Mediate with Settlement as a Primary Goal

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When Exhausted by the Battle, Mediate with Settlement as a Primary Goal. 

What is the difference between ‘Mediation’ and a ‘Mediation Settlement Conference’?  The Expectation of Settlement. 

Expectations are often subtly managed by the mediator when the parties walk into the conference room and see the computer and printer ready to record the agreements.   Settlement is expected and the tools are ready to bring the matter to closure.  If the mediator is not equipped to record the terms of settlement that the parties agree to, you may be wasting your time and money.

Preparation and Effectiveness.  In my work as an ADR Case Administrator, I've known many mediators who have gone to mediation without the necessary equipment:  a computer, printer, and without a focus on closing the matter.  They report back that the parties are very close, but need to work on this-or-that to complete the process.  The truth is, mediators generally have ONE chance to bring the matter to conclusion.  When parties walk away from the table, the chances of concluding with an agreement are greatly reduced indeed.

It is troubling to hear feedback from participants who state that they have tried mediation in the past and nothing was decided.  They feel it was a waste of time and money, but a necessary "hoop" to jump through to get in front of a judge.

Lack of Closure may be due to Fear of Reaching a Less-than-Perfect Settlement Agreement.  This fear may be held by the mediator, the parties, or both.  However, closure of a matter with reasonable terms is a benefit, in & of itself.  The emotional toll of a protracted conflict permeates and reduces the joy of living in areas of life unrelated to the conflict.  It is typically a primary focus of life until the matter is settled.  Is perfect agreement in all disputed matters possible?  Sometimes, but more commonly, settlements are the result of “Give a Little, Take a Little.”  Perfect?  No.  Settled?  Yes.  Settlement offers the freedom to move forward toward a happier tomorrow.

Why don’t mediation cases settle?   Sometimes because of a lack of viable options that meet at least some of the needs of each participant.  Other times because one of the parties has a goal that shifts from settlement to punishment or control. Often, however, it is the skill level and tone set by the mediator. 

Mediation is a relatively new profession that is evolving over time.  The majority of mediators currently fall into one of two professions: Attorneys and Mental Health providers. Therapists may mediate with a focus on mental health issues, drilling down to errors of thought or behavior.  Attorneys may mediate with an eye on what remedies the law might provide and focus narrowly on the legal merits of this-or-that position held by the mediation participants.  Both professions traditionally foster long term relationships with clients and may not be in the habit of wrapping things up quickly.  The length of the professional relationship determines profitability:  the longer the processes for healing or adjudication, the more professional fees are realized.  This is not to say that mediators from these professions cannot bring parties to timely agreement.  But it may be a departure from their professional habit.

Business disputes are usually brought because of a breach of contract, product defect, partnership conflicts, financial malfeasance, and similar issues.  Having a strong business background is an asset to any mediator who assists in litigation avoidance.  For example, if the mediator has had a background in sales (and has been successful), he or she has learned to attend to the details of the contract, generate options for meeting the parties’ objections, ask for agreement, and most importantly – write the contract and get it signed.  It takes a little “fire in the belly” to promote settlement between parties.

Are you exhausted by the battle?  If you want closure, contact Judy Larkins, Denver Mediator.  While settlement is never guaranteed in mediation, Judy’s strong business background yields positive results in a majority of cases.  Judy has the necessary experience in business and has professionally mediated since 2003.   Judy is creative in generating options for settlement.  Her focus is on gaining agreement.  Her Memorandums of Understanding (settlement agreements) are succinct and complete.  Most importantly, Judy loves bringing peace in the midst of chaos during her mediation settlement conferences.