July 2023 - MPL Law Firm

Mediation – The Pillow Fight of Legal Battles

Mediation certainly has a place and sometimes works quite well if both parties are truly interested in resolving a dispute. In terms of severity, I would consider mediation like the pillow fight of the legal battle realm. The disputing parties work with a mediator (i.e., a neutral third party) to resolve their disputes.

The mediator supervises the exchange of information and the bargaining process between the two parties with the goal of conflict resolution. They interpret concerns, relay information between the parties, frame issues, and define problems. The mediator may also offer creative resolutions.

However, keep in mind that mediation is typically not binding until a settlement agreement is executed. More times than not, there are one or more issues which the parties cannot resolve, which forces them out of mediation and into either arbitration or the courts.

Next week, we will review arbitration.

As always, please don’t hesitate to email myself (jsanders@mpl-law.com), Andy Miller (amiller@mpl-law.com), Christian Miller (cmiller@mpl-law.com), Erik Spurlin (espurlin@mpl-law.com), Brad Leber (bleber@mpl-law.com) or anyone in our office with questions or comments.  

Please see all of our prior updates at this link or if you would like to be added to our email list, please click here.

If You Want To Have A Fight, Let’s Have A Fight – Arbitration, Mediation & Trials

Arbitration, mediation, no jury trial, jury trial? What do these provisions mean when you see them in your agreements? I am sure you have a form of one or more provisions in a contract that you have executed. So, what are the main differences and the pluses and minuses of each. Over the next few weeks, we will dive into each. However, for this week, I will provide a quick overview of these four main dispute resolution techniques.

Arbitration – Arbitration refers to an alternative dispute method where the parties agree to have their dispute heard by a qualified arbitrator out of court.
Mediation – Mediation is an alternative dispute method where the parties agree to have their dispute heard by a neutral third person. The process is less rigid than arbitration.
No Jury Trial – This method, sometimes referred to as a bench trial, is where a dispute is heard and decided by a judge or other qualified judicial officer (e.g. a magistrate) without a jury.
Jury Trial – This is where a dispute is heard and decided by a judge and jury.

Like everything in the legal realm, there are pluses and minuses to each of the processes mentioned above. If you want to have a fight, let’s have a fight….but you must know the rules.

Next week, we will start with mediation.

Here are a few other things that may be of interest:

Q2 2023 Commentary from Stonebridge Financial
C-Suite Cyber Attacks – How to Prevent Being a Victim – Stambaugh Ness

As always, please don’t hesitate to email myself (jsanders@mpl-law.com), Andy Miller (amiller@mpl-law.com), Christian Miller (cmiller@mpl-law.com), Erik Spurlin (espurlin@mpl-law.com), Brad Leber (bleber@mpl-law.com) or anyone in our office with questions or comments.  

Please see all of our prior updates at this link or if you would like to be added to our email list, please click here.

From the Mountaintop; A Review of the Latest Business-Related Supreme Court Decisions

The US Supreme Court issued a number of decisions in the last few weeks. I thought it would be a good idea to give you quick rundowns of the business-related cases and what they mean. FYI, all of these overviews were provided by the NFIB, who filed amicus briefs in each case.

Bittner v. United States – In this case, the Court protected small businesses from incurring numerous penalties under the Bank Secrecy Act. The case questioned whether the failure to file a required report is considered a singular violation in itself or if an individual should incur multiple violations for each unreported account. Ultimately, the Court concluded that violations under the Bank Secrecy Act should not result in multiple, extraneous penalties. This will benefit the many small business owners who mean to comply but lack the resources to navigate the complex regulatory requirements.

Wilkins v. United States – This case questioned whether the Quiet Title Act’s statute of limitations is a jurisdictional requirement, which would prohibit small business owners from filing a suit against the government after the 12-year time period expired. Instead, the Court agreed with NFIB that the statute of limitations was not jurisdictional and was instead a claim-processing rule. This decision reinforced the importance of property rights and the balance between the government and property owners, ensuring that small business owners could have their day in court.

