By Gary Pettit
PBC Business Recovery & Insolvency
HANDS up if you have been in an argument. What usually happens? They raise their voice so you raise yours and so on until it becomes a shouting match and the cause of the debate gets pushed aside while other issues come to the fore. Sound familiar?
Common claims parties make to me in the run up to a mediation include:
* The matter is complicated; or
* Although willing, I am not sure how this can be settled; or
* The other side have been doing something untoward/fraudulent etc
One of the problems is the longer a dispute is allowed to run, the more the core reason for that dispute pales into the background, and claims and counterclaims are thrown back and forth. In shareholder disputes it can get worse as disputing directors make allegations of misconduct, then act on those beliefs, forgetting their own statutory duties owed to the company.
So, with the above in mind, how is it that, more often than not, disputes reach a settlement in mediation? I read something recently that said: 'The question is not how to avoid conflict but how to do it well'.
As I was once told, we have two ears and one mouth; we have been designed like that for a reason. All too often in a dispute scenario we forget the core basics of listening and talking by resorting to raising our voices, hoping the one that shouts loudest will win the day. Unfortunately, all it generally achieves is a steadily increasing legal bill, court intervention and an unwanted distraction to your business.
A mediator re-introduces the core communication attributes back into the forum and it is surprising how getting each party to listen to the story of their opponent extracts the facts, which ultimately leads to reaching a common language. This usually leads to settlement as the parties get to understand the facts behind the cause of the dispute from their opponents' point of view.
Refusal to mediate or simply to agree to mediation so you can 'Tick the alternative dispute resolution box' can be dangerous territory. If a court takes the view you could have avoided court intervention by settling through mediation you may be at serious risk of an adverse costs order, as many have already discovered to their cost. Therefore, if there appears to be a chance of settling a dispute you should consider mediation at the earliest practicable date.
Should you have a mediation need or an insolvency-related issue then contact Gary Pettit at PBC Business Recovery & Insolvency on 01604 212150 (Northampton office) or 01234 834886 (Bedford office). Alternatively, send an email to email@example.com or access the website at www.pbcbusinessrecovery.co.uk