Litigation can be costly and time consuming for all parties to a business dispute. One business dispute resolution is mediation. It presents one possible time-and-money-saving solution. In this method of business dispute resolution, a neutral third party meets with the parties to facilitate a settlement.
Often the parties will agree to mediation or the presiding judge will order that the parties engage a mediator. Although mediation is not usually as stressful as court proceedings, it still involves an element of confrontation and emotion. Educating yourself about what to expect will put you more at ease. Preparation often results in getting the most favorable resolution, although mediation, much like discovery or trial, can present surprises.
The Four Phases of Mediation
Mediation usually progresses through four phases: introductory/opening, exploration, negotiation, and settlement/agreement.
You should be prepared for the sequence of these phases to fluctuate or be combined. With mediation being less formal than court proceedings, the parties and the mediator have a great deal of discretion. The following factors can affect the length and complexity of the phases:
- Multiple parties
- Highly technical issues
- Relationship of opposing counsel
- Amount in controversy
- Breadth of information obtained in discovery
Introductory/Opening Phase
The mediation will most likely take place at the mediator’s office, which is neutral territory. Upon arrival, the parties will gather in a conference room. The people present will include the plaintiff, the defendant, the attorneys for each side, and the mediator. If the parties are businesses, then an authorized agent will attend the mediation.
The mediator will ask both parties if they want to make an opening statement summarizing the party’s position, key issues, and potential damages. If the issues are especially contentious or if the issues are sensitive, the mediator may opt to forego the opening joint session and separate the parties immediately.
Why the Opening Statement Is Critical to Your Case
The opening statement in business dispute mediation is critical for three primary reasons:
- It sets the tone for how the parties are going to negotiate.
- It can persuade the opposition to compromise or concede certain arguments.
- It allows the parties to vent their frustrations and be heard on the issues, which can alleviate some of the emotional buildup.
Not only is the purpose of the opening statement critical, but its delivery can dictate the direction the mediation will take. In delivering your opening statement, as a general rule, your attorney will strive to:
- Be polite by avoiding inflammatory or argumentative comments.
- Be well informed with the facts. For example, by knowing the names of critical witnesses.
- Convey an understanding of the other party’s position.
- Direct the statement to the decision-maker.
What to Do While the Other Side Makes Their Opening Statement
While the opposing side is giving their opening statement, you and the attorney should not interrupt. You will have an opportunity to rebut what they say. Also, you should listen to the other side’s statement and use it as the opportunity to gather additional facts or realize the opposition’s strategy. Your attorney will be doing the same.
The mediator may ask some follow-up questions. At this point, if the mediator feels that the parties may be able to come to an agreement, the mediator may not separate the parties, but standard practice is to split up the parties to begin the next phase.
Contact an Attorney Today to Learn More About Business Dispute Resolution
To learn more about the phases of business dispute mediation and how to prepare for them, contact a business law attorney at Cottle Keen Lopiccolo & Heyde today.
