Jeffers, Danielson, Sonn & Aylward, P.S.

Family business succession planning: Legal tips for a smooth transition

2024-10-04T20:38:52Z

Succession planning is crucial for family-owned businesses. It ensures continuity, stability and growth when key leaders retire or move on. Without a solid plan, the business risks operational disruptions and potential conflicts. A recent report from Deloitte highlights that many family businesses lack adequate succession plans, which can lead to significant challenges. Proactive planning can safeguard your business's future and maintain its legacy.

Common challenges businesses face

Succession planning can be complicated, especially for family-owned companies in Washington. Here are some issues that can cause turmoil for employers and workers:

Lack of communication leads to misunderstandings
Finding the right person to take over the business
Inaccurately assessing the business's worth
Dealing with complex legal structures and agreements
Long-standing leaders who are reluctant to step down or share decision-making

Awareness of these issues and addressing them early can help ensure a smoother transition.

Key elements to include in a succession plan

Your plan should cover several vital components to avoid the abovementioned issues. A comprehensive approach includes the following:

Identifying the best successor: Determine who will take over leadership roles. This involves evaluating potential candidates' skills, values and commitment to the business.
Drafting iron-clad legal agreements: Establish clear legal frameworks, such as buy-sell agreements, to outline the terms of the transition and protect all parties involved.
Valuing the business: Obtain a professional valuation to ensure a fair assessment of the entity, which is critical for financial planning and equitable distribution.
Training and transition period: Develop a plan for training successors and gradually transitioning responsibilities. This may include mentoring, on-the-job training and knowledge transfer processes.
Adopting clear communication strategies: Foster open communication between current and future leaders. This helps align goals, expectations and visions for the business's future.

Succession planning is an investment in your business's future. By addressing common challenges and including crucial elements in your plan, you can ensure a smooth transition and maintain operational continuity. Working with an experienced attorney knowledgeable in business law and estate planning is essential to cover all the bases and ensure a successful transition.

Land Use for renewable energy in Washington: Balancing growth and regulations

2024-06-18T20:43:45Z

Washington State’s commitment to renewable energy is evident through recent legislation, including the signing of House Bill 1216. This bill streamlines the process for developing renewable energy projects, making it easier and faster to build wind and solar facilities. However, this growth comes with land use challenges that require careful consideration.

Challenge #1: Size of the project

Wind and solar generation demand more land per unit than fossil fuel generation. New onshore wind turbines can reach the height of a 35-story building, while offshore turbines can be even taller. Developers are wise to balance these large-scale energy projects with existing land uses, such as agriculture, forestry, and wildlife habitat.

Challenge #2: Infrastructure

New energy generation necessitates additional transmission infrastructure. Siting decisions must maximize access while minimizing disruption to existing economies, habitats, and quality of life. There is also the possibility that these decisions may create tension between local culture and statewide energy needs. Striking a balance requires thoughtful policy and adaptability within existing frameworks.

Four strategies to overcome these challenges

Washington is not the first state to implement these practices. As such, developers and lawmakers alike can learn from prior projects and take step to better ensure success. Strategies that can help increase these odds include the following:

Clear zoning regulations: Municipalities can update zoning codes to designate suitable areas for renewable energy projects. Clear guidelines can help developers and public officials make informed decisions.
Environmental Impact Assessments: Rigorous assessments evaluate potential impacts on ecosystems, wildlife, and scenic views. Mitigation measures can address concerns.
Collaboration: Developers should work closely with agencies like the Department of Natural Resources (DNR) and the Energy Facility Site Evaluation Council (EFSEC) to better ensure success of a proposed project.
Incentives and grants: State programs like the Clean Energy Fund may provide financial support for renewable energy projects. These grants can incentivize responsible siting practices.

Engaging with residents, tribes, and stakeholders early in the process can also help to foster understanding and minimize conflicts. Public input helps to better ensure that projects align with community values. Washington’s commitment to renewable energy requires a delicate balance between growth and environmental protection. By implementing smart land use strategies and engaging stakeholders, these projects can help communities achieve a sustainable energy future while respecting natural resources and communities.

