Mediation can be hard. Often, the parties start out a great distance apart, work towards narrowing the gap, but occasionally can’t quite straddle the gulf to come to an agreement in a single day. Last week, I gave my final lesson to my students at Pepperdine on sophisticated steps for breaking an impasse. I told them that it was a matter of both skill and faith.
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“In ‘litigation as usual,’ settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution
I would say all of those cases were ripe for mediation at the time I was asked to mediate them. How can that be? Simple. In each case, the attorneys/parties had the right information, and a strong enough desire to settle, in order to make good decisions. Could those cases, which were further into the judicial process, have been resolved sooner? Possibly. But in retrospect, I don’t think they were ready until we mediated them.
Under the common law approach used in the United States, there is generally no duty to negotiate in good faith, and negotiators can exercise their BATNA power unless they decide to assume the good faith duty.
OFOI Tim Hedeen described the following class exercise about the nature of negotiation, which can easily be adapted in many ways. (If you want to give students even more of a run for their money, you might assign students to read the short piece on the definition of negotiation that Andrea Schneider, Noam Ebner, David Matz, and I wrote).
Forgiveness can help people restore themselves as morally acceptable members of society as seen by themselves and others.
This will likely be of most interest to scholars writing in this area. In the final analysis, I think John’s original complaint that we are using BATNA “wrong” may be better directed at WATNA. I do think that many of us—myself included—have not been particularly clear about what we mean by WATNA, and in this sense may be using the term incorrectly.
In this post, I explain how I was led astray. Part of the reason is that I have come to believe – and still believe – that much of the cherished jargon in our field is misleading and confusing, as I describe below. So I was primed to believe that this was the case for BATNA too. I now realize that there is some confusion about BATNA, but not in the way I previously thought.
I am writing to share the news that Roger Wolf, a professor and pioneer of ADR in Maryland, passed away on Saturday, December 30, 2017.
