Hi, this is Brett Cenkus. Today, I just
got back from a mediation. I've got a client who is in a business dispute, and
we had a mediation clause that I drafted in our original agreement. It's not a
business partnership exactly, it was a merger and acquisition. We sold the
business, and my clients - actually there's two individuals who sold the assets of a
business to another, and they're both working for the business. So it's a type
of business partnership, more of an employer-employee relationship, but you
know something I'd probably call business partnership of sorts. So we have
a mediation clause and we were in mediation today. We did not get the - we did not reach a
resolution. And it was frustrating. We thought we were going to at one point,
but the parties were too far apart. And driving home, I was thinking about that
and thinking mediation is an amazing thing. I've talked a lot about it before.
I almost always put it in contracts. There are a couple contexts in which I
won't for a couple reasons, but for the most part I put it in. Mediation is a
quick process. We were there for one day. My clients paid $1,300 to a mediator and
the other side paid $1,300, so it's not you know free or cheap, but it's
relatively inexpensive and it's worth a shot. And it doesn't often work, okay. But
given what comes next, which is litigation in our case or arbitration if
you have an arbitration clause, mediation is a shot at a quick
resolution and it's a fairly amicable, fairly informal process. But it's still,
it's still not really super amicable. So it got me thinking a little bit. If you
are having a problem with a partner right now, and this is really for
business partners who have been in business together for a while, and have
some history, and some of that history is positive, right - so there's some
relationship here and things have worked well in the past - and it's also for
someone who has not spoken to their partner about the issues recently. We all
bury our head and do things in business partnerships and marriage, you know, you
can pick it up and realize, you know, we haven't had a substantive conversation
about the relationship or the partnership or the marriage or whatever
in a while. So it's kind of for that situation. And no one's lawyered up yet, but it's not working. And you're starting to kind of complain to people,
to your part- life partner or something. You're just, you're being, you're
frustrated. Mediation today reminded me that what you need to do right now is to
email or call your partner and set a time to meet. Set a time to meet outside the office. Something not super formal, not
super tense, and you got to have the difficult conversation. You've got to
introduce that. It doesn't have to be a super difficult one in the beginning, you
know. You could start off - instead of "saying I'm really unhappy with you." You
could say "how do you think things are working? Are you happy? Is it
working for you? How am i doing?" Right? However you need to get into that, do it
now. Because mediation is a great thing, but we're already on a train that's
heading down the wrong path, and even though the process was amicable at times, we thought we're gonna get a deal done, you've got attorneys on each side. It's
an acrimonious process, and it's an us-vs-them thing. We're often in our
own room and we're negotiating. There's multiple people weighing in and they're,
you know, and trying hard to get a deal done. Because litigation is a lose-lose
all around. As I told my client today, it's not their first rodeo, they've been
down this path before and I said you know how this works. If we don't get a deal done today
you're gonna, you're gonna be back here in a year. You're gonna be rode hard and
hung up wet is the old saying. It's like, you're just gonna be worked hard. You're
gonna spend time and money to get back to this point to settle. Something, I mean
I heard recently that - I mean someone told me 90% of cases in Travis County in
Texas settle, but I've also heard 99% - whatever the number is it's a lot - but
what happens is the parties...they're in their own corners, they can't make a deal
work. They spend a year fighting, spending money, coming back to the table - the table they could have been at today. The table they could have been at a couple months
ago before mediation started. Like so if you're having a business partnership
problem now and that hasn't gotten to the point of litigation and you haven't
had a heart-to-heart conversation. do it now. There's an old proverb: when's the
best time to plant a tree? It's 20 years ago. When's the second-best time? Today And I love that, but the point is like yeah you
should have done it months ago before you got to the point where it's strained or
you're complaining to people. And if you're thinking that, pretty good chance
your partner's thinking that. And it is possible that your partner's already
started down the path of separating in their minds. And that's you know it would
be better if you had done things before that, but you don't know that. There might be plenty of time to save it. And now, when it's just the two of you, it's way
better than when you get to this point. It's so much easier and there's so much
opportunity to save things. So if you're having a business partnership problem
now, if you haven't had that hard conversation in a long time, if there was
a partnership that worked at some point in time, if there's some relationship to
preserve, make the call now - right now. Do you have time for lunch tomorrow,
for a drink this weekend. Just lay it out there and open up. And it's so much easier to do before it gets to the point where we were at today. Sometimes it can't be
saved. Sometimes it's heading there already. Sometimes it's a foregone conclusion. It doesn't always work, but it's way easier
to do it now. Have the difficult conversation before it's way more
difficult to have. If you've got questions about that, opinion on
something you're dealing with or how to navigate something, reach out to me. Business partnerships can be amazing and they're worth trying to save if they're
worth putting in place in the first instance, so best success with it.
