Free Mediation Course Blog

Everyday, we’re always at the risk of falling victim to misfortune whether it is from using defective products or unknowingly falling off into a manhole, or sustaining vast injuries due to serious highway accidents. You may think that accidents that happen everywhere to other people are of nobody’s fault than theirs alone…But, once something happens to you, say you were bit by a dog whose owner was careless enough to let it wander off, you may cry out, indeed – “not my fault!”.

Injuries may range from trivial to critical, depending on how it was obtained physically, mentally or emotionally. If an individual or group has a liability for your accident, you can file for claims under the tort law. This area of the law is invaluable you need to have knowledge of it.

Torts are private and civil wrongs or injuries that may be remedied through a court of law by a lawsuit for damages/compensation. Once an individual or a group of individuals violate their duty to others created under general or statutory laws, a tort has been committed. Liability in the tort law is based upon “…the relation of persons with others; and these relations may arise generally, with large groups or classes of persons, or singly, with an individual…The common thread woven into all torts is the idea of unreasonable interference with the interest of others.” Prosser & Keeton, supra,p.5. Thus, the chief aim of action in tort is that an individual be compensated for the loss he has suffered within the scope of his legally recognized private interests, as the best method of relief.

Tort law is a branch of the civil law. This is one of the three main branches of civil law where the other branches are contract and property law. In tort cases, the plaintiff is the victim of an alleged wrong and the unsuccessful defendant is directed by the court to pay damages to the plaintiff. The so-called injunctive relief for the defendant is when he is directed to discontinue from a wrongful activity.

Torts have three general categories. Intentional torts are wrongs which the defendant knew or should have known would happen through their actions or inactions (e.g. intentionally hurting a person). Negligent torts happen when the defendant’s actions were unreasonably unsafe (e.g. causing accident by failing to obey traffic rules). Strict liability torts are wrongs that do not depend on the degree of carefulness by the defendant but established when a particular action causes damage (e.g. liability for selling expired products).

Misfortune may happen unexpectedly to you or anyone in your family and when it does, a you, as a victim may incur costs. You can shift these costs to others who you believed has strict liability in causing it. The principles of the tort law help you in getting compensation for damages suffered not by your own fault. Contact an attorney practising this particular area of the law for clarifications and tips in filing for claims.

The recent headlines about Merck’s Vioxx withdrawal and the FDA’s move to ban ephedra have brought a lot of media attention to the growing area of drug litigation.

On April 12, 2004 the FDA published a rule banning health supplements that contain ephedra alkaloids. The FDA concluded that the limited short term weight loss effects were outweighed by possible heart problems and stroke risks. The market gap caused by the banning of ephedra has been filled by many new companies that are marketing products similar to ephedra. However, these “ephedra alternatives” may not be any safer than the banned ephedra that they replace.

The FDA’s ephedra ban, and Merck’s Vioxx withdrawal have been hot news topics. These drug recalls and ephedra banning have brought lawsuits from many different angles. Obviously, some people think that some of the lawsuits will be frivolous. In fact, there has been a lot of news during the last decade about “frivolous lawsuits” brought by injured consumers against large companies for defective products. However, according to one report from Public Citizen (http://www.citizen.org/congress/civjus/tort/myths/articles.cfm?ID=12369 ), businesses file many more times the amount of lawsuits than consumers do and are more likely to be sanctioned by a court for bringing a frivolous claim.

State governments have enacted tort reform which has capped potential damages for certain types of claims in some states. George W. Bush’s state of Texas implemented tort reform in 2003 to cap medical malpractice liability. George W. Bush has continued to push for tort reform nationwide since he took office.

The real question is, if businesses are the ones who are generally taking too much of our courts’ time- why has there been such a push for individual tort reform? Is it possible that injured individuals are not a group of organized people with continuous business interests that actively lobby for tort reform? While frivolous lawsuits are a concern for everyone, shouldn’t tort reform really focus on the parties who are bringing most of them?

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Tort law is different from the laws of contract, restitution, and the criminal law. Contract law protects the parties involved when expectations arise from promises, restitution prevents unjust enrichment and compensation for wrong doing, and criminal law punishes crimes that are so severe (like murder, rape, fraud) that society has a direct interest in preventing and dealing with them. Note that many wrongs can result in liability to both the state (as criminal activity and proceedings) and to the victims (as torts).

Tort law serves to protect an individual’s interest in their bodily security, tangible property, financial resources, or reputation. Interference with one of these interests is usually met by an action for compensation, most usually in the form of unliquidated damages. The law of torts aims to restore the injured individual to the position they were in before the tort was committed (the expectation or rightful position principle).

