COMMENTARY
narrows the focus for going forward with either adjudication or later mediation reconvened with different participants. Globalization, regional economic integration, and increased business activity amplify needs to resolve commercial disputes with greater efciency. Lawyers need to develop heightened awareness ofadjudication alternatives and the promise they hold to create mutually satisfactory, business interest based resolutions. Pre- or early-adjudication mediation, while not a panacea, supplies a valuable tool that enhances efcient commercial dispute resolution when used more often by lawyers and their business clients. Mediating builds on to rather than ignores existing lawyer skills needed to analyze fact situations, discern applicable law, and estimate adjudicatory outcomes. Mediating gives lawyers important roles in helping their commercial clients develop, compare, and then choose between accepting the best settlement option obtainable or initiating or continuing adjudication. Mediating also lets lawyers satisfy human impulses for resolution, healing individuals and organizations, and enabling commerce to function more harmoniously and productively.
Humans are profoundly social beings constantly inuencing and being inuenced by each other. Small scale activities by a few individuals can generate contagious behaviors that cross a tipping point and produce dramatic, immediate changes in social practices. The tipping point for commercial dispute mediation probably occurs when mediating happens so commonly that it becomes the regular option, the default preference unless particular circumstances suggest otherwise. As this analysis demonstrates, lawyers' resistance to mediating commercial disputes has not approached such a tipping point. But if more lawyers identied and surmounted the barriers generating their resistance to mediate, use of this benecial adjudicatory alternative might approach or even cross this tipping point.
Finally, mediating counters the perceptual and legal cultural, win-lose biases that inuence the strategic ways lawyers typically negotiate money-based issues. Most commercial disputes involve at least some negotiating over money and mediators add considerable value by helping participants deal with optimistically overcondent case analyses and the negative emotions that positional bargaining between differing perspectives frequently generates.
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