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Mediation and the Infamous Orange Story

Imagine you are a parent. You have a son and a daughter, and they are fighting vociferously over the last remaining orange in the kitchen. The thoughtful parent that you are, you stop and quickly consider your options: You could take the orange and not give it to either child. You could give the entire orange either to your son or to your daughter. Or to be fairer, you could propose that your son cuts the orange in half, but his sister gets to pick which half each child gets. This should guarantee a very precise halving of the orange. This seems clever and equitable. However, you decide on something altogether different. You ask each child why the orange is important to each of them. Your son reports that he is really craving some fresh orange juice. Your daughter shares that she wants to make muffins and the recipe requires an orange peel to zest. The children have different interests, and in giving daughter the orange peel, and then giving son the remainder of the orange, each child’s interest can be 100% satisfied.

Mediators have been using some variation of this story since the dawn of time. The orange parable demonstrates different conflict resolution processes: cutting the orange in half would represent a distributive process. It is a zero-sum game that assumes scarce resources. Conversely, integrative mediation is a more enlightened, collaborative process where resources, needs, and interests are discussed. With a broader understanding of each party’s interests, it becomes possible to satisfy the interests of multiple parties. The story also illustrates how focusing on interests rather than positions can lead to creative solutions that satisfy both parties. It encourages communication, empathy, and collaboration in resolving conflicts. There is an inherent tension in every negotiation between competing to win and collaborating to get a deal done. However, placing the focus on the “why” instead of the “how much” may reveal creative opportunities where all interests can be satisfied.

Good mediators not only ask what people in a dispute want but also they seek to understand why. Because in understanding the why, new options can be brought to the table. Anything is possible at mediation. Litigation, on the other hand, provides only two options: either the orange is awarded entirely to one child, or it is cut in half by the trier of fact. It is important to consider your dispute resolution forum carefully. In doing so, you may just get the fruit that you need.[1]

[1] Credit should be given to mediator Lee Jay Berman and his Continuing Legal Education course, Adaptive Legal Negotiation Strategies: From Theory to Brackets.

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