8125

• UCREFRP Catalog Number: 8125
• Author: Moore, C. W.
• Title: Editor
• USFW Year: Series
• USFW - Doc Type: 1986
• Copyright Material: YES

$ The Mediation Process
pute resolution. The approach shifts from a private process to a
public one. In a judicial approach, the disputants usually hire
lawyers to act as surrogate disputants to argue their respec-
tive cases before an impartial and neutral third party, a judge
and perhaps a jury as well. These parties represent society's in-
terests and values. The judge (or jury) usually makes a decision
based on case law and legal statutes. The outcome is usually
win-lose and is premised on a decision regarding who is right
and who is wrong. Because the third party is socially sanctioned
to make a decision, the results of the process are binding and
enforceable. The disputants lose control of the outcome but
may gain from forceful advocacy of their point of view and by
a decision that reflects societally sanctioned norms.
Whittamore and Singson have both considered using a
judicial approach to resolve their dispute. Singson is willing to
go to court, if necessary, to obtain an injunction to prevent
Whittamore from establishing a private practice and to enforce
the no-competition clause in the contract. Whittamore is will-
ing to go to court to test the constitutionality of such a clause.
The legislative approach to dispute resolution is another
public and legal means of solving a conflict. It is usually used
for larger disputes affecting broad populations, although it may
have significant utility for individuals. In this approach, the de-
cision regarding the outcome is made by another win-lose pro-
cess-voting. The individual has only as much influence on the
final outcome as he or she, and those who share his or her be-
liefs, can mobilize. Legislative decisions, although they usually
decide negotiated compromises in the form of bills, still often
result in win-lose outcomes.
Whittamore has considered using this approach to resolve
his dispute. He believes there should be a law against no-compe-
tition contracts. Some of his patients agree with him. One pa-
tient has even suggested a campaign to pass a bill prohibiting
this type of contract.
Finally, there is the extralegal approach. The approaches
I have examined so far are either private procedures the parties
use alone or with the assistance of a third party to negotiate a
settlement, or third-party decision making that is either pri-