Mediation: What is it and Why Should I Care?

Mediation is a tool that allows lawyers to settle a case without ever entering a courtroom.
By Brandon M. Allen, JD

Anyone who has watched a few hours of television is familiar with traditional trial and courtroom settings. Judges in black robes and jury boxes full of people comes to mind when thinking of the way in which your case may be resolved. While this process of resolution has worked adequately for decades, it also comes at a cost to the parties involved. Trial preparation, expert witnesses, and other legal fees are not cheap. If I told you could resolve that divorce or business dispute without ever stepping into a courtroom, would you be interested in learning more? If so, continue to read below and allow me explain this handy alternative that modern lawyers keep in their tool belts.

What is mediation, exactly?

Mediation is a tool that allows lawyers to settle a case without ever entering a courtroom. The concept of mediation usually works like this: Each party sits down in a conference room or other office setting with his or her lawyer while the opposing party is in a separate room across the hallway. With video conference technology, it is even possible to do this without the parties being in the same building. A third party, the mediator, is also present at this meeting between opposing parties. The mediator will begin by explaining the process of mediation to both parties. This often outlines what the parties should anticipate happening during the mediation. The mediator will then go to work moving between both rooms determining the primary issues and what it would take to settle the case. Unlike a ruling in the courtroom, the parties are not required to reach a resolution in mediation unless everyone agrees they have reached common ground on the issue and are ready to resolve the case. If the case is not resolved in mediation, it will continue on its track to eventually be heard in a court of law.

Why should I allow my lawyer to set up a mediation?

In some cases, mediation may be required before the case goes to court. The process has proven to be a great way to settle cases without the need to go to court. This decreases the number of cases on the docket. Mediation can also be cheaper than court. The parties in the lawsuit will still be required to pay the mediator for his time and for their respective attorneys to attend the meeting; however, there is no need for costly trial preparation. It is important to remember that the mediator is not a judge and the typical formalities of a courtroom do not apply in mediation. The mediator works as a negotiator to help both sides identify their issues and negotiate agreements. He does this by remaining neutral throughout the process, meaning he does not represent either side and is able to freely move between both rooms and assist in finding a solution.

Are the benefits worth the cost?

Mediation will generally be complete in one day. Often times, mediators are only reserved for half-day sessions because any success from the mediation may be accomplished in this amount of time. This means that you will usually know up front how much this process will cost. Since the setting is more relaxed and courtroom formalities are not in play mediation can also be less stressful. Parties are able to focus more on their intended outcomes and less on the anxiety of a trial and the possibility of disappointing determinations. In mediation, the parties maintain control and if they are not happy with the direction in which the negotiations are moving they are free to end the discussion and leave the meeting. It is also important to note that the outcomes reached in mediation are confidential and these details will not be shared outside of the meeting.

If you have any questions regarding an upcoming mediation or other legal matter, feel free to give us a call any time at (865) 966-4343.

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In a Perfect World

Slip and Fall Accident Report

By Brandon M. Allen, JD
February 8, 2021

Let’s face it: Winter is tough.

Once the holidays are over, we are staring down months of cold weather and a general lack of sunshine. This is also a good combination for dangerous roads and slippery walkways.

Law firms are impacted by seasonal changes and current events like many other industries. So what’s the next step if you find yourself injured after being hit by another motorist or slipping down on that patch of ice that should’ve been salted? Like many issues in the practice of law, it depends.

In a perfect world, cars would apply brakes automatically if a distracted driver failed to notice a stop sign. Property owners would salt their walkways before someone fell and got hurt.

Unfortunately, injuries happen daily and come in all shapes and forms. So if you do find yourself on the side of the road looking at a crumpled car and wondering what’s next, allow me to break a few things down for you. It goes without saying that your first step is to get help. Many people feel that a lawyer should be the first call after an injury. I am here to move that call a few items down on your list. If you’re hurt, call an ambulance. Call the police. Call your loved ones to let them know what is happening.

 Tennessee has a statute of limitations that generally allows you one year to file a claim based on a personal injury.

