Ready to Mediate?

Once you decide to try mediation to resolve your dispute, what’s the next step? As discussed in Sept./Oct.’s “Mediation: Your Solution to Business Conflicts, mediation is often the best approach to try to work out a serious business dispute and save a business relationship. So, once you’ve decided on mediation, how do you move the dispute into the mediator’s office? How do you choose the right mediator for your circumstances?

Initiating Mediation

Parties in disputes get into mediation in various ways. Sometimes it’s as easy as both sides being frustrated at not being able to work through the problem and agreeing to call in a mediator. Other times it may result from a pre-existing agreement in a contract or through the initiative of a court.

Informally: If those involved in the dispute agree that mediation is an acceptable path, then you are ready to move on to the next step of selecting a good mediator. The catch is that, once a dispute arises, communication and cooperation tends to break down, causing one side to automatically oppose or be very suspicious of anything the other side suggests. This can impede efforts to convince all parties involved that mediation is the best way to deal with the situation.. In such cases, you should talk with a mediator who is willing reach out to the other side to provide information about how mediation works and answer any questions. If lawyers are involved, they can work together productively and get their clients to agree on mediation. Just be aware that litigators are sometimes selected for their aggressive characteristics and thus have little desire to get straight to a solution through mediation.

By Contract: When the parties involved in a conflict have previously agreed to a dispute-resolution process in a written contract between them (such as part of a purchase/sales agreement, a partnership or joint-venture arrangement), mediation is the next required step. In the past, dispute-resolution clauses were more likely to require arbitration than mediation. Today, however, more business contracts require mediation as the initial step, so that the parties have an opportunity to find their own solution before turning to a third-party decision-maker. If the contract only provides for arbitration – or if there is no dispute-resolution clause at all – it is still possible for the parties to agree to mediate before taking more formal action. You should consider routinely including mediation clauses in future business contracts; you should also list acceptable mediators or how the mediator will be selected, because this is easier to agree on before a dispute has arisen.

By Court Order: These days, even parties who go directly to court often end up in mediation. Courts across the country are increasingly apt to require parties to try mediation before taking up the courts’ time with unnecessary trials. Courts recognize that parties are often much more satisfied with the results they reach in mediation, a process that allows for creative solutions. Many courts operate their own mediation programs and will assign their mediators to conduct the mediation, sometimes without charge to the parties — at least for the first few hours. However, parties are generally permitted to hire a private mediator of their choosing if they wish.

Selecting a Good Mediator

Mediation is often described as more art than science. Good mediators adjust their approach and style based on the parties and how issues unfold during the session. This makes it hard to measure performance and separate out excellent mediators from the merely adequate ones. But you can start by looking at training, experience and satisfaction of previous clients (satisfaction being one of the best indicators). Certification processes tend simply to establish minimal standards, and aren’t able to determine that any given mediator is right for a particular dispute. Different sorts of cases and parties will fit some mediators better than others — there is no one-size-fits-all approach. So how do you know what to look for?

Two important aspects include the extent to which the mediator will simply help the parties communicate (called facilitative mediation) and whether the mediator will give opinions on potential outcomes about who is likely to win or lose in court (called evaluative mediation). Some mediators are narrowly focused on the specific dispute at hand, while others will invite the parties to deal with related issues or to address a deeper, underlying cause of the dispute if the parties want to go there. Of course, careful listening and developing rapport with the parties in mediation is critical.

Mediators do not have to be lawyers, but many parties prefer mediators who bring a legal perspective to the dispute and an awareness of challenges that the parties might face if they choose to proceed with litigation. Successful non-lawyer mediators often develop a niche in an area in which they have a lot a knowledge or past experience. In some parts of the country, judges who leave the bench often become mediators and arbitrators. Judges make excellent arbitrators, since they are exercising the very same skills they used on the bench. But mediation is quite different, and many judges do not find it easy to move beyond expecting deference and being the one to make the decision for the parties. Mediation looks easy when it is done well — when the parties are making good progress with the skillful guidance and thoughtful input from a professional mediator — but it is often much harder than it looks.

Conclusion

Mediation keeps the decision-making in the hands of the business people involved, where it should be. When a dispute arises that you can’t readily resolve, follow the steps above to move into mediation and to select a good mediator to help you untangle the dispute and hopefully get your business dealings back on course.

Keith L. Seat , J.D., is a full-time mediator, facilitator and arbitrator, with significant experience mediating business, commercial and workplace disputes. He is also an adjunct professor of Alternative Dispute Resolution at the University of Maryland Law School, editor of the bimonthly “Mediation News for the 21st Century,” a fellow of the International Academy of Mediators and active in other mediation organizations. Keith was previously in-house counsel at a major corporation, general counsel for a subcommittee of the U.S. Senate Judiciary Committee and a litigator at a large Washington, D.C., law firm. He can be reached at kseat@keithseat.com or 301.681.7450; additional information is available at www.keithseat.com.

Sidebar: How to Ask for It

Initiating mediation boils down to asking the other side if they are willing to participate. In a serious dispute, it is worth thinking about how to best put the question to the other party to maximize the chances of a favorable response.

Consider who should ask. This may be a mediator or lawyer, or a mutually-respected colleague, such as the head of a trade association or other business organization.

Consider timing. The response is more likely to be positive when the parties feel stuck, are preparing to litigate or when the litigation is getting ready to become much more expensive and burdensome with document requests, depositions and the like.

Be ready to provide information. As common as mediation is these days, most people don’t really understand its benefits. Even lawyers confuse it with arbitration (where the arbitrator picks a winner and loser, just like a judge).

Consider your alternatives. You should have a back-up plan in case the other party is not willing to mediate.

Formulate a plan to propose. You should already know where you want to begin, and you should share that with the other party. For example, have ready the Web site of a mediator you think would be good or a short list of acceptable mediators for them to consider.

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Mediation: Your solution to business conflicts