Author Archives: warrenyoung

Employment Disputes:   Should your company adopt a mandatory alternative dispute (“ADR”) resolution program?

Many of the nation’s major employers have adopted programs which require employees to mediate and arbitrate all employment claims, thereby by-passing the litigation system.  The U.S. Supreme Court has repeatedly upheld the legality of these mandatory ADR programs despite concerted attacks by unions and the plaintiffs’ bar.

Employers have adopted mandatory ADR programs because the litigation system is perceived as too costly, too slow, too unpredictable and unfairly biased in favor of employees.  Many employers have reported outstanding results, resolving a high percentage of employment disputes in mediation.

Most programs require mediation first.  If mediation is unsuccessful the dispute moves to arbitration, which is final and binding upon both parties. Key definitions:

Mediation:  Mediation is a negotiation process between parties, facilitated by a neutral mediator.  A mediator cannot decide the merits of the dispute but works to assist the parties in reaching a mutually acceptable settlement agreement.

Arbitration:  Arbitration is a hearing before a neutral arbitrator who will decide the merits of the dispute and issue an award or decision which is binding upon the parties.

Is a mandatory ADR program right for your company?  Compare:

PROS

CONS

1)       Mediation and Arbitration sessions are private and confidential. 1)       Lower entry barriers for employees asserting claims.
2)      Speedier dispute resolution. 2)      Parties cannot appeal an Arbitration decision except in extraordinary circumstances.
3)      Avoidance of runaway jury verdicts. 3)      Employees may resent being barred from access to the court system by the ADR program.
4)      Mediation/arbitration are less costly than litigation. 4)      Employers surrender the advantage of superior resources to litigate in the court system.
5)      A high percentage of disputes are resolved in mediation with a settlement agreement fashioned by the parties. 5)      Employers bear the costs associated with mediation and arbitration.
6)      Current case law holds that ADR programs may even bar employee class actions from the court system 6)      To be enforceable, ADR plans must afford employees full substantive legal right and remedies and not impose unreasonable procedural burdens upon employees.

Bottom Line:      Mandatory ADR programs are being validated by the courts as long as they are carefully established in accordance with prevailing case law.  Employers should seriously consider adopting a mandatory ADR program for all employment claims.  Non-union employers can unilaterally adopt such programs.  If you have a union, ADR programs may be subject to mandatory collective bargaining requirements.

Carl F. Muller, Esq.  cmuller@warrenyoung.com

Lawyers do have a sense of humor

Our law firm has been around since 1921.  Over the course of those many years, we occasionally run into or hear of lawyers who actually have a sense of humor.  Here is one.

Vermont attorney Andrew Delaney wrote a wonderful letter on behalf of a small website operator in response to a “take down” notice he received from a large New York law firm (with offices all over the world).  The New York firm was representing the American Bankers’ Association.  The ABA (by which I mean the “other” ABA, not “my” ABA – the American Bar Association) claimed it had a copyright on the “routing number” used  to identify banks within the Federal Reserve system.  But it’s just a number, you say.  Most people would.  But intellectual property rights are all the rage these days, so the big city firm with the well-heeled client (after all, they’re bankers) decided to intimidate the small website operator.

Attorney Delaney’s letter is fun to read and deserves a cheer from all of us who practice in small firms that from time to time come up against our colleagues from the City.  Find the letter here: http://pdfserver.amlaw.com/cc/delaneyletter.pdf

With appreciation to Corporate Counsel, an ALM Media Properties publication.

Stuart W. Cordell, partner

Check out this inspiring video produced by the Greater Cleveland Partnership about the momentum and energy we are experiencing in our anchor city, Cleveland, and the rest of the Northeast Ohio region.  Warren and Young proudly supports efforts directed at regional economic and civic development, including The Fund for Our Economic Future and Team Northeast Ohio. http://www.youtube.com/watch?v=tntbVtL2udI&feature=share&list=UUBGr100azVxIYMgVcjJhQbQ

 

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Maecenas a nisl metus

Since 1921, Warren and Young PLL has served Northeast Ohio as a business and litigation law firm.  Our lawyers address the needs of businesses and the people who own them by providing practical advice, cost effective solutions and principled advocacy.  Please explore our site and let us know how we can help you.

