owners develop more creative and innovative agreements that effectively address their unique needs and goals.
To learn more about how AMS can help your business and to schedule a free consultation, message us online or call our office today at (856) 669-7172. We look forward to serving you!
Disputes are commonplace in the commercial world. Whenever you bring two or more human beings together, you are bound to have disagreements over something, and sometimes they can escalate into conflicts that threaten to disrupt the entire operation or end the business relationship. Eventually, every business conflict is resolved; but the question is, how does it get resolved and at what cost?
In some cases, the final resolution to a dispute is that those who are involved part ways. Like a marriage that ends in divorce, they may decide that there are “irreconcilable differences”, and they will no longer be in business together or do business together. In other cases, one party “wins” over the other party, but only after a long and costly legal battle. But this could end up being a “Pyrrhic victory” in which the business relationship is damaged beyond repair.
The ideal way for a business dispute to be resolved is by coming up with a peaceable and workable arrangement that is acceptable for all parties. Everyone should feel like their needs and concerns are being addressed at least to some degree, and the parties should come out feeling like they had a say in the process.
An arrangement like this can be accomplished through effective negotiation; but negotiating successfully can be a major challenge for those who are too close to a situation. Emotions can run high, and this can cloud someone’s judgment and prevent them from seeing the bigger picture. To help parties come to an acceptable agreement, a growing number of individuals and organizations are turning to business mediation.
Business mediation can assist in resolving all types of commercial disputes, including but not limited to:
- Partnership Disputes
- Contract Disputes and Breach of Contract
- Shareholder Disputes
- Violations of Fiduciary Duty or Breach of Fiduciary Duty
- Business to Business Disputes
- Disputes Between Member Owners of a Limited Liability Company (LLC)
- Disputes Between a Company and a Supplier
- Disputes Between a Company and its Customers
- Disputes Involving a Commercial or Business Interest
How does Business Mediation Work?
Mediation is a voluntary process that is facilitated by a neutral, third-party mediator. The mediator gets together with the parties to discuss their differences and guide the conversation toward a resolution that all parties must agree to. The mediator has no authority to impose a resolution on the parties if there is no voluntary, non-coerced agreement.
Mediation can be conducted in-person or remotely via phone, Skype, Zoom, or some other type of video chat. As you might expect, the remote option has been used more frequently during COVID-19 in order to follow proper social distancing in keep everyone safe.
The mediation process is very flexible and customizable to the needs of the parties involved. Sometimes, the mediator meets with all parties at the same time. In other cases, the mediator can speak privately with each party and go back and forth between them, a process known as “caucusing”.
Business mediation can be completed in one session, or it might be necessary to conduct multiple sessions. This all depends on the complexity of the issues involved and how long it takes for parties to arrive at an acceptable agreement. Even if it takes multiple sessions, however, the process is still far less costly than litigation.
The one potential drawback with business mediation is that, because the process is voluntary, there is no guarantee that the parties will reach a resolution. They have every incentive to come to an agreement, and most of the time the process is successful. However, there are times when the parties are simply too far apart to settle their differences without a resolution being imposed by an outside authority.
Business partners and associates who are involved in a legal dispute can derive several benefits from the successful use of mediation:
- The mediation process is private and confidential, and nothing that is discussed is ever made public.
- Business mediation is conducted in a friendly and cooperative setting, increasing the chances of the parties continuing to do business together after the dispute is resolved.
- Mediation provides the opportunity to implement creative solutions or accommodations that would be far less likely to be introduced in a court setting.
- Because all parties must agree to any resolution, they are far more likely to take ownership of and adhere to the agreements that are made.
- As we have talked about earlier, mediation can be done more quickly and at far less cost than going to court.
Turn to AMS for Business Mediation Services
At Advanced Mediation Solutions (AMS), we provide all types of business and commercial mediation. Our mediator, Carmela DeNicola, has several decades of experience working in both small businesses and large organizations. Her in-depth expertise across a wide range of commercial settings allows her clients to benefit from the creative and innovative solutions that she has to offer.
