I read with interest the letters from Edward Foster and CJA Cope regarding ‘the point’ of mediation.

Cope ‘fails to understand how mediation can resolve a dispute which involves interpretation of [an] agreement’.

Mediation is great for resolving disputes and I do not think anyone doubts that, but its real power is in allowing both parties fully to appreciate the other’s point of view. I get both parties, using simple techniques, to consider the matter from the other party’s position. The key is for your client to understand firstly what their position, interests and needs (PIN) are, and then, secondly, their opponent’s PIN.

Moreover, using principled negotiation rather than positional negotiation is critical (see Getting to Yes by Fisher & Ury). The classic example in that book is the anecdote of two brothers fighting over an orange. Positionally, they both want the orange.

They can see no way to split the orange because they both want it all. Through principled negotiation (and, by analogy, mediation), each party’s PIN can be adduced. It turns out that one brother wants to make orange juice and one wants to grate the rind for a cake. The dispute can easily be resolved by splitting the orange differently. Each brother gets what they want and walks away happy.

Back to Cope’s letter. Mediation can definitely assist in the interpretation of an agreement; perhaps not legalistically arriving at an agreed interpretation of the clause. However, it can and will help the parties to understand where each other is coming from and to work out the underlying PIN of each party.

Steven Mather, accredited mediator, litigation solicitor, Josiah Hincks Solicitors, Leicester