The Vital Role Mediation Plays in Resolving Business Disputes – Winter Wheeler

In business, disputes can and often do arise. When it comes to legal disputes, mediation can oftentimes help both parties reach the end result more quickly. Many courts will highly encourage all parties to enter into a mediation exercise and that’s not surprising given that 99% of all civil cases eventually settle.

On this week’s episode of The Playbook, host Mark Collier, business consultant for the UGA Small Business Development Center, is joined by expert mediator Winter Wheeler. Wheeler is a former practicing attorney, litigator, and true subject matter expert on the mediation process. In this segment, Wheeler discusses the increasingly vital role mediation plays in resolving business disputes.

Transcription: 

Mark Collier:
Welcome into The Playbook on ASBN, Winter.

Winter Wheeler:
Thank you so much for having me. I’m happy to be here.

Mark Collier:
All right. Well oftentimes, unfortunately, business and disputes go hand in hand.

Winter Wheeler:
Absolutely.

Mark Collier:
So mediation plays a vital role in hopefully resolving some of those disputes. So I guess we’ll start with what exactly is mediation and what role does it play in helping to resolve those disputes?

Winter Wheeler:
Mediation is an amazing process through which we have several conversations. And we work to come up with all of the issues that are actually underlying the problems. And we work through them together. There are a lot, of course, we’ll have money issues. Things like that but we also often have emotional issues that are going on in a lot of those, too. So we work to make sure we’ve addressed what all of the issues are, get everybody’s thoughts on the table, and then I work back and forth to help everybody resolve them.

Mark Collier:
So it’s… you’re putting all the issues on the table, both parties, and then I guess there’s kind of a back and forth, a give and take, and you kind of serve as that buffer…

Winter Wheeler:
Yes, absolutely.

Mark Collier:
… between the parties involved.

Winter Wheeler:
Absolutely. I typically will separate the parties into different rooms.

Mark Collier:
Okay.

Winter Wheeler:
And I will go back and forth and I sometimes call myself the interpreter.

Mark Collier:
All right, all right, all right. I like that. I like that term.

Winter Wheeler:
Yes, because if you’ve been arguing with someone for a long time and they’re not hearing you it’s because you’re using the same phrasing typically over and over again. And I have an ability to switch that phrasing up and help people hear things in a way that they can actually hear them.

Mark Collier:
Okay. I’m reading a current book and they talk about the art of communication and it says there’s two goals in communication. You want to be… you have to strive to understand and you want to be understood. So I guess that is kind of where you serve as the expert in terms of getting people across… to navigate between those two worlds.

Winter Wheeler:
Absolutely.

Mark Collier:
To come to hopefully a reasonable conclusion. So I don’t know much about the legal process. I’m not an attorney, so I’ve heard words litigation, mediation, arbitration, and sometimes those terms used synonymously. Although I do know that in litigation, the only sure winner’s there is going to be the attorneys as they wrack up those fees.

Winter Wheeler:
Right. Absolutely.

Mark Collier:
But let’s talk about the differences and similarities…

Winter Wheeler:
Yeah.

Mark Collier:
… between mediation and arbitration.

Winter Wheeler:
So mediation is a very informal process. We take your case completely outside of the court system, and it is a voluntary process, for the most part. Any decisions that are made there are voluntary, but it’s great because we are free to do almost anything that we want to do. We’re not constrained a whole lot by limitations of the law. If people want to agree to something, they are free to agree to it. Whether or not a court might ever agree to something like that. If the parties will do it, then great. When we have arbitration, we are still outside of the court system, but it is far more formal. So as an arbitrator, I serve as a decision maker. As a mediator, I serve as a neutral party, simply helping to facilitate communication.

Mark Collier:
So the important distinction there… so in arbitration then is binding… legally binding then, correct?

Winter Wheeler:
Yes. Arbitration is legally binding. It is very difficult to get out of an arbitrator’s decision. Yes.

Mark Collier:
All right. How would they make a decision… what to enter mediation or arbitration? How is that typically decided upon?

Winter Wheeler:
Right. So arbitration is far more like a court proceeding than mediation is.

Mark Collier:
Is it ordered by the court?

Winter Wheeler:
No, it’s not ordered by the court. These things are both alternative dispute resolutions, which are voluntarily entered into. Typically, you end up in arbitration as part of a contract. So make sure you read your contracts very carefully.

Mark Collier:
Terms and conditions. Terms and conditions.

Winter Wheeler:
Terms and conditions. Yes, arbitration is typically in there. So you want to be sure you know about that in advance. A lot of people are surprised by that, but arbitration, it is. It’s kind of like a court proceeding. You will present evidence. You will have witnesses, and the arbitrator makes a decision for you.

Mark Collier:
Okay. So you have a unique trademark mediation process called The Four Cornerstones of Mediation.

Winter Wheeler:
I do.

Mark Collier:
So kindly walk our viewers on a high-level journey of what those four cornerstones look like.