Differences between mergers and acquisitions

2024-04-03T11:14:23Z

There are many ways for businesses to grow and expand. For some companies, mergers and acquisitions are the best options. These terms are often used interchangeably, but they hold distinct meanings with significant implications for the companies involved. Understanding the differences between mergers and acquisitions can help business owners who are considering them to make informed decisions about these opportunities.

Mergers

A merger occurs when two companies, generally of similar size, agree to proceed as a single new entity, blending their assets, staff and operations. This process is typically seen as a mutual decision to enhance the companies' market share, reduce costs or diversify their products and services. Mergers often occur between companies looking to combine strengths, eliminate competition, expand their market reach or achieve economies of scale. The underlying idea is to create a more competitive and cost-efficient new entity.

Acquisitions

An acquisition involves one company purchasing another company, which can be a larger, smaller or equivalent entity. After the acquisition, the acquired company may cease to exist as an independent entity or continue to operate under its own name as a subsidiary of the acquiring company. Acquisitions are typically pursued to gain a competitive edge by acquiring a rival, entering new markets, accessing new technologies or tapping into the target's customer base. Acquisitions allow companies to grow rapidly and acquire assets without having to develop them from scratch.

Considerations after the merger or acquisition

Company culture and new policies must be established once a merger or acquisition occurs. This will likely entail revising or updating the employee handbook and other company documents, manuals and procedure statements. It may behoove owners to have a company-wide meeting or set of meetings to go over relevant changes. This is just a single example of the kinds of considerations that business owners must contemplate in the wake of a decision to acquire another company or to merge with one. Because of the complexities of mergers and acquisitions, companies should have legal assistance each step of the way. This can help to protect the business’s interests as the process moves forward and the new company begins operations.

Corporate Executive? That Alone Won’t Get You Out of a Deposition

2024-02-29T06:42:09Z

In Washington, the right to discovery (including interrogatories, requests for production, requests for admission, and depositions) is a key component of the right to access the courts. Discovery, after all, is designed to get all relevant facts of a case out in the open so that issues in dispute can be narrowed and matters can be resolved faster and with less expense. A person may be subpoenaed to attend a deposition and required to answer questions relevant to the subject matter of the litigation. Nobody really wants to have to sit for a deposition. You might feel as though you are too busy, or that you don’t know anything relevant to the matter, or that you are just too nervous to attend. Unfortunately, in many cases, you will have to attend the deposition or face potential consequences for contempt of court. However, in some states and some federal courts in this country, being a high-ranking company official can help to insulate you from being deposed. This is known as the “apex doctrine.” The apex doctrine, in jurisdictions where it is recognized, can shield executives from depositions and is meant to protect them from unwarranted harassment and abuses of the discovery process. In September, the Washington Supreme Court issued its opinion in Stratford v. Umpqua Bank, and officially declined to follow the apex doctrine in our state. In Stratford, Umpqua Bank (“Umpqua”) was sued for negligent misrepresentation, fraud, and negligent hiring, among other claims. The plaintiffs sought to depose three high-level executives, but Umpqua argued the executives had no personal knowledge relevant to the claims, and the apex doctrine should protect them from the being deposed in the matter. Umpqua moved for a protective order, and the trial court denied the request. Umpqua asked the Washington Supreme Court to review the trial court’s denial of their request, and the request for review was granted. In a unanimous opinion, the Washington Supreme Court upheld the trial court’s decision, and officially established that Washington does not, and will not, follow the apex doctrine. It reasoned that the Civil Rules—the rules that govern discovery issues (among many other things)—already prevent the harms that the apex doctrine attempts to address. Trial courts already have great discretion to limit discovery, including depositions, on a case-by-case basis. Discovery can be limited by a trial court on a number of grounds, including if the requested discovery is unreasonably cumulative or duplicative, or obtainable from a different source that is more convenient, less burdensome, or less expensive. Further, upon a showing of good cause, a trial court may enter an order to protect a person from whom discovery is sought from annoyance, embarrassment, oppression, undue burden, or expense. To establish good cause for the issuance of the protective order, the party seeking protection must show that the order would prevent the harm sought to be avoided without impeding the discovery process. The apex doctrine, on the other hand, requires the party seeking to depose the executive to show that the executive “(1) has unique, non-repetitive, firsthand knowledge of the facts at issue in the case, and (2) that other less intrusive means of discovery . . . have been exhausted without success.” The court held that the apex doctrine’s flipping of the burden of persuasion to the party seeking discovery from the party seeking to avoid the deposition conflicts with the Civil Rules and the broad right of discovery they provide. Ultimately, the Washington Supreme Court opined Umpqua could not rely on the apex doctrine to shield its executives from deposition. Beyond disallowing application of the apex doctrine, the court held Umpqua failed to show that the requested depositions would be duplicative, burdensome or harassing (which, if shown would have allowed the court to limit the depositions), and also failed to show that prejudice or harm would result from the depositions (which, if found, would have allowed the court to enter a protective order). In short, Umpqua’s unsupported argument that the executives lacked personal knowledge and that the information sought was available elsewhere was not enough to shield the executives from deposition. In sum, because the apex doctrine is not followed in Washington, a corporate executive’s status alone carries no weight when a court must decide whether or not the executive must sit for a requested deposition. However, Washington’s civil rules can, and do, protect everyone (not just upper level executives) from harassing or other inappropriate discovery requests. However, as the Washington Supreme Court highlighted in Stratford, whether or not the protections should be applied is a fact-specific and case-specific determination.

