The resolution of a dispute does not just occur on the day of the mediation. Each participant to mediation needs to prepare their own strategy for negotiation in the settlement. Based on my experience as a mediator, these are a collection of tasks each participant needs to complete and to discuss with their council and the mediator before the mediation.
These tasks and the discussion with the mediator are confidential. They are confidential under both Attorney Client privilege and under mediation confidential provisions in court rules, statutes, and standards.
How are you going to deal with them after the dispute?
In the previous task, you were asked to describe what you wanted life and/or business to look like five years after the dispute has been resolved. This task is more focused on how you are going to deal with your opponents five to ten years after the dispute is resolved.
The easy answer to this question is that ‘I never want anything to do with them again.’ If the dispute is an automobile accident then that might work as an answer. But if your opponents are commercial suppliers, customers, fellow businesses in a limited market, employees or employers, neighbors, and even family, the question becomes a lot more challenging.
I have mediated boundary line and other disputes between neighbors. It becomes a lot more difficult to resolve when both neighbors realize that they will still be living next door to each other for possibly decades. I have also mediated disputes with family owned business. They had to take into account the likelihood of having to sit down for Thanksgiving dinner with each other. There were also the unintended impacts on other family relationships that were not in dispute. Commercial enterprises need to evaluate the publicity of the dispute and the possible need for an on going business relationship now and in the future.
Carefully list and count the costs regarding different solutions to the dispute. Might there be a better settlement that reduces future conflict. Also evaluate the costs of litigating the dispute to its conclusion on the future relationship to your opponents.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
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