Interesting Trend in Dining for 2011

I’ve been reading up on the expected trends in food and drink for 2011, and one thing keeps coming up – gluten free.  I usually don’t write about myself here, and won’t do so much, but I have celiac disease, which means my body has a negative, unhealthy, auto-immune response to glutens, and the antibodies my body produces when gluten is in my system will damage my small intestine, causing a lot of different and varied health problems.  That’s the simple story of what celiac disease is and does. 

What is gluten?  It is the protein found in wheat, barley, and rye, and all of their derivatives, like white cake flour, or beer, or maltodextrin.  Celiacs need to avoid all gluten.  No bread, pasta, fried foods, most desserts, beer, and then all the things where there is a small amount of flour used as a thickener, like a whole lot of soups.  Which makes healthy eating out a challenge for celiacs, those with gluten intolerance, and those who are going  gluten free for dieting trend reasons.

So I was very pleasantly surprised to see in numerous places that one of the top twenty trends in the food end of the hospitality industry for 2011 is a movement towards providing gluten-free options for customers.  This is such a welcome change and movement.  I almost always shy away from mentioning particular establishments, but this time I will.  Just in the last several months, some large sandwich chains have started offering gluten-free breads or buns – Jason’s Deli and Subway (at least right now in the Dallas and Tyler areas of Texas, Subway is testing a gluten-free bun).  In the Dallas area, I know of several restaurants that are either completely gluten-free or offer gluten-free options – Kozy Kitchen (one of the chef/owners is a celiac sufferer), Laura’s in Plano (no gluten), and Penne Pomodoro (a gluten-free pasta option), and even Fireside Pies (they have a rice-based, gluten-free pizza crust). 

Of course, there are still the items that are naturally gluten-free, like all meats, seafood, vegetables, and fruits, but diners have to be aware of what is added to their foods via sauces, marinades, spice mixes, thickeners, etc.  For example, normal soy sauce has fermented wheat in it, so most sauces in Asian (and sushi) restaurants are off limits.  There are good soy sauces that are gluten-free, but you have to look for them, and I’ve yet to find one in a restaurant.  And don’t forget about cross-contamination: a piece of gluten-free bread that is toasted in an oven or toaster that is used with regular bread will become contaminated with the crumbs from the regular bread, and will no longer be a healthy gluten-free option.  Ditto for pizza crusts cooked in pizza ovens where regular, wheat-containing pizza crusts are cooked. 

Anyway, I was pleasantly surprised to read about this trend, and I hope that the food service industry does more than just pay lip service to this serious health issue suffered by an estimated 1 to 5% of the US population.  There are plenty of us who love eating out, and will spend our hard earned dollars at establishments that seriously cater to our very real health concerns.

Do you have experience with gluten-free substitutes for items in restaurants?  Let me know what you think!

- Elizabeth

Howdy Folks! It’s Election Season Again, and Wet/Dry Issues are on the Ballots

“Howdy Folks!”  Who doesn’t love hearing Big Tex say that at the State Fair of Texas?  Well, this season’s State Fair has ended after its most financially successful year ever, and we’re already in the midst of election season.  The State Fair can give thanks for their success, in part, to alcohol sales, which is a big issue in Dallas this year, as well as for some other counties and cities in Texas.  If you are out and about, you’ve probably heard about the “Wet/Dry” Issue.  I’m about to give you a simplified “what this means” version of the two Propositions. 

For City of Dallas voters, you will be faced with two Propositions dealing with the sale of beer, wine, and liquor.  For each, you can vote “For” or “Against.”  The first, Proposition 1 is worded this way:  “The legal sale of beer and wine for off-premise consumption only.”  A vote “For” allows all businesses with appropriate Texas Alcohol and Beverage Commission (TABC) licensing, permitting, and certification to sell wine and beer for off-premise consumption, which means an individual cannot consume the beverage on the premises.  This is most familiar to most of us as sales of wine and beer in grocery stores.  As most of us know, our strange, patchwork, inconsistent laws and ordinances already allow beer and wine sales in grocery stores in SOME areas, but not in others.  If Proposition 1 passes, it will make it legal for all Dallas business with proper licensing and permitting to sell beer and wine.  This makes sense – as it is now, depending on the location within Dallas of the store, they may or may not be able to sell wine and beer, which affects sales, not only of beer and wine, but also of other items such as groceries.  Many of us shop in grocery stores where beer and wine are available, and choose not to frequent the locations where sales are prohibited, regardless of whether we are planning to purchase beer or wine while we are there.  It also affects where businesses choose to locate.  For example, there is not a Central Market or Whole Foods Market in areas where they cannot sell beer and wine, mainly because those sales are a significant portion of their revenues.  This would level the playing field for all the businesses, bring more choice to consumers and businesses, and make it more convenient for consumers.  And for those who don’t drink or buy beer and alcohol, nothing has changed – they can still get every item they wanted before and choose not to buy beer and wine. 

