What Is An “Appreciated Solution”? - Part 1

The best decisions come after we have made a thorough “appreciation” of a given situation. In this video I give two examples of this appreciation process. I then explain how mediation provides all sides with an ideal opportunity to go through a detailed appreciation of the risks they would face in going to trial while also providing them with an opportunity to manage those risks through negotiations.

Video Transcript

“Appreciate” is one of those great words that has several meanings, all of which are positive. It is also a word that captures all that matters most in any successful mediation.  

In this video, I am going to talk about "appreciate" in its analytical meaning, which Webster defines as: “to judge with heightened perception or understanding” or to “be fully aware of.” 

To start with, I’m going to take you back to my days in the military.   

As part of my Army training - in my case, while I was at Sandhurst - one essential skill I had to learn was how to conduct a "tactical appreciation.” 

So what is a tactical appreciation?  It is defined as: “logical process of reasoning by which a commander considers all the circumstances affecting the military situation and arrives at a decision as to the course of action to be taken in order to accomplish [the] mission.” 

The key phrases here are (i) a “logical process of reasoning” and (ii) “considers all the circumstances.” It is a deliberate and systematic approach to analysing a problem and coming up with the best possible solution to that problem.  

As you can see from this orders aide memoire card - as a military commander you have a specific protocol you should follow to make a detailed appreciation and build a plan of action. 

You do this appreciation to identify and evaluate all those things that represent hazards or risk, and all those things that constitute assets or advantages, and only once you have made that appreciation can you build a credible plan of action.  

Now this is not unique to the military.  People do this in a host of settings.  For example, aside from being a lawyer I am a registered Maine Sea Kayak Guide.  In that capacity I follow a particular protocol for assessing - or appreciating - both the area where I am kayaking and the conditions I can expect while I am on the water.  

Again, if I need it, I can turn to an aide memoire to ensure I am following an appropriate appreciation protocol.

Every pre-trip appreciation I do will include a review of the marine forecast; a front chart; tide cycles and tidal currents; current wind, wave and swell data; and I also like to check an additional wind forecast.  

Why do I do this?  

Because I am heading out to sea in a small boat, possibly leading others who are relying on me as their guide, and I need to know what risk I am likely to encounter so I can manage those risks appropriately.  

So why talk about these different kinds of appreciations in a video that is ostensibly about mediation?  

Well, all the parties involved in a civil dispute can go through a similar appreciation process, and there are substantial benefits in doing so.  

Thanks in large part to the modern rules of discovery, we can identify all the “features” of a given dispute - that is, all the key evidence, in its various forms, that each side can present at a trial - and we can then evaluate how that evidence will most likely impact any decision a judge or jury might make.   

The benefit of mediation is it provides everyone with the opportunity to do this in an informal setting - with the help of a mediator - and without any obligation to actually make a decision. 

It is an ideal opportunity for everyone to engage in that “logical process of reasoning” to “consider all the circumstances” so they can all gain a candid appreciation of the risks each side will face should they proceed to a trial.  

Now, any one side, or all sides, may still choose to go to trial, and that is entirely their prerogative.  But for many this frank but fair appreciation process is enlightening, revealing risks each side may not have appreciated beforehand, and providing everyone with bona fide reasons to manage those risks through negotiations.   

When they succeed in managing their risks through that negotiation process, they end up reaching an Appreciated Solution.  

Now there are other reasons why these are Appreciated Solutions - but that is for another time.

For now, thank you for listening, and I look forward to seeing you again soon.

Goodbye.