The topic for this note comes from several inquiries—how can a mediator "make" one of the parties participate in good faith in a mediation process? Or, how can both parties be "persuaded" to make offers and counteroffers in attempting to resolve the dispute? Big questions—we could all write forever and you, the readers, would for sure be included in that "all." However, let’s take a "brief" look at this topic from a particular angle.

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!" Or, "customers rule the day" through a philosophy where one of the parties states, "we are a customer oriented organization and always (strive to) satisfy our customers." This latter scenario is sometimes viewed as being apropos since "there are not too many organizations with too many customers!" Or, some merely follow a pattern of acquiescence to the other’s offer. Or, why do some litigants "fail" to resolve a dispute before trial? Sometimes, it is merely the absence of bona fide offers by one or both to settle the matter. On and on, we have all been there, seen that.

But with a little more focus, 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"? During a mediation intake session, how does one address the perennial unequal bargaining power situation that may confront one of the parties? After all, some believe part of the intake function is to see if the dispute/parties is "ripe" for the mediation process. Usually/always, the parties can "never" be ordered to negotiate in good faith—it just doesn’t happen!

Some may be of the belief that parties must have an incentive—real or perceived—to commence the mediation process. This thought emanates from the notion that mediation is voluntary and the parties (always) remain in control of the outcome. But how can the negotiating atmosphere, or ADR process, be designed or structured to provide that "incentive" for the parties?

If one views this topic from what may be at the "end or conclusion," what do the parties see? Litigation, arbitration, or some other form of binding ADR as an option? Even with confidentiality in the unsuccessful mediation process what do the parties look forward to—expense, time and ultimately litigation? However, there is nothing firm as to the potential outcome! Some ADR system designs may have numerous non- binding steps in the process in order to encourage parties to voluntary resolve the matter but sometimes they "do not work." Even if the parties settle on the eve of trial/arbitration there may have been tremendous expense incurred in preparation for that trial/arbitration. And if it evolves into litigation someone loses with an adverse judgment and the parties lose as to the expense involved including the demise of that (usually) all-important relationship. Where there is a "special" relationship, e.g. friends, neighbors, customers and suppliers, the parties may want to explore an "old" remedy for this "old" problem.

Perhaps viewed from the "end," the best alternative is knowing that the "final" resolution is within a range of possibilities or knowing that the ultimate resolution will only be one possibility or another, i.e. an "either/or" resolution. This may "assist" in getting the parties to the dance but will they dance? In more cases than not, they do participate! Specifically, a modified form of "baseball arbitration" whereby the parties elect early-on to utilize this form of ADR to resolve their dispute if they come to an impasse. Briefly, this usually involves one arbitrator being empowered to determine the resolution of the dispute but within a set of parameters that the parties have stipulated in their ADR agreement/clause. This has been in use for several years in the sport of baseball as a methodology to arrive at owner/player salaries and resulting in fewer and fewer arbitrations!

Depending upon the exact form of baseball arbitration designed/selected, the parties will know what the end is. Briefly, one form of baseball arbitration is where the arbitrator is required to make an award by selecting only the final offer from either party—no "splitting the baby!" Another hybrid (usually referred to as "nighttime baseball") is where the arbitrator will not know how the parties have "finally" decided to "structure" the resolution of the dispute but the arbitrator’s post-hearing decision that is closest to the undisclosed party’s last offer will result in that offer being deemed the award of the arbitration.

This type of arbitration creates the atmosphere or requisite "incentive" for the parties to participate in the dance! They now know what the alternative is to voluntary resolution and with absolute certainty! This drives the parties to a voluntary resolution. Consequently, the parties make offers in good faith—since they are "encouraged by knowing the end process"—to negotiate or mediate!

Further, information sharing or fact-finding usually becomes a non-issue as does the quality of the data exchange (in the non-court negotiation/mediation environment). And, the offers are reasonable and realistic! If a party does not openly exchange information and actively "dance," they may have an extreme difficulty later in attempting to justify the reasonableness of their "position" if the matter does not settle. With baseball arbitration the parties are disincentivized to defer to someone else to decide their dispute!

Where some other form of binding ADR is selected or there is no ADR agreement and the parties look to litigation, the ultimate decision-maker of the dispute, e.g. arbitrator or judge in those situations, may be able to "pick" any justified resolution as "the" award. You may find, as others, that there is little incentive for the parties to make offers and counteroffers in these latter situations. However, baseball arbitration fills the void and answers the questions.

Having an "end-in-sight" may help the process you find yourself, either as a party or litigator. Are you looking for a method to "greatly ensure" the parties participate in good faith by making reasonable offers and counteroffers? Look to baseball arbitration as a possible answer—you may hit a winner!