Mediation Can Help You Outswim the Sharks.

When I was a little girl and other little girls were playing with dolls, I was dictating letters to an imaginary secretary, parroting no doubt, my father‘s actions. When I started my undergraduate work, I still assumed I would be taking over my father‘s manufacturing company and took the necessary business administration classes in accounting, economics, industrial psychology and management. In law school, I actually liked my classes on the UCC, corporations and partnerships, and business. All of this background was very useful in my work as a judge on civil  commercial cases. To this day, I enjoy reading the business pages in the newspaper and especially Harvey Mackay’s column, entitled Outswimming the Sharks. His recent article in the Minneapolis newspaper was especially relevant to my current work as an alternative dispute reolution professional working on commercial disputes.

His column focused on the importance of compromise in business decisions. (His entire column in Minneapolis StarTribune, February 19, 2024 can be found here.) I had many commercial cases while on the bench and have conducted at least as many commercial mediations. All mediations are eventually about compromise.  As Mackay points out,  when you compromise “... No one gets everything they want and be prepared to come to a different outcome than you had originally considered.” That is good advice that attorneys should heed and be sure to give to their clients before mediation.

Mackay is astute in pointing out that one should also “recognize when not to compromise“ and  to never compromise “at the cost of honesty or integrity.”  As in all mediations, “it is knowing your nonnegotiables, and being clear about what you are willing to give up.” That is very important in mediation and are key points for good lawyers to clarify with their clients ahead of any mediation. In commercial mediations, I always explore the possibility of whether the parties are likely to be doing business with each other in the future. This is often the case and calls for a special approach to the mediation and the final settlement, It also introduces creative possibilities for solutions. Many business relationships are ongoing. As an example, in construction cases, many of the same subcontractors are used routinely, particularly on very large, multi-phase projects. Also, companies that manufacture goods are often working with a limited number of suppliers. These and many other businesses continue ongoing relationships, even after the flare of litigation. They can and should reach settlement to maintain those on-going relationships. Mr. Mackay also recognized this dynamic.

Good lawyers will also tell their clients to follow Mackay’s sound post-mediation advice.  When  the parties compromise and these cases settle,  Mackay recommends they “ spit out the sour grapes, and instead look at the fruit of their labors.” This is good advice for all involved who want to continue being successful in their business. At a certain point, one must focus on the future, no matter how frustrating the past.