JOKE OF THE DAY - A child asked his father, "How were people born?" So his father said, "Adam and Eve made babies, then their babies became adults and made babies, and so on." The child then went to his mother, asked her the same question and she told him, "We were monkeys then we evolved to become like we are now." The child ran back to his father and said, "You lied to me!" His father replied, "No, your mom was talking about her side of the family."
HAVE YOU BUILT ANYTHING? On the Island part of Palm Beach, in Florida, there are about 40 billionaires that live there. Old and new money, wise and some not so wise. Success is not about the billions of dollars they have by their names, it is about what they built that generated the professional and financial success. Success doesn't come fast, it is built.
What have you built?
What will you build? Lead by building something.
Michael Lodge, NCPM www.lodge-co.com
IRS ISSUE - Last week, accountants received reports from members whose clients have gotten unusual notices from the IRS. These notices claim the individuals owe taxes despite having paid the taxes before July 15th. Although the checks for the taxes are reported to have cleared the bank, the IRS is sending out notices dated Monday, August 17th, that show the tax due along with penalty and interest. In response to feedback from members experiencing similar issues, the issue is a result of IRS employees being sent home as a result of the COVID-19 pandemic. Many of the employees who were sent home are responsible for opening the mail that is received by the IRS. These employees are only now returning to work. The IRS is advising that tax preparers call the IRS and use their PTIN to discuss specific accounts that have experienced this issue and request that a hold be placed on the account. The IRS has indicated that hold of up to 8 weeks may be requested. Most importantly, the IRS has stated that taxpayers should not put a stop payment on the check. You must wait for the IRS to process the check. Once a hold is placed on the accounts, the system will catch up with processing the payments automatically.
VIRTUAL MEDIATION - I have been doing mediation on-line for quite a long time, even before Covid broke out. Since I do mediation work all over the United States from my little office here in Palm Beach, Florida, I have gotten very use to using zoom and other apps to schedule and hold mediation sessions. However, I do like the ability to work with clients live in an office, especially if it is a family mediation issue. It makes it more personal and I can read the body and face expressions. This is a good article about virtual mediation and how it is here to stay, especially in the construction mediation side of it. Good read
Michael Lodge, NCPM - Certified Business Mediation - www.lodge-co.com
Michael Lodge, NCPM - Certified Business Mediator - www.lodge-co.com
When you are in private practice you run across clients that bring in their family, first it is the son and his wife, his mom and dad, and maybe a couple more. You never know. The problem arises when they get divorced, it puts you as their tax practitioner and advisor in a serious legal situation.
I had a young couple who started to have their taxes done with my firm in Los Angeles. I did two or three years of their returns and then they decided to get a divorce. However, they failed to tell the rest of their family they had gotten a divorce. So the first conflict happened because they were all doing their taxes in my office. The mom and dad, son and daughter-in-law However, I was then contacted by the former wife and she requested all of the tax returns and documents I had prepared. The issue was that the husband always took care of the tax returns. They filed separate, he provided the documents to work off of, and she wanted to know what I had been supplied with. Which means at the point it appeared there may be a legal risk to working with these individuals. And I certainly would be asked questions from his parents who were my clients. This divorce and family issue had put me into a situation of ethics and conflict of interest. I certainly could not represent either one of them, the request of the former wife. The former wife had done work for my client mom in her business. Which I prepared the returns for. So it became a sticky wicket. I could not talk to anyone or prepare anyone's tax returns because there was too much of a conflict of interest. I had to drop all of the family as clients.
Divorce and accountants sometimes do not go together. It puts the accountant in a situation where both individuals can come after the accountant in legal action. The accountant hasn't done anything wrong but both sides are so mad that they will take it against the accountant if it gets down and dirty. I have seen this happen a lot of times with accountants, and it hopefully get meiated. The ethical thing to do is to end the professional relationship, unless they both agree it is OK for the accountant to represent each party. Ethically, you cool the relationship and let them move on to an accountant that can remain independent and there is no conflict. Best practice.
