Parties to a commercial dispute are generally inclined to select a specialist mediator with expert knowledge in the field of business where the parties operate. However, there's much more to a commercial dispute than precise legal issues. Mediators with an "expertly" narrow focus are generally looking neither beyond nor beneath the problem.
A broad-based background in many areas—including varied experiences with human dynamics—positions a mediator to recognize the real "heart" of the matter and increase the possibility of settlement. For example, a mediator with a background in construction law disputes and family and estates disputes is able to see more deeply into business or legal disputes. It is often the case that the root of the apparently intractable dispute is often only tangentially related to the business.
In one real-world example, a fight was boiling over between business partners in the trucking industry with respect to costs associated with running the business. In another example, a former business partnership deteriorated even further after the split when one party opened up a competing business, allegedly built on the back of clients from the old shared company.
The focus of every party in both of these situations was on their respective legal positions—non-compete covenants, breaches of fiduciary duty, et cetera. But, during the course of the mediations, it became clear that the core of both issues was a latent family history between the partners. Failing to recognize this unstable element in a critical situation could render it almost impossible for mediators to deal with the legal and business issues.
When a case does not settle, it could be due to the mediator's unwillingness to address and overcome the "touchy-feely" issues. Mediators who fail to pick up on clues beyond their particular area of expertise might not make the same progress as a mediator with a broad background. A mediator with a breadth of experience is prepared to acknowledge personal issues and craft a solution that preserves and restores relationships.
Virtual or remote mediations conducted during the Coronavirus disease (COVID-19) pandemic pose a further challenge for mediators to perceive the unspoken indicators of problems beneath the surface of a dispute. Commercial mediators with broad experiences mediating different types of disputes in different kinds of settings are the best equipped to address the nuances behind complex problems—even through the screen.
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.
