There are many advantages to mediate a business dispute, and it’s just not about the money. Here are five of the reasons you should consider mediation before you litigate or as early in the process as possible.
Mediation is a forward thinking process useful in finding out what the parties are hoping to achieve now and in the future. Venting about past wrongs may have a place in the overall experience, however letting go and even forgiving those past mistakes allows both sides to change focus, and open the door to opportunities beneficial to all sides, perhaps those never explored before.
Mediators are neutral, with no preconceived idea about the outcome of the mediation. Mediators provide direction, focus and insight by asking questions attorneys or others close to the parties may not ask. The outcome is up to the parties however a good mediator controls the process allowing freedom to explore possibilities.
Mediation is confidential; litigation is not, unless you go to great lengths to seal records. Even when you know you are blameless, allegations have a detrimental effect on business and morale. The claimant may have a legitimate claim, but they also may want to keep matters quiet for their own employment or personal reasons. All parties, attorneys and mediators agree to keep all information and negotiations private, even if the mediation does not lead to a resolution.
Mediating saves money and time. Litigation and arbitration are both dictated by a set procedure and strict rules. Most courts are backlogged so it will take at least a year, often several, before a judge or jury decides a case, and then there are possible appeals. Arbitration is generally faster, however most of the same procedures apply and an appeal can also occur. If parties are smart about their money and time, they will agree to mediate as early in the process as practicable.
Mediation agreements can be made enforceable as contracts, drafted and signed by the parties with consequences for breach of the agreement, such as paying the attorney fees of the harmed party if litigation is needed to enforce the agreement. It is important parties have their own counsel review mediation agreements before they are signed, to protect their interests. However, trust can be restored when parties willingly put into writing a binding agreement, thereby ending the dispute and perhaps beginning the restoration of a relationship.
There are many other reasons to mediate business disputes and I am happy to discuss those with you. I have seen mediation succeed in many settings and types of disputes. Let me explain the advantages and work with you to put these principals to work for your business.
My legal career is taking another non-traditional turn as I start a mediation practice, Denk Mediation Solutions, but this decision is deliberate and fits perfectly with my past experience and long term goals. Since graduating from law school in 1991, my career has been exciting and challenging, taking turns both planned and unplanned.
When I wrote an article for the Chicago Bar Association Journal in 1996 about taking a ‘road less traveled’ as an attorney, I had no idea that I would be a claims professional for 11 years, run for political office, second chair a medical malpractice trial in Cook County, stay home to be a Mom more hours than I worked as my children entered their teens, work for the family business part time and start a mediation business. Being open to opportunity and seeking new challenges is a hallmark of my legal career. Much of what I wrote then, regarding constantly learning and evaluating is still true for anyone who may not fit into the typical legal position at a law firm, or perhaps for them too. Here is link to the original article:Hilary Denk, Beyond the Law—A Litigator’s Path to a Non-Legal Career, 10 CBA REC., Feb.-Mar. 1996, at 36.
Right now, the Illinois State Bar Association is taking comments from members about the law school curriculum and what changes should be made. For any attorney, no matter what the planned path, optional business and marketing classes are needed, as well as internships in non-traditional environments. As my Father said to me while I was contemplating attending law school, you can do just about anything with a law degree, however it would have been helpful to have received support for that notion from my law school. Perhaps this latest examination of the traditional law school curriculum is recognition that the law firm path is not available or desirable for every law student.
I am excited to be continuing on my unique path by starting Denk Mediation Solutions. I have excellent training and have been resolving matters for many years. I am passionate about offering conflict resolution services for all types of business disputes or transitions and look forward to providing this service for years to come.