Michael Lodge, NCPM, CRTP - Certified Business Mediator - Phone/Text: 818.252.5682 - www.lodge-co.com
As a business mediator and former owner of an accounting firm in Los Angeles, we had a mediation and arbitration clause in our retainer agreement that worked great with our clients in a dispute. Lucky for my firm we only had one that came up with a high profile client. Since I do business mediation I work with tax preparation and CPA firms on disputes or conflicts that arise, between client and accounting firm or their client and a business dispute. Even the AICPA likes mediation. The following article is from the CPA journal and is a very good read. In your next dispute that may happen, text me at 818.252.5682 or send me an email at firstname.lastname@example.org
A practical guide to mediation for CPAs. (includes related article)
by Zimmerman, Philip
Abstract- The alternative dispute resolution approach known as mediation should be considered first by CPA firms before resorting to other methods such as arbitration and litigation. In mediation, relationships with clients can be maintained because there are no winners or losers. Moreover, mediation entails only minimal risk because either party can decide to end the process any time it wants. In addition, mediation costs less than either arbitration or litigation. In mediation, the accounting firm and the other party meet with a mediator, always a neutral third party, who is tasked with helping in finding an agreeable settlement of the dispute. The mediation process is usually quick and has a high success rate. Mediators should be respected by both parties, independent, experienced, trained, creative, flexible and diligent.
The author describes the mediation process from a CPA firm's point of view - who, what, and how - as well as the resulting advantages. It works for the client as well.
An emerging process for helping CPAs manage their exposure to the risk of litigation is the increasing use and availability of a form of alternative dispute resolution (ADR) known as mediation. The advantages of the process are not one sided; the other party - the user of the CPA's services - also has the potential to benefit from it.
There have been several articles (see accompanying list) explaining various ADR procedures. But these articles either emphasize arbitration or stress the advantages of mediation from a legal point of view. For the CPA firm considering mediation, there is essential information to be absorbed, including appropriate engagement letter clauses, the extent to which various insurers embrace mediation, and an understanding of the mediation process from the CPA's point of view.
Most underwriters of CPA professional liability insurance now allow mediation as an ADR method and some even subsidize it in whole or part ILLUSTRATION FOR EXHIBIT 1 OMITTED!. At least one major CPA firm is testing the use of mediation in disputes with its clients by including mediation clauses in its engagement letters for certain of its offices. Marry judges, because of court overload, require disputing parties to use mediation in the hope of avoiding lengthy court hearings. A lengthy heating usually occurs when a case includes a great deal of factual material, as in many disputes involving financial matters.
What Is Mediation?
Mediation as it relates to resolving a dispute between a CPA firm and a client or other third party is a facilitated negotiating process in which the firm and the other party to the dispute meet with a neutral third party, the mediator, whose sole function is to try to assist the parties in reaching an acceptable settlement. Mediation is generally a quick procedure that, if properly organized, can be accomplished in a few meetings, with an extremely high success rate. The process is voluntary and either party can terminate it at any time.
Who Can Assist with the Process? The parties may retain attorneys or conduct the process without them. It is unusual for the parties to come to a mediation conference with an attorney, although there generally are consultations prior to or after a particular conference. In complex cases, however, liability insurance underwriters may also suggest the presence of a CPA firm's attorney at the conference. The parties should be represented by persons from their organizations who know the facts behind the dispute and have the authority to resolve the dispute or have easy access to someone who has such authority. This ability to negotiate and settle is essential to the mediation process.
The AAA experience is that settlement is reached in 80% of the disputes submitted to it. JAMS/Endispute, Inc. has reported that 90% of the cases submitted to it during 1992 were settled. Other knowledgeable mediators state that 60% to 95% of all disputes are settled by mediation.
How Does Mediation Differ from Arbitration? Mediation is a voluntary dispute resolution process that does not become binding unless the parties reach their own settlement of the dispute. Arbitration differs in that an arbitrator makes a determination to resolve the dispute that is binding on all the parties. Mediation is also more effective in saving the relationship between a CPA firm and its client in the event of a dispute.
Mediation Is Preferable to Litigation. Even if a CPA firm is victorious in litigation, there is usually a large out-of-pocket cost for counsel, experts, depositions, copies of documents, etc. Litigation also takes its toll through the high cost in time lost from work and emotional trauma.
Satisfaction with litigation is generally low because control, by the involved parties, is lost in the process. Counsel argues the case if it goes to trial, and if the case is settled before trial, the attorneys generally have proposed it based on the hazards and costs of litigation. If the case reaches a jury, the outcome is extremely unpredictable.
