Sometimes legal disputes settle organically but mostly focus and attention is required to achieve a compromise that all parties are content with.
Preparing for agreement, adopting a resolution focus, is not the same as abandoning a case. It is possible to be resolution focussed without giving up on the technical strengths of your case. Being resolution focussed means:
- knowing which parts of your case are strong and should be focussed on. And communicating that to your client;
- knowing which parts of your opponent’s case are strong and they will be focussing on. And communicating that to your client;
- knowing which parts of your case are not strong and which can be “conceded” in a non-defensive but strategic way. And communicating that to your client;
- knowing which parts of your opponent’s case are not strong and which are likely to be readily conceded if you are able to offer up concessions. And communicating that to your client;
- knowing which issues are significant and meaningful to your client, and which of those are technically strong or weak. And communicating how to deal with those issues to your client so that concessions are made in a way that invites concessions from the other party;
- being prepared to make concessions early in the mediation process and recognising that concessions aren’t just about moving from percentages or dollars or number of nights. Concessions can be made in small but deeply meaningful ways – acknowledging that a role played in the relationship has been recognised, valued; noting that a particular perception/recollection is not one your client will agree with but that you accept it is open to the other to see it that way; acknowledging that an asset might be of greater/lesser value than what the expert indicates; being open to the idea that a professional or personal role was challenging or had meaning to the person who fulfilled it. Small signals of being open to seeing things a different way give a good mediator much to work with.
A resolution focus is about positive problem solving – looking for opportunities for concessions and compromise rather than just areas of disagreement. Negative events don’t have to be responded to negatively.