In following the travails of The Catskill Mountain Railroad, I would be interested and perhaps others as well, in examples where negotiating resolved a dispute with non museum parties and specifically in the circumstances of an operating museum.

Also, what was found to be an effective strategy in general terms?

Bruce,

I'm having a hard time following you on this one. CMRR isn't a museum. They aren't even a non-profit organization, even though they rely heavily on volunteer labor. At best, their particular dispute can best be described as a landlord-tennant dispute. Even if the county is violating the terms of the lease, their remedies are legal in nature.

Now, let's just say your are a leader in a non profit operating museum.

Probably the best way to deal with a dispute is to try to avoid one from the outset. Being your own landlord is the first step. Taking steps to ensure your property is in order and neat looking, instead of a rusty junk pile is probably a good second step. Making sure you comply with applicable zoning ordinances and regulations is also a good practice.

Generally, being a good neighbor, having members who are active in the community, engaging local officials in a positive manner are all good steps to avoiding disputes.

If you want to go further, look at IRM. They've acquired property as a "buffer" around their operating museum. This keeps subdivisions from popping up trackside. Once again, taking steps to avoid potential disputes before they happen.

CMRR was not the subject matter but thanks for the response. A case of poor wording on my part.

I meant to say it's travails brought up another subject, which was the negotiating of solutions. Sorry for the deflection.

I was looking more for specific examples. Avoiding conflict is a given. I might have used a bad example in disputes. Another example would be working with a community etc to develop this or that..

Settlement is an essential part of matters legal in nature. You can always negotiate. Well, usually: it's possible to have an opponent who won't negotiate, but at least you can say you tried.

When I say "essential" I mean mandatory. Federal rule 26(f): the parties must confer as soon as practicable... In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case...


Yes, yes, yes, yes, yes, to all of the above.


ObRypnDisclaimer: Everything I know about the law I learned from watching Ally McBeal.

It hasn't served you well.

Now, from a real lawyer:

To be honest, by the time one party files a lawsuit, any hope for easily solving a dispute is usually dashed.

The big push these days in litigation is for what is called Alternative Dispute Resolution ("ADR"). Courts, both Federal and State are making a big push for parties to mediate or arbitrate instead of litigating.

Mediation is non-binding. The parties pick a "neutral" to serve as a mediator and help arrive at a compromise. Arbitration is typically binding, where the neutral arrives at a decision, much like a judge. Most federal districts and many state courts, as part of the scheduling order process mandate that some sort of ADR occur before trial. The problem with this typically is that the ADR occurs late in the game, after the parties have spent a lot of money getting the case ready for trial.

One Federal District Court I regularly practiced before, had a mandatory ADR program, but it was very early in the litigation. The magistrate judge would be the "neutral" and he'd hammer and hammer the parties to get something done. It was rather effective, especially if the judge is telling your client he's being "foolish" or "unreasonable."

Either of the two involve experienced legal counsel. I served on a panel of attorneys for the ADR Panel for the U.S. District Court for the Eastern District of Missouri, so I have some ADR experience. The idea is that it is quicker and cheaper than a full-blown trial. My experience says the best way to handle a dispute is to avoid one. If one is unavoidable, be reasonable. Parties involved in litigation typically have unrealistic expectations on what they can get out of the litigation. As an attorney, I've learned the hardest part of my job is often helping a client manage their expectations, whether they be a plaintiff or defendant, individual, corporation or non-profit.

Thank you for clarifying the question I had in mind

Bruce,

Check your email, I sent you some information.

David

And a critical factor in any dispute is legal costs. IMO, the entire point of ADR is lost if it doesn't happen early enough to contain those costs. (and by the way, some litigants "game" legal costs. They flood your lawyer with trivial legal work hoping to make you use up all your money, either because they self-represent for free, or because they can afford to spend a lot more on lawyers than you.)


Oh, ain't that the truth. Most people think of "going to court" as writing the Great American Lawsuit and magic will happen and they will get what they want. It's not true. It'll be a 2-year odyssey of hell, dreading the mail or phone calls, and if things go fantastic for you, you'll get a bloody nose.

That's why settling early is so valuable. Sort it out, get along, get back into the business you're in, instead of this sordid business.

Remember Byron Long's sad tale, trying to reform his museum, he was *completely* right in the law, open and shut case, and he fairly expected to just strut into court and win. And they used a strategy to run him out of lawyer money, and then terminated his membership knowing he couldn't defend himself.

All my cases so far have gone as well as they can possibly go for me. For all the fun of crossing out "plaintiff" and writing "defendant" on the garnishment papers, I'd be happier still if it had just never happened.

War is hell. Edit: Except the meaning of words have changed over the years, and the contemporary translation would be: War totally sucks.

ObRypnDisclaimer: Everything I know about the law I learned from watching Ally McBeal.

For what its worth, and having a lot of years around this kind of crap, I would provide the following practical guidance. This assumes for the most part that the organization does not own its property, but even if the museum does, there are certain people (the zoning people for example) you must keep happy.

1) Yes, #1 has to be to avoid a dispute. Follow the lease, license, agreement, easement, building codes to the letter. It protects both parties.

2) If things become uncomfortable in some way, remember he with the gold rules. As the old joke used to be, “Rule #1 is that the boss is always right. Rule #2 is that when the boss is wrong, see Rule #1.” I would suggest that the same rule applies to the actual property owner whether it be the state, county, township, private person or a public corporation. Even if a museum owns its property, there are still local rules (zoning for example) that must be obeyed. So, if things becomes uncomfortable, the museum is never in the driver’s seat. Period. You may think so and perhaps there are some laws or court decisions that should support your case, but good luck getting to that point. The museum or operation is never in the driver’s seat.

3) Keeping item #2 above in mind, as things become a uncomfortable, the museum or operation has to play along until there is some change in the local politics. For example, I keep thinking that if Pemberton could have held out for another year, a new mayor would be on the books and chances are this could have been resolved. This is how you win.

4) Look internally. What mistakes have you made? Where do you have a weakness? Address these issues. Does the site look like a junk yard? Do you have a board member who antagonizes the local political types? Do you have too few members to accomplish the work needed to restore the equipment? Do you lack planning? Have you violated some element of the agreement, lease, license, easement? Address what you find in your internal assessment.

5) A protracted legal battle is not a winning strategy. Perhaps it can be used to buy some time, but as an ultimate goal is will not provide a permanent solution that is acceptable to the museum or operation.

To summarize, the best approach is not to cause a problem to begin with. If there is a problem play along, make internal improvements, buy time, work for a political change. The courts are not the ultimate answer in most cases.

J.R.

Apropos to the tenant situation, the relevant code is Haynes' Law: Don't cheese off the hosts.

If you own property, recognize that your ownership is not absolute unless you have the military strength to repel all comers. The very definition of land ownership is a social convention, flowing from the People via the government, and here, Haynes' Law applies to your relationship with those parties. Case in point Creede, Poletown, New London etc.