How Mediation Can Help Businesses Avoid Litigation

Consider a few scenarios:

  • You’ve finished assembling the machine your client ordered, have it ready for delivery, and they tell you they don’t want it and aren’t going to pay you for it. Or, on the other side of that coin, you’ve been waiting for the machine you ordered, but when the seller presents it to you don’t want to pay for it because it doesn’t do what you thought it would.
  • A competitor hires away one of your employees, even though that employee has a non-compete clause in their contract. Or you want to hire a competitor’s employee, and you don’t think their compete should apply because you want them to do completely different work.
  • Scrolling through Twitter one day, you see a tweet from some company you’ve never heard of selling a service a lot like yours and using a logo that looks a lot like your company’s. Or, you just started your business and a friend came up with the perfect design for your logo – but now you’re holding a cease and desist letter from somebody accusing you of trademark infringement.

Now what?

Disputes like these pop up for businesses every day. You could go to court to work them out. That is what courts are for, after all. But before diving into the land of litigation, you might want to consider trying to work things out with the help of a mediator.

How Business Litigation Works in Minnesota

The driving principle of mediation is self-determination. That means the parties decide what happens, not a judge or jury. That might mean they decide they can’t agree on a solution (and so will have to go to court), but most of the time it means they figure out what works best for them.

A mediator helps them look for that solution – not by telling them what they should do or opining about who is right or wrong, but by helping two people who are probably kind of mad at each other talk about what they want, why they want it, and why they think it’s fair and reasonable. Parties in dispute go into litigation holding positions, lines they’ve drawn in the metaphorical sand. Listening to each party’s version of events, a mediator can ask questions that might help parties look past that line in the sand to the underlying interests. When they do that, they often discover their interests overlap – maybe not completely, but enough to craft a solution to the immediate issue. In our scenarios above, for example:

  • The client might really need the machine they thought they ordered and be willing to pay for it – they just might not have realized they weren’t clear when they placed the order. And the manufacturer may be ready and able to make the modifications they need.
  • Most business owners can understand the fear that a key employee will leave and take their inside information to a competitor – because they’re worried about the same thing happening to them. So when an employee moves between competitors, they might be able to define her role at the new company in a way that minimizes the risk of unfair competition.
  • That trademark infringement may not be intended. Sometimes companies come up with similar branding ideas for their products completely independently and innocently. When that happens, they can usually reach agreement on a reasonable way for the newcomer (the “junior user” in trademark lingo) to change their branding so it isn’t confusing. After all, most companies don’t want customers mixing their products up with a competitor’s.

That may sound optimistic, but all of those examples are based on real-world experience. Quite often, given the opportunity to talk to each other in the structure of mediation, parties find practical solutions.

Mediation as a First Step

Often, but not always.

Sometimes parties go to mediation, hear each other out, and realize their interests just don’t overlap enough for them to find common ground. That’s fine. It isn’t a “failed” mediation just because an agreement wasn’t reached. Remember, self-determination is the cornerstone of mediation – and sometimes, what the parties determine for themselves is they can’t agree.

That possibility doesn’t mean parties in conflict shouldn’t seriously consider mediation as a first step. Even if they don’t reach agreement, going through mediation will force them to think about their own side of the dispute more clearly, and it will give them the opportunity to understand the other side better. And, as a purely practical matter, Minnesota General Rule of Practice 114 requires parties in almost every case to attempt mediation (or another form of alternative dispute resolution) at some point – so you might want to give it a try before starting the lawsuit. It might just spare you the time and expense of litigation.


Call Rubric Legal LLC today at (612) 465-0074 to discuss your options with a dedicated Minneapolis mediator.

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