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By Tara Ollapally, June 3, 2024

Mediation in family business disputes: A holistic approach beyond failed negotiations

The Indian Parliament has passed The Mediation Act in September 2023, recognizing the value of mediation in promoting and facilitating the resolution of disputes. Mediation is now a recognised legal process wherein the fundamental tenets of confidentiality, self-determination and voluntariness are legally protected.

Mediation in family business disputes: A holistic approach beyond failed negotiations

By Tara Ollapally, Nupur Pavan Bang, Sougata Ray

Family businesses, which hold a significant role in the global economic landscape, are inherently prone to conflicts due to the intricate interplay of familial and business dynamics. Disputes can arise from succession planning, divergent business visions, or conflicts of interest among family members. Globally, illustrious family enterprises, such as the feud between theAmbani brothers in India and the disputes over the distribution of the family wealth and control of the business in the Pritzker family, exemplify how conflicts can lead to the dissipation of wealth and fracture familial bonds. Resorting to traditional litigation often exacerbates these conflicts and underscores the critical need for effective dispute-resolution mechanisms. When traditional negotiations fail, mediation, as a facilitated negotiation, proves to be a compelling alternative.

What is Mediation: 

Mediation is a nuanced and strategic facilitated negotiation process wherein a professionally trained neutral third person helps families in dispute find their own solutions through a better understanding of their own needs, the other party’s needs as well as the reality that they face. It distinguishes itself by transcending traditional approaches in its focus on understanding the needs of the parties and emerges as a highly effective and efficient mechanism for achieving harmonious resolutions in family business disputes. In family businesses, where personal and professional lives intertwine, a process that addresses emotions, business realities and the law become paramount. The expertise of the neutral mediator in managing the multiple facets of the dispute becomes the guiding force in steering disputing parties towards mutually acceptable solutions This nuanced approach not only facilitates meaningful and sustainable resolution but also cultivates an environment conducive to preserving relationships and the long-term health of the business entity.

How mediation Works:

 Mediation helps parties move from entrenched positions to underlying interests, fostering constructive communication. The mediator’s role is pivotal, reframing communication dynamics and guiding parties toward a more holistic and meaningful interest-based negotiation. Flexibility is a defining feature of mediation, allowing the inclusion of the right individuals and information in the negotiation. This inclusivity ensures that all pertinent perspectives are considered, contributing to the improved quality of negotiation. The process is party-centered, allowing the outcome to be determined by the parties themselves, promoting a voluntary and confidential environment.

The Legal Framework:

The Indian Parliament passed The MediationAct in September 2023, recognizing the value of mediation in promoting and facilitating the resolution of disputes. Mediation is now a recognised legal process wherein the fundamental tenets of confidentiality, self-determination and voluntariness are legally protected.A mediated settlement agreement has the same validity as a court decree, that cannot be appealed except under rare circumstances. Other legislations like the Commercial CourtsAct have also been amended to endorse mediation as a prerequisite for commercial disputes before resorting to court litigation. This reflects a growing acknowledgment of the efficacy of mediation in achieving swift and amicable resolutions.

Conclusion

To ensure the longevity and harmony of family enterprises, mediation must not be a mere consideration but an unequivocal imperative. It is the proactive and strategic approach that transforms disputes into opportunities for constructive dialogue, steering family businesses away from the destructive path of litigation.

Promoting a culture of collaboration, where mediation becomes embedded in dispute resolution clauses, charts a course towards efficient resolutions. By immersing themselves in the lessons drawn from successful cases, family businesses can elevate their acumen, becoming not just resolution seekers but architects of a ‘dispute-wise’ culture. In this transformative journey, disputes cease to be stumbling blocks; instead, they become the catalysts for innovation and lasting familial and business success. Embracing mediation can open doors for family business longevity and harmonious legacies.

About the authors: Tara Ollapally is Co-founder CAMP Arbitration & Mediation Practice; Nupur Pavan Bang and Sougata Ray are from the Thomas Schmidheiny Centre for Family Enterprise, Indian School of Business.

Disclaimer: Views expressed are personal and do not reflect the official position or policy of taraollapally.com. Reproducing this content without permission is prohibited.

 

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