A LT E R N AT I V E D I S P U T E R E S O L U T I O N
BY CHARLES E. RUMBAUGH
Having Trouble Getting to the Negotiation Table? Try Baseball Arbitration
(Part One of a Two-Part Series)
A fundamental question arises in some negotiations on how either party, or a mediator, can “make” all the parties participate in good faith in a negotiation/mediation process? Or, how can the parties be “persuaded” to make offers and counteroffers, as they attempt to resolve a dispute or any open items that sometimes arise in contractrelated matters? These can be big and difficult questions. In this first of a two-part series, we’ll take a brief look at this topic from a particular angle and subsequently offer some “applications.”
Several scenarios come to mind. First, there is the modern day version of the “Golden Rule,” i.e., one of the “significant” rules in negotiations: “The one with the gold makes the rules.” Another is the so-called “customers-rule-theday,” through a philosophy where one of the parties states the following: “We are a customer-oriented organization and always strive to satisfy our customers.” The latter scenario is sometimes viewed as being apropos in many situations, since there are not too many organizations with too many customers! Then, there is the approach of having a pattern of acquiescence to the other’s offer. All of these approaches are usually deemed “minor,” however, in relative importance to the acquiescing party. At the extreme, why do some litigants fail to resolve a dispute until just before trial? Is it due to the mere absence of bona fide offers by one or both to settle the matter? On and on—most of us have “been there and seen that.”
Let’s focus a bit more here. What about the situation where one of the parties would sincerely like to participate in the “negotiation dance,” with offers being exchanged, but the other party does not perceive a “benefit,” and therefore decides to forego the “dance?” For...