Is Mediation Your Best Option?

Legal disputes are costly, time consuming, emotionally draining, and not good for business. A business dispute is a business illness. If mild, you can work through it, but it still drags you down and impacts profits. If severe, a business dispute can destroy an entire business. Unfortunately, just as illnesses are an inevitable part of being human, disputes are an inevitable part of doing business. Learning how to effectively manage the disputes that arise is critical for business success.
Negotiation, mediation, and litigation are each potent processes for breaking down an impasse so that disputants can move from conflict to resolution. As with any tool, there are right and wrong times and ways to use it.
Negotiate, Mediate, or Litigate?
Litigation is often the most costly, time-consuming, and ineffective method for getting to resolution. It takes control of the dispute out of the hands of the business owner and gives it to a third party, such as a judge, arbitrator, or jury. This is not to say that litigation is bad and should be avoided in all cases. Litigation is appropriate when it is simply impossible to work through issues consensually.
Negotiation, on the opposite spectrum, is a procedure whereby the parties control the process, time, expense, and outcome. For that reason, negotiation is often the first and preferred option for dispute resolution. However, it requires mutual consent, and when parties cannot get past an impasse, the negotiation fails.
Mediation is a potent process that bridges the gap between negotiation and litigation. In mediation, a third party facilitates negotiation between the parties and breaks impasse by reducing emotion, increasing rationality, building desire for resolution, helping come up with creative solutions, and providing a confidential channel for communicating real goals and deal points in a way that does not compromise leverage. A web search on mediation statistics indicates success rates that seem to hover around 85 percent, and reveals that mandatory mediation is only 10 percent less effective than that. It is astounding that even where parties do not want to mediate, the process brings them to their own voluntary resolution 75 percent of the time.
Simply put, mediation is “negotiation on steroids.” Mediation offers the benefit of negotiation in that the parties control the final outcome and nothing is imposed on them against their will, and yet it has the impasse-breaking power of litigation at a fraction of the cost. In mediation, the mediator does not render a decision. The parties come to resolution voluntarily. Mediation is low cost when compared to litigation, efficient, low risk, and the outcome is the control of the parties involved.
Is Mediation Right For My Dispute?
Despite these benefits, many business owners avoid meditation because of four beliefs:
1. A belief that mediation is ineffective and a waste of time and money.
If this is based on a prior negative experience with mediation it may be because the case was not appropriate for mediation and it was set up for failure from the outset. Below, I will set forth the four conditions that will help you determine if mediation is appropriate for your dispute. If the mediation failed because the mediator was not effective, then it is important to understand that, as in any area of life, there are those who are excellent at what they do, and those who are not as accomplished. It is very important to select a mediator with a solid track record and who is appropriate for your type of dispute. The success rates for mediation show that mediation is indeed quite effective most of the time.
2. A belief that mediation is a sign of weakness.
An offer to mediate does send a message that you are willing to compromise. However, that does not mean it is a sign of weakness. If couched in the proper way, an offer of mediation can be presented powerfully. If business owners were more cognizant of how their rush to litigation often sends a message of extreme stupidity, perhaps they would not be so afraid of showing willingness to compromise.
3. A belief that the other side won’t agree to mediate.
If mediation makes sense for your business, then disregard this concern. If you couch your offer to mediate in an appropriate way, you won’t lose anything by asking.
