Have you ever been involved in a commercial dispute? If so, did you consider mediation to resolve the situation rather than litigation?
What is mediation?
The word 'mediation' comes from the Latin verb mediare, meaning to halve, divide in the middle, or be in the middle. The role of a mediator is thus to be in the middle – to act as the neutral person between two or more disputing parties to help them resolve their differences.
What is litigation?
Litigation, on the other hand, comes from the Latin verb litigare, meaning to quarrel or to go to law. Litigation typically involves warring parties going to Court and while a judge may be a neutral person he/she has to decide in favour of only one party.
The difference in meaning between the two words says a lot about the difference between mediation and litigation as mechanisms to resolve disputes.
A mediator's job
According to the LEADR model of mediation in New Zealand it is a mediator's job to facilitate resolution by their parties of their dispute. This involves the mediator helping the parties:
- Identify the issues that have brought them to the mediation table (which may be quite different for each of them);
- Explore the issues each has identified, including identifying and exploring the parties' emotional and practical interests and identifying the existence of any common ground;
- Reflect on their own positions and interests and their understanding and appreciation of those of the other party or parties';
- Actively engage in open brain-storming to find possible solutions;
- Identify the most workable and acceptable solutions; and
- Translate what has been agreed into an agreement or plan for the future.
Perhaps the distinguishing feature of the LEADR model above is that throughout the mediation it is the parties who control the outcome – what they put in is reflected in what they get out of it. Thus if the parties come to the table with a negative attitude towards the process they are very unlikely to get anything out of it. In fact, the mediation will probably not last much beyond the initial introductions.
Benefits of mediation
The principal benefits of mediation over litigation are:
- The parties determine the outcome of their dispute, not a third party such as an arbitrator or judge
- The parties do not have to decide who's right and who's wrong – the outcome is a solution which both parties can live with irrespective of who's right or wrong
- Mediation can be a speedy resolution process, depending on the complexity of the issues and the number of parties involved, unlike litigation which is typically drawn out over many months if not years
- Mediation is a confidential process; litigation is usually a public process
- Mediation is an informal, flexible and accommodating process, not governed by strict procedural rules as in Court proceedings. The LEADR model of mediation, for example, has an 'ideal' process structure but this can be varied according to the needs of the specific mediation with the parties' consent
- Mediation can preserve relationships when litigation may well destroy them. Preservation of commercial relationships can be incredibly important, of course, especially in a country like New Zealand where alternative providers goods and services are often limited
Of course, mediation is not always the appropriate mechanism to resolve a dispute. In many instances the parties are so far apart in their desired outcomes or simply cannot co-operate with each other that the only suitable process is one where a third party, such as an arbitrator or judge, decides the outcome for them.
How do I find a mediator?
There are two organizations in New Zealand under which mediators can be accredited: LEADR Association of Dispute Resolvers and the Arbitrators and Mediators Institute of New Zealand (AMINZ). Both LEADR's and AMINZ's websites provide a facility for people to search for a suitable mediator.
If your dispute is one which involves an intellectual1 property issue, however, I invite you to contact me. I am an accredited LEADR mediator as well as an Associate Member of AMINZ and am more than happy to assist.
1Refers to the ownership of an intangible thing - the innovative idea behind a new technology, product, process, design or plant variety, and other intangibles such as trade secrets, goodwill and reputation, and trade marks. Although intangible, the law recognises intellectual property as a form of property which can be sold, licensed, damaged or trespassed upon. Intellectual property encompasses patents, designs, trade marks and copyright.
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.
James & Wells Intellectual Property, three time winner of the New Zealand Intellectual Property Laws Award and first IP firm in the world to achieve CEMARS® certification.