10 Replies Latest reply: Jul 30, 2019 5:32 PM by

Should Fact-Finders Focus on "What Might Have Been?"

Visibility: Open to anyone

I recently began a fact-finding report by observing:


In harmony with Arvid Anderson, I “do not look at the fact-finding process as an end in itself, but as an aid to the negotiation process.” Proceedings of the National Academy of Arbitrators, p. 110. (1968). What follows is not a judgment about what should have been done. Instead, this Fact-Finder, views his role as encouraging the parties to adopt a result that they might have achieved through informed bargaining. Put another way, the recommendation is but one of several possible deals that the parties could have, but did not, reach.  


In your opinion, what are the strengths and flaws of this approach?


Pat Westerkamp