In life and business disputes are inevitable. Let’s focus on business disputes.

Whether it’s a disagreement with a supplier, a conflict with an employee, or a legal battle with a competitor, these disputes can and do drain resources, damage relationships, and tarnish a company’s reputation. Even if you “win” the dispute or argument, those “victories” are frequently hollow, scorched-earth experiences.

There is a powerful tool, however, that can help navigate these challenges effectively to avoid costly and inherently empty outcomes. That tool is mediation. In this article, I will explore five compelling reasons why the use of mediation by chief legal officers (CLOs) and general counsel (GCs) should almost always be a go-to alternative.

Cost-Effective resolution

One of the most significant advantages of mediation for any business is cost-effectiveness. Traditional litigation can be an expensive and time-consuming process, with hard costs like attorney’s fees, digital record discovery, depositions of personnel at all levels (including C-suite leaders), court costs, and the potential for lengthy trials. And those are just the “hard” costs that do not include the stress, distraction, lost opportunities, and risk inherent in every step of the entire litigation process.

Mediation, on the other hand, simply offers a more affordable alternative. By engaging a neutral third party to facilitate discussions and actively pursue resolution of disputes, the opportunity to avoid substantial costs, reduce risks, and encapsulate uncertainty, all while striving to resolve disputes more quickly, is compelling.

Preservation of relationships

As every CLO or GC should recognize, relationships are the lifeblood of business success. Whether it’s with clients, suppliers, or employees, maintaining positive relationships is crucial for long-term growth and stability. Once swords are drawn and battles begin in earnest, the risks and costs multiply and relationships end. A rule of thumb that many C-suite executives live by is simple: we do not do business with parties or individuals that sue us.

Mediation, especially if done early and earnestly, can help preserve relationships by fostering open communication and encouraging problem-solving without bloodshed. Unlike litigation, mediation focuses on finding resolution and solutions. Starting the mediation process does not mean surrender; it means that CLOs and GCSs can actively help their clients maintain valuable relationships and avoid the potential, sometimes unintended and unforeseen, fallout from hostile litigation.

Confidentiality, certainty and control

Once the litigation battle formally begins, a dispute typically becomes painfully public. Ergo, another significant benefit of mediation is the confidentiality and control it offers. Mediations are, by definition, private and confidential. This allows GCs and CLOs to address sensitive issues without fear of damaging their clients’ reputations or exposing proprietary or sensitive company details or information.

Many companies NOT involved in a public litigation fight will deploy team members or hire third parties to monitor the public proceedings of their competitors to scour the public filings and attend open proceedings of their competitors. They are drooling for any tidbit that can help them compete. Competitors can glean enormous amounts of intelligence from public disputes — intelligence that is protected in the confidential structure of the mediation process.

But that is not all. Mediation gives GCs and CLOs a higher degree of control over the outcome of disputes. Rather than leaving the outcome of a disputed matter in the hands of an unfamiliar judge or unsophisticated (and unpredictable) jury, parties in mediation have the power to creatively craft their own solutions and reach agreements that best suit their respective needs and interests.

Flexibility and creativity

Where litigation often feels like hand-to-hand combat with rocks and sticks (blunt, bruising, expensive, personal, bloody, and brutal), mediation provides a more nuanced opportunity for combatants to explore solutions with more flexibility, and the process encourages creative problem-solving. Unlike the rigid structure of the courtroom process and system, mediation permits and encourages more innovative and tailored solutions. Ideas and solutions that would not see daylight in a courtroom can be actively, openly, and confidentially discussed in mediation sessions.

Mediators can, frequently do, and always should help parties explore as many options as possible and develop creative resolutions that almost certainly will not be available via litigation. This flexibility is incredibly important to GCs, CLOs and their clients. Why? The answer should, by now, seem obvious.

Improved workplace culture

The business world of today is not your grandfather’s business world. There is a much greater emphasis on fairness, transparency, and cooperation. Mediation has grown and evolved to accommodate the new dynamics of the business world and the workplace. Some, including me, might even argue that mediations are not the result of these cultural changes, but in some respects are the driving force behind these changes.

Mediation provides a safe and structured environment for resolving conflicts, and thereby helps promote open communication, trust, and collaboration among employees and between disputing parties. When employees and business parties see that their concerns are taken seriously and that there is a fair process for addressing disputes, it can lead to increased job satisfaction, higher morale, and a more productive work environment and better business relationships. By implementing and using a mediation-based process, GCs and CLOs can help their clients and partners create a culture that values conflict resolution … not conflict avoidance.

Conclusion

In today’s competitive and hyper-fast business landscape, the ability to effectively resolve disputes is more important than ever. Conflicts are unavoidable; litigation in not. Litigation is a choice … and probably (no, almost certainly) not a good one. It will almost always result in, at best, empty and Pyrrhic outcomes.

Litigation is not a plan for success. It is a plan that is rapidly become as obsolete as last year’s technology. Mediation offers a powerful tool that allows GCs and CLOs to pursue cost-effective resolutions that may very well preserve relationships in a process with built-in confidentiality, control, and flexibility. It allows for opportunities to solve problems in a way that will not land GCs and CLOs in the scorched-earth wasteland of litigation.

Mark R. Walker is a mediator at Miles Mediation & Arbitration (Formerly USA&M) in St. Louis.