What happens when someone makes a legal claim against your business? What if you have a claim against another company or person? Litigation is stressful and expensive. If you are the claimant, you will probably have to bear the full expense. Perhaps you have insurance that provides a defense for some claims against your business. However, not every type of claim can be foreseen, insurance is not available for every risk, and policies may be inadequate. When insurance is not available, you and your business will need to pay ongoing litigation expenses.
Parties usually try to resolve their differences before resorting to litigation, but negotiations can break down. Whether this dispute arose recently or you are in the midst of litigation, help is available to minimize court involvement.
The Mediation Alternative
Mediation is a voluntary process of facilitated negotiation. A mediator is a professional neutral trained to help parties resolve disputes. Most mediations occur in face-to-face meetings, but online mediation is sometimes available.
The mediator works with participants to identify the parties’ real interests and manage communications. Sometimes everyone involved is in the same room. But often a mediator speaks separately with parties to discuss the pluses and minuses of their case. She unemotionally discusses the issues and relays demands and offers to promote compromise.
By law, anything communicated in mediation is confidential and cannot be disclosed in any other non-criminal forum. This promotes candor. A judge will never hear about mediation settlement discussions.
Mediators do not make rulings. Nothing can happen in mediation unless the parties agree. Disputants control the outcome; they do not surrender control to a judge or jury. Mediation allows disputing parties to craft creative settlements which are beyond a court’s powers, such as a non-monetary settlement or payment plan.
Legal professionals know that fewer than 10% of all claims go to trial. Rather, parties usually compromise to avoid an unpredictable result. Mediation saves time and money. The earlier the parties can resolve their dispute, the less time and money will be spent.
What Kind of Disputes Can You Mediate?
Almost any kind of non-criminal matter can be mediated. Here are some typical examples.
Perhaps the most common but most serious threat to the health of your business are disputes among management. Your partners or co-shareholders are like your family. Among small businesses, they are likely to be your actual family. Co-owner mediations are often more like divorce negotiations than business disputes. A mediator can calm parties’ anger, help resolve the current dispute, and create a plan to manage future disagreements so the business survives.
Employees may have complaints against each other or against management. Having a plan in place for early resolution can prevent these issues from blowing up.
Customer complaints can damage your business’ reputation. If you are unable to resolve your customer’s problem, depending on the seriousness of the complaint, consider offering to pay for a professional mediator’s intervention.
Most businesses eventually face disputes with other businesses. A problem can arise with a commercial customer, or you may have suppliers who are not performing as agreed. It’s a good idea to send a message documenting the details of the issue. Spell out exactly the action you will take if this is not resolved, but also consider offering to split the cost of mediation to get over this hump and preserve the relationship.
How to Get Help
An obvious route to finding a mediator is to conduct an internet search for “mediation” plus keywords for your location and the nature of your dispute. No matter how you start your search, it makes sense to research the credentials of a prospective mediator before proceeding. Any mediator should be ready to provide a CV and fee schedule on request. Some mediation services are very expensive, while others require no expenditure at all.
Southern California Mediation Association maintains a directory of mediators which is searchable by subject matter, location, and language. Fees are negotiated directly with the mediator.
You can use a referral service such as Mediator Select to find a mediator who specializes in the subject of your dispute.
The Beverly Hills Bar Association offers two hours of free mediation for disputes under $25,000.
In Los Angeles, if your case is pending in small claims court, depending on mediator availability, you may be offered free mediation on the day of trial.
Judges routinely refer cases for mediation. The Los Angeles Superior Court has approved the Mediation Center of Los Angeles to provide mediation services. Participants pay a reduced rate for the first three hours of mediation services, after which parties may choose to terminate the mediation or continue at the mediator’s usual rate.
FairClaims offers online mediation. Choose the Settlement tab on their website.
If you have retained a lawyer’s services to handle your claim, that person should know the mediators who are best suited to work with you. Don’t be afraid to request several suggestions for mediators at different fee levels.
Some lawyers are unfamiliar with mediation. If your lawyer tells you mediation is not available for your dispute or will not get started in trying to set one up, you may want to consult a mediator on your own or seek a second legal opinion.