Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

Are you getting tired of being told how every settlement is a "win/win" for both sides? The expression, I fear, has become rather stale, as thin as a worn old shoe. Whenever I smilingly inform a party that, if he or she resolves the dispute, "it's a win/win!" I know what is rumbling around in their heads: "Yeah, so long as it's 'lose/lose' for the other side!"

Mediation is not a major athletic event, the Olympics or even a sandlot ball game. (Did the University of Miami outplay Ohio State in every statistical category and still lose!? Never mind.) In a mediated and negotiated settlement, "winning" comes in many forms, "losing" in few - but still losing.

(Boy, I can hear the screams of the "traditionalists" in the mediator ranks: "Ahrens, what the hell are you doing to us! You're stealing our ammunition!")

It can and has been argued vigorously that a settlement, in and of itself, guarantees a win for everybody - parties, lawyers, adjusters, even the mediator. After all, you avoid the uncertainty of a trial. Okay, I can live with that. But, really, are we dealing with a cliché that's beginning to fall on deaf ears? I think so, in many cases. And, if so, has it become counterproductive? Why does it produce smirks on some faces?

So you did not receive what you were expecting, or you paid more than you intended. So what? You "lose," right? Maybe, but you have just relearned the age-old lesson that teaches you that we learn more from failure than from success. It's not the end of the world. As S. O'Hara so profoundly stated, "Tomorrow is another day."

The "win/win" philosophy is founded on a mind game. So long as you're convinced you have won - even when you've lost - the sun will come up in the morning. Attorneys won't admit it - they're experts at rationalizations - but they know whether they have won or lost in a mediation. And, I suspect, so do their clients.

But, never mind. If "win/win" is your bag and gives you comfort, go for it. And, indeed, I will continue to repeat the refrain in the everlasting hope that the disputants buy into it.

In any case, win or lose, mediation is always the way to go. Even in the face of serious disappointment, you can always rationalize and come away a "winner"! Sure, there is a measure of hypocrisy here, but, hey, whatever works. . .

Happy Mediating in the New Year!

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