Many decades ago, when I was in law school, I learned about the “ripeness doctrine” in my Constitutional law course. Simply stated, this doctrine limits the power of a federal court to adjudicate cases that might otherwise fall within its jurisdiction. It concerns ““the timing of judicial intervention and prevents federal courts from “entangling themselves in abstract disagreements by adjudicating disputes too early.” (https://constitution.findlaw.com/article3/the-ripeness-doctrine.html)

A 1967 U. S. Supreme  Court case sets out two factors that must be evaluated to determine whether a dispute is “ripe” and thus should be decided:” “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration” until a later time.””(Id.) For example, a case may not be ripe for the courts to hear and decide a matter  if it is based on future events. Such events may never happen! (Id.)

Is this true for mediation? Are some cases mediated before their time? The staff at the Harvard Program on Negotiation blog  recently wrote about “Ripeness Theory in Dispute Resolution: Seizing the Day” (September 4, 2023). Using the Minnesota Orchestra strike in 2012 as an example of what went wrong, the staff writer notes that the strike went on for over a year. When the parties did reach a deal, the musicians agreed to a new contract with smaller pay cuts than they had demanded, and they also agreed to pay more of the costs associated with their own health care. (Id.)

Why did the strike last so long and not help the musicians reach the results they wanted? The blog notes at least  three mistakes:  the musicians refused to accept that they may have been part of the problem associated with the financial crisis of the symphony orchestra, they continued to escalate the conflict and refused to mediate. (Id.)

Thus, an impasse was quickly reached and remained for too many months!

How to bring the parties back together? In his book entitled, Negotiating Life: Secrets for Everyday Diplomacy and Deal Making , Tufts University professor Jeswald Salacuse sets out the “ripeness theory” for dispute resolution framed by William Zartman: “(1) The parties are experiencing a mutually harmful stalemate; and (2) both sides see a way out of the conflict. “ (Id.) (Sounds a lot like the conditions for evaluating “ripeness” for court adjudication!)

Salacuse sets out guidelines to apply the ripeness theory and move the matter towards settlement:

  1. Examine perceptions. How each party perceives the conflict affects whether they will negotiate, so continually assess whether your perceptions and those of the other party agree with reality. That might mean jointly commissioning an impartial financial analysis or providing direct evidence to alleviate the other party’s concerns.
  2. Recognize that perceptions change. Because our perceptions of a conflict can change, view long-standing disputes as malleable rather than intractable. 
  3. Maintain contact. Remain in contact with the other party in your dispute. Encourage them to accept that your existing approaches aren’t working, that the status quo is too costly, and that negotiating offers hope of improvement. 
  4. Capitalize on leadership changes. The departure of a divisive leader on one side of the conflict can offer new hope for resolution. Take advantage of such changes by advancing a new offer to negotiate or making a new settlement proposal, working through a mediator if necessary.  (Id.)

Perceptions change over time and by maintaining contact, what was once impossible, if not intractable, becomes possible and tractable (i.e., easy to deal with!).

… Just something to think about.

 

 

 

 

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