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December 11, 2019

Understanding Easements

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Easements are "nonpossessory" property interests that give holders rights to use land owned by someone else. But what exactly does that mean? Easements can pose a variety of legal issues, so it is important to understand them thoroughly.

It's easier to understand broad concepts when we have concrete examples, so let's take a look at a few examples of easements.

  • A landowner might grant a rail company the use of their property to lay railroad tracks.

  • A landowner might grant a neighbor the use of a private path or road that cuts through their property so that the person can get somewhere "landlocked" (closed in by land owned by other people).

  • A landowner might grant their city or county the use of their land to run electrical wires.

When created legally, easements become a part of the property. That means that if a buyer purchases property where the previous owner created an easement that allowed a neighboring landowner to use a private path through the land, then the purchaser would also have to allow this easement.

How are easements created?

There are a few different ways easements can be created, and the one that is appropriate depends on the type of easement.

Express easements: These easements are created with a written agreement, which has to be signed by the landowner and the party who will use the easement. This is recorded with the property deeds for both parties.

Prescriptive easements: If someone who is not the landowner has been using the property in a particular way for an extended period of time, a prescriptive easement can be created. This is only possible if the use has been openly (not secretly) done for a continuous period of time. In Oklahoma, the prescriptive period is 15 years.

Do easements expire after a set period of time?

No. Easements are valid indefinitely after their creation. However, you can take measures to end an easement. The two parties can make a written agreement if they both agree to terminate the easement. The easement also ends if the owner of the land that is being used acquires the land previously owned by the person, generally a neighbor, who used the easement. This is called a "merger." Easement holders can abandon their rights -- this is an affirmative action and not using the easement is not the same as legally abandoning it.

How can I learn more about easements or get help with a legal issue related to an easement?

The creation, interpretation, and implementation of easements can easily lead to legal disputes. To better understand their scope and how they impact you and your property, it is necessary to partner with an experienced real estate attorney. At Pence Law Firm, P.C. we have the knowledge and experience to help you with all of your real estate legal needs. Give us a call at (918) 367-8505 to learn more.

November 20, 2019

3 Common Partnership Disputes (And How to Handle Them)

Have you and your business partner been disagreeing? Even though you share your goals of growing and maintaining a successful, profitable business, it's understandable if you don't always see eye to eye on the best way of achieving that.

Partnership disputes in businesses tend to fall into three major categories. Read on to find out what they are and the best methods for solving and preventing each type of dispute.

1. Disagreements about money

How much should you pay your employees? If you're selling a product or a service, what should your price point be? Should you prioritize high quality or low production costs? What if your partner embezzles money from the company or accuses you of doing so? Can you cut corners on any of your expenses? How should profits be distributed among shareholders?

These are all issues that could come up between you and your business partner. You can handle these types of issues by making sure you have clear roles. Delineate who is in charge of making financial decisions. Try to make a plan for how disagreements will be resolved before the issues come up. If your partner is stealing from your company, speak to a lawyer right away.

2. Disagreements about operations

Maybe you and your partner don't agree on how day to day operations of the company need to be structured. Again, having clear boundaries regarding roles can help prevent this from happening. But if it does, you may need to bring in a third party, such as your investors, to help with decision making.

3. Disagreements about intellectual property

What if your business hinges on an invention created by your partner, but they want to leave the company and stop letting you use their intellectual property. Is this intellectual property considered their personal property or company property? You will need to consult your documentation and licensing to be sure about who owns what. If problems still exist once this information has been uncovered, it's best to consult a business litigation attorney.

At Pence Law Firm, P.C., we have extensive experience navigating complicated business partnership disputes of all types. Our goal is to help our clients obtain practical and constructive outcomes, whether it's through peaceful negotiation or litigation in court. If you need help with your business partnership, give us a call at (918) 367-8505.

October 20, 2019

Estate Planning Basics: The Guardianship

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If you are a caregiver to a child, an aging parent, or someone else, one question likely hangs heavy in your mind: Who will take care of my loved one when I am gone?

For many, providing for the care of a loved one is the most critical part of an estate plan. Designating a guardian in your Will ensures that you have a say in the matter, and their caregiver will not be chosen arbitrarily by courts when you can no longer decide.