The second, Proposition 2 is worded this way:  “The legal sale of mixed beverages in restaurants by food and beverage certificate holders only.”  A vote “For” means the abolition of the silly private club membership requirements.  You are most likely familiar with the membership rules when you go in a restaurant, order a glass of wine, beer, or a margarita, and are asked for your driver’s license, and asked to sign a piece of paper showing your membership in that location’s private club.  Remember the old UNICARD?  That was the same type of concept that arose out of the same laws and ordinances that Proposition 2, if passed, would do away with.  This benefits businesses and consumers.  The businesses can already sell the drinks, but they now have to devote extra time for their servers and bartenders to get the drivers licenses, scan them, get signatures, and maintain records of the people now in their “private clubs.”  And they have to do this each time you are in their establishment and order a drink.  From a consumer standpoint, did you know that each time you order a drink and are put in the private club records, there is now a permanent record of what you purchased?  Yep, big brother at work in our government, again.  The old laws provide for this “oversight” of who is purchasing what.  If Proposition 2 passes, then servers and bartenders would be relieved of the multistep process required by the silly private club membership rules, businesses would be relieved of the hassle, manpower, and storage requirements of maintaining the private club membership records, and consumers’ beer, wine, and alcohol purchases would no longer be tracked by big brother in the areas where laws and ordinances still force the private club memberships for alcohol sales.  And again, if you are one of the people who makes the choice not to imbibe, nothing has changed for you.       

I know there will be those, some of them driven by religious beliefs, that will disagree with my views on and very general overview of these issues.  You are entitled to your beliefs and can choose whether and what you drink.  Religion should have no place in our state, county, or city governments.  We’re now in 2010.  It is high time that we vote to make Dallas a level playing field and do away with the arcane, unnecessary liquor, wine, and beer sales laws and ordinances that needlessly cause extra work and issues for businesses and consumers in this city.  Vote “For” Propositions 1 and 2 in Dallas. 

For a more detailed, legal and social history perspective on these Propositions, see Advocatemag.com for their recent article.

As always, if you want more information, have questions, like what you’ve read, or think I’m off my rocker, please feel free to leave a comment or contact me via the information on the other pages. 

- Beth

Update on Previous “World Cup Mania” Posting

So, I have some updates on the use of a FIFA logo without proper licensing to do so.  The FIFA folks found out about it, their attorneys mailed a “cease and desist” letter, and the Client and the International Company who did finally agree to print the cups with the unlicensed logo despite legal advice (on the part of International Company, and consistent with erroneous advice from Client’s legal counsel) are now looking at paying tens of thousands of dollars for the violation, and possibly doing some sort of “volunteer” work or charity function type stuff.  I don’t have all the details.

Suffice it to say that using anyone’s logo without permission or licensing rights will get you sued, or paying a lot of money prior to suit to settle the claims.  Plain and simple.  Seriously, FIRST consult with your legal counsel before you do anything like that!

- Beth

What does World Cup Mania Have to Do with Your Business?

World Cup Soccer (or football, for my international friends) only happens once every four years, and boy has it been a good time so far!  I’ve been enjoying multiple games with my friends, and have been dealing with the “early” play times.   Well, early for us in the USA, at least.  You know how we are – we can’t wait for a delayed broadcast of a game, we want and NEED to see it live, right?  Which means watching games that air here around dawn.

I have been talking with several clients and friends in the hospitality industry, and those who deal with the hospitality industry regularly for business, and I’ve been hearing some common themes, as well as some novel issues, arising from the World Cup cycle.  First, many pubs, bars, sports venues, etc., are opening at very early hours – times they would normally never be open.  Which means extra staff, extra hours, compliance with TABC (or whatever alcohol and beverage organization you deal with in your state) rules, extra food and beverage ordering, and . . . well, you get the picture.  Also, some places expected record crowds and wisely dealt with fire marshal/occupancy codes early on.  Finally, there is the secondary World Cup paraphenalia that your business can sell – like t-shirts, cups, mugs, etc. 

