The Closer

A Mediation Newsletter July 2009

Using Creativity in the Mediation Process
by James Rainwater

The great notion of mediation is the flexibility that it can offer to the participants. Though it's incumbent upon the attorneys to craft a legally valid mediated settlement agreement, incorporating unconventional solutions is one way to get seemingly intransigent parties to move off their original positions.

Parties can agree to veer from the standard visitation schedule if it's a better fit for the parents. If a contract dispute requires a hardship party's reimbursement, a long-term payment plan might make sense. A divorcing couple may trade retirement funds and agree to assume certain debts.

The essence is to get the parties to acknowledge that a problem exists and then work together to solve it. That may require the mediator to shuttle back and forth two dozen times, but it also affords the disputants some sense of involvement and control over their case. By offering the parties different and novel perspectives, the mediator may change their positions and enable them to consider previously unknown approaches and answers.

Mediation is the last chance to let the parties try resolving their conflict in a face-to-face forum that maintains a focus on cooperation rather than confrontation. An experienced mediator can facilitate the parities to achieve resolution by maintaining a neutral environment and presenting workable scenarios. Without the legal confines and adversarial aspects of the courtroom, mediation participants can explore a wider and deeper path of possible solutions. The creative mediator can successfully assist in that process and achieve settlement.

Rainwater Law