This website is not intended to be a complete treatise on all issues and authorities regarding mediation. Rather, its focus is on issues that are hindering the wider use of commercial mediation. The subjects and content are a continual work in progress.
Najar, Jean-Claude, “Corporate Counsel in the Era of Dispute Management 2.0” IBA Business Law International (September, 2014) , Mr. Najar was formerly general counsel of GE France and held senior legal and compliance positions in GE’s healthcare, oil and gas and capital businesses. Najar Corporate Counsel in the Era of Dispute Management 2.0:
“This article will address the topic of dispute management by corporate counsel, how to optimize it adequately to fit the requirements of our modem age and achieve its purpose: strive for ‘win-win’ solutions to, if possible, resume business relationships and avoid losses of productivity and income streams.”
John Bickerman, former chair of the ADR Section of the American Bar Association, recently wrote about why lawyers don’t always agree on what is a “mediation.”“There is no clarity in what mediators do, and so [mediation users] have no idea what style of mediation they are buying and whether it is what they want for their dispute. In the past, some have tried to describe mediation as one style and ban the rest. All of the models of mediation have merit in the right circumstances. As a result of lawyer and client uncertainty about what mediation entails, its use, if at all, is frequently delayed until the parties have already incurred considerable pre-mediation expenses. This expense and the animosity that develops after years of litigation often dull a client’s interest in settlement. Guided Choice requires lawyers and mediators to reconceive the role of mediators to not only settle, but to do so at the earliest possible time. Guided Choice emphasizes the use of the neutral as a “Mediator-Guide” to help the parties gather facts necessary to gauge the probability of litigation success at the earliest possible time and without relying on formal discovery.
Guided Choice also involves a commitment by the parties and the mediator to work through impasses until settlement is achieved. The goal is not only to settle the dispute, but also to avoid the expense involved in postponing the settlement until late in the litigation. Guided Choice includes the following basic elements.”
Bickerman, John, “Adapting Mediation to What Users Want,” Maryland
Bar Journal, March 2012 pp. 55 et seq.[PML note: When people say they want to mediate, or not, there should be a common understanding.of the term.
This is why we saw a need to create the term “Guided Choice Mediation.” There really is nothing new about the tools referred to as Guided Choice. They represent the best practices used by the most successful mediators. The significant features of Guided Choice are the emphasis on retaining a mediator as soon as possible and the mediator’s use of a confidential investigation of all the reasons for the existing impasse–before any settlement negotiations begin. However, the tools of Guided Choice are applicable, no matter when the settlement process occurs on the timeline of the dispute. Guided Choice emphasizes pre-negotiation tools. Of course, there are many other tools which the mediator uses once negotiations begin.
Rachlinski, Jeffery and Andrew Wistrich, “How Lawyers’ Intuitions Prolong Litigation,” Cornell Law Faculty Publications, March 2013. Paper 602. As the authors state:”Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and the sunk-cost fallacy—produce intuitions in lawyers that can induce them to postpone serious settlement negotiations or to reject settlement proposals that should be accepted. Lawyers’ tendencies to rely excessively on intuition exacerbate the impact of those cognitive illusions. The experiments presented in this Article indicate that the vulnerability of experienced lawyers to these cognitive errors can prolong litigation.”
What are the ethical obligations of lawyers to reduce process expense?
Chief Justice Roberts of the U.S. Supreme Court commenting in his 2015 report on the reason for the new Federal rules on ” proportionality” aimed at reducing the amount of discovery in civil cases.”As for lawyers, Roberts said, “they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship.” He added, “I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.”Roberts also said that “lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolution of disputes.”Read more: Chief Justice Urges Culture Change to Speed Civil Litigation
Paul Lurie note: A mediator can also reduce the cost and delay associated with discovery controversies, including those expensive and time-consuming e-discovery disputes. One of those mediator strategies is help the parties distinguish between discovery needed to try a case as compared to discovery needed to change a settlement position. As Lurie and Press said in their article on settlement ethics in Dispute Review Magazine:
“In commercial litigation and arbitration, lawyers should advise clients not only about the terms of settlement but also about the comparative cost of settling or not settling at various points during the period leading to judgment or award and the various processes that may facilitate settlement. Clients may not understand when and how settlement discussions should begin and the cost implications of their choices. This is especially true when they first engage attorneys and their emotions are running high.”