To get started, call our office today at (856) 669-7172 or send us an online message. We look forward to serving you!
The coronavirus pandemic forced the closure of nonessential businesses throughout the country, and these closures remained in effect for several weeks. Even after these businesses reopened, distancing and other safety guidelines were put in place, and many of them were not allowed to open at 100% capacity. This situation has left millions of commercial tenants struggling to pay rent, and many of them are grappling with the question of whether or not they can even stay open.
In most areas of the country, state and local governments put a freeze on tenant evictions at least for the first few months after the shutdowns began. In addition, a special forgivable loan program called the Paycheck Protection Program (PPP) was set up through the Small Business Association (SBA) to help businesses that were struggling.
It has been several months since the pandemic started, and much of the relief that was available to small businesses has come to an end. Many of these businesses are now facing the reality that they can no longer defer paying rent on their location, and there are far fewer resources available to obtain financial help than there were at the beginning of all this. So, if their business is not back to pre-pandemic operational capacity, they are looking at some very difficult days ahead.
For business owners that are in this situation and lease the space in which they operate, the one party that they will most likely need to work something out with is their landlord. Rent is always among the biggest expenses that a commercial tenant has to pay; and coming to a workable arrangement with their landlord could be the one thing that will determine whether or not they will be able to stay open.
Negotiating Commercial Lease Modifications during COVID-19
At this point, a business owner could be several months behind on rent for their commercial space. And although the terms and conditions of leasing agreements vary, in a large number of cases, the landlord will have a legal right to evict a tenant if they do not catch up on rent. The question, however, is should they proceed with an eviction, or is there a better way to handle this?
Looking at the big picture, it is generally in everyone’s best interests to work out an acceptable arrangement rather than having to evict a tenant from their space. Of course, the business owner will most likely want to stay in the same location (if at all possible) in order to maintain some type of stability during these unprecedented times. And if the owner has been a good tenant up until now, the landlord should also want them to stay.
Landlords must also keep in mind that in the current business climate, leasing an empty space might be very difficult. In fact, they could wind up not having the space occupied until the economy recovers, which might not be until sometime next year at the earliest. There is also the issue of the court backlog that has been created by the COVID-19 shutdown and the fact that it will take a lot more time to complete an eviction than it did before the pandemic started.
With all of these factors in play, negotiation is going to be the best option for most landlords and tenants. But this might not be an easy process either. There are a lot of issues to work out, and each side is going to have to be flexible and compromise in some areas. You could hire lawyers to do the negotiation for you, but this could be very costly especially at a time when everyone is being very careful about every dollar they spend.
One of the most preferable ways to resolve a landlord-tenant dispute and/or negotiate a modified lease agreement is through mediation. With mediation, the participants meet with a neutral, third-party mediator whose job is to facilitate a constructive discussion that guides the participants toward a peaceable and workable resolution. The process is entirely voluntary, and no agreement can become legally enforceable unless all participants agree to it.
In many cases, landlords and tenants can use mediation to work out the terms and conditions of a lease at a fraction of the cost of traditional legal methods. And in addition to saving money, participants are more involved in the process, which makes them more likely to take ownership of the results and abide by whatever agreement is ultimately reached.
Contact AMS for Business Mediation that Works for You
If you are involved in a commercial landlord-tenant dispute or any other type of business conflict, Advanced Mediation Solutions (AMS) is here to help. Our business mediator, Carmela DeNicola, has decades of experience working in both the corporate world and with small businesses. Over the years, she has seen virtually every type of dispute that may come up in the commercial realm, and she can often help clients develop innovative and practical solutions that they may not have been aware of on their own.
We are currently offering extended hours to make things easier for those who have had their schedules disrupted by COVID-19, and we can provide either in person or virtual mediation, whatever works best for you.
For a free consultation with a member of our team, message us online or call our office today at (856) 669-7172. We look forward to serving you!