I had the pleasure of speaking to American University's Intro to Law Class recently, led by Professor Matthew Pascocello. As an icebreaker, we began with three role play exercises. Sandy and Al have broken up and they need to divide up their stuff, including a TV and DVD deck. Eight student volunteers participated (three Sandys, three Als, an arbitrator, and a mediator). The first role play was a negotiation with no third party, the second was an arbitration with the addition of an arbitrator, and the third was a mediation with the addition of a mediator. The purpose of the role plays is not to teach the students how to negotiate, arbitrate, or mediate, but rather to experience the differences and to understand that each process can produce a different outcome.
I also discuss in my remarks the differences between negotiation, mediation, arbitration, collaborative law, and litigation, as well as how to address emotion in cases that are highly charged. Last, I talk about the importance of being prepared in advance for a dispute that may arise by thinking about what method of dispute resolution should be used. Put specific language in business and employment contracts and prevent disputes from escalating by the use of interest based negotiation. Should a dispute intensify, I recommend that mediation be used to resolve and settle the dispute rather than adversarial methods.
Here is a summary of what I like to call the ladder of dispute resolution:
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.