Archive for July, 2010


Alternative Dispute Resolution

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Is it worth it to have a mediation clause in a contract. Most if not all contracts these days have a clause that requires parties to mediate before going to trial. Is it worth having this clause considering how many parties file law suits. Yes it is worth it. 98% of all matters are usually settled. The mediation clause is designed to get the parties to talk so that the possibility of litigation can be avoided. Today in Arizona the average cost of going to trial is approximately $85,000.00 this is an average so some case are lower and some are higher. Mediation can save you thousands of dollars in legal fees. Mediation is usally done with a netural third party agreed upon by the parties themselves or their attorney’s. In a mediation the parties will each give concessions but in the long run can usually come up with an agreement that both parties can live with and perform their respective duties. When I clerked in the Hartford, Conn. court system a judge who handled required mediation had a saying that it is better to come up with an agreement between the parties then let 12 strangers decide what each party should get. So check your contracts see if their is a mediation clause. this can protect you if a prospective opponent wants to sue you then you can force them to mediate they must exhaust all methods of alternative dispute resolution listed in the contract before going to trial. In fact, in Arizona if the amount in controversy is worth less than $50,000.00 the courts will require you to attempt mediation or arbitration to resolve the matter. Because litigation is getting very expensive there are many companies that offer mediation services. The American Arbitration Association offers people who have experience in all fields. make sure when chosing a mediator they have a background in the field of your dispute. for example if it is construction make sure they have some construction knowledge, or if its business they should have basic knowledge of business techniques. If you have a dispute and you want to resolve it without going to litigation you can contact the Law Offices of Marc C. Paquette, PLLC to help with alternative dispute resolution.

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In today’s computer necessary world the laws dealing with acts or occurrences on the internet are on the rise. Therefore, there are some things an employer should do to ensure that they will not run a foul if an employee does something wrong and these tips can help an employer from doing something wrong.

The biggest concern is Employee email Polices and Privacy law.

Email is an immediate form of communication when compared to phone or hard copy letter. This is advantageous when things need to be communicated quickly but there are draw backs. Email can be easily stored, manipulated, and retrieved, even if you think you have erased it, some systems may have an automatic back up which creates a virtual footprint. If you are not sending items which could be offensive that is not a problem. however if you send an email out of anger, or send or receive a joke or photo that some may find vulgar you could have created a hostile work environment that could result in a law suit.

As an employer some of the things you should do are establish a policy concerning the use of the internet and the email system. It is not only important to establish this policy but it is equally important to make sure your clients understand it and agree to abide by it. Usually a signature page indicating they received it and understand is sufficient. The Policy should also make the employee aware that there is no expectation of privacy on their behalf with regard to use of the workspace computers and that all emails and visited sites are subject to review by the employer. The Policy should require employees follow company guidelines with respect to passwords, virus protection and downloading things to the company data base.

Polices should be established identifying email retention how long emails should be retained and at what point should it be purged. If it is relevant or important data it should be converted to the hard drive or a hard copy should be created. This is important because of discovery issues in litigation. If a company has a policy to purge email and other useless items on a regular basis, if there is litigation in the future and information was destroyed pursuant to that policy then the courts will not hold the company liable for discovery sanctions if there is no date to be had.

Employers should also create a content policy indicating that sending racist, sexist or otherwise harassing materials will not be permitted as it could create a hostile work environment. Email discovery is on the rise a good rule of thumb is “if you would not want your mother to read it, don’t write it or send it via email.

Under the Communications Decency Act of 1996, sending an email that is intended to annoy, harass, abuse or threaten another person can subject the sender to criminal penalties.

If you have employees and they are allowed to use the internet and email and you do not have an email/internet policy then contact Marc Paquette using or telephone 480-993-6650

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Playing in the social media Sandbox

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Social media has been defined as media for social interaction, using accessible and scalable publishing techniques through the use of web-based technologies such as interent forums (such as twitter, facebook, plaxo, linkedin, APRONING), blogs (to include weblogs, social blogs, microblogging,) podcasts, pictures video, rating and social bookmarking.

All businesses who employ someone should have a Social Media Policy In place. If you do not you could risk potential lawsuits in copyright or trademark infringement. you risk disclosure of potenitally protected materials which could be trade secrets. Nore importantly you could be giving up your right to capitalize on your name likeness or image.

Establishing a policy. If you as an employer establish a policy on the use of Social Media you can protect yourself if an employee does something that is against the policy and could come back to haunt you. this following is a list of items that should be included but is not limited too in a business policy on Social Media.

Define what is included in Social Media, ie blogging, facebook twitter, or anyother interent service such as that. Let them know what you expect such as no derogatory remarks about people, your business or other businesses. Let them know what would be considered a breach of the policy, Let them know there is no expectation of privacy. Inform them that as the owner of the business and computer you reserve the right to monitor email, telephone, letters or other business matters that occur while at the place of business. Let then know that if they have access to their work account from home any use from their will be part of the policy terms.

Once the policy is established you as an employer have a duty to communicate the policy to your employees just creating a policy and then not giving it to your employees and tellling them what is in it, is as if you never set a policy and could cause you to be liable for employees actions.

Make sure you enforce your policy do not waive any of the terms if you do that can be used against you if a lawsuit comes up in the future. When using items that may be copyrighted material from an artist, musician or author always seek permission first if you are using the someone elses work unless you can verify it is in the use of public domain.

Lastly when writing something always be wary of being inflamatory or derogatory to someone. if you delete it from your screen it does not mean it is deleted for good you computer leaves a virtual footprint. If need be look into acquriing software that does permanently delete materials.

If you have questions or concerns about setting up a policy for social media do not hesitate to contact The Law Office of Marc C. Paquette, PLLC at 480-993-6650 or at

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Mailing Address and Contact Information

The Law Office of Marc C. Paquette, PLLC
Tel. (480) 993-6650
Fax. (480) 767-9141
15560 N. Frank L. Wright, Suite B4-440,
Scottsdale, Arizona 85260

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