Guardianships for Children

There are many factors that you should consider when choosing a guardian for your child or children. While unique factors play into every situation, these are a few considerations that everyone should keep in mind:

  • Values: From religious beliefs to education to politics, you'll likely want to choose someone whose values are similar to yours. The environment your child is raised in will have an enormous impact on the type of adult they grow up to be.

  • Age: Many people want to name their own parents as their children's guardian. And sometimes this works out wonderfully! But it's also important to consider age. Will they have the energy to care for your children? Will they lose out on their chance to enjoy retirement and an empty nest? Will they become elderly and need to depend on your child before your child is ready to stop depending on them?

  • Location: Your sister may be the perfect candidate, but if she lives on the other side of the country, you'll need to consider the impact that relocation will have on your children? Will they have to leave their school and their friends?

  • Stability: Generally, we try not to pry into other people's relationships, but it's important to be certain that the environment will be stable for your child. If the couple you plan to name as guardians is having marital issues and on the brink of divorce, it's best to rethink.

Adult Guardianships

If you care for an adult who is legally incapable of making decisions and caring for him or herself, you can also establish an adult guardianship. Many of the same considerations that you would make when choosing a guardian for a child should be taken into account. You should choose someone who already has a strong relationship with the adult in question.

How do I get started?

You should certainly ask permission from the person before naming them as a guardian in your will. Make sure they are ready and willing to take on this responsibility should the need arise.

When you are ready to proceed, you should contact an estate planning attorney. The lawyers at Pence Law Firm, P.C. have experience helping Oklahoma clients with these issues. Call us at (918) 367-8505 to learn more about how we can help you with your estate planning needs.

September 20, 2019

Oklahoma Probate Explained

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The state of Oklahoma has a legal process in place for determining what happens to a deceased person's assets. Like elsewhere, in Oklahoma this process is referred to as probate. Different states handle probate in different ways, and today's blog post is about how it's handled in Oklahoma.

What is the purpose of probate?

The purpose of probate is to assess the value of the deceased's assets, repay their creditors, pay their taxes, and distribute what remains to their heirs (or anyone else they may have mentioned in their Will). District court supervises while this process is carried out.

Can probate be avoided?

If an estate is small enough -- personal property (not including real estate) valued at less than $25,000 -- the deceased's successors can use a Small Estates Affidavit to bypass probate.

Estate planning can also help avoid probate. Certain types of property are classified as non-probate, and therefore not required to pass through probate. Many people choose to own as much of their property as possible within this classification as opposed to the probate property classification. Some examples of non-probate property include trusts, pay on death (POD) and transfer on death (TOD) accounts, and retirement accounts. Joint bank accounts are also non-probate.

How is probate property distributed if there is no Will?

If the deceased person had a Will, their probate property will be distributed according to their wishes as stated in the Will. If not, it will be distributed in accordance with the Oklahoma laws of descent and distribution.

  • If the deceased leaves behind a spouse and children, their spouse will receive 50% of their assets, and the other half will be distributed evenly among the children.

  • If the deceased does not leave behind a spouse, but does leave behind children, the assets will be split evenly among the children.

  • If the deceased leaves behind grandchildren but no children, the grandchildren will receive the percentage their parents would have received. This gets a bit complicated. If you had two daughters, both deceased, and one of them gave birth to one child and the other to two, the grandchild who is an only child would receive 50% of your assets while the other two would each receive 25%.

  • If the deceased had no descendants, their assets go to their parents.

  • If the deceased had no descendants and was predeceased by their parents, their siblings (and the children of any deceased siblings) will share their assets.

Are you and your family navigating probate after the death of a loved one? Or maybe you want to start an estate plan to help your loved ones avoid the time and expense of probate after your death? In either situation, you need an experienced attorney by your side. At Pence Law Firm, P.C., we have the knowledge and skills to help you. We offer a free 30 minute phone consultation for new clients. Call us today at (918) 367-8505 to find out what we can do for you!

August 20, 2019

Find a Defect the Seller Failed to Disclose on Your New Home? You Have Rights!

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You find your dream home, live through the stress of closing, and get your keys. Then, once you move in, you find a significant problem with your new home. Disco vering a defect that the previous homeowner had to have known about can leave you feeling like a victim. Luckily, you're very well protected. Here's what you can do.