A fundamental tenet of Guided Choice is that the mediator should do a pre-negotiation investigation including an analysis of the human factors that will affect the settlement process. Daniel Kahneman’s book, Thinking Fast and Slow Farrar,(Straus and Giroux, New York 2011)is a must read for mediators and settlement negotiators. A good summary of the book is contained in this link, Thinking Fast and Slow, which starts with this introduction by Erik Johnson.
“Daniel Kahneman’s aim in this book is to make psychology, perception, irrationality, decision making, errors of judgment, cognitive science, intuition, statistics, uncertainty, illogical thinking, stock market gambles, and behavioral economics easy for the masses to grasp. Despite his charming and conversational style, this book was difficult for me because I am accustomed to thinking fast. As a service to my fellow automatic, intuitive, error-making, fast thinkers I offer this simple (dumbed down) summary of what is a very helpful book. Writing this summary taught me how to think harder, clearer, and with fewer cognitive illusions. In short, how to think slower. Now if only I’d do it.”
Another good resource for this issue is J Robbenolt and J Sternlight, Psychology for Lawyers: Understanding the Human Factors in Negotiation (ABA Publishing, 2012).
If you don’t have access to the book, this older but excellent article is available without subscription at the link below. Korobkin, Russell B., “Psychological Impediments to Mediation Success: Theory and Practice,” Ohio State Journal on Dispute Resolution, Vol. 21, pp. 281-238, 2006
Lawyers often think that people are separated only by differing views of he law and the facts which may eventually get adjudicated if the case does not settle. Decision making is far more complex. Good mediators know that their pre-negotiation investigation should identify factors such as those that follow. What is learned influenced the design and scheduling of the negotiations: (1) The parties’ tolerance for uncertainty; (2) how organizations involved in disputes make decisions– executive driven or collaboratively made (3) What is the negotiation style of the decision makers How does that fit with the style of the opposing party’s decision maker; (4) Who are the real parties in interest and will they participate if not a formal party to the negotiations; and (5) What information do the parties really need before they are ready to negotiate.
What is learned influenced the design and scheduling of the negotiations: (1) The parties’ tolerance for uncertainty; (2) how organizations involved in disputes make decisions– executive driven or collaboratively made (3) What is the negotiation style of the decision makers? How does that fit with the style of the opposing party’s decision maker? (4) Who are the real parties in interest and will they participate if not a formal party to the negotiations? (5) What information do the parties really need before they are ready to negotiate?
People settle disputes because they “want to” even if they claim that they settled because they “had to.”
As Lurie and Lack have written:
“The [Mediator] does more than just read the parties’ legal briefs
and speak to their lawyers to effectively diagnose the reasons for any
impasses. The Facilitator works with the parties directly to understand:
(1) the possible social and emotional drivers of the conflict, (2) the
coalitions that may have been created and the identities of the key
stakeholders or individuals involved, (3) the propensity of the conflict
to escalate further, (4) what information both the parties require to
better understand one another’s future interests and not only the
positions taken to date, and (5) the financial, timing, legal, social or
other constraints the parties may face. The [Mediator’s] work may include reviewing insurance coverage issues and identifying third parties who may be involved or influential in the proceedings, but who may not be willing to participate as a party in a conflict resolution process. The Mediator can also work with the parties to understand their decision-making processes and any organizational or administrative issues they may need to address, and to identify any biases, heuristics, coalitions, hostilities, risk aversion, pro-social and anti-social behavioral patterns, or other psychological factors that may have contributed to the stalemate. For example, how have the parties framed the impasse? Are they relational, structural, temporal, social, emotional, data-driven or something else? What are the best, worst and likely alternatives the parties have to a settlement? Can they improve on these alternatives? Are there possible win/win scenarios available, based on a broader view of the case, taking into account future subjective interests, such as social or unrelated business considerations?”