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04/15/2026

What is Alternative Dispute Resolution?
Familiarize yourself with mediation, arbitration, and a hybrid approach using alternative dispute resolution.
By Katie Shonk — on April 15th, 2026 / Dispute Resolution

So, you’re stuck in a serious dispute, but you’re desperate to avoid the hassle, uncertainty, and expense of a court case. You’ve heard about alternative dispute resolution, yet you’re not entirely sure what it involves or how it might help. Before you resign yourself to litigation, it’s worth taking a closer look at these practical, often more efficient pathways for resolving conflict outside the courtroom.

What is alternative dispute resolution? Alternative dispute resolution, or ADR, is a process in which a neutral third party—a mediator or arbitrator—helps parties who are embroiled in a dispute come to an agreement. Mediation and arbitration (see also Arbitration vs Mediation and the Conflict Resolution Process in Alternative Dispute Resolution (ADR)) are types of alternative dispute resolution because they offer an alternative to litigation.

In this article, we describe the two basic types of alternative dispute resolution in addition to introducing a mediation-arbitration hybrid that may be beneficial in resolving certain disputes.

What is mediation?

In mediation, a neutral third party tries to help disputants come to a consensus on their own. Rather than imposing a solution, a professional mediator seeks to assist the conflicting sides in exploring the interests underlying their positions. Working with parties together and sometimes separately, mediators try to help them hammer out a resolution that is sustainable, voluntary, and non-binding.

Mediators can help disputants break an impasse in the following ways, according to Harvard Law School professor emeritus Frank E. A. Sander:

1. Finding additional information that parties were unwilling to share with each other;
2. Overcoming parties’ resistance to communicating and reaching an agreement by presenting offers to both sides;
3. Contributing impartial, specialized expertise; and
4. Brainstorming options to find a resolution that satisfies both parties.

Mediators can be largely facilitative, engaging primarily in shuttle diplomacy and keeping their own views hidden. Other mediators are more evaluative, offering their own knowledge and opinions to guide parties toward agreement. “The most skilled mediators blend the two techniques according to the nature of the problem and the stage of the mediation,” writes Sanders in an article in the Negotiation Briefings newsletter.

What is arbitration?

In arbitration, the other primary form of alternative dispute resolution, a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.

Disputants can negotiate virtually any aspect of the arbitration guidelines, including whether lawyers will be present and which standards of evidence to use. Arbitrators hand down decisions that are usually confidential, that is binding, and that cannot be appealed. Arbitration tends to be more expensive than mediation but less expensive than litigation.

Disputants can give the arbitrator the authority to determine who will win the case and what the award, if any, will be. The following are three specifics types of arbitration that are available to disputants, as described by Sander:

1. Hi-lo arbitration. In hi-lo arbitration, parties attempt to reduce the risk of making extreme decisions by agreeing ahead of time on the upper and lower limits of any monetary award that the arbitrator will grant. This strategy limits the risk to parties who are worried about giving total control over the outcome to an arbitrator.

2. Final-offer, or baseball, arbitration. In final-offer arbitration, which is often referred to as baseball arbitration because of its use in Major League Baseball contract disputes, both parties present a last, best offer to the arbitrator, who must choose one of the two offers. Because final-offer arbitration typically seems risky, it often gives parties incentives to negotiate a reasonable resolution. As a consequence, it increases disputants’ participation in a negotiation while still ensuring a decision will be reached if they are unable to agree. This type of arbitration is often used in labor negotiations for police officers and firefighters because communities cannot tolerate the risk of a strike arising from an impasse with such essential employees—an argument that some make about professional baseball players as well.

3. Tripartite arbitration. In tripartite arbitration, there are three arbitrators, one named by each party and one chosen by both of them. Tripartite arbitration is useful in highly complex cases where the parties want advice from three individuals with differing expertise (such as a lawyer, a businessperson, and a scientist). It is also used in cases in which the parties lack full confidence in a neutral arbitrator and prefer an arbitrator who will forcefully represent their interests.

What is med-arb?

An often-overlooked alternative dispute resolution process is med-arb, a mediation-arbitration hybrid. In med-arb, disputants hire a neutral mediator. If she is unable to resolve the dispute through mediation, she puts on her arbitration hat and renders a decision, explains Sander.

