The Role of Law in Legal Disputes
5 Pages Posted: 10 Aug 2021 Last revised: 13 Aug 2021
Date Written: August 8, 2021
This article uses Oliver Wendell Holmes's famous definition of the law as “prophecies of what the courts will do in fact” rather than rules expressed in statutes, case law etc. It discusses two aspects of law. First, it compares perspectives about law in litigation, mediation, and collaborative practice. Then it provides a typology of ways that practitioners can discuss the law in any of these processes. These include being a critical standard in assessing possible agreements, one standard of fairness, society’s default standard of fairness, presumptive standard for decision, decisive standard, and no standard. It concludes with suggestions about how lawyers and mediators can use the law to help their clients.
Keywords: law, negotiation, mediation, collaborative law, collaborative practice, positional negotiation, ordinary legal negotiation, shadow of the law, BATNA, bottom line, reservation point, fairness, positions, interests, intangible costs, court outcomes, Holmes definition of law
Suggested Citation: Suggested Citation