‘Start with the end in mind!’ | Carl's Mediation Blog

A Mediation Advocate (‘MA’) must know where he is going.

In other words, a MA must ‘start’ i.e. prepare – ‘with the end in mind!’

The acme of preparation is the development of a ’settlement range’.

That is the Deal Making Zone [‘DMZ’].

In a trust/estate dispute the DMZ exists in the space between two interacting parallel dynamics which may converge in the consciousness of each participant (‘P’):

– Relative Gains v. Relative Losses [‘P.1 – P.2’].
– Common Ground [‘CG’].

P.1 – P.2 [Relative Gains v. Relative Losses]:

(i)              Declaration & vindication of legal rights.
(ii)             Control.
(iii)            Property & Money.
(iv)            Costs.

CG [Common ground in eliminating litigation risk by doing a deal instead of proceeding to trial includes]:

(v)             Preserving the capital value of the estate.
(vi)            Engineering a tax-efficient distribution of estate assets.
(vii)          Avoiding litigation risk and thereby saving costs, time, energy.
(viii)         Avoiding publicity.
(ix)            Avoiding further stress and anxiety.
(x)             Preserving a relationship and goodwill if worth saving.

I posit that the gap between P1. and P.2 is reduced by the convergence of CG with P.1 – P.2. In other words, the closer P.1 – P.2 is to the underlying CG, the smaller the gap is between P.1 and P.2.

That is the DMZ.

Visually this can be represented as follows:

Pre- Convergence

P.1 —————————————————————————P.2

CG?

Convergence

P.1 ————-P.2
CG

In contrast to Litigation, in Mediation the possibilities are only limited by the imagination of the participants and their legal representatives.

Whilst not infinite, ‘doable’ deals that ‘are enough’ are invariably possible.

But first a Mediation Advocate must ‘start with the end in mind!’

For how this works in commercial mediation Google – ‘Commercial Mediation of Music Disputes — Civil Mediation Council.’