This morning I coined a new concept for my forthcoming book the ‘Mediation of Visual Art & Cultural Heritage Disputes.’ See the page of the same name at www.carlislam.co.uk.

The concept is of ‘patterns’ in the Mediation of a particular commercial disputes.

I call this the ‘Deal-Making Matrix’ or ‘DMM’ for short.

Think of it as the Mediation equivalent of what judges do in court when evaluating the ‘factual matrix’ of a case in order to arrive at a judicial determination.

In Commercial Mediation the DMM is a strategic Mediator [‘M’] tool i.e. framework, used to map out all the possible elements of the dispute in order to find overlapping areas where a mutually beneficial agreement can be reached.

It shifts the focus from simply dividing a fixed pie (a zero-sum game) to expanding it through creative problem-solving.

My concept functions through three core elements:

(i) ‘The Two Axes of the Matrix’ – A standard deal-making matrix evaluates the dispute on two primary dimensions to determine the best path to settlement:

(a) ‘The “As-Is” Value (Legal/Financial Risk)’ = The objective, calculable value of the claim. This represents the financial standing if a judge or arbitrator were to rule strictly on the merits of the case.

(b) ‘The “Future” Value (Business/Commercial Interests)’ = The underlying, often subjective needs of the participants [‘P’s’] e.g. preserving brand reputation, or ensuring future revenue streams.

(ii) ‘Identifying Bargaining Zones (ZOPA)’ – By plotting each P’s priorities on this matrix, M uncovers the Zone of Possible Agreement (ZOPA). P’s often have vastly different valuations of the same issue. The DMM helps identify these ‘asymmetric values’ (e.g., one P cares deeply about cash flow, while the other prioritizes a long-term service contract), allowing M to faciliate a ‘trade’ between items of unequal value to reach a deal.

(iii) ‘Creating Value Through Trade-Offs’ – A well-constructed DMM utilizes several negotiation techniques to resolve stalemates:

(a) ‘Concession Swapping’ – Trading a financial concession (e.g., waiving a late fee) for a favorable business term (e.g., an extended multi-year contract).

(b) ‘Multiple Equivalent Simultaneous Offers (MESOs)’ – Presenting several packaged offers at once. Each package is weighted differently on the matrix, allowing M to gauge what each P truly values without signaling a preference.

(c) ‘Contingent Agreements’ – Structuring parts of the deal based on future events (e.g. lower immediate payouts combined with future royalty payments or performance bonuses) to bridge the gap between differing financial expectations.

Ultimately, the DMM transforms Mediation from an adversarial debate over who is ‘right’ into a ‘transactional deal-making process’ where both sides walk away with their primary commercial interests satisfied.

In a Visual Art dispute, the DMM specifically helps P’s map intangible intellectual property values v. tangible business interests, such as financial damages and brand reputation. Evaluating IP boundaries within this matrix requires strategies that balance strict legal rights with commercial flexibility.