Certain mergers may now be subject to heightened federal review

2024-02-05T16:02:36Z

Mergers and acquisitions are common in the business world. Particularly in rapidly developing sectors, like technology, startups with cutting-edge concepts often merge with bigger, existing businesses. Other times, power players in an industry acquire companies that have valuable intellectual property or a popular brand. Mergers and acquisitions are often multi-million-dollar deals that take months to negotiate. All of that work may come to nothing if federal authorities intervene and prevent the transaction. For those in certain industries, the possible scrutiny of federal regulators is likely to be higher now than it was just last year due to updated federal policies.

Certain mergers might trigger antitrust concerns

The acquisition of one business by another or the decision to merge two existing companies can have a major impact on not just those businesses but also an entire industry. The actions of large companies can impact consumers and other businesses as well. The Justice Department in cooperation with the Federal Trade Commission (FTC) updated the guidelines for mergers in 2023 for the first time since 2010. The goal, as reported by the Justice Department, was to promote competitive markets that are fair and open. The update drew inspiration in part from several major mergers in recent years that have given certain companies too much influence The new regulatory guidelines specifically target highly concentrated Industries in which a few power players have a large amount of influence. Businesses in the tech industry, as well as e-commerce companies, may find that business transactions could be subject to additional scrutiny by federal regulators. The larger and more complex a business's operations are, the more likely it is that a conflict of interest that could pose antitrust concerns could occur. Antitrust laws exist to protect the free market and ensure there are opportunities for all. However, their impact on businesses can sometimes be quite negative. The interference of regulatory officials in business operations could have a major impact on a company's finances. For this and so many other reasons, remaining well informed about regulatory changes may benefit those in decision making positions at organizations contemplating large transactions.

