Scratte v Scrat: Mediation

For a possible solution to this issue, I would propose to both Scrat and Scratte that they should consider mediation. It is a reasonable first step to attempt to avoid the cost, time, stress, and win-lose outcome of litigation.

Mediation is a voluntary process, so Scrat and Scratte would have to agree to it, as well as agree to a mediator. The mediator will not make their decisions for them, but will assist in the negotiation process by directing and managing the negotiation. Whether Scrat and Scratte negotiate for themselves or they have representatives, someone will be negotiating on behalf of each of them. The outcome will not be binding unless the two decide to put any negotiated outcomes into a signed contract. This allows for a lot of flexibility, but will assist in controlling the parties' emotions by providing some ground rules, improving the quality and quantity of communication, and changing repetitive negative behaviour such as the behaviour we have observed in the videos posted in the facts above. These are all important elements in mediating a relationship conflict, as per Moore (C Moore, The Mediation Process, 2d ed (San Francisco: Jossey-Bass, 1996) at 60-62).

There are a few things that will affect the success of mediation. Firstly, the use of principles must be examined and principled rigidity must be overcome. Secondly, it will have to be determined whether the “pie” (in this case, the possession of the Acorn) can be expanded, or just divided. And thirdly, things that deter settlement should be analyzed so that they can be avoided.

The first hurdle here will be overcoming principled rigidity. This idea is discussed by Pruitt and Carnevale who consider the use of principles in negotiation. Principles can be useful, such as a principle of fairness, where both parties agree that the principle applies and apply it in the same way. But it is a problem where parties do not agree as to what principle applies, and and/or do not agree in its application. Here, we have two principles – Scrat feels Acorn was his first, and it is only fair that it be returned to him. He will be able to find objective precedents as to the fact that this is fair and just. Scratte, however, will disagree – she will argue that “finders keepers” is the fair principle to apply, and she also will be able to find objective precedents to show that this principle is fair and just. Both parties are likely to be rigid in their views. (D Pruitt and PJ Carnevale, Negotiation in Social Conflict (Open University Press, 1993) at 121-126).

In this case, the negotiator (if applicable) or mediator will have to persuade each party that the other's principle is equally valid to their own. The negotiator or mediator will also want to shift the discussion away from principles, and refocus discussions on the concrete issues at hand, pointing out that finding a solution or compromised based on those issues is more productive than arguing in principal. (Pruitt, 1993).

The second issue is whether the “pie” in issue, here the Acorn, can be expanded or just divided. Negotiation is like the splitting up of a pie: the bigger the slice one gets, the less of the pie is left for the other. But the job of negotiators is not necessarily to get the largest slice of the pie, it is also to try to expand the pie, thereby providing more for everyone. The mediator could have a role in pointing out expansions to the pie as well. (RH Mnookin, “Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict” (1993) 8:2 The Ohio State Journal on Dispute Resolution at 239). In this case for example, rather than say dividing who gets the Acorn, or negotiating sharing strategies, perhaps the idea of attempting to locate another acorn could be discussed.

The final issue that should be considered involves avoiding things that can deter attitudes that promote settlement. These include strategic barriers and reactive devaluation (Mnookin 1993: 238-249). Strategic barriers are related to the previous point. They arise from a tension between “showing one's hand” to the other party to maximize joint gains, and withholding information in order to maximize one's own gains against the other. The risk taken in showing one's hand is that the other party may not reciprocate, and may use it to their advantage. Scrat may not want to tell Scratte, for example, that he loves the Acorn, but he loves her too, and if she loved him back he would happily give her the Acorn, because Scratte could take advantage of this situation. A solution to this can be the mere presence of the mediator, who may be able to promote the discussion of these issues using communication and caucusing (discussing with each party one on one).

Mediators can also help diffuse the issue of reactive devaluation. This occurs when a party feels that an offer from the other side is insufficient just because it was offered. It reflects the concept that if it is a good offer for the other party to make/accept, then it must be a bad offer for the party in question. We saw an example of this in the video clip where Scrat gave the Acorn to Scratte initially, but when she accepted it, he changed his mind and wouldn't let it go. Mediators can help with respect to this by acting as a buffer between the two parties so that they are dealing through the mediator, instead of directly with each other.