Litigation results in a winner and a loser. Because of its adversarial relationship, the process tends to destroy even long-standing client relationships.
The cost of mediation is lower than either arbitration or litigation. Since mediation does not usually require a great deal of an attorney's time, and is generally successfully concluded in a few days, the out-of- pocket costs are not considerable, and the loss of valuable partner and staff time is minimized.
How Does Mediation Work?
A CPA firm and a client who are in a dispute can enter the mediation process, either under a mediation clause that was part of an engagement letter entered into prior to the dispute, or they may agree to mediate after the dispute arises if there was no prior arrangement. There is also the possibility that a court can order mediation after litigation has started.
Sample mediation clauses for engagement letters can be obtained from one of the ADR agencies or adopted from an existing model with the help of an attorney.
The Mediator. Under AAA rules, the AAA selects the mediator subject to approval by the parties. The other ADR agencies maintain lists and biographies of experienced and trained mediators. The parties involved then approve or select a mutually agreeable mediator. The process for selecting an appropriate mediator is covered in greater detail later.
The mediator's task is to help the parties resolve their dispute in whatever manner the parties decide and the mediator will act neither as counsel nor advisor to the parties. The parties should consult their own attorneys during the process and have them review the final settlement.
Preparation. It is advisable for the CPA firm to ready itself in advance for the mediation by preparing a negotiating plan that does the following:
1. Defines the issues involved.
2. Identifies the firm's interests and prioritizes them. In mediation, "interests" means the needs of the parties that relate to the dispute or the area affected by the dispute. These could include a CPA firm's economic interests (e.g., desire to retain the client), confidentiality (desire to preserve the firm's reputation), and timing (desire to resolve the case quickly to avoid loss of partner and staff time).
3. Explores possible solutions, including an initial proposal - high enough to allow for further negotiation - and a bottom-line proposal.
4. Determines the strengths and weaknesses of its case.
5. Gathers facts and documents to support its case.
6. Anticipates the other party's needs, interests, demands, positions, strengths, and weaknesses.
7. Develops a strategy and tactics, considering the interests of the other party.
To expedite the process, each pasty may prepare and supply the mediator and the other party with one or more position statements. The acceptance, depth, and contents of these statements need to be agreed on among the mediator and the parties.
The Mediation Conference. The next step is the mediation conference. The mediator first describes the ground rules to be followed. The initiating party presents its side of the dispute, what it wants, and why. The other party then responds in a similar fashion. The mediator tries to understand how each party views the dispute, their interests, and their positions. As previously noted, depending on the nature of the dispute, it may or may not be necessary for the parties to have their attorneys at the mediation conference.
When the first session reaches this point, the mediator will usually seek adjournment and caucus separately with each party. During the caucus, the mediator tries to clarify the facts and positions, while trying to loosen frozen positions and explore alternative solutions. The mediator tries to make each side deal realistically with the other's arguments. A party's position usually changes after it hears the opposing party's arguments and a settlement range may begin to emerge. The mediator then has the parties focus on the risks and costs of litigation in relation to other alternatives. At this point, there may be one or more joint sessions or caucuses, during which the mediator helps to narrow differences between the parties and obtain agreement on as many issues as possible.
Settlement. In a caucus, the mediator may suggest a final settlement, but it is the parties themselves that negotiate the final terms in a joint session. It is up to the mediator to make sure that the agreement is complete and sufficiently clear to settle the dispute.
The final step is the signing of a written settlement agreement and the exchange of releases. If a settlement is not possible, and this rarely happens, the parties may agree to arbitration, or go directly to litigation.
Selecting an Appropriate Mediator
The selection of an appropriate mediator enhances the chances for a successful mediation and an ultimate resolution of the dispute. The mediator should match the needs of the parties and the type of dispute, as well as be prepared to overcome the impediments to resolving the dispute.
The prime qualification for an appropriate mediator is that he or she is respected by both parties. The mediator should also be independent, experienced, trained, and have the time to resolve the dispute. Among the desired personal qualifies is creativity, including flexibility and adaptability; diligence, including persistence and an interest in preparation; and leadership, including patience and the ability to bring the parties together.
