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Philosophy of Mediation and Collaborative Law


The philosophy underlying principled negotiation in both mediation and collaborative law is the same as that of "games theory" enunciated by Nobel Prize winner John Nash. Nash demonstrated that the probability of successful outcomes is greater if adversaries cooperate than if they compete.

Litigation is position driven. It is adversarial. Representatives are ethically bound to get the most for their clients without regard to the effect to other parties or to the relationship between the litigants.

Moving from positions to interests is the first step in joint problem solving. The mediator or collaborative attorneys facilitate this shift in focus. Mediation concept has been successfully used in negotiation between (and among) individuals, corporations, governments, and nations. Collaborative law is used primarily with family law cases in the United States. Its application to other area of law is growing. Worldwide, collaborative law is used extensively in all areas of dispute resolution.


©2008 Ronnie C. McClure, PhD, CPA