“But the law says I am entitled to…”

Invariably, whether in a mediation or collaborative conference, one of the folks involved will make this statement. While mediators and attorneys are used to hearing it, that statement can portend the beginning of the end of the process. But why, you may ask?

First, it is important to note that one of the factors that is always at play in a negotiation conference is statutory and/or case law.  The internet has made access to legal precedent easy. Today, clients of all types often come to the negotiation armed with some sense of what the law says on the issue, whether they have been counseled by a competent attorney or not.  I say “armed” because, unfortunately, the information becomes tantamount to a weapon in a battle. It is strategically held and deployed when it is likely to have its greatest bombastic effect.

Second, if the nature of the conversation is such that there is both the opportunity and an apparent ability to make such a statement, there are much larger issues at hand. Do the parties truly understand and embrace the pledge that underlies these types of negotiations? Is the conversation being guided by interest-based negotiation principles or are we stuck in “position”? Is one party feeling a power imbalance and reacting in defensiveness?

While the law is always one of the potential grounding points for a negotiated conference, there are many other considerations that a participant should factor when determining whether a proposed resolution is just, reasonable and livable.

Mediation and Collaborative Law allow for, in fact are built on, the principle that one-size need not fit all. What you are entitled to and what you might want or need from a resolution can be very different.

Inventing options and seeking full-color resolutions that offer mutual gain are what make Mediation and Collaborative processes so much more desirable than the traditional, adversarial courtroom focused approach to dispute resolution. Don’t box yourself in.

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