“Don’t Litigate: Mediate!”

OVERVIEW [top]When in the course of human events disagreements arise, it’s best to nip them in the bud so they don’t divert resources and attention from business. Disagreements arising in the workplace can often be resolved through the dispute-resolution technique known as mediation. Because this method allows you to avoid taking the dispute to court, it is far more likely to leave business contacts and human relationships intact. This is particularly advantageous for a business that trades heavily on good will. Because even successful litigation can take a heavy toll, you may find mediation is ultimately better for your business in terms of time and resources as well.

In this Quick-Read you will find:

• How to assess whether a dispute is suitable for mediation.
• How to choose a mediator.
• How to prepare for a mediation session.

You may also want to see the Quick-Read “Using Alternative Dispute Resolution.”

SOLUTION [top]

If you’ve tried unsuccessfully to negotiate a resolution to a problem with a business contact, employee or co-worker, you may need a neutral third party to assist you. Ask yourself these questions:

1. Is the person involved in this dispute someone I will face again in the course of business?
2. Can I afford to let the dispute distract my attention from my business?
3. Can I afford to divert my financial and human resources from my business while the dispute continues?

If you decide that your business will continue bringing you face-to-face with the person in your dispute, consider mediation. If you resolve the matter, you can then turn your attention and resources to more productive uses. By problem-solving together, you will establish a new level of understanding that could put your business dealings with that person on more solid ground than before. You may also find that mutually retaining a third party to influence the outcome is better for all concerned. Were you to pursue litigation, a court retains all the power for determining the outcome for your business.

A trained mediator can help the parties identify their underlying needs and interests — which do not always coincide with the positions the disputants have taken. By reframing those needs and interests, a mediator helps the parties view a given problem from new perspectives and, in effect, helps them solve their own problems. Just as neutrality is a hallmark of a good mediator, confidentiality is a hallmark of the mediation process. The result is an atmosphere in which free discussion can take place more openly than in any other context.

A mediator’s objective is to help the parties find their own solutions to their dispute. This may be achieved either through “shuttle diplomacy,” in which the mediator moves from a caucus with one party to a caucus with the other, or through a jointly conducted mediation session at which both sides are present at all times.

The skilled mediator works by diverting attacks and evasion, by listening, probing and building trust in the disputing parties, and by fostering a balanced exchange of information at appropriate moments. Whether the effort results in an agreement or not, the parties to a successful mediation session will come away believing that the proverbial playing field has been leveled and meaningful discussion has taken place. Cooperation and mutual respect are still possible, even after formal discussions have ended.

REAL-LIFE EXAMPLE [top]

A client sued a mortgage broker when the broker failed to notify credit-reporting services that the client’s mortgage was satisfied and no debt remained outstanding. The broker’s general counsel was diverted from other important business to tend to this lawsuit. He discovered the client’s debt was paid up but that, through an admitted oversight on the part of the brokerage company, word had not been transmitted to the reporting services. Months of letter writing and phone calls through intermediaries in the broker’s company had failed to resolve the simple matter. It was growing increasingly expensive and was diverting financial and personnel resources from new business. Through mediation, the client and the general counsel finally were able to exchange information critical to resolving the matter. After mutual venting and apologies, both parties reached agreement in a three-hour session. (This is an actual, federal case. The names have been withheld from publication because of the confidential nature of mediation.)

DO IT [top]

1. Determine if you will have a continuing relationship with the other party in the dispute.Is it one of your regular suppliers or service providers or a co-worker with whom you must regularly deal? Is it better for your business for you to have a positive, continuing relationship with that person or entity? If so, suggest that you both discuss the matter with the help of a mediator, or ask a mediator to contact the other party about coming together for one session to give mediated discussion a try. Even if mediation fails to resolve the matter, both parties will have a better understanding of the other’s situation and motivation.
2. Find a mediator.First, look in your phone book yellow pages. You can also contact the clerk of your county court and ask for a list of dispute resolution neutrals who work for a “per diem” fee or perhaps even free of charge for the court system. If a law school is nearby, contact the director of clinical programs and inquire about professors who conduct mediation clinics. Organizations that maintain lists of mediators include the American Arbitration Association and Judicial Arbitration Mediation Services (JAMS).Local bar associations with Alternative Dispute Resolution committees will have members eager to mediate your dispute. They serve on those committees because they are committed to the mediation concept and should be well-versed in the latest developments in the field.
3. Prepare for the mediation session.You should determine the following facts:
   • Whether you have decision-making authority.
   • Whether someone else from your organization with decision-making authority should be at the session.
   • Whether you are in a position to maintain the confidentiality of the conversation that will take place in the mediation session.
   • Whether you will be able to make available the time the mediator prescribes for the session.

In addition, educate yourself about the dispute to make informed decisions and to suggest concrete solutions when the mediator calls for them.RESOURCES [top]