Mediation as a Dispute Resolution Tool
Many clients, especially business clients, come to me when faced with a crisis. A contract breach has cost time, money, and work and the situation will only worsen if the breach is not resolved. One effective method of resolving such a dispute early is for the parties to mediate the matter. Mediation can be extremely effective to resolve disputes because it can be done quickly, relatively informally, the mediator is agreed to by both sides to a dispute, and it is one of the least expensive dispute resolution procedures available. Mediation can be either simply proposed and agreed to by the parties, or may be required by contract (mediation is often required before filing suit or demanding arbitration by many contracts).
A mediator is typically agreed to by both/all parties to a dispute. The mediator is not a judge or arbiter. He/she has no authority or power to order any party to act or pay money. The mediator is there to facilitate communication between the parties; to get the parties in one office and get them talking. He/she is not there to decide who wins or loses. The mediator’s primary focus is to help the parties compromise and come up with solutions that will get the parties past the dispute and back on a working and productive relationship.
Mediators are usually lawyers, and many specialize in specific areas of law/industry. For example, a mediator may specialize in construction industry law and disputes, commercial lease and real estate disputes, patent/trademark, personal injury, family law, or any number of specialties. It is an excellent idea to seek out a mediator that has expertise in the industry and type of dispute you are faced with. It is also important the mediator have been trained in dispute resolution.
Every dispute has human elements to it. People look at the same situation from more than one perspective and have different opinions. Mediation involves not just reciting facts, contract language, and right/wrong. It also involves psychology and emotion. By the time the dispute gets to a mediator, more often than not both sides are angry. This anger has to be addressed and dealt with, as it is impossible to discuss a situation and negotiate or explore solutions while feeling angry. This is why it is critical a mediator be experienced, trained in dispute resolution, and have expertise in the industry/area of law at issue.
Mediation can typically be scheduled for half-day or full-day sessions. However, every mediation is different and takes on a personality and life of its own. No two mediations are ever the same, because the disputes and people are always different. Therefore, mediations may last hours or even days. Most mediators will not quit simply because a solution can’t be found the first try, or by 5:00. I have been involved in mediations that lasted well past midnight, settled with some additional telephone conferences after we adjourned the mediation, involved more than one mediation session, and involved very creative settlement terms that never would have come to fruition without the assistance of a mediator.
Mediation prior to initiation of litigation or arbitration may be a very effective way to resolve a dispute quickly and inexpensively.