Much mediation takes place in the context of a dispute between two or more parties, where the process is used in an attempt to settle disputes. A dispute involves an overt and contested claim between parties over competing interests.
It is worth dwelling on that definition, because each element of it matters to how the mediation is conducted. The claim is overt — it has been asserted, and the parties know what is being demanded. It is contested — the responding party denies it, in whole or in part. And beneath the claim lie competing interests, which are rarely identical to the positions the parties have taken up.
The settlement mediation succeeds when it reaches past the first two elements to the third. Positions are the opening of the story, not its end: the claimant who demands payment in full may in truth need cash flow by a particular date; the defendant who denies liability may in truth fear the precedent more than the sum. A skilled mediator works at the level of interests, where trades can be found that no court — confined as it is to the issues pleaded — could ever order.
