Inside the Mediation Session
Business mediation sessions will generally follow the six-stage process described in Chapter 6. Pay particular attention to Section E, which explains the value of consulting with expert advisers during the mediation.
As your mediation moves toward a conclusion, proposals and counterproposals are likely to fly back and forth fairly quickly. This is when consultation with the right experts can be vitally important. Unfortunately, this will be difficult or impossible unless you have had the foresight to line up your experts in advance. For example, suppose your case involves a business breakup, and you propose to buy all of your partner’s shares for cash. Your partner counters by saying that she wants to retain all of the company’s patents and copyrights, and will pay for them in a complicated formula of a down payment and a percentage of profits over five years, with various additions and subtractions depending on market conditions. In this situation, you will want someone on your side of the table to crunch the numbers and consider the tax consequences of various scenarios. If you want this information available at the mediation, you’ll need to have skilled help at the ready.
Typically, both parties will want to consult privately with their own experts and use that information to develop their own negotiating positions. But sometimes this approach will lead to an impasse, especially when one or both side’s experts stake out a position that is too extreme. For example, your accountant may say your partner’s shares are worth $50,000, but your partner’s accountant may insist they are worth $500,000. These expert opinions won’t advance your negotiations very far, even though both sides are paying dearly for them.
In certain circumstances, you can avoid or break this expensive stalemate by agreeing to abide by the opinion of just one expert. Because no one is bound to make a settlement based on the single expert’s opinion, this is less radical than it might at first seem. But how will you choose the expert? One approach is to ask the mediator to select someone. Mediators who handle a lot of business breakups, for example, probably can locate a good business valuation expert on short notice. Or, you could ask your accountant and the other party’s accountant to get together and select a third accountant.
F.