The mediation of small business disputes is very similar to mediating family and divorce disputes. When partners or members of a small business decide to break up, they have usually been in a relationship for quite some time. When the parties sit down at the mediation table, that long term relationship, in many ways, is like that of a family.
The parties generally know each other and have known each other for a long time. They have perhaps vacationed together, spent the holidays together, and often have gone to each other’s weddings. In other, the parties of very familiar with each other.
In this fashion, a small business mediation is very similar to a divorce mediation or a family mediation. In effect, the mediator will recognize these dynamics and will ensure that the mediation process is safe, comfortable, and conducive to the settlement of the disputes at hand.
Mediation of small business disputes is much cheaper than hiring a lawyer. Instead of the parties paying two lawyers to represent them in litigation, the fee of a private mediator will usually be split between the parties. Mediation is a much more efficient process that takes away much of the anger and hostility generally associated with litigation. Parties are generally more satisfied with the result after a mediation than with litigation. And mediation can take place in one day, usually in a few hours. Of course, much more complex disputes may take a full day or even days to complete.
How does the mediation process work? At the beginning of the mediation, the mediator should introduce herself, her role in the process, and explain and explain what will happen at the mediation. After the mediator’s opening statement, the mediator should give each of the parties an opportunity to state the issues as they see them. It is important at this point that both parties feel as though they are being heard. The mediator should not allow interruptions that are disruptive to the process. Thus, the mediator should provide a notepad and pencil to both parties so that when a party has something to say, and it is not that party’s turn to speak, the party can take notes on the things that she would like to say and talk about those things when it is her opportunity to speak.
After the mediator identifies the issues that the parties would like to discuss, the parties will then proceed to brainstorm about possible ways to resolve the dispute. Thereafter the parties may engage in negotiation and bargaining. And finally, at the end of the mediation, after the parties have reached an agreement the mediator will normally draft a Memorandum of Agreement to finalize the details of the settlement. However, if lawyers are involved in the mediation, the lawyers, and not the mediator, will normally draft the Settlement Agreement at the end of the process.
The mediator may or may not use the caucus during this type of mediation. It all depends on whether or not the parties plan to have a future relationship. If the parties to the business dispute will continue to work together, as parents will have to do after a custody or visitation mediation, the mediator might wish to keep the parties together in the joint session in an attempt to teach them how to work together in the future. On the other hand, if there is no future relationship contemplated between the parties, it may be better for the parties to meet privately with the mediator in a caucus. A caucus is a private meeting between the mediator and one of the parties. The caucus will allow the mediator to meet privately with the parties which will, in all likelihood, encourage the parties to speak more candidly with the mediator.
Caucuses are normally private and confidential, and nothing said in the caucuses will be disclosed to the other side without permission from the party divulging the information.
If lawyers attend the mediations, expect the mediator to use the caucus. This is because when lawyers are involved, they generally work much better and negotiate much more effectively when then are in different rooms and negotiate through the mediator. An effective mediator will then act as a shuttle diplomat, taking offers and counter-offers back and forth between the parties.
Regardless of whether you are participating in a family mediation, divorce mediation, succession or probate mediation with siblings or other family members, civil or commercial mediation, small business mediation, or any other type of mediation, it is important to choose the right mediator. All of the mediators at Conflict Free Divorce and Mediation Training Company have been trained to conduct mediations with small businesses, family members, and others who may have a future relationship.
If you would like to have your disputes mediated by Conflict Free Resolutions or Mediation Training Company, please feel free to contact us today at 504-302-2462 or by email at firstname.lastname@example.org or at email@example.com.