(Originally posted at Mediation Works)

Mediation, especially in the context of litigation, is primarily viewed as a vehicle to settlement of cases before trial.  This notion, although true in practice, limits the participants from realizing the full benefit of mediation.  Mediators should avoid the impulse to direct the parties to settlement until they are ready and instead focus simply on creating a dialog.

Mediation is a process.  A neutral third-party facilitates discussions between conflicted parties.  Those discussions are directed by the mediator to examine the parties’ fundamental interests and motivations and create acknowledgement of their respective agreements and disagreements. 

Whether or not the parties settle their dispute is up to the parties, not the mediator.  Mediation should be characterized by a wide-ranging discussion of the parties’ conflict and the associated interests of the parties.  Therefore, a successful mediation may not result in a settlement at all.  If may be sufficiently beneficial for the parties to leave the process with a better understanding of their opponent’s thoughts and interests.

When mediation becomes settlement focused from its initiation, the discussion is likely to be too limited to the traditional ingredients of settlement (monetary payments, legal fees, court actions).  The parties may not realize the full benefit of mediation and the full scope of their intersecting interests and motivations may be left unexplored.  Mediation strictly for settlement is like taking less than a full dose of medicine.  It may help, and sometimes be successful, yet the full benefit is not going be delivered.

No matter the outside pressure to settle the underlying dispute, try to allow the parties to mediate with the only goal being discussion.  The results are more likely to be comprehensive and the understanding of the parties more complete.