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My neighbor and I are having a dispute. Can we get someone to mediate this without going to court? |
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Mediation of disputes is a concept that has become the standard in the last 5 years. Practically all courts now require the parties to mediate their case before the court will allow it to be set for trial. The way mediation works is that the parties meet with a person who is a trained mediator. Each party pays an equal share of the mediator’s fee. Fees vary from mediator to mediator. The goal of the mediator is to help the parties come to an agreement that they both can live with (not necessarily an agreement they both are happy with). Whatever the parties say to the mediator is confidential and cannot be used at trial. The parties to the dispute can attempt to mediate at any time, even before a lawsuit is filed. In fact, if more people tried to mediate before filing suit, a lot less suits would be filed. A person does not need a lawyer to mediate. On the other hand, it does not hurt to have a lawyer attend mediation with his client to insure the final agreement that is signed covers all the bases. Once the parties sign the final agreement it is binding and enforceable and the mediator can explain this in more detail. Mediation is appropriate for any kind of dispute from divorce to personal injury. It’s always worth a try and if the parties can’t come to an agreement, the courts are still there to make the final decision.
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What is the difference between a lawsuit, arbitration and mediation? |
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Although all three are used for the resolution of disputes, there are substantial differences between them. A lawsuit begins by the plaintiff filing a petition in the proper court with jurisdiction over the dispute against one or more parties as defendants. The defendants do not have any input into the initiation of the process and generally are not voluntary participants. There are established rules about where a lawsuit can be filed. On the other hand an arbitration proceeding is generally initiated by filing a notice with the appropriate non-governmental entity or with the opposing party to the dispute. Arbitration is governed by the Federal Arbitration Act or the Texas Arbitration Act. By agreement of the parties, the arbitration hearing may be held in any location but is usually held in a location convenient to both parties. These proceedings are conducted privately instead of through our courts system. It is regarded as an effective way to resolve disputes. Often, contracts have mandatory arbitration clauses in them. It is common to find a mandatory arbitration clause in the documents used to open an account at a securities trading company. Arbitration results may be binding or non-binding depending on the agreement of the parties. Mediation is a non-binding effort at resolving disputes. If this does not work, then a lawsuit or arbitration is available to resolve the dispute.
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I am doing business under a business name I’ll call "Hot Stuff Company" and I have filed an assumed name certificate in Harris County. Will that stop someone from stealing my company name? |
An assumed name certificate (a "doing business as" or "dba") gives no protection of a name. Its only purpose is to put on record who is actually doing business under that name. Nor does incorporating under a particular name stop someone else from using it. You will find multiple dba’s at the courthouse for the same name filed by different people. The only real protection is to trademark that name either in Texas or federally with the U.S. Patent Office if you are doing business across state lines. Advertising in a newspaper is generally considered doing business across state lines. Registering your name as a "service mark" if you are providing a service or as a "trademark" if you are selling a product will give you the legal right to stop someone else from using your name. There is such a thing as a common law trademark but proving who used the name first is a lot more difficult that just registering it. If you don’t want to see someone else using your name then trademark it!
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I am using a business broker to buy or sell a business; so why should I also use a lawyer? |
Purchasing or selling a business can be anything from simple to complex depending upon any number of different factors. Frequently a business broker is used to bring the parties together, and while they are important to the transaction, a qualified attorney is also essential to the consummation of the deal in a proper manner. Issues to consider when buying or selling a business include whether it is to be an asset or stock transaction; allocation of the purchase price; pension, profit sharing or other ERISA plans; inventory; liabilities; assets; allocation of the purchase price; warranty obligations; federal, state and local taxes; the structure of the business; real estate; leases; lawsuits; contractual obligations; employee and workplace issues; financing issues; and the proper use of an agreement to preserve corporate opportunity and consulting agreement. The increasing complexity of business today requires proper and thorough documentation and analysis of the proposed transaction. Attorneys can best protect your interests as a buyer or seller if the professional is consulted early into the proposed transaction. The best time to hire an attorney is the earliest point in time that your budget will allow and always before a contract is negotiated and signed.
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What form of entity should I use to conduct my business? |
There is no right or wrong answer to this question. The available business entities include a sole proprietorship, partnership, limited liability company and corporation. Within the partnership category you can choose between a general partnership, registered limited liability partnership and a limited partnership. With corporations you can choose between a close corporation, A "S" corporation, and a A "C" corporation. The best entity to use when doing business depends upon the type of business being conducted and the owners needs and concerns. Generally speaking, persons doing business as a sole proprietorship or a general partnership have unlimited liability to businesses creditors. The other forms of business entity generally limit the liability of the members or shareholders to the persons agreed capital contribution to the entity. However, limited liability should not be the exclusive consideration. Other factors to consider include the preferred manner for recognition of profits and losses of the business, transferability of ownership interests, fringe benefits, retirement benefits, and other items. As an example, for income and loss recognition, sole proprietorships, partnership entities, limited liability companies and A "S" corporations all recognize income and losses at the owner level, and A "C" corporations recognize income and losses at the corporate level.
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I have a dispute with another person or business but I don't really want to file a lawsuit at this time; how can I get the dispute resolved? |
One of the most difficult decisions that any person or business entity has to make from time to time is whether to file suit against another party to settle a disputed issue. Fortunately, there are means to settle disputes without filing suit. One such dispute resolution procedure is mediation. In the past few years mediation has become widely recognized as a viable way to resolve disputes. It works if both parties are actually willing to participate with a willingness to fairly settle disputes. Courts often require parties to go to mediation before a lawsuit will be tried. This is not because the judges don't want to try the case, but because it is often faster and the result fair. Likewise, it is possible for parties to agree to mediation before the filing of a lawsuit. Whether you would want to conduct mediation without having legal counsel is an individual choice, but not one that is recommended unless you know your rights and the current state of the law governing the matter in dispute. We encourage our clients under the right set of facts to seriously consider pre-litigation mediation because it can be quick, relatively inexpensive and is non-binding if a settlement is reached. If a settlement is reached then it is reduced to writing and is binding just as any other contract.
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How can multiple owners of a business protect themselves and the business in the event of a major disagreement between the owners? |
It is difficult for business owners who find themselves in serious disagreement with their partners or other shareholders to resolve the dispute without hard feelings and possible serious damage to the business. The best solution is through advance planning and the utilization of a buy-sell agreement. The buy-sell agreement is intended to establish the price and terms that an owner could expect to receive or pay to purchase the interest of another owner in the business. These agreements can provide for mandatory purchase and sale on demand or upon the occurrence of certain events such as death, incapacity or expulsion from the business, and can be funded by life insurance in the event of an owners death. One of the most difficult tasks in reaching an agreement for a buy-sell agreement is establishing the price that required to be paid and accepted to purchase and sell an owners interest in the business. Although these agreements may be done at any time, it is best to establish a buy-sell arrangement when the owners initially establish the business or when a new owner is admitted into the business. It is at then that the parties are best able to reach an agreement affecting future events because there is generally no existing disagreement at that time. |
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