BUSINESS MEDIATION, ITS TIME HAS COME Robin N. Amadei, Mediator As with life generally, conflict is inevitable in the business world. This fact of life is not bad, indeed much good can come out of conflict. The Chinese have recognized this fact in that the Chinese symbol for conflict encompasses two ideas, danger and opportunity. Through the use of mediation, the danger inherent in conflict is minimized, while the opportunity for a lasting, equitable settlement that satisfies the interests of all parties is enhanced. Mediation is defined as an informal dispute resolution process in which a neutral third party helps people in conflict negotiate a mutually acceptable and binding agreement. Typically, the process includes informal opening statements by the parties, agenda formulation, option generation, negotiation, resolution and preparation of a final agreement between the parties. Business disputes of all types have been mediated with much success in Colorado and nationwide. Disputes that are amenable to mediation include: management-labor disputes, other employment cases, contractual disagreements, partnership disagreements, construction cases, real estate disagreements, copyright and trademark infringement issues, etc. Of course, not all cases are mediable, but mediation should be considered before determining that litigation is appropriate. Indeed, it can be stated that litigation is to the business client what surgery is to a medical patient. It may be appropriate, but it is not necessarily the method of first choice. Business clients may realize numerous advantages when utilizing mediation as opposed to litigation or arbitration. Such advantages include: 1. Time and Money Savings: Mediations can typically be scheduled almost immediately, as opposed to lengthy court delays when litigation is used. The longer a dispute is left hanging, the greater the likelihood for internal disruption. Also, mediations themselves typically take much less time than trials, freeing up the time of company personnel and lawyers. And, because mediations typically take place earlier in the process, less discovery, motions and trial preparation need to be done. 2. Broader Scope: Mediation directs attention to solutions relating to the underlying causes of the conflict and to the real needs of the parties. The scope of the mediation can be broader than the issues specifically delineated in the litigation context. A mediation proceeding and the resulting agreement can encompass unlimited possibilities outside the scope of the facts and legal issues originally delineated. 3. Privacy: Because mediations are confidential, parties can resolve their disputes outside both the glare of the news media and the eyes of their competitors. Also, where proprietary data are involved, parties especially appreciate a private procedure. 4. Voluntary Settlement: Because settlement is voluntary, parties have virtually no downside risk. The time and money involved are typically negligible when compared to the cost of preparing for and conducting a trial. Also, all parties after mediation, even if unsuccessful, have a better idea of the merits of their case, which may enhance settlement down the line. 5. Empowerment of the Parties: Most business people are reluctant to leave control in the hands of others. In mediation, the parties themselves determine the outcome of the dispute, not an unrelated judge or jury. 6. Preserves Relationships: Litigation never enhances relationships between parties, while mediation can actually improve relationships that have gone sour. In situations where a continuing business relationship is anticipated, mediation is the preferred dispute resolution mechanism. The object of mediation is to arrive at win/win solutions, where the parties really can continue to work together if this is desired. 7. Flexibility and Informality: Mediation does not have the procedural complexity of litigation. Parties can put on the table what they see fit and can discuss issues important to them personally. This makes for meaningful, substantive discussion and interchange, resulting in richer agreements. 8. Ownership of Agreement: Parties are much more likely to adhere to an agreement negotiated in mediation because they have crafted the result. In litigation, the decision is handed down to the parties, hence they do not have an ownership interest in it. 9. Happy Clients = Increased Client Loyalty. Clients typically leave the mediation table feeling satisfied (an average of 85% of cases settle in mediation). This satisfaction is likely to result in a continuing relationship between the client and the lawyer who so ably assisted him/her in the mediation process. For more information about mediation and other alternative dispute resolution methods, feel free to call me at the number stated above. _________________ Prepared by Robin N. Amadei, Common Ground Mediation Center, 303-604-1960. All rights reserved Helping People Reach Common Ground
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