Mediation Basics
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Litigation is necessary at times, when large legal issues are at stake, when
the parties do not care to ever work together again or when precedent is necessary.
Court however is very costly in terms of time and money, and the court systems, both state
and federal are clogged. Arbitration is a service the most courts and many
private organizations provide for some cases. Business or contractual and
"judicial arbitration" are the basic types, where the arbitrator conducts a
hearing in a trial-like atmosphere and is a substitute judge. The rules of evidence are
not as strictly adhered to and Arbitration is also privately conducted. Some
arbitrations are where the parties have agreed to arbitrate a dispute when they made an
agreement. Others are court ordered for the usual reason that the amounts in controversy
or the importance compared with other cases should not clog the court's calendar.
The largest and most well known private arbitration service is the AAA, American
Arbitration Association. Arbitration. The AAA requires adherence to its basic rules
and laws of evidence and the parties are still letting a third person decide the fate of
their dispute. One will "win" and be happy, while the other will
"lose" and the parties may never work together again.
In mediation, the goal is "win-win" for both sides. The mediator does
not have any decisional power but facilitates an agreement between the parties. It is a
private, confidential, and needs to be a cooperative technique. The parties are encouraged
to work towards their common goals in an early, inexpensive, and durable resolution to
their problem. The settlement is made durable by a written agreement between the parties,
that agrees to settle and dismiss whatever court case may be pending on the issues.
Thus mediation can be "binding" if the parties resolve their dispute, and make an agreement (contract) about how they will perform under their settled resolution. A mediator can bring understanding to disputes to make the chances of a successful resolution far greater than in unfacilitated negotiations and offers such relief at an earlier point in time where it can be more beneficial. Seek the best mediator for the problem and parties.
Even in cases where parties cannot come to complete agreement, mediation can: eliminate and clarify issues; and streamline the discovery process to save the parties time and money. Microsoft vs. Stac was a prominent and unusual case in point, where Stac charged Microsoft with copyright infringement from embedding or integrating the famous Stacker compression system into an MS product. After litigation and after a long and costly appeal, which Stac "won." This being the case, the parties creatively still finally resolved their beef with exchanges stock for another's, cross licensing arrangements. Thus mediation can even help resolve disputes when litigation has begun. It is best to mediate a dispute when it is not at so costly a stage, however.
If the parties NEED to work together for better products, to market and to avoid the notoriety of litigation, mediation is the way to go. If cost is a factor, so that parties in dispute want to avoid paying their counsel $100,000's for litigation to let a third person (judge or arbitrator) tell them who wins, mediation is the way to go. If the potential partners to a complex multimedia or entertainment, software or animation project are many and the stakes are high, a pre-contract "partnering" mediation is the way to get potential disputes into the open, discussed and mediated by a knowledgeable mediator to PREVENT a dispute at all. Think about it.