Mitigation through mediation
November 3, 2017
Imagine: You have just poured a cup of coffee and settled in with the day's news. Another well-known company is doing damage control in the wake of a recent dispute and you already know that in the days to come this dispute is going to take over local news channels, every newspaper, and all social media. No matter who "wins," there will be a lot of time, money and goodwill lost.
A dispute does not have to reach the level of "breaking news" to be a threat to your business. Sophisticated businesses look to options to mitigate risk and resolve the underlying dispute using a process referred to as mediation. Keeping the news in mind, let us look at a mediated dispute through the classic journalistic questions of who, what, when, where and why?
Who and What
You can probably surmise that the first "Who" is you or anyone who finds themselves engaged in a dispute.
Now, "What" can you do to resolve the problem? While each dispute is different and calls for different resolutions, mediation is a rapidly growing area of dispute resolution that allows parties to resolve disputes in a collaborative process. Unlike litigation, where the dispute will be decided by a judge or jury, mediation can occur inside or outside of the court system. Unlike an arbitration, where an arbitrator decides the outcome, there will not be any rulings made in a mediation.
Mediation allows parties to a dispute the opportunity to select a neutral (the mediator) to assist in the resolution. Mediators are trained neutrals and have likely completed hundreds of hours of specialized training. Mediators have varied backgrounds and experience levels that should all be a consideration when you are choosing a neutral. Is a retired judge the right mediator for you? Perhaps an attorney, or maybe an experienced non-attorney mediator? Selecting the right mediator is the second piece of the "Who" puzzle. While you cannot choose the people you are in a dispute with, you can choose who will help you resolve it.
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The physical "Where" in a mediation is exceedingly flexible. The parties to a mediation can meet at a mutually agreeable location or handle the matter primarily over the phone. Flexibility in location can save time and expense and avoid you stepping away from your business for a prolonged period of time.
When and Why
The questions of "When" to mediate and "Why" are often tied together, and the analysis of one informs the other. When asked, I suggest that mediation is always worth exploring because parties do not lose any of the remedies that might be available to them, and more often than not, they end up learning information related to their dispute that they had not previously known. For example, they may learn information that is only known to the other side.
Hiring a mediator drastically reduces the time, money and other resources that resolving a dispute requires. For example, a mediator costs much less than litigation, and can often resolve a dispute in a brief time frame, commonly one day. Whereas litigation can be expensive and may take more than a year to several years to get to trial.
When successful, early mediation can enable you to get back to business, while controlling the amount of press, if any, that may be involved. Mediation late in the litigation process has benefits of its own, such as mitigating the risk of an adverse judgment and possible appeal.
Each phase of a dispute emphasizes different aspects of mediation. If an early resolution cannot be made, not all hope is lost. An early mediation session can form the basis for the parameters of a resolution at a later mediation session once each side has the information it needs to make a wise deal. In most disputes, it is wise to continue mediation efforts throughout the life of the dispute, and the passage of time can often bring the parties closer together to reach a reasonable resolution.
Mediation at any stage provides control over the outcome, as well as access to a cost effective and speedy remedy. Providing parties the ability to resolve a dispute in ways that a court simply may not be able to. By avoiding the zero-sum edict of a judge or jury, parties are able to make an informed decision and craft a resolution that works for them.
Understanding the options for resolving disputes before they arise can give you the opportunity to get ahead of a problem and minimize risk. So, when you read tomorrow's news and see another dispute and think, "There but for the grace of God go I" you can have some piece of mind knowing in advance that there are options other than costly and time-consuming litigation to navigate through a dispute.
Cortney Young is a mediator at Fennemore Craig, P.C. who mediates business disputes as well as other complex civil disputes. She is the president of the Nevada Dispute Resolution Coalition and can be contacted at email@example.com.