Making Peace If you haven't yet considered mediation as a way to resolve business disputes, here's why you should.
By Marc Diener
Opinions expressed by BIZ Experiences contributors are their own.
That our justice system is rife with problems is not news. Withfew exceptions, litigation takes too long, costs too much, andoften leaves even the winners feeling like victims- just some ofthe many reasons why deal-makers should favor mediation overlitigation.
Think of mediation as negotiation with a moderator. The mediator(a neutral third party) listens, questions, clarifies, sets groundrules and suggests alternatives, all to help the parties work outtheir own solution. A mediator has no authority to bind theparties, unlike an arbitrator, a judge or a jury. Jane Guerin, anattorney specializing in mediation and a UCLA law lecturer, highlyrecommends mediation. "Compared to litigation andarbitration," she says, "the parties have greater controlover how their dispute is resolved."
Because mediation is informal, nonadversarial and keepsdisputants talking directly, it is surprisingly effective. In fact,experts say that mediation is successful 80 percent of the time. Inthe United States, studies show high satisfaction rates on bothsides, and that mediated settlements are far less likely to beprotested or later attacked than litigated ones.
Mediation is a good choice when parties are cooperative, want topreserve a relationship, and/or want a creative solution that acourt doesn't have the inclination or legal authority to grant.For example, in a lawsuit recounted by Guerin, "The plaintiffagreed to accept frequent flier points in lieu of cash-a win-wincompromise that was unlikely to have occurred in court."However, mediation probably won't work if one side's outfor blood, or too stubborn or far apart from the other.
Today, there are hundreds of public mediation centers operatingnationwide, as well as numerous for-profit dispute resolutionservices that offer mediation. Your mediator should be unbiased,experienced and skilled. However, because there's currently nowidely accepted certification or training for mediators, you mayhave to do a little extra shopping. Get recommendations from yourlawyer or the local bar association. Be wary of former judges;they're used to orchestrating (that is, coercing) settlementsand may lack the diplomacy required of a mediator. If your disputeinvolves technical knowledge, get a mediator with the rightbackground.
When one side wants to mediate and the other doesn't, aninvitation from the mediator to the reluctant party is helpful. Forbest results, each side should bring someone with the authority tosettle and the ability to be an articulate, level-headedspokesperson. Having people on your side with a calming influence,or that the other side really wants to talk to also helps. Ifyou're called on to make an opening statement, take it easy.Antagonizing the other side defeats the purpose of mediation.
A speaker and attorney in Los Angeles, Marc Diener is author of DealPower.
