With the best of intentions, strategic partnerships and major projects can still falter. Such failings are typically down to a lack of quantifiable goals or a failing in the translation of business outcomes to contract terms (which are typically easily avoidable), but in this article I am not concerned with the why. Instead I want to explore the mediation process, and more specifically, its value in effecting a mutually beneficial resolution to a partnership that has run its course. If you have attempted recovery to no avail, mediation is the likely next step — before you reach the courtroom.
Motivators for Mediation
People tend to have different motivations for going into mediation. There are typically three ways in which one tends to consider mediation:
- A necessary evil
- A by-product of due process
- The best commercial avenue for a solution
Those who approach mediation with option three in mind are likely to get the most out of what is essentially a mandatory process. A judge is likely to frown on two parties who have not attempted all reasonable avenues including mediation to resolve their dispute, and as such, it pays to be fully invested in the process.
The Benefits of Mediation
The primary benefit of mediation should be obvious — a pre-litigation settlement will cost far less (in time, money and man hours) than due process through the courts.
However, if litigation is truly avoidable, mediation can provide further insights into the strengths and weaknesses of the opposing party’s case. Regardless of your appetite for compromise and settlement, mediation is a valuable process to fully engage in.
What is Mediation?
In short, mediation is a vital cog in the dispute resolution process.
Whilst many people consider a mediator an adjudicator of some kind, nothing could be further from the truth. On the contrary, a mediator is not there to take sides or enforce a course of action — primarily their job is to broker a mutually agreeable deal.
Some mediators describe their role as a “shuttlecock”— bouncing back between either party — in an effort to bring about a mutually agreeable solution to the issue at hand. The mediator’s conversations with both parties are entirely confidential, but they can gently probe and enquire in an effort to bring them together.
Once an agreement is reached, a mediator will attempt to get it formally ratified immediately (or as soon as is practicable). A full and final binding settlement executed by authorised signatories is the only absolute positive conclusion to mediation.
Ultimately, successful mediation relies upon the skill of the mediator and the willingness of each party to accept the benefits of compromise.
Qualities to Look for in a Mediator
The skill and experience of the mediator is of vital importance in producing a positive result. A good mediator will have most (or all) of the following characteristics:
- Good with people
When the parties are at loggerheads, a mediator’s personality and ability to deal with potentially heated situations is arguably as important as their experience and knowledge. It may sound far-fetched, but a lot of what a mediator does is essentially like couple’s counselling — persuading each party to understand their counterpart’s viewpoint and determine a mutually agreeable course of action.
Don’t Underestimate Mediation
I hope that this article has persuaded you of the varied merits of mediation. It is not a process to be taken lightly, nor should it be seen as merely a necessary evil.
With a good mediator and an open mind you have a good chance of saving yourself a lot of time and money with a successful settlement.
Creative Commons image courtesy of European Parliament