What is mediation? There are different ways to describe it but mediation is just a facilitated negotiation. The concept has been around for hundreds of years. An independent third party helps two or more people resolve their dispute.
Why should I mediate?
There are many reasons why mediation is a good idea. You retain control over the outcome of a dispute rather than handing that over to a third party judge, arbitrator or adjudicator. Mediation is an opportunity to present your position and to assess the arguments on the other side.
At a more practical level, certainly the English courts expect you to have considered mediation, and there can be adverse costs consequences if you don’t.
Sometimes an explanation or apology from the other side can go a long way to unlocking a disagreement. Lots of things can be brought into the discussions: the possibility of future work, or an agreement to stop a particular behaviour that the court might not otherwise be able to control. These options are not available through more traditional dispute resolution processes.
Mediation is cheaper and quicker than litigation or arbitration. It is also a confidential process. They are conducted on an entirely without prejudice basis. If the mediation does not conclude with a settlement, both parties can leave without fear of having any concessions brought before a court. If settlement is reached, the terms of settlement are also be confidential.
When is the best time to suggest mediation?
Mediation is most effective when everyone has a reasonable understanding both the strengths and weaknesses of their case, and of their financial exposure. Timing will also depend on the attitude of both sides. Too early, and it is probable that one or other will be unreasonably bullish in their approach. Both sides will need to offer some kind of compromise to achieve a settlement and if the two sides are two far apart, then settlement may be unlikely.
Who should be involved?
Choosing the mediator is obviously important. That mediator need not be a lawyer, although there are not many experienced mediators who are not lawyers. Being an expert in the subject matter of your dispute is not critical, but it is helpful. It will short circuit many problems if the mediator understands the technical language being used.
Having the decision makers attend the mediation is vital. There is nothing worse than a mediation that stalls because the person attending has to make a call. If the decision maker is reluctant to attend, and is likely to be disengaged or aggressive, then having a “wingman” can be helpful.
Where should mediation take place?
Many people think that they should only mediate on “neutral” territory. In reality, in a commercial mediation there is no real advantage or disadvantage in being on neutral ground. The real questions are: how much does it cost, are there enough rooms, is there (enough) food, is the coffee good, how long can we stay? These questions often lead to one or other of the lawyers’ offices being used.
5 things you should do to succeed at mediation
1. Meet the mediator
Most mediators will want to speak to at least the lawyers before the mediation. Sometimes it can help to have a decision maker take part in that preliminary discussion. These discussions are usually for the mediator’s benefit, but it can be useful to get an idea of how the mediator conducts himself or herself.
Part of the preparation for a mediation will involve the exchange of position papers. Those will set out each party’s position. It will usually be not a great deal more than what has already been written or pled in the court papers.
For real advantage, have a brainstorming session where you run through possible scenarios. Where is the real value? What other things might we ask for? What can we give? What can we give without losing too much? Where (really) is our bottom line? This exercise will allow you to take control of the discussion and will ensure that the mediation runs much faster than it might otherwise.
3. Keep your cool
Nobody likes conflict. It is personally difficult and stressful. Even those who seem to enjoy argument are using up a great deal of their energy. So while you may be personally outraged by what has happened, that outrage should, if possible, be expressed in a measured and civil way. You will be able to find a way to express it with force, but you should try and avoid temper.
The ultimate objective is a deal, so you are aiming to be in a position to shake hands at the end of the day.
It might seem obvious, but you need to keep your energy levels up. If your sugar levels drop you will become irritable and prone to rash decisions. If you eat properly then hopefully a better deal will be secured.
5. Think long term
Hopefully after your brainstorming exercise you will have identified your desired outcomes. Keep those in mind, and push for an outcome that meets your long term needs. It will be tempting to secure a quick win, or accept an offer than is “ok”, but with a bit more time and effort in the mediation your longer term goals may be achieved.
If you would like help with your commercial mediation, contact John MacKenzie at firstname.lastname@example.org