 WHEN PUSH COMES
TO SHOVE - HOW TO MEDIATE A BUSINESS DISPUTE
By Janis Magnuson of Magnuson Mediation Group It is
every business person's dilemma - the work's been done or the goods shipped and then the
purchaser refuses to pay. Or, you and your partner are at loggerheads about how to operate
the business. Possibly you've got an unhappy employee on staff or one who has just left
and served you with a wrongful dismissal or harassment claim.
•Your Choices - What can you do?
A) You can litigate - go to court and have the judge make a
decision. Thoughts of high legal bills and months of delays dance in your head but, the
good news, it's over.
B) You can arbitrate. This is private court where the
parties choose the 'judge'. Again, someone else makes a decision, but there is finality.
You can negotiate and risk getting stuck in a positional bargaining dilemma -
"You'd better do this or else…" - "Well, you'd better do that or else
…" If the parties are not skilled negotiators, the dispute is often
resolved by compromise (each person is equally unhappy) or by one person giving up
(running out of time, money, energy, etc.).
C) Or you can mediate - have a third party help the
disagreeing parties make their own decisions. The mediator facilitates the negotiation
process using an 'interest based' approach because the focus is on each person's
interests.
•What is important in mediation? - Communication
is key. There is a reason why your customer is refusing to pay, your partner won't
cooperate or your employee was unhappy. You may not agree with those reasons but you need
to know why. The mediator creates a safe environment for discussion - no wild accusations,
theatrics or threats are allowed in the process. The mediator keeps the parties focused on
the problem, not on blaming the people.
•The process - Although different
mediators have different styles, they usually follow a similar process:
•identify the issues
•define the concerns, fears, expectations of each party
•determine mutual goals
•brainstorm possible options
•bargain to reach a settlement
A mediator will first help the disputing parties pinpoint the issue
that needs to be resolved. The next step is getting information - each person tells
his/her story. This serves two purposes: to clarify facts and to identify concerns of each
person.
The listening party needs to acknowledge the other person's 'why' - i.e. "So
you refused to pay because you thought the service was substandard and I wasn't paying
attention to your complaints." Acknowledging why someone acted the way they did
is not the same as agreeing with the actions. Sometimes the mere act of finally
recognizing a person's frustration goes a long way towards settlement. Often there is an
apology at this point and that, too, moves settlement to the forefront.
The mediator points out mutual concerns and common reasons why each person
wants this dispute settled. The next step is brainstorming options for settlement that
each person might be prepared to do to resolve the conflict. The idea is not for either
person to commit to any one solution but to consider many possibilities.
•'Give and Take' - Negotiation involves both
give and take and many people focus more on the take than the give part of the equation!
The mediator helps the parties review all of the proposed options to see which one(s) are
realistic. During the final step the parties bargain to find an acceptable solution -i.e. "If
you do this then I'd be prepared to do that".
•Finalizing the deal - Once a deal has
been finalized, the mediator will usually write up Minutes of Settlement which are signed
by the parties and become legally binding. Occasionally the mediator may write a summary
report and one of the party's lawyers will prepare the legal documents.
Mediation is not the perfect process for resolving all disputes but it
certainly should be considered. There is little downside to trying the process (the
parties' time and money for the mediator) with a very large upside: about a 70-80%
success ratio. Litigation or arbitration is always available if mediation fails.
Mediation can help preserve a business relationship and possibly even
strengthen it. By focusing on people's real concerns and helping them through difficult
conversations, parties can be satisfied that they have made the best deal possible in the
circumstances.
Janis L. Magnuson, B.Ed. LL.B., of Magnuson Mediation
Group, is a Registered Mediator & a Negotiation Trainer, focusing on dispute
resolution & dispute prevention. She can be reached at 403 262-9200 or by e-mail: JLM@magnusonmediation.com |
