Month: February 2018
How to Make Your Business Plan Stand Out ?
One of the first steps to business planning is determining your target market and why they would want to buy from you.
For example, is the market you serve the best one for your product or service? Are the benefits of dealing with your business clear and are they aligned with customer needs? If you’re unsure about the answers to any of these questions, take a step back and revisit the foundation of your business plan.
The following tips can help you clarify what your business has to offer, identify the right target market for it and build a niche for yourself.
Be Clear About What You Have to Offer
Ask yourself: Beyond basic products or services, what are you really selling? Consider this example: Your town probably has several restaurants all selling one fundamental product—food. But each is targeted at a different need or clientele.
One might be a drive-thru fast food restaurant, perhaps another sells pizza in a rustic Italian kitchen, and maybe there’s a fine dining seafood restaurant that specializes in wood-grilled fare. All these restaurants sell meals, but they sell them to targeted clientele looking for the unique qualities each has to offer. What they are really selling is a combination of product, value, ambience and brand experience.
When starting a business, be sure to understand what makes your business unique. What needs does your product or service fulfill? What benefits and differentiators will help your business stand out from the crowd?
Don’t Become a Jack of All Trades-Learn to Strategize
It’s important to clearly define what you’re selling. You do not want to become a jack-of-all trades and master of none because this can have a negative impact on business growth. As a smaller business, it’s often a better strategy to divide your products or services into manageable market niches. Small operations can then offer specialized goods and services that are attractive to a specific group of prospective buyers.
Identify Your Niche
Creating a niche for your business is essential to success. Often, business owners can identify a niche based on their own market knowledge, but it can also be helpful to conduct a market survey with potential customers to uncover untapped needs. During your research process, identify the following:
Which areas your competitors are already well-established
Which areas are being ignored by your competitors
Potential opportunities for your business
Why Mediate or Arbitrate?
The Price of anything is the amount of life you pay for it. – Henry David Thoreau
Why Mediate or Arbitrate?: Participants in mediation or arbitration voluntarily submit to these processes. People who arbitrate or mediate realize that conflict has its costs. Costs include:
o Attorney Fees
o Lost Productivity
o Time Lost
o Stress-related Illness
o Lack of Sleep
o Adversarial Assumptions
o Broken Relationships
o Distracted from Meaningful, Desired Relationships
o Risk of Escalation
o Loss of Family
o Surrendering to Bad Character
o Values Warped
o Loss of Joy, Love and Hope
o False Polarization
o Lost Opportunities
You have better things to do. Through mediation and arbitration, you can control and reduce the costs of conflict. Parties to mediation and arbitration can control the time it takes to resolve a dispute.
Consider the alternative. Litigation can be forced on a person. If you are sued you have to respond or you will suffer an adverse judgment. Attorneys must be hired. Litigation is an adversarial process in which each party attempts to out maneuver and gain the upper hand. Conflict, with is costs, escalates. The court imposes its deadlines. The parties have little control of the costs, timeline or outcome. In the end, the Court imposes an outcome which might not meet the needs or desires of either party. In litigation the parties lose control. In mediation the parties retain control over the outcome.
When litigation is threatened or even after it has started, you can always suggest the alternatives of mediation or arbitration or a court appointed referee.
What is Mediation? Mediation is facilitated negotiation. Mediation seeks a mutually beneficial solution. Parties discuss their values and motivations. Solutions evolve as parties understand each other, gain knowledge and explore resources. A trained mediator facilitates the meetings. The mediator remains neutral and does not make decisions for the parties. The dispute is settled only if parties are in agreement.
Is Mediation Effective? Studies of mediation of domestic disputes show 95% of participants did not believe mediation would work before they began. Yet 71% reached agreement on some, if not all, the issues they faced. Doubt is normal and does not predict the outcome of mediation. Divorced couples who had a judge decide the outcome of their divorce are 7-8 times more likely to bring future disputes to the court than those who mediated.
Is Mediation for Everyone? If a person is afraid to be in the same room as the other party or does not feel able to speak up or disagree with them, mediation might not be appropriate. Such concerns should be shared with the party’s attorney and mediator before mediation sessions.
What Happens During Mediation? Generally the mediator opens the session with an introduction. Rules for the discussion are established. Issues are identified. The parties may be invited to state what they want and why. Discussions follow. The mediator summarizes agreements reached.
Types of Mediation: The extent to which the mediator directs the outcome of mediation varies from mediator to mediator. On one end of the continuum are mediators who refuse to interject their opinions into the process. On the other extreme a mediator might evaluate the evidence and arguments of the parties and recommend a specific outcome. In some mediation sessions the parties stay in constant contact with each other. In other mediations, the mediator uses a process called caucuses. A caucus is a meeting with the mediator and just one side to the dispute. The mediator may shuffle between separate rooms where the parties are and communicate information, listen, ask questions and discuss the arguments and evidence presented by the other side. The type of mediation used depends upon the mediator, the issues to be decided, and the desires of the parties.
What is Arbitration? Arbitration has been described as “rent a judge.” A neutral person is hired who reviews evidence and renders a decision. Under Iowa law, an arbitrator’s decision can become a decision of a court and is enforced is a similar fashion. Subpoenas are available to compel witnesses and evidence to be brought to the arbitrator for decision.
What are the Advantages of Arbitration? Some of the benefits of Arbitration include:
a) The parties can agree to control the costs and time necessary to resolve a dispute;
b) Arbitrators are legally trained to make judicial decisions based upon law and evidence. The risks of a biased or an emotionally driven decision is less when compared to juries.
c) An Arbitrator can also be asked to investigate and collect the evidence. The costs and time necessary for a dispute is greatly reduced. See the article on Investigative Binding Arbitration.
d) Arbitrators with special technical expertise can be hired to reduce the risk of error.
e) A case can be handled piecemeal. For example, in an auto accident case the arbitrator can first determine if the defendants are responsible to pay any damages. Only if a defendant is responsible will there be need to incur the cost of presenting additional evidence about damages.
f) The parties can agree to a less formal process and allow evidence to be presented by summaries, reports, or other convenient means.
Referees can play an important role high conflict divorces. Since parties share parenting responsibilities even after the divorce, the potential for ongoing bitter disputes and new disputes is great. In high conflict divorces, the parties find it impossible to resolve minor disputes. The cost and delay of going to court results in escalation of conflict as the parties battle against each other for control and influence over the children. The children suffer in the midst of parental conflict. The court can give a referee authority to hear, investigate and decide such disputes. Decisions can be made in days rather than 7 to 12 months it normally takes in litigation.
In summary, to avoid investing an undue amount of your life in conflict, try mediation, arbitration and special masters.
How to Brief a Case Using the “IRAC” Method
When briefing a case, your goal is to reduce the information from the case into a format that will provide you with a helpful reference for review. Most importantly, by “briefing” a case, you will grasp the problem the court faced (the issue); the relevant law the court used to solve it (the rule); how the court applied the rule to the facts (the application or “analysis”); and the outcome (the conclusion). You will then be ready to not only discuss the case, but to compare and contrast it to other cases involving a similar issue.
Before attempting to “brief” a case, read the case at least once. Follow the “IRAC” method in briefing cases:
Write a brief summary of the facts as the court found them to be. Eliminate facts that are not relevant to the court’s analysis. For example, a business’s street address is probably not relevant to the court’s decision of the issue of whether the business that sold a defective product is liable for the resulting injuries to the plaintiff. However, suppose a customer who was assaulted as she left its store is suing the business. The customer claims that her injuries were the reasonably foreseeable result of the business’s failure to provide security patrols. If the business is located in an upscale neighborhood, then perhaps it could argue that its failure to provide security patrols is reasonable. If the business is located in a crime-ridden area, then perhaps the customer is right. Instead of including the street address in the case brief, you may want to simply describe the type of neighborhood in which it is located. (Note: the time of day would be another relevant factor in this case, among others).
What court authored the opinion: The United States Supreme Court? The California Court of Appeal? The Ninth Circuit Court of Appeals? (Hint: Check under the title of the case: The Court and year of the decision will be given). If a trial court issued the decision, is it based on a trial, or motion for summary judgment, etc.? If an appellate court issued the decision, how did the lower courts decide the case?
What is the question presented to the court? Usually, only one issue will be discussed, but sometimes there will be more. What are the parties fighting about, and what are they asking the court to decide? For example, in the case of the assaulted customer, the issue for a trial court to decide might be whether the business had a duty to the customer to provide security patrols. The answer to the question will help to ultimately determine
* This applies to case briefs only, and not exams. Use the IRAC method in answering exams: Issue/Rule/Analysis/Conclusion.
whether the business is liable for negligently failing to provide security patrols: whether the defendant owed plaintiff a duty of care, and what that duty of care is, are key issues in negligence claims.
Determine what the relevant rules of law are that the court uses to make its decision. These rules will be identified and discussed by the court. For example, in the case of the assaulted customer, the relevant rule of law is that a property owner’s duty to prevent harm to invitees is determined by balancing the foreseeability of the harm against the burden of preventive measures. There may be more than one relevant rule of law to a case: for example, in a negligence case in which the defendant argues that the plaintiff assumed the risk of harm, the relevant rules of law could be the elements of negligence, and the definition of “assumption of risk” as a defense. Don’t just simply list the cause of action, such as “negligence” as a rule of law: What rule must the court apply to the facts to determine the outcome?
