Mediation as a Tool for Innovative Settlements

Mediation provides parties with the opportunity to create their own settlement and resolve their dispute on terms they like. In litigation or in an arbitration it is the judge or the arbitrator(s) who will resolve the dispute, which in most instances does not allow the parties to control their destinies. Whether the matter is a commercial dispute, a private dispute including family law, estate disputes, or a personal injury matter, a good mediator can help the parties reach a win-win resolution – of course, with help from the parties’ advocates, if any, as well as the parties themselves.

Often parties in a commercial dispute need to continue doing business together or perhaps are in the same industry and therefore recognize that they may end up doing business again.  Usually, the parties are also worried about their reputation in the industry.  In such a context, it can be extremely useful for all parties to “win”, to allow them to find a workable solution that allows all parties to move forward in a way that potentially enhances their business.

Obviously in family law, particularly when there are children involved, there is a need for ongoing relationships. Estate disputes may also affect on-going relationships and there is often a desire to honor the memory of the deceased person.  Here too, finding a win-win solution, from the eyes of the parties, is extremely useful.

In personal injury cases, the injured party needs to find a path forward, both emotionally and financially, to put the harm in the past. The defendants, often a corporation and its insurer, need to be able to focus on business rather than litigation but also need to feel that the benefits afforded by a mediated resolution outweighs the risks of litigation, especially when the business believes it has no liability.  The insurer will be looking to reduce the risk of litigation.

Imagine all the scenarios that would benefit from having the parties dictate the parameters of a settlement with thoughtful, innovative and constructive ideas from the parties and their lawyers.  It is not just “show me the money” – maybe it is a loan, or an apology, or a job offer, or a credit against future orders, or a tax benefit, or new business, or a payment plan, or commitment to do volunteer work…the possibilities are endless.   A mediator can help the parties realize that the scope of solutions is far broader than what they might have been focused on in weighing likely litigated outcomes and can help the parties realize the control they have in achieving a mutually positive result.  A mediator can ask questions about potential approaches or strategies to discovering new options that the parties may not have considered.  It is the parties who will best know, however, what settlement options resonate most with them and, in some cases, may know what drives the other parties in the dispute. 

Make sure you keep this in mind when advising clients about the benefits of mediation and keep an open mind for an innovative way of resolving the dispute.