Using Mediation For Better Results In Business Disputes

Mediation is a form of alternative dispute resolution which can be used instead of litigation and is where a mediator acts as a neutral facilitator to help the parties resolve their dispute.

There are no fixed rules for mediation however many will follow this format:

• each party will provide a brief written summary of their case to the mediator before the mediation
• The parties (and their representatives) meet at an agreed venue. There will be an initial meeting where each side will set out their position
• After the opening session, the parties will go into separate rooms and the mediator will shuttle between the parties exploring the issues and looking for ways to resolve the dispute
• If agreement is reached, the terms of that agreement will be put in writing and signed by all the parties, forming a contractually binding agreement

What is the difference between mediation and litigation?

In traditional litigation a judge hears evidence and makes a decision that is binding on all the parties. In mediation, the mediator does not act as a judge but acts as a neutral facilitator to manage the mediation process and assist in the resolution of the dispute. Mediation can be set up and concluded quickly and is usually less expensive than proceeding to a trial. Also, in mediation, the parties can agree terms which a judge may not necessarily be able to order if the matter went to trial.

What are the benefits of mediation?

These include;

• Possibility of preserving business relationships
• Potentially there can be a quicker resolution of disputes
• Generally lower costs than litigation
• Business confidentiality
• A more flexible approach than litigation

Is suggesting mediation an indication of weakness on your part?

Mediation is not a sign of weakness and can be seen as a suggestion of confidence in your ability to put your cards on the table and to negotiate a positive outcome. The results can be far more beneficial than litigation.

What if there is no agreement?

At any stage the parties are free to leave the mediation process. Even if there is no agreement, mediation often helps because:

• The parties have begun the negotiation process which may ultimately lead to settlement
• The issues may be clarified.
• It helps the parties focus on their case