Advantage: Money Isn’t Everything
when viewed as a process requiring the active involvement
of the parties to a conflict, has many unique and significant
advantages. One advantage is the flexibility of remedies achievable
through the mediation process. Mediation
enables disputing parties to jointly craft a sensible remedy.
Neither party gets exactly what it wants, but the parties
can enter into almost any kind of agreement that works for
both of them.
tenet of negotiating an agreement is that each party to
that agreement must agree with its terms. Unlike an adversarial
proceeding, such as litigation or arbitration, in which
one party is generally found to be entitled to a decision
in its favor, a successful mediation requires the assent
of all parties. Using creativity, business purpose, and
farsightedness, the parties may craft an agreement that
provides a better solution than a verdict or award ever
could. Arriving at the solution that works best for both
parties may require the synthesis of several alternatives.
is often a key ingredient in a settlement; however, in many
instances, disputing parties can achieve a resolution with
a significant nonmonetary component as well. Equal employment
opportunity (EEO) disputes are a prime candidate for nonmonetary
resolutions through mediation. Even where an employment
dispute centers on a charge of discrimination in violation
of Title VII or other state or federal statutes, parties
may construct a solution that better fits their respective
interests. For example, in one mediated case, an employer
agreed to transfer the employee to a different department
in which the complainant would have no further contact with
the supervisor. In other recent mediated disputes, employers
agreed to provide training in nondiscriminatory behavior
for specified supervisors.
other mediated conflicts in which the complainant was already
terminated, the employer agreed to provide a positive letter
of recommendation, rather than the standard neutral letter.
In additional mediated disputes, employers agreed to remove
negative remarks and letters from the complainant employees’
files. Similarly, and perhaps most important, in cases where
the plaintiff has suffered significant emotional distress,
a simple written apology from the individual or entity has
been a key component of a mediated resolution.
another recent case, an employee at a health-care facility
complained of alleged age discrimination. Among other aspects
of the eventual settlement agreement achieved through mediation,
both parties agreed to options for the employee to retire
within 18 months, on a date selected by the employee; for
the modification, where possible, of a retirement plan to
suit the employee’s unique circumstances; and for
a letter from the employer acknowledging the employee’s
years of service and the quality of his work. In that case,
the complainant had been a valued employee, and it was important
to the employer to correct an unfair situation.
mediation, resolutions can often be achieved that satisfy
the plaintiff’s desire to receive compensation, at
little or no out-of-pocket cost to the defendant company.
In one recent dispute, the plaintiff sought to enforce an
agreement providing him with warrants for the defendant
company’s stock. The plaintiff demanded payment equal
to the current value of shares, assuming the warrants had
been executed per the plaintiff’s alleged entitlement.
As part of the mediated resolution, the company agreed to
lower the execution price for the warrants, resulting in
the plaintiff being able to acquire a greater number of
shares. Because the defendant company had no excess cash,
not having to compensate the plaintiff with a cash payment
was of great benefit.
to a dispute should not miss the opportunity afforded by
mediation to craft nonmonetary ways to resolve the dispute.
Mediators term this settlement approach “expanding
the pie.” One approach to expanding the pie is to
consider future ways of continuing to do business. The nature
of the dispute and of the industry in which the parties
operate will often suggest a number of different avenues
the parties may take toward resolution. For example, a financial
services company recently brought an action against a former
employee for resigning his employment prior to the close
of a particularly lucrative deal for the company. The employee’s
continued employment had been critical to the company’s
entitlement to a hefty commission on the deal, which was
forfeited when the employee departed. The employer sought
compensation equal to the commission it would have otherwise
received. It was apparent that the employee had a strong
reputation in an industry sector related to the employer’s
business. As part of the mediated settlement, the employee
agreed to steer new business to the employer, which would
enable the employer to both expand its area of specialization
and receive future commissions on the new line of business.
The former employee avoided an immediate cash settlement
by agreeing to pay the employer a set sum if, after a specified
period of time, the employer had not received sufficient
the employee’s referral business. Both parties left
the mediation satisfied with the end result.
in a recent case in which the parties to a distribution
agreement were embroiled in a dispute, through mediation
they eventually agreed to renew a modified distribution
plan as part of a consensual resolution. Not only did the
parties agree to do future business together, but they also
rehabilitated a deteriorating relationship. Continuing to
work together made practical and financial sense for their
businesses. Similarly, in another litigation involving breach
of contract, a consulting practice agreed, as part of the
mediated settlement, to provide additional consulting services
to the customer at no additional cost, thereby avoiding
having to pay a cash settlement.
contrast, in some mediated conflicts, the termination of
a relationship may be the key to resolving the conflict.
In one recent case involving the distribution of two films,
one of which had been produced by the other party, the parties’
agreement that the producing party would regain the exclusive
distribution rights for its own film resolved the matter.
The plaintiff was satisfied with the knowledge that it would
make its own distribution decisions and thereby have sole
control, for better or for worse, over the film’s
performance in the marketplace.
of perceived wrongdoings may also result in a complete or
partial settlement. In one recent dispute, a visual artist
alleged an entitlement to be credited in publications incorporating
her work. As part of the mediated settlement, the publisher
agreed to correct all future printings to include the artist’s
credit. The publisher also agreed to provide the artist
with additional free copies of the publications containing
in which the parties have an ongoing and important business
relationship usually lend themselves to creative mediated
resolutions. For example, in a recent case, a national not-for-profit
organization and one of its local offices disagreed over
the allocation of royalties and the ownership of a copyright
in certain printed materials. Through mediation, the parties
worked out an agreement clearly spelling out the allocation
of royalties and copyright ownership prospectively. As part
of the settlement, the parties also agreed that the disputed
compensation would be addressed through additional gratis
admissions at the national conference for members of the
local branch; a good-faith effort to hold the next national
conference in the city of the local office; and specific
additional opportunities for the local branch to participate
in the national conference.
Camp is a full-time mediator and arbitrator specializing
in the resolution of commercial, entertainment, and employment
disputes. She is on the roster of neutrals of numerous organizations,
including state and federal courts, government agencies, the
American Arbitration Association, the NASD, and the NYSE.
She is a vice-Association’s chair of the American Bar
Association’s Entertainment ADR Committee.