Many parties do not consider mediation because they perceive the other side as irrational, uncompromising, and incapable of resolution. A skilled mediator knows how to take down emotions and increase rational thinking, which sets the stage for resolution.
4. My lawyer recommends against it.
If your lawyer is unable to get you to resolution via negotiation, and your situation meets the four criteria below regarding when it is appropriate to mediate, then perhaps you should seek a second opinion from a lawyer who has experience mediating cases. It is important to know that big-name litigators are known for their ability to fight, not necessarily their ability to negotiate and compromise. If you need to litigate, hire a top litigator. If you need to resolve the dispute efficiently and cost effectively, find someone who has a track record of doing so.
Business owners should also be aware of the reality of perverse incentives. Most lawyers mean well but do have tremendous economic pressures of their own. Litigators who negotiate successful resolutions at the outset of disputes end up earning much less than they would if the case is litigated. When I serve as counsel, I will not serve as litigation counsel if I am unsuccessful at resolving the dispute. Why should my failure at resolving the dispute pre-litigation be rewarded with the pot of gold that litigation would bring to me?
If you believe mediation can work for your dispute, take a deeper look at the specifics in your particular case. Are the following four elements in place?
1. The dispute is worthy of resolution and the time and energy to resolve it.
A mediated solution is often more cost effective than litigation; however, it still costs money and requires time and energy and it’s not certain that you’ll get to a resolution.  I have seen many business owners caught up in emotion and spend too much time, energy, and money on disputes that are relatively petty and not worth the return on dispute resolution investment.
2. Direct negotiation failed and/or won’t work.
Direct negotiation is generally your first best option at resolving a dispute quickly and cost-effectively. However, it is important that you use negotiation best practices so that you maximize your leverage, cut through the emotion as much as possible and focus in on what you need to achieve to resolve the matter. For this, you should consult a business lawyer who is skilled at negotiation to help prepare you for the negotiation or take the lead for you.
3. Compromise and resolution are in the best interest of each side.
Certain cases are not suited for compromise and require a definitive decision by a judge, arbitrator, or jury as to who wins and who loses. For example, the winner in the Bush v. Gore case decided who would be President of the United States. There was no room for compromise. Similarly, a federal court just ruled that Pfizer’s patent for Viagra is valid until 2019. This was a significant loss for Teva Pharmaceuticals in their efforts to sell their generic version of Viagra next year and they would have been unlikely to concede or compromise on their desired 2012 release.
4. Mediation is a better first option.
As discussed above, sometimes litigation is your best option and mediation offers no real benefits. If that is the case, then don’t waste your time and money mediating. To size up the advantages and disadvantages of your dispute resolution options on a case-by-case basis, I often create a chart listing the pros and cons of litigation, arbitration, negotiation, and mediation. Again, you should consult a business lawyer skilled at dispute resolution in helping you analyze your options.
Should I Use Standard Mediation Clauses in All My Agreements?
If you are forced to mediate in a case that is not mediation ready you’ll be wasting your time and money and perhaps give up valuable leverage. However, certain types of disputes are very well suited for mediation, such as employment-related claims. It is important to consult with a good business lawyer to evaluate your particular situation and determine to what extent mandatory mediation clauses may be appropriate in your business.
Republished by permission,, in agreement with NY Enterprise Report. Copyright© is owned by the author of this is your home for free market news and ideas.
Arnie Herz is a highly regarded mediator, business lawyer and public speaker with offices on Wall Street and in Port Washington, N.Y. He is the author of the popular blog Legal Sanity and can be reached at

