PillarsStoneGate Mediation Services

Mediation and Facilitation

A Business Nightmare?

Are you involved in a controversy, dispute, or conflict situation that appears to have no easy resolution and no end in sight? Are the parties at an impasse? Has litigation already been filed or does it seem inevitable? Business litigation now takes so long that law suits often remain pending long after the people who decided to file them have moved on. And, organizational consolidations often involve competitive groups with seemingly irreconcilable processes and cultures and widely divergent goals.

StoneGate Mediation Services may have a solution to your dilemma.

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Mediation; the Sensible Alternative

Is “Mediation” Another Name for “Arbitration”?

Benefits of Mediation

How Does Mediation Work?

The Mediator’s Role

Facilitation

SMS Can Help

Are There Risks to Mediation?

Can All Situations Be Mediated?

Confidential Consultation

Mediation; the Sensible Alternative.

Litigation, or even arbitration, may not be your best choice for conflict resolution. Mediation, a “non-combative” alternative, is becoming an increasingly popular choice for resolving disputes. Unlike litigation or arbitration, which can take years of stressful, even caustic, proceedings at enormous risk and expense, mediation can be completed expeditiously, in a civil and business-like setting, at relatively little expense. That’s because mediation focuses on resolving situations by mutual agreement of the parties, not on waging battle before a third party decision maker under highly technical rules of procedure. The process is facilitated by a neutral practitioner, who assists all sides find or create common ground.

Is “Mediation" Another Name for "Arbitration"?

No. Mediation and arbitration are completely different. In an arbitration proceeding, the arbitrator determines the facts, applies the law, and announces a decision, just like a judge and jury combined into one person. While the rules governing the introduction of evidence are procedurally different, the objective is the same as in litigation. Each party tries to convince the arbitrator to "find” in its favor and declare it the winner. Conversely, mediation does not result in a decision, a winner, or a loser. In facilitative mediation, a mediator's role is to help the parties negotiate a resolution with which they all agree. Because all parties must agree to a mediated resolution, there is no “loser.” In addition, because many arbitration proceedings terminate with the arbitrator’s award being filed as a judgment in a legal action, it is often a public record. A mediated resolution can remain undisclosed forever.

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Benefits of Mediation.

In most cases, mediation may provide a faster and far less expensive way to resolve a controversy, dispute, or situation and permit parties to more easily reestablish productive relationships as part of reaching an agreement. In many business disputes, especially involving product or service controversies, preserving ongoing relationships is a priority of the parties. Preserving a good business reputation is always a priority. Because a mediated resolution is based on agreement by all parties, expanded agreements may be more easily negotiated as mediated issues are resolved and the parties can again focus on their ongoing relationships. And, because mediated resolutions are confidential, there is much less risk of reputational damage than from a court judgment, no matter what the agreed resolution.

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How Does Mediation Work?

The mediation process assures parties of a structured, issues-based dialogue and negotiation, facilitated by a professional neutral party. This process allows the parties to better understand their own issues, interests, and limitations and those of each other party. Unlike juries, judges, and arbitrators, mediators serve as catalysts and facilitators for discussions and negotiations among the parties. Mediators are not decision makers. A mediator helps the parties to refocus their attention from previously asserted positions to their underlying issues and concerns, helps enlarge the parties’ options for resolution, helps the parties to better understand their options, and helps them move toward an overall resolution that is better for all parties than their next best alternatives. By guiding a face-to-face dialogue and/or by shuttle diplomacy, the mediator seeks to help the parties reach an agreeable resolution. Obviously, for mediation to be effective, all parties must trust the neutrality of the mediator.

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The Mediator’s Role.