There are some exceptions to the rule and you should always consult with an attorney in order to determine the best steps for you personally, but those are details reserved for a personalized review of your case. In the meantime, try to keep a log of your daily activities after you are hurt. What can you not do that you were able to accomplish before you got hurt? What did that insurance agent tell you on the phone a week ago? How much time did you lose at work before you could go back and resume your daily activities? These are all important questions that are more easily answered if you have kept track as they are occurring.

So you aren’t getting anywhere on your own and decide you need to enlist the help of an attorney; now what?

The first step an attorney will take is to review your case and determine whether the law firm could be of assistance to you. If so, the next steps could go in one of several directions. In some instances, your case may be resolved by corresponding with the opposing party and working out details to reach an amicable agreement. In other situations, your attorney may need to file suit in order to begin the process of taking your case to trial. This process also involves a timeframe that we call discovery. Discovery allows the parties adequate time to request information and documents that may be helpful in determining an outcome in the case. For instance, if you were injured by falling inside a store, then your attorney may request information from the store related to security camera footage or procedural manuals to determine if the store had an action plan for cleaning up spills. Sometimes a party may be injured and share some fault in the injury. This does not inhibit your ability to recover restitution. In Tennessee, your recovery may be reduced by the percentage you were at fault. However, if the other party played a role in your injury you may still be eligible to recover.

The only time I’ve seen a courtroom is on a re-run of Law& Order; what if I am nervous about this part of the process?

I will preface this paragraph by telling you that many cases are now settled before they see a courtroom. Lawyers have tools at their disposal that offer opportunities to settle your case prior to trial. Mediation is a perfect example of such a tool. Mediation is an opportunity to sit down with your attorney in an office or conference room with a third-party who has access to representatives on both sides of the case. The third-party is called the Mediator, and this person travels back and forth from one side to the other acting as a neutral. Mediation is not as formal as a courtroom and allows the parties to speak openly and frankly on the resolutions they seek. If a resolution is agreed upon, your case can settle there and will not have its moment in a courtroom. But have no fear, if an agreement is not reached in mediation, your attorney will know how to navigate you through a trial. Each Court has its own set of rules and formalities which your attorney will understand and explain to you.

If you need assistance with any legal matter, including personal injury, feel free to give our office a call at (865)966-4343 and set up a personal consultation with one of our attorneys. We would be happy to look over your case and establish the best path forward to fit your needs.

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Personal Injury Resources

Fireman helping women in car wreck

How do I know if I have a personal injury claim?

If you, your family or friends, have been injured in an automobile accident, truck accident, slip, and fall accident, or through other means, as a result of someone else’s negligence or reckless conduct, you may be entitled to recover money damages from the person or persons who caused the injury. Negligence, in the simplest terms, is the failure of a person to act ina reasonable manner.

Questions answered concerning personal injury

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19 Days Until Valentines Day

Traditionally, one of the busiest months in domestic law is February. Sometimes, despite one’s best efforts, the same marital issues that were present the year before are still lingering, and the glow of the holidays has worn off. 

This year, the added pressures of constant togetherness and spending more time at home during 2020 may have thrust marital issues to the forefront. This recent article in The Washington Post offers some tips for how to improve your relationship with your partner. 

https://www.washingtonpost.com/lifestyle/wellness/couple-counseling-relationship-tips-covid/2021/01/04/919e1702-4eb2-11eb-83e3-322644d82356_story.html

“One in 5 married or partnered Americans surveyed in July reported fighting more than before the pandemic, and 30 percent said they were more annoyed with their partner. Almost 10 percent said they are likely to separate, at least in part because of issues related to the pandemic.” 

Kecmanovic, J. (2021, January 12). If your pandemic partner is getting on your last nerve, try these tips to repair your relationship. Retrieved January 26, 2021, from https://www.washingtonpost.com/lifestyle/wellness/couple-counseling-relationship-tips-covid/2021/01/04/919e1702-4eb2-11eb-83e3-322644d82356_story.html

For questions regarding a potential divorce or legal separation, or just for advice on how to separate amicably and to gain insight on the divorce process, contact us at McDonald, Levy & Taylor, PLLC. Our team of attorneys are ready to help you move forward with your next step, and all of those to follow.”

