WWW.LAWYER-MONTHLY.COM | AUG 2022 56 THOUGHT LEADER - MARCO FRANCESCO ABRUZZI-LILLIU Mediation Highlights with Marco If carried out correctly, mediation can prove an effective method of resolving disputes between businesses, governmental agencies or individuals without incurring hefty legal fees. Mediator Marco Francesco Abruzzi-Lilliu goes further in depth with the process in this article. What are the common obstacles that a mediator must overcome, and what are the payoffs of a successful mediation? its pre-COVID contracts due to employee and some component issues due to COVID shutdowns. After the first day of mediation we hammered out a settlement that included lowering the amount of the quarterly delivery by two thirds and a payment plan that worked within both of their budgets. There was a lot of ego, resentment and anger to get through in that case before a settlement could be arrived at: two very stubborn and extremely talented individuals, I must say. This case also highlights what we call the three tensions of negotiation and how mediation can help manage these tensions. Can you tell us more about these tensions? Certainly. One of these tensions – probably the most impactful one – is between ‘creating value’ and ‘distributing value’. Typically, unless parties disclose their interests, resources, what they might have to trade and what their concerns are, conflicts are rarely resolved in a beneficial way. However, the dilemma is that the naïve disclosure of too much information by one side (if it is not reciprocated) can lead to exploitation with respect to the distributive aspect of the negotiated settlement. As a consequence of this, parties choose not to disclose very much and engage instead in hard bargaining. Negotiations often fail for this reason, What is a recent case of yours that highlights the power of mediation as opposed to court litigation? I recently mediated an extremely contentious business dispute between two technology companies. Essentially, the owner of the purchasing company complained about quality and timing of the second shipment of a very specific product. I am leaving out that detail to preserve confidentiality. The dispute escalated, the vendor started a court action for breach of contract for lack of payment and the purchaser countersued. After meeting with both sides privately on two occasions it became clear that the case was really about the purchasing company being in financial difficulty and not wanting to be bound to receive a full order of the product every quarter for the next five years. The conflict was not about quality or timing at all. Interestingly, the vendor was conversely worried about meeting its quotas on all Typically, unless parties disclose their interests, resources, what they might have to trade and what their concerns are, conflicts are rarely resolved in a beneficial way.
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