Entrepreneurs do well to consider mediation for employment
problems, commercial disputes and even negotiation with government
agencies. Professor Barbara Fick of Notre Dame Law School, who
teaches courses in ADR and labor law, notes that one of the key
advantages of proposing mediation when you have a dispute with an
employee is the opportunity to retain the employee.
"You've already put a lot of time and money into training
this person," Fick says. "Mediation can help you work
through the issues, so you get a person who's happy and
productive."
Prompt resolutions can make a difference in commercial cases.
Lee Goodman, a professional mediator and arbitrator in Northbrook,
Illinois, notes that business cycles are so short that by the time
cases go to trial, products in question may have been redesigned or
discontinued and employees involved may have left. Speedy
mediations can resolve disputes while they're still
relevant.
More and more frequently, citizens and businesses are using
mediation to deal with government agencies, too. The Administrative
Dispute Resolution Act, signed into law a decade ago, set out the
framework for mediation in disputes with the federal government.
State agencies have established similar procedures. Professor
Philip Harter of Vermont Law School notes, for example, that when
there's a problem with a government procurement contract, the
normal procedure is to go through the Federal Board of Contract
Appeals. "That's a mysterious, complex process,"
Harter says. "But now you can explain the circumstances and
try to work it out through mediation." When government
agencies propose new rules or are considering controversial
permits, groups of businesses and citizens are now getting into the
act from the start by negotiating with the agencies and, if talks
reach impasses, moving to mediation.
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Starting with negotiation makes sense for nearly all disputes.
It's only when talks break down that you need mediators.
"A good mediator focuses on why these people can't
agree," says Fick. "Is it that they haven't
formulated the real problem? Is someone digging in his heels? Do
they not know how to negotiate?" When mediators do their jobs
well, she says, the parties will have the skills they need to work
it out next time.
In cases involving businesses, mediation participants must have
the authority to make decisions on behalf of the companies. For
smaller disputes and those in which people are still willing to
talk to each other, mediators may sit down with people from both
sides and simply help them talk things out. For bigger problems,
each side is normally represented by an attorney, who helps gather
documents, prepare the client and submit a premediation
statement.
In a typical scenario, after opening statements by attorneys,
the two parties typically adjourn to separate rooms. The mediator
talks with one group, then the other, back and forth until they
reach a resolution. While the conversation in each caucus is
confidential, the mediator may ask permission to tell the other
side what was said. When the parties reach an agreement that
everyone can live with, the attorneys draft a preliminary agreement
that both parties sign.
All this does cost money, whether you reach a resolution or
not-maybe $100 to $250 per hour for the mediator's time and
skill, or $800 to $1,000 per day. "Not every problem can be
mediated, and some aren't worth the money," Fick says. But
if the issue is escalating into a lawsuit, mediation costs are
pocket change compared to court costs.
Fick also raises the question of public policy. "I think
there's a problem when you privatize civil justice," she
says. If major court cases involving discrimination, defective
products and other matters of principle or precedent were quietly
mediated, the public wouldn't be able to benefit from the court
decisions or the changing laws that often follow. Then there's
the question of abandoning the civil justice system because of the
time and expense it involves. "If no one uses the public
system, maybe we should fix the system," she says.
Maybe so, but people want alternatives in the meantime. One
option is to draw up agreements that submit disputes to mediation,
and if that doesn't work, to arbitration. The threat of third
parties deciding issues can move both parties to work harder on
compromises.
Be sure to choose a well-qualified, skilled mediator. Check with
the American Arbitration Association, which posts bios of mediators
on its Web site (www.adr.org); the
Federal Mediation and Conciliation Service, which focuses on
employment disputes; private mediation companies; and local
independent mediators. Some states even have certification
programs. Ask other business owners for recommendations, and ask
mediators how many cases they've mediated and who can offer
references. If the other party in your dispute is willing to meet
you at the mediator's office rather than see you in court,
chances are, you'll both be better off.
Contact Sources
- American Arbitration Association, (800) 778-7879,
www.adr.org
- Center for Advocacy and Dispute Resolution, (312)
987-1421, 7kandara@jmls.edu
- Lee Goodman, (847)559-9525
- McBride, Baker & Coles, (312) 715-5788, angel@mbc.com
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