Why am I mentioning these things in a hospitality law blog? Well, there are laws and legal implications in every one of the things mentioned above.  If your employees will be working more than full-time hours, you have overtime laws with which to deal.  There are hiring laws and age considerations if you will be hiring people who will be serving alcoholic beverages to patrons.   Here in Texas, there are regulations related to how early you can serve alcohol containing beverages and whether it has to be served AFTER food is served.  Yep, things you never really needed to know when you run a pub that doesn’t normally open until 3:00 in the afternoon.  If you’re opening at 6:30 am, there are special considerations. 

Another issue that has been mentioned to me is the use of World Cup logos.  I would hope that you all know that the official FIFA World Cup logo is legally protected, like EVERY LOGO OUT THERE.  Which means that you cannot just put it on t-shirts, papers, menus, cups, whatever, without legal permission to do so.  “Licensing” is what we call it.  A friend, who will remain anonymous, told me about the following story:  Friend works for an International Company that sells beverages.  His “clients” tend to be businesses that are restaurants who have contracts with the company for which he works.  Many of those clients want to get in on the World Cup mania.  One particular Client wanted to print commemorative cups for patrons to take home, and wanted Friend’s International Company to pay for the printing of those cups.  So far, so good.  Until Client told Friend that he wanted International Company to print the cups with the FIFA World Cup logo, and the Client did not have licensing rights to use the logo.  Uh, oh.  Friend, wisely, told Client he couldn’t arrange for International Company to print the cups because there was no permission to use the logo, so Client and his business decided to do it themselves, after Client’s own legal counsel supposedly told them that there was no problem with using the logo without permission.  Oh boy!  I can hardly wait to see that lawsuit, and wonder what that attorney will be doing for work once he gets sued for malpractice.  It will certainly put Client out of business, all because Client wanted to use a logo without licensing rights, and attorney presumably didn’t want to anger his client.   Bad business decision.  Sometimes it is an attorney’s job to tell a client that what he is doing or wants to do is a legal problem, and will cost him dearly.

There are lots of legal considerations that go into planning for World Cup events, or other similar events.  Please don’t go it alone – consult your attorney or find an attorney to discuss these issues with.  It will be well worth the relatively small amount you will pay your legal counsel in comparison to the staggering liabilities that could arise if you act without proper knowledge and legal counsel.

Let me know what issues you’ve dealt with this World Cup season!

- Beth

Hiring Non-Citizens

Living here in Texas, we often hear about immigration, and the laws and changes that are occurring in the laws, especially the hot-button issues.  Arizona ring a bell, anyone?  As you know in the hospitality industry, especially you hotel folks, immigration is an issue for you, whether you are considering moving employees between or among international properties, or you are looking to hire people that might not be full-fledged citizens of the United States.  Immigration is a somewhat broad area of the law, and today I’m giving you a short listing of the types of visas about which you most need to know.

Do these designations sound familiar: J-1, H-3, L-1, TN and H-1B?  For some of you, I am sure they do.  The J-1 visa is for seasonal or temporary employment, known as the Summer Work/Travel Program.  It allows foreign secondary (college) students to work in the U.S. during a summer vacation, and is valid for four months.  I had discussions with a restaurant employee who was here last summer working via a J-1 visa, who traveled from Asia.  He was studying engineering.  What?  What does that have to do with a restaurant?  The answer is . . . NOTHING!  A J-1 visa allows students to do any type of work in roughly any company, even if the work or company is unrelated to the student’s area of study or degree plan.  This can be beneficial for hotel and restaurant operations, catering companies too, in high tourism areas, such as the Florida coast, when certain months of the year require higher numbers of employees to deal with the increased traveler traffic.  It also makes it easier, and legal, if you are a foreign student staying in a coastal town (for example) for a few months to get a job and earn some money to help pay for your travel expenses and lodging.      

