In a major complex direct selling legal dispute, whether it be involving the interpretation of one of the network marketing company's Policies and Procedures or a term of the MLM distributor agreement with the company, or the makeup, positioning, and/or volume of sales, numbers and performance of the consultants in a downline organization of a key distributor, when it comes time to select the right Mediator there are three basic factors to consider:
- Factor 1---Since it is an MLM legal dispute or direct sales case which we're talking about, make sure your mediator is an Attorney-Mediator with significant experience in direct sales or network marketing law. It is more than a little bit painful for an attorney to face the necessity of educating a Judge in an mlm trial or arbitrator who has not been schooled in the intracacies of our industry or the legal issues and principles that commonly apply to the complex commercial litigation arising between network marketing industry players, but that should not be necessary when it comes to a mediation where both sides have the opportunity to jointly select a mediator--your Lawyer-Mediator must be very familiar with, if not an expert in MLM law in order to be mediate successfully as a network marketing mediator in mediating your network marketing mediation case or direct sales litigation as a lawsuit mediator to a mutually agreeable resolution of the dispute.
- Factor 2---You do not want to choose as your mediator a lawyer who is known to be particularly flamboyant or fiery, or considered by his peers as over-bearing or highly opinionated. The mediator of a network marketing case is at her best when she is acting in a neutral, facilitative capacity for both sides, getting out of the way of the parties to the mediation crafting their own mutually satisfactory "deal." Remember, ego is best left at the door to the mediation conference room, and respect for all concerned should be given by all who participate, particularly the Attorney-Mediator entrusted with facilitating a settlement by and between the parties to the mediation.
- Factor 3---The mediator must be committed to "hanging in there" with the parties to a network marketing lawsuit even when there is an impasse, meaning an apparent deadlock in the mediation which looks to one or both sides like an unsuccessful end to the mlm mediation---one without an agreed upon settlement. Make sure the Lawyer-Mediator is willing to "go the extra mile" in keeping the process alive even in its darkest hour of despair felt by one or both sides. In order for mediation to work the mediator must be committed to work through enough "nos" and hold on until both sides say "yes." The mlm mediator cannot be a "quitter" and should be the last person in the room to give up--so the mediator should be intelligently optimisic about the chances of reaching settlement, and should push through adversity--she should be an example of the tenacity which is necessary for all participants in the alternative dispute resolution (adr) to fight through the mental and physical fatigue of a long day (as opposed to the weeks, months or years of network marketing litigation in court or mlm arbitration to obtain a decision by a third party only after six figures have likely been spent by both sides in getting there) in order to reach "home plate" and work out a resolution of the dispute. Suggestion--select as your mediator an attorney who will commit to being available to the parties and without hesitation reach out to them by arranging a conference call involving at least the counsel for the parties in the days and weeks that follow a day of mediation of an mlm case that has reached a less than successful conclusion. Often, it is that extra effort post-mediation that clinches a deal to settle mlm litigation after a day of mediation has sapped everyone's energy and will to continue mediating until a settlement has been reached.
"With crowded court dockets, mediation offers the opportunity for speedier resolution. As David suggests, mediation, by its nature, is far more likely than traditional litigation to be therapeutic for the parties and others affected by the underlying dispute. Just two reasons among many for seriously considering mediation."
"I have known David for nearly 50 years. We were classmates and close friends in law school. There are many terrific lawyers who would not make successful mediators."
"David has the skill set and personality to be a superb mediator."
--Judge Dave Cole (Ret.), Phoenix, AZ, Former Judge of the Maricopa County Arizona Superior Court and Former Solicitor General of the State of Arizona