Cheers! Surly Brewing Breaks New Ground by Repealing an Old Law

Two and a half years ago, Minnesota craft favorite Surly Brewing announced plans to open a new $20 million “destination brewery” in Minneapolis. There was just one problem. It was illegal.
A Prohibition-era law still on the books in Minnesota forbid breweries from serving their beer on premises. The Free Enterprise Tour stopped at Surly Brewing for a tour, a sample of Furious IPA, and background on the fight to get the outdated law repealed. The original law, Surly Brewing President Omar Ansari explained, was designed to maintain a three-tier system keeping alcohol manufacturers, distributors, and retailers apart.
It’s fitting that Surly was given its name to describe “the anger fueled by the inability to find good beer,” and perhaps even more fitting that Surly led the charge to change the law and put good beer in the hands of beer lovers.  The so-called “Surly Bill” to get the antiquated law repealed was championed by beer lovers throughout Minnesota. “Surly Nation”—which includes other craft brewers, an active social media community, and beer lovers alike—demonstrated what the brewery dubbed the “Power of the Pint” through a massive grassroots campaign to garner support for the bill.
Despite some early opposition, the Surly Bill sailed through the Minnesota Legislature and was signed by Governor Mark Dayton in 2011. Curtis Gilbert of Minnesota Public Radiosaid, “[The bill] offered [craft brewers] a better shot at profitability, allowing brewing establishments to sell their beer by the pint right on site.”
“It was a jobs bill,” said State Rep. Jenifer Loon, a lead author of the Surly Bill, who joined us for a tour of the original Surly facility. Calling it a jobs bill proved prophetic. Capital investment has followed the market, launching new businesses and growing others. In the year following the bill’s 2011 passage, the number of breweries in Minnesota shot up by 81%, the second fastest increase of any state, according to the American Brewers Association.
There’s good reason to believe the numbers will continue to grow. Nationally, craft brewers sold an estimated 13.2 million barrels of beer in 2012—up 2 million from 2011. Ansari told Hometown Source that he sees opportunity for Surly: “When you walk into a bar, there are so many tap handles. When you walk into a liquor store, there’s only so much cooler space. (But) if you’re brewing good beer, you’re always growing.”
Ansari wanted to help his own brewery, sure, but he believes that the Surly Bill has much larger implications: “This bill was about bringing people to Minnesota and helping Minnesota’s economy as much as it was about beer.”
Here’s a few photos from our tour:
Trying samples with Surly’s President, Omar Ansari. 
After just one beer, Joe wandered off and somehow returned wearing this.
…Moving on. Omar showed Nate the inner workings of the operation. The current brewery produces over 15,000 barrels a year, and the new facility will get them closer to 100,000 barrels. The Surly bill allows any brewery producing under 250,000 barrels to sell its beer on site.
State Rep. Jennifer Loon chats with Omar.
Omar says he originally chose them as a way stand out from all the other craft brewers, who were at that time mainly selling bottles.
…The design for their new brewery (seen below in a rendering released last month) ought to help.
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14 Low-Cost Ways to Test Your Website With a Small Audience

1. Go With Google AdWords

“Build a simple landing page with an email signup. Test various keywords via AdWords and see what converts (via email signup) and what doesn’t. It’s a pretty simple and effective way to test a new idea or product with a targeted audience.” – Josh Weiss | Founder and President, Bluegala

2. Linkback With a Guest Post

“Want to see how a product, service or idea is going to resonate with a market outside your current niche? Write a guest post for a popular blog in that space. See how the readers respond to your ideas. You’ll get traffic sent your way, but more importantly be able to gauge whether or not that market is a good fit for your business.” – Sean Ogle | Founder, Location 180, LLC

3. Recruit Your Feedback Army

Feedback Army is a great tool for receiving feedback on your website. It’s cheap and provides excellent results. “ – Ben Lang | Founder, Mapped In Israel

4. Test Out Mechanical Turk

“With just a little comfort in html, you can use Mechanical Turk to survey thousands of people for just 5 cents a pop!” – Derek Flanzraich | CEO and Founder, Greatist

5. Figure Out Facebook Ads

“With Facebook Ads, you can target exactly who you want to visit your new business website — down to the age range, location, and interests. This will help keep costs down, and is a great way to build a Facebook presence too.” – Nathalie Lussier | Creator, The Website Checkup Tool

6. Make It Happen With Meetup

“Meetup is filled with groups for an incredibly wide variety of interests. If there’s a group that fits your business, try contacting the organizer to see if you can talk to the group at their next event or if they might be willing to send a link to your site out to their members. You obviously don’t want to be spammy, so I’d recommend focusing on pitching how your site would help them.” – Jason Evanish | co-founder, Greenhorn Connect

7. Try Twitter Ads

“Twitter just released their new platform for ads. If you have an American Express card, you can get $100 in free advertising to try the platform. So far it’s been pretty awesome in driving traffic and followers to our Twitter account.” – Jason Smikle | Managing Director, TUV Mediaworks

