Using mediation as a good business tactic

When the current covid19 pandemic eventually begins to subside and the country again opens of business, many businesses will be facing vastly changed circumstances. However, one tool of business will continue to be relevant, that is, the need for resolution of issues that may be in dispute. The following six suggestions for making the most of alternative dispute resolution techniques are simple and effective strategies that expert mediators use for overcoming obstacles while supporting the mediation and dispute resolution process.

1. Planning

Before the mediation process begins, the mediator (or mediation agency) helps the parties decide where they should meet and who should be present. Depending on the context, each side might have lawyers, co-workers, and/or family members on their team. Both parties must select the mediator from a roster of trained, certified and experienced professionals, some of whom have specialised training in the technical details of their particular dispute. In some cases, a dispute requires an independent third party to assess these technical details; this is called an expert determination.

2. Mediator’s introduction

With the parties in the same room, the mediator introduces the participants, outlines the mediation process, and lays out the ground rules, which are important in establishing the constructive tone of the dialogue. The mediator explains the goal of the process: to help both sides come to a negotiated agreement and to amicably resolve the business relationship.

3. Opening remarks

Following the mediator’s introduction, each side has the opportunity to present its view of the dispute without interruption. In addition to describing the issues they believe are at stake, they may also take time to express their feelings.

4. Joint discussion

After each side presents its opening remarks, the mediator and the disputants are free to ask questions. If the parties reach an impasse, mediators diagnose the obstacles that lie in their path and work to get the discussion back on track.

5. Caucuses

If emotions run high during a joint session, the mediator might split the two sides into separate rooms for private meetings, or caucuses. The mediator assures each side that the information they share in caucus will remain confidential. The mediator will confirm with either side how much of what is discussed in caucus can be shared with the other party.

6. Generating options

At this point, it’s time to begin formulating ideas and proposals that meet each party’s core interests. It is important to know the difference between positions and interests; an experienced mediator can help the parties to separate their stated demands (positions) from what they really want (interests). The mediator can lead this negotiation with all parties in the same room, or s/he can engage in “shuttle diplomacy”, moving back and forth between the teams, gathering ideas, proposals, and counter-proposals.

Depending on the complexity of the issues, mediation might last mere hours, or it could take days, weeks, or months to resolve. Some resolutions will truly be “win-win”; others will be just barely acceptable to one or both sides – which is better than the prospect of a continued costly fight or court battle.

If the parties come to consensus, the mediator will outline the terms and write up an agreement. If you fail to reach agreement, the mediator will sum up where you have left off and may engage you in a discussion of your non-settlement alternatives.

For some businesses, even before the prospect of litigation looms, a good mediator can support the resolution of a potential conflict in a negotiation, or act as a mediation adviser in dispute avoidance throughout the life of a project. Many construction contracts build dispute adjudication Boards into the project implementation, effectively ensuring that disputes do not end up in court, causing project stoppage and cost overruns.