Business litigation is lawyers’ work – factual investigation and legal research, drafting pleadings, making and responding to motions, conducting and responding to discovery, and trying the case. Other than providing data, however, the role typically played by the company’s CEO in the litigation is marginal at best.
Mediation is a much different kettle of fish. While the company’s lawyer has an important role in a mediation, the decision maker for the company – typically the CEO – is the key hands-on player. In trial, the lawyers run the show. In mediation, the CEO can and should be actively involved and in control throughout the process.
Mediation is a process quite unlike that of a trial.
First, from start to finish mediation is a voluntary process. No party can be compelled to participate in a mediation. Nor should any party to a mediation feel coerced or intimidated into settling. The opposite is true in litigation where parties are compelled to testify, produce documents, and admit or deny allegations. The resolution of a business dispute at trial is anything but voluntary. The judge and jury rule up or down.
Second, mediation is a confidential process. Nothing said, done or presented at the mediation can be used or disclosed later. Confidentiality encourages the parties to be candid and open. Parties can discuss the case with the mediator in caucus with confidence that what they say will not be disclosed to the other side without their permission.
Third, mediation is a learning process for both sides. At the mediation, each party, probably for the first time, will gain an insight into what the other side is thinking and feeling. Most important, both sides will focus on what their real interests are, as well as those on the other side.
Fourth, mediation is a negotiating process facilitated by a trained neutral – a mediator. Trained mediators have solid negotiating skills and they coach the parties to be good negotiators. Negotiating skills are not necessarily intuitive but they can be taught and learned. For a primer on how to negotiate, see Part Four of Chapter 11 From Start to Finish – A Comprehensive Guide to Handling Business Bankruptcy Cases.
Fifth, mediation is an analytical process for the mediator who, throughout the mediation, listens carefully and sympathetically to what each party says to figure out where the interests of the parties are likely to converge, thus resulting in a settlement. The mediator must identify the “blocking,” often emotional issues, and find ways to minimize them as impediments to settlement. The mediator, who is not a judge, will not spend any time deciding or opining on who is right or wrong. Instead, the mediator’s job is to listen to discern points of agreement and lead the parties to a mutually agreeable solution.
Preparation, Preparation and Preparation.
Preparation by both the CEO and legal counsel is the key to a successful negotiation. Then, be ready to negotiate collaboratively. Listen to the other side, and most importantly, to the mediator. Use the mediator to seek information from the other side and to sound out ideas that may lead to settlement. The process is a satisfying one, and the best part is that any resolution reached will be what you want to do – not what may be imposed on your company by a judge.
