Merge Mediation Group is an innovator and thought leader in the mediation field, offering a unique “risk-sharing” approach to resolving all types of commercial disputes (see “Cost” tab below for further details).
Our firm resolves disputes already in litigation, but our mediation services are not limited to that context exclusively. We also offer:
- “preventative mediation” in contexts such as estate planning, family businesses, partnerships, and the workplace, that nips brewing conflicts in the bud before they spiral into litigation. As a mutually trusted intermediary, a mediator is best positioned to play the role of peacemaker in such contexts because each party can confide in the mediator without fear that its candor will be exploited by the other side (because all disclosures are kept strictly confidential). Once fully informed of all the details and dimensions of the dispute, the mediator can craft a win-win solution that addresses the needs of all parties.
- “transactional mediation” that helps parties looking to close a deal resolve disputes on open issues that threaten to derail negotiations. In such contexts, parties often fear that any concessions will signal weakness and invite exploitation by the other side. As a mutually trusted intermediary, a mediator is best positioned to confer confidentially with each of the parties, and propose compromises that address all of the open issues.
Some of our key guiding principles:
We Share Risk With the Parties
Mediators are typically paid in full whether a dispute settles or not. But since the goal of mediation is a settlement, if no settlement is reached, then (in our view) the parties did not realize the full value of the mediation.
Of course, many mediations fail for reasons beyond the mediator’s control. Nevertheless, we don’t look for excuses, and thus if we fail to resolve a dispute, we will remit 50% of any fees earned back to the parties (a copy of our mediation agreement illustrating how this works is available for review upon request).
We Don’t Split the Baby; We Expand the Pie
With due respect to King Solomon, business people hate it when mediators attempt to “split the baby.” That’s the mental image that arises in the mind of many executives when considering mediation: a “neutral” convincing one party to pay more, and the other party to accept less, so they meet somewhere in the middle.
In contrast, we look to “expand the pie” – that is, find out what personal and/or business interests are motivating the parties, and expand the solution beyond purely distributive issues to other exchanges of value that create “win-win” solutions.
For example, salary negotiations are frequently viewed as a purely distributive exercise; if one party makes less, the other party makes more. However, if the pie expands to include other issues, such as vacation days, working at home, performance bonuses, and other issues valued differently by the parties to the negotiation, then the opportunities for creative solutions increase.
We Focus On Business Interests, Not Legal Positions
Lawyers tend to reframe parties’ personal or business interests as legal positions because that is how the adversarial system works. But legal positions are ultimately proxies for underlying business interests.
For example, in a lawsuit alleging breach of contract, parties would be pigeonholed into fighting over legal issues (e.g., is a particular clause ambiguous? was the breach material? did the other party waive the breach?). In a mediation to resolve the litigation, we would seek to uncover the business and personal issues driving the dispute (e.g., one party feels the other side acted deceptively), and craft creative compromises that address those issues (e.g., how can we rebuild trust?).
In the end, fighting over legal issues in court typically “burns bridges.” In mediation, we seek to validate interests in a manner that preserves valuable relationships.
- We Gain Trust and Establish Rapport
We typically begin a mediation by meeting separately with the key decision makers on both sides. Our aim is to build the trust and rapport necessary for each party to open up to the mediator and confide their underlying business interests and concerns. Armed with this information, the mediator can identify bargaining zones that facilitate reciprocal exchanges of value. In other words, by serving as a mutually trusted intermediary, we help parties identify gains from trades they might have otherwise overlooked because of an understandable reluctance to disclose key information about interests and concerns directly to their adversaries (out of fear such candor might be exploited).
Of course, joint sessions can also be productive. To take one example, two principals meeting together with the mediator can often make great progress if each is able to share their side of the story without interruption, judgment or criticism. Still, we feel that initial caucus is required before any joint sessions to lay the groundwork for respectful dialogue that builds momentum towards resolution.
- We Heed Emotions
Mediators often view emotional outbursts as unpleasantries to be ignored, or necessary venting that parties need to “get out of their system” before they can progress to level-headed discussion.
We respectfully disagree. Human beings are emotional creatures, and in business mediation, the mediator deals with the human faces of the business entities. These human beings have unique emotional needs.
Accordingly, we believe a mediator should interpret an emotional outburst as a potential goldmine signaling that the issue at hand hit such a nerve that it is likely both the source of, and the solution to, the conflict. In short, we view strong expressions of emotion as sources of information about hidden underlying interests that can be used to gain momentum towards a resolution.
Moreover, it is often necessary to validate and resolve underlying emotional issues before a deal can be struck. To paraphrase Robert Kindler (formerly an M&A partner at Cravath, Swaine & Moore), “even settlements that make absolute economic sense do not happen unless emotional issues are addressed.”
- We Communicate Effectively and Frequently
All forms of communication are not equal. Anyone who has tried to decipher whether their spouse is angry from an email knows that some forms of communication inherently lack expression. Context plays a dominant role. Proper mediation employs unique hierarchies of communication that facilitate understanding and disclosure.
Communication that occurs in-person, one-on-one, is most effective at building the sort of personal relationship and high level of trust that leads to the disclosure of the information that the mediator needs to craft optimal proposals. Therefore, ongoing one-on-one meetings with the decision makers on both sides geared towards problem-solving (supplemented by regular phone calls), are a central feature of our process.