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Business disputes occur in commercial relationships with business partners, board members, suppliers, employees or contractors. Violating the agreed-upon terms of the business relationship, commercial contract or breaching a fiduciary duty leads to most business disputes.
Depending on the nature of the commercial and contractual relationship, there are various types of business disputes:
Contracts are legal instruments dealing with everyday or business interactions between individuals and organizations. As binding agreements, contracts involve two sides obliging themselves to perform a specific action or avoid doing something. Each contract defines mutual rights and responsibilities.
Contract disputes result from breaching agreed-upon terms. Acting contrary to contractual obligations constitutes a breach of contract. For example, failing to deliver the goods or services on time or sending goods of lower quality represents a contract violation.
Minor (non-material) breaches of contract do not compromise its existence, while material violations result in its termination, giving the compliant party the right to claim damages.
Earl is a distinguished business and contract mediator with years of experience.
Litigating contract disputes involves proving that there is a valid agreement between two parties. Next, you must show that the other party failed to uphold their end of the bargain, which resulted in damages that you suffered. Then, you must actually collect the money due and obtain payment on that judgment. Litigation is an expensive and time-consuming process. The time and expense involved in proving your breach of contract claim and actual damages may likely far exceeds any potential benefit you may receive even if you are successful in proving your case. Further, obtaining a judgment is typically much easier than actually collecting the damages that you may be awarded as the defendant may be out of business and judgment proof once the litigation is concluded. In other words, you may spend a large amount of money and time to win the legal battle but lose the long-term legal war. A classic “Pyrrhic Victory” is common.
To prove business and contract dispute allegations in court, you must undergo an exhausting process consisting of multiple stages of complex motion practice, discovery, trial and possible appeals (interrogatories, computer related electronic discovery, paper discovery, depositions of corporate officers and management employees, opening statements, witness testimony, expert witness reports and testimony, potential forensic accounting, public testimony, and closing arguments). Each phase carries additional unnecessary expenses, excessive attorney fees, court filing fees and key employee time being wasted away from managing your business operations. In addition to high costs, the process can last for several years, compromising your business dynamics, business reputation, employee morale, all while wasting time and resources on litigation as opposed to spending that time focusing on operating your core business, generating profits and growing new revenue streams.
Mediation is an out-of-court method for resolving business and contract disputes. As an alternative dispute resolution method, mediation has numerous advantages litigation lacks. Its main characteristics are speed, flexibility, creativity, informality, voluntariness, confidentiality, and time and cost-effectiveness.
Mediation is voluntary. The mediator has no authority to make a binding decision unless both parties agree to give the mediator that power. The mediator is a former judge, attorney, or neutral professional with experience in business and contract cases. The parties control over the process and ultimate resolution of the dispute in mediation is in stark contrast to litigation, where the dispute is publically decided by a state-appointed judge and jury.
The mediation is confidential; meaning nothing revealed during the process will ever become publicly accessible. Confidentiality is vital in business relationships. Unlike litigation, mediation allows business partners to resolve their disputes without any undue publicity that negatively affects their reputation.
Because mediation is voluntary and confidential, the process is also flexible and can be adjusted to meet the wishes of the parties and unique needs of each case. During the introduction, the mediator presents their credentials and sets the procedural rules.
Parties can then present uninterrupted opening statements as well as any facts, suggestions or opinions. In private sessions (caucuses), the mediator goes back and forth between rooms to talk with each party privately and to exchange offers, facts, opinions and creative settlement suggestions. In a joint session, parties meet at a negotiating table or in virtual room to exchange positions, offers and counteroffers openly.
The mediator remains neutral throughout the entire process. Their job is to facilitate negotiations, motivate the parties to reconcile, and find common ground and creative solutions. They cannot issue a decision or give legal advice. In contrast to the adversarial court process, mediation allows contract partners to continue a successful business relationship after resolving the dispute and help the parties negotiate a “win/win” resolution to the business dispute.
Unlike litigation, a mediation can be scheduled promptly and lasts for either one day, several days or a few weeks. The costs are considerably lower, too. There are no hefty attorney fees or court filing fees which are typically incurred during each phase in litigation.
As a neutral third party, the mediator does not render any judgment, does not represent either party or give any legal advice but may propose voluntarily creative alternative solutions that may be acceptable to both parties. Unlike litigation, the parties are in control of the negotiations, the outcome and their own destiny. Upon completion of successful negotiations, the parties voluntarily resolve the dispute by drafting and signing a legally binding and enforceable settlement agreement.
As an approved Maryland Circuit Court Mediator, Earl J. Acquaviva Jr. has served clients in Baltimore City, Baltimore County, Anne Arundel County, Cecil County, Howard County, and Montgomery County since 2012. Earl became licensed to practice law in the Maryland State and Federal Courts in 1983. During his legal career and as Chief Litigation Counsel, Senior Vice President, General Counsel and Secretary of Bally Total Fitness Corporation, Earl attended monthly meeting of the Board of Directors, drafted and ensured compliance with the Bally Code of Ethics and Business Conduct Policy, handled all business and contract disputes and managed all outside counsel through all phases of business and commercial litigation, while also attending all significant hearings, mediations, settlement conferences and trials. At its peak, Bally operated over 400 fitness centers in 29 states and Canada, and employed over 20,000 employees servicing over 4 million members. Earl also drafted, reviewed and negotiated all lease agreement, asset purchase agreements, service contracts, trademark and intellectual property agreements, software contracts, third party vendor agreements, consumer financing contracts, retail installment sales contracts, marketing agreements, mergers and acquisition agreements, consulting agreements and government contracts.
As a top-notch mediator, Earl will help you settle the most contested business and contract disputes. His approach includes using sophisticated negotiation techniques while upholding the highest ethical standards.
Earl J. Acquaviva, Jr. is a MD Circuit Court Mediator, Arbitrator and Attorney. As Senior Vice President, General Counsel and Human Resources Executive for Bally Total Fitness
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