from $0.00
SCENARIO:
Roy Thomas, Director of Athletics at Benton College, was at the Benton College gymnasium to attend an intercollegiate wrestling match when he fell ten feet to the gym floor. He injured his elbow, shoulder and back. He was transported to the hospital in an ambulance, hospitalized for a day, and bedridden at home for for a while after that. After intensive therapy, Roy’s physical condition was “largely resolved.” A therapist prescribed use of a special exercise device if the affected areas stiffened up. However, Mr. Thomas chose an alternative and expensive treatment method.
Mr. Thomas has suffered three relapses in the last year, when he was laid up for a week. He claims difficulty concentrating and sleeping, as well as negative effects on his work and sexual relationships with his wife. Thomas and his wife filed suit against Pro Bleachers for negligent design, manufacture, and installation of the bleachers. Pro Bleachers, through its insurer Pinnacle, has denied liability. Counsel has suggested that after initial negotiation and stalemate, the parties use an ADR procedure to attempt to settle the case.
Note: Participants should be arranged in groups of three. The third person in each group will either be a mediator, an arbitrator with a potential bias for the defense, or an arbitrator with a potential bias for the plaintiff.
MAJOR LESSONS:
- This exercise presents the opportunity to use a careful analysis of the interests of the parties to craft an agreement to solve a dispute.
- This game is an opportunity to compare mediation and arbitration — including arbitration by arbitrators with different backgrounds. Interesting discussion should ensue from the comparison of the different groups.
- The exercise allows individuals to reflect on the legitimacy of claims and the role that “fault” plays in the negotiation process.
- The need for a BATNA to maximize the results.
- This exercise illustrates the danger of single-issue bargaining. Should participants limit the negotiation to a monetary dispute, the participants will be locked in a contest of wills. Hard bargaining may well emerge, resulting in a situation in which one party’s gain will ensure a loss to the other party.
If you prefer a mediation-only version or an arbitration-only version, please contact the Clearinghouse by phone at 800-258-4406 or by email at chouse@law.harvard.edu to place a special order. Otherwise, you will be given equal numbers of mediator, Arbitrator Siewell (potential defense bias), and Arbitrator Blake (potential plaintiff bias) roles.