Stephen Kaplan, P.C.

Some mediation strategies for business disputes

If you’re a business owner, you already know. If you’re starting your first business now, you’ll soon find out. About 36% to 53% of small businesses get involved in litigation at some point in any given year. Most business litigation never gets to a courtroom, so mediation is likely to become familiar.

In the pages of Forbes, one veteran mediator supplied four pieces of advice (“tricks”) to stimulate new entrepreneurs. Of course, you may be represented by a lawyer, and an attorney skilled at mediation will oversee the process. They’ll familiarize themselves with your specific dispute, so their advice and tricks should probably take precedence.

Showing flexibility and cooperation

Consider letting the other side choose the mediator to create an atmosphere of good will and cooperation. It may help reduce time and money spent on the process. The other side may choose a mediator they hope will side with them, but the mediator may try to appear neutral. Where they side with you, it will make an impression.

Reserve the right to reject a mediator who’s truly conflicted and remember that mediators don’t decide and they can’t force you do settle on anything.

You’re unlikely to win arguments

Your goal isn’t usually for mediation to prove you right, but to get what you want. Everybody has a good idea of what got all the parties to the mediation table, so seeking vindication now is likely only to derail the process.

Kenneling the bulldogs

The attorney you hired to go for your opponent’s jugular early in the process may not be the same attorney you’ll need for mediation. As needs arise, many law firms can supply aggressive litigators, smooth settlement counselors as well as mediators.

Consider leaving the best for last, or even later

Dropping the most important thing on the table at the start may only lead to endless fighting. Leaving your main concern for last, or even for drafting the settlement text, may maximize your chance of getting what you want. Sometimes, the headline dollar amount is not what concerns you most. Pushing that out on the table early may allow the other side to take a nap when the time comes for you to take what you came for.

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