Many parties in mediation — and many of their counsel — consider that a “win” is a deal that gets them the number they asked for, or close to it. In fact that’s not so, and a mediator provides important value to disputants by assisting them to determine, in a claim that will go to trial in two years and subsequent appeal, what the “right” number is today.
Here are three easy steps towards assisting parties to value their claims.
A recent article has been making the rounds of ADR professionals. The current issue of the American Psychological Association’s publication Psychology, Public Policy and Law (Vol. 16, No. 2, at 133-57) features a report of a study conducted by a group of scholars from Australia, Sweden and the United States. The group canvassed 481 American attorneys – in civil and criminal cases, both plaintiffs/prosecutors and defense – and found that lawyers are prone to overconfidence. That is, they predict outcomes of their cases that are not only erroneous, but generally too optimistic.
I’m wondering why this is news. I think that we mediators have known this all along; in fact, that’s why we’re hired. Read more »
James F. Ring and some colleagues gave a fascinating talk at the recent ABA Dispute Resolution Section on Game Theory. Where it started was cutting a cake. Where it ended was cutting out the lawyers, at least by implication.
In addition to his law practice, Mr. Ring runs an enterprise called Fair Outcomes, Inc. His talk was not so much a “sell job” for his company as it was a discourse on the reasons why conventional approaches to negotiation may have serious limitations.
In his keynote address to the Section of Dispute Resolution of the American Bar Association, MIT Professor Lawrence Susskind urged that it was