One of the great things about mediation -- particularly in complicated commercial and intellectual property cases -- is that it does not have to be a binary process. The possible results are limited only by the imagination of the parties (perhaps assisted by the mediator) and their willingness to make a deal.
In cases that lend themselves to a variety of possible solutions, it is important to avoid "narrow framing." Narrow framing refers to a decision making process in which possible options are framed, much like litigation, in a binary manner: Do we keep or fire an employee? Do we buy a product or not? Do we pay X dollars for a release?
Better decision-making often results from widening or broadening the frame of reference, or, put another way, considering all of the possibilities. Chip and Dan Heath cover this subject in detail in their new book Decisive, which is well worth reading.
When parties are locked in litigation, they often tend to focus on the details of the case and the merits of their position. Although this is natural and understandable, it may prevent the parties and their counsel from stepping back and considering other possible solutions. A mediator can often help take off the blinders.
In order for a mediator to help the parties widen their frame of reference, the mediator must have an understanding of the dispute before the mediation. This means that the mediator should ask for mediation statements and copies of the relevant contracts, pleadings and other documents well in advance, and should take the time to review them. Separate meetings or conference calls with the parties and counsel in advance of the mediation can also help.
Examples of solutions from widening the frame of reference might include modifying a contract to fit a business relationship that has changed over the years instead of litigating over it or cross-licensing of intellectual property to benefit both parties. Stepping back and looking at the possibilities, especially if they can provide a positive outcome for both parties (the proverbial "win/win" solution), is almost always worth doing.
Sometimes, simply having another pair of eyes review the matter from a neutral point of view is enough to spur the process. It also helps if the mediator has relevant experience, and knowledge of how other parties have solved similar disputes.
Although true "win/win" solutions are not always possible, broadening the frame of reference will certainly increase the possibility of finding one.