While this blended process ensures that parties will reach a resolution, it brings with it a certain level of risk. Disputants may be reluctant to be candid with a mediator who could later use the information they share against them in the arbitration phase of the process. They may be able to avoid this objection by having different individuals filled the mediation and arbitration roles, though this solution comes requires additional time and cost.

In sum, mediation, arbitration, and med-arb offer compelling alternatives to litigation the next time you are embroiled in a conflict that seems impossible to resolve on your own.

04/07/2026

Dispute Resolution Case Study: Conflict on the High Seas
Conflicts over scarce resources are notoriously difficult to resolve. In dispute resolution, long-term thinking can help parties recognize their common goals, a case study from Europe suggests.

When parties are fighting over scarce resources, dispute resolution can prove especially difficult. A negotiation impasse may prolong the conflict, and agreements might need to be continually revisited. A 2018 dispute between French and British fishermen in the English Channel offers an illuminating case study of the importance of keeping long-term negotiation goals in sight.

Mutiny over Bounty
In Europe, the European Union sets fishing regulations for most species of seafood, but individual nations govern their fishermen’s catch of scallops.

French scallop fishermen generally operate small, family-owned boats close to shore and sell the scallops they dredge live, Dmitri Rogoff, the head of Normandy’s fishing organization, told Reuters. To prevent overfishing, France bans its fishermen from dredging scallops between May 15 and October 1.

By contrast, the British fleet includes larger ships that dredge scallops in deeper international waters, then freeze and process the catch onboard. In contrast to France, the United Kingdom allows British fishermen to dredge scallops year-round. British vessels can operate in the expansive Baie de la Seine, a 40-mile French inlet of the English Channel, as long as they stay 12 miles from the French coast.

The French fishermen have long resented the presence of British boats in the bay, urging them to join in halting scallop dredging during the summer to allow stocks to replenish. Frustrations escalated in 2012, when about 40 French boats tried to scare away five British vessels by surrounding and banging into them.

A Leaky Agreement
In response to the escalating tensions, fishermen from both sides began negotiating annual agreements that limit large British ships from dredging scallops in the Baie de la Seine and give several scallop permits to the French.

However, the agreement notably did not include restrictions on small British ships. In 2018, the French said that the British had “undermined the spirit of the deal by sending more and more small vessels” to the area, according to Reuters. Rogoff claimed that British fishermen ramped up scallop trawling and avoided renegotiation. French fisherman Anthony Quesnel complained to Agence France-Presse that the British scallop fishermen “work a month earlier than us and they leave us the crumbs.”

Fishing for a Solution
The conflict eventually reached a boiling point. In August 2018, a French TV crew captured video of approximately 35 French boats banging the hulls of about five British scallop boats and setting off smoke bombs. No one was injured in the clash, but the British asked the Royal Navy for protection.

The tension prompted the nations’ agriculture ministers to agree to get back to the bargaining table. In the interim, small British ships promised not to forage in the Baie. The two nations reached a negotiated agreement that granted British fishermen “reasonable compensation” for agreeing not to enter French waters, according to the Telegraph.

An All-Too-Common Tragedy
The so-called Scallop Wars can be categorized as the type of social dilemma that ecologist Garrett Hardin referred to as “the tragedy of the commons.” In such social dilemmas, each member of a group works against the common good by taking as much of a shared, scarce resource as it can. When all members act in a self-interested manner, the resource is depleted, and everyone suffers. Therefore, individual members face a dilemma between claiming value for themselves and restricting their behavior to contribute to the long-term survival of the resource.

Because parties have self-serving interpretations of what would constitute a fair agreement, social dilemmas can be notoriously difficult to resolve. Overfishing crises throughout the world are examples of unresolved social dilemmas. It’s unusual for parties to police themselves, as the French did, to allow the resource to replenish. When parties do police themselves, they are likely to resent those whom they perceive to be taking more than their “fair share.”

Dispute Resolution of Social Dilemmas
Social dilemmas can be resolved by enlisting a neutral third party chosen by all members to make a decision or provide counsel about what would constitute a fair settlement. Formal mediation, arbitration, and other forms of dispute resolution also can be effective at resolving social dilemmas.