8. Endorsed Mailing

“Make friends with an entrepreneur who offers a complementary service or product to your target market. Ask her to send out a message to her email subscribers on your behalf. In the email, offer her subscribers free information (such as a report or webinar) in exchange for signing up on your website. You’ll build your own list of prospects. Then, follow up, get feedback, and start making sales!” – Pete Kennedy | Co-Founder and Managing Partner, Main Street ROI

9. Pull Out the Private Email List

“I put together a private email list of 100 people in my personal network who I greatly respect and admire. I let them know that I’ll send out one email per month that includes a cool opportunity, a request for feedback, and a request for a Tweet. When I get a new business idea, I tell it first to my private email list to get their expert feedback. MailChimp is my preferred email client.” – Jun Loayza | President, Ecommerce Rules

10. Reach Out to Your Network

“To work out kinks present in an early iteration of any website, take advantage of your personal relationships. Enlisting the help of those around you is any easy way to avoid the time-drain and costs associated with running focus groups or surveys. Moreover, your friends and family are most likely to take the time to give you thoughtful feedback.” – Michael Tolkin | CEO, Merchant Exchange

11. Use Unbounce

“I’ve become extremely comfortable with Unbounce and recommend it to nearly everyone I talk to. Getting people to your new site is pretty simple; friends, family, social media audience, or Google/Facebook ads can all bring you eyeballs. Once they’ve arrived, Unbounce can give you some insight into variations of your site without making you write any code.” – Derek Shanahan | Marketing, Playerize

12. Look at LinkedIn

“Message your LinkedIn network and ask for feedback. It usually nets great response and valuable information. People who intimately know you, and your abilities, are the most likely to give you the kind of feedback you need. They’re also the ones most likely to call you on your crap, and you need that. Embarrassment is a lot less painful than failure.” – Brent Beshore | Owner/CEO,

13. Land With an eNewsletter Signup

“Let people know what you’re going to offer and encourage them to sign up for your eNewsletter to learn more about the launch. Share the landing page on social media, through blog comments, etc. and see how many signups you receive. This is a great indicator of the demand for your product or service and can also provide feedback on your idea.” – Heather Huhman | Founder & President, Come Recommended

14. Pay for Testing!

“There’s a sense that we have to bootstrap and that testing is far too expensive. But the reality is that you can actually find experts willing to go over your site for reasonable prices — and it’s well worth the expense if you can improve your site before a wide launch. Even if you’re on a very tight budget, there a less-experienced professionals or even students who can help you get an edge.”- Thursday Bram | Consultant, Hyper Modern Consulting

Republished by permission,, in agreement with Young Entrepreneur Council. Copyright© is owned by the author of this article. is your home for free market news and ideas.

The Young Entrepreneur Council (YEC) is an invite-only organization comprised of the world’s most promising young entrepreneurs. In partnership with Citi, the YEC recently launched #StartupLab, a free virtual mentorship program that helps millions of entrepreneurs start and grow businesses via live video chats, an expert content library and email lessons.