Debt Payments After A Loved One Passes

. . . What is a survivor’s responsibility?

It is happening more and more often.  An aging parent, or a spouse, has a balance due on their credit card when they die.  The next month, when the bill arrives, should the surviving spouse, or the children, pay it?

The short answer is “Maybe.”  Let me explain.  The probate estate of the deceased card holder is primarily responsible for the debt.  If there are assets in the probate estate (meaning, assets titled in the decedent’s name alone or payable to the estate), then those assets will be subject to the payment of legitimate debts of the decedent.  In that case, the creditor files a “claim” against the estate, and receives payment from the executor as part of the estate administration.

But what if there is no probate estate?  For example, if all the property is titled in joint and survivorship form with a spouse or children, or is payable to a designated beneficiary, such as a retirement plan, annuity or life insurance, there is no requirement to file with a probate court.  If there is no probate estate, then the creditor has no assets against which to make a claim.

We see this situation in many estates we administer.  When asked whether the survivors are responsible for the bill, I always respond with “Were you a co-signer or guarantor on the card?”  Often they don’t know.  If the answer is “No”, then I advise not to pay the bill.  If the answer is “I don’t remember”, then I advise not to pay the bill until we learn more.  In that situation, our procedure is to write to the company, notify them of the death (sending a photocopy of the death certificate), and ask for documentation of who signed the card agreement.  If the creditor can demonstrate that someone else is responsible for the bill, because he or she signed the application or guaranteed the account, then we’ll take steps to settle the debt.  But if there is no documentation, then we advise not to pay the bill.

We’ve also seen some new developments in this area.  For example, credit card companies and debt collectors have written off a lot of decedent’s accounts, and have become aware of the “no probate estate” arguments.  As a result, they are becoming more aggressive in trying to collect the balance due.  Instead of trying to file claims with probate courts, they are contacting survivors directly and trying to convince them to pay the bill.

The tactics the credit card companies are using are slick.  Improved technology makes it easier to find people.  Debt collectors are training their employees to act as if they care – teaching them to be a good listener, be empathetic, use anger-deflecting phrases and prey on the loyalty or morality of the survivor.   They offer their employees stress-relieving tools, such as yoga classes, game tables, free snacks, full scale lunches and even the occasional massage.  In the final analysis, it’s all about getting paid.

However, many people are unaware they have no legal obligation to pay a deceased relative’s debts.  Most debt collectors do not volunteer that information.  If asked the direct question – “Am I legally responsible for this?”, they should say no.  But you must ask the question first.

Another development is the predatory or bogus “debt collector” who is really just a scam artist.  They tend to call loved ones shortly after a death, even before the funeral (they check out death notices for names and addresses).  They refer to a “large debt” the decedent allegedly owed, request immediate payment, and threaten “further action.”  They don’t name a specific collection agency, and try to pressure the relative into divulging personal information over the phone.  It’s a con, and they strike because a family’s guard is down when they are grieving.

The same rules apply in this situation.  Know your rights.  If you weren’t a co-signer or guarantor on a debt, you have no obligation to pay it.  Collectors should deal with an attorney or the executor, not directly with the family.  Ask for detailed information from them, including a written demand letter that includes a copy of the document that created the “debt.”  If they persist, you can always contact an attorney or your state attorney general’s consumer hotline.

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Business and Corporate Law

Our lawyers provide legal services to businesses and the people who own them.  Clients throughout Ashtabula, Lake, Geauga, Trumbull and Cuyahoga Counties in Northeast Ohio rely on the attorneys at Warren and Young every day to manage their business and litigation needs.  Our attorneys advise clients at every stage of the life cycle of their business, including business formation, disposition, dispute resolution and everything in between, while also helping them to organize and manage their personal legal requirements.