Getting Businesses Back to Business Through Mediation
by Matthew Thiry, Esq.
Growing up playing baseball, I constantly heard coaches repeating to batters “keep your eye on the ball.” This advice applies equally to business, and has the same consequences if not followed. Inevitably, business clients are distracted by litigation matters, taking their eye off the ball, and, as a result, the costs can be immeasurable. When business leaders are focused on litigation instead of generating revenue, businesses suffer.
Even in situations where good legal advice and good business practices are followed, business litigation can become an unavoidable distraction. Business litigators frequently witness clients losing focus because of a dispute. This could result in hard-fought battles with little to show in return, and can take a previously-successful company and plunge it into a downward spiral. Once in this spiral, a client can quickly focus its frustration on counsel, frequently unjustly, and question its own previously approved litigation strategies. Mediation provides an opportunity to mitigate the distraction, and a means through which the parties can resolve disputes and refocus on getting their business back to business.
Recognizing the distraction does not mean counseling businesses to run from or cave in the face of a dispute. Instead, it means these disputes need to be managed like other business matters. Business owners and executives like to be in control, and mediation provides them a non-binding opportunity to explore resolution while exercising that control. Business clients often look beyond mediation, underestimate its value, and, instead, focus on other litigation strategies, such as summary judgment, which are time consuming, expensive, and often results in an appeal.
Client pressures regarding unpredictable time and costs consumed by litigation continue to rise. In addition, all litigants are exposed to risks. Even when the facts and law appear to support one party, there is a significant risk that a judge or jury may disagree. In mediation, business litigators can take advantage of their own experiences and negotiation skills to help reach a resolution. Moreover, business clients are often very sophisticated negotiators. Why not take advantage of your combined experiences and skills, and craft a resolution that is predictable, controlled, and beneficial, as opposed to the unpredictable results waiting at trial? There is certainly a time to carry the sword, and you may be forced to carry it. However, a mediated resolution provides business litigators the opportunity to avail themselves to their clients as a part of the team, an advisor, and not just the muscle that is brought in to “swing for the fences.”
If mediation is viewed as an opportunity, it can resolve the dispute at hand, and can save businesses the opportunity costs that would otherwise be lost because of “taking their eye off the ball.” If mediation is approached with the goal of managing litigation as a business matter, clients will often find that an acceptable result can be reached. In the end, business clients want to and need to make money, and mediation provides litigators an opportunity to get clients back to that while minimizing costs and risks.
Matt Thiry, Esq. is a mediator and arbitrator with Miles in Atlanta. He specializes business, fiduciary, real estate and probate. To schedule a mediation or arbitration with Matt, please call 678-320-9118 or visit his online calendar.