What to Do After You've Found a Defect

After you've found a defect in your home, you are eligible to sue both the previous homeowner and their realtor. Both parties may be legally responsible for disclosing any known issues. However, they must also have the home so thoroughly inspected by professionals before sale that any hidden or potential issues will be revealed. The failure to have the home inspected for future problems could show negligence on the part of the realtor.

What Your Home Inspection Should Reveal

A thorough home inspection will check for:

  • Structural weakness,

  • Wiring and electrical problems,
  • Plumbing issues and pipe leaks,

  • Permit or code violations,

  • Roof condition,

  • Septic tank function (if applicable), and

  • Shoddy construction.

If there is a defect from one of these areas, it should have been discovered and disclosed before the sale of your home. Failure to reveal this pertinent information could result in the previous owner paying for any necessary repairs.

If Your Home Defect Isn't Structural

Homes can have other damage besides structural issues. Often, properties that are classified as "stigmatized properties" include areas that are known as haunted or locations of murders or other traumatic events. Depending on state laws, your realtor and previous homeowner may be legally obligated to reveal this information. However, in 21 states (including Oklahoma), you may be able to take your case to court and have your contract rescinded.

Did You Find a Defect After You Closed on Your House?

If you found a defect after you closed on your house, you may not be responsible for the repair. You could sue the previous owner (and even possibly their real estate agent) to recover the amount of money to fix your home's issue.

At Pence Law Firm, our experienced real estate attorneys are available to answer your questions and advise you how to proceed. We are happy to give you the information you need to make the best decisions regarding your new home. Give us a call today at (918) 367-8505 or contact us online to discuss your situation.

July 20, 2019

4 Reasons a Will Might Be Contested

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When you create your Last Will and Testament, you want to create a legal document that explains exactly how you would like your property, assets, and other important items divided when you pass away. In theory, this one document should be a sufficient way of letting everyone know what you want to happen, and it should stand unchallenged. However, there are times when people disagree with what is written in the Will. Here are four reasons a Will might be contested.

1. You didn't update your Will after a major life event

Sometimes, Wills are set aside and forgotten once they've been completed. However, if your Will fails to account for major life events like marriage, children, or a divorce; it's likely your Will might be contested. Honestly, you would want this to happen. Most likely, you didn't mean to exclude your spouse or children. You also probably wouldn't mean to leave everything to a former spouse. Still, if you don't update your Will periodically, this will be the official message you're sending when you pass away.

2. There are multiple Wills

When you update your Will, there are a couple different things you could do. First, you could create a legal document that contains amendments to your already-existing Will. Second, you could create an entirely new Will. If there are multiple copies of a Will in existence, the court will normally use the most currently dated Will. However, if there are any errors (such as misspellings of names) that make the Will invalid, the previous version of the Will must be used. For this reason, it's a good idea to destroy any Wills that no longer reflect your wishes.

3. Invalid Distributions

Another invalid aspect of Wills is that items are distributed that are not legally allowed to be distributed. For example, let's say a person passes away and wants to leave the home to their child. This may not be allowed if the surviving spouse is still living in the home.

By including invalid distributions of possessions and misspellings in your Will, you run the risk that part or all of your Will would be challenged or deemed invalid. This would mean all your time and money spent creating the Will would be wasted.

4. There are questions about whether you were in your right mind when the Will was created

If you wait until you are seriously ill or just about to die to create your Will, it could be contested because people could claim you were not in your right mind. For this reason, it's a good idea to create your Will while you're still relatively young.

Do You Want to Create a Will that No One Will Contest?

The last thing you want to do is spend time and money creating a Will that no one will enforce when you're deceased. In order to ensure your Will is valid and to reduce the likelihood of someone contesting it, it's best to meet with a qualified attorney to create this important legal document. At Pence Law Firm, P.C., we can help you create an enforceable Will. Call our office today at (918) 367-8505 or contact us online to learn how we can help.

June 20, 2019

3 Common Title Conflicts and How They Can Be Resolved

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After you find your dream home or property, there are still plenty of important tasks to do. One of the most important things that will happen between your accepted offer and closing is a title search, which could reveal some previously unknown issues with your potential new home. Here are three common title conflicts and how you can resolve them.

