Adapted from “The Mediator as Team Adviser,” by Stephen B. Goldberg (professor, Northwestern University), first published in the Negotiation newsletter, May 2006.
When faced with a trial, a corporation sometimes engages one law firm to represent it in court and a second law firm to explore settlement possibilities. According to conventional wisdom, the second law firm should be more capable than the first of dispassionately assessing the parties’ legal strengths and weakness and communicating that view to the client, which can then determine an appropriate settlement position.
Yet many negotiation experts would argue that reaching settlement is less a matter of determining which disputant is “right” (or more likely to prevail in court) and more a matter of exploring disputants’ underlying needs or interests in search of a mutually agreeable settlement. This approach to resolving disputes is not necessarily the strength of law firms—but it is a core competency of experienced mediators.
Thus, an organization faced with significant litigation might not content itself with obtaining legal advice to determine its settlement posture. It could also employ an experienced mediator for assistance in: (1) uncovering its interests in the pending litigation, (2) prioritizing those interests, (3) thinking about the interests and likely priorities of the other parties, and (4) developing an organizational settlement position that accounts for these issues.