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Navigating A Divorce

Navigating a Divorce

Ending a marriage is a complicated, trying, and complex experience. One must address everything that has been part of their marriage.  This can include money, children, property division, stress, as well as a full gamut of emotional chaos. 

One of the most important assets you can have during a divorce is your lawyer. As your ally, it is essential to tell your lawyer the entire story of your marriage, the good, the bad, and the ugly, so she can be fully prepared to navigate you through the divorce process.

In Tennessee, there are two primary routes for obtaining a divorce.

  • Irreconcilable Differences Divorce – This is a “no-fault” divorce. The parties have a property settlement agreement and agree to a parenting plan. 
  • Contested Divorce –This type of divorce is filed based on some type of inappropriate marital conduct.  Which includes, but is not limited to adultery, desertion, impotency, bigamy, criminal conviction of a felony, attempt upon the life of the spouse, habitual drunkenness or abuse of narcotic drugs, or other reasons recognized by Tennessee law.

The Court’s goal is to divide the marital assets, assign alimony, and determine custody and support of the minor children equitably.

This does not mean everything is split right down the middle. That is why it is crucial to have an experienced lawyer to ensure your interests are protected and represented.

The Court will consider several factors in this equitable division of assets, and in determining the need for a party to receive spousal support, more commonly known as alimony. Some of those factors include:

  • Duration of the marriage
  • Age, health, earning capacity, and financial needs of each party
  • Contribution by one party to the education or earning power of another
  • Ability of the parties to earn
  • The separate property of each spouse

Social media, text messages, and emails may be used against you in a contested divorce.

In today’s internet society, regardless of your privacy and security settings of social media accounts, your photos, posts, and sometimes your whereabouts are accessible. It will be hard to convince the Court of faithfulness or soberness when posts say otherwise. 

Divorces take time.

Once the necessary documents for the divorce have been filed with the Court, and there are no minor children involved, there is a mandatory 60-day waiting period for a divorce to be final, even if the parties have filed an agreement with the Court at the outset. If there are minor children, the period extends to 90 days. Keep in mind, these time periods for finalization are the bare minimum allowed by law.  If the parties have not reached an agreement on every issue that must be addressed and divided, then the divorce will require additional time outside this window to be finalized.  Divorces involving minor children also require that the parties attempt the mediation process prior to the court hearing a divorce trial.

McDonald, Levy & Taylor, PLLC

The lawyers at McDonald, Levy & Taylor are experienced in all aspects of the divorce process. In your initial consultation, we will discuss a plan with you that is specifically tailored to your needs.  We will then draft and file the necessary documents with the Court, and help you be prepared every step of the way. Our goal is to be the strong arm in your corner while showing compassion and respect in this challenging chapter in your life. We hope you never need us, but if you do, we are here for you.

Click here for more details on the divorce process.

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Non-Compete Agreements

Keeping it Fair on Both Sides

Non-Compete Agreements: Keeping it Fair on Both Sides

by Brandon M. Allen, JD
McDonald, Levy & Taylor

Non-compete agreements are a valuable tool utilized to protect businesses when used appropriately.

It is likely that most employees are familiar with, or have been required to sign, a non-compete agreement presented by an employer. It is also likely that many employers have considered the usage of these agreements when hiring and training new employees. Non-compete contracts typically go in one direction, meaning that the employer presents the agreement not to compete to the employee, and the employee is required to sign the agreement in order to begin her work. This may seem unfair, as the employer is almost always in the superior position of offering a job to the employee. In fact, the employee may feel obligated to sign unless she is prepared to return to the job postings and look for another job. 

While these contracts may sound unfair to employees, they serve a valid purpose for employers when used properly and legally.

 An agreement not to compete may show up as a separate legal document, or it could be conveniently tucked away in another employment contract as a simple restrictive covenant preventing the employee from taking some action. Employees also have rights under an agreement not to compete, along with limitations on what they should be asked to give up or actions they can be prohibited from taking.

In Tennessee, agreements not to compete are governed by law. 