1. Unknown liens

Although the sellers should be aware of and disclose any liens against their property, it doesn't necessarily mean that they will. It's not odd for a title search to reveal unknown liens. What this means is that at some point in time the owner borrowed money and used the property as collateral.

The bank now has a note that they are entitled to the property if the borrower fails to repay the loan. Even if the property has been sold to you, the bank is still entitled to repayment. This means if you don't handle this issue before closing, the bank will want you to repay the loan.

If your title search reveals an unknown lien on the property, you can attempt to resolve the issue with the property seller through mediation with the realtors. However, if no resolution is reached, you can contact a lawyer.

2. Illegal action

Whether there has been forgery, false impersonation, or another illegal action, it's not uncommon for some sort of illegal activity to be discovered during the title search. When illegal action is uncovered, it can impact ownership even for the present owner. For example, if the previous owner was of unsound mind and sold the property to the current owners, it's possible that family members of the previous owner might be unaware of or opposed to the sale. Because it's illegal for someone of unsound mind to make such legal transactions, neither you nor the current owners would actually be able to legally own the property.

Some situations of illegal action can be quite confusing, so it's best to contact a lawyer if you are notified of this infringement on your title. A qualified lawyer can help you decide how you want to proceed.

3. Easements and boundary disputes

One of the benefits of a title search is having the title company research the legal description of your property. This process can tell you the exact measurements of your lot, as well as if there are any easements or recorded boundary issues.

Easements are tracts of your lot that may be used by certain entities without your consent. For example, it's not uncommon for lots to have utility easements. These easements give utility crews the space to make necessary repairs to keep your services running. However, they do not need to ask your permission to enter your lot and they have the right to drive service trucks or dig wherever necessary within the easement. You definitely want to know about any easements before landscaping or building on your lot.

When handling either easement or boundary disputes, you should consult with your lawyer. Some easements that are not currently used might be able to be legally removed from your property. Similarly, disagreements about the boundaries of the lot can normally be settled with help from a lawyer.

Do You Have Questions About Your Title Search?

Sometimes, title searches can reveal interesting results. If your title search has discovered some potentially troubling information, contact Pence Law Firm, P.C. Our experienced lawyers can help you handle your real estate dispute. Call our office today at (918) 367-8505 or contact us online to learn how we can help.

May 20, 2019

Understanding the Role of Executor

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When you are creating your Last Will and Testament, one of the biggest decisions you will face is naming an executor. In order to decide who would best fill this role, it's important to fully understand the role of executor. Keep reading to find out what an executor does for a Will in Oklahoma.

What Does an Executor Do?

Essentially, the executor is the guardian of your estate after you pass away. This person is responsible for paying any taxes or outstanding debts you may have. Then, when those debts are paid, the executor divides the remainder of your assets according to your wishes in your Will.

When choosing an executor, it's important to choose someone who you trust. The person doesn't necessarily have to be good with finances and managing money. Instead, it's more important that he or she is honest and trustworthy.

Can Anyone Be an Executor?

There are rules that govern who can and who can't be an executor in Oklahoma. Each state has its own rules so, if you're not in Oklahoma, make sure to research the guidelines from your state. In order to be an executor in Oklahoma, you must be over 18-years-old and of sound mind. This means that the executor must not have been judged incapacitated or incompetent by a court. Also, the state of Oklahoma prohibits any executors who have been convicted of a felony.

Can My Executor Be Out-of-State?

Yes, you may absolutely have an out-of-state executor. However, this is not a very practical idea for two main reasons. First, your executor is responsible for paying your bills and handling your post-mortem finances. This can be quite an undertaking that could last for several months. A distant location makes it harder for your executor to stay on top of paying your debts.

Second, the state of Oklahoma imposes some extra rules on out-of-state executors. For example, if you choose to have an out-of-state executor and you are deceased, your executor will have to name a local agent--someone who resides within the county of your estate--to act on his or her behalf. This local person will handle any paperwork regarding your estate on behalf of your non-resident executor.

Do You Need Help Creating a Will?

If you are thinking about creating a Last Will and Testament, Pence Law Firm, PC can help. Our knowledgeable experts can answer any questions you may have about naming an executor or creating your Oklahoma Will. Give us a call today at 918) 367-8505 or contact us online to learn how we can help.

