Tuesday, April 10, 2007

Mediation of Transactional "Disputes" - Contract Negotiation

About a quarter of the mediations I conduct are not mediations to resolve litigated disputes but are instead mediations of contract negotiations. In these transactional mediations, there is no actual dispute. In fact, the purpose of the mediation is to prevent an actual dispute from arising, causing the negotiations to break down entirely or to result in litigation.

As a mediator, I am hired to help parties work toward and arrive at agreeable terms and specific language for their contract while preserving the professional and personal relationships of the parties.

As in any mediation or contract negotiation, whether it is for a business or real estate deal, an employment agreement or a prenuptial agreement, one of the purposes of transactional mediation is to help the parties communicate productively. I work to make sure the communications do not devolve the negotiation process into an adversarial contest that damages the relationship of the parties.

One of the ways I do this is by posing some of the most difficult questions to each party myself rather than having the parties appear to be attacking each other by asking the difficult questions necessary in most contract negotiations. Using this method of communication allows me to deflect some of the tension and defensiveness away from the parties and to minimize the adversarialness between the parties which ultimately helps the parties reach a well-thought out and durable agreement.

There is a real sense of team-work in transactional mediations that is not always present in mediated litigation disputes despite the best efforts of the mediator to foster such a sense of working together. Transactional mediation is not just contract negotiation, it is also relationship preservation and, often, improves the parties' ability to communicate productively with each other in the future.

1 comment:

Irv Mermelstein said...

A colleague and I just completed ICLE mediation training in Michigan. We are both transactional lawyers with a lot of business experience. Your concept is very interesting and we wold be interested in discussing it with you.