Give Peace a Chance

Mediation is Litigation’s Heineken. It reaches the Parties other ADR processes cannot reach. Like when risks are involved, such as unwelcome reputational issues, third party satellite issues, or wrecked business relationships. Or when available legal remedies are unlikely to get you the result you want, where and when you want it, net of costs.

For international business disputes, mediation also offers litigators, dealmakers, GC’s and transactional lawyers the ability to act BEFORE issues escalate or relationships deteriorate, and

• create tailormade solutions that no judge or arbitrator would even be able to award, and
• reset and improve core relationships.

In a sense, mediation is ‘beyond’ law, enabling parties to step away from a dispute and offering a safe environment in which to bridge gaps and resolve issues there and then.

And it works for:

• international business disputes, which can be complicated by national or cultural differences
• disputes where key business relationships are at stake, including Supply Chain / Procurement /Licensing & Distribution/Franchising
• partnership, founder and shareholder disputes, where respective contributions or interests may have shifted over time
• ‘David & Goliath’ disputes, e.g. between a bank / financial institution and a small business owner, or insurer and an individual, possibly involving disparities over objectives, expectations or resources
• disputes where people have divergent values or perspectives. Or where anyone’s primary concerns are not financial, but social. Or creative, like in the art or entertainment worlds
• business related disputes between family members or in family businesses, where personal interests and emotional triggers may be complicating factors
• where anyone feels unfairly treated, taken advantage of, or lied to; where people are ‘talking past each other’; or where egos are involved, or
• difficult conversations where having someone who can help people navigate sensitivities safely and work through issues constructively could be invaluable.

So why don’t people use mediation more?

• Lack of awareness: Outside the litigation world, people often don’t know what it is, let alone how effective it is: Including me, back when I was an in-house lawyer. When someone first suggested mediation to me, it struck me as implausible and slightly insulting. The “What do you think I do?” factor. Whereas now I think

‘What have you got to lose? If it stops wars, it can certainly stop a business dispute.’

• Uncertainty of a binding decision: Except, provided everyone wants it, how about this for a quick, inexpensive solution? Mediate but on the agreed understanding that if no binding settlement is reached within 3 weeks of the mediation, a pre-agreed third party arbitrator promptly issues a binding determination based on the papers submitted to the mediator (but without knowing what happened at the mediation).

So you get all the benefits that mediation offers, plus the added certainty of a ruling – all inside a 6 week window.

Accepting his Oscar for Oppenheimer, Cillian Murphy dedicated his award ‘To the Peacemakers everywhere’. Do you think, just maybe, he meant commercial dispute peacemakers too? I am not suggesting mediation is always the answer, or making a plea to ‘help us help Cilian’, but unless you and your client are pretty confident that litigation or arbitration is going to deliver the best answer for them, why not – to subvert the old ice-cream van refrain ‘Buy me and stop one’.

*This article was written for London International Disputes Week