In most countries, torts are usually divided into three general categories: intentional torts, negligence and nuisance. Additional categories or subcategories may be recognized in other countries. Some torts are liability torts. This is when the plaintiff may recover by showing only that they suffered an injury, that caused damages, and that the defendant was responsible for causing the damages. There never a need to show the defendant’s state of mind or that the defendant breached a duty of reasonable care.

Definition of a tort:

In his famous treatise, Handbook of the Law of Torts, William Prosser defined “tort” as “a term applied to a miscellaneous and more or less unconnected group of civil wrongs other than breach of contract for which a court of law will afford a remedy in the form of an action for damages.”

In a limited range of cases, tort law will tolerate self-help, for example, using reasonable force to remove a trespasser. I addition, in the case of an ongoing tort, or where harm is merely suggested, the courts will sometimes grant an injunction to restrain the ongoing threat of harm.

Purposes of torts:

The law of torts assesses whether a loss that affects one person should or should not be placed upon another person. Some of the consequences of injury or death, such as medical expenses incurred, can be compensated through payment of damages. Damages may also be compensated, for non-pecuniary damages, such as pain.

The law of tort can be confusing to many, but as an informed society member we can be wary of its effects on us personally and the nation as a whole. Legal responsibilities can often become overwhelming individually or personally if proper care is not taken.

Personal Injury Tort

According to the basic principle of the tort law, any person who has either performed a harmful act or failed to exercise an act that leads to the injury of another party should be responsible for the damages he has caused. This would mean that a “tortfeasor” or the party who has committed the tort should compensate his victim’s incurred damages

A tort very much differs from a crime. While a tort is considered as a civil wrong done to a person that makes the tortfeasor responsible for suitable legal remedies, a crime is a wrong against the society that can carry a punishment of imprisonment and/or a fine.

Types of Torts

Stated below are the three major types of torts that are deemed by the law to be illegal and carries their corresponding legal remedies and requirements for recovery.

Intentional Tort – this pertains to a wrongful act done deliberately to a person causing him harm or injuries. Examples of these illicit actions are:

• Battery
• Assault
• False imprisonment
• Invasion of privacy
• Trespassing
• Oral or written defamation

In pursuing a personal injury claim based on intentional torts, the plaintiff must first establish the following elements of his case:

• The defendant has deliberately exercised an act along with the knowledge that such performance will result to an injury or has consciously failed to perform something to prevent an injury
• Such willful act of the defendant is the proximate cause of the harm or the plaintiff’s injury

Negligent Tort – this is based on the assumption that a person should always implement proper care and prudence in all his activities. Thus, any of his neglect or inaction that instigates an injury causing-accident may hold him liable for the damages set in.

In pursuing a personal injury claim based on negligent torts, the victims must be able to prove the following:

• The “torfeasor” has the responsibility to implement a particular standard of care to protect the plaintiff from possible risks
• The defendant has violated such responsibility
• His neglect or violation was the cause of the plaintiff’s injury
• The plaintiff has sustained damages

To add, the victims must also prove that they have done nothing to instigate or worsen his injuries. This is because the law permits a jury to lessen the amount of recoveries that a plaintiff may get if he has contributed in the occurrence of an accident.

Strict Liability Tort – under this theory, the injured victims may demand damages from the defendant regardless of who may be at fault. It is irrelevant then, how careful the defendant has performed his dealings.

Usually, this type of tort may apply in product liability and premise liability cases wherein the manufacturers and owners respectively are presumed to be liable for any harm inflicted on their clients or consumers while utilizing their products or staying on their premises.

Know more about attorney services concerning Personal Injury tort

It’s that dreaded time of year again, time to renew your automobile insurance policy. For some time now, you have been considering going with a different company to see if you can save any money. At the appointment with your new agent, he asks, “Would you like to select Limited Tort? It will save you on your premium.” For the shortsighted person, the inquiry ends there and the answer is YES! Anything to save money. For the respected thinkers amount us, though, the inquiry should go much further. What exactly is Limited Tort? Its an option on your automobile insurance policy that essentially waives your right to recover for pain and suffering if you are injured in an accident. In return for this, you save a few dollars on your insurance premium. The savings varies case by case, and depends upon your age, location and number of drivers in your home, among other things. My wife and I are the only drivers in our home, and we are in our mid 30′s. Our savings for a six month policy would have been $17. Others that I know have been offered more substantial savings, up to a few hundred dollars per year. The question for you is whether the savings is worth it. In my case, $17 clearly is not. Being an attorney and dealing with Limited Tort cases on a day to day basis, there is probably no amount that would be worth it to me.

