MEDIATION AND POST-ELECTION LITIGATION intractable "positions."30 Once a full set of interests is on the table, the move to helping parties generate value-creating options is the mediator's bread and butter. But, as noted at the outset, critics of mediation in election disputes point to the problem that elections are a zero-sum game. How can you create value when the whole point of an election is to pick a winner? The drawbacks to using mediation in this context are not limited to this puzzle. Some of mediation's biggest advantages in other contexts are problematic when applied to election disputes. The principle of confidentiality provides a perfect example. For those of us who have tried to explain the value of mediation to disputing parties, one of the biggest selling points is confidentiality.3I Virtually any litigant can see value in the prospect of avoiding airing dirty laundry in court by privately sitting down with a mediator to resolve the terms of the dispute. It is well recognized, however, that for certain kinds of disputes shutting out the public eye can be quite problematic. For example, Rojas v. Superior Court32 involved a complaint that owners of an apartment building concealed the building's toxic mold problem. The tenants sued to compel production of material from an earlier mediation between the owners and developers, who both saw it in their best interest to keep the existence of a toxic mold problem from the tenants. The lower court constructed an exception to mediation confidentiality to allow plaintiffs access to the mediation documents. The California Supreme Court reversed, finding confidentiality in mediation communications absolute as it applies to 30 FISHER & URY, supra note I, at 42. The authors lay out the difference between "positions" and "interests" by observing that "behind opposed positions lie shared and compatible interests ...." !d. The work of the mediator is to identify those interests and to help the parties create options that satisfy those shared interests. Earlier, Mary Parker Follett described the difference usefully: In the Harvard Library one day ... someone wanted the window open, I wanted it shut. We opened the window in the next room, where no one was sitting. This was not a compromise because there was no curtailing of desire; we both got what we really wanted. For I did not want a closed room, I simply did not want the north wind to blow directly on me; likewise the other occupant did not want that particular window open, he merely wanted more air in the room. Mary Parker Follett, Constructive Conflict, in PROPHET OF MANAGEMENT: A CELEBRATION OF WRITINGS FROM THE 1920s 67, 69 (Pauline Graham ed., 1995). 31 See JOHN W. COOLEY, THE MEDIATOR'S HANDBOOK 6 (2d ed. 2006) (listing nonpublic nature as the first in a list of the benefits of mediation). 32 Rojas v. Superior Court, 93 P.3d 260 (Cal. 2004). 331 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 331 2012