This may be the most important portion of the brief. The court will have examined the facts in light of the rule, and probably considered all “sides” and arguments presented to it. How courts apply the rule to the facts and analyze the case must be understood in order to properly predict outcomes in future cases involving the same issue. What does the court consider to be a relevant fact given the rule of law? How does the court interpret the rule: for example, does the court consider monetary costs of providing security patrols in weighing the burden of preventive measures? Does the court imply that if a business is in a dangerous area, then it should be willing to bear a higher cost for security? Resist the temptation to merely repeat what the court said in analyzing the facts: what does it mean to you? Summarize the court’s rationale in your own words. If you encounter a word that you do not know, use a dictionary to find its meaning.
What was the final outcome of the case? In one or two sentences, state the court’s ultimate finding. For example, the business did not owe the assaulted customer a duty to provide security patrols.
Alternative dispute resolution (ADR) in the Arab world
Alternative dispute resolution (ADR) mechanisms in the Arab world have been growing hand in hand with the resurgence of various countries as members of the fast growing club of successful emerging markets. The flexibility of arbitration, mediation and other ADR methods, as well as their speed, efficiency and confidentiality, have made them more attractive to investors and parties in contracts of an international nature. Consequently, a significant number of Arab countries have been busy updating and enhancing their laws and regulations on arbitration and mediation in particular. There is momentum behind ADR in the region.
Furthermore, the global economic downturn has led to a significant increase in the number of disputes in various sectors, and this in turn has provided an impetus behind the need to enhance the procedures applied by the various arbitration centers in the Arab world.
This development is not solely linked to the realities of modern commerce. In fact, the conciliatory approach and the notion of deferring to a neutral and objective personality for a decision, that ultimately underline all forms of ADR, are well steeped in Arabic and Islamic traditions.
There are at least two verses in the Koran that sanction the notion of arbitration and mediation. Furthermore, one of the most famous stories of the Prophet Mohammad’s early life involved him being chosen by feuding tribes, who could not agree on a vital element of the reconstruction of the Ka’aba, to resolve the dispute. The Prophet bridged the gaps between the quarreling parties by suggesting an original solution that was essentially a win-win for all. Other examples of arbitration and mediation abound in Islamic history.
At the outset, let us distinguish between mediation and arbitration. There are a number of differences between those two mechanisms.
Firstly, these methods differ in terms of the role of the appointed third party; in arbitration, an arbitrator is like a judge and his or her decision is final, whereas in mediation, the mediator works to try and bridge the differences between the parties and move them closer a settlement or conciliation. In a sense, mediation is the preferred option when the parties are still attempting to resolve their differences in a way that would allow them to continue their working relationship; whereas, arbitration is usually sought in order to reach a final determination on the overall dispute at the end of the relationship.
Secondly, the authority of an arbitrator is much wider than that of the mediator.
Thirdly, there are differences in terms of time limits, and venue considerations, between the two methods. In essence, arbitration is an attempt to replicate the judicial process but in a manner that is more specialized and streamlined. Mediation is a process whereby the parties agree to nominate a third party who would be tasked with trying to find common ground between the parties and resolve their differences, usually through the organization of meetings which are of a rather informal nature, at least in comparison with arbitration proceedings.
Finally, one of the main advantages of mediation is that it is far less costly than arbitration. In fact, it can be said that the costs of arbitration are its Achilles heel.
One of the most significant trends is the adoption of laws that deal specifically with mediation. In Jordan, the Law on Mediation for the Resolution of Civil Disputes was adopted in 2006. The law organizes the process of judicial mediation that takes place at the Court of First Instance. In accordance with Article 3 of the said law, the presiding judge may, upon the agreement of the parties or further to their request, refer the dispute to a mediating judge or a private mediator for the purposes of amicable resolution of the dispute. The mediator is then obliged by law to complete the mediation process within three months of the date on which the dispute was referred to him or her.
A similar development has taken place in the Emirate of Dubai, in the United Arab Emirates. By virtue of Dubai’s Law No. 16 of 2009, a Mediation Centre was established. The Mediation Centre will be annexed to Dubai’s Courts. The Centre is entrusted to review types of disputes that are defined by its Chairman. Disputes will be reviewed and amicably resolved through a number of experts, under the supervision, of the concerned judge, within a period that would not exceed one month from the date of the attendance of the parties before the judge.
