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  • Writer's pictureMartin B DeBellefeuille

Commercial Mediation

No entrepreneur has an interest in unnecessarily prolonging a situation of conflict. Raise your hand if you want disputes you're facing to become public through the media, tarnishing your reputation and image. Why engage in complex legal proceedings when the possibility of resolving conflicts through mediation is much more accessible and discreet? However, it is important to be informed about its existence and effectiveness. It's essential to inform business people about the advantages of resorting to commercial mediation as a confidential conflict management method.


AN INSTINCT TO ADOPT

If mediation has not yet gained true enthusiasm within business networks, it is undoubtedly because this practice remains unknown to many decision-makers. Mediation is inspired by alternative dispute resolution methods from our American neighbors. The trend has been developing in Canada since the early 1990s, yet we are far from seeing it as a natural instinct for entrepreneurs when faced with a litigious situation.


The use of a mediation lawyer in resolving a conflict allows entrepreneurs to quickly, effectively, and cost-effectively address the contentious situations they may face. Examples are numerous: collection of unpaid accounts, complaints and grievances, shareholder disputes, disputes between business partners, etc.


FOCUS ON COMMUNICATION

Commercial mediation is a voluntary and non-binding process for resolving conflicts in a confidential atmosphere. It's an effective tool for dispute management, primarily based on cooperation, communication, and goodwill of the involved parties. For mediation to take place, both parties must genuinely want to resolve the dispute, reach a middle ground, and make certain concessions. Without these essential elements, mediation may struggle to yield satisfactory results. Mediation does not preclude the possibility of resorting to legal proceedings in case of failure.


MAKE WAY FOR MEDIATION

At the end of mediation, there isn't necessarily a winner and a loser: both parties can come out as winners. Each party expresses their needs and interests. The mediator facilitates dialogue, assigns speaking rights, and determines communication principles. Then, the parties develop different resolution alternatives, negotiate, and try to agree on one of them.


When an agreement is reached, the lawyer translates the parties' intentions into a contract and proceeds, if necessary, with its ratification. This contract, signed by the involved parties, ends the legal proceedings and binds the parties to respect the agreement. They can use it to enforce execution if one of the parties doesn't comply with the terms of the agreement.


Commercial mediation offers a more efficient, discreet, less expensive, and flexible solution than resorting to the courts. The parties generally share the costs of mediation. As for its duration, it directly depends on the stakes and can range from a few hours to a few weeks, and in rare exceptional cases, to a few months.


RECONCILIATION

The role of the mediator is to act as a facilitator, neutral, and impartial, and to organize a constructive exchange between the parties in dispute. They allow each party to express their viewpoint in a conducive environment, facilitate mutual understanding of the factors underlying the dispute, and attempt to help the parties overcome the conflict. The lawyer ensures the optimal conditions for the emergence of a solution that promotes a compromise between the interests of both parties. They do not take sides with any of the participants. The lawyer is non-compellable, meaning they cannot be called to testify about the information obtained during the mediation process. They are bound by confidentiality.

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