In the case of the Baie de la Seine dispute, the negotiated agreement succeeded for a time at satisfying the parties involved. Hostilities broke out again in 2020, after the most recent agreement lapsed and the French accused the British of violating the spirit of the agreement. Thus, the story illustrates the importance of meeting to renegotiate agreements well before they expire and adjusting them to reflect new problems and concerns that may have arisen.

In sum, when facing an entrenched social dilemma, consider:

Enlisting a neutral third party to help you reach a fair solution.
Acknowledging the importance of safeguarding the resource for the long term.
Revisiting agreements frequently to see if they need to be adjusted.

10/23/2025

Types of Mediation: Choose the Type Best Suited to Your Conflict
Various types of mediation are available to disputants who are seeking an efficient and relatively low-cost resolution to their conflict. Which one should you choose?
By Katie Shonk — on October 23rd, 2025 / Mediation

When parties involved in a serious conflict want to avoid a court battle, there are types of mediation can be an effective alternative. In mediation, a trained mediator tries to help the parties find common ground using principles of collaborative, mutual-gains negotiation. We tend to think mediation processes are all alike, but in fact, mediators follow different approaches depending on the type of conflict they are dealing with. Before choosing a mediator, consider the various styles and types of mediation that are available to help resolve conflict.

7 Types of Mediation
Facilitative Mediation

In facilitative mediation or traditional mediation, a professional mediator attempts to facilitate negotiation between the parties in conflict. Rather than making recommendations or imposing a decision, the mediator encourages disputants to reach their own voluntary solution by exploring each other’s deeper interests. In facilitative mediation, mediators tend to keep their own views regarding the conflict hidden.

Court-Mandated Mediation

Although mediation is typically defined as a completely voluntary process, it can be mandated by a court that is interested in promoting a speedy and cost-efficient settlement. When parties and their attorneys are reluctant to engage in mediation, their odds of settling through court-mandated mediation are low, as they may just be going through the motions. But when parties on both sides see the benefits of engaging in the process, settlement rates are much higher.

Evaluative Mediation

Standing in direct contrast to facilitative mediation is evaluative mediation, a type of mediation in which mediators are more likely to make recommendations and suggestions and to express opinions. Instead of focusing primarily on the underlying interests of the parties involved, evaluative mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations. Evaluative mediation is most often used in court-mandated mediation, and evaluative mediators are often attorneys who have legal expertise in the area of the dispute.

Transformative Mediation

In transformative mediation, mediators focus on empowering disputants to resolve their conflict and encouraging them to recognize each other’s needs and interests. First described by Robert A. Baruch Bush and Joseph P. Folger in their 1994 book The Promise of Mediation, transformative mediation is rooted in the tradition of facilitative mediation. At its most ambitious, the process aims to transform the parties and their relationship through the process of acquiring the skills they need to make constructive change.

Med-Arb

In med-arb, a mediation-arbitration hybrid, parties first reach agreement on the terms of the process itself. Unlike in most mediations, they typically agree in writing that the outcome of the process will be binding. Next, they attempt to negotiate a resolution to their dispute with the help of a mediator.

If the mediation ends in an impasse, or if issues remain unresolved, the process isn’t over. At this point, parties can move on to arbitration. The mediator can assume the role of arbitrator (if he or she is qualified to do so) and render a binding decision quickly based on her judgments, either on the case as a whole or on the unresolved issues. Alternatively, an arbitrator can take over the case after consulting with the mediator.

Arb-Med

In arb-med, another among the types of mediation, a trained, neutral third party hears disputants’ evidence and testimony in an arbitration; writes an award but keeps it from the parties; attempts to mediate the parties’ dispute; and unseals and issues her previously determined binding award if the parties fail to reach agreement, writes Richard Fullerton in an article in the Dispute Resolution Journal.

The process removes the concern in med-arb about the misuse of confidential information, but keeps the pressure on parties to reach an agreement, notes Fullerton. Notably, however, the arbitrator/mediator cannot change her previous award based on new insights gained during the mediation.

E-mediation

In e-mediation, a mediator provides mediation services to parties who are located at a distance from one another, or whose conflict is so strong they can’t stand to be in the same room, write Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in a chapter in the book Advancing Workplace Mediation Through Integration of Theory and Practice.

