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AN INTRODUCTION
MEDIATION OF BUSINESS DISPUTES:
A SMART AND EFFECTIVE ALTERNATIVE TO LITIGATION
In today’s business environment, we often find ourselves in a dispute involving the threat of a lawsuit, be it from a supplier, a customer, a business partner or even an employee. While litigation may ultimately prove to be unavoidable, mediation of the dispute -- particularly in its early stages -- can often bring a prompt resolution at a significantly lower financial and emotional cost. Mediation offers many positive opportunities for members of the business community -- with few, if any, downsides.
What Is Mediation?
Mediation is a process in which the parties to a dispute meet with a “neutral”
(the Mediator) to discuss their perspectives on the case; propose and negotiate possible resolutions; and, hopefully, reach a final, binding agreement. This often involves a joint session with all parties followed by a series of private meetings with the Mediator. The Mediator may then engage in “shuttle diplomacy” to present offers and counteroffers, and, perhaps, propose new alternatives.
The Parties Decide
Unlike litigation and arbitration, where a judge, jury or arbitrator imposes a decision on the parties, mediation allows the parties (and their counsel) to define the issues in dispute -- and decide whether a final agreement can be reached. The Mediator does not make a decision, but may offer insights about the strengths and weaknesses of each parties’ position, which often helps to narrow the parties’ differences. If a deal can be negotiated to the satisfaction of all parties -- great. If it cannot, then arbitration or litigation may proceed, without prejudice to each parties’ rights, remedies and defenses.
Confidentiality
One of the great things about mediation is confidentiality: disputes generally may be resolved without the filing of Court papers, which are public documents that may be reviewed by competitors and the press. Moreover, whatever is said during a mediation cannot be used in evidence if the case does not settle. Parties and counsel are free to discuss the case and propose possible settlements, without fear that their statements will later be used against them.
Multiple Applications
The advantages of mediation for the resolution of business disputes also apply to the various individual, family and workplace conflicts we encounter in our daily lives. The right Mediator may be helpful in resolving -- or even preventing – a range of litigation matters, such as:
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· Employment and Workplace Disputes
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· Medical, Dental, Legal and Accounting Malpractice Claims
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· Real Estate, Construction, Development and Environmental Disputes
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· Technology, Entertainment and Intellectual Property Disputes
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| · Accident, Major Injury and Wrongful Death Actions |
| · Probate, Trust, Inheritance and Partnership Disputes |
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· Family Disputes, including Custody and Divorce Mediation
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Preserving Relationships
One of the remarkable benefits of mediation is that it often allows the disputants to fashion a resolution that enables them to work together in the future. In litigation and arbitration, one side wins and the other loses. By the time the litigation process is concluded, the parties usually despise one another, a fortune has been spent on attorneys’ fees and costs, and any possible business relationship is out of the question. As a litigator and a Mediator, I never cease to be amazed at how the mediation process allows the parties to discuss the issues, come to a mutually beneficial resolution -- and just move on with their lives and businesses. To me, this is tremendously gratifying.
Peter J. Lesser is an Attorney – Mediator with a growing dispute resolution practice based in Century City, Los Angeles; Peter regularly conducts mediations in the Palm Springs Valley. In addition to 25 years of broad litigation experience in Washington, D.C. and Los Angeles, Peter earned a Master of Laws (LL.M.) in Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine Law School. Peter is a licensed California Real Estate Broker. Peter can be reached at 310-821-1918 or 760-668-6477, or through his website: www.PeterLesser.com.
© Peter J. Lesser 2005 - 2010
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