UNDERSTANDING THE MAGIC OF MEDIATION

INTRODUCTION

When disputes escalate into bitter confrontation or litigation, and parties to the dispute are unable to reach any resolution, it is not uncommon for a neutral mediator to be brought in and within a very short time, the issues are magically resolved to the satisfaction of all parties.

Consider the following case: The research and development department of a pharmaceutical company had spent two years developing a highly potent topical cream that would deliver hormones to hormone-deficient patients without the common side effects of alternative oral supplements. They then sold a license to a large distribution company to re-brand and package it for resale. A few months after the distribution company went to market, it was discovered and reported that the cream had lost its efficacy due to a chemical breakdown upon packaging.

The distribution company blamed the pharmaceutical company for insufficient development and testing and refused to pay the $2.5M licensing fee, and in addition, was suing for costs of all marketing and advertising expenses.

The pharmaceutical company blamed the distribution company, and asserted that they were negligent and had not stored the cream according to correct specifications and instructions. They insisted on being paid their agreed upon fees. Despite exhaustive efforts and lengthy negotiations, no resolution was reached.

The lawyers recommended a last-ditch effort at mediation before resorting to the courts. A mutually acceptable mediator was retained and within two days of mediation, the dispute was settled to the satisfaction of all parties.  

TRUST AND RAPPORT

Every good mediator has a strong ability to build genuine trust and rapport with her clients and their lawyers. This not only allows them to trust the mediator and the process, which is imperative in any mediation, but also allows the mediator to obtain important information that otherwise may not be divulged. The parties will talk more freely to the trusted mediator about what they truly want and need, what concerns or fears they may have, and what emotions may be lurking and obstructing settlement.

 

As the mediator talked to the representatives of the pharmaceutical and distribution companies privately, she learned a great deal about their true interests and concerns.

 

She learned that the pharmaceutical company was very interested in a long term, productive relationship with the distribution company, and desperately wished to avoid any public exposure of the dispute. 

The distribution company for its part revealed that since they had invested in this product and were so close to a profitable business venture, they would prefer some kind of cooperative development effort to litigation. This critical information did not emerge until a mediator capable of building trust and rapport was actively involved.

CREATIVITY 

 

Creativity is another crucial trait for an effective mediator. He needs to be able to redefine old problems in new ways and drive original, novel and innovative ideas that could potentially unlock the negotiation.

 

Once the mediator understood the true interests and concerns of the parties, she was able to suggest a possible solution.  She proposed that the two companies create a joint task force made up of an equal number of chemists from each organization to determine the root of the problem, and to make sure it is not repeated. She also suggested that each side drop their previous monetary claim on the other and focus on the success of the joint venture. 

This turned out to be a solution that met all of their needs and one that both sides could happily live with.

TENACITY

 

Most negotiations do not transpire in a linear fashion but usually have many hills and valleys, waves and troughs and ups and downs. An inexperienced negotiator may become discouraged and prematurely perceive the negotiations as having failed catastrophically. 

It takes a tenacious and patient mediator to not give up and continue his efforts with stubborn persistence. He keeps going when the going gets tough; he leaves no stone unturned; he goes that extra distance; he pushes the envelope to its limits as he searches for a path forward to resolve the dispute.