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Why Mediate?
Published Wednesday, May 3, 2017

In business, we all want it the way we want it, we want it done now and we want it done right at the right price. Naturally, conflict occurs, as business relationships can be complex. When disputes arise, we want resolutions to be fast, cost-effective and lasting.

Mediation is one way to achieve those results without starting a legal war.

What is Mediation?
Mediation is a form of alternative dispute resolution that is an informal, confidential process whereby a professional, neutral third party attempts to facilitate and negotiate a resolution to a business dispute that is acceptable to all parties involved. Mediation is conducted by a trained mediator who acts as a guide or negotiator. The mediator helps the parties find common ground and creative solutions to facilitate a resolution that addresses the concerns, needs and interests of the parties with the goal of a settlement that all parties can live with.

Studies show that mediation has an 80 to 90 percent success rate when using an experienced mediator who is knowledgeable in the subject matter involved, such as business and commercial law. Mediation is substantially more economical than civil litigation, which can take years to wind its way through the court system and generate big bills. Mediation is expedient and economical, resulting in thousands of dollars saved for the businesses involved.

Most mediations are scheduled quickly and most disputes can be resolved in a day or less. It is a private, voluntary process not subject to public knowledge and possible media attention, as can be the case with civil litigation.

Disputants collaborate to reach a resolution they can live with. The process prevents escalations of conflict and often helps to reduce hostility. Sessions are scheduled during the day or evening hours to accommodate the parties’ schedules.

Mediation is low-risk versus a court proceeding, which can result in judgment with negative impact. Agreements reached through mediation are enforceable contracts, and participants are more inclined to honor the agreement as they had a role in its creation.

As such, participants have more flexibility to come up with creative solutions that are not available in a courtroom setting where a verdict or decision would be handed down by a judge or jury. Mediation also makes future disputes less likely.

Litigation Versus Mediation
Litigation is an imperfect tool to meet business objectives. Its hallmarks are the 4 C’s: Costly, Contentious, Contested and Continued. Mediation, on the other hand, is cost-effective, confidential and collaborative; where creative solutions can be reached and common ground and closure can be found with a professional who is neutral. Moreover, it preserves relationships.

Businesses want to run smoothly, retain their reputation and their customers while expanding. When business relationships break down, all are at risk. A skilled mediator helps business leaders to re-evaluate options and re-start stalled negations, minimizing distractions and focusing on what matters most to a company.

Mediation is a forward-looking process that includes:

• Clearly defining the issue;

• Reviewing areas of common interest;

• Brainstorming options;

• Linking options with goals;

• Neutrality and guidance by the mediator.

A key advantage to mediation is that it surfaces concerns and fears of the parties, addresses them and overcomes them. Strict legal forums don’t allow for much more than facts, supporting evidence, tight procedural rules and handing over the issue to someone who takes a technical view and declares a winner. At the end of the long path of litigation, more likely than not, both the losers and winners hold onto their fears and distrust waiting for the next battle of the businesses to take place.

Kathleen Marquis is an attorney and court certified mediator with Marquis Mediation in Manchester. For more information, visit MarquisMediation.com, call 740-815-8687 or email Kat@MarquisMediation.com.

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