Appeals 101: An Overview of the Appellate Process

2024-05-13T18:27:04Z

By Jacqueline O’Keefe Before coming to JDSA, I spent two years working at Division Three of the Washington State Court of Appeals in Spokane. I worked on dozens of cases, read hundreds of briefs, and listened to countless oral arguments. During this time, I learned a lot, but perhaps one of my biggest takeaways was the realization that many non-lawyers have poor understandings of what appellate courts do and what role they play in our legal system. If you are considering appealing your case or if an opposing party is appealing a case you are involved with, it is useful to know what to expect. So, with that in mind, let’s address some common misconceptions. An appeal is not as a do-over of your case but, rather, is a request to the appellate court to review the decisions made by a lower court. On appeal, you don’t get to produce any new evidence. Your appellate attorney will be able to identify which matters were decided incorrectly, how to present those errors to the court of appeal, and whether correction of those errors will change the outcome in your case. It’s important to understand that just because a lower court got an issue “wrong,” correction on appeal will not necessarily change the result if the error did not have a demonstrable impact on the outcome of the case. Whether the court of appeals gives any deference to the trial court’s decision depends on the type of decision you are asking the appeals court to review. We refer to this as the “standard of review.” The Court of Appeals will evaluate each case differently depending on which standard of review applies. For instance, some issues are reviewed “de novo”, or completely anew. This type of review is used when the court is looking at how the trial court applied or interpreted the law. The classic example is when the appellate court is reviewing constitutional questions. Other trial court decisions, however, are given considerable deference. For example, in Washington, an appeals court gives complete deference to witness credibility determinations. Because different trial court decisions get reviewed differently, it is critical that you retain an appellate attorney who understands standards of review and can strategize accordingly. Compared to the trial level, a larger portion of appellate advocacy is through written argument called “briefs”. Appellate briefs lay out each parties’ position and advocate for their respective outcomes. Usually there is one short oral argument which gives the judges an opportunity to ask the attorneys questions and gives the attorneys the opportunity to emphasize their most important points. Because of the emphasis on written advocacy, it is critical for your appellate attorney to possess strong research and writing skills. If you are interested in appealing a case or must respond to an adverse party’s appeal, please consider reaching out to us at JDSA. We would be happy to analyze the strength of your case for appeal or develop a strategy to help get your favorable ruling upheld. Jacqueline O’Keefe recently joined JDSA after working for two years at the Washington State Court of Appeals. Jacqueline attended Lewis & Clark Law School in Portland, Oregon. She currently represents a broad range of clients involved in civil litigation. Her legal practice primarily involves appeals, natural resource law, and general business matters

November 2023 Litigation Article

2024-02-09T12:56:53Z

Jacob Knutson and Jacqueline O’Keefe Dispute Resolution Provisions: Why they should be Included in Every Contract Most business and individuals do not enter into contracts with the goal (or expectation) of pursuing litigation. Contract negotiations often focus on reaching an agreement on the terms of the deal rather than where or how a dispute over the deal will be resolved. But expectations rarely match reality, and, as anyone who has been in business for long enough will agree, avoiding a lawsuit is not always possible. In those situations, including dispute resolution provisions in a contract can save significant amounts of time and money fighting costly battles over where, how, and under what rules the parties will settle dispute, should one arise. Indeed, by negotiating these issues at the outset of a contractual relationship, parties can eliminate uncertainty and expedite dispute resolution. Some useful provisions to consider are jurisdiction, venue, choice-of-law, arbitration, or jury waiver clauses. Jurisdiction and venue clauses allow parties to select the particular court and location in which they wish to resolve the contractual disputes that may arise during the course of their agreement. Inclusion of these provision allow the parties to ensure they will not be forced to travel to an inconvenient forum in another state (or country) to resolve a future conflict. Choice-of-law clauses select the law that governs the contract. For example, certain types of provisions may be enforceable in some states, but not others. These clauses can encourage settlement by identifying the law that will be applied to resolve disputes, which enables the parties to determine the strength of potential claims. They also reduce the costs of litigation by making it unnecessary for a court to engage in a choice-of-law analysis. Arbitration clauses are also common, but should not be included in every contract as a matter of course. Arbitration often reduces costs due to limitations on discovery and recoverable damages, and may result in a more expeditious resolution of the controversy. Arbitration is also either confidential or quasi-confidential and can protect businesses from the bad publicity that may arise during a court proceeding. An additional benefit of arbitration is the ability for parties to choose the arbitrator who will hear the dispute. This allows those involved to pick an arbitration who has experience and who can better understand the nature and nuance of the conflict. But arbitration is not without its drawbacks. In some cases, it can be just as costly and take just as long as court litigation when arbitrator fees and arbitration-specific procedural rules are accounted for. Additionally, court rules available in traditional litigation allow for the dismissal of baseless claims without a trial, whereas such mechanisms are more limited in arbitration. And while limitations on discovery can save time and money, it also may make it more difficult for a business to enforce its rights under a contract. Further, an arbitration decision is binding and cannot be appealed. This means that you cannot later take the matter to court or attempt arbitration again with another arbitrator simply because you did not like the arbitrator’s conclusion. When negotiating a contract, businesses should consider the pros and cons of arbitration to determine whether an alternative dispute resolution provision would better serve their purposes. For example, some of the same benefits of arbitration are available through a waiver of jury trial rights. A waiver of jury trial rights establishes that a judge (rather than a jury of lay persons) will decide the dispute, but does not dispose of all the rights and procedural tools available in court litigation, such as the right to appeal. A jury waiver might be helpful in situations where the substance of the contract is complex, but without the added cost of paying an arbitrator or sacrificing the right to appeal. Dispute resolution provisions are an important part of any contract and should be approached from an agreement-specific standpoint. If utilized correctly, dispute resolution provisions can not only reduce the cost of litigation, but help avoid litigation altogether. Jacqueline O’Keefe recently joined JDSA after working for two years at the Washington State Court of Appeals. Jacqueline attended Lewis & Clark Law School in Portland, Oregon. She currently represents a broad range of clients involved in civil litigation. Her legal practice primarily involves appeals, natural resource law, and general business matters Jacob M. Knutson joined JDSA in 2018 after graduating from the University Of Washington School Of Law. He represents clients with Business & Commercial civil litigation, employment and labor law and intellectual property law matters.