April 20, 2019

Served with a Lawsuit? Take These 6 Steps Immediately

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When your business is faced with a lawsuit, it can be very emotional. You might feel anxiety, fear, or even start to panic. However, it's important to stay calm. Yours is not the first business to get sued, and it won't be the last. Lawsuits happen, so just take a deep breath and follow these six steps.

1. Contact your business lawyer.

Hopefully, you had help from a business lawyer when you created your business. If you didn't, you should search for a business lawyer right now. A lawyer who specializes in business will be the best-equipped to handle any of your business's legal issues (such as a lawsuit). Once you have chosen a lawyer, schedule an appointment for a meeting to review your lawsuit.

2. Do not communicate with the plaintiff.

Although it might be tempting to contact the person or people who are suing you, you should absolutely not have contact with them under any circumstances. Do not call, email, or text the plaintiff. Even if that individual reaches out and sends a message to you, do not reply. At this point, you can bet that anything you say to that person will be part of the lawsuit, so it's best to just cease communication.

3. Carefully read your lawsuit.

After you call your lawyer to schedule an appointment for a consultation, take time to carefully and clearly read the lawsuit papers. Find out exactly what you're being accused of. You might find it helpful to jot down counter-points on a notepad as you read, but make sure to thoroughly read your lawsuit.

4. Gather your evidence.

Once you completely understand the charges against your business, you can get an idea of how you want to reply. If you would like to dispute the charges, start searching for any papers or emails that might serve as a defense. Bring these when you meet with your lawyer.

5. Meet with your lawyer.

When you meet with your lawyer, you will review the lawsuit. You will also want to show your lawyer any papers or emails that might be helpful for your defense. Be completely honest with your lawyer about what has happened, and he or she can help you decide how to proceed with your case.

6. Inform your insurance company that you have been sued.

It's likely that your business has insurance for in case you get sued. Find out the best way to notify the company and do so. Even though it's still early in the process of the lawsuit, it's courteous to give your insurance company an early warning.

Has your business been sued?

If your business is facing a lawsuit and you're in need of a qualified business lawyer, contact Pence Law Firm, P.C. Our experts can help you understand your lawsuit and decide how to proceed. To learn how we can help, give us a call today at (918) 367-8505 or contact us online.

March 20, 2019

Own Firearms? Here's What Happens to Them If You Die Without Creating a Gun Trust

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There are many advantages for you today, and for your loved ones when you're gone, if you have a good estate plan in place. For gun owners, one of the most important steps in estate planning is creating a gun trust that will "hold" your guns for you today and for your heirs in the future. Having this type of trust can provide you with a variety of benefits, but it can also offer your loved ones some important protections when you pass away. Without a gun trust in place, some or all of the following things could occur.

Gun Ownership Becomes Public

When you die, most belongings that are not in a legal trust will need to go through the probate court in order to be passed on to your heirs. The probate process is a matter of public record, so if a gun passes on to a relative, everyone will have the ability to know this. For many people, this is a serious violation of their privacy and should be avoided if possible.

Loved Ones Inadvertently Violate the Law

If a gun passes to a loved one upon death, they may actually be breaking the law without even realizing it. If your heir lives in an area where gun ownership is restricted, for example, this type of inheritance could cause problems. If you have an heir that is prohibited from owning guns due to prior legal issues, this too could cause serious issues. Having your firearms in a gun trust, however, will ensure your heirs do not become the legal owners of these guns so they aren't breaking any laws.

No Need for Fingerprints or Photos

When an individual buys a firearm, they typically need to have their fingerprints and photo taken to be run through the FBI's criminal database. If you have your loved ones listed as owners or authorized users of the gun trust, this process won't be necessary.

Create a Gun Trust Today

While there are other options such as using an LLC or a revocable trust to protect your guns, none of them were designed specifically with this task in mind. Using a gun trust is the ideal option for protecting yourself, your firearms, and your loved ones from any problems associated with passing your firearms on to your loved ones. Contact the Pence Law Firm, P.C. to discuss your options, and begin a gun trust for you right away.

Oklahoma Estate Planning: Wills vs. Trusts

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When starting the process of estate planning, all the options and choices can be overwhelming. For most people, understanding the difference between a Will and a Trust is one of the first obstacles to overcome. This post will explain the differences and help you understand how each one can be used in your estate plan.

