The current recession in the local, regional and global economy has made it compulsory for companies to review their expenditures in an effort to control their debt/equity ratio, resources and finances.
As corporations, businesses and establishments juggle to restructure and downsize their operations; these policies can easily lead to a spiral of conflict and disputes and erode existing resources.
ADR, though for the legal fraternity is the acronym for “Astonishing Drop in Revenue”; for the judiciary, “Alternative Dispute Resolution” and for commerce “Amicable or Appropriate Dispute Resolution”, mediation is the most “Applicable” mechanism that can provide organizations with an efficient and effect process for resolving disputes by giving them greater control over the outcome, at a lesser cost and much reduced risk, stress and negative publicity.
Mr. Michael Leathes, former Head of Intellectual Property at BAT, stated that mediation offers an 80% success rate. Further he states “Mediation is not a branch of law but a branch of business negotiation”.
A legal decision or judgment is a zero sum game, where traditionally there is a winner and a loser, the former gaining at the expense of the latter. Further, legal decisions can only offer a case settlement but they cannot resolve the cause of the conflict, more so when business relationships between contending parties are permanently fractured. Legal counsel acting in the interest of his/her client must appreciate that a case won in court of law does not always represent a case won in the commercial arena which takes into account future commercial transactions if the relationships between the parties are to be preserved.
To avoid the perception of weakness when a dispute arises, it is recommended that proactive organizations include a mediation clause in their contracts, agreements, leases and the like. Whilst, on the other hand, Legal counsel who ought to act in best interest of their client should be able to diagnose the extent and the degree of their client’s conflict when it arises and offer mediation as the first resort to resolving commercial disputes. Beyond a shadow of a doubt, legal costs will be cut by a significant percentage, as Christine Guerrier, Vice-President of Dispute Resolution and Litigation for Thales, France stated that the increasing use of mediation cut legal costs by about one-third of their legal budget.
Mediation has become an integral part of dispute resolution in Australia, Asia, United Kingdom, Canada and the United States. The Caribbean is experiencing a renaissance in the practice of mediation with Jamaica and Trinidad and Tobago taking the lead in the practice of mediation. Initially, many jurisdictions and organization adopted the Western model of mediation to develop their skills and expertise. Currently, increased effort is being placed at incorporating local traditions and values in the training and practice of mediation within an indigenous context and framework of dispute resolution.