April 25, 2016
Court Order Style Mediation
Posted by David Zaring

I usually think of dispute resolution has a question of the delegation of control.  If you negotiate a settlement, you control the process and the decision.  If you arbitrate or sue, you delegate decision (and with courts, process) control to someone else.  Mediation is somewhere between those two poles, where you control the decision put let the mediator intervene in the process.

That's not really what happened in the Argentinian debt negotiations, which were recently concluded successfully.

Mediating in closed-door negotiations, Mr. Pollack cajoled both sides, at times resorting to theatrical moves like getting a court order to summon Mr. Singer, the founder of Elliott, to his office.

Mr. Pollack is a senior trial lawyer, one who doesn't particularly sound like an orthodox mediator.  Using a court order to force one of the parties to a mediation to negotiate is a bit more process control that most mediators usually have.  Anyway, a deal was reached, and I think you're supposed to say that a good mediator leaves everyone feeling a little bit unhappy:

Mr. Pollack’s rule of no pens and paper during crucial negotiations frustrated some, with two hedge fund managers complaining privately that the mediator was an obstacle to the settlement process.

If you like getting into the weeds of a settlement negotiation, I commend this story.

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