In this second of two posts, I pick up last week’s discussion around adversarial mediation and how sometimes, just sometimes, a mediator’s reality is that parties with no prior relationship have few joint interests other than reducing transaction costs of getting to trial.
And how, in these types of mediations when parties find themselves at impasse, they put a high price on finality and often look to the mediator to be more like a judge and expect them to evaluate the likely outcome at trial.
And many will oblige – some of us will openly evaluate the case in some kind of non binding opinion piece, some will formulate a ‘mediators proposal’ just like in the recent Vancouver strike.
Some will even make a decision because they read somewhere that med/arb actually worked.
Others become boundary riders out on the edges of our field – and while remaining facilitative, will nevertheless be drawn ever closer to the confluence of the judge, the mediator and the arbitrator.
And it’s in this unmapped extremity that many feel lives mediation’s dirty little secret.
Not surprising really – what commercial mediator wants to own up to closing the gap by; > directing defendant parties what they are to contribute to settlement > getting parties’ best offers on a scrap of paper and deciding how to split the gap > suggesting the parties put their money where their mouth is by betting on their trial predictions – so the party the most wrong has to pay $50,000 to the one who is closer > proposing a double blind range
For more try Jack Cooley’s Creative Problem Solver’s Handbook for Negotiators and Mediators, Volume 2 – just take a look at the table of contents put together from practitioner suggestions with descriptors like;
Michael Young: Bottom Line Negotiating
Kitty Grubb: Let’s All Go to Vegas with Kitty
Robert Wright: Wanna Bet?
Rebecca Bowman: Coin Toss
We all use them.
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