I've been thinking jurisprudential thoughts for the last couple of weeks because I'm finishing the second draft of the ABC's of Conflict Resolution and because I made the terrible error of trying to cover the history of dispute resolution in Blawg Review # 234 (as Ed. commented: "war and peace? best of luck with that!)
Yesterday, I finished J is for Judge and L is for Lawyer (and moved on to the revision of P is for Paranoid). So I was thinking a lot about the rights, obligations, and remedies business; adversarialism and its discontents; and, competitive-position based negotiation. Then I had dinner last night with Stephanie West Allen of Idealawg and Brains on Purpose (she is here for a neuroscience conference at UCLA) and we talked about the theory and practice of mediation -- separate caucus position-based facilitated distributive and competitive bargaining vs. client-centered interest-based transformative mediation.
My brain hurts.
And I still have to revise K is for Kin (-selection); T is for Terrorist; and V is for Victim before the week is out.
So I'm just going to provide you with something to think about from a year 2000 article provocatively entitled Forget the Mechanics and Bring in the Gardeners: an Exploration of Mediation in Intellectual Property Disputes.
Irrespective of the source of the conflict between the parties, it must be formulated in court as a disagreement over norms and/or over factual matters... The verdict of the court has an either/or character; the decision is based upon a single, definite conception of what has actually taken place and upon a single interpretation of the legal norms.
Fisher & Ury, supra note 53 at 4-5: "When negotiators bargain over positions, they tend to lock themselves into those positions... As more attention is paid to positions, less attention is devoted to meeting the underlying concerns of the parties... Bargaining over positions creates incentives that stall settlements... Positional bargaining becomes a contest of will" At 4-5.
As Julie Macfarlane reiterated, an emphasis on litigation reflects, ".. .the dominance of a 'rights' culture, seen in both the justice system and public attitudes towards conflict and reconciliation." The court therefore, focuses on rights, and winners and losers, while mediation is designed to focus on parties' interests' and mutual gain. Julie Macfarlane, "The Mediation Alternative" in Julie Macfalane, ed., Rethinking Disputes: The Mediation Alternative (Toronto, ON: Emond Montgomery, 1997) at 5.
The courts' focus on rights affects the negotiation strategies that parties utilize. As I mentioned, most of the early texts used in law schools to teach negotiations, for example, focused on the "competitive strategy" and at least implicitly endorsed such a strategy. The competitive negotiator tries to maximize the benefits for her client by persuading her opponent to settle for less than the opponent would have settled with at the beginning of the negotiation. The underlying premise of the competitive strategy is that all gains for one's own client are obtained at the expense of the opposing party. In other words, competitive negotiators see the negotiation as a competition over a fixed pie. As such, these negotiators work to convince their opponents that their settlement alternative is not as advantageous as they previously thought, in turn lessening the opponent's confidence in their case and thereby inducing them to settle for less than they originally asked. The competitive negotiator therefore, moves "psychologically against the other person," with behaviour to unnerve the opponent,68 and may employ very strategic tactics:
• arrange to negotiate on their own turf;
• balance or slightly outnumber the other side;
• designate one of their demands as a "precondition";
• make the other side tender the first offer;
• make the first demand very high;
• make the other side make the first compromise;
• invoke law or justice;
• be tough -- especially against a "patsy;"
• appear irrational where it seems helpful;
• claim that they do not have the authority to compromise; and
• will themselves promptly reduce the agreement to writing.69
Not surprisingly, competitive negotiators expect similar tactics from their opponents and therefore mistrust them.
It is interesting to note that law, through its legal principles and male's historical domination of the legal profession and the public sphere more generally, may have in fact facilitated these competitive negotiation strategies. These competitive negotiation strategies, lined with deception and mistrust, seem fuelled, or at least reinforced, by certain common law principles like "caveat emptor", which warns, "let the buyer beware." Although there is no consensus when caveat emptor came into being most agree that it was the case of Lopus, which had been credited as the originator of the doctrine of caveat emptor under English common law. The decision was recognized for the proposition that English courts were not interested in enforcing the fairness of an exchange because they thought contracting parties should handle such matters themselves. Couple legal principles like caveat emptor with how men have been socialized to be competitive and to play a prominent role in the public sphere and we begin to see how this competitive negotiation strategy came to flourish. Put plainly, the courts and the legal system in general seem to facilitate competitive negotiation tactics.
For anyone who's made it this far, hopefully, LexBlog has gotten my comment section working again for you to leave your thoughts.
If you'd like to better understand what's really going on in separate-caucus mediation and, by the way, also in famous "conversation" happening in the blogosphere, do check out the New Yorker's Cass R. Sunstein and Political Rumors on the Internet by Elizabeth Kolbert. Excerpt below and my own short article on conspiracy theories in the adversarial system here.
ODR WEEK 2009 Web 2.0: Going from OH? To KNOW!
The following
That person ringing your virtual doorbell is not -- I repeat not -- someone trying to sell you magazine subscriptions or somebody's else's religion. No! That's the incredibly bright, accomplished and talented Erica Bristol delivering up-to-the-minute news and analysis on the most important intellectual property issues of the day. 