Preparing for and Responding to a Washington Civil Rule 30(b)(6) Deposition Notice

2024-02-09T12:48:47Z

Washington’s Civil Rule (“CR”) 30(b)(6) allows a litigant to depose a business entity such as a corporation, partnership, association, or governmental agency. Of course, the entity, itself, cannot literally be deposed. But CR 30(b)(6) fills the gap by requiring the entity to designate one or more representatives to testify on its behalf—a spokesperson, if you will. Whomever is designated as a representative then speaks on behalf of the entity, the entity being bound by the representative’s testimony. A CR 30(b)(6) deposition is an increasingly valuable tool in a litigator’s arsenal by requiring one or more individuals to answer for an entire business entity. This places a heavy burden on the entity to sufficiently prepare its representative(s). Indeed, once served with a CR 30(b)(6) deposition notice, the entity must designate a representative who must respond “to matters known or reasonably available to the organization.” CR 30(b)(6). The deponent must be prepared to give “full, complete, and nonevasive answers.” Casper v. Esteb Enterprises, Inc., 119 Wn. App. 759, 767 (2004). Preparing a deponent can be a significant undertaking. This especially true where the notice is broad in scope, where documents are sought as well as testimony, and/or where the case itself is complex, requiring a nuanced understanding of the entity’s practices and procedures. Preparation may include, among other tasks: analyzing the deposition notice and designated topics, and asserting any objections designed to narrow the scope of anticipated testimony and/or document production; reviewing internal documents; obtaining access to external documents that are reasonably available to the organization, such as financial and/or legal documents held by third parties; evaluating potential claims of privilege, confidentiality, or other bases for protection of documents; and interviewing current and (if needed) past employees. This process can be time consuming and expensive. But failing to adequately prepare a CR 30(b)(6) deponent can be damaging to the entity. The deponent’s testimony may be used against the entity throughout the remainder of the case. The entity may also be subject to sanctions for failing to adequately prepare their CR 30(b)(6) deponent, in the form of reimbursing the other party’s attorneys’ fees or other penalties. Thus, the risks associated with inadequately preparing a 30(b)(6) deponent can be severe. The litigation team at JDSA is well-versed in helping entities prepare for and defend against CR 30(b)(6) depositions. Please contact us if your entity is served with a CR 30(b)(6) deposition notice and you need assistance in responding. Sally Harmeling is a Partner at JDSA Law, with more than 13-years’ experience in litigation, including acting as lead litigator on multi- and single-party civil and commercial disputes. Kolby Cameron is an Associate Attorney at JDSA Law, who is a 2021 graduate of the University of Washington School of Law, and has a broad legal practice, including litigation.