Another classification of the J-1 visa is the Management Trainee.  It is valid for twelve to eighteen months and is generally considered relatively easy to obtain by my friends who practice only immigration law.  To qualify, the foreigner must possess a post-secondary degree or professional certificate and one year of work experience in their occupational field from outside of the U.S.   That means work experience here in the US does not count.  As an alternative, an applicant for the J-1 Management Trainee visa could have five years of work experience in the particular occupational field in place of the requirement of a post-secondary degree or professional certificate.

The H-3 visa is available to companies with an already established training program.  They can last up to two years.  It is similar to a J-1 visa, but it can last longer, the training sought cannot be available to the foreigner in his/her home country, and the training must benefit the person in pursuing a career outside the U.S.  The H-3 visa can be a valuable tool for international hotels seeking to train foreign employees in certain areas where training is simply not available in their own country.  That foreign employee can then return to their home country (or another country) and work for the hotel company having received the training he/she could only obtain here.  Worth considering for a good, long-term, hiring prospect from a foreign country.

There are also visa classifications that are catered to the more high-level, more highly educated employees, such as managerial employees, employees possessing specialized knowledge, and employees who provide professional services.  Those visas are the L-1 Intracompany Transfer, TN Hotel Manager and the H-1B Specialty Occupation classifications.  The L-1 classification is available for individuals who have been working with a company for more than one year outside the U.S. in an executive, managerial, or specialized knowledge capacity.  L-1 visas are usually valid for an initial period of three years, but can be extended up to a maximum of seven years for executives and managers, or a maximum of five years for specialized knowledge employees.

There is also the option of a TN Hotel Manager classification, although the TN classification is only available to citizens of the US and Mexico.  (It arose out of NAFTA, the North American Free Trade Agreement, thus the limitation to US and Mexico).  It is valid for three years and can be extended indefinitely.  To obtain a TN Hotel Manager visa, the person must have a bachelor’s degree in hotel/restaurant management or a post-secondary diploma or certificate in the same area and three years’ worth of experience in the particular field.  

Finally, there is the somewhat controversial and often mentioned H1-B visa, for specialty occupations.  Some of my clients have employees with H1-B visas.  The numbers are limited to 65,000 visas available to employers in the US per fiscal year (starting October 1), so advance planning is crucial.  My experience has always been that there are far more applications for the H1-B visas than are available.   To obtain an H1-B visa, the person must have at least a Bachelor’s Degree or the equivalent.  The visa is usually valid for three years, and one three-year extension is available. 

This is just a very simple glimpse at the landscape, as anyone who has dealt with these visas knows.  However, they can be valuable tools in dealing with employment issues and recruiting for those of you who have international businesses or who simply want to legally employ persons who are not US citizens.

If you have questions, please feel free to contract me!  If I can’t answer your question, I know people who can.

What does Metadata have to do with your Business? – Hint: a lot more than you think!

Meta . . what?  Chances are if you are not an IT professional, or you are not involved on a daily basis in litigation, you do not know what metadata is.  Well, I didn’t either, until a few years ago when electronic discovery (if you’re not an attorney and don’t know what that is, don’t worry – simply stated it is production during a law suit of electronically based documentation) became a big deal and the federal rules of civil procedure implemented rules regarding it.  So here it is in simple form (I’m an attorney, not an IT person, afterall . . .):  metadata is the electronic information that is contained in any document, email, program, text, etc. you create in a computer, Blackberry, etc.  It consists of information you might have “deleted.” 

So, if I send an email to you, and type “Hey, what are you doing later?” there will be electronic information that shows just that.  However, if I had typed “Hey hot pants, nice evening last night.  Glad your wife didn’t catch us.  What are you doing later?”  then thought better of it and “deleted” everything but what remained of the first email, then sent it, I would still be sending far more than just “Hey, what are you doing later?”  How??  Because metadata contains the ghost image of everything that was ever entered and/or deleted on that email.  Sometimes it is no big deal.  But other times, it’s a huge deal. 

Let’s say you have an employment contract with your restaurant manager, Bill.  Bill is extremely good looking, and when you were originally drafting the contract (based on an old form document you copied from some other contract you have used in the past) you jokingly typed in something to the effect that Bill’s job duties would be to provide some rather explicit and illegal services to you (personally) as well as to your best friends.  After a laugh (and maybe after sending it to your best friend as a joke too) the business person in you deletes the silliness and inserts the proper, professional language, and saves it in some program.  In the morning, you email Bill and attach the contract to the email for Bill’s review.  Bill signs it, and begins working for you.  So far so good. 

