IS SETTLEMENT THE ONLY GOAL OF MEDIATION?
by
David B. Harwi and George Reath, Jr.


Mediations are considered successful if the disputants settle. Mediations are considered very successful if they settle quickly.

However, a mediation may be successful even if settlement is not immediately reached. When disputants with conflicting interests come before a mediator, the disputants frequently have assumptions about their own position and their adversary’s position. These assumptions are frequently the source of the conflict. Before settlement can occur those assumptions must be challenged through a process of education.

The process of education includes a discussion of these assumptions so each disputant understands the assumptions and their basis. The discussion must also include an analysis of the validity of these assumptions. The process further requires a period of reflection. Further education may be necessary as new insights are obtained. This usually takes time. Settlement may not be immediately apparent to the disputants. However, this does not mean that the mediation has not been successful. The process of education almost always generates new perspectives which in turn will yield new options for eventual settlement.

Mediations are successful when, for example:

a manager learns from an employee the human effect of a decision;

a case-altering fact is learned by a lawyer prior to extensive discovery;

a company learns the importance of an apology in sexual harassment litigation; or

the lawyer’s client comes to a better understanding of the position of the other party to the litigation and that the client may not be successful in the litigation.


© Triage Mediation Services Inc. 2001


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