E-mediation can be a completely automated online dispute resolution system with no interaction from a third party at all. But e-mediation is more likely to resemble traditional facilitative mediation, delivered at a distance, write the chapter’s authors. Thanks to video conferencing services such as Skype and Google Hangouts, parties can now easily and cheaply communicate with one another in real time, while also benefiting from visual and vocal cues. Early research results suggest that technology-enhanced mediation can be just as effective as traditional meditation techniques. Moreover, parties often find it to be a low-stress process that fosters trust and positive emotions.

10/15/2025

Six Guidelines for “Getting to Yes”
These six integrative negotiation skills can help you on your journey of getting to yes.
By Katie Shonk — on October 15th, 2025 / Negotiation Skills

In their revolutionary book Getting to Yes: Negotiating Agreement Without Giving In (Penguin, 3rd edition, 2011), Roger Fisher, William Ury, and Bruce Patton introduced the world to the possibilities of mutual-gains negotiation, or integrative negotiation. The authors of Getting to Yes explained that negotiators don’t have to choose between either waging a strictly competitive, win-lose negotiation battle or caving in to avoid conflict.

Rather, they argued, bargainers can and should look for negotiation strategies that can help both sides get more of what they want. By listening closely to each other, treating each other fairly, and jointly exploring options to increase value, negotiators can find ways of getting to yes that reduce the need to rely on hard-bargaining tactics and unnecessary concessions.

1. Separate the people from the problem.

In negotiation, it’s easy to forget that our counterparts have feelings, opinions, values, and unique backgrounds that contribute to what they do and say during talks. When misunderstandings and conflict arise in negotiation, we need to deal with the “people problem” directly rather than trying to gloss over it with concessions, according to the authors of Getting to Yes. Strive to imagine the situation from their counterpart’s viewpoint. If someone is refusing to back down from a hardline position, ask her how she thinks things are going. Exploring each side’s perceptions openly and avoiding the tendency to blame are key negotiation skills.

2. Focus on interests, not positions.

We tend to begin our negotiation by stating our positions. A homeowner might say to a developer, for instance, “I won’t allow you to develop this property.” When we stake out firm positions, we set ourselves up for impasse. In our goal of getting to yes, we need to draw out the interests underlying our counterpart’s positions by asking questions, such as, “Why is this property important to you?” By identifying what interests are motivating the other party, and sharing your own interests, you can open up opportunities to explore tradeoffs across issues and increase your odds of getting to yes.

3. Learn to manage emotions.

Be sure that you and your counterpart have ample opportunities to express and discuss any strong emotions related to your negotiation. Allowing one another to speak your mind will benefit both sides. “Freed from the burden of unexpressed emotions,” write the authors in Getting to Yes, “people will become more likely to work on the problem.” They tell the story of a labor-management group that “adopted the rule that only one person could get angry at a time,” a tactic that prevented arguments from escalating. When you know that you will have your turn to express how you’re feeling, it will be easier for you to listen when your counterpart has his turn.

4. Express appreciation.

Throughout his career at the vanguard of integrative negotiation, Fisher stressed the importance of expressing appreciation as a means of breaking through impasse. “No one likes to feel unappreciated, and this is particularly true in a negotiation,” Fisher once told Program on Negotiation managing director Susan Hackley. In their book Beyond Reason (Penguin, 2005), Fisher and Dan Shapiro advised negotiators to express appreciation by working to understand the other’s perspective, seeking merit in that perspective, and communicating understanding through words and actions—all critical negotiation skills.

5. Put a positive spin on your message.

Communicating in a positive way is a much more effective means of getting to yes than blaming and criticizing. Instead of speaking on behalf of your group, speak only for yourself. For example, saying “Everyone on the team feels that you’re not pulling your weight” to an employee is likely to distract her from your message, as she will wonder who has been talking about her and what they’ve said. Instead, talk about what you personally have observed and express your concern: “Your recent work has fallen short of your high performance levels. Is there anything going on that is keeping you from doing your best?”

6. Escape the cycle of action and reaction.

In Getting to Yes, Fisher, Ury, and Patton caution us to avoid the common negotiation trap of action and reaction: “If the other side announces a firm position, you may be tempted to criticize and reject it. If they criticize your proposal, you may be tempted to defend it and dig yourself in . . . if they push you hard, you will tend to push back.” To head off this vicious cycle, Fisher, Ury, and Patton introduce a negotiation skill they call negotiation jujitsu, which involves avoiding escalation by refusing to react. Instead, they advise us to channel our resistance into more productive negotiation strategies, such as “exploring interests, inventing options for mutual gain, and searching for independent standards.”