Independence of the mediator is necessary for a successful mediation process; it helps to reduce the hostility of the parties by facilitating a frank discussion of each side's interests, strengths, and weaknesses. An independent mediator can aid each party in assessing the reality of its position. The parties then usually narrow the issues, and excessive demands are deflated. The result is an extremely high percentage of cases ending in a voluntary settlement at a minimum of cost in time and money.
There is no reason the parties can't interview the mediator and satisfy themselves that the mediator has the necessary background, experience, approach, and personal qualities desired. It is generally preferable for the parties to jointly interview the prospective mediator to avoid any perception that one of the parties unduly tried to influence the mediator. Because the AAA rules provide for it to select the mediator, the appearance of neutrality is enhanced. The only contact with the mediator prior to the mediation and, except for caucuses during the mediation, is through an intermediary, the AAA.
The two main approaches to mediation are -
* the "evaluative" approach, which relies on expertise in a technical area, such as law or the accounting profession, and the ability of the mediator to evaluate the case for each side and make recommendations, or
* the "facilitative" approach, which relies on having the parties articulate their interests, the narrowing of these interests, and the use of other dispute-resolution techniques to help the parties themselves resolve their differences without the mediator's intervention.
A CPA firm may be better off in certain cases with the facilitative approach. It should be prepared to deal with the fact that some litigating attorneys have difficulty in accepting the facilitative approach and are comfortable only with the evaluative approach; their experience is with a process that relies on rules and precedent.
Advantages of Mediation
Putting the whole process together, the advantages of mediation are many:
1. Client relationships can be maintained.
2. There are no winners or losers.
3. Costs are usually less for the CPA firm and its client. Much less legal advice is required. Discovery is limited because the parties have all of the facts or documents and key witnesses within their control and, by mutual agreement and in the interest of reaching a settlement, will agree to supply them voluntarily.
4. The mediator selected understands the parties' businesses.
5. Even if a CPA firm wins in litigation, the costs are generally significantly higher than in mediation, and the CPA firm usually bears a meaningful amount of them. This is true even if the firm is insured because of the deductible and the loss of productive time.
6. There is little risk to mediation since either party can terminate the mediation at any time without prejudice and proceed to either arbitration, with the consent of the other parry, or litigation.
Mediation's disadvantages arise when litigation is needed to achieve certain objectives or other conditions exist such as the following:
* A nonconfidential process is needed,
* A legal precedent is desired,
* Public vindication is felt to be important,
* Maximizing recovery is important,
* More is involved than a simple dispute, or
* The rights and responsibilities of third parties are involved.
The Process of Mediation
The CPA firm planning to use mediation or have it available in the event of a dispute should do the following:
1. Consult with its liability insurance underwriter to see if mediation is acceptable and what special, if any, requirements it has.
2. Work with an attorney to develop special language to be included in new engagement letters. Also, some of the leading CPA liability insurers will provide suggested engagement letter wording requiring mediation.
3. Explain to partners why mediation is good for both clients and the firm and provide them with answers to questions clients may ask of them.
Answers to Some Myths About Mediation
A number of myths are circulating about the results of using mediation.
You give away your case. The language setting up the mediation can make what is discussed confidential, not admissible (if solely arising from the mediation) in any subsequent litigation, and prevent the mediator from appearing as a witness for either party.
Mediation doesn't prevent a non-client from suing the CPA in another action. Most clients of CPA firms are privately held and third party suits are in the distinct minority.
Mediation can go on for too long and delay the resolution of the dispute for an unreasonable time. A time limit can be put on the proceeding, unless extended by mutual consent.
Clients will not want to give up a jury trial and the right to appeal an unfavorable verdict. If the mediation is not successful, the client can still litigate. Even if an unfavorable verdict is appealed, the outcome is uncertain and the cost is high in money and in the continuation of the emotional trauma.
Insurers won't approve mediation. Most insurers now approve mediation, and some even are willing to absorb part or all of the cost.
Mediation seems to be a win-win situation. The benefits of at least making it the first line of defense are so compelling that all firms will want to give it serious consideration.
Michael Lodge, NCPM, CRTP - Certified Business Mediator - Phone/Text: 818.252.5682 - www.lodge-co.com
Four years ago Christian (not his real name) and Tom (not his real name) formed a healthcare company that provided medical supplies and equipment to hospitals, skilled nursing facilities and private care. They spent a lot of time developing this business, they even went as far as getting it certified by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). I have gone through the accreditation process for my own firm and it can take a very long time to get everything ready, documented, procedures written, and then certified. My certification took about 6 months. But they got it done and they needed it in order to bid with JCAHO certified facilities.
