I’m here today to talk about mediation, specifically what it is and how it can help you resolve some of your business disputes.

Mediation is a form of alternative dispute resolution, commonly referred to as ADR. When we say alternative, what we’re referring to is that it is an alternative to litigation. Having been a litigator for a while I can tell you that litigation is extremely expensive, it is time consuming, and at the end of the day very risky. In essence, when you choose to litigate a case what you’re doing is choosing to spend tens if not hundreds of thousands of dollars, years of your life and your manager’s time, all to then at the end turn a decision over to a complete stranger, either a judge or a jury. Mediation is an alternative to that and one that’s very powerful and valuable when it comes to business expedience.

First a few minutes about what the mediation process is to begin with. Mediation starts with a mediator, and that is a trained neutral third party who is there to try and assist the parties and their attorneys in resolving a dispute. A mediator usually convenes in a conference room with the parties and their attorneys, and is there to help facilitate a constructive communication. So the process starts off with a mediator asking each side to explain the issues, the interests that they have, what their positions are related to the dispute. The mediator will ask questions to try and ferret out some of the important information and get it on the table for everybody to understand. The mediator often will split the parties up into separate rooms and have confidential communications with both sides and again ask some probing questions and serve as a real reality check for the parties. Explain the risks associated with going forward, some of the strengths and weaknesses of the case, and try and elicit feedback from them as to what they see going forward if they don’t resolve the case today.

A mediator is often an attorney or a retired judge, but the mediator is not there to provide legal advice to the parties. Most often the parties come with their own attorneys to perform that function. But the mediator is there really to promote dialogue between the parties, to serve as a reality check, to be able to generate and talk about creative possibilities for solutions to this dispute, and if the parties want, to provide some sort of analysis or evaluation based on the mediator’s experience in that area of the law.

Mediation is great for all types of disputes. But it particularly works well for business disputes. And that would include things like breaches of contract, government contract disputes, non-compete issues, employment law claims, partnership dissolutions or business dissolutions. All of these types of disputes and issues and conflicts can be resolved with mediation. And that’s primarily because a mediation offers four significant benefits in these types of disputes.

The first is that if mediation is done properly it can save the parties an enormous amount of time and an enormous amount of money. Like I said earlier, litigation is very expensive and can take years. Resolving a case in mediation early on will save all of the attorneys’ fees and all of the time associated with that.

Second benefit is that the parties retain the decision making power. You’re not handing it over to a complete stranger. So you go through the mediation process and at the end of the day it’s your decision to make whether to resolve it on the terms being proposed, not somebody else’s.

The third benefit is that it’s a confidential process. The parties all get in a conference room, discuss this, and it’s confidential. If you litigate, it’s in the public record. So if you’re a business and you’re worried about some of your business documentation, proprietary information you may have, mediation’s a good way of getting it on the table. If you litigate, it’s gonna be part of the public record for all to see.

And the fourth significant benefit associated with mediation is that it can help generate creative opportunities for solutions. Many people who go through the litigation process don’t realize that at the end of the day, the court is very constrained as to what type of remedies or damages or solutions it can propose. The law constrains it to a great degree. Mediation, the sky’s the limit. If you need to rewrite a contract to provide for different terms, that’s fine. We can come up with all kinds of creative ways to try and resolve it that you can never do in litigation.

The bottom line is that there is really no down side to trying mediation. You spend half a day or a day’s worth of time. 80 percent studies have shown of cases settle at mediation, but for even those that don’t some benefit is to be had. You learn more about the other side’s case, you learn more about your own case. It settles two weeks, a month later because you’ve done the ground work, you’ve narrowed the issues. Something positive has come as a result of it. So the bottom line is that mediation can be a great service for you and your business disputes.

So thank you very much. Again my name’s Erik Johnson. If you have any questions about today’s presentation on mediation, feel free to contact me at Erik@CreativeDisputeResolutions.com. And check out our website www.CreativeDisputeResolutions.com. Or send an email to Podcast@LegalRiver.com. Thank you.

Thanks for listening to this edition of the Legal River podcast. If you have a business law question you would like to see answered in a podcast, please email us at Podcast@LegalRiver.com. To reiterate, all views expressed in this presentation are intended only as a general discussion of the issues and should not be regarded as legal advice. For additional details or advice about a specific situation, please consult legal counsel directly.