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Mediate, don’t litigate Featured

mediation“The essence of mediation is that all sides have chosen to work out a dispute between themselves,” says Steve Smith, President and Head Coach with California’s GrowthSource Coaching, a business consultancy.  According to Smith, a mediator is an independent third party who works to being people or organizations together so they can “come to their own solution about resolving a dispute.”

An important aspect of mediation is that all parties are interested in avoiding litigation while still seeking some type of resolution to the issues at hand. Equally as important to note, however, is that “mediators cannot enforce a final resolution. They are just there to help come up with a solution,” says Smith.

More simply put, mediation results “cannot be put into a contract,” he says.

What to look for in a mediator
Before hiring a mediator, it is wise to consider various factors to determine if that professional is right for the conflict at hand. According to Smith, matters to consider include the mediator’s:
  • Track record for dealing with the matters in dispute. Be sure the mediator understands the legalities of the issues at hand.
  • Demonstrated ability to actually mediate business issues
  • Reputation for impartiality
Meanwhile, while all parties to a dispute may suggest a mediator, Smith advises participants do their due diligence to ascertain their level of comfort with the proposed mediator.

Pros and cons of mediation

Just like with anything in life, there are positives and drawbacks of mediating a dispute.

Benefits include:
  • Proceedings are private and can usually be conducted in secret

  • Mediation is usually quicker than other methods of dispute resolution

  • Cost savings

  • All parties to the dispute are given the opportunity to be creative with resolving matters at hand without the necessity of following the constrictions of law.
One of the potential downsides of mediation is that all parties must agree to participate. “If one or both parties can’t or won’t compromise, mediation won’t work,” says Smith.

In addition, if a party to mediation does not do their homework, “you may end up with an inexperienced mediator which could lead to no resolution or a prolonged dispute. Sometimes, that can even heighten a dispute,” he says.

Another important consideration is mediation is a pre-litigation option. According to Smith, “Mediation is out the window once litigation is filed.”

Tami Kamin Meyer is an Ohio attorney and writer who tweets as @girlwithapen. She is the Chair of the Marketing Committee of the American Society of Journalists and Authors.

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