Having a playbook on how to manage a commercial dispute is a clear money saver - whether you prevail or not. The following tips are suggested essential elements of any playbook. Employing these suggestions will increase the chances that you'll achieve a satisfactory resolution of the dispute through mediation.
First: Make the decision that you are not going to resolve the dispute by bludgeoning the opposing party into a settlement. By the time you are considering mediation, you should have a good understanding of why the matter has not settled. The goal is to avoid litigation because it just makes good business sense for your organisation to get this matter behind you.
Second: Know where you are going. It is important to understand both your goals and points of flexibility or inflexibility. Let your negotiating team know what you would consider an acceptable solution; and that it is OK to explore alternative if the same goals can be achieved. There is no one true way. Remember that what you start off believing to be your bottom line may, in a very brief time, change as new facts or a fresh view of existing facts make significant changes to the settlement point. Mediation is serious business and all team members should be committed to making it work.
Third: What skills do you want the mediator to have? It's your dispute and you should look for skills and abilities that you believe will help get a negotiated settlement. Mediators come with different experiences in resolving disputes. Know the mediator's philosophy towards settlement -is the mediator willing to facilitate a resolution that is to be worked out by the parties or does the mediator have the responsibility to produce the settlement based on knowledge of the industry and the law. Sometimes it helps to have a mediator who has knowledge and experience in the industry in which the dispute arose or in the applicable law in contention. On the contrary, having a mediator that is not an expert in the area of a dispute will be less likely to substitute the mediator's judgment for that of the parties. A negotiated settlement is one that works for the parties although it is not necessarily the perfect answer.
Fourth: Involve your attorney. If you do not have your legal adviser on the negotiating team, make sure your attorney is current in the dispute and how you would like to settle the matter. You want to be sure the proposal does not run afoul of any legal restriction. Of equal importance is not having to take the time to bring the attorney up to speed while people are waiting for an answer. When you want Legal's help, you want it in a timely manner, from someone familiar with the dispute. You should meet with your lawyer prior to attending the mediation. If the mediation is not successful the lawyer may be the person most likely to be asked to pick up the pieces.
Fifth: There needs to be an authority to settle. In the final analysis, a deal can be made only between the individuals that have the authority to sign off on the solution. Make sure that you empower someone on the team with the authority to agree. You should expect nothing less from the other parties to mediation. Sometimes this requires people of equal rank in the corporate structure of the respective parties to convey the message of seriousness and empowerment. Identifying the chief spokesperson for each side lets everyone know who has to agree before the dispute can be declared settled. Mediations can end abruptly, and with significant feelings of bad faith, if it is later determined that the persons who spent hours or days working on a solution have no authority to commit to anything.
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