What is a Will?

A Will is a legal document that is used to identify your final wishes for your estate. It is by far the most common type of estate planning device, and virtually every adult should have one in place regardless of the size of their estate. A Will goes into effect only after you have died, so it will have no impact on your day to day life or how your estate is managed until your death. If you only have a Will in place, and no other estate planning tools, your entire estate will typically have to go through the probate process. This is where the court gathers your estate, evaluates its value, settles all debts, and distributes your assets according to your wishes listed in your Will.

What are Trusts?

A legal Trust is a type of estate planning tool that allows you to plan out what you want to happen with your estate now and after you have passed away. There are many different types of Trusts available, each designed to accomplish specific goals. Unlike Wills, a Trust can go into effect while you are still living. Another thing that sets Trusts apart from Wills is that they typically won't have to go through the probate process, which will save your loved ones a lot of time and money when the time comes.

One of the most important things for using Trusts is choosing the right type. When going through the estate planning process, you and your attorney will pick which types of Trusts are needed to accomplish your goals. You can have multiple different Trusts, or just one, depending on your needs. Some of the most common types of Trusts are:

  • Revocable Trusts - A revocable Trust can be changed or even revoked as long as you are still living. This gives you a lot of flexibility, and is often used by people who likely still have quite a few years of life ahead of them.
  • Irrevocable Trusts - This type of Trust can not be modified or revoked after it is in place. While this does limit your options, it comes with certain legal and tax benefits that make it a great option for many situations.
  • Charitable Trust - Placing assets into a charitable Trust will allow you to give money or other assets to your favorite charity after you die. You can set up the Trust to ensure the charity uses the money in very specific ways, which can help to ensure your money is used in the best way possible.
  • Special Needs Trust - If you have a loved one with special needs, you can set up a Trust that will provide them with the assets needed for their care long after you are gone. You can specify how the money is to be used as well so you know it will be there for your loved one when it is needed.

Working with an Estate Planning Attorney

An estate planning attorney will work with you to identify your specific needs, and tailor your estate plan to meet them. When done properly, an estate plan will include both a Will and Trusts, all set up in such a way as to ensure the assets you have worked for your entire life will be there when you need them and will then be distributed according to your wishes. Please contact us to discuss your estate planning needs in greater detail.


Feb. 4, 2019

4 Ways You can Handle a Business Dispute

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Running a business comes with a lot of hard work, but also some great rewards. If you operate a  business long enough, however, it will also come with some type of dispute. This could be a dispute between you and another company, you and a customer, or even you and your business partner(s). If handled incorrectly, conflict in business can cause huge problems, cost lots of money, and if serious enough, even result in the closing of the business. Knowing how to handle a business dispute ahead of time will help ensure the conflict is resolved quickly and without any further issues.

Sit Down and Talk

Most conflicts can be resolved by getting the impacted parties together in one room and talking it out. To the greatest extent possible, leave emotions out of the discussion. Don't look at who is right and who is wrong, but rather, look for what is in the best interest of your business. When people are in the same room and focused on finding solutions, it is often possible to work things out more easily than through email or on the phone.

Use a Mediator

If the issue is one that can't be resolved by just talking it out, consider bringing a mediator or arbitrator in to help. These are professionals who will act as a neutral third party. Their goal will be to help facilitate a resolution that everyone is happy with, even if nobody gets 100% of what they wanted. Depending on the situation, you can even give the mediator the legal authority to settle a dispute so you are sure that the conflict will be resolved.

Go to Court

If all else fails and the other party is being completely unreasonable, you can take disputes to court. Just keep in mind, even if you win your case in court, you'll often end up spending a lot of time and money, which might not even be worth it in the end. Additionally, going to court can cause harm to your business reputation, which can have long term impacts. While it is sometimes necessary to bring a dispute to court, it should really be the last resort.

Talk to an Attorney

As soon as you know that there is a serious dispute that you need to address, it is a good idea to discuss the situation with an attorney. They can help you decide what your best options are for resolution and provide clear legal advice on how strong your position is. A good business attorney is invaluable regardless of which method you choose to resolve your business dispute. Please contact us to schedule a consultation so we can discuss your specific situation.