Time passes. . . sales are way down and you have to let some people go.  There have been a couple of complaints about Bill, but nothing meriting dismissal.  Still, Bill’s salary is high, so you decide to let him go per the terms of the contract.  The next thing you know, Bill is suing you for sexual harassment and discrimination.  WHAT???  How did that happen???

Well, sad to say, Bill didn’t take getting let go lightly, and has decided to sue you claiming that you made his continued employment contingent on a personal, sexual relationship with you.  It’s not true, not one bit of it, but nonetheless you are in court being sued.  Happens all the time, even when you’ve done nothing wrong. 

The attorneys start discovery, and ask for electronic discovery, including drafts of Bill’s contract.  You think nothing’s wrong.  BUT WAIT!!  Here’s where you’ll get tripped up – the computer records of the contract you drafted still have all that metadata (there’s that word), including the since deleted language involving the faux duties of Bill.  So when a copy of that harddrive is made, and an expert gets to that contract, that metadata will be there.  Uh oh.  The opposing side now has evidence that you were seeking sexual favors from Bill, even when you hired him.  Not that you really ever were, it was a joke.  But what will a jury think?  Probably that you fired Bill because he refused you sexual favors. 

This is an extreme example of metadata, but something you need to know about and be careful about in your business.  How does it affect you when you’re not in litigation?  Another simple example:  you have a draft contract you use with most of your vendors.  It has standard language, terms, and dollar amounts that you vary depending on the vendor.  You open the last copy of it you used, you make the changes, and save it as Agreement with Client 1.  You then email your vendor and attach the contract.  You put much more favorable terms (for you) in this version of the contract than you did with the last vendor.   Client 1 gets the email, opens the attachment, then for fun has his daughter (an IT wiz) go through it to see what metadata she can mine off of it.  (Mining data is the term used for finding the metadata.)  Low and behold, the daughter pulls up the old terms, tells her dad, and he now refuses to sign with you unless you match the terms you gave the last vendor.  Not a good thing for you.  

There are ways to avoid this.  For instance, when you use an old version of a document, change it and save it, DO NOT attach the saved document to an email.  The metadata is there.  Instead, print the document, then scan it and save it under another name.  The scanned document does not contain the electronic remnants of the metadata in the computer version of the document.  There are other ways to avoid sending metadata, but they are far more complicated for me to go into here.  Needless to say, you can contact me for more information.  I’m glad to help.  It’s part of what I do to protect you and your business.

So, there’s an extremely simple “primer” on metadata for those who are not IT pros.  It affects everyone of us, whether we know it or not. 

Be smart about your business!

-Elizabeth

Time to Travel

Well, here we are again – it is summertime in the United States, although officially summer doesn’t roll around until June 21st.  Someone forgot to mention that to the weather gods, because we’re already hitting temperatures near 100 degrees, and over 100 degrees if you consider the heat index values (at least in my part of the world).  So what are we to do?  Run our air conditioners constantly and look for ways to cool off.

My mind always turns to water and water-related activities this time of year.  Last summer and fall, I wrote about cryptosporidium and the problems it was causing in nearby water parks, both manmade and natural.  It seems many in the area have learned from experience and have insured that their facilities will remain crypto-free this summer.   Kudos to everyone for their efforts at keeping our fun water parks and pools safe! 

I also think of far-away water.  I recently visited Little Cayman on a scuba diving trip.  It was beautiful, and I would recommend it to anyone who likes to dive.   I’m not going to write an entry about my fabulous diving experiences and terrific friends, however.  Instead, I was thinking about some of the legal issues cropping up while I was there. 

First, when you arrive and before you even set foot on the dive boat with your dive masters, you have to sign a whole slew of waivers.  OK, I understand they want to protect themselves from liability, especially because some categorize scuba diving as an extreme and dangerous sport.  I read through the waivers, and immediately thought “They can’t enforce this, the indemnity clauses don’t comply with legal requirements, and this waiver is easily bustable.”  But wait a minute – I was not in Texas or even the United States.  I was is the British West Indies, where the laws and legal system are different.   

