Guided settlement (instead of mediation?) A method of ADR recently occurred to me which I have named ‘Guided settlement’. It has its roots in both expert (or neutral) determination and mediation, but is neither because the settlement ‘Guide’ (e.g. a neutral Barrister TEP jointly appointed by the parties in a contentious probate claim) neither: 1. determines any issues; nor 2. acts as an evaluative mediator. The role of the Guide (as a technically proficient specialist practitioner and creative commercial problem solver) is to: 1. analyse the legal merits of the claim and inherent litigation risks; 2. design a commercial settlement methodology; and 3. help the parties to communicate, so that they can use the methodology (with crunched figures based upon independent asset valuations) as a framework to explore and construct overall terms of settlement. Throughout the process the Guide thinks freely (including outside the box) and generates creative solutions, i.e. acts as a neutral creative problem solver who has no partisan loyalties or personal stake in the dispute. In e.g. a probate dispute, the basic procedural steps are as follows: 1. the parties (through their solicitors) obtain and jointly pay for an inventory and valuation of the estate assets, i.e. to determine the size of the estate pie (‘Valuations’); 2. the solicitors acting for each party take instructions from their respective clients about their own commercial needs preferences and priorities which may reveal a classic Fisher & Ury orange peel v orange pulp scenario, i.e. where one party wants the peel and the other the pulp, and both are arguing about how to split the whole orange (which I will call a ‘Commercial analysis’); 3. instead of appointing a mediator the parties jointly appoint a Barrister TEP to act as a settlement ‘Guide’, who: 3.1 undertakes a fixed fee preliminary evaluation of the legal merits of the claim, litigation risks, and costs, and sets out his conclusions in the form of a grid/schedule (‘LRA’); and 3.2 develops a commercial / arithmetical (i.e. number crunched) methodology for settling the dispute based upon the: 3.2.1 Valuations; 3.2.2 Commercial Analysis provided by each party’s solicitor; and 3.2.3 LRA, (which I will call the ‘Settlement Framework’). This is circulated by e-mail amongst the parties before they meet to settle the claim. 4. In a fixed-fee meeting (e.g. of up to one day), the parties solicitors, with or without their clients in attendance, and with full authority to settle or access to instructions over the telephone, meet with the Guide (i.e. the Barrister TEP jointly appointed by the parties to design a Settlement Framework for their dispute). The meetings take place in separate rooms in a neutral venue, e.g. at the Barrister’s Chambers. 5. Using the Settlement Framework, the Guide works with each party to jointly generate settlement proposals to: 5.1 reduce the issues in dispute (i.e. remove them from the equation); and 5.2 create momentum, leading to an overall deal. Like mediation this may require more than one meeting. 6. Unlike a mediator, the Barrister TEP (i.e. the Guide) uses his technical knowledge of the legal issues in dispute and problem-solving skills to create inventive settlement proposals for which neither side will lose face if rejected, i.e. because they are the Barrister’s ideas, and if agreed, can be claimed and owned as the product of a joint commercial collaboration between the parties.