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Commercial and Business Mediation
Commercial and Business Mediation
Mediation in business or commercial disputes can offer opportunities beyond simply resolving the dispute between the parties. Indeed, often finding the hidden benefits can make resolution not only possible but favorable.
The key to reaching the proverbial win–win is often to have the parties understand – before the mediation begins – that this possibility is actually reachable. Anticipating the interest-based negotiations that should occur in a business or commercial mediation, performing a pre-mediation interest inventory that assesses both the issue in dispute and the overall relationship of the parties can be very helpful. When the parties recognize that mutually beneficial possibilities exist, joint session can produce the most satisfying resolution.
The percentage of cases resolved by trial is at a record low. The majority of cases resolve either at or shortly after mediation. It is therefore critical that the parties not only put their best case forward at mediation but also that they evaluate the risks and practical realities of both sides. Parties should be prepared to present all of that at mediation.
Attorneys who prepare their cases as if they are going to trial – including preparing their clients to make appropriate presentations if necessary – stand the best chance of favorably resolving their cases.
Construction disputes can be some of the most expensive litigation imaginable, with multiple attorneys representing dozens of contractors and subcontractors and insurers. Discovery can cost tens of thousands of dollars in expert witness and attorney fees. Early mediation offers the possibility of channeling those costs into durable agreements.
Key to reaching resolution is the targeting of the relationships between the parties and the narrow issues that impact resolution. Arranging multiple narrow sessions with limited participants before a general mediation session can be fruitful in focusing the dispute. Parties are given the opportunity to thoroughly consider the risks and practicalities of litigation, to evaluate what they know and what they don’t know – and the impact of both – on their decision-making, before the costs of litigation have rendered any result an effective loss for most parties.
Mediation regarding employment issues can be especially emotional. People often identify themselves by their employment or through their company.
Proper attendance of the persons directly involved in the dispute can be critical. Joint sessions are often important to promote understanding, especially if the employment relationship may continue. At the same time, care must be taken that anger does not result in unnecessary escalation. Caucus can be used strategically to keep the parties moving in a positive direction toward resolution.