You have to realize exactly what you are giving up if you choose Limited Tort. You are giving up your right to sue for pain and suffering that may occur in an auto accident that was not your fault. Picture yourself sitting at a red light, waiting for the signal to turn green. An unattentive driver strikes you from behind, forcing you into the steering wheel. You suffer a broken nose, broken ribs, headache, whiplash and back pain. You go to physical therapy for two months. Nothing seems to relieve the back pain, you may endure this for some time. Now imagine that you have selected Limited Tort on your auto insurance policy. You and the family members in your vehicle will not be able to recover for pain and suffering for any of those injuries just described.

There are exceptions to the Limited Tort rule and they vary from state to state. In Pennsylvania, where I practice law, the threshold for overcoming the Limited Tort election is if the injury suffered is classified as a severe disfigurement, a serious impairment of bodily function or death. This means that if you suffer an injury as stated in the previous sentence, you will be able to pursue a pain and suffering claim even if you have chosen the Limited Tort election.

Careful consideration is required before choosing the Limited Tort option. From a legal standpoint, it is never a good idea. At the very least, you should be aware of what you are giving up if you make the Limited Tort election.

A tort is a wrongful act, damage, or injury that is done willfully, negligently, or in situations that involve strict liability. However, a Tort does not involve contract breach in which a civil lawsuit might be initiated. Recently, we have seen supporters of the legal system in this country trying to connect litigation for torts with a number of things such as pushing medical professionals out of business all the way to closing down public parks.

Most of these supporters agree that the current tort system in this country is putting a huge strain on the economy. This issue has become so serious that even President Bush is pushing for tort law change in which our economic growth would be improved, particularly through the creation of new jobs. While tort litigation is not going anywhere and it is valuable in some cases, the current law is forcing liability insurance to outrageous levels in many sectors.

For instance, because of the high cost of tort litigation, we see wages decreasing, corporate profits being greatly affected, productivity going down, and even research and development being discouraged. The bottom line is that the rising cost of torts is having a dynamic impact on our society. Many now argue that by changing the current tort system, we would have a chance of boosting the economy while others feel a new tort system would actually have the opposite effect in discouraging the development of new jobs.

Let us look at how the current tort system plays. A mother and child decide to spend a sunny afternoon at the local community swimming pool. While the child is jumping off the side of the pool into the water, the mother gets up to go inside for something to drink. At this same time, the on-duty lifeguard is working in another area of the pool. The child jumps into the shallow end, hits his head on the bottom of the pool, and becomes paralyzed. Although the mother may not win a lawsuit in court, her claim of negligence toward the lifeguard would consume legal fees in his/her defense.

Now, apply the current tort laws with every aspect of our society, and you can see how significant the problem is. For instance, the woman who spilled hot coffee in her lap after buying it from McDonald’s was actually awarded money. Her claim in the lawsuit was that the coffee was too hot and that no warning was provided, not that she was at fault for spilling it. We see so many instances in which the current tort laws affect the economy of this society.

Keep in mind that the tort system does offer benefits. For instance, unsafe products, inappropriate practices, respectful resolution, are all good things. However, when you look at the current tort laws and weigh pros and cons, some serious issues come to light. Changing this law is something being scrutinized to determine if in fact a new tort system would boost the economy while still provide protection needed in cases of wrongful act, damage, or injury.

There have been numerous instances over the years where a company or institution has hurt a large number of people with something that they have put on the market. Some examples of this include the fen-phen lawsuits of the late 1990s and early 2000s, the huge cigarette/tobacco industry settlement, and lawsuits filed over the Firestone tire explosions.

When a large number of plaintiffs are hurt, they will frequently go into a lawsuit together. This is particularly true when the people hurt have very similar cases. When a list of plaintiffs gets extremely long, it is called a mass tort lawsuit.

A mass tort lawsuit is a civil action that involves numerous plaintiffs who are all fighting one or a few corporate defendants. This type of action can be performed in either federal or state court. As the name implies, mass tort includes numerous plaintiffs. Law firms frequently use mass media outlets to reach possible plaintiffs. This type of tort can include disaster torts, mass toxic torts, and product liability torts.

Mass tort litigation is a relatively new area of law. It is a complex and demanding area of law. One of the most difficult parts of mass tort litigation is determining just who is at fault and how much fault there is. There are a number of fields where a person might become part of a mass tort procedure. These include product liability, such as for breast implants or tobacco; large business antitrust claims, like price fixing; and large scale, “man-made” disasters like airplane crashes and chemical plant explosions.

