ABSTRACT
The previous chapter also discussed adversarial negotiation and it should be noted that mediation is premised on the idea of discovering a party’s interests and option generating based on those interests until a suitable settlement is achieved that all of the parties to the dispute can live with. The idea of conducting separate sessions, a procedural issue to be dealt with below, is to investigate beyond positions enabling the mediator and the parties to discover the real interests that are driving the dispute. Therefore, it can be said that mediation is based on parties negotiating in a principled way as opposed to an adversarial way. However, it is important to understand that at some point in mediation it may be appropriate to employ adversarial negotiation: for example, at the conclusion of mediation where other issues have been resolved based on satisfying the interests of the parties to the dispute and where the only remaining issue is the quantum of an amount agreed upon to be paid by one party to the other. In such circumstances, it may be appropriate to use adversarial negotiation to settle the question of quantum on that final issue. In this respect it is possible for principled and adversarial negotiation to be used hand-in-hand.
