M & A Rainmaker

If you are sick then you go to the doctor.

If you have toothache you go to the dentist.

If you have a dispute you call on your lawyer !!

The first conversation is often free but pretty soon the invoices start flowing.

These days everything is billed – by the minute !!

A meeting ?? – that’s billed.

A phone call ?? – that’s billed.

Conversations between one lawyer and another ?? – that’s billed.

Lawyers are honest – correct ???

Unfortunately ……. not !!

In fact lawyers are in a position to scam you in more ways than one.

They can scam you in little ways ( billing for time that they did not actually spend on your case ) and in very big ways ( misappropriating your money ).

There is a little known alternative to calling your lawyer……

Mediation instead of litigation !!!

Mediation is described in full here:

http://en.wikipedia.org/wiki/Mediation

but lets pull out a few main points:

Mediation, as used in law, is a form of alternative dispute resolution (ADR), is a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation).

Mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential. The presence of a mediator is the key distinguishing feature of the process. There may be no obligation to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them.
Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Much depends on the mediator’s skill and training. The mediator must be wholly impartial. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. A third-party representative may contract and mediate between (say) unions and corporations. When a workers’ union goes on strike, a dispute takes place, the parties may agree to a third party to settle a contract or agreement between the unionand the corporation.

Why choose mediation

Several reasons exist for choosing mediation over other channels of dispute resolution (such as those involving attorneys and courts).

• Parties to a dispute may choose mediation as (often) a less expensive route to follow for dispute resolution. While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or filed in court may take months or even years to resolve, a case in mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.

• Mediation offers a confidential process. While court hearings of cases happen in public, whatever happens in mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what has gone on in the mediation forum. In fact, confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of a mediation. Many mediators actually destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.

• Mediation offers multiple and flexible possibilities for resolving a dispute and for the control the parties have over the resolution. In a case filed in court, the parties will obtain a resolution, but a resolution thrust upon the parties by the judge or jury. The result probably will leave neither party to the dispute totally happy. In mediation, on the other hand, the parties have control over the resolution, and the resolution can be unique to the dispute. Often, solutions developed by the parties are ones that a judge or jury could not provide. Thus, mediation is more likely to produce a result that is mutually agreeable, or win/win, for the parties. And because the result is attained by the parties working together and is mutually agreeable, the compliance with the mediated agreement is usually high. This also results in less costs, because the parties do not have to seek out the aid of an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.

• The mediation process consist of a mutual endeavor. Unlike in negotiations (where parties are often entrenched in their positions), parties to a mediation usually seek out mediation because they are ready to work toward a resolution to their dispute. The mere fact that parties are willing to mediate in most circumstances means that they are ready to “move” their position. Since both parties are willing to work toward resolving the case, they are more likely to work with one another than against one another. The parties thus are amenable to understanding the other party’s side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.

• Finally, but certainly not least, and as mentioned earlier in this article, the mediation takes place with the aid of a mediator who is a neutral third party. A good mediator is trained in conflict resolution and in working with difficult situations. The good mediator is likely to work as much with the emotional aspects and relationship aspects of a case as he or she is to work on the “topical” issues of the matter. The mediator, as a neutral, gives no legal advice, but guides the parties through the problem solving process. The mediator may or may not suggest alternative solutions to the dispute. Whether he or she offers advice or not, the trained mediator helps the parties think “outside of the box” for possible solutions to the dispute, thus enabling the parties to find the avenue to dispute resolution that suits them best.^[3]

Here’s a great video on Mediation:

http://www.youtube.com/watch?v=xL-cdcpu7Ms

Here is The Begum Aga Khan on Mediation:

The Begum said “Mediation is a voluntary, constructive process in which the parties in a dispute, with the aid of a neutral intermediary, the so-called mediator, themselves seek agreement, instead of battling it out in the court. The mediator helps the often very entrenched parties to speak to each other again, helps avoid the conflict escalating and helps to highlight the parties’ interests without proposing a decision. In a family mediation, for instance, parents who are at loggerheads succeed in making reasonable arrangements for the future in the interest of their beloved child. Mediation is respectful cooperation in conflict and an intelligent and humane way of thinking. However, mediation can only help where both or all parties have a real desire to reach agreement.”

To discuss mediation in more detail please contact Graham at The Mediation Room.

http://www.themediationroom.com/

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