Love to Travel? 13 Reasons Entrepreneurs Do Too

The Young Entrepreneur Council asked 13 start-up leaders why entrepreneurship allows them to travel so much.
 “I travel all the time for work as I am a behavioral investigator. I speak and consult with companies about human lie detection. To be able to reach many audiences, I try to book as many events in different cities. I also love doing on the ground research in new countries to see if their cultural nonverbal behavior is different. I enjoy working with both foreign and national HR and sales teams.”
– Vanessa Van Edwards | Author and Techpreneur, Science of People
 “I created Location Rebel, a community designed to help people build businesses they can run from anywhere on Earth. The nature of the community forces me to continue my own goal of traveling, both for credibility and marketing purposes. It’s my goal to show people that you don’t have to sit in a cubicle all day to make a good living!”
– Sean Ogle | Founder, Location 180, LLC
 “I founded my business to deliver digital strategy and online business building training. You’d think that doing work online means staying behind the computer, but just like any business people need face to face interaction. I travel because I love to interact with my peers and clients, and because I want to. That’s the cool thing about running your own business.”
 “I have build Supreme Outsourcing around my personal values, and it allows me to travel the world all year. I love new adventures and hanging out with entrepreneurs, so I made sure that my business was build around that. I provide outsourcing services to entrepreneurs so they can focus on whats most important and delegate the rest to us.”
 “I founded Infographic World to help companies shift from creating content that no one actually wants to read, to creating something visual & engaging that people will want to read. I travel a lot to meet new prospect clients, face to face. It’s hard to really connect with people by phone or email. Nothing beats being able to sit down, talk to them in person, and show your passion for your business.”
 “I started TalentEgg, which is a job site and career resource that helps students transition from school to work. Employers leverage our large audience of career-minded students to promote their brand and attract high-quality applicants. One of the ways we’ve built a brand among employers is finding opportunities to give presentations on youth jobs, and because Canada is so large, I travel a lot.”
– Lauren Friese | Founder, TalentEgg
 “Our new website FMainstream! has me traveling like crazy! My team searches the internet to find amazing new talent you’ve never heard of so that we can feature them on our site and offer tools to help them build their fanbase. I travel so much because there are amazing artists everywhere! You’d be surprised how much talent you can find in small cities like Madison, WI! It keeps me super busy. “
– Jason Smikle | Managing Director, TUV Mediaworks
 “As the lead for sales and marketing at RewardMe, I sponsor and attend about ten conferences per year across the nation. We bring a booth, handout materials and bags with our company logo to pass out to attendees. I also make sure to secure a speaker panel at each conference to solidify our industry expertise.”
– Jun Loayza | President, Ecommerce Rules
 “My startup focuses on events and communities. I travel to learn how organizers run events and the different types of communities in each city. Some are more focused on Tweetups, while some are siply meeting over coffee. Understanding who you do business with and meeting your clients face-to-face has helped us identify the problems we aim to solve.”
– Aron Schoenfeld | Founder & CEO, Do It In Person LLC
 “As Co-Founder and CEO, I travel once or twice a month. My trips are usually oriented around industry trade shows (Game Developers Conference, WWDC, E3, CES) or new partnership opportunities. My parents joke that if they would have known how much I’d be traveling today, they would have never agreed to always pick me up at the airport!”
– Justin Beck | Co-Founder and CEO, PerBlue
 “I don’t travel as much as I used to, but the first few years, I was traveling 75 percent of the year, doing most of our business development and sales. Molding Box’s service menu caters to businesses of all types, so most of our clients are still out of state. I’m big believer in face time; it shows our dedication to our clients and their products.”
 “Ever since I was little, I loved traveling and exploring new places. So, I built my photography business around the idea of capturing the beauty of the world. I can’t imagine anything better.”
– Angela Pan | Owner/Photographer, Angela B Pan Photography
 “In PR, I tend to have spurts where I travel a lot and very often. This year is one of those times — one of my clients plays guitar for a popular musician and is currently playing on her world tour. I am traveling around on some of the tour to help get him press for his solo career in different cities!”
– Steven Le Vine | CEO/President, grapevine pr
Republished by permission,, in agreement with Young Entrepreneur Council. Copyright© is owned by the author of this is your home for free market news and ideas.
The Young Entrepreneur Council (YEC) is an invite-only organization comprised of the world’s most promising young entrepreneurs. In partnership with Citi, the YEC recently launched #StartupLab, a free virtual mentorship program that helps millions of entrepreneurs start and grow businesses via live video chats, an expert content library and email lessons.

