When you weigh the advantages of mediation over litigation, no doubt you think in terms of costs, but do you also consider privacy? In a day when even the most obscure public records are searchable, Tweetable and, worst, downloadable for reference ten days or ten years hence, there are real advantages in not airing your dirty laundry (and even your clean laundry such as trade secrets, trade relationships, and operational practices) in the public eye. Whether you might be defendant or plaintiff, there is little advantage for your relationships and the bottom line in having all the details out online. Were you even able to seal the litigation record, the fact of litigation and an aura of the facts would still remain, online. All the better to use mediation to keep persons, facts, and fallout of disputes out of view.
Particularly where the dispute is uncharacteristic of you and your real world views and even those of other parties to the dispute, far better to maintain confidentiality, preserve working relationships, and protect reputations across the board through mediation. As in a divorce, friends of the disputants all too often end up choosing sides in litigation–or withdrawing from the relationships altogether. Changed in the wake of trial, or even merely painful e-discovery, employees, customers, suppliers, all may drift away–or abruptly depart. Mediation, however, allows you to work things out in private, and, early enough, even allows you to continue your working relationship with your disputant.
Mediation early enough in a dispute protects the more distant future, while litigation can follow you in perpetuity. Not so long ago, I met a commercial property manager who told me that his secret for making money in his largish mall was to pre-screen all prospective tenants and turn away any who had ever sued anyone. Anyone. Ever. Personally or otherwise. Prospective tenants left their names with reception; if they had ever litigated, they never even got in the door. Bad credit nothing, he was determined to eliminate aggressors and the deep pocket risk.
Consider. You might have really wanted that space. His space might have given you perfect access to the core customers in your best and most lucrative niche. But if you had litigated that dispute over the defective widgets with your supplier, my commercial property manager would not have given you the time of day. Had you mediated instead of pleading, he would never have been given pause. He never would have known that you too assert yourself.
Likewise mediation can protect all of those other prospective relationships you might seek, not only with my property manager acquaintance, but with lenders, suppliers, strategic partners, investors, and, of course, prospective customers googling and yelping you online. Just as you are leery of the doctor who has been sued, unable to see how just the suit may have been, a whole spectrum of prospective customers and commercial partners have been warned by accountants, columnists, and friends to beware of anyone who has ever sued or been sued. While in certain communities and states of commerce, the pit bull reputation can be good protection, the reputational advantage of mediation can be great.
Beware the Ides of the litigation calendar: Mediate. Do so early. Defer emergence as defendant as well as plaintiff. Save money, save time, and save collateral litigation damage. Preserve your privacy.