What stops businesses – and their lawyers – from using mediation to resolve disputes?
These 5 common misconceptions might be to blame:
- My dispute is too large
- There is no place in mediation for my lawyer
- Arbitration is the only dispute resolution process available outside of court proceedings
- There is no mediation clause in the commercial agreement in dispute
- Mediation means less income for lawyers
In this article Australia’s Everyday Mediator, Rebecca Carroll-Bell, busts the top 5 myths that are stopping businesses of all sizes from using mediation to ventilate and resolve commercial conflict.
So what is stopping businesses from choosing mediation? The following myths may play a role:
Myth: Mediation is only for “small disputes”
Truth: Mediation is for all disputes
Negotiated dispute resolution processes, including mediation, works for large, small, complex, and simple disputes. For example the International Chamber of Commerce’s mediation program manages disputes ranging from below US$ 20 000 to well above US$ 500 million.
Myth: There is no place in mediation for lawyers
Truth: Lawyers can play a vital role in mediation
Mediation offers the flexibility for parties to be represented by as many (or as few) lawyers as are necessary. Ideally the lawyers will support the parties to tell their story in their own words, and to interact with the other parties to the dispute; however, legal advice is essential to forging settlements that are workable, durable, and satisfying.
Myth: Arbitration is the only dispute resolution process available outside of court proceedings
Truth: There are many forms of Alternative and Appropriate Dispute Resolution Processes
ADR (short for Appropriate Dispute Resolution) processes are as diverse as the parties and the types of disputes being resolved.
The three most popular processes are Arbitration, Conciliation and Mediation; however, with an open, creative outlook, they can be combined and applied in whichever ways suit the parties.
Some parties prefer to set aside one whole day for mediation; others prefer a series of half days or shorter meetings. Some parties decide to mediate first and then, if no settlement is reached, have the facilitator make a binding decision (mediation-arbitration). Some disputes require a determination by an expert on a specific issue – such as the value of property – after which mediation can occur (conciliation-arbitration).
ADR is voluntary and amicable; it need not be constrictive or limiting.
Myth: There is no mediation clause in the commercial agreement in dispute
Truth: You can agree to mediation even if its not writing into the small print
Just because the agreement does not specifically state the parties may or will attend mediation does not mean they are forbidden from doing so.
So long as all parties consent, the dispute can be resolved using any of the processes discussed above.
Myth: Mediation means less income for lawyers
Truth: The appropriate use of ADR, including mediation, can lead to increased income for lawyers
There is a false perception that resolving matters through mediation means lower fees for lawyers when compared to arbitration or court trials. In fact when lawyers make good use of ADR processes, referral rates go up and clients keep coming back. Why? Because clients like mediation; and it frees up lawyers’ time to work on other matters.
Professor Donna Shestowsky, of the University of California Davis, has found that litigants in civil matters prefer mediation and other forms of ADR that actively include the clients in the negotiation process more than all other forms of alternative dispute resolution.
So next time you are facing a business dispute, why not try mediation before escalating the dispute to court or arbitration? You might just find that you like it, and that everyone is happier at the end of the day.