Why Mediate?
There are many good reasons why successful business leaders choose to mediate.
When conflict arises (as it naturally does in all walks of life and in all contexts of human coexistence), they choose collaboration over confrontation.
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Here are 6 benefits that facilitative mediation gives you:​​​​​​
1. Stay in control
When you litigate a dispute, you’re putting your entire fate in the hands of someone else.
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More often than not, that will be a judge (or arbitrator) with a limited background in business (if any). They’ll be the one in control of the process. The one making decisions about what your business can and can’t do. Telling you what you must or must not do.
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Bear this in mind: no matter how strong you think your case is, there’s no way to predict the result or the effect that the outcome may have on your business. Remember also, as George Herbert warned back in 1640, "those who live in glass houses shouldn't throw stones".
With facilitative mediation, the opposite is the case. First, you’re in complete control. You control: ✓The issues ✓The process ✓The settlement terms ✓The outcome and future direction of your commercial relationship My role, as the mediator, is not to judge the situation. It's not to give legal advice, tell you what to think, or suggest solutions. While I might share hypothetical examples building upon analogous experiences of what I’ve seen through my corporate career, I won’t offer my legal or professional opinions. I’m not there to suggest, let alone dictate, a deal, but rather to help you and the other participants come to a common solution that all parties can live with. Secondly, you’re free to leave whenever you want. At any time before you reach and sign an agreement, you have the power to end the mediation process. No one can force you to stay. No one will make decisions in your absence. No one will impose an outcome upon you.
2. Keep things confidential
Litigation can lead to unwanted public exposure about:
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The fact you have a dispute
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How it came about
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How you’re dealing with it
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What witnesses (typically, business executives or senior managers) say in court
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The outcome of the proceedings​
It can mean others (including the press) have access to court papers and a wealth of sensitive information – information that can be detrimental to your company but invaluable to your competitors, customers, and suppliers. This includes (depending on existing protections): •Product specifications and pre-product concepts •Lists of strategic components and key suppliers •Business models •Commercial proposals •Go-to market strategies •Expert opinions (potentially on sensitive issues such as product quality) •Other internal presentations and other materials With facilitative mediation, you can avoid all this. The entire process is conducted in private and on a without-prejudice basis. Most mediations lead to resolution, but if the dispute does progress to litigation, what’s discussed during the mediation – in particular any statement made in a genuine attempt to settle the dispute – can’t be used in court by any of the parties as evidence of admissions. That gives you the space to be more flexible. To find pragmatic solutions, settle your differences, and reach a compromise that suits all the participants. Without needing to admit liability. And without fear of what the wider public might think.
3. Avoid years of uncertainty
Litigation is notoriously slow. It always has been. And with courts struggling to get through a backlog of cases, you can expect to wait many years before your dispute gets to trial – by which point, some of the executives or managers involved may have left the company, making it harder to evidence your case. Even then, you may have to wait several months for the court’s decision.
But that’s not necessarily the end of the matter. The losing party may choose to appeal, which means a further period of uncertainty and mounting costs – costs that could easily escalate into millions. And when there’s one appeal there’s a good chance there will be another. This makes life difficult, especially if you need to carry on doing business with each other in the meantime. But where time is money, mediation is a fast and cost-effective route to resolution and certainty.
4. Minimise emotional stress
Corporations don’t litigate. People do.
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Yes, claims are brought in a company’s name and it’s the company that has to find the funding for legal costs and any court order for damages. But it’s individual employees, executives, and directors who shoulder the emotional burden.
They’re the ones lying awake in bed at 3 AM worrying about giving evidence in court under the scrutiny of the public eye. Trying to predict the hostile questions they might be asked in cross-examination. Anxious about the effect their answers could have on the company’s reputation and their future employment. With your company or elsewhere. They’re the ones taken away from their day-to-day tasks and business priorities. Distracted by the time-consuming process of preparing for a case. Hindered in their attempts to make measurable progress towards a year-end bonus, profit share, or stock options. Mediation is the pin that bursts that balloon. The pill that relieves those headaches. The path that leads to renewed productivity and a stress-free environment.
5. Keep costs down
Litigation can be costly. If it’s unexpected and you haven’t budgeted for it in the financial year, then the costs can become prohibitive. Expect them to skyrocket once you enter the discovery and witness statements phases. (But don’t expect to get them all back, especially if you haven't attempted mediation or other forms of alternative dispute resolution.)
Mediation, by contrast, could be seen an investment. Not only is it a fast and cost-effective way to reach a settlement, but it also presents an opportunity to rejuvenate a previously successful commercial partnership. And by helping you reach an agreement, it allows you to reduce or reverse your P&L provisions when your dispute is finally settled. Worst case scenario, even if full agreement isn't reached on all the issues, mediation can help you narrow down the points in dispute so you can then reduce the costs of litigation. Given that 68% of cases in the Commercial Court settle before trial (and a further percentage of cases settle between trial and judgment), does it not make sense to save time, costs, and energy by settling as soon as you can? Mediation allows you to do that. But there's also another benefit. Win a case after years of litigation and you may end up losing a customer. A supplier. A whole host of future business opportunities – not least because other customers or suppliers may be hesitant to do business with your company. Invest time through mediation to better understand the interests you share with your commercial partner, and you can both emerge as winners.
6. Achieve a better outcome
Litigation often leads to parties drawing further apart. That’s because a court claim is adversarial in nature. One party wins; the other loses.
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A zero sum game, in other words?
Not quite. There are many cases where neither party is happy with the outcome imposed by the court. Those are the types of cases that see both sides appeal against different aspects of the court’s ruling. The reality is, in litigation, there are no real winners. Even if you come out on top, it's unlikely the court will award you all your legal costs – especially with a growing trend for judges to expect parties to have exhausted all avenues for resolving their dispute amicably. You may also find you've lost a customer or supplier. By contrast, mediation offers a platform to reimagine your commercial relationship. An opportunity to redefine the terms of your continued collaboration in a way that benefits you both. A judge will concentrate on the past. A mediator can help you build a better future. But only if they approach things in the right way.