The Pros and Cons of Recruitment Signing Bonuses

2024-08-02T06:29:21Z

Written by Robert Siderius, Jr | Nov 6, 2023 | Firm News

How can employers effectively recruit new talent and simultaneously maintain a financially secure position? Employers sometimes offer signing bonuses as an incentive to job applicants. Signing bonuses can help in recruitment, but there are some potential pitfalls that employers should consider. Following is a discussion of some of the issues that can arise with signing bonuses. We also explore the differences between signing bonuses and offers to reimburse prospective employees for “expenses” associated with relocating to a new job. In doing so we address the Washington Wage Rebate Act, RCW 49.52.050(1)-(2) (“WRA”) and how that might impact consideration of signing bonuses or relocation reimbursements offered at the outset of the employment relationship. Signing bonuses have been a common method of recruiting employees in a tight job market. Signing bonuses have become far more prevalent recently with the difficulty employers face in finding qualified candidates for vacant positions, especially for skilled positions. But what happens when a new hire, who has been paid a signing bonus, leaves your employment shortly after being hired? Employers oftentimes include with the signing bonus a "clawback" provision, requiring that an employee repay all or part of the signing bonus. However, these types of provisions probably run afoul of the WRA. The WRA expressly prohibits employers from collecting rebates of any part of wages or willfully depriving employees of wages. However, the WRA does not define “wage.” In a related statute, the Minimum Wage Act, “wage” is defined as “compensation due to an employee by reason of employment.” RCW 49.46.010(7). If employees’ bonuses are considered part of their wages, employers are probably required to pay the bonus, and employees may have no obligation to repay a bonus, even if the bonus is contingent on an event that does not occur (i.e., maintaining employment for a period of time). As a result, if an employer fails to pay out “wages” owed to an employee, or requires wages (signing bonuses) to be repaid, the employee is likely able to recover not just the wage or bonus, but double damages and attorneys’ fees and costs. RCW 49.52.070. In 2014, the Supreme Court of Washington considered whether a signing bonus was due to an employee under the terms of an employment contract and determined that it was a “wage” because it was paid for his work performance. LaCoursiere v. Camwest Dev., Inc., 181 Wash. 2d 734, 743, 339 P.3d 963, 967 (2014). The Court discussed a 2005 case decided by Division 3 of the Court of Appeals of Washington and noted that an employer owed a signing bonus to its employee under his employment agreement because it was “in exchange for the employment.” Id. In that case, the employee agreed to pay back “expenses” if he left the company within one year. Flower v. T.R.A. Indus., Inc., 127 Wash. App. 13, 34, 111 P.3d 1192, 1202 (2005). However, the Court determined that the employee’s signing bonus, which represented $10,000 of the employee’s $20,000 “moving allowance,” was not an “expense” that required repayment. Id. In other words, the employer was entitled to recoup only the $8,200 that the employee spent on moving expenses and not the $10,000 signing bonus, despite the parties’ agreement and the employee’s departure from the company. Importantly, an employer may only recover expenses that an employee actually spent, rather than the entire amount that the employer agreed to cover. Given the Court’s interpretation of “wages,” it is crucial for employers to consider how to classify recruitment payments at the inception of an employment relationship. A contractual provision designed to claw back a signing bonus when an employee does not maintain employment for a set amount of time is probably unenforceable, and efforts to enforce that may result in a wage claim that would include double damages plus payment of the employee’s attorneys’ fees and costs. If employers want to have some form of clawback provision, the better practice is to offer to compensate new or prospective employees for their “moving expenses,” rather than provide such employees with a “signing bonus,” which has been interpreted to be part of “wages” and earned upon commencement of employment. As an alternative to providing a signing bonus in an upfront lump sum or presenting an incentive through a “moving expense,” employers may choose to pay out a bonus to employees over a period of time to strike a balance between incentivizing employment, ensuring continuity of employment, and preserving capital. Similarly, employers may consider offering a bonus to employees at the end of a specified period of time. These types of bonuses, while still counting as wages, provide employers with greater security over funds allocated for hiring. Some disadvantages of paying bonuses over time, or delaying payments, include the impact of those payments on current employees who do not receive similar treatment (and it will not be a secret). A delayed bonus might also be less attractive to the applicant in the recruitment process. Employers should also be mindful of employees who are represented through a union, as the payment of additional wages, other than those contractually agreed upon, after employment has begun would be subject to mandatory bargaining. In sum, there are several options for employers in offering compensation packages to attract new employees. However, the various classifications of bonuses and timing of payment have corresponding obligations and risks that employers should consider. Robert R. Siderius, Jr joined JDSA Law in 1986 and now serves of counsel. Bob provides assistance with labor and employment, municipal law, contract law, commercial and real estate transactions and agriculture law.

