Business disputes may involve multiple parties, complex contracts and intricate legal and financial issues unlike simpler civil actions that may focus merely upon injury and damages. A larger set of differing laws, regulations and standards may apply including around guarantees, commercial paper, obligations and instruments, contracts and consideration. Perhaps more importantly, long term, or ongoing business relationships may require preservation in commercial disputes. Remedies include greater considerations than mere compensation and may include contract completion, specific performance, or to refrain from or to engage in other specific conduct now or in the future. While insurance may be present the parties themselves may have differing policies and contractual relationships, indemnitors or guarantors, or the parties own assets may be in play.
Irrespective of the standards and law, the mediator must facilitate communication, promote understanding of not only differing positions but critically, shared interests in resolution of disputes so as to come up with mutually acceptable solutions. By adopting a common sense approach to addressing these challenges, mediators can help parties settle their disputes in a way that is efficient, effective, final and mutually beneficial without the uncertainty and expense associated with continuing litigation.
A core concept can recur in mediations involving injury claims where parties come to impasse despite mutual interests in resolution. Here the skilled mediator or negotiator will help identify creative alternatives promote agreement. Because business disputes often carry more nuance and complexity as far as desired outcome than a dispute about a tort case, business cases seem easier to resolve creatively from the perspective of the parties and the neutral. We can however use some thematic concepts around even agreements where price of resolution or position seems inseparable from settlement number or interest. Arguably, everyone wants more money and no one wants less. Closer examination of the problem, however, reveals differences even in a more simple transaction like a tort settlement where the parties interests diverge around money, which can lead a skilled neutral to creative solutions around those central differences. In fact as we often see in successful conflict resolution the very differences allow the parties to reach agreement.
The Value of Money and the Parties’ Differing Positions But Mutual interests
In a tort case the respective price of settlement seems to merge with parties’ interests so as to intertwine with their position about the value of the case. But the parties’ differing interests themselves can create the tension needed for agreement. Even in a simple sale of goods, a seller has to decide their interest in getting rid of inventory for profit has a certain value which may meet the purchaser’s interest in acquiring that good. Here, opposing interests make the deal happen, not the reverse.
A typical medical malpractice case, for example also carries differing interests from the parties perspective that can promote resolution. A significant tort case carries a higher risk of cost expenditure in defense given the express hourly rate charged by defense counsel and the insurance carrier’s willingness to pay higher costs for expert testimony and analysis. The “no stone unturned” nature of defense tactics can also lead to finding substantive defenses in scrutiny of an exhaustive portfolio of medical records. Complexity may further defenses.
The plaintiff can have a far greater willingness to limit discovery and investigation into potential complicating avenues of liability because simplification of theories and proof suit a plaintiff’s interest in clarity. Because defense can carry a higher cost, a defense carrier has greater incentive to settle earlier in the litigation process. This can create an inverse curve in the value of a settlement where the defense feels liability is in doubt since the closer the parties get towards trial, the less the defense has to save in going to verdict. For the plaintiff, savings associated with an early resolution can negate risks of an adverse verdict, and the time value of money invested in bringing the matter to verdict. But in any scenario, a neutral’s job includes to find the place where the parties’ mutual interests in finality and resolution converge despite differing positions, and bring about negotiated resolution by confidential means using objective criteria wherever possible.
As a mediator, it is our role to facilitate communication and negotiation between parties in a dispute outside of court. Alternative Dispute Resolution (ADR) processes such as mediation have become increasingly popular as they offer parties a quicker, less formal, and less expensive way of resolving disputes than going to court.
It’s important to note that mediators are neutral third parties who do not offer legal advice or decision-making authority to the parties. Instead, we assist parties by creating a safe and confidential space for them to discuss their concerns and identify their goals.
We listen to all sides of the dispute, identify common interests, and assist parties in generating options for resolving their dispute. We don’t enforce any agreement or make decisions on behalf of the parties. Instead, we help the parties come to an agreement themselves that is mutually beneficial and minimizes the potential for future disputes.
Mediation can be particularly helpful in resolving disputes in the DMV and New York metropolitan regions, where parties may have complex relationships, such as in business, or community settings and major exposure to the uncertainty, expense and risk of trial. Successful mediation can help maintain relationships between parties while resolving the dispute in a way that satisfies everyone’s interests.