HOW TO: 7 Easy Ways To Improve The Way Your Company Works

At my last 9-to-5 job, every time I thought differently from my supervisors and managers about a problem we faced, I wrote down what bothered me and how I would do it differently given the opportunity. Before long, I had a huge spiral notebook filled with ideas. I realized that all these “negatives” were actually opportunities for better leadership. And I brought many of those ideas to the company I now co-own.
You can do the same. Whether you are working in an executive position, just striking out on the entrepreneurship path, or you have already started a business, consider the following seven ideas for taking your business (and company culture) to the next level:
1) Location. Location. Location! (Did I mention location?) You are paying rent already, or your bosses are, so make it money well-spent and get on a prime street with high traffic. Bright signs near a freeway let everyone know you are there. If you only need a small office suite, make sure you can have your name on a sign outside the building so you are getting the exposure.
2) Hire slowly; fire quickly. This is a big one for entrepreneurs and business owners. Let me repeat it: Hire slowly. Fire quickly. You might be in a rush to fill a vacant spot or add a new position, but it takes more time (and money, and stress) to train the wrong person and fix their mess than it does to hire the right person in the first place. A bad hire brings down the entire company. Their effect is felt by all employees. The phrase I use time and time again is: “You never miss someone after you have let them go. You only wish you had let them go sooner.”
3) Inspire, develop and lead by example. Your employees are vital to your success — and payroll is also the highest cost in a company. At Star Staffing, it is our employees that make us the reputable firm we are today. Inspire your employees to be the best, motivate them, and help them grow. Make sure to provide continuing education too. Whether you send them offsite to conferences and training seminars, or offer an internal learning website or trainer, it’s important for your team members to strengthen skills and gain industry knowledge. It is up to you to make sure that they are given the right tools and resources to do their job efficiently.
4) Have fun, but keep it real. If it moves, measure it. Track activities that lead to results. I’m a true believer that activities done correctly and continuously lead to results. For instance, in sales, it takes an average of eight times to break into a new client. You need to see that company or person eight times before you can even begin to think you have a chance. If you continuously see that client week by week, you should gain real traction, and that will lead to a potential new client. Another great reason to track everything is that you can see how your company operates overall: what’s working, what’s not working, and what’s needed when hiring (see #2).
5) Operate with integrity. You will be faced with challenges to your integrity and to your company’s integrity; do not let money or greed get in the way. Your reputation counts on it. At Star, we always operate with ethics and integrity.  Even when it costs us, we tell our clients the truth — and that’s why we have high loyalty and retention rates.
6) Strive for excellence in everything you do. From answering phones to handling collections, every task can be improved to give your client that “WOW” feeling. How do your processes look? Are your clients hanging up the phone feeling like they just dealt with the most amazing company or the opposite? We try to make every client and employee feel appreciated, valued, and taken care of. It’s important to look at every operation of your company’s front line. Are you striving to be the best in every aspect, even the smallest of tasks?
7) Be different than your competitors. What sets you apart from your competitors? The answer is YOU, and your people. Embrace this, and take it all the way to the bank. The main reason I chose to leave a comfortable paycheck was to do things differently, and now that I am co-owner of Star Staffing, we continue to live that philosophy. We operate 24/7, and I visit clients on a regular basis as the main sales representative. That’s right — who better to sell than the owner of a company? Half my new clients had never met their prior staffing firms’ business owner — yet they deal with me on a daily basis, cell phone number and all. I heard a great quote recently from “Good to Great” by Jim Collins: “Put your best people on the biggest opportunities, not the biggest problems.”  Too many owners and executives sit in an office all day submerged in paperwork. I spend my prime hours (9 a.m. – 3 p.m.) in front of clients and employees. After all, they’re people that make my company the industry leader it is today.
Republished by permission,, in agreement with Young Entrepreneur Council. Copyright© is owned by the author of this is your home for free market news and ideas.
Nicole Smartt is the Vice President and co-owner of Star Staffing. She was recently awarded the Forty Under 40 award, recognizing business leaders under the age of 40. In addition, Nicole co-founded the Petaluma Young Professionals Network, an organization dedicated to helping young professionals strive in the business world. Nicole can be found on twitter; @StaffingqueenN.