By its nature, a creative dispute lends itself to a creative solution – assuming that is what each Participant in Mediation wants to achieve by participating in the Mediation Process.

There is a tension between competing motivations.

The participants may each be seeking a pragmatic commercial solution.
However, their legal representatives may be focusing on financial compensation, which of course includes expenses and incurred costs.

So, a challenge for the Mediator is to manage this tension without exacerbating it.

The following is a Checklist of issues to explore in Preliminary Private Sessions with each Participant and their legal representatives, in order to steer the dialogue away from ‘legal rights’ and power’, and toward ‘interests’, thereby opening the door to the discovery by the Participants for themselves, of practical options for the structuring of pragmatic commercial terms of settlement, that ‘square the circle’ in a way that works for both of them:

·       Participants, i.e. the ‘People’ who have ‘skin in the game’ – What motivates each of them? – What is important to them: ‘needs’ and ‘priorities’.
·       What is the ‘Problem’?
·       Why?
·       What is at stake? – i.e. money, reputation and relationships, including with the public, i.e. consumers and audiences.
·       Potential litigation risks, costs and adverse publicity [‘LRC’].
·       With some imagination, can the Problem be fixed, i.e. ‘sorted’?
·       How?
·       At what cost i.e. the ‘What is the Price of Doing a Deal in Mediation’ [‘PDM’].
·       PDM minus LRC = ?, so is doing a Deal today in Mediation by putting a ‘Price’ on it, better for you than going to Trial? i.e. does a ‘Golden Commercial Bridge’ exist in Mediation, that a Judge cannot impose?
·       ‘Creative’ brainstorming/commercial problem solving.
·       Making an ‘Interesting Offer’ i.e. to hook the other Participant, so that negotiations can begin based upon ‘Interests’ instead of ‘Positions.’