Business disputes are well-suited for mediation. The confidential setting allows frank discussions about sensitive topics that will likely be problematic in court. Unlike litigation’s limited win-lose outcomes, mediation enables parties to craft agreements that resolve the issue that gave rise to the litigation as well as shape future endeavors. Finally, the collaborative process helps parties evaluate settlement proposals against realistic trial outcomes, considering the strengths and weaknesses on both, or all, sides of the case.
However, some business disputes arrive at mediation with emotional weight and baggage that can potentially derail productive settlement discussions. Tortious interference cases are a good example. Unlike contract disputes or negligence cases, these claims often feel deeply personal to the parties involved. The heart of every tortious interference claim is the defendant’s alleged intentional interference with a business relationship or contract. When plaintiffs believe their business relationship or contract has been deliberately disrupted, they can feel angry, disappointed, and disrespected. In addition to legal issues, these cases raise issues of trust and distrust. On the other side of the table is often a defendant who feels they have been haled into court for actions taken to protect their own business interests or actions they were legally privileged to take as a business competitor. Feelings of frustration and indignation can surface.
Successful mediation, however, requires moving beyond emotions to focus on facts, evidence, legal realities, and practical outcomes. Strategic preparation by counsel is critical to ensure the parties enjoy a meaningful opportunity to decide whether theirs is a dispute that can or should be resolved at mediation. Preparing the parties in advance for evidence-based discussions on the claim and defenses is a good first step in setting the stage for mediation. Educating the parties on critical legal distinctions that impact case value and settlement potential – i.e., protected business expectancy versus hope of future business, competition versus interference – is key to their preparation for those discussions at the conference. No less important is developing a plan to acknowledge the emotional underpinnings of the dispute in a way that helps the parties move past emotional obstacles more quickly. When parties feel heard and understood, they may be more willing to engage in realistic settlement discussions.
Mediations that involve an emotional client or that threaten to stir up negative emotions in the parties demand strategic preparation by counsel and a skillful mediator. Mediation experience, knowledge of the law, and understanding the facts and background are always requirements for mediators. For these disputes, a mediator with a high EQ, or emotional intelligence, is critical. So too is the ability (and willingness) to monitor the parties’ emotional states and their impact on the settlement discussions.
This approach to mediating emotionally charged business disputes like tortious interference cases helps the parties maximize the opportunities presented by mediation and reach a satisfactory outcome – be it a signed final agreement, refined focus for discovery going forward, or clarified trial strategy.
April Y. Walker is a mediator and arbitrator with Upchurch Watson White & Max.