Mediation: Benefits for Businesspeople by Norman Pickell

Who likes conflict? In the world of business, certainly not the owners, the partners, the shareholders or the accountants.

Conflict distracts and drains. Sales and bottom lines can be affected.

Businesses usually have ongoing relationships that they want to preserve. These can be with customers, employees, suppliers, landlords and competitors.

Disputes can also arise between two or more employees of the business. Within the ownership group, partners and shareholders can have disputes.

Conflict cannot always be avoided in the business world. The key is how those conflicts are handled.

If not handled properly, a conflict has the potential of disrupting business. Look at the domino effect of a strike or other interruption to the supply chain, whether at the beginning or later on with the transportation of the product.

Of course, the first route to consider when a dispute arises is to talk to the other party. But if that does not resolve the problem, mediation is a wonderful tool to use. Why ?

When a dispute becomes a lawsuit, the parties become adversaries and relationships are destroyed. Mediation helps to preserve ongoing relationships.

Mediation is faster and less expensive than court or arbitration.

Mediation is less disruptive to the business. It requires less preparation time and less time away from the business than court does.

Mediation is private and confidential. What business wants to have its internal affairs or its dispute with a supplier or a customer appear on the evening news or in the local newspaper?

If you go to court or arbitration, you are leaving the decision to a judge or an arbitrator. The result might be the right decision in law but may not be the best one for your business. The break-up of the partnership may adversely affect all of the partners.

In mediation, you retain control over the outcome and you make the decision. No decision is forced upon you. The mediator will not tell you who is right and who is wrong.

Mediation allows for creative solutions. The mediator often is able to help the parties consider options that they would not have considered otherwise.

Mediation allows the parties to focus on what needs to be done to put things back on track, rather than focusing on who is at fault.

While you may spend some time examining the past, most of the time in mediation will be looking at the present and the future.

In mediation you can deal with the individual personalities involved, rather than concentrating on what the law says.

A well-trained mediator is skilled in ways to overcome any impasse that may develop between the parties.

The mediation process is flexible. Sometimes the mediator will have the parties meet in the same room. Other times the mediator will have the parties in separate rooms, with the mediator moving back and forth between the rooms. Most often, the mediator will use a combination of both of these techniques.

I have done mediations where the parties are not even present in the same building at the same time.

Court usually produces a winner and a loser. Mediation helps everyone be a winner.

Sometimes there is a valid reason for a dispute to go to court. But speaking as a lawyer for over 36 years and as a small claims court judge for over 23 years, I can say that most disputes are better suited for being resolved through the mediation process.

Mediation can improve morale among your employees, increase productivity, and help resolve future conflicts. Mediation is less stressful for everyone.

In the end, mediation may even enhance business relationships.

What is said in mediation is "off the record". This means it cannot be used by anyone if the conflict is not resolved and later goes to court. Of course, any agreement reached in mediation is enforceable.

Consider putting a mediation clause in your next contract so that everyone is required to go to mediation if negotiations break down. But even if there is not a mediation clause in the contract, the parties can still agree to use a mediator.

Always remember that in mediation you can terminate the mediation process at any time if you don't like how it is going. So what do you have to lose by trying mediation?


Norman Pickell is a mediator and lawyer based in Goderich, Ontario. For more information about mediation, please visit his web site at www.normanpickell.com.