Getting to the heart of the matter in commercial mediations
By AdvocateDaily.com Staff
Gossin, partner with Devry Smith Frank LLP, says many parties to a commercial dispute are tempted to search for a mediator with specialist knowledge in the specific field of business where they operate.
“More and more in mediation, we are seeing people seeking specialized mediators,” he says.
But Gossin says a neutral party who focuses too narrowly risks missing the real heart of the matter, thereby reducing the chances of a settlement.
“I’m not a construction law specialist, but I can certainly mediate construction law disputes,” he says. “What I bring to the table is a very broad-based background developed over 40 years of practice in many areas. I have experience in construction matters, as well as an understanding of commercial transactions in general. But I’ve also trained in family and estates disputes, which has given me an understanding of some of the human dynamics involved in the process.
“It’s very important that commercial mediators don’t just stick to number crunching, and are able to understand more than just the business and legal aspects of the problem,” Gossin adds.
In fact, experience tells him that the root of apparently intractable disputes is often only tangentially related to the business.
In one case, he was called in to mediate a developing fight between business partners in the trucking industry over who was responsible for which costs associated with the use of a yard owned by one of the parties.
“They shared an accountant who decided it would be best to mediate before they got their lawyers involved and it turned into a giant mess,” Gossin says. “During the course of the session, it became clear that this was not really about accounting issues, but there was some family history there.
“We were able to discuss the deal between them in the context of that history, but mediators who don’t pick up on those clues might not have made the same progress,” he adds.
In another case where both sides had already turned to lawyers, a former business partnership deteriorated even further after the split when one party opened up a competing business, allegedly built on the back of clients from the old shared company.
“This is typical stuff in business, and the lawyers were focused on their legal positions over non-compete covenants, breaches of fiduciary duty, and so forth,” Gossin says.
During the mediation, he discovered that there were other, non-business related issues that had to be dealt with. While the lawyers may have recognized this, in an adversarial process, it would have been almost impossible for them to deal with those issues.
“I was prepared to acknowledge those personal issues and ask the parties how they felt about those things and whether we might try to come up with a solution that could preserve, or restore the relationship,” Gossin says.
“When a case doesn’t settle, it’s often because the lawyers can’t get past or deal with the 'touchy-feely' issues. A commercial mediator should see that identifying and addressing these issues can really make a difference toward achieving a settlement,” he notes.