The potential of mediation emerges when the parties realise there are means to advance their respective interests without unduly prejudicing the other party.

The article is about Napoleon's invasion of Russia and the Battle of Borodino 200 years ago and the similarities between warfare and litigation. Napoleon said a man would fight harder for his interests than for his rights. So how does this affect our understanding of mediation?

In litigation the international trend is that more than 90% of cases are settled out of court through negotiations. Litigators generally follow Napoleon’s dispute resolution strategy to intimidate the other party to negotiate a settlement. In most cases the settlement occurs on the steps of the court.

While it is fair to say that in litigation, disputes are generally resolved through a show of force, it may sometimes be the only way to bring the other party to the negotiating table. But companies and individuals who litigate (or arbitrate) without first attempting joint problem solving through mediation, may rue their own Borodino moment one day.

Mediation is of course also available after the parties have commenced with litigation, even if it is more desirable to take place before the litigation process defines and entrenches positions
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Mediation is a structured process geared firstly to remove barriers to a settlement, secondly to identify the interests the parties wish to advance, and thirdly to explore different means to address those interests. The potential of mediation emerges when the parties realise there are means to advance their respective interests without unduly prejudicing the other party. It is indeed possible to settle disputes without planting seeds (resentment & humiliation) for future conflict between the parties.

Alexander was a proponent of mediation between monarchs and nations. A skilled mediator may have helped him and Napoleon explore alternative (less humiliating) means to address their interests. In doing so they would have been in control of the outcome and not subject to the inherent vagaries of war – that applies to litigation as well.

The mediation bonus (value) is dispute avoidance by mitigating the risk of disputes being reignited.

In an era of social media in which the reputational costs of disputes are incalculable, and in which the civil justice system has generally priced itself out of reach of many, this is a valuable bonus to be considered by companies and individuals.
credits;
http://www.mediate.com/articles/JoubertJ3.cfm

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