Negotiated Resolutions For Tough Legal Problems

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Using mediation to find a way forward

On Behalf of | Apr 25, 2020 | Mediation |

As even the most loyal fans of television courtroom dramas usually know, they are not especially realistic. Especially in disputes between businesses, one side is rarely dragged away in handcuffs while the other wears a self-satisfied smirk.

The data is scarce, but roughly 45% of small businesses are involved in some sort of litigation in any given year. New business owners might lessen the strain on the hearts by assuming legal disputes to be a routine part of doing business. The good news is very few such disputes wind up in courtrooms. Most resolutions come from mediation.

Winner-take-all is rarely the right goal

Both sides typically want to find a settlement they will find valuable. Mediation is a structured method of finding a sweet spot that achieves this for everyone.

Proving which side is right and which is wrong, or even simply “making a point,” usually should be left out of the mediation room. Typically, everybody already knows what brought everyone else to the table.

On the relatively rare occasion that mediation fails and the dispute goes to trial, is it usually due to one side drastically miscalculating the value a settlement should bring them.  A Forbes opinion piece claims the side that miscalculated is easy to identify because when the trial is over, they lose.

Cooperating, staying flexible and leaving the best for last

Because the goal is to leave both sides feeling they can live with the results, a side that strikes a pose of optimism, cooperation and good will often does well.

For example, another Forbes article even suggests allowing the other side to choose the mediator, the neutral party who works with you and your attorney and the other side and their attorney. The choice of mediator is a dramatic symbol but rarely decisive because both sides and their representatives are typically clearer about the issues than the mediator.

Much of the critical action in meditation may come before the mediation itself, or in barely noticeable moves that take place during mediation. Attorneys may create a carefully considered draft agreement, with as many details ready to fill in as possible. This can focus everyone on getting to the end instead of fighting over how everyone got to the table in the first place.

Strategic moves like taking a long lunch break (as a “cooling off” period) can make a significant impact even if nobody fully notices they happened. Or, if the two have different issues that concern them most deeply, it might be wise to start with the other side’s biggest concern and watch them get bored and disengaged waiting for your side’s biggest concern to come at the end.