http://bertramadr.com Hello, I'm Gregg Bertram. I've been mediating and arbitrating business disputes for many years. What makes these cases difficult and why is mediation in particular often a godsend to business parties in conflict? First, when a business finds itself in a dispute with another company, a shareholder or partner or a governmental agency, the realization of the problem often arrives suddenly and usually has the immediate effect of deflecting the focus of the leaders of the business. In addition, some disputes can easily threaten the very existence of the business. This doomsday scenario is often a possibility when a small company is threatened by a much larger, more powerful industry player. Other disruptive factors that can come into play involve people and technology. If the dispute is internal and concerns employees, it is in the interest of the business, and usually that of the employee as well, to resolve the conflict quickly and fairly in order to minimize the negative impact upon other employees and enable a return to focus upon the fundamental purpose of the company. With technology changing at an increasingly rapid pace, the cost and delay of litigating such disputes in court can be rendered especially pointless if the technical issues underlying the lawsuit are no longer relevant. Mediation is a particularly valuable tool for resolving business disputes. Its attributes of confidentiality, party control, informality, speed and low cost relative to litigation make it especially appealing. Mediation can and often should occur early in a dispute before parties and attorneys become entrenched and before significant financial costs have been incurred. More importantly, early mediation is also attractive if there is perceived interest in preserving the business relationship be it employer/employee or one between contracting parties. The reasons to mediate business disputes as opposed to others is really; there are really three. The first is privacy. This is important.Most businesses do not want the financial details of their business aired to the public. A lawsuit in court, far from guaranteeing privacy, almost necessarily makes the financial details of a dispute public. A court may or may not seal certain portions of the record. Second; confidentiality. Mediation is confidential, usually by state law; sometimes by federal court rule. Confidentiality enables the parties to talk about risks in a safe environment. And finally, mediation has a very good chance of resolving the dispute. This is very important in disputes where the parties may want to preserve their business relationship. It can include internal disputes, such as employment issues, or external disputes, such as contracting with other parties, or partnership disputes, which is another form of internal dispute. Often, business disputes should be mediated early for the reasons I just mentioned. If business disputes, like many other disputes, are allowed to fester, parties positions can become more entrenched, the cost goes up and the focus of executives, directors and shareholders is inevitably drawn away from the business itself, and instead, to the litigation and the prospect of victory or defeat. If mediation doesn't succeed in resolving the dispute, business litigants should consider the pluses and minuses of arbitration. Like mediation, arbitration can provide confidentiality. But an important difference is that parties lose control over the outcome when usually binding decisions will be made by one or more arbitrators. Arbitration also takes longer and costs more than mediation, although if properly managed, arbitration should still be faster and less expensive than a civil trial. It is important to emphasize that arbitrators are typically governed by the parties' arbitration agreement or clause. Arbitration agreements should be very carefully crafted with input from experienced commercial litigators before disputes arise. It is seldom in a business' financial or reputational interest to have its dirty laundry on display in a public civil litigation forum. At a minimum, this can embarrass executives, give unintended financial advantage to competitors and can further distract the company indefinitely from doing what it does best and what it was intended to do. While never completely preventive, mediation and even arbitration are usually very effective tools by which to avoid or at least contain the fallout. Are you involved in a business conflict, or potentially damaging employee issue? If so, give us a call and let's discuss the particulars of your issues. Bertram Dispute Resolution, Inc. 316 Occidental Avenue South, Suite 500 Seattle, WA 98104 (206) 624-3388

• published: 06 Nov 2013
• views: 5