Beyond Brainstorming: The Special Barriers to Interest-Based Mediation, and Techniques to Overcome Them

Abstract:     
This article argues that the goals which dominate most teaching and training about mediation, such as relationship repair and integrative solutions, are much more difficult and less commonly achieved than is commonly admitted. It cites empirical data showing that relationship repairs are usually not present, and integrative solutions are usually not the focus, of settlements in commercial mediation. As a result students and would-be mediators leave training believing that interest-based bargaining will be central to their work, only to be badly surprised by what they encounter in commercial practice. The article goes on to identify the barriers which make integrative bargaining so difficult in substantial legal disputes, and suggests tactics mediators can use to overcome them.

Number of Pages in PDF File: 9

Keywords: Relationship repair, interest-based, negotiation, mediation, brainstorming, settlement, commercial mediation, integrative, facilitative, fixed-pie bias, distrust

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