The benefits of mediation
It helps the sides come together, not dig in their heels
Conflict happens in business. Business relationships can be complex. When disputes arise, we look for solutions to our problems. We want resolutions to be fast, cost-effective and lasting. How do you achieve those results without launching litigation and starting a legal war? The answer: mediation.
Mediation, form of alternative dispute resolution (ADR), is an informal, confidential process whereby a professional, neutral third party attempts to facilitate and negotiate a resolution to a business dispute that is acceptable to all parties involved. The mediator helps the parties find common ground and creative solutions to facilitate a resolution that addresses the concerns, needs and interests of the parties, with the goal of a settlement that all parties can live with.
As a practicing commercial litigator, I’ve seen business disputes drag on in court for years. Lawyers in business litigation see company leaders acting as right-fighters, digging in, losing time, spending thousands and wasting valuable company resources. As a practicing mediator, I’ve seen people in business come together and solve their disputes in a more cost-effective, value-added way.
While litigation is costly and contentious, mediation can be cost-effective, confidential and collaborative. Moreover, it can preserve relationships, which is king in the work-world.
Among the benefits of mediation are:
• With an 80 to 90 percent success rate using an experienced mediator, mutually satisfactory results can be had by the parties.
• Mediation is cost-effective, saving significant money.
• Most mediations are scheduled quickly and most disputes can be resolved in a day or less.
• They are a private, voluntary process not subject to public knowledge and possible media attention, as can be the case with civil litigation.
• Disputants work together in collaboration to reach a resolution they can live with. The process prevents escalations of conflict and often helps to reduce hostility.
• Solutions can be reached that are durable and mutually satisfying.
• Sessions are scheduled during the day or evening hours to accommodate the parties’ schedules.
• Mediation is low-risk, versus a court proceeding, which can result in judgment with negative impact to a party/parties.
• Participants are more likely to comply with the terms of the agreement reached, which is an enforceable contract, if they had a role in the creation of that agreement.
Through mediation, I have seen hotly contested and emotionally charged business disputes (involving restaurant equipment, no less) resolved on the back of a Post-it note. I recall a veterinary businesses, on the verge of collapse due to protracted litigation that was able to successfully mediate their dispute to ensure the business survived.
A key advantage to mediation is that it surfaces concerns and fears of the parties, addresses them and overcomes them. Strict legal forums don’t allow for much more than facts, supporting evidence, tight procedural rules and handing over the issue to someone who takes a technical view and declares a winner. At the end of the long path of litigation, more likely than not, both the losers and winners hold on to their fears and distrust and waiting for the next battle of the businesses to take place.
Mediation is an approach to resolution that is quicker and less costly than traditional internal and legal processes. It can be both an alternative to and a complement to legal proceedings.
Business disputes can be resolved to the mutual satisfaction of all, highlighting and linking common ground and desired outcomes. Importantly, mediation allows the parties to have the power to determine the outcome and to be in control of the decisions that matter to each other. It is especially helpful in business where customers, competitors and reputations matter.
Instead of being right-fighters, who seek to win at any cost, smart businesspeople are turning to ADR, and mediation in particular. Mediation is about finding common ground and then removing the obstacles that hinder arriving at a solution. In mediation, parties can turn their time and energy into resolving a dispute, instead of an all-out war.
Kathleen (Kat) Marquis, a Nashua-based attorney and mediator, can be reached at 740-815-8687 or through MarquisMediation.com.