In my last blog, I discussed the importance of trying to resolve disputes and lawsuits related to your business and business relationships. Mediation is a valuable option that can be used to resolve business disagreements. Mediation is a method of trying to settle a dispute or controversy by having an independent third party facilitate resolution of the disagreement. The mediator is an independent third party who gets involved to help guide the other parties settle their dispute.
Before Choosing to Mediate
Prior to resorting to mediation, the parties should try to get together informally to resolve their differences and come to an agreement. If informal resolution is not possible, then mediation is a good option to use to try to solve the problem.
The Mediation Process
The most successful mediation occurs when the parties have selected a neutral third party mediator who is an experienced attorney or retired judge and is highly experienced in area of the law that involves the dispute. My preference is using retired judges to mediate disputes. Retired judges have a lot of credibility with the parties. Judges have an extensive background, which includes managing parties to a lawsuit, witnesses, and evidence. They have observed many different types of lawsuits in many areas of the law and are highly skilled in evaluating cases. These skills are especially effective in persuading the parties to reach resolve their disagreement.
Mediation can be fairly quick, is private, confidential and can be more cost-effective compared to a lengthy lawsuit. The mediation can be scheduled shortly after the initial request. Most mediation sessions take up to a day, depending on the type of case and number of parties. Lawsuits can be extremely expensive and take months or years to conclude with lots of legal process adding to the parties’ cost.
Mediating During a Lawsuit
Sometimes when lawsuit has already been filed, the parties can choose to mediate the dispute within the court case. This type of mediation gives the parties a way to resolve the dispute without having to go all the way to trial where the decision of their case is up to a judge or jury. Even when the case involves a complex dispute, in mediation the parties have an opportunity to talk to each other, often facilitated by the heater, and discuss their perceptions about the facts and what happened. The most difficult conflict may be resolved when creative solutions and practical ideas can be explored.
Preparing for and Attending the Mediation
At the mediation, the parties (and their attorneys) should have a clear idea of the facts and the law that supports their claims and damages. The mediator typically requests that the parties provide a mediation statement or brief to the mediator and other parties prior to the mediation. The party’s mediation statement explains their position, the parties’ relationship, key facts and law, the scope of their claims and damages and what it would take to settle the conflict.
At the mediation, the mediator talks to the parties together and separately to discuss the strengths and weaknesses of each party’s position, and explain the process and expense of litigation. The mediator spends time in the nation trying to move the parties towards compromise and a mutually agreeable settlement.
Get a Written Settlement Agreement
If the parties are able to resolve their differences, then it is crucial that the parties put the terms agreement in writing before leaving. A written agreement make sure that the parties are clear about the terms of the settlement. When the parties have voluntarily reached their own creative resolution there dispute at the mediation, they may be more likely to comply with the agreed upon settlement.
Mediation is Most Effective with Attorney Guidance
Attorney representation at the mediation helps protect you during the process and gives you the best chance for successfully and creatively solving your dispute. A lawyer can understand your legal issues, is familiar with the mediation process and can advise you on how to effectively present your position and work towards resolving the disagreement. A lawyer can advise you of the legal consequences of potential settlement terms, which can allow you to make a good decision at the mediation. An attorney also can help negotiate and the provisions of a written settlement agreement made at the mediation.
Lisa Wills of the Law Offices of Lisa D. Wills helps clients solve problems and protect their rights. She is skilled in the intricacies of business, real estate and construction transactions and disputes and works in Pleasanton, San Ramon, Dublin, Livermore and Danville, California. If you have questions about resolving business disputes contact Lisa Wills at the Law Offices of Lisa D. Wills, send an email or call (925) 463-9000.