Photo: Joshua Fletcher
John Bates’ job as a mediator is to help find common ground.
He has overseen thousands of mediations since opening his firm in 1991 and says mediation gives disputing parties power over a settlement’s outcome while providing confidentiality and certainty on the terms of agreement.
“If they go into a trial, they give up control to someone else – an arbitrator, or a judge, or a jury. And, as we all know, when you give up control to somebody, there is a risk they won’t get it right,” says Bates, based part-time on Hawaii Island.
HB: How can mediation save businesses time and money?
The great thing about mediation is we can settle the case nine times out of 10. And no matter how complicated the case is – class action, security cases, patent cases – we can get it done in one day, versus two or three years of pretrial discovery and maybe a monthlong trial.
HB: How does it work?
Mediation is an informal negotiation with the help of a mediator, or what we call a third-party neutral. The mediator’s sole responsibility is to help the parties fashion something they can live with. So it’s basically a facilitated negotiation, and there is nothing binding about it unless they reach an agreement, and then the agreement becomes binding.
HB: When should a business seek mediation?
Anytime they are involved in a dispute that is heading into litigation, they should go into mediation. Every case. And the reason is because almost all civil cases settle anyway. It’s a timing issue. If you can get the thing settled earlier, you’re going to save a lot of time, aggravation and money. So every case deserves sitting down with the other side and seeing if you can work out something that you can control and live with.
HB: How can companies help ensure successful mediations?
You want to work collaboratively with a lawyer to ensure that people in this process are fully informed about everything, be it legal, factual or otherwise, so they are comfortable with their decision to settle. In other words, they don’t want to feel they missed anything, that somehow the process wasn’t conducted fairly. So get counsel, get input, and then encourage the counsel to collaborate with the mediator and get mediation going at the earliest possible stage.
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