06/17/2025

How to Negotiate Salary: 3 Winning Strategies
When considering how to negotiate salary, job candidates sometimes make decisions that go against their best interests.

Research suggests guidelines for effective salary negotiation.
By Katie Shonk — on June 17th, 2025 / Salary Negotiations
The question of how to negotiate salary seems to preoccupy negotiators more than any other negotiation topic—and with good reason, considering how dramatically even a small salary increase can impact our lifetime earnings. The following three salary bargaining tips from leading negotiation experts will help you gain more from your new-job negotiations.

Get Out of Your Own Way
In job and salary negotiations, we sometimes “get in our own way,” write Deborah M. Kolb and Jessica L. Porter in their book Negotiating at Work: Turn Small Wins Into Big Gains (Jossey-Bass, 2015). We may fail to recognize opportunities to negotiate, focus only on our weaknesses, and make the first concessions in our own heads before the negotiation even begins. These internal dialogues are where the first concessions in the negotiation are made, write Kolb and Porter.

Kolb and Porter suggest ways to address the question of how to negotiate salary. Begin by gathering information so that you will feel that what you are asking for is defensible. Prepare to explain the value you would bring to the organization. Develop alternatives to the current negotiation to increase your flexibility at the table, and remember that the other party’s alternatives may be less attractive than yours.

In addition, examine your vulnerabilities and plan ahead to compensate for them. For example, if you are insecure about a gap in your work history, think about the important things you were doing during that time and prepare to share them with enthusiasm.

Consider the Context
Large, established companies often measure job candidates against well-defined job categories with a set range of salaries. In addition, you may negotiate compensation with recruiters or human-resources personnel rather than with your future boss. In this environment, when determining how to negotiate salary, try to figure out what pay category someone with your education level and experience would receive, then build a case for a salary at the high end of that range.

If an interviewer asks you to name your price, do you know how should you respond? In their book 3-D Negotiation (Harvard Business School Press, 2006), David Lax and James Sebenius recommend making a “non-offer offer,” or a statement that could anchor the discussion in your favor without seeming extreme.

Suppose your research suggests that you would most likely fall into the $70,000 to $80,000 pay range, but the next-highest category seems within reach. Rather than saying, “I think I deserve $80,000,” consider saying, “Correct me if I’m wrong, but I’ve heard that people like me typically earn $80,000 to $90,000.” Notice that this statement is not a demand. Yet due to the powerful impact of the $80,000-to-$90,000 “anchor”—a reference point that may or may not be relevant to the discussion—it could very well steer the numbers toward your upper goal.

Now consider how you might adjust your salary negotiation strategy to a start-up that is recruiting you to become its third employee. You obviously won’t be shuttled off to the HR department, nor will your salary be determined by existing pay scales. In this case, you may have more latitude to structure a creative package that includes stock options.

Adapt Your Style for Maximum Success
Individual differences in negotiating style determine how to negotiate salary and what we achieve, Michelle Marks of George Mason University and Crystal Harold of Temple University found in a study published in the Journal of Organizational Behavior.

The researchers surveyed 149 professional employees who had been hired in the previous three years about their negotiations for their current position, including their attitudes toward negotiation and risk, their negotiation strategies and outcomes, and their level of satisfaction with the process of negotiating for their jobs.

The researchers identified five types of negotiating strategies: collaborating (engaging in problem solving to reach the best possible outcome for both sides); competing (trying to maximize one’s own outcomes with little concern for others); accommodating (putting the other party’s concerns first); compromising (trying to reach middle ground); and avoiding (dodging negotiation altogether).

Independent of the power the applicants had at the table, choice of negotiation strategy turned out to be the critical factor in determining effective salary negotiation. Those who chose to negotiate salary, rather than accepting the offer on the table, increased their starting pay by an average of $5,000, primarily by using competing and collaborating strategies. Those who behaved competitively did better than those who focused on collaboration, but collaborators were more satisfied than competitive bargainers with the negotiation process. By contrast, compromising and accommodating strategies were not linked to salary gains.