Sackett v. Environmental Protection Agency – Sackett v. Environmental Protection Agency was perhaps the most awaited decision from this Supreme Court term for small businesses as it coincided with the enactment of the Environmental Protection Agency’s (EPA) and the Department of the Army’s final rule on the waters of the U.S. The case concerned whether wetlands are considered “waters of the United States” under the Clean Water Act. Before this decision, small business owners had no clear way to determine if their land was under the jurisdiction of the EPA. This impeded their ability to run their businesses or improve upon their land. Thankfully, the Court unanimously rejected the standard courts and the government have used to expand the EPA’s jurisdiction over private property in favor of a narrower test. The decision creates a clearer picture of WOTUS and the authority of the EPA and the authority of the EPA and the Department of the Army, saving many landowners from bureaucratic confusion and unfair penalties the Department of the Army, saving many landowners from bureaucratic confusion and unfair penalties.

Tyler v. Hennepin County – The case questioned whether the Takings Clause prevents the government, after seizing and selling a person’s property to collect back taxes, from keeping the surplus amount collected from the sale. This government practice is commonly referred to as “home equity theft.” The Court unanimously ruled in favor of Tyler on her Fifth Amendment takings claim, ensuring that small business owners are protected from this unfair government practice.

Glacier Northwest, Inc. v. International Brotherhood of Teamsters – In their amicus brief in the case, NFIB argued that multiple court precedents had already determined that the National Labor Relations Act (NLRA) does not immunize unions from state tort suits involving the intentional destruction of private property. The Supreme Court agreed, solidifying the established balance of power between labor unions and employers. This decision ensures that small businesses have the right to seek compensation via legal action following the vandalism of their property.

Coinbase Inc. v. Bielski – In Coinbase Inc. v. Bielski, the Supreme Court considered whether the Federal Arbitration Act (FAA) requires trial courts to halt trial court proceedings once a party appeals the court’s decision on a motion to arbitrate. In answering that it does, the Court saved business owners from enduring the costly litigation that they seek to avoid by requesting arbitration in the first place.

I hope that you found these overviews helpful. If you have any follow up questions, please reach out to your business legal counsel. Next week, we will dive into the pluses and minuses of agreeing to settle a business dispute via the court, mediation and/or arbitration.

Here are a few other things that may be of interest:

Economic Review: Q3 2023 – Silvercrest (silvercrestgroup.com)

Please see all of our prior updates at this link or if you would like to be added to our email list, please click here.

MPL General Counsel Corner – If Your BOD is Me, Myself and I, You May Want to Think About Expanding

Running a business can be one of the most exciting, scary and loneliest things that a person can do. Many fall into the trap of thinking that asking questions of others is a sign of weakness. Moreover, some even think they have all the answers and only rely on themselves and the person they see in the mirror for input.

From my own personal experience, I can share that each of these decision-making approaches led me to the wrong answer more times than not. That is not to say that I did not consider or think about the right decision. However, whenever I relied solely on myself, I usually overanalyzed the situation and missed an opportunity or just made a bad choice.

After making some my particularly dumb decisions, I finally came to the realization that maybe I should reach out to other people and get some varying perspectives. Surprisingly enough, when I engaged in this process, I made better decisions. It is such a simple concept that is too often ignored.

If this is an approach your considering, I would strongly encourage you to identify and develop your own personal Board of Directors. This can be professional advisors (business attorneys, business accountants, financial advisors), other business owners, mastermind groups (e.g., Vistage), mentoring organizations (e.g., SCORE, SBDC), and so on. When you talk with them, make sure to remember that you have two ears and one mouth and to use them in proportion. At the end of the day, if your own personal Board of Directors is me, myself and I, you may want to think about expanding it.

Below are some articles and websites that also may help:

Happy 4th of July to everyone! Next week, we will dive into the recent business-related US Supreme Court rulings.

A few things that may be of interest:

As always, please don’t hesitate to email myself (jsanders@mpl-law.com), Andy Miller (amiller@mpl-law.com), Christian Miller (cmiller@mpl-law.com), Erik Spurlin (espurlin@mpl-law.com), Brad Leber (bleber@mpl-law.com) or anyone in our office with questions or comments.  

Please see all of our prior updates at this link or if you would like to be added to our email list, please click here.