Once a person has established a mass tort claim, the procedure is similar to a regular personal injury, or tort, lawsuit. It is a civil procedure which means that a person needs to have a cause of action. While there are very similar to regular tort proceedings, there are some significant differences between regular tort and mass tort proceedings.

Mass torts are different in that they involve large numbers of claims associated with a single product. A second difference is that despite the number of claimants there is a commonality of factual and legal issues. This means that the individuals serving as plaintiffs have very similar facts in their cases and don’t have differing legal issues. The final difference is that the claims have a value interdependence. This means that for the claims to be serious, they have a dependence on the other claims.

For more information on mass tort claims, please visit http://www.medtroniclawsuitattorney.com.

More and more prospective divorce clients are being approached about mediation in Rhode Island. Previously I wrote an article about Divorce Mediation and what it is.

Not too long ago this scenario came to my attention. It illustrates what cannot and/or should not be done and how any trust that remains between you and your spouse can backfire on you if you’re not careful.

Brady has fallen out of love with his wife. He strikes up a relationship with another woman and moves out of the marital home and in with this other woman.

Brady doesn’t file for divorce right away and tells his wife that maybe they can work things out. His wife, Gail, has a good head on her shoulders and she isn’t convinced.

Brady and Gail talk about dividing up their assets and debts briefly. Then Brady suggests that they go to mediation to resolve the division of their marital estate and Gail can file for divorce after the holidays to make it easier on their daughter who just turned eighteen (18).

Brady says he’ll pay for the mediation and even for the divorce filing. This sounds agreeable to Gail though she has a bad feeling about it.

Brady sets up a mediation a few days later but doesn’t consult Gail and doesn’t tell her who the mediator is.

Luckily Gail consults an attorney to understand the concept of mediation. She gets solid information during her consultation and is given specific questions to ask Brady to make sure things are on the up and up.

It’s a Tuesday and Brady had scheduled the mediation for Wednesday evening. Gail calls Brady after work. The dialogue went something like this.

Gail: Brady I already know you have an attorney so could you please tell me who it is?

Brady: Why?

Gail: Brady, what do you have to hide? I’m going to know who it is as soon as we start the divorce anyway.

Brady: I don’t have anything to hide. My attorney is Terrance E. Parkins.

Gail: Okay. It just makes me feel more at ease, that’s all. And we have mediation tomorrow night at
173 East Park Place in Cranston, right?

Brady: Right!

[While Brady is still on the phone Gail is looking up the address for Attorney Parkins who coincidentally has his practice at 173 East Park Place]

Gail: And what time was that?

Brady: Um 7:00 p.m.

Gail: But Gary that can’t be right.

Brady: What can’t be right?

Gail: Your attorney can’t be the mediator.

Brady: I didn’t say he was but why do you have a problem with it.

Gail: Because an attorney is prohibited from representing one parties’ interests and still trying to be a mediator.

Brady: Where did you hear that?

Gail: I consulted a lawyer about my rights.

Brady: Well are you still willing to go to the mediation.

Gail: I’ll go and I’ll listen to what you and your lawyer have to say but I’m not signing anything.

Brady: Okay, fine.

The next day Gail is served with divorce papers from Attorney Parkins at her work.

Thanks to her consultation with the lawyer she got enough advice to be informed and prevent what might have been a disastrous situation.

Gail is now informed that the mediator is always a separate attorney that doesn’t represent either parties interest.

What is Mediation?

Mediation is a process in which divorcing or separating couples meet with an impartial, neutral person who facilitates communications and problem-solving until an agreement is reached. It is a voluntary process that allows parties to craft their own settlement, rather than to advocate against each other and have decisions imposed upon them by a judge or magistrate who probably does not have the time to learn the fine details of the issues at hand. Mediation is less formal than litigation, is more confidential than court proceedings, and is generally more satisfying to the parties because they have created their own solutions.

Often, parties have been arguing for so long that it has become difficult, if not impossible, for them to see a solution. They have become so attached to the black and white perspective of win/lose that they overlook all the shades of gray in between.

Mediation is designed to examine those shades of gray for possible solutions. During mediation, the parties, not the mediator, are the decision-makers. What the mediator does is to help the parties to set an agenda for the mediation, and to identify and explore the many issues which can cause divorce, separation, and child-related cases to be so difficult and emotional.

How Does Mediation Work?

Generally, the mediator will begin by meeting with both parties together to explain the mediation process, establish the ground rules for the session and hear initial statements from each party. This will help to identify the problems and the issues, clarify the needs of the parties, and keep the parties focused on their general interests and needs rather than on any specific agendas they feel attached to.

