Today’s mediation was novel.
Today a lawyer’s analysis of the law made a difference. It doesn’t usually.
It’s often not the done thing to labor the law in mediation, because it’s all about interests, isn’t it? Not positions and certainly not legal ones. Right?
But today it was the break point in the mediation and it so turned the tide of the negotiation.
Not the usual litigation rehearsal directed at an imaginary judge. This was short, in plain and simple English, directed only at the decision makers over the table; “here’s how we see it, we have some soft spots but over all we’ll do okay if we have to go there and here’s why…”
And those decision makers understood. In private they quizzed their own attorney on some aspects of the law that they had heard from the other side, and why it differed from what they had been advised. Then they sufficiently understood the other side’s case so as to reality test their own.
So perhaps that’s what Russell Korobkin meant in his superb paper The Role of Law in Settlement when he says the law creates, shapes, and constrains the ability to exercise bargaining power in ADR processes, which in turn affects both the likelihood that disputes will settle out of court and the terms of settlements.
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