Mediate Early and Sometimes Often

Trade secret, breach of fiduciary duty, unfair trade practices, breach of restrictive covenants and retention agreements, and the many state and federal claims that come with departing employees or groups of employees often scream out for mediation. As our blog has demonstrated time and again, aggressive, and immediate action is necessary in these situations and typically once the gauntlet is thrown down, settlement is difficult. Nonetheless, this is exactly why early consideration of how to develop a business solution at the outset is so important.

From a general standpoint there are two sweet spots that appear in these types of cases when settlement has a shot. Those two spots are at polar opposites of the spectrum. The first is just after initial forensic investigation has occurred and perhaps even after the initial filings have been submitted subjecting the defendant and new employer to high risk going forward. The second occurs after contentious forensic, preliminary injunction and ordinary discovery has worn both parties down to a point that they are ready to seek a business solution. Obviously, every case has its own path but there is little doubt tapping into the first sweet spot for resolution can save the parties a substantial amount of capital and time and effort of their C-suite team.

Whether its early or late, mediation offers parties an alternative that puts them in charge of their destiny and out of the hands of a judge and or jury who lack the benefit of a full understanding of the business and the challenges which created the dispute. With that said, the following are five reasons (there are plenty more) to opt for mediation to resolve complicated and contentious claims by competitors.

1. Mediation allows you to control your destiny. In a typical mediation, the parties learn more about the actions of each other and once they analyze those actions, creative resolutions can be formulated that avoid the uncertainty associated with presenting a case to a judge or jury.
2. Mediation allows the parties to recognize the daunting nature of full-scale litigation and its costs from a monetary, time and loss of productivity standpoint.
3. Mediation allows the parties to communicate directly, or through the mediator, in a confidential setting. While some facts discovered during the mediation may come out organically through discovery, the parties’ positions on case resolution and communications during the mediation are protected as confidential under both federal and state law.
4. Mediation is a fair process. The chosen mediator is a neutral party and has no skin in the game.  The only purpose of the mediator is to find a mutually agreeable resolution.
5. Mediation allows the parties to preserve relationships that can be completely destroyed in the heat of  litigation.

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