“The concept of [maximizing the mutual benefit of the parties in mediation] is demonstrated by the anecdote known as the mediator’s orange. It has been fondly told to generations of training courses and begins with a mother going into the kitchen to find her two daughters arguing over the last orange in the fruit bowl. She intervenes, taking the fruit from the children and cutting it in half. Each daughter is given half the orange.
One daughter goes into the lounge and sits down to peel her half of the orange. She throws the peel in the bin and eats the fruit. The other daughter stays in the kitchen, carefully removes the peel from the fruit, throws the fruit away and uses the peel to bake a cake.
The knife represents the law: the equal division was a legal solution. But the outcome could have been very different had the mother asked: “Why do you want the orange?” Had she done so and each daughter answered honestly, then both could have had 100% more. The mother could have added value at no cost – with perhaps the chance to gain even better involvement with her hungry offspring.
It is a powerful if apocryphal story but one that illustrates the strength of the why questions so favoured by mediators: and often missed by negotiators.”
The mediator’s orange
Mediation & Arbitration
Private Arbitration and Labour Disputes
Refusal to mediate: cost consequences
Arbitrator’s liability for negligence
Presentation at ICC Arbitration Day 9 May 2019
Lecture Justice Training Centre 12 August 2020