The creation of such centers in Jordan and the UAE, as well as the existence of various mediation mechanisms through international organizations such the World Intellectual Property Organization’s Arbitration Centre, is likely to lead to a surge in the use of mediation as a method for the amicable resolution of disputes. This would be a welcome development, as it would entail the effective resolution of so many disputes in a conciliatory and timely manner, well before the matter escalates to reach a court room or an arbitration panel.
As for arbitration, we have also seen a number of positive trends in this regard in the Arab world. On the one hand, the trend towards the effective adoption of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Arbitration Convention) has solidified. The New York Arbitration Convention mainly enshrines the principle that a properly made arbitration award in one member country must be binding and enforceable in another member country, unless the award can be rejected on the basis of certain grounds for refusal of enforcement, which are narrowly defined in the Convention. The Convention also confirms the principle that if a court is presented with a dispute which the parties had agreed to refer to arbitration, then the court must refer the matter to arbitration upon the request of one of the parties.
Historically, the rate of adoption of the New York Arbitration Convention in the Arab world has been good. Jordan was amongst the first countries to adopt the Convention, which came into effect in 1959. Almost all Arab countries have since joined, with Kuwait joining in 1978, Saudi Arabia in 1994 and, more recently, the United Arab Emirates in 2006.
The challenge is to ensure that the exceptions that would allow a member country to refuse the enforcement of an arbitral award are applied in a strict and narrow manner. Under Article V(2)(b) of the Convention, the enforcement of an arbitral award may be refused if “the recognition or enforcement of the award would be contrary to the public policy of that country.” The parameters of what a country regards as “public policy” can be wide. In Saudi Arabia, an arbitration agreement or award is respected provided that it is not contrary to the principles of Shari’a law. Such a limitation falls within the “public policy” exception, but the key lies in the way such an exception is applied.
In the UAE, Articles 235 and 236 of the Civil Procedures Law (Federal Law No. 11 of 1992) confirm the principle that foreign arbitral awards will be enforced in the country, provided a number of conditions are met. These include procedural issues such as the proper notification and representation of the parties before the arbitral tribunal that issues the decision in the foreign country. Also, UAE courts may refuse the enforcement of a foreign arbitral award if it contradicts a previous judgment already issued by a UAE court or if it includes elements that “contradict public policy or morals.”
While in the past “public policy” exceptions have been defined in a wide manner that allowed courts to reject a number of foreign arbitration awards in various Arab countries, there is a discernible trend towards limiting the use of this exception, and applying it only in clear cases of contravention of the country’s moral or public policies.
Furthermore, in the recent past, various Arab countries have upgraded their arbitration laws to be in line with international best practices. This is evidenced by the increasing use of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. This model law was drafted by the UNCITRAL with a view to assisting countries that seek to improve their laws in such a way as to ensure the best possible procedures for commercial arbitration.
For example, Egypt adopted Law No. 27 in 1994, the Commercial Arbitration Law, which is based on the UNCITRAL Model Law. This aimed to enhance arbitrations procedures and resolve complications that arose under the provisions that dealt with arbitrations in the Egyptian Code of Civil and Commercial Procedures and provide a law dedicated to arbitration. Also, in 1994, Bahrain adopted a new international arbitration law (Decree no. 9/1994) that was based on the UNCITRAL Model Law. In 2008, Syria issued an arbitration law that is based on the Model Law as well.
The UAE is also presently considering a new Federal arbitration law and it is widely reported that the new law would be based on the UNCITRAL Model Law. Once enacted, the new Federal arbitration Law will replace the existing provisions in the Civil Procedures Law.
Finally, there is no greater proof of the growing popularity and importance of arbitration than the increasing use of existing arbitration centers in the region, and the founding of new centers. The Dubai International Arbitration Center (DIAC), whose rules are UNCITRAL based, has proven to be an excellent success. The number of cases that the DIAC is handling has been growing at a very impressive rate. According to one report, while the number of new cases with the DIAC in 2008 was 100, there had been 180 new cases registered with DIAC by August 2009. The Cairo Regional Center for International Commercial Arbitration, which was established in 1979, continues to be a great success.
Earlier in January, Bahrain announced the launch of Bahrain Chamber of Dispute Resolution, in partnership with the American Arbitration Association. It is reported that the Chamber will operate what is being called an “arbitration free zone.”
In conclusion, various Arab countries have engaged in an active process of upgrading their arbitration laws and those dealing with other alternative dispute resolution mechanisms. Arab arbitration centers are growing in significance, as more parties resort to the use of their services. These important developments can only serve to facilitate the infrastructure supporting international commercial contracts in the Arab world and, in turn, this will have very positive effects on investment and business growth in our region