These contracts are highly litigated, and Tennessee Courts tend to disfavor the agreements because they have an inherent likelihood of restraining trade. Conversely, employers choose to continue their usage of these contracts for many reasons. Often, employers invest highly into a new employee by providing training and knowledge required to do the job. They also share trade secrets that could jeopardize their businesses if an employee learned the trade and then moved to a competitor or opened up a new business to compete. This is a risk for an employer who is looking for new talent but is also burdened with the obligation to protect the business. 

The key to a valid non-compete agreement is drafting reasonable covenants. 

An employer who relies on an unfair agreement is likely to be overturned in court, resulting in a contract that is not enforceable and the accrual of legal fees to cover litigation. The definition of reasonable in a non-compete agreement also comes with its own set of complexities. Employers may ask that employees refrain from working within a specific proximity of the employer’s location after leaving or waiting a specific length of time before they can do so. Determining whether these covenants are enforceable and reasonable depends on whether the employer has a protectable business interest served by the agreement.

For example, if a medical device company hires and invests in a sales representative who is introduced to trade secrets, it may be enforceable to prohibit the representative from selling an identical product for a competitor who is located in the same area for six months after ending employment. Conversely, prohibiting a truck driver from working at any business as a driver within 250 miles for six months after ending employment is likely too restrictive. 

If the contract is arbitrary and rooted primarily in the intent to affect an employee’s ability to find a new job, it is likely to fail in enforceability. 

If the intent is to protect and guard trade secrets and may provide a previous employee an unfair advantage in the industry, then Tennessee Courts are likely to uphold the covenants.

The law on non-compete agreements is evolving. Whether you are an employer seeking to draft an agreement that protects the business interests of your organization or an employee who has been asked to sign a contract that you feel may impact your rights upon your departure, we are happy to assist. Please feel free to call McDonald, Levy & Taylor, PLLC, and schedule a consult to discuss your legal needs anytime.

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Notarizing in a Pandemic

It’s Easier Than You Think

Notarizing during a Pandemic is now virtual
Signing a document in front of a Notary Public and Witnesses virtually

Documents like trusts, wills, deeds, and other legal filings require signatures to be witnessed by a notary public and witnesses. According to Tennessee Statutes and Rules, the person signing, notary, and witnesses must be in the same room. This mandate could bring commerce to a screeching halt since social distancing is necessary for fighting this pandemic.

Executive Order No. 26 provides required parties can sign, witness, and notarize a document via real-time audio and visual communications such as Skype, FaceTime, Zoom, or like technologies. All parties must be physically located in Tennessee during the communication, and the document must include a provision that the signatures were executed in compliance with Executive OrderNo. 26.

McDonald, Levy, and Taylor’soffices are still open as we adhere to strict social distancing guidelines, but we also have the technology to use the provisions allowed within this new legislation.  The current mandate, Executive Order 66 extends the Governor’s Order through December 29, 2020. As the year ends, now is the time to review and update any document that protects you and your loved ones’ future. Despite this pandemic, McDonald, Levy, and Taylor can safely and securely walk you through these legal processes and continue to provide the same level of service to our community. 

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Lawyer of the Year

We are proud to announce that Farrell A. Levy has been selected as the Lawyer of Year in Knoxville, TN by America’s Best Lawyers in the area of Plaintiff’s Products Liability Litigation.

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Super Lawyer

Congratulations to Farrell A. Levy of our firm for being selected as a Mid-South Super Lawyer in plaintiff’s personal injury.  Mr. Levy has been selected as Super Lawyer for over 10 straight years.mlt3

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A Dream Comes True

lillian-bitner-resizedFarrell A. Levy and Carolyn Levy Gilliam served as dream captains for a Dream Connection child, Lilly.  She wanted to see the singing group, Pentatonix, in Atlanta.  Not only did she get to see the group perform, but she got to meet them and spent about 15 minutes talking with them.  To add icing to the cake, she arrived at the concert in a limo where she was taken through a balloon entrance constructed especially for her.  She and her family have spent the last few days in Atlanta seeing sights and having fun.  Thanks to all that helped make this dream come true and hats off to Pentatonix.

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