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Corporate Resistance to Mediation

Corporate Resistance to Mediation

Is there resistance to mediation in a corporate context?

 

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In a corporate context, where I tend to work most, you might come across the lawyer saying ‘I find it very difficult to suggest mediation’ because more often than not, and which goes back to this idea about dispute wise management. When the dispute gets to the legal department of a corporate, it’s because the very sophisticated business parties have already tried negotiation. It’s the trying to persuade them, that what we do in mediation is different than facilitative negotiation.

 

And, if you call mediation ‘negotiation with the help of third party neutral’ they will say, ‘I’m sorry, we’ve tried that already. We’ve already negotiated, the other side are completely irrational; they’re totally stubborn, they won’t do anything. You’re not going to get any further than we’ve done already.’

 

Trying to explain to them what a good neutral can bring is very difficult, because you’re effectively saying ‘You haven’t succeeded, but this might.’

 

So you have to very, and also, the lawyer, has to persuade these guys to go down that route, whereas most often they’re banging their fist and saying, ‘We’ve tried that route; get on, go to the court, get an injunction, sort it all out for me.’ It’s a tough one for internal counsel and their external advisors to hold back to this and explain to them, ‘Well, would you mind giving this a go?’

 

Once you’ve got the business in a room, and they see the power that they get back, and the ability for them to find a solution, they’ll do it time and time again. But, it’s getting them over the brink the first time and not making them think that they failed in their negotiations. It’s actually saying to them, ‘I really want to understand where you got to on those negotiations, because that’s our starting point, that’s our founding blocks.’

 

It’s not to say we’ve come to a dead-end on that. Let’s build on that. Let’s give you back the power to find your own solution.

About the mediator

Jane Player Profile Pic

Jane is a business risk adviser using her legal background to give pragmatic and commercial risk advice to her clients. She is a partner at King & Spalding and prior to that for 10 years was head of Bird & Bird's Disputes Practice internationally . Before that Jane was at DLA for 10 years of which the last 6 she was head of the London Disputes team. She has experience of running law firm group budgets, leading and managing a business sect... View Mediator