Feasibility of Compromise Sample Clauses

Feasibility of Compromise. As noted above, mediation is a voluntary and consensual process and so dispute settlement in mediation inevitably involves a “...search for compromise”.119 A mediator aims to facilitate the process of compromise by encouraging the parties to distinguish between their respective 114 Boulle, Mediation: Principles, Process, Practice, p9. 115 Xxxxxxxxxxx X. Xxxxx, The Mediation Process: Practical Strategies for Resolving Conflict, Second Edition ed., The Jossey-Bass Conflict Resolution Series (San Francisco: Jossey-Bass Publishers, 1996), p62. 116 Xxxxxxxxx, "Environmental Mediation Theory and Practice: Challenges, Issues, and Needed Research and Theory Development," p277. 117,Ibid. 118 RESOLVE, "Environmental Mediation: An Effective Alternative?," p28. positions and interests, thus facilitating compromise. A position may be defined as a specific outcome or action, which a party perceives as meeting its immediate needs.120 It is typically concrete in nature and as a result, minimally negotiable. In contrast, a party’s ‘interest’ refers to their desires, fears, values and concerns that they hope to advance. An interest is a broad concept rather than a specific action or outcome, which fosters discussion and enables compromise as it may be satisfied by a range of potential outcomes. By assisting the parties to distinguish between their positions and interests, a mediator may identify potential areas for compromise that were not apparent before. Given that mediation is premised upon mutual compromise, one condition necessary for successful mediation is that some compromise is actually possible between the disputing parties. Consequently, one category of typically unmediable disputes is that where no common ground exists between the disputing parties. Such disputes, which may involve conflicts of fundamental values, have also been described as “either-or” disputes, a common example being the construction of a nuclear reactor. Disputes concerning broad matters of policy or cases where one or both parties sought to set an important legal precedent would also be less amenable to mediation121. The possibility of compromise may also be reduced where a history of contentious or intensely hostile relationships between the opposing parties exists.122 A dispute may thus only be considered mediable only where some common ground or common interest exists between the disputing parties, even though initially confrontational positioning may obscure this.123 Initially instrangie...