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Using Mediation in New Ways to Achieve Other Salutary Goals

July 1, 2015

In the real estate and business mediations I mostly conduct, and in those with which the legal community is mostly familiar, the usual goal of the parties is to settle a contested claim and to avoid further, or any, litigation.

In these kinds of matters, as mediator I am usually called upon to help the parties to negotiate an agreement in which one side agrees to pay a certain amount of money, and the other side agrees to stop, or never to start, any litigation over the dispute between them.

Although each mediation session is unique and can be very exciting/challenging (in terms of the subject matter, the personalities of the participants and the negotiation itself), these mediations are fairly standard in the industry.

Occasionally, something else comes up and the parties have other goals in mind for which they choose to use mediation.

Utilizing mediation to reach these other goals constitutes an expansion of mediation into other areas beyond simple case resolution, areas that other practitioners may not be considering.

And these mediations can be exciting and challenging for a mediator like me as well, and equally productive for the parties and their counsel.

Here are just two examples:

1. In one mediation, convened after the money part was agreed through direct negotiation between the lawyers, I was called upon to orchestrate an apology between the two clients.

The apology was necessary and appropriate to seal the deal and also to provide closure for the disputants.

2. More recently, and on several occasions now, I have been called upon to help renegotiate commercial leases between property owners and their commercial tenants. (Certainly in these mediations there was disagreement between the two sides, and sometimes there were disputes rising to the level of litigation, but these mediations were focused on negotiating the terms of a new lease.)

These lease negotiations were necessary and appropriate because the parties were interested in continuing or improving their commercial relationships with one another and because both sides saw that they could do better together than apart.

In both of these examples, the mediations were being used in new ways to achieve goals beyond, or instead of, litigation.

In both of these examples, the mediations were suggested by knowledgeable, savvy attorneys seeking to serve the needs, interests and priorities of their clients.

From both of these examples, I hope that the reader will be inspired to think of using mediation in new ways as well, to achieve other salutary goals for themselves or their clients.
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David I. Karp is a full time independent mediator of real estate and business disputes, and more, in Southern California. His website is at http://karpmediation.com .

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