bl1y

A few days ago I posted a hypothetical question about whether a mediator, after having learned (in confidence) both sides’ reservations points and concluding that no zone of possible agreement (ZOPA) exists, could the mediator tell the parties that mediation will be fruitless and end the process?

B’s answer is correct:

yes, with advance permission from the parties that caucusing could be used to determine whether there was a ZOPA, and, keeping all other details confidential, report back to them on that determination.

But, there’s a bit of analysis missing.  Sorry, B, you only get partial credit.  Remember, the job is to show that you can turn a simple yes/no question into hundreds of hours of billable work.

For those of you who are curious, the reason the mediator can’t tell the parties mediation would be fruitless is that doing so would reveal some bit of confidential information, namely that the other side’s reservation point lies beyond your reservation point.  She isn’t saying what the reservation points are, but she is still giving up confidential information which she is not allowed to do.

Likewise, a mediator should not encourage the parties to proceed with mediation, because doing so may reveal (or at least appear to reveal) information about the ZOPA.  Basically, the mediator should do nothing but keep the parties civil, and should not encourage any agreement.  Too bad that’s not how they actually train mediators.

So you can run and tell THAT, …home boy.

If I end up failing the Alabama bar it’s because I’ve spent more time working on things like this: The Six People You Meet at the Bar Exam than on learning substantive law.

Also, the morning of the MBE I woke up with really terribly heart burn and then puked about an hour later.  I may have been a little hungover, but not terribly so, and was less nervous than the previous days.  The thing is, I recognized the puke as a meal I’d eaten some 14 hours earlier.  Your stomach is supposed to empty after only about 5 hours, right?  Do I have a digestive disorder, or am I just paranoid?