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Carroll Straus

Meditation vs. negotiation

I have 2 main comments on this thread/discussion:

My first and biggest beef is people use the term "mediation" as though it had a single accepted meaning. It doesn't.

Some "mediations" are settlement conferences on steroids with "caucuses" (which are not used in a typical settlement conference.) And a mediator should NOT be negotiating. A mediator is neutral and facilitates only. (Although that can at times be a very active stance—as when a mediator must refuse to go forward due to ethical issues.)

Second-- the jargon used here is VERY off-putting. What is “nash equilibrium?”

As to a formula for success such as “make the first offer” two problems immediately emerge.

Frist--What defines success? Reaching an agreement? Or “getting the most money”? These are 2 very different goals! One BOTH can have... the other only ONE side can achieve.

The other problem is that there can be no formula, even if you define success as getting an agreement—although a willingness to take risks is intuitively more likely to accomplish agreement than unwillingness to do so. (And in social sciences wiliness to risk vulnerabity has been shown to be a prime condition for resolving conflict.)

So, all this arcane argot and posturing about framing and getting high numbers is not about resolving, it is about winning. Maybe if we lawyers could cultivate a mind sent of service and humility some of the lost nobility of our profession might be restored.

Ghandi advocated it, as did Earl Warren. We might drive fewer Hummers, or whatever the status car is now… but we might do some good. And maybe even.. be human.

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