Disagreements occur in our everyday lives, and many usually unexpected. The agriculture industry is not immune to disputes, and many times has the most difficult time finding help resolving disputes. Ranchers and farmers routinely enter into business deals, buy and sell land, lease property, secure loans and participate in government programs through the USDA or other federal and state agencies. When a contract or agreement is not clear or the parties disagree on the interpretation, implementation or compliance, disputes could last for years and damage once friendly relationships. Mediation offers a practice, faster and far less expensive alternative to prolonged litigation.
Mediation is a voluntary process where parties meet with a neutral, impartial mediator in an effort to resolve a dispute. The neutral mediator helps facilitate productive conversation between the parties but does not decide who is right or wrong, nor impose a solution. Instead, they guide the discussion, help identify key issues, recognize common interests and assist the parties in crafting their own mutually acceptable solution. Since mediation is flexible, a solution can address both legal and practical issues. Importantly, the process is confidential, so the parties can speak openly without fear that their words will be used against them if the dispute is not resolved.
Before pursuing mediation, here are a few tips to help assist in determining if mediation is right for you and how to pick a mediator.
What is your end goal?
Begin with the end in mind. Write down specific outcomes you would be happy with or could realistically accept. In mediation, it is rare that you will receive everything you desire, so approach the process with a spirit of realism and compromise. Understanding your priorities helps you negotiate more effectively.
Are you willing and able to compromise?
Mediation works best when both parties are open to finding middle ground. If you are unwilling or unable to compromise, or the solution cannot be reached through settlement, then mediation likely is not right for your dispute. However, if there is room for negotiation, clearly define your priority “must-haves” and the items you can be flexible with as a final solution.
What constraints are you facing?
Consider your time and financial limitations. Mediation is typically much faster and less expensive than going to court. Evaluate whether the timing aligns with your ranch operation’s and your economic position.
Once you have determined you want to move forward with mediation, you next need to find a mediator. Not all mediators are equally effective for agricultural disputes. When finding a mediator, here are some qualities to look for.
Expertise in agriculture
While many agricultural business disputes share common elements with general business disputes, agricultural cases often involve unique factors such as seasonal cash flow, livestock production cycles, intricate USDA program rules, water rights, grazing leases, commodity prices, property disputes and the distinct culture of rural communities. If the matter deals with ranch or farm-specific matters, a mediator with agricultural experience is necessary to understand the nuances that are integral to reaching a final resolution.
Financial or technical background
If the dispute deals with large sums of money, complex accounting, loans, government payments or insurance claims, a mediator with a financial or relevant technical experience is highly valuable.
Good reputation
Seek mediators with strong reputations in dealing fairly and experience in mediating. Ask for references, inquire about their settlement rates and ask about their mediation style. Previous experience in agricultural disputes is helpful.
Interview potential mediators
Finding a mediator that is competent and qualified is crucial. Know that you can ask to interview mediators before choosing the one. Most mediators are willing to have a brief initial conversation at no charge. Prepare thoughtful questions about their experience, approach to agricultural issues and neutrality. Be advised, both parties must mutually agree on the final choice of a mediator.
With the right mediator and a willingness to negotiate, many parties reach creative and practical solutions that avoid the need for lengthy litigation. If you are represented by an attorney, consult with them about the potential benefits of mediation and explore whether it can be an option for your situation.
Resources
Thirty-four states have state agricultural mediation services – which offer specialized agricultural mediation – often through their extension services, such as the Kansas Agricultural Mediation Services (KAMS). These programs are typically low-cost or grant funded and staffed with mediators who understand the realities of ranching and farming. A current list of contacts for the states with certified agricultural mediation programs can be found here.
If you are dealing with a dispute related to a USDA program, you may qualify for the USDA Agricultural Mediation Program.
You may also find mediators by visiting the National Academy of Distinguished Neutrals (NADN) website. NADN is a professional organization for experienced mediators nationwide who practice in various fields of law. You can search mediators based on location, experience in agriculture or other areas of business, and other metrics by visiting the Neutral Search on their website.
Additionally, the Kansas Office of Judicial Administration has a useful brochure titled “How to Select a Mediator” that may be helpful in your determination.