The neutral mediator’s role is to help the parties, through a structured dialogue, better assess their “real” interests and those of the other parties, develop and weigh options, and understand the consequences of alternative courses of action. The goal of the mediator in facilitative mediation is to help the parties reach an agreed resolution that all parties believe is better than their best alternative to no agreement. For mediation to be productive, the mediator must make a significant, “new” contribution as a facilitator and catalyst. Otherwise, the parties (or their lawyers) would likely have already resolved their differences themselves. Therefore, a mediator must understand the core issues and interests of the parties and be able to define, analyze, and communicate about them effectively. However, a mediator should also be able to bring new perspectives and raise new considerations for the parties to consider. In more common situations, that may require mostly the wisdom that comes with longevity and general experience. However, in more complex situations, it may require decades of diverse business, transactional, and general experience, analytical training, and an ability to quickly understand, break-down, and explain complicated matters in clear and simple terms.

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Facilitation.

There are many reasons organizations, large and small, combine into a single, operating entity. Companies merge, other large organizations (such as not-for-profits and governmental entities) combine or consolidate, and organizations reorganize and combine internal departments, bureaus, and agencies to become more effective and/or more efficient. The majority of such transitions involve enormous apprehension, fear, and turmoil, and often resistance, as those surviving such reorganizations watch long-time colleagues terminated, their positions restructured, day-to-day policies and procedures changed, and job locations moved. The apprehension, fear, turmoil, and resistance can be reduced. A neutral facilitator can help you organize and work through such transitions with increased cooperation and support from those involved. By helping all parties understand the reasons for, and necessity of, the transition, and the reasons for the reactions to it, a facilitator can help all involved contribute to a “best practices” environment that will improve the organization’s future performance and earn everyone's support for the practices and procedures finally adopted. By focusing the staff on making an important contribution to the continuing organization, the facilitator can help relieve their apprehension and insecurity about “losing” their old positions or situations and help them look forward to making important contributions to the new organization they helped to shape as it was launched.

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SMS Can Help.

StoneGate Mediation Services can provide neutral mediators and facilitators for the effective mediation and/or facilitation of most controversies, disputes, and situations. Whether straight-forward (such as product or service disputes), more complicated (such as construction disputes) or highly complex (such as inter-creditor, acquisition, or lender/borrower issues), SMS has the business experience to help parties better understand, work through, and resolve issues without resort to litigation or arbitration. We can also provide facilitators to help with harmonious, best practices, consolidations and mergers of companies, departments, agencies, non-profits, or other organizations that previously operated independently from (or in competition with) each other. And, we can help facilitate discussions and negotiations for structuring entirely new transactions and business arrangements. Please call for a confidential consultation. SMS subscribes to the Model Standards of Conduct for Mediators approved by the Association for Conflict Resolution, the American Bar Association, and the American Arbitration Association. You can rely on the experience and neutrality of an SMS mediator.

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Are There Risks to Mediation?

Because mediation requires the participation and agreement of all parties, there is no chance of an unacceptable resolution being forced upon any party. In addition, (except for a handful of legal exceptions, such as threatening bodily harm) communications in a mediation proceeding are confidential and no party can subpoena a mediator or a mediator’s records in litigation if the mediation produces no agreement. The only real risk is that there will be no resolution achieved for a relatively small investment of time and money. And, even an unsuccessful mediation often narrows the issues and can help precipitate a subsequent resolution. Therefore, when compared with the risks and expenses of litigation or arbitration, there is no material risk or cost to trying mediation.

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Can All Situations Be Mediated?

No. Mediation is not a practical solution in some limited situations. For example, an agreement reached through mediation will not establish a legal precedent. Therefore, it is not appropriate to mediate an issue raised in an action filed to establish a legal precedent. Or, if a party has initiated litigation in order to be “punitive” and cause intentional expense and inconvenience to another party, it is unlikely that such party would agree, in good faith, to mediation.

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Confidential Consultation.

If you have a situation you think might benefit from mediation or facilitation, please call for a confidential consultation. If you are already represented by counsel, we invite you to have them present on the call. Learn more about how SMS may help you solve your dilemma. Please contact either Joel Martin Hartstone (mobile: 860/930-9101; office: ext 1) or Claudia Siegle Horn (mobile: 860/930-1154; office: ext 2) to learn more or to confidentially discuss your situation.

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