Updated: Oct 16
Mediation is simply defined as a process where a neutral third party called a mediator assists parties to work through conflict and reach a mutually satisfying solution by use of specialized skills and techniques to help the parties creatively explore issues and bargain options that lead to amicable resolution.
While mediation is often thought of in the context of personal or family disputes, few business have the realization that mediation services are available to resolve business related disputes as well.
As an alternative to costly litigation, mediation offers businesses a less expensive and quicker way to resolve civil disputes that also aims to preserve relationship's ‘’..In simple terms the fact that we are in conflict does not mean that our business relationship needs to end’’, ANONYMOUS.
Mediation isn’t like litigation. Litigation involves a system of rules and limitations that has evolved over centuries to ensure procedural fairness amongst disputing parties. It often involves lawyers to speak for the parties and help navigate those rules, and ultimately, a Magistrate or a Judge to decide the outcome. Litigation has value and is often necessary, but it’s not the only way.
Mediation isn’t a system of rules, but rather a means of communication. It does not involve document filing, discovery or court appearances, and it doesn’t require a long wait or high costs. Instead, mediation is a less formal, accessible and flexible process.
Why should you Consider Business Mediation
Running a business is demanding, it requires one to think about a strategy to sustain and grow your business, handle the daily operations and manage employees, sign contracts, provide after sales services. However, sometimes disputes arise either with an employee, between employees, with a client, or a supplier. But you might be wondering: what’s best for me: go to court or find an alternative dispute resolution process?
It is often overwhelming for a small business to come up with the time, money, and expertise to cope with a relatively minor dispute through legal means. What’s more, unless the situation is resolved amicably, the leftover hostility could affect a small business owner’s quality of life it can be unpleasant to bump into an unfriendly party on a day-to-day basis. Mediation is an efficient and effective way to resolve disputes and build community among small business people and their customers.
Benefits of Using Mediation for Your Business
The outcome of litigation is often unpredictable. While a seasoned judge may have the ability to quickly learn the details of the case and make generalizations, choosing to litigate still means giving up control to someone who will never have the time to learn the full complexities of the situation. Therefore turning to a trained neutral party, like a mediator, allows parties to maintain control of the outcome, while getting the benefit of Professional assistance.
Even if you choose a high-priced, private mediator, the costs are far lower than litigation. You and the other party will share the cost, instead of paying your own legal costs. Mediation resolutions are reached much faster than therefore leading to further savings on the cost of litigation.
Mediation allows for greater flexibility. There is no limit to the innovation and ingenuity parties can display in reaching an agreement.
One of the most valuable differences between litigation and mediation is that litigation is one party vs. another party, while mediation is one party working with another party to reach a mutually beneficial outcome.
Traditional litigation is a matter of public record. But everything you say in mediation is completely confidential. If your conflict involves sensitive topics or trade secrets, mediation is a better option.
Is This a Viable Option for My Business?
The answer is yes. As stated earlier, mediation involves a neutral third person ‘’the mediator ‘’ who meets with parties who are having a conflict to help them try to work it out together. Mediation agreements are more likely to be honored as it is one that had been reached by the parties working together. Once you have gone through mediation, you shall have immediate tools that you can draw upon to help resolve future conflicts.
In light of the above, any business owner can incorporate mediation as a tool to help in dispute resolution which includes and not limited to, board resolution, contract review, conflict between suppliers etc..
To small medium sized enterprises, mediation is timely, immediate, and a fraction of the cost of litigation, which means less disruption to day-to-day business operations. Hence providing an alternative that suits majority of startups in Kenya. Contact us on firstname.lastname@example.org for more information on how to use mediation as tool for dispute resolution in your business.
This article was written by Kioi & Co Advocates, Legal experts at the SNDBX, a one-stop-shop collaborative space that brings together 31+ different professional service experts who work together to help entrepreneurs to grow and scale and entrepreneur support institutions to succeed in their programs.