As a lot of small startup businesses they needed capital to get everything done, buy the equipment they needed to provide to medical facilities. They went out and found nine investors to help them. An LLC was formed and became operational once the investor funds were available. However, there is always a however to every story. The nine investors saw that it was going to be a good business, everything had been formed and certified, so they started meeting to find a way to take over the business from the two founders. They came to me and asked for mediation.
As a mediator you have to find out if the remainder of the parties involved want to mediate. I got on the phone and got them all to agree to mediate. The focus of the mediation was not to keep the LLC together with the investors, it was to remove the investors and dissolve their relationship with the LLC. Now, I had never had nine people in one mediation, so this was a learning experience for me also as a mediator. My board room table thank goodness had enough seats for everyone.
As all good mediators do I opened up the mediation with an opening statement, the rules, and then allowed the two original partners present their concerns and their needs to take back the ownership interest of each partner. They did a very good job, they knew what they wanted to say and had gone over their presentation. It was very professionally done. The Mediator asked the followup questions. I then let the other nine, whoever wanted to present their side. They were all over the place, some wanted to continue, others wanted to leave. The most greedy ones wanted to leave and wanted their investment funds back. Finally, all nine agreed to leave the LLC and all funds were returned to the investors. Now, remember all these investors did was put money into the LLC with no participation whatsoever, but they smelled the money and in the end they all went out and started their own healthcare supply company, but it failed in the end.
This could have gone to court, but with mediation everyone sat down, acted like adults, and an agreement was done in one meeting with a mediator. I shutter to think what would have happened if it did become a litigation and nine attorneys got involved. Mediation was done in less then four hours at less the cost of court fees and attorney retainers. Mediate and resolve disputes in business.
Michael Lodge, NCPM, CRTP - Certified Business Mediator - Phone/Text: 818.252.5682 - www.lodge-co.com
I always encourage businesses to mediate their disputes through mediation. A private mediator should get involved before it becomes a part of the legal world. Try to resolve the disputes in a professional way with a third party that can bring both sides together. Legal disputes become very costly and may take a long period of time. However, in mediation you can bring a Mediator in and work with both parties to get to an agreement. Here is a good article that provides a better argument for mediation.
Mediation is a process whereby an independent third party assists two or more consenting parties to resolve a conflict by helping them to come to a mutually acceptable solution or compromise. The mediation is considered a confidential process and the mediator may not subsequently be called into court or otherwise obliged to disclose the information received during the mediation. The mediator assists the parties to identify issues, vent, if necessary, discuss causes of the conflict and explore options for an outcome satisfactory to all, some of which may not be available in the litigation process.
The mediator does not sit in judgment of the parties, and although a party who is or appears to be biased ought not to participate in the mediation, it is important for the parties to understand that they are the ones who will decide as to the final outcome; however, it is desirable to have an impartial mediator. It is thought to be empowering for the parties to be the ones to make a decision on their own terms as opposed to having a decision imposed on them at the end of a long and no doubt expensive litigation.
Often matters that are litigated in the courts turn on a relatively narrow issue, but because of hurt feelings and for a variety of other causes each party is determined to fight to the bitter end, when the mediation process is shorter and thereby much cheaper, and allows the parties to “save face” in making concessions on their own terms.
Some of the tools used during the mediation are the mediator's opening statement, each party being allowed a similar amount of time to present their case as they see it and the mediator's summary of each party's positions. It may be necessary to hold a caucus with each party as a means of reducing tension and putting a little distance between the parties, or just if there seems to be no movement in the discussion. The mediator is entitled to ask questions in order to clarify issues and may use other tools in order to narrow the issues.
Hopefully a mediation ends with an agreement, but at times parties are unable to resolve their issues at the time, but the mediation may assist in reducing hostility; and mediations may sometimes give rise to settlements after the mediation but as a direct result of the mediation.
Michael Lodge, NCPM, CRTP - Certified Business Mediator - www.lodge-co.com
In my practice I do mostly business mediation because that has been my focus of life since leaving school. I love business. But in business there are conflicts, internally and outside that happen, and they have to be resolved. So, the following article talks about how to settle business disputes, and mediation is your best bet in using a third party to help guide both sides.
