A large measure of the service I provide is to help people focus on the future, not the past. That’s one reason why the goal of the mediation should never be settlement for settlement’s sake. People should be satisfied, if not downright happy, with their settlements. Another reason is that it invites deception and manipulation by the mediator just to get a deal done, any deal.
In my experience, a settlement is the natural byproduct of superior decision-making, which in turn requires the mediator to make sure everyone has the best and most information possible. Then it’s possible to consider all the options fairly and find the best solution wisely and calmly.
With that as a backdrop, and assuming we’re dealing with people with normal psychological profiles, a settlement will result nearly every time. When it doesn’t, all involved have a clear understanding of why – and they have made a clear decision not to settle because the other side is, in their view, either too greedy or stingy.
Undue pressure to settle leads mediators to behave in a way that makes them seem desperate, powerless and ineffective. That’s why my focus is on facilitating others’ negotiation (which is good mediation) versus negotiating for others (which is not). The process emphasizes direct communication between the sides, many times between the lawyers (in what I call attorney summit meetings without clients present), sometimes with everyone present in a traditional joint session.
The mediator, lawyers, and clients all have distinct roles. The clients’ role is to make the ultimate decision to settle or not, based on all their interests, needs and values, as well as on their lawyers’ advice with the assistance of the mediator. I believe this is why clients are often so happy with the results and the process and with the performance of their lawyers. Their role is recognized and honored.
As Thomas Sowell famously wrote, there are no solutions, only trade-offs. Clients can’t get everything in a settlement. Nor can they get everything by going to court and winning because the costs, delays and hassles are enormous. When clients understand the trade-offs they’re making when they pay a little more or take a little less to settle and choose that trade-off, they come out ahead. And that’s why they come out happy.