Winter Wheeler:
Yeah. So the first cornerstone is emotional intelligence. And emotional intelligence has to do with how you relate to yourself. How do you feel about yourself? How do you understand yourself and your own emotions? And whether or not you’re able to let your feelings and emotions guide how you interact with other people. Very, very important. For a lot of people, emotional intelligence is as simple as breathing. For a lot of people, it takes a lot of work. Either way, as long as you get there, it doesn’t matter.

Mark Collier:
All right. Get it.

Winter Wheeler:
So then the next cornerstone is cultural knowledge. Cultural knowledge is extremely important when you’re talking about living in a city like Atlanta.

Mark Collier:
Yes. Culturally diverse.

Winter Wheeler:
We have… Absolutely. We have people from all over the world who are here and we all need to be able to interact and get along. And so one way to make sure you’re having the clearest communication with someone is to understand their culture and their background.

Mark Collier:
Yes. Fantastic.

Winter Wheeler:
Yes, absolutely. And then the next thing is cultural immersion. So once you’ve got your cultural knowledge, which is typically done through books and things like that, you want to engage with the culture. And we’re lucky here in Atlanta, we’ve got lots of pockets of cultural spots that we can go and hangout in and sometimes learn language, because that helps us understand why people do what they do and exactly how they do it. It gives us a very different perspective.

Mark Collier:
So that’s kind of the age old adage. Walk a mile in someone else’s shoes then you’ll kind of understand where they’re coming from and…

Winter Wheeler:
Absolutely.

Mark Collier:
… what they’re thinking about.

Winter Wheeler:
The last one is genuine empathy. And it is… and I say genuine because there’s a big difference between genuine and faked empathy. And most people can tell the difference…

Mark Collier:
Oh yeah. Absolutely. Absolutely.

Winter Wheeler:
… when you’re dealing with them. And so we want to make sure that we truly want to understand the people around us.

Mark Collier:
Right.

Winter Wheeler:
And that way, if you can combine all four and you can do it seamlessly, which I can teach people how to do, then you end up with the most effective means of communication that I have ever come across.

Mark Collier:
That sounds like a phenomenal mediation model. I like it a lot, those four cornerstones, and they all touch on areas that are important and actually will contribute to a hopefully amicable resolution at the end.

Winter Wheeler:
Absolutely.

Mark Collier:
So that mediation style is very different than others… from others that I’ve seen and heard about. So why do you believe it has been so successful?

Winter Wheeler:
I think that it works because I take into account how people genuinely feel.

Mark Collier:
Okay.

Winter Wheeler:
If you can get to the root of the problems, which people are typically not going to tell you exactly what’s wrong, but if you can get to it, you can uncover how to best approach it.

Mark Collier:
That makes perfect sense.

Winter Wheeler:
How to best address. Because as you mentioned before, people want to be seen. They want to be heard. They want to be understood.

Mark Collier:
Yep.

Winter Wheeler:
And this is the best way that I have found to do that. A lot of mediators try to avoid a lot of the emotional stuff, but I have found that doing that makes the process more difficult and it takes longer to get it done, and people are less happy with the outcomes.

Mark Collier:
Well you can’t ignore it. We’re human beings. We have emotions.

Winter Wheeler:
Absolutely.

Mark Collier:
Some people are better controlling their emotions than others, of course, as you probably found in the… over the course of your mediation exercises.

Winter Wheeler:
Oh, yes.

Mark Collier:
But you’re absolutely right. You can’t ignore emotions because they’re part of our human makeups. So I think that is a very astute observation on your part.

Winter Wheeler:
Thank you.

Mark Collier:
All right. So let’s talk about kind of the front work. And I do these TV shows, I have to prepare. So I’m sure there’s some preparation that goes into a successful mediation agreement and engagement. So kind of share with me some of the prep work and the front work that you do to prepare for these mediation engagements.

Winter Wheeler:
So I reach out to the attorneys and the parties, if they’re not represented. And I ask them if they have anything that they think they need to share with me. So typically they’ll provide me with statements and pleadings and things like that… factual background. And then if I get a sense from what I’m reading, that there might be highly emotionally charged aspect, I will then follow up with the attorney and ask if anything else is going on in that person’s life. But it’s important, especially in this COVID area that we’re living in or era. And because a lot of people are dealing with job loss…

Mark Collier:
Correct.

Winter Wheeler:
… death, and all types of different grieving, right? In different capacities.

Mark Collier:
Yeah. Isolation is another one…

Winter Wheeler:
Yes, absolutely.

Mark Collier:
… that’s causing a lot of angst.

Winter Wheeler:
Exactly. And so you show up to mediation as your whole self, right?

Mark Collier:
Sure.

Winter Wheeler:
So even though we’re here to talk about A, you brought B through Z…

Mark Collier:
That’s right.

Winter Wheeler:
… into the room with you.

Mark Collier:
That’s right. Unfortunately you can’t leave your emotional baggage at home.

Winter Wheeler:
Right.

Mark Collier:
It comes with you wherever you go.

Winter Wheeler:
Exactly. It comes with us. So I like to know the factual background and if there’s anything unusual about their emotional state or anything in their financial history, I like to know things like that. So I can adjust how I will approach them.

