• mediation speeds up resolution
    saves money, and satisfies clients.

mediations involving ongoing business relationships

The mediation where the parties are in, or have been in, a longstanding relationship presents special problems that may call for changes in the mediation process. It could be an ongoing landlord-tenant, vendor-purchaser or strategic alliance relationship. It could be a dispute among owners of a closely held corporation or LLC or business partners. The dispute could be among members of a corporate board of directors, the leadership of a not-for-profit or a condo association board. It can be an employer-employee relationship that the parties expect will survive the settlement of the dispute. It can be settlement of an estate among members of a family.

In all of these situations, there are two special concerns. First, there are usually personal relationships involved and not just completion of a transaction, so there are emotional components of the dispute that need to be aired and resolved before a business deal can be done. Second, the dispute itself presents a threat to the continuing relationship, as the toxicity of litigation generally prevents people from being able to work effectively with one another in a spirit of good will.

One step that can help move towards a successful completion of such a mediation is for the lawyers to step back and have the principals do most of the talking—under ground rules set and enforced by the mediator—in the opening session. Another step is to bring those affected by the dispute and known to both parties into the process, which can also bring some calmer voices at the table.

Most critical to the process is for the parties themselves to recognize and acknowledge that the dispute itself is the problem and after airing out what has led to the dispute from each point of view, to commit themselves to finding a solution together that will preserve everyone’s dignity and allow the working relationship to continue or to end on terms that are viewed as fair on both ends.

A mediation of this kind will have a different structure and different steps than are used in a conventional civil case mediation. Most, if not all of the time in mediation will be spent with the parties together rather than in separate rooms. The process will challenge the parties themselves to develop the solution, working together.

In such disputes, it is also important for the mediator to stay involved with the parties as they reduce their agreement at the mediation to a definitive written agreement. The forces which led to the dispute can reassert themselves again after the mediation and sabotage the settlement unless there is pressure to consummate the deal quickly and to resolve any details left open using the same methodology.

These points only begin to describe the kind of process that may be employed, but the approach must in any event to be tailored to the needs of the parties and that must be an effort undertaken by the parties and their counsel together with the mediator.

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