5.12 Application To Homestead

In order to understand this point the lawyer needs to think about how a mediator might facilitate a different kind of resolution of the dispute between Homestead and Best Homes. To Homestead, in problem I, focusing on broader client goals and objectives might lead the lawyer to recommend and the client to choose mediation.

The Homestead client might have the following, somewhat conflicting goals and objectives stated as follows:

· The client wants an injunction, and wants any damages to its reputation and sales that have resulted and will result from Best Homes conduct.

· The client wants to compete fairly in the market place, and wants Best Homes to stop unfairly competing by telling lies about the client to consumers.

· The client wants to do business without needlessly and inefficiently litigating which will raise the costs and create animosity that late may further damage Homestead’s place in the market place.

Whereby employing a classic position bargaining strategy, it is unlikely that the parties will think to come armed with the information to engage in broader problem solving. Even if the parties tried to implement a problem solving strategy in the negotiation, without buy in up front, the early sessions are likely to be unproductive, until the bargainer is prepared on a broader understanding of the client’s goals, or, in the worst case, feign interest in problem solving, only to discover weaknesses in Homestead’s case.

Suggesting a facilitative mediator creates a different incentive. Parties will likely be required to be present. The mediator can ask critical questions of each side, and brainstorm for various alternatives. Other broader business concerns might be explored, and agreements might be reached which helped the parties fairly work together to promote each side’s legitimate interests. ( Of course this raises interesting anticompetitive possibilities that the lawyers may advise are illegal, but a knowledgeable mediator should know how to steer clear of illegal solutions.)