Mediation can be a very good tool for eliminating or resolving claims of every kind. The biggest problem I see with mediation, however, is that a great many business people, their attorneys, and their businesses in general see mediation as simply another part of settlement negotiations or an opportunity to gather free information about the opposing side’s claims or defenses.
Here are some things that I think would make mediation a lot more successful for business entities. The first thing I think should happen is that the business people need to decide that resolution of the dispute or claim is more desirable and more necessary than winning or losing. That will help with my second item: the next thing that should occur is a mediation agreement that requires so many mediation sessions that the parties will not be able to simply take the information and run on with litigation or arbitration. Just imagine what would happen in most business disputes if the parties had to mediate at least 4 hours a day for at least 10 days over two months or 15 days over three months. The longer the better. And after the first or second session, no more attorneys, just the business representatives. (No worry – nothing would be binding until there is a formal agreement which will only happen in a special mediation session that is scheduled only after the parties decide they have resolved their dispute.)
And here’s another kicker – prior to the start of any mediation, the parties would have to disclose to each other every piece of information and documentation in their possession or known to them that supports their respective positions in any way at all and the failure or refusal to do so would absolutely bar the use of the information or documentation by either party in any litigation or arbitration that follows the mediation if the mediation does not result in a resolution of the dispute. On top of all that, following the last day of the mediation, the parties would have to wait for at least six months before they could commence or further participate in any litigation or arbitration.