Second, I got an ear infection while I was there and visited the clinic (the people there were kind and very competent).  The doctor prescribed some antibiotics, sudafed, and an anti-inflammatory (in my case, ibuprofen), and instructed me to stay out of the water for two weeks.  Despite the fact that I was back in the water the next day (it was a diving trip, afterall!!) my ear healed well.  But one thing that surprised me was the medicine bottle containing the antibiotics – there was no label with my name or the doctor’s name on it.  Nothing identifying the correct dosage.  Only the name of the antibiotic was written on the label.  Could that be a legal prescription?  Certainly not here in the United States, but what about in the Caymans?

All of these questions fall under the realm of hospitality law, which is why I am raising them here.  Of course, they also fall under other areas of law, but that is what I find so compelling about the hospitality industry – it covers a huge range of topics and legal issues, which is professionally fascinating for me, and like it or not, relevant to almost everything you do when traveling.  So in future posts, I plan to address the two issues raised above, and to address other issues you might raise from your travels this summer. 

And just so you know, there were absolutely no problems on our dive boat, Holiday Diver II with Dottie and Neal as our dive masters.  Everyone had a splendid time and the waivers we all signed were never made relevant.   As a lawyer, though, I’m always thinking about what could or might happen and how the laws will affect it.  So stay tuned for posts addressing these and other summer travel issues!

In the meantime, stay cool and have safe travels!

- Elizabeth   

Organic Vegetable Garden at White House

Organic, sustainable foods are near and dear to my heart.  Usually, our government is not one of the most supportive or successful entities in the quest to better our food supply.  However, there is a new ray of hope (albeit a small one)!  Recently, ground was broken on the White House lawn for an organic vegetable garden.  While this is a small move, I find it interesting that the White House is publicly supporting something that we all need to return to.

With support of the Obamas still at a high level, and people copying them in everything from fashion to phraseology, I’m hoping that this new organic vegetable garden at the White House will spur people on to begin growing their own vgetables and herbs.  It is fairly easy – I do it myself.  I still shop at grocery stores and farmers’ markets for fruits and vegetables, but it is fun and easy to grow your food at home.  You can grow them in your yard, or if you don’t have a yard, some good pots in sunny places will do.   It is easier to start the plants with small versions that have already been sprouted and are available at garden centers and nurseries if the idea of starting your garden from seeds is intimidating.  I have been growing some plants (mostly herbs and some heirloom green beans) from seed and some plants (tomatoes, black berries, butter lettuce, and lemons) in replantings from a nursery.  It is easy and cheap – give it a try.  And think about this – you know exactly what chemicals have been put in and on your food.   You can’t say that about the food at grocery stores and in restaurants, unless you do a lot of research.

While this doesn’t necessarily seem like a legal issue related to the hospitality industry, the source, quality, and safety of our food is a huge issue for all of us, an issue that unfortunately involves a whole lot of regulation, many governmental entities, and legal issues galore.

Give it a try yourself!

Mediation – What Use is It?

On this Monday morning, I find myself answering a question from a client that has been repeated many times by many clients during my fourteen years of law practice – what, REALLY, is mediation and what is it good for?  

Mediation is an out of court process that is used in many jurisdictions around the United States to attempt to settle disputes and lawsuits.  In Texas, where I am, mediation is often ordered by the court before any trial will take place.  Some judges even refuse to hear certain motions (for instance,  motions for summary judgment) until after the parties have attended mediation.  (Although I disagree with that practice as an attorney, I understand that judges taking that stance are really trying to move their dockets along and “encourage” the parties to resolve their disputes outside of court).  Generally, our judges will appoint a mediator to hear the dispute, but will allow the parties to agree among themselves on a mediator to hear their dispute, and the court records will be changed to reflect the mediator chosen by the parties.  

So, what is mediation?  Mediation (similar, but not identical, to arbitration) is an out of court process where parties to a dispute (either a lawsuit, or a dispute that has not yet made it to the courthouse steps) schedule a time to meet with a neutral third-party who is trained and certified (according to your state’s requirements) to assist parties in resolving their disputes.  Mediators are sometimes (but not always) attorneys who have been trained to act as mediators, and who may also maintain their private legal practices (like me).  All mediators are trained and certified, regardless of their professional backgrounds.  Some mediators obtain specified training (such as mediators hearing family law disputes) that allows them to better assist in resolving particular types of disputes.  In the process, the parties usually meet in a conference room with the mediator in what is called a “joint session” here in Texas, and discuss what their dispute is about and their specific positions regarding the dispute.  Usually, then, the parties will move into separate rooms, and the mediator will go back and forth among the rooms with settlement offers and other information that can be shared with the other parties in an attempt to reach an agreement on how to resolve the dispute.  If a resolution is reached, the mediator will then prepare an agreement that the parties will sign reflecting the terms of the resolution.  In Texas, that signed agreement will become a binding legal instrument, and will be treated as a contract in the event that one or more parties to that agreement violate it.   If the dispute does not get resolved, the parties leave in no worse position than when they arrived.

