The Beauty of Mediation: Flexibility

I recently completed a successful mediation which provided a chance to apply one of mediation’s many benefits — flexibility.

Without going into details about the parties or the case, the mediation started in a traditional fashion with the plaintiff thinking solely in terms of a pure money settlement.  The defendants initially responded within the same parameters.  When the next round of negotiations revealed the significant differences between the cash positions, one of mediation’s many benefits kicked in (i.e., the ability to bring flexibility to the negotiating table so that the parties consider their respective “interests” instead of just considering the “positions” taken by each).  

This led to another round of negotiations which were not governed solely by monetary considerations and “positions.” Instead, by using the mediation process to learn about what “interests” might drive a settlement, the defendants made three alternative offers to the plaintiff, with each alternative offer including something of “value” but with cash still being the primary component. 

As a result, those offers were still judged from a cash”position,” so the plaintiff responded by rejecting the offers and making a take-it-or-leave-it cash only demand. It appeared at this point that the mediation might end without settlement and with the parties entrenched in their “positions.”  

After further mediation discussions, however, the defendants were encouraged to try a different approach.  Rather than focusing on the cash position of their offer, the defendants focused on how to increase the “value” component to better match the plaintiff’s expressed “interests,” while at the same time reaching a result consistent with their own “interests.”  The answer was simple, make “value” the primary component of the offer with cash being the secondary component.

Low and behold, after several hours of negotiations and after reaching what appeared to be an impasse, this “value” approached led to a settlement that was satisfactory to all of the parties. While this approach might not be available in all mediations, it is always worth considering alternative ways to settle when approaching settlement negotiations, particularly in business-related disputes. 

As demonstrated by this mediation, it is important for the parties to consider if there is a way to find “value” in a settlement that cannot be accomplished solely by cash; and this can best be accomplished by each party considering what “interests” are actually driving the other side rather than focusing on the stated “position” suggested by a cash demand or offer.  

To hire me as a mediator in a case, or just to learn more about my mediation practice areas, click here “Mediating with Keith Jones.”