For practitioners of the law, mediation is a well-known concept that became part of their lives. To business people, however, the idea of mediation is foreign. When they enter a dispute, they expect to win the case with their arguments. Instead of thinking about cooperation towards a final resolution, they look at business disputes as sources of conflicts.
A neutral third party has a lot of work to help them sort out the situation. Their goal is to help the two businesses find a solution that helps them maintain the ongoing relationship.
10 Mediation Tips: How to Settle Business Disputes
1.Get All the Needed Documents
When arranging a mediation meeting, you should have all needed documents with you. Tell all parties to bring the documentation that they plan to show during the process.
2. Decision-Makers from Both Sides Must Be Involved
If the decision-makers send representatives who cannot make decisions without consultation, the mediation process will be prolonged and ineffective. Businesspeople are busy, so they like sending their lawyers to mediating meetings. However, a lawyer doesn’t have any power to make decisions in their place.
When decision-makers from both sides take active price during the process, the mediator will gain an understanding of their concerns and opinions. The mediator should do their best to bring the two parties together. If that’s not physically possible, an online video conference might be an option.
3. Listen, So You’ll Learn
Listening is the point where all mediation techniques start. Every negotiation process starts by listening. When you listen to the parties of a business dispute, you should be prepared to hear sound arguments on both sides.
If you don’t understand something, ask questions. If you’re not sure if you understood correctly, repeat what you heard so you’ll make sure you’re getting everyone’s perspective.
4. Nobody Should Feel Like They Lost
Microsoft took Motorola to court in 2012 because they couldn’t solve the dispute through mediation outside court. Both sides came well-prepared. Analyze that case. What would you suggest as a mediator? Instead of deciding who’s right and wrong, your goal is to bring both parties to a meeting point.
5. Tackle All Issues
No matter what mediation techniques you implement, one rule is always valid: you shouldn’t leave any issues unsolved. If you bring the parties to a solution on the main point but you leave something unsettled, the remaining issues will arise again.
It’s best for mediators to use to do list apps during the preparation process. They will note down all underlying issues, so they will discuss them in detail.
6. Include Both Parties in the Brainstorming Process
Brainstorming is one of the basic mediation techniques that lets you think of potential solutions. Mediators usually cover that stage alone, and then suggest the solutions one by one to the parties in the process. Why not try a different approach? The decision-makers can take part during the brainstorming stage, so you’ll see what solutions they are willing to accept.
Joint brainstorming may be the source of deeper conflict. Explain to them that this is just the first stage, during which you’ll present ideas. Nothing is mandatory and you’re trying to reach a solution. Everyone is allowed to suggest anything.
7. Identify Clear Goals
The brainstorming process helps you identify the goals that both parties would like to reach. In the ideal case, they would continue their business collaboration after you solve the issues. That’s the main objective, but it may not be possible to achieve it. An effective mediator should bring both parties towards a goal that’s realistically achievable and acceptable for them.
8. Familiarize Your Clients with the Process
Both parties should understand what mediation means. Explain how long you expect the process to take, what goal you’d ideally achieve, and what it will mean for your clients to settle the issue in the calmest way possible.
9. Be Creative
You won’t find too much creativity when you look at notable mediation cases. Everything seems to be done by the book. In business mediation, however, you might need to offer creative solutions. Maybe none of the tried and proven approaches will work. In that case, you can try something different. You can invite your clients to communicate directly with each other, include a neutral expert to provide their opinion, or create PowerPoint presentations that showcase the outcomes of each point from the narrowed-down list of solutions.
10. Make It Less Stressful
When conflict arises between powerful businesspeople, each party wants to question the authority of the other and prove their own influence in the industry. You’re going to spend hours or days in discussion, and the tension won’t help anyone. Mediators have to do their best to make the process less stressful. Even humor is a good idea when used tastefully.
It’s a Challenging Process
The business mediation tips listed above give you foundational understanding of the process. When you start practicing it, you’ll realize that each case brings a new challenge. Mediators learn through practice, but it’s important for them to understand the theory behind mediation, too.
FULL ARTICLE: Written by James Dorian https://www.mediate.com/articles/dorian-mediation-tips.cfm