Mediating commercial disputes can be efficient and cost effective. It can occur prior to the commencement of an action or while a case is pending. People can agree to the presence of attorneys at the sessions or consult them separately during the process. Confidentiality agreements can be made so that the items discussed do not become a source of testimony.
Even in cases where a person feels confident that the law and facts are on his/her side, mediation reduces litigation costs and has the potential to settle cases faster than traditional adversarial engagement. Mediation enables participants to see the dispute from another perspective so that they can identify weaknesses in their case and strengths in the other’s. It can refine the scope of the outstanding issues and soften unrealistic or extreme positions. The process can help accurately assess the business and personal cost of continued conflict.
Commercial mediation works best when it draws upon the intentions and expertise of the parties but also the skill of advisors. Mediation encourages the exchange of relevant information and the sharing of costs, such as the joint engagement of neutral experts who can supply objective opinions on technical issues. Even if the parties are unable to come to agreement on all issues, mediation can be an effective way to clarify outstanding issues. Conversely, if the parties have resolved all but one or two issues, mediation can be used to work thorough the disagreement as an alternative to protracted litigation.
Family-owned businesses create a unique overlay to general commercial disputes as family relationships, by their very nature, are deeply personal. Mediation offers families who are struggling to make decisions in a framework for discussing the issues, concerns, and emotions that have kept them from reaching consensus on their own. As a finite, structured process, it helps family members to reframe their discussion and improve communication. Mindful of a life long history of interactions, mediation can focus the family on addressing the business affairs. For instance, mediation allows family members to discuss their concerns and goals for governance and succession. Even with a plan in place and the business healthy, when a key member dies or is disabled, there may not be may be a viable succession plan, or an unresolved issue as to intention.
If you think you may require the assistance of McCarthy Fingar in Commercial Mediation or Arbitration, please contact: