While most commercial relationships work out fine, a good number of them run into problems. This is one reason why we have a civil court system. In New Jersey alone, there are approximately 600,000 civil lawsuits filed annually in the state’s courts. Contrast this to the fact that there are roughly 50,000 criminal division cases and about 400,000 family division cases in NJ’s courts. Clearly business relationships break down far more frequently than any other type.
However, settling disputes through court is an expensive and time consuming process. And more often than not, neither party ends up happy with the outcome — even if that outcome is negotiated on the courthouse steps. After all, the parties have spent a great deal of time and money on attorneys and experts just to get to that point.
Is there a better way? Yes — mediation! Mediation is a process where an impartial third party helps guide parties in a dispute to come to a mutually acceptable solution. Through asking questions, facilitating discussion, questioning positions and assumptions, and analyzing data, a mediator will help guide disputing parties to a resolution.
Mediators are not judges or arbitrators. Mediators do not make decisions for the parties. Only the parties make decisions for themselves. The parties always retain the right to agree or disagree to various elements. Mediators do not give legal advice.
Mediation offers many advantages in resolving disputes to the more traditional way of litigation:
- Control of the outcomes remains in the parties’ hands, versus the hands of a jury and/or judge
- The parties agree to an outcome versus one being imposed by a jury, judge or arbitrator
- Mediation is far less expensive than litigating, given the costs of attorneys, filings, depositions, trial preparation and the trial itself
- Mediation is collaborative and can generate creative solutions and mend broken relationships, whereas litigation is adversarial and tends towards formulaic solutions, which may not work well for the parties
- Litigation is warfare
- Mediation results in quicker resolutions, allowing parties to go on with their lives either separately or together
- Mediation can take as little as a few hours, versus months or years in litigation
- Mediated settlements are always fair and reasonable since all parties have voluntarily agreed to them
- The process of mediation is confidential, whereas documents filed with the court go in the public record and are open to court scrutiny
- Mediation is forward looking and focused on resolutions, whereas litigation is rancorous, focuses on the past and “what went wrong”
You lose no rights by going through mediation. If no agreement is reached, litigation is still available to you (and remember that mediation is a confidential process). Through the commercial mediation process, you always have access to legal advice from your attorney, who is usually present in the sessions.
What types of disputes can be mediated? Just about any dispute can, but here are some more commonly mediated commercial topics:
- Contract or transactional issues
- Consumer and customer claims
- Consumer Fraud Act claims
- Unpaid bills, book account, unfinished work
- Discrimination, hostile work environment and harassment
- Union contracts and impasses
- Union grievances and unfair labor practice claims
- Employee-manager workplace disputes
- Partnership agreements and dissolutions
- Home contractor claims (carpenter, plumber, electrician, painter, etc.)
- Probate and wills
- Professional malpractice
- Professional fees disputes
- Technology and Intellectual Property
- Real estate
- Liability (all types)
- Product liability
- Personal Injury
- Community or Homeowners