Mediation is, more often than not, a useful dispute resolution
tool, particularly in the area of franchising. In circumstances
where a dispute arises between a franchisor and a franchisee, it
pays to try and resolve it as quickly, and cost effectively as
possible. This is because the relationship between a franchisor and
franchisee is an on-going one, and it is important to ensure that
it is a smooth and communicative relationship.
In the event mediation becomes necessary, or desirable, between
a franchisor and franchisee, the parties should try and approach
the process with an open mind. And, bearing in mind my top five
1. Understand the process
If you are representing yourself at meditation and have never
been to one before, get in touch with the Office of the Mediation
Franchising Advisor and ask a few questions about the process, or
have a look at their website beforehand
(www.franchisingmediationadviser.com.au). Do you know what the day
will involve? Do you understand the role of the mediator? If you
will have a solicitor representing you on the day, make sure you
ask them to explain the process. It is important to not feel like a
fish out of water at mediation. Understanding the process will give
you a sense that you are in control on the day.
2. Think about settlement beforehand
A lot of people think that it is best to play it by ear on the
day. It's not. It is important to have thought beforehand about
how you would like to see the dispute resolve, and to think about
what your bottom line might be. What will you, realistically, look
at accepting or offering in order to resolve the dispute and move
on with your life? Think about those sorts of things before you
walk into mediation. You will be surprised at how much time it
saves, and how better prepared you feel.
3. Be prepared to walk away unhappy
A successful mediation is one where both parties leave unhappy.
It sounds odd, but this is key to effectively resolving a dispute
at mediation. Mediation is about compromise, or reaching a middle
ground. That cannot happen where one person refuses to compromise.
This does not mean that one or other or both of the parties should
leave mediation miserable – I am not suggesting
compromising to the point of feeling that you have given everything
away. It is about walking away with a settlement that you can live
with. You might not come away with everything you were hoping for,
but if the dispute is resolved and both parties can move on and
live with the end result, mediation has worked.
4. Know that it takes as long as it takes
Mediation is, generally, not a quick process. Most, if not all
of the mediations I have attended over the last few years, last the
whole day. The last few have lasted 11 hours. There is a lot of
sitting around, waiting for offers to be made or considering
offers. Take a paper, a laptop, whatever you need to pass the time
while the process is underway. Once the joint session is over,
there will be some time to fill.
5. Never leave without documenting a settlement
Although this is my fifth tip, it is without doubt, the most
important. If you get to the point of settling the dispute, use the
laptop you brought to keep you occupied to type up terms of
settlement, and do not leave until both parties agree to the terms,
and sign them. I cannot stress this enough, and I can almost
guarantee that if the parties reach agreement, and opt to document
it the following day, you will be back to square one. Someone
always changes their mind overnight, or decides, after some
thought, that they want to include a few more terms that have not
been agreed to, and suddenly, settlement falls over. There is no
point in spending a whole day trying to resolve a dispute, only to
realise the next day that it was wasted time.
Mediation can be a stressful experience, particularly where
following mediation, the parties have to continue dealing with each
other, like franchisees and franchisors do. People do not mediate
if things are running smoothly and they are getting along. However,
if you keep these tips in mind, and prepare beforehand, the process
will not be as daunting, or hopefully as exhausting. And, if you
find yourself facing mediation, Madgwicks can certainly assist.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.Madgwicks is a member
of Meritas, one of the world's largest law firm
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