Some Thoughts on Mediation and Technology Disputes

We are often asked whether it is better to negotiate technology disputes directly between the parties or to use the services of a mediator experienced in technology issues. Like most general questions about dispute resolution issues, the answer will usually be “it depends!” But there are several reasons why the involvement of a mediator at an early stage of a technology dispute can be beneficial to all parties:

Confidentiality: Mediation proceedings are confidential, which means that any information discussed during the mediation cannot be used in court or disclosed to anyone outside the mediation process. This can encourage parties to be more open and honest in their discussions, as they know that what is said in the mediation room will not be used against them later.

Preservation of business relationships: A well-managed mediation process can help preserve business relationships by allowing the parties to come to a mutually agreeable resolution that meets both of their needs. This can be especially important in technology disputes, where the parties may have ongoing business relationships or may want to maintain a positive reputation within the industry. Even if all of the issues between the parties cannot be resolved, a non-confrontational mediation process can be beneficial in allowing all parties to be more aware of the point of view of the other parties.

Satisfying contractual requirements: Many technology agreements include binding obligations on parties to negotiate in good faith to try to reach agreement on disputes before commencing adversarial proceedings such as an arbitration or a court action. Participation in a mediation process virtually eliminates any basis for one party to allege that the other has not complied with their obligations to engage in good faith negotiations.

Flexibility: Mediation allows the parties to come up with creative solutions that may not be available through the legal system. This can be especially important in technology disputes, where the parties may be dealing with emerging technologies or complex technical issues that require unique solutions.

Narrowing of points in dispute: Often a technology dispute has several aspects, especially if the relationship between the parties has been ongoing for some time. The mediation process can allow the parties to identify the aspects of a dispute that can be resolved and narrow the remaining issues that may have to be left to a more adversarial process such as an arbitration or court action.

Innovative solutions: An experienced mediator can often identify potential solutions to a dispute that may not have occurred to the parties themselves. Fresh eyes on an issue that appears intractable can point to new directions to be taken by parties which will satisfy the many interests the parties have expressed to be in issue.

Cost-effective: When compared to the cost of more adversarial proceedings, mediation will almost always be more cost-effective, be completed more quickly, and involve less time commitment from the employees of the parties. This is especially important in technology disputes, where the parties may be facing complex technical and contractual issues which are very time-consuming to resolve in an adversarial setting.

Overall, using a mediator for technology disputes can provide a confidential, cost-effective, and flexible way for parties to resolve their differences and preserve their business relationships.

If you would like to explore the possibility of using the services of Hayes Resolutions to assist with your business’ dispute, please contact Mark Hayes at mark@hayeselaw.com or call 416-966-3529.