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 mediation tips:
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 alliances.
