The Early Resolution of Disputes
An area I specialise in is the early facilitation of disputes. The timing of when to negotiate is critical and will differ for each dispute being facilitated. However, there is one broad statement that covers all scenarios: when the parties are open to considering a negotiated outcome, they are ready to commence negotiations.
My facilitation services include the pre-mediation attendances necessary to ensure the parties are ready to meet. My aim is to ensure that:
- The parties have fairly identified and exchanged key information. Parties are reluctant to negotiate when there is a disparity of information – they do not view this as fair. Fairness is a key factor in determining when parties will settle. Without the perception of fairness – both in the negotiation process and in the outcome – settlement does not often occur.
- The parties agree on the right negotiation approach for their particular dispute.
- The right people are at the negotiating table.
- The parties and their advisors know how to prepare properly for negotiations.
- When the parties commence negotiations they have given themselves the best opportunity to create options and achieve resolution.
The early facilitation of disputes involves a different process from that which would be undertaken in the traditional one day mediation. It is a two-stage process which involves priming the parties for negotiation and then conducting the negotiation.
Early facilitation, when engaged in correctly, can have major benefits for those involved. Equally, if not conducted properly, it can result in the parties either wasting an opportunity to resolve matters or, at worst, being put off the facilitation process.
Due to the mandatory mediation provisions in many commercial contracts, there is an increasing use of early facilitation. However, there is typically no pre-mediation engagement or plan as to how the mandatory mediation should work. Mandatory mediation does not guarantee success; far from it. A mandatory mediation which is not successful may significantly damage future opportunities for a negotiated outcome.