The Top Ten Rules of Mediation
The CEO is the key player in mediation of a business dispute
Mediation is much different than business litigation which is dependant on the company’s lawyer. While the lawyer has an important role in mediation, the decision maker for the company — typically the CEO — can and should be actively involved and in control throughout the process
Mediation is not 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 in 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.
Second, mediation is a confidential process. This 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 used or disclosed to the other side without permission.
Third, mediation is a learning process for both sides. During mediation, each party will gain an insight into what the other side is thinking and feeling.
Fourth, mediation is a negotiating process conducted through an intermediary – a mediator. One-on-one negotiations are difficult and less productive because each side typically advocates its own position without listening to the other. On the other hand, in a private mediated discussion about the case, a knowledgeable mediator listens to each side without the bluffing and puffing common in one-on-one negotiations.
Fifth, mediation is an analytical process for the mediator. The mediator’s job is to listen, to discern points of agreement and lead the parties to a mutually agreeable solution.
A mediation of a business dispute works best when not only legal counsel is prepared, but when the CEO is completely informed about the mediation process, the facts and laws of the case and the risks of non-settlement. In short, the CEO must be prepared to participate in the mediation process.
Here is a list of 10 items you, as CEO, should consider as you prepare for the mediation.
- Know your case. You need to know the strengths and weaknesses of your case. Legal counsel’s job is to analyze them and explain them to you.
- Know your adversary’s case, and understand it as if looking at it through their eyes. Think about what may be driving the other side.
- Think about what is important to your company. Is it all about money, or are there non-monetary considerations?
- Expect the mediator to listen to you. If he/she does not listen attentively and sympathetically, get a new mediator. If a mediator says, “Let’s cut to the chase,” walk out.
- Be prepared to participate in the discussions, both in joint sessions with the other side, and in caucus sessions with your side and the mediator. Your lawyer should not have to do this job for you.
- Listen to the other side, this will allow you to gain insight into what they may be willing to settle for. Also, listen to the mediator who will help you explore settlement alternatives and your attorney whose analysis of your case is important; but make up your own mind. Remember, it’s your company’s case.
- Agree to meet initially in joint session with the mediator and the other side. This meeting is your opportunity to size up the other side, and their opportunity to size you up.
- Consider the opportunity to make a deal on top of a settlement where there may be a continuing relationship with the other side.
- Do not allow yourself to be coerced into settling. Mediation is an entirely voluntary process.
- Come to the mediation prepared to negotiate in good faith.