The study’s authors conclude that it pays to negotiate assertively for a salary increase. They also encourage employers to recognize that giving employees wiggle room to bargain up their starting pay could help create a more satisfied and productive workforce.

When determining how to negotiate salary, what strategies have you used?

03/19/2025

How to Counter a Job Offer: Avoid Common Mistakes
When considering how to counter a job offer, jobseekers risk making several serious mistakes. We overview three common missteps at the bargaining table and explain how to avoid them.
By Katie Shonk — on March 19th, 2025 / Salary Negotiations

Imagine that after a long search, you’ve just gotten an offer for a highly appealing job. You’re tempted to accept it on the spot. At the same time, the job offer isn’t a perfect fit: the salary and a couple of other issues fall somewhat short of what you had hoped for. What should you do? Here’s a closer look at how to counter a job offer.

Mistake No. 1: Rushing to “Yes”
Many people understand that negotiating a job offer can make a big difference in their career, not just in the immediate future but for years to come. When you negotiate successfully for a higher salary, for example, you can expect to earn exponentially more over the course of your working life than you would earn if you didn’t negotiate. Similarly, negotiating for more responsibility or a coveted job title right off the bat can point your career in the right direction.

But when weighing how to counter a job offer, many negotiators are confused about when to negotiate for more. Specifically, people often think they should accept the offer on the table and only then negotiate. They worry that if they don’t accept the offer right away, the employer will assume they aren’t interested and give the job to someone else.

Typically, that’s not the case: Employers expect us to take a little time to think over their offer and perhaps talk it over with loved ones. Besides, quickly accepting an offer isn’t wise from a negotiation standpoint. Once you’ve made it clear you’ll take what they’re offering, you lose negotiating leverage and decrease your odds of getting more.

So, when you receive an offer, express your excitement and gratitude. Then ask for a little time to think. A day or two may be sufficient, unless you have more complex arrangements to juggle, such as one or more other offers, a cross-country move, or your partner’s own job search. Give yourself time to plan your strategy.

Mistake No. 2: Focusing Exclusively on Salary
The size of our paycheck has a dramatic impact on our lives, so it’s not surprising that most jobseekers tend to home in on salary when considering how to counter a job offer. Salary also tends to be the most vivid and straightforward issue to confront in job negotiations.

But negotiating exclusively, or even primarily, on salary is usually a mistake. Instead, you want to keep a bigger goal at the forefront: setting yourself up for long-term career success. After receiving a job offer, consider where you would like to be five, 10, or even 20 years from now. “The job you’re applying for isn’t your final job,” says David Lax, coauthor with James Sebenius of the book 3D Negotiation. “Rather, it’s setting you up for the next job.”

Recognizing this allows you to look for opportunities to build the expertise and experience you will need in your next job and the one after that. Then you can negotiate for the tools you need to grow and thrive, such as a strong support staff or a title that will set you up for a future position. Ideally, you will have engaged in this type of forward thinking throughout your job search, but it’s not too late to plan ahead after you have an offer in hand.

Employers generally should be indifferent about spending their money on your salary or on benefits you might value more. If further schooling would enhance your job skills, the employer might be willing to pay your tuition with pretax dollars at a lower cost than you would pay out of pocket.

In sum, when evaluating a job offer, be sure to consider the big picture. You can and often should negotiate for a higher salary, of course, but other issues may be even more important to your long-term goals and earnings.

Mistake No. 3: Not Justifying Your Counteroffer
The first party to make an offer in a job negotiation—typically the employer—anchors the discussion that follows in their favor. So, when considering how to make a counteroffer, keep in mind that you will need to present a compelling justification for changes to the employer’s offer.

“Never let your proposal speak for itself—always tell the story that goes with it,” advises Harvard Business School professor Deepak Malhotra in Harvard Business Review. If you want to negotiate to work remotely one day a week, for example, prepare to say why—such as, “My kids come home early from school on Fridays.”

And if you plan to ask for a higher salary, be sure you have relevant benchmarks to back up your request, such as information from recruiters, industry insiders, or an online job site such as Glassdoor. Any employer worth working for will want to do their best to accommodate reasonable requests, so make your request as compelling and easy to fulfill as possible.

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