Shifting Roles and the Mastery of Mediation

2023-10-24T23:27:15Z

As a J.D. candidate immersed in the world of law, I have been consistently exposed to a variety of legal fields. This exposure has broadened my perspective and shown me the diverse roles an attorney can assume. In particular, mediation is an area where an attorney’s role and responsibilities can change significantly, especially when compared to an area such as traditional litigation. For instance, in litigation, each party’s attorney has the opportunity to present an opening statement. In litigation, these opening statements often consist of formal legal arguments, compelling narratives, and setting the stage for a potential trial. When delivered effectively, these opening statements can lay the ground work for a persuasive story. This process embodies our American adversarial system, where both sides strive to persuade the judge or jury that their client’s interpretation of the events deserves them a favorable ruling. However, this approach to opening statements would prove itself futile in meditation. A lawyer’s role as a meditator differs considerably. An adept and effective mediator encourages the parties to communicate openly, and work together towards a mutually beneficial outcome. Unlike in litigation, a mediator’s role is not to decide the case, but to act as a facilitator of the dialogue between the parties. In other words, the attorney’s role is to … mediate. The skills required for this are significantly distinct from those of an effective litigator. For example, a mediator must remain neutral, impartial, and refrain from taking sides. Whereas a litigator has a duty of “zealous advocacy” for their client’s position. Because of the necessity to facilitate dialogue between the conflicted parties’ mediators possess heavy discretion on the mediation process. This discretion allows them to adapt their approach for the unique dynamics and complexities of each case. Factors influencing a mediator’s discretion include the nature of the conflict, specific needs of the parties, and their desired outcomes. This discretion becomes further apparent in the initial stages of mediation, where mediators may take one of several approaches. For instance, one approach is the caucus, wherein the mediator will meet separately with each party to provide confidentiality and better understand each party’s relative positions, concerns, and interests. This safe space enables parties to express themselves freely and openly, while still providing the mediator with insights and the necessary information for them to craft a mutually beneficial outcome. Alternatively, other circumstances may lead a mediator to start with a joint session. This involves bringing the parties together in the same room to engage in conversation under the mediator’s guidance. These sessions promote direct communication, which can be a double edged sword depending on each party’s disposition towards the other. Making this option not suitable for every type of mediation. Lastly, in certain scenarios, a mediator may opt for a hybrid approach. This involves a combination of both joint sessions and caucuses. This allows the mediator to act strategically, blending the strengths of each format. Done correctly and a mediator can foster and facilitate a healthy dialogue while still addressing sensitives topics privately. Which of these styles a mediator chooses to adapt hinges on their personal judgment, expertise, and discretion. In conclusion, a mediator is only one hat attorney can wear, and their ability to navigate paths to mutually beneficial outcomes is a difficult and yet essential skill to our conflict resolution. One which enhances the efficiency and quality of dispute resolution, while still preserving the core underlying relationships.