There might be times during the mediation when the mediator will meet with each party separately. Called a “caucus,” this type of meeting can be used to allow parties to express themselves more openly, explore options they don’t feel comfortable exploring in a joint session, address non-productive behavior, clarify details, or give the parties time to think away from the other party.

Can We Mediate If We Don’t Get Along?

Parties do not have to get along or even be particularly friendly to successfully mediate their issues. The mediator can help diffuse the emotions and anger that are so often associated with relationship, financial, and child-related issues. And because mediation is a voluntary process, it can be discontinued at any time the participants or the mediator feel that the process is unproductive.

Will The Mediator Advise Me About My Legal Rights?

It is important to understand that mediation is not the practice of law. Mediators come from many different backgrounds. Some mediators are attorneys who have special training in mediation. While an attorney mediator might provide general legal information, s/he is acting as a neutral in the mediation process and not as an attorney or legal advisor. The attorney mediator does not:

• represent the mediation participants in their legal action,

• offer legal advice or provide legal counsel to the parties regarding their legal rights and obligations, or

• predict how the court might rule on a specific issue.

Mediation does not eliminate the need for lawyers; it simply changes their role from being an adversary against the other party to being an advisor for each party. Parties are encouraged to at least have the final agreement reviewed by a lawyer and/or financial advisor (for financial agreements) before signing it.

What Are the Advantages Of Mediation?

Mediation often provides a quicker, less expensive, and more satisfying resolution of the financial and child-related issues associated with divorce and separation. Resolving these issues through mediation from the beginning provides the parties with an ongoing foundation for addressing and resolving child-related issues as they arise in the future. When parents resolve issues together and maintain long-term cordial communications, children are often better able to cope with divorce and separation.

Because no one knows the issues in an individual case better than the participants, the parties, themselves, are in the best position to find solutions that best address their interests and needs. Having worked together to craft an agreement that is mutually satisfying, the parties are more likely to comply with the terms of the agreement and less likely to maintain hostile feelings toward each other and the agreement in the future.

© 2008, Mary Wollard, J.D., Family Solutions Center, LLC

If you’re facing divorce and wondering if mediation would be something of benefit in your situation, you should know that one of the very best aspects of mediation is that it’s completely voluntary and is not legally binding if one or both spouses are unhappy with the outcome. Some couples, particularly when one is fearful that mediation will favor the other spouse, opt for dual mediation, with one male and one female mediator handling their case.

The mediation process takes place in a setting that’s far less adversarial than the typical courtroom and also allows the couple to set their own pace, progressing through the issues without being restricted to the legal protocols that attorneys must follow.

Divorce Mediator Duties and Training Requirements

Divorce mediations are usually attorneys who specialize in matters of family law, or are also often family counselors and therapists who mediate as well. Certified public accountants and financial planners or advisors may also be trained in divorce mediation. While the exact requirements vary by state and even by different court systems, in general, a mediator must have completed a certain amount of hours of training, which your local bar association will have detailed information about as well as referrals to qualified mediators.

Some of the important tasks a mediator is trained to handle include having an unbiased opinion while hearing both sides of the issues at hand, being able to understand the personalities involved and how to detect and diffuse power struggles. Mediators also facilitate discussions and focus on resolving issues for the future instead of what has occurred in the past, ultimately bringing both parties to an amicable settlement agreement to file in court.

When Mediation Isn’t the Answer

Although divorce mediation has given countless couples the opportunity to quickly and inexpensively end their marriage with both parties being accepting of the outcome of the terms of the divorce, there are still some situations when mediation is not the best choice.

If there is any type of abuse taking place in the marriage, or if the partners are completely unable to speak to one another due to issues such as deep rooted feelings of resentment and anger, mediation isn’t the answer as a mediator is not meant to be a family counselor, but rather a bridge between divorcing spouses giving them a non-threatening platform in which to meet half way.

If your exact financial situation is not known, including both incomes, every asset such as retirement and pension plans, savings and checking accounts, IRAs, stocks, bonds, CDs, as well as the value of property and vehicles, then you should be aware that a mediator lacks the authority needed to reveal and uncover the value of all assets. Attorneys also lack that authority, but, they have the ability to file an order in court, asking the judge to rule that one or both spouses reveal their financial worth and issuing ensuing penalties for any refusal to cooperate or for any misinformation given.

Knowing the instances when mediation may not be the best case scenario gives couples the knowledge needed to rectify their situation before heading to court and litigating the terms of their divorce at a far greater expense, in terms of both money and time.