Deal Mediation

Deal mediation is a 3-party negotiation in which the two interested parties to a prospective deal jointly ask a third and neutral person (the Deal Mediator) to help them define the best possible outcome by managing the negotiation process and enabling the parties to focus on the deal rather than on the process for achieving it.

Notwithstanding the Deal Mediator’s role, all parties are equally responsible for entering into the mediation process with the sincere intent of engineering a mutually rewarding and sustainable outcome.

While the principles of Deal Mediation apply equally whether you are seeking to engineer a new deal or to extract yourself from an old deal, there are slight differences dictated by the desired end result.

Here we’ll reserve the term “Deal Mediation” for the making of new deals, and apply the label “Alternative Dispute Resolution” (ADR) to  terminating old deals. Click for details on our ADR process.

Why use a Deal Mediator?

Because most negotiations are positional when two or more parties come together to make a deal they start from (and sometimes remain stuck in) their respective positions, rather than focusing on the interests they wish to share – the fruits of the joint venture, partnership or shareholding that are at stake.

Deals based on positions rather than on interests seldom endure the challenges that are likely to emerge in any shared venture. Deals based on interests usually end up like a quilt from the Victorian era – all kinds of different pieces sewn together in a manner that does not quite fit.

Winston Churchill once famously said of Russia, “This place is a riddle, wrapped in a mystery, inside an enigma.” Most business (and many personal) deals are interests, wrapped up in rights, wrapped up in positions – and are sorely and equally tested by either the absence of or presence of significant sums of money.  Deals based on interests are usually and strangely detached from the reality that they were originally intended to address.

A skilled Deal Mediator will direct and continually return the focus of the parties to their common interests as the foundation of a deal, rather on their disparate positions. They will guide their clients to:

• Define their own and their other parties’ basic interests
• Avoid posturing and positioning during discussions
• Seek matches between their respective interests; and
• Seek a sustainable outcome in which all parties deliver mutual value that is proportionate to their contribution

A “Chinese” Ideal

The western contract model tends to rely primarily on the enforceability of the contractual rights and positions of the parties. The eastern  contract model seeks to achieve and then to preserve an overriding mutuality of purpose.  Our mediation process guides our clients to pursue the latter model.

The ProfiTune Mediation Process

There are three basic steps in our mediation process:

1. The parties read through and then answer a series of questions that clarify for them and the mediator what they have, what they want, what they are prepared to offer or contribute, and what they expect to gain from collaboration with others.  If documentation already exists on either side, that documentation will be submitted with their responses to the Mediator for consideration.  Discussions may take place between the mediator and the parties for clarity, after which the Mediator will indicate their belief in the potential to mediate a successful outcome for all parties – or not.  A fee applies to this stage, shared by both parties, paid in advance and proportional to the complexity and volume of material to be understood.  If the Mediator declines to proceed, no further fees are payable.  If the Mediator proceeds, then . . .
2. The parties participate in a series of meetings facilitated both jointly and singly by the Mediator (and in some instances, without the Mediator) until they have a mutually acceptable set of conditions within which to collaborate.  The Mediator will check off the relevant details to ensure that all areas critical to a stable and sustainable deal are covered.
3. The Mediator will then invite the parties to submit their businessplan for their mediated venture for appraisal and feedback as to practicality and sustainability. The Mediator remains available for any fine-tuning the parties may require.

Using Our Mediation Services

To explore our potential to assist you through mediation, please call or email us .