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San Diego Business Lawyer – Business Mediation
 
Many involved in the legal profession are of the belief that the present lawyer oriented litigation system simply is not working in the vast majority of cases. The delay, stress, animosity and expense of court resolution often outweigh the benefits, even to the prevailing party, who in addition to enduring the travails which accompany litigation, may have spent more in prosecuting the claim than was realized at the end of the day. The cost of defense alone often places the defendant and/or defendant's insurance carrier in a no-win position as well. It is generally accepted that Alternative Dispute Resolution ("ADR") is the most effective method to dispose of the large majority of civil disputes, whatever their nature, in a civil, timely, fair and cost effective manner.

The more accepted view is that the distinguishing feature of Alternative Dispute Resolution is that the parties, with few exceptions, determine their own destiny, rather than having the decision of another imposed upon them. The dispute may be resolved directly, by negotiation, or with the assistance of a third party neutral, as with mediation. This page focuses primarily on mediation, one form of alternative dispute resolution.

Business Mediation Process

Mediation is an informal, voluntary and confidential process in which an impartial third party (mediator) assists the disputants in finding a mutually acceptable solution to their dispute. The mediator facilitates and encourages a settlement of the dispute but the process contemplates decision making by the parties, not by the mediator. The mediator may provide general information about the law and the way the legal system works but should not advise the parties of their legal rights or their best course of action. It is the goal of the mediator to assist the parties in: identifying the important issues in dispute, understanding each other’s needs, eliminating misunderstandings, exploring creative solutions and arriving at an acceptable agreement.

Business Mediation Types

There are several mediation types or models. The most common are facilitative, transformative and evaluative. Notwithstanding the different titles, the essential concepts for each type are the same. The mediator remains neutral, the process is confidential and the parties determine the outcome. Involvement of inexperienced or difficult participants and/or complex issues may require the mediator to utilize a combination of the traditional models.

Mediation is particularly effective and rewarding in the international context where conflict of law considerations, disquieting and unfamiliar foreign law, and real or perceived bias and prejudice of the trier of fact in the foreign venue become items of concern. These considerations usually result in the benefits offered by mediation in any setting, some of which are outlined below, being enhanced. The future of mediation on the international stage is promising.

Without purporting to be all inclusive, it is worth noting that in the business related dispute context, mediation offers:
• The ability to make mediation arrangements quickly;
• Speed of disposition or resolution of the dispute;
• Substantial savings in the cost of litigation, and to a lesser extent arbitration, including the expense of legal representation;
• Ability of the parties to control the outcome;
• Confidentiality with regard to the mediation process;
• Availability of a binding or non-binding determination of lesser included issues;
• A lesser degree of animosity between the parties than one finds in the court, and to a lesser degree arbitral, setting, together with avoidance of the formalities of the court and arbitral systems, which facilitates;
• Crafting of solutions which better fit the best interests of the parties;
• Possible preservation of business relationships;
• Availability of compromise, as distinguished from the "winner take all" philosophy which often prevails in the litigation and arbitration settings, and the possibility of working out a solution by which all parties benefit.


The knowledge and experience of the mediator in the practice area which is the subject of the dispute, together with the mediator's training and communication skills, are perhaps the most significant factors determinative of the success of the mediation process. The positioning of a trained and skilled neutral between the parties to assist in resolving the disagreement, claim or dispute is at the heart of the success and growing acceptance of this litigation alternative.
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