Harvard Professor, Robert Mnookin, in Bargaining with the Devil, poses the question: should we ever negotiate with evil? At a presentation in Oxford recently, he suggested that we should probably do so more often than we might think. There should be a presumption in favour of negotiation. We should not allow our instinctive or moral intuitions to override pragmatic solutions and we need to guard against our tendency to look for reasons which appear to justify an ill-considered emotional response.
We do, however, require to be systematic in our comparison of expected costs and benefits objectively assessing our options, alternatives and interests. Sometimes, rationally, we may need to go to war (read his fine chapter on Churchill) or, in the dispute resolution world, litigate. But often the best option will be to find ways to negotiate, even in seemingly intractable situations (Mnookin assesses Mandela's brave decision to find ways to negotiate in South Africa).
He argues that it is good to use a neutral to help, whether a judge or a mediator. As mediator, it is important, Mnookin says, to let people choose--to say that the door is always open, that they can leave if they wish. A mediator should work with both sides to help them to make the most informed choice.
One of these choices is whether to seek some form of evaluation from the mediator. Evaluation can be expressed as an assessment of opportunities and risks, decision trees, lists of strengths and weaknesses, and so on, but not as a view on who will win or lose. A mediator should remind people that this is only one perspective; if they want a definitive view, they should go to the judge!