Disagreements are ever-present in the business world.
In today’s litigious society, businesses are spending more time in court. It is becoming more popular to face a judge than to face an ex-employer. How did people learn to put their fate in someone else’s hands? John and Patti Bertschler believe it was taught.
”That’s what we’ve been raised to do,” Patti Bertschler says. ”Basically, the mindset of people is, ‘I am in conflict, call an attorney.”’
John Bertschler, a licensed psychologist, says we learn from an early age how things are handled –bring in the teacher, take it to a parent, turn to the judge.
”We don’t settle our disputes for the most part,” he says. ”It’s a new mindset to suggest to people that they settle their own (disputes).”
Some would say that adults have not wandered far from that mentality; therefore, we have an overburdened judicial system. And unlike the watered-down 60 minutes of cross-examination, snappy retorts and alarming evidence on highly rated television legal dramas, litigation is an emotional and financial drain on both parties.
The Bertschlers founded Northcoast Conflict Solutions in 1997 to offer an alternative to litigation. They bring mediation, along with conflict management training and conflict resolution education, into the workplace with educational seminars.
And while other regions have been quick to adopt mediation for business-to-business battles, the Cleveland area has been a bit slower to adopt the process as an alternative to court.
Mediate or arbitrate … that is the question
Rather than cast one’s fate to strangers, mediation offers those most in touch with the issues and facts the opportunity to air their grievances.
A mediator is a neutral person who helps pull out the facts and lay them on the table. When warring factions are familiar with each other, the mediator facilitates face-to-face discussions to get one step closer to resolution.
Mediation requires consent from both parties. That’s where an arbitrator comes in. As with mediation, arbitration asks a panel of people to sort through data and pull out the relevant facts. The difference, however, is that the decision handed down by the arbitrators is legally binding.
Is arbitration less expensive than court? Yes. But the drawback is that it doesn’t keep the issue in the hands — or control — of the warring factions.
The few, the brave, the mediators
A psychology degree does not cut it. Nor does an attorney’s license. The role of mediator requires specific education in skills, techniques, processes and disclosure methods.
Jerome Weiss says rather than seeking out someone with expertise in the disputed subject matter, look for someone who conveys neutrality, creativeness, diplomacy and timing.
Weiss formed Mediation Inc. after practicing law in Cleveland for 15 years.
”Mediation is as much as an art form as a skill set,” he says.
As a professional counselor, Patti Bertschler makes conflict prevention her life’s work. By incorporating conflict management, assertiveness training, anger management and communication training into her seminar schedule, she believes costly behavioral issues can be resolved.
Conflict, she says, affects the bottom line by robbing productivity with arguments, depression and even violence. Proactively addressing communication weaknesses helps curb conflict before it ever develops.
Much like choosing a physician, working with a mediator requires a comfort level that comes only from personal judgment. But with almost 100 pages of attorneys in the Yellow Pages and less than one column of mediators, Clevelanders are more often going to court.
Weiss agrees that Ohio is behind the curve in accepting and promoting mediation, but successful mediation statistics have not gone unnoticed. California and Florida incorporated mediation as part of a statutory mandate that requires specific types of cases to go through mediation before entering the courtroom. That’s cut down on the backlog in the traditional court system.
Both sides of the bench
The public disclosure of sensitive issues can leave businesses with black and blue marks after a trial ends. With a decade of mediation experience behind him, Weiss sits between disputing parties as often as he stands in front of the bench.
”All too often, I found people walking away from the jury process saying, ‘If I’d have known it was going to be like that, I definitely would have done something much different here,”’ Weiss says.
It is not unusual for litigation to take from one to two years to work its way through the courts. Weiss says he recently closed a wrongful termination case in discrimination through mediation that took six months. Both he and the corporation’s attorney agree that the process saved the company $100,000 just in discovery expenses.
According to Weiss, more than 90 percent of cases filed in U.S courts are resolved through nontrial disposition — in other words, settlement. In the meantime, those cases require exhaustive time and extensive financial resources and drain all the same from the employee who burned his or her bridges.
Along with obvious cost savings, mediation offers a lasting, more amicable business relationship. Too often, ”everybody gets horribly bloodied through the litigation process,” says Weiss.
Mediation emphasizes the emotional aspect of feeling wronged. Unlike the court system that deals only with facts, mediation includes emotion by allowing the parties to air complaints not considered relevant in a lawsuit.
And, rather than invest in a process that will end in some type of negotiation anyway, Weiss sees more and more business leaders turning to alternative dispute resolution. But, he says, he doesn’t expect it to be enough to make a dent the courts’ heavy caseload.
Who could benefit most? Weiss says anyone in a situation in which both parties recognize the virtue of staying out of the judicial process. That includes contract disputes, product quality problems, company dissolutions, discrimination accusations and employee terminations.
In the court system, the person who appears to be the victor is often just as frustrated as the loser, with lost resources. Weiss says he gets a much greater sense of satisfaction when resolving a case through mediation.
”The parties feel much more rewarded walking away from that process than they do from the litigation process.”
