The popular conception of a professional mediator is that of an individual parachuting into the midst of a hot dispute on short notice to facilitate a resolution that the parties view as a better net result than they are likely to obtain from further combat. The idea of a “standing mediator”, a neutral engaged by parties to a business transaction before a dispute has arisen to be available to assist in solving problems as they may from time to time arise, has far less currency. This article discusses how a standing mediator can add significant value, particularly in the context of an M&A transaction.
Anyone who has spent meaningful time in the world of mergers and acquisitions knows that professionals in this arena are hardly shrinking violets. Individuals who effectively act on behalf of companies and investors in M&A transactions are almost to a person proactive, assertive and outcome-driven. It is therefore quite surprising that when an M&A transaction leads to a dispute, many parties who would never consider allowing an outsider to make their initial deal readily turn the task of deciding the outcome of their dispute over to a stranger – sometimes an arbitrator, but more often a judge.