Reflections on the 1-2-3's of the Mediation of a Merger & Acquisition Dispute

On April 6 and 7, 2017, during the ABA Business Law Section Spring meeting in New Orleans, the Dispute Resolution Committee presented a dynamic three-part program entitled “The 1-2-3s of Mediation of a Merger & Acquisition Dispute” that reviewed the anatomy of a mediation from the earliest planning stages through settlement.
This article shares some thoughts from several of the participants concerning the value of preparing for, as well as fully participating in, a mediation to obtain the best results for your clients and your clients’ companies.
Judge Elizabeth Stong, a U.S. Bankruptcy Court judge in the Eastern District of New York, served as the “mediator” during the program and shared her advice for advocates, clients, and mediators. First, she noted that advocates and clients should be “focused on being prepared in every conceivable way—of course on the law and the facts,” but that this is only the starting point in a successful mediation. She wisely pointed out that participants should not disregard the “business context, including any future opportunities or issues and also . . . the opportunity to agree to something that is outside the narrow scope of what a judge could decide.” Thus, the parties should look both “backwards (to assess the parties’ positions and rights) and forward (to see future opportunities)” in evaluating the range of ways to resolve the pending dispute. Further, she noted that it is important to examine “how the situation looks from every other seat at the table, including that of your adversary’s counsel a