It is natural in the ordinary course of business that disputes arise. Disputes range widely and some are contractual in nature, employer/employee related, partnership/owner disputes, personal injury (or worker’s compensation), or disputes resulting from changes in the normal course of dealing that two businesses or persons have operated under (a gentleman’s agreement) for years. In a minority of cases, litigation may ensue.
If you find yourself involved in litigation related to business dealings, a court will likely order you (i.e. a representative of the business with authority) to go, with your counsel, to business mediation before it will set a trial date for the matter. Such an order to mediate does not deny constitutional access to the court (Fuchs v. Martin, 2006). The purpose of ordering mediation is to encourage settlement outside of court. Litigation is a costly and exhausting process. Courts have more cases than they can possible hear at trial and, knowing that a high number cases settle in mediation, they are key proponents of such. Even with mediation, the court is still in control of the proceedings and oversees it along the way.
Business mediation is a process where both sides sit down with their respective mediation attorneys (who are also likely handling the litigation itself) and a mediator (who is a neutral third party) in an attempt to reach a settlement. A mediator’s job is to bring the two opposing sides closer together by highlighting the commonalities, instead of the differences, and reducing agreements to writing in the form of a settlement. Ultimately, the mediator has no authority to mandate a settlement or the details set forth therein. Rather, the mediator moves between the parties with an offer and counter-offer process. The parties are in control of the settlement outcome.
A mediation attorney will work with you through mediation to assert your rights, discuss the strengths and weaknesses of your case, know the law that supports or undercuts your position, and the probable outcomes at trial. The business mediation attorney will have already helped the process by selecting a mediator who is familiar with the issues raised and providing a mediator with a confidential mediation statement, which outlines the sticking points or points of contention in your case.
During the mediation process, a good mediator will play devil’s advocate, and, with the aid of your mediation lawyer, also try to present to you your best and worst days in court based on litigation costs (i.e., attorney fees and experts) and likely outcomes. All of these components of the mediation process will assist you in making the best settlement that you can, or they will solidify your decision not to settle. Much of business mediation is predicting how you will fare if you go to trial; a mediation attorney can help you to predict your likelihood of success or failure in court, as they will likely be handling your case if it does not settle at mediation. By knowing your probable success rate at trial, you will better know what settlement to offer or what to accept, and where to draw the line, or whether to cut your perceived/potential losses by actually going to trial. And even if the mediation does not settle the case, it may be used to narrow the issues or reach stipulations. If you find yourself in the midst of business-related litigation and the opportunity to mediate, embrace mediation and allow your lawyer to put on the hat as a mediation attorney to assist you through the business mediation process. Most of the time, the dispute will get resolved and you can move on in your life and with your business.
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