Mediators Post

Business dispute

Disputes in business are quite common and sometimes inevitable. During the course of business, disputes can arise due to several reasons including breach of contracts delay in commitments, quality or delivery, performance or payment issues, market fluctuations, difference of opinion in partnerships and so and so forth.


Differences can range from minor misunderstanding to major disputes. Conflicts or disputes are prone to cause distress and disharmony amongst the parties. When chosen to litigate the process would be stressful, expensive and also cause bad reputation to the parties. Any dispute within a business causes damage and it is important to have the dispute resolved as early as possible.


Therefore, business disputes should be resolved through mediation as it saves time and money and also minimizes damage to relationships



Deal Mediation

Complex commercial deal negotiations often face the same barriers that are found in conflict situations. Many a times, parties strategically take strong positional stands to get more out of the deal for their own side. This may result in impasse or in one sided agreements where there were lost opportunities to create greater value for each of the parties. Sometimes, there is even a total failure of negotiations. As a result many business negotiations fall short of optimal outcomes.


About Deal Mediation:

Deal or transaction mediation is now being used to facilitate business transactions even in non-conflict situations. The idea is to carve out a deal that is fair, win-win and sustainable in the long run. It is an assisted deal making where the deal mediator, a trained neutral third party, is engaged by the parties to facilitate the negotiations for mutual benefit of the parties. The deal mediator creates value in business deals by identifying various options which parties may not be able to envisage due to the various reasons, such as lack of adequate information, personality clashes or communication barriers.


Deal mediation for whom:

Deal mediation is being successfully used in various business transactions including joint ventures, mergers, acquisitions, finance, sales, infrastructure and IT projects, shipping transactions, procurement and technology licensing. The deal mediator assists parties to reach the agreement with best possible results.


Advantages of Deal Mediation:

In a typical transaction, parties are looking for a deal that will ensure a long term conflict free relationship. Parties expect that the deal is closed with the intended outcome for each party and the process is conducted in a manner so as to avoid any conflicts, roadblocks or impasse during the negotiation process and the contract period. All parties want that not only is the deal closed quickly and systematically, but is also drawn up in such a manner so as to secure the optimum outcome for each party.


Deal mediation can be used to fulfill all the above expectations. The following is a list of advantages of deal mediation;

  • A good deal mediator manages the negotiation process by keeping the parties on track, improves communication and clears misunderstandings thereby minimizing disputes arising during the negotiation phase.
  • Deal mediators set clear objectives for the transaction by understanding the expectations, concerns and challenges of each party involved.
  • Deal mediators also tactfully address the underlying interests of each party while managing face-saving and confidentiality issues which may be potential conflict causing matters in a position based negotiation.
  • A deal mediator takes away the burden of being responsible for the negotiation process from the parties and can improve the quality of the process and the outcome of the deal with the use of his professional expertise and negotiation skills.
  • Mediators are extremely useful where parties have communication and language barriers arising from cultural differences.

Confidentiality:

Mediators, including deal mediators are bound by a code of conduct which prescribes very strict confidentiality obligations. This confidentiality obligation is also part of the mediation agreement between the parties and the mediator.


The deal mediator keeps confidential all information disclosed during the process of the deal. Any documents, data, or notes shared or made by the mediator during the process are either returned to the parties or destroyed once the deal is closed or anytime on request by the parties. No records of the process are maintained by the mediator except the agreement signed between the parties and the deal mediator. At no point is the mediator allowed to disclose any details about the transaction including the parties and the nature of the deal without the express written consent of the parties.


There is also a confidentiality obligation towards each of the parties to the deal. Each party may disclose certain information to the mediator privately which the party expects to be kept confidential from the other parties to the deal. Such information may be relevant to understand the underlying interest of the disclosing party. The mediator in such a case is also bound by confidentiality not to disclose this information to the other parties to the deal unless specifically permitted to do so by the disclosing party.


How does mediation work?

The deal mediator controls the mediation process. Each mediator employs his own mediation process and techniques depending on his style and nature of the transaction. The process is usually flexible and adapts to the flow of the negotiations.


Typically, the process begins with the mediator collecting information regarding their expectations from the transaction. The mediator conducts private sessions separately with each of the parties and common sessions with all the parties. He collects information relating to the expectations of the parties such as what each party is bringing to the table, what is their expectation in terms of short term takeaways, long term outcomes, concerns, hidden agendas and detailed contractual terms. Through this information, the mediator manages to find the common ground between the parties which may be difficult for any one party to get to quickly.


It is the mediators’ job to keep track of timeline for closure and also to manage any conflict situations during the process. A good mediator applies various techniques to manage communication barriers, break impasse, keep the focus on the deal, manage emotions and work around any probable conflicts that may arise during the process.


There is time allocated to group discussions and brain storming with a focus on reinforcing existing relationships.


The mediator works constantly at facilitating the parties to close the deal with the most optimal outcome for all parties. Once such an outcome is reached, the mediator assists the parties in detailing the negotiated terms in writing.


The deal mediation usually ends in signing the negotiated agreement.




Disputes in Intellectual Property (IP)

It is ideal to mediate any issue with regard to IP dispute than to litigate. IP disputes often involve infringement of trademarks, patents, proprietary know-how or trade secrets. Disputes relating to IP are usually large and complex and often involve high stakes.


Such disputes when litigated becomes public this can normally affect the business and the reputation of the company. Besides tarnishing reputation of the company by negative publicity, litigation is costly, delays resolution and the outcome is WIN-LOSE.

  • In contra, in mediation a mediator will deal with the dispute in confidence and even the existence of the dispute can remain confidential, less expensive, improve business relationships, maintain control over the process and outcome and the result is WIN-WIN.
  • Most of the IP disputes are highly technical, the process of mediation is flexible and an expert can be appointed in the relevant field of technology to facilitate the resolution of the dispute.
  • It is common for the the results of mediation to be out-of –box and innovative remedies such as new business opportunities, joint ventures, royalty payments. Such innovative solutions cannot be reached in any other form of ADR particularly litigation.



Family Dispute

In case of family disputes, it is best to opt for mediation before taking a matter to court.


This is particularly important as mediation is the only ADR mechanism that ensures mutual respect for relationships and complete confidentiality. Mediation can be used in divorce, separation, family property partition and disputes relating to wills and intestate succession.


Although, divorce cannot be pronounced through mediation, the process of mediation can help couples negotiate on various issues including maintenance, division of property, child custody and visitation rights. On agreement on the above issues, a divorce under mutual consent can be sought.


All family disputes are stressful, emotional and depressing. Trained Mediators help in sorting out issues with short term plans or long term plans, thus enabling both to reach an agreement. The process is conducted with due respect to each party’s sentiments and interests. Resolutions reached through mediation are quick, sustainable and inexpensive. This many a times helps to preserve the relationship between the parties, which is extremely rare in court litigated disputes.


Family mediation helps parties to take decisions which would be beneficial at present and in the future. Whereas, in a court litigated decision, a judge will impose decisions on the parties which may not be beneficial to some of the parties. The worst part is there is always the risk of uncertainty relating to the decision.


In mediation, the parties can take their own decisions and by doing so there are lesser changes of the parties backing out from the commitments made to each other.


Thus, mediation in family disputes is less stressful, speedy, flexible, less expensive and highly confidential. In some cases, the parties have the flexibility to enter into an understanding or agreement which can be monitored and if required revised over a period of time. Agreements that are signed made in mediation are enforceable in a court of law.




Workplace Disputes

Conflicts at work take many forms. Any conflict can get in the way of work and make your business less productive. Issues that can cause conflict between individuals and groups at work may be harassment, discrimination, increase in workload, demand for higher remuneration, unfair treatment, general mistrust and agitation between management and employees.


Many of these matters may or may not proceed to full blown litigation. However, their presence definitely interferes with the productivity and general work environment at the work place. Mediation is a very effective way of listening and understanding the real issues that are creating these conflicts and addressing them. It is a simple inexpensive mechanism to restore peace and harmony at your workplace.


Contact MEDIATORSPOST to know more about our workplace dispute solutions where we can work with you in creating a healthy, productive and peaceful work culture in your organization.




Civil Mediation

Mediation is apt for resolving a civil dispute. Disagreement between parties to a contract gives rise to a civil dispute. The parties normally rush to the court for resolving the issue.


To resolve the issue through court is very expensive, time consuming and the result is WIN-LOSE. Courts should be the last resort for people involved in civil disputes instead mediation should be preferred. Mediation is flexible, speedy, confidential and cost effective and helps both parties to put forth their concerns and priorities to the mediator.


The Mediator being a neutral person trained in problem solving assists them to reach an amicable agreement to resolve the conflict.


Mediation is flexible because the parties take control and responsibility in resolving issues/disputes.


The process involved in Mediation is a confidential one, the mediator enables the parties to prioritize their needs and concerns either by putting them jointly or in private sessions. Unless otherwise agreed by the parties, the mediator should keep confidential all information, declarations, proposals, documents or other records submitted or acquired by any means throughout the mediation process. The obligation of confidentiality includes all persons working with the mediator.


Thus, the mediator helps the parties to reach an agreement between themselves.


Mediation can be less stressful, less expensive, revival of relationship and the result is WIN-WIN.




Discussion is always better than Argument. Because argument is to find who is right and Discussion is to find what is right.”