_ So you have given some thought about whether to call a mediator for your case, but are still not sure about picking up the phone.  This article will give you some ideas about how to prepare for and make the most of that telephone call.

When you first call a professional mediator there are a number of preliminary things that you should expect, such as the typical intake questions of who you are and your contact information. You should be prepared to provide the mediator with the names and contact information of the parties as well as their representatives.  A good mediator will always perform a conflicts check, and if the mediator is also engaged as an attorney, the conflicts check will typically include conflicts from their legal practice (and that of their law firm) as well.  After that is complete, there are a number of questions that a trained mediator will likely ask you to help evaluate the appropriateness of your case for mediation, and what they need to know in order to begin the process of taking on an engagement.

So, you find yourself grappling with a difficult case, one that you believe could be settled short of a trial or litigation.  Or you find yourself in a negotiation that should be running smoothly, but for some reason (either known or unknown), the matter and the parties have become stuck.  What are your options?  In matters that are already in litigation, moving the case forward to trial is always an option; as is breaking off negotiations in the matter of business deals. But is this the best option for your client?  And, might there be better and more effective alternatives to these options?  One option might be mediation, but how do you determine whether this is the right alternative?  This article will provide you with some questions to ask yourself to help you determine if mediation is the right choice for you and your client.

To start it is important to be clear what mediation is, and what mediation isn’t.  At its essence, mediation is “facilitated negotiation.”  Mediation is defined as: "[a] process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” [1].  A mediator (or a team of mediators in some settings) is a trained professional who will use a number of strategies and techniques, combined with professional judgment, to assist the parties to reach their own agreement.  A good mediator will be neutral and impartial in their work with the parties, and except in some specific instances, the process is entirely voluntary. Although the parties may negotiate a binding agreement, the process is non-binding, and the mediator does not make a decision in the matter. One of the advantages of mediation is that the mediation process is confidential, [2] and covered by a number of legal privileges [3] that protect mediation communications. As a result the mediation process creates an opportunity to have an environment conducive to a negotiated settlement.

The central question you need to answer: Is the case or matter appropriate for mediation? Mediation is not a panacea for all disputes, and not all cases are good candidates for mediation. The following are some of the considerations that you and your clients should evaluate before deciding on seeking out a mediator. (Note: A good mediator will discuss these issues with you in the event that you call them; during the intake process, they can sometimes be a valuable resource in helping you make this determination).

These questions should be applied to all parties to the dispute:
  • Are the issues (legal and otherwise), and parties to the dispute clearly defined and identified?
  •  Are all the parties necessary to reach an agreement willing to participate in the mediation process?
  • Are all the parties necessary to reach an agreement willing to negotiate in good faith? (“Good faith” meaning: are the parties willing to share information open and honestly, willing to listen to the other party, in possession of some flexibility and willing to compromise, etc.).
  • Would the parties benefit from an expedited resolution to their issue?
  • Would the parties value confidentiality in the process and the settlement?
If the answers to the questions above are “yes” then the matter may be appropriate for mediation. The questions are not exhaustive and there are other possible considerations, such as whether the issues involved are concerned with precedent, and important principles are at stake. It can also matter sometimes if the parties have unrealistic expectations with regard to the strength of their case, or amounts they are expecting from a jury award or otherwise.  There are still other situations in which one or both parties are simply not ready or willing to negotiate in good faith or to settle the matter, and desire for the conflict to continue.  In those cases, mediation is likely to not be a viable solution.  Despite these limitations, mediation still proves to be a valuable tool to resolve disputes, and a conversation with a trained professional mediator may be a good place to start to determine if your case might be appropriate for mediation.

Business has never been easy - this is especially so today.  The pressure of a difficult economy has required businesses to make tough choices simply to remain viable, and this pressure has been felt by all.  In the case of family-owned businesses this kind of pressure is often compounded by another layer of dynamics - a much deeper layer with longer term consequences than the current economy.

With over 80% of business ventures in the United States being closely held, often times with the ownership structure primarily composed of family members, it would make sense that dispute resolution professionals who serve these types of business clients have an added layer of skills to deal with the unique dynamics that exist within the context of a "family business" conflict.

Over the next several weeks, I will be blogging about the unique issues and challenges that face mediators who work to assist the parties engaged in a family-owned business dispute, and some of the ideas and tools that are available to help warring factions within a family owned enterprise to move through the conflict and move forward.  Sometimes these can lead to a peaceful resolution of the conflict - other times it is an acceptable outcome for the parties to simply work out their differences in a more civil fashion.  In any case, the use of mediation skills and other forms of private diplomacy in these areas by a trusted neutral can make a significant difference in helping the parties with their conflict, which is often framed as a "business problem", but which is most likely a personal problem in disguise.

I hope that these mini-articles on family-business conflicts will be of use to both family members engaged in them, as well as to the mediators, lawyers, and other professionals working with their clients to navigate these sometimes treacherous waters.

"Conflict is an inescapable part of life and is not inherently uncivil. Indeed, ...it is the essence of civility to openly deal with conflict in our organizational lives through respectful discussion and clarification. Conflict is uncivil only when it is either hidden or when, through the unnecessary use of the adversarial process, it is disrespectfully blown out of all proportion." -- M. Scott Peck.
"The most successful executives are often men who have built their own companies. Ironically their very success frequently brings to them and members of their families personal problems of an intensity rarely encountered by professional managers. And these problems make family businesses probably the most difficult to operate." -- Harry Levinson