When I speak with business colleagues and clients, I find that they often do not understand the concept of mediation.  They may have heard the term or have a rudimentary understanding of the process, but for most, mediation is just one of the steps involved in hiring a lawyer and going to court.  To most of these business leaders, mediation seldom represents a significant means of resolving disputes apart from the traditional legal process.  Rather it is something we do in order to get to trial.

Sadly, many attorneys treat mediation in a similar manner.  They view mediation as an element of litigation, not a serious or productive means of business dispute resolution, but rather a step in the process of litigating a case.  Seldom am I engaged in mediation before a business dispute is the subject of court pleadings, motions, discovery and substantial attorneys’ fees and acrimony.   Even then, it is uncommon for counsel to fully prepare for mediation as they might for key depositions or for trial.   Do we really take mediation seriously and if not, should we?

Certainly, the Federal Courts treat the process seriously – mediation is mandatory in most civil cases.  While state courts differ, my home state of Florida has provided a litigation process for pre-trial civil mediation for over 25 years, providing exceptional results in moving cases to settlement.  Nonetheless, many mediators complain that litigants do not take mediation seriously, are often unprepared, and expect positive results with little attention or pre-mediation preparation by the litigants.

As both a corporate CEO and an attorney, I learned the importance of predictability and consistency in the business process.  Disputes always arise in the course of business – however, the key issue is how we deal with disputes and their resolution.  Do we wish to spend many thousands of dollars in a protracted litigation so that we can turn over the resolution of the matter to a judge or jury who know nothing about our business, our industry or the individuals involved in the dispute?  Are we willing to breach the confidential nature of our business transactions and the resolution of our business disputes, so that we can expose ourselves in a public forum?

Mediation is more than an element in expensive litigation.  It is an independent means by which parties can seek resolution to any number of disputes that arise in the business arena.  It is not a process confined to court and litigation proceedings.  It importance lies in its relative cost, its confidential nature and its ability to allow parties to settle their differences by their own decision, not that of third parties who know nothing of their work except as presented in a formal trial.

So what does this have to do with Paula Deen’s commercial empire?  It’s quite simple – had she and her counsel recognized how mediation differs from litigation, providing the parties with a confidential atmosphere in which to resolve issues, there is a good chance that she would not have been forced to publicly disclose her comments and actions through the litigation discovery process.  If mediation (or confidential arbitration) had been required for all employee disputes, one might consider that Ms. Deen’s commercial empire (grossing $20 million annually) might still be alive and well today.  One commentator places the blame on both Ms. Deen and her counsel, making a strong case for the importance of mediation as a separate and alternative means for dispute resolution.   While I do not condone Ms. Deen’s comments, I do understand the author’s point that in representing the Deen Empire, the use of confidential dispute resolution practices could have made a significant difference in the outcome.  See: 


http://www.chicagotribune.com/news/columnists/sns-201307021400--tms--gracectnng-a20130702-20130702,0,3442802.column.