Generally, that is mediation.  It is non-binding (in other words, the mediator will not make a decision on how to settle any given dispute, like a judge, jury, or arbitrator would do.  If the parties can’t reach agreement, the mediation ends and they go back to whatever process their dispute was proceeding under prior to the mediation).   Mediation is extremely useful in these times.  It can be used early on in the lifetime of a dispute to settle a matter that otherwise would not be resolved by the parties speaking with each other directly.  For instance,  perhaps you own a restaurant and your major food supplier has decided that because of the economy, the prices quoted to you and part of your contract with the supplier will have to be raised because the food supplier will go out of business if it doesn’t raise prices.  Unfortunately, this has been a common occurence in the past year with increased production and gas prices.  You and your food supplier now have a dispute.  The supplier is refusing to deliver the products, and you are refusing to pay a higher price than negotiated.  At this point, you can do nothing, find a new supplier (this afternoon!) and hope that your restaurant has enough food on hand that will stay fresh for the time period it takes to find a new supplier, reach an agreement, and get food delivered.  Or, you and the food supplier can call your respective attorneys (if you even have one, or you can start searching for one) and start talking about eventually filing a lawsuit, or at least threatening a lawsuit.  Or, you can agree to attend a mediation session with a trained mediator.  Most people are not aware that you do not need an attorney to engage in the mediation process.  Perhaps you can resolve your dispute without a lawsuit being filed.  It will save you and the food supplier money and perhaps save your relationship with your food supplier because you will not be fighting face to face and hurling insults (as the mediator will be to go between), and the mediator will likely be trained in recognizing and discussing the legal issues that affect your dispute (even issues that you do not recognize) in a manner that can guide both parties to an agreed upon resolution. 

Even if you find yourself in mediation after you are involved in the legal process (at this point, it will likely be court-ordered mediation), mediation can assist in resolving a dispute in ways that attorneys having settlement discussions will not be able to do.  The mediator is a neutral party who does not have an interest in how the dispute is resolved.  Your attorneys (as good as they are) do have an interest (yours) and often find it hard to encourage both you and your adversary and his/her attorney to think outside the box in resolving the dispute.  Your attorney will of course protect your interests in the mediation (that is what they are hired to do), but it is the mediator that has best chance of hearing all sides of the dispute and coming up with a reasonable solution that perhaps none of the parties would have thought of on their own.  I have seen this happen countless times while attending mediations with my clients. 

Even if mediation does not result in a resolution of your dispute, it can be a useful tool in getting the parties to better understand their own legal positions, and more importantly understand the weaknesses of their positions.   Most of my collegues refer to it as a “reality check.”  Both clients and their attorneys can benefit from such a reality check.  Often for the first time, a neutral person is looking at and weighing the merits of the dispute and attempting to find a resolution to which the parties can agree.  I have also personally been involved in mediations (as an attorney) that do not immediately result in settlement, but perhaps over the next week, the parties continue settlement discussions through their attorneys, and a resolution is reached shortly after mediation.  In this way, mediation can be a catalyst to better, more serious and realistic, settlement negotiations.

So there you have it – a little more information on mediation, how it works and what practical use it can provide both before and during a lawsuit.  For more information, please feel free to contact me. 

- Elizabeth

Announcement – New Office

I maintain my commitment to only discuss hospitality law related topics in this blog, and with that in mind, I would like to announce the launch of my new legal practice:  Ardanowski Legal Group.  There is information on the “about me” page if you are interested, and I can always be contacted through this blog.

Essentially, the practice is a general civil practice, but it has a large component that is focused on the hospitality industry, an industry under-represented in the legal community.  I continue to enjoy working with clients in hospitality related businesses, as well as clients from outside of the hospitality industry.

I will continue to post items of interest to the hospitality industry in the near future.  As always, if you need legal assistance, coaching, or representation, please contact me.

- Elizabeth