Mark Collier:
All important information. So what factors go into and what outcomes come out of a successful mediation engagement from your perspective?

Winter Wheeler:
Well, when you work with me, because of how I use the four cornerstones, I prefer to have a lot of contact with the parties. I want to hear a lot from them.

Mark Collier:
Yes.

Winter Wheeler:
So I am always looking forward to having a lawyer who will allow me the space to really communicate with their client.

Mark Collier:
Absolutely.

Winter Wheeler:
To allow their client to open up. And mediation is confidential, so there’s no reason not to do that.

Mark Collier:
Right.

Winter Wheeler:
So anything you tell me, I can’t share. I’m in the business of keeping secrets. So that’s always what I’m looking for upfront for people to be open and honest, willing to share, and ready to hear that feedback.

Mark Collier:
All right. I mean, communication is key. The more communication, the better. That’s also in my business, as well, as I consult businesses, the more they share with me, the better job I can do in terms of helping them reach their goals. So what does it mean to pick the right mediator? Because if you pick the wrong mediator, I’m sure things aren’t going to go so smooth. So kind of give me some tips on picking the right mediator.

Winter Wheeler:
So mediators have traditionally been older, white men, traditionally.

Mark Collier:
You’re right. Not very diverse then.

Winter Wheeler:
Not very diverse, not at all. And I am on a mission to change what that looks like.

Mark Collier:
All right.

Winter Wheeler:
So I like to encourage people to figure out, is it really what you need for your mediation? So what I’d like to have people consider is what does your plaintiff need? What does your defendant need? What does your client actually need out of this mediation? is it going to be more comfortable for them if they are with a woman? Is it going to be more comfortable for them if they are with someone of Asian descent? They don’t have to match, but you have to consider who they might be more comfortable with. And one way that I like to encourage people to go looking for that type of information is online. Check out that mediators presence, because you never know how people might really be.

Mark Collier:
No, that’s true. Absolutely.

Winter Wheeler:
You can’t judge just based on the package.

Mark Collier:
Absolutely.

Winter Wheeler:
So that’s how I encourage people to do it really consider what your client’s needs are and what kind of cathartic experience they might need to get out of the mediation and find that type of person. So when people come to me, it’s typically because they have a more difficult client, or they have a client who has clear emotional needs that they know that I can support.

Mark Collier:
Okay. Well, I like that. So you mentioned working with attorneys, reaching out to them ahead of time as part of your preparation. So that begs the question, do you work with people who are not represented by an attorney?

Winter Wheeler:
I do.

Mark Collier:
Okay.

Winter Wheeler:
I absolutely do. I’m one of few mediators who will actually do that.

Mark Collier:
Well that should be a good niche for you then, if you’re one of the few that performs those types of services.

Winter Wheeler:
Yes, absolutely. And the reason that I do it is because I so deeply believe in mediation.

Mark Collier:
Okay.

Winter Wheeler:
I think mediation is absolutely everywhere that we are all the time.

Mark Collier:
It is.

Winter Wheeler:
We’re constantly negotiating with people, whether we realize it or not. And so for people who are just having disagreements with those around them, they’re talking past each other, and sometimes they just need that neutral third party to come in and help them out. And I’m happy to do it. I do it all the time and there doesn’t have to be a lawsuit or anything of the sort. I help people who are just having basic disagreements.

Mark Collier:
Okay. All right. Mediation, to me, after hearing what you’re telling me… mediation is communication.

Winter Wheeler:
It is.

Mark Collier:
It’s intentional communication with a targeted result in mind.

Winter Wheeler:
Absolutely.

Mark Collier:
Okay. So other than pursuing settlements, are there other reasons that one would want to enter into a mediation and engagement?

Winter Wheeler:
Yes. And kind of along the lines of what we were talking about, sometimes you want to mediate just to improve a relationship.

Mark Collier:
Okay.

Winter Wheeler:
Sometimes we see that in the context of families through in the probate process. People arguing over who’s going to get what and when and how. You want to work through that, potentially through a mediator, because you would like to maintain those relationships.

Mark Collier:
Very good.

Winter Wheeler:
You would like to keep those relationships intact. And so you need someone to help you have appropriate conversations that are not necessarily out of anger. We also use mediation as a tool for fact-finding.

Mark Collier:
Oh, yes. Absolutely.

Winter Wheeler:
Yes. And so we can really truncate the litigation period, save you a ton of time, a ton of money, get you to that end result you would have gotten to anyway much more quickly. And that typically happens either pre-suit or right after a lawsuit has been filed. And we’ll spend a lot of time just talking about what the facts are and how do people feel about what happened and what is it that they want to accomplish?

Mark Collier:
Winter Wheeler, expert mediator. This has been an enlightening discussion. I’ve learned a whole lot about the role that mediation can play in businesses, disputes and other areas of the law. Hope that I can have you back in at a future date and we can discuss more on this very important topic.

Winter Wheeler:
I would love to thank you so much for having me.

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