How To Prevent the War
By Robert M. Tessier
Wise companies are often incorporating mandatory mediation in their contractual agreements prior to instituting litigation. Mediation is a much more flexible vehicle than the court system or arbitration for resolving business disputes. Requiring good faith participation in mediation prior to the filing of a lawsuit provides several strategic advantages to the traditional court system. These advantages include:
- Control. Rather than lawyers and judges dictating the pace and tempo of the dispute resolution, the parties remain in charge. An agreement is reached only if it is acceptable to both sides, after all issues are on the table in an informal setting. The trigger and method of ADR is agreed by the parties in the contract, and is therefore a known method and expense for which businesses may plan.
- Constructive Dialogue. When mandatory mediation is incorporated into the contract, the parties expect to keep the dispute de-escalated, and will often delay in the hiring of an outside attorney for a time sufficient to fully explore all possible ways the dispute can be resolved. This affords maximum opportunity to allow a healthy business relationship going forward.
- Creativity. A talented and trained mediator can assist the parties to craft a workable solution which may involve ingenious and creative options which are not available in the court system or even arbitration. The ability of the mediator to "think outside of the box" is his or her stock in trade. The adversarial process is held in abeyance in favor of the more elegant solution.
With mediation, costly war is, at best, prevented, and at worst, held in abeyance to actively pursue peace. Such clauses are frequently seen in real estate sales contracts, and contracts involving construction, and other businesses. The future for American business must include this alternative dispute vehicle to prevent the war.