Yoga and meditation classes are a great way to stimulate the mind and body no matter what business you’re in. Sometimes, however, contentious issues we encounter do their best to disrupt our Zen and throw us off course. Besides taking a deep breath in before beginning to deal with disputes, considering forms of alternative dispute resolution should be a next step.
There are various sources of alternative dispute resolution that can be engaged to reduce time and money expended on any given issue from negotiating a settlement to arbitration. Whilst meditation might help focus your thoughts about your business, exploring mediation can be a great way of burying the hatchet in the context of commercial disputes or employment issues.
Mediation: what is it and how does it work?
Mediation is a form of alternative dispute resolution that uses a third party neutral to help the parties work towards a settlement.
The third party mediator is traditionally appointed by agreement and does not adjudicate on the issue but instead helps both parties appreciate one another’s position and explore appropriate solutions. After initial formalities and opening statements, the mediator will speak with each party privately to understand their position and explore the crux of the dispute.
Once the issues have been explored, the mediator will help guide the parties towards negotiating the resolution of the dispute, taking into account the position of each party.
Mediation can be a great way to resolve a dispute in a cost-effective and time-efficient manner. Proceedings can usually be commenced more quickly than filing a claim at court and often outcomes can be negotiated faster than receiving a judgment.
Beyond cost and time benefits however, mediation can be a great way to secure the most appropriate solutions for parties who are looking to preserve their relationship. A solution agreed through mediation may find the best solution for an aggrieved employee who still wants to work with an employer or source the best outcome in the context of a commercial contract.
A further positive is the lack of formality involved in mediation. There are no constraints or deadlines as would be expected in civil proceedings and the lack of formality can encourage both parties to communicate openly and negotiate in good faith. If the talks deteriorate or the mediator cannot align the minds of the two sides, parties are free to walk away from the table.
The process of mediation can in itself be a good sounding board for the strength of any particular claim or defence should mediation talks break down. Entering into mediation also has the benefit of complying with pre-action protocols should any dispute progress to litigation and avoid any associated penalties for not considering alternative dispute resolution prior to litigious action.
Down(ward facing dog) side of mediation
Like all forms of alternative dispute resolution, sometimes it just is not the right option for a particular party or a particular dispute. For instance, if you want to scream and shout about a dispute, a confidential mediation will not be the way forward. If mediation is not right for the dispute or both parties, the process may not be as time and cost effective as first thought.
As both parties must agree to mediate, a party withholding the agreement will stop mediation in its tracks. Utilising mediation clauses in contracts or employment agreements are a means of circumventing the need for agreement once a dispute has arisen. However, as parties must both agree on whether to resolve and how to resolve a dispute, such clauses can prove time-wasting where a party adopts a non-cooperative stance and refuses to compromise.
Whilst Hybrid do not offer mediation services, we can help guide you to prevent matters becoming contentious when someone tries to disrupt the positive vibes of your business. Whether you’re looking at a breach of contract or dealing with employee grievances, why not give Hybrid a call to discuss the best options for you.
By Louis Muncey