I enjoy being a mediator. Mediation is when a third party neutral helps the disputing parties by facilitating their dispute. It is the last opportunity the parties will have to be a party in the decision making process, because if mediation fails then there will be litigation or arbitration. This means a judge, jury or arbitrator will be making the decision.
Being a mediator allows me to be a guide and organizer to attempt to bring a resolution to the disagreement. What I believe is the most important though is that mediation allows people to make agreement that are legal, but that a court could never create.
For example, partners want to split the business, but it is not a simple 50/50 division. There were debts neither party wanted, client agreements for future events and the name of business. With mediation each issue could be dealt with, rather than a costly trial which leaves most people feeling the results were unsatisfactory, let alone the antagonistic behavior.
If you have a small claims court action in Massachusetts, and most other states, then expect that you will be mediating that dispute first. If you entering a contractual agreement with another party consider a dispute resolution clause with mediation as a choice before court proceedings.
I am snow weary. Usually this condition does not hit me until the end of February, but with two storms the feeling started early.
“The snow brings out the worse in people,” said a plow driver.
This is true- patience is lost. Here are some other issues that the snow brings:
- Timing. If you have contracts or due dates on projects then be advised to make sure you have an understanding about date flexibility. The postal services are not running on time, in fact a form I sent to the court was delayed. I called until I was told it was received and recorded. If date and time is important, then you may want to consider a courier service.
- Liability. Yes, sidewalks, parking lots and common areas should be clean, but please recognize that in many locations there are 30+ inches of snow with no place for the snow. Think about using technology to avoid driving or at least to be understanding.
- Prepare. I do have the ability to work from home, but this means in order to do so I must back up my computer files. This is important for not only security reasons, but so that you can complete your work as seamlessly as possible, especially if due dates are immovable. As an adjust professor, I have noticed that my students have not kept up with the reading on missed classes, but the classes will continue and with online classes they will be made up with many students behind. No need to get behind if you keep up with the work and remain prepared.
Most importantly, it is a time to be able to use collaborative negotiation in order to solve issues, looking past positions to find out what truly are the issues, keeping in mind it is usually timing, liability and preparedness. Do not be stuck in your way (in ice or snow), but collaborate to find a solution. It will not melt the snow faster, but it will make it bearable.
It was take your dad to court day, not that I sued my father, but that he had a legal matter and I was co-counsel. It was fascinating to see the process through a layman’s eyes because court is not about “justice,” it’s about “negotiation.”
This frustrated my father. Statistically about 75% of cases settle. Why?
The judge made two important statements:
“This is not about all the emotions or who is right or wrong.”
“Each side had to give and take.”
The other side in this case was unreasonable and unwilling to give up anything so there will be a trial.
My dad is still confused.
First, the clerk magistrate is like a gatekeeper. He or she is giving information on the validity of your case. They try to settle matters at that level first, if not then your next step it to appear before the judge where the judge again will try to settle matters.
Courts are busy and trials take time. If there are settlements negotiated or mediated, then the judge is free to handle other matters.
What about the lawyer?
Well, in the court room there was a matter before the judge that just needed to the two lawyers to agree to continue. So they each charged their clients to come to court to work out a date to meet in the future.
My point is this—if things go wrong, then approach it with a settlement attitude. Negotiate so that you can come up with a fair outcome, talk to a lawyer to see your rights, but it will cost less in time and money when you can come up with a solution before court.
December means the holidays, family and even stress, but it may also be the time to think of bonuses for your employees, which leads me into the timely discussion of the difference between independent contractors and employees.
I usually get this question when a business owner is worried that the person they have been giving a 1099 form to—the IRS form given to independent contractors so that they pay their own taxes- is not really an independent contractor. In fact, this person is an employee who is being fired and may want to collect unemployment, something an independent contractor cannot do.
The IRS looks at three criteria:
• Behavioral Control covers facts that show whether the business has a right to direct or control how the work is done through instructions, training or other means.
• Financial Control covers facts that show whether the business has a right to direct or control the financial and business aspects of the worker’s job.
• Type of Relationship factor relates to how the workers and the business owner perceive their relationship.
In Massachusetts the law and test is stricter as people are considered to be an employee under those chapters unless:
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
The best example to illustrate is:
Independent contractor: You are a health care practitioner with your own office and need an electrician to install outlets. You hire an electrician, you do not know how to install outlets, do not tell the electrician how to do their job and pay them a fee for the service they have done.
Employee: You are a health care practitioner and you offer massages, you hire a massage therapist, give the massage therapist a room, clients and tell the massage therapist what time to come in. This is an employee.
The issue is that it is less expensive to utilize independent contractors because with employees the employer must pay payroll taxes, workers compensation and unemployment. However, the question is how much do you want to risk since penalties are stiff for a business owner.
I was watching an episode of the Good Wife and their files were being held for ransom. I thought it was something that was fictional, but when I was speaking to Marcus of ASCE Solutions I learned otherwise. He has helped businesses when they find their files held hostage- truly the only avenue is to pay.
What can be done?
Since 2010 Massachusetts required every business or individual who uses a Massachusetts resident’s personal information to have a Written Internet Security Program. Many people do not know about this requirement.
To start what is personal information?
(a) Social Security number;
(b) driver’s license number or state-issued identification card number; or
(c) financial account number, or credit or debit card number.
What WISP is requiring is that paper files are locked and their access is limited. For computer files they require firewalls, virus programs and if you backup then that needs to be secured, too.
You mention ransoms?
There are individuals that hack into computers and will hold files hostage. It has happened to many companies, but is not publicized. A case that was publicized was that of Swansea Police Department. They were forced to pay $750 in ransom earlier this month to hackers after a virus locked all of their computer files.
Meet the WISP protocols at least, but think about working with a technology expert. Adhering to the law is important, but being protected.
For more information on WISP: http://www.mass.gov/ocabr/docs/idtheft/sec-plan-smallbiz-guide.pdf
In a two week time span the same thing happened.
I was asked about creating a business entity. I would love to create the entity for them, but the truth is that insurance is more important and you are better off by putting the money you will pay to create a business entity towards insurance.
Don’t believe me?
I will share one of the experiences. A dog walker contacted me and I listed three companies that provide insurance. Where money is an issue, insurance is a better investment unless you plan on selling your business in the very near future or have the extra money to put towards a business entity.
Did the dog walker listen?
A dog got away from one of the handlers and was hit by a car, but scampered off and has not been seen as of yet.
If the dog is never found then sorry dog lovers, a dog is considered personal property and the dog walker will be liable for the cost of the dog only. If the dog is found and is injured, this could be a problem with the cost of the veterinarian bills which may exceed the value of the dog.
Would a contract have helped?
Possibly as it would have given the amount to which the dog walkers are liable, limiting exposure.
Would the business entity have helped?
Not at all. The idea is that a business entity protects personal assets, but the business entity or the individuals involved will have to make some sort of payout, and had there been insurance, then the insurance company would have made payment.
Remember, insurance and business law go hand in hand.
It is summer vacation time! This may involve an airline, a hotel, a rental car and dealings with service businesses all to make your vacation a success.
But, things can go wrong as I discovered in Turkey when our airline cancelled their flight and we were left at the mercy of chaotic, disorganized Turkish airport.
Thankfully, back home and safe and sound (after a harrowing taxi cab ride at 90 miles per hour going down one way streets the wrong way with a driver who did not speak English). However, there are repercussions, expenses that I incurred and I want to be put back to the place I would have been in if the trip had gone smoothly.
What to do? Just like I advise in business- keep records, receipts to prove what happened to you. Write it all down and make notations so that you know what you have. This is your evidence. As I have mentioned before most cases are lost because there is not enough evidence to prove what has happened to you.
Start making phone calls, sending emails and writing letters. Your letters and emails should be direct with what happened to you and what you are looking for in compensation.
This is a process of persistence and patience, but I am sure it will all work out.
True North Business Consulting provides legal services and mediation. For more information contact us today!
Kerri Salls of the Exit This Way Radio Show interviewed Cynthia Pasciuto of True North
Business Consulting. The podcast can be found here with lots of valuable advice and an
engaging conversation that you do not want to miss!
I was recently was interviewed by Dr. Georgianna Donadio of the National Institute of Whole Health (NIWH). NIWH provides credentialed individuals with educational programs.
Our conversation was about starting a business and included legal, marketing and management information in a short 20 minute segment. To listen go here.
I recently gave a presentation at the Women’s Innovative Network. It was an amazing, attentive audience of entrepreneurs. My talk was based on 10 ideas that can help your business. I believe my last one is probably the most important one.
Do you need a lawyer?
As a lawyer, you would assume that I would say a wholehearted, YES! But, instead what I suggest is you collect as much information as you can before contacting an attorney.
You are the person who knows the most about your profession. If you need more information, then I always suggest connecting to your professional association, whether that is local or national. They will be a great source to you to help your business.
When should I contact an attorney?
If you need a contract or agreement created, then you should contact an attorney, but with the information that you are providing, then it will be a shorter phone call or meeting. This saves you money, but you have also educated yourself about your business.
I also suggest getting a lawyer involved if you are taking part in a negotiation. Again, a short conversation can help you manage the situation, get a reality check and put you on winning road.
If there is a disagreement, then I always advocate mediation, but mediation with an attorney mediator can make a difference in a business conflict.
Lastly, any legal complaints or issues with governmental authorities do need legal intervention. Many times I have seen people ignore paperwork or wait until the last minute. If you are being sued, then you need to immediately hire an attorney.
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