Mediation has become a popular approach to resolving legal arguments and other forms of disagreement. For both sides in a legal dispute, mediation can be a way to find a middle ground that can help everyone avoid expensive and time-consuming litigation. Mediation can also be a useful approach to solving serious disagreements arising within an organization.
The object of mediation is to provide a structured setting the parties to a dispute can find their own solutions to their differences. A formal mediation process involves a neutral mediator acting as a facilitator and mediator between the two sides, who are responsible for making a good faith effort to contribute to the success of the process. When two sides in a dispute are all but ready to sue each other, they will have their attorneys with them during the mediation, though the attorney’s role in mediation is only to advise the client, and not typically to directly engage in the negotiation itself.
Mediation can be a good way to diffuse the possibility of litigation. Nonprofits may find mediation useful in contexts like employment disputes, such as claims of discrimination or sexual harassment. Note that when real liability is at stake, the nonprofit’s insurer may want a seat at the table during the negotiation. Generally speaking, the higher the stakes, the more important it becomes for the organization to have an attorney present.
Bear in mind that mediation can also be a meaningful way to resolve major arguments among the leaders of an organization. Such arguments probably don’t involve a threat of litigation, but they could threaten other problems, like the resignation of one or more key contributors. A mediation of disputes like this needn’t be as formal as a “pre-litigation” mediation, but it might still involve the assistance of an expert mediator who can provide a framework for negotiating a resolution to a heated issue.
The Church Law Center of California counsels religious and secular nonprofits. We assist clients with resolving their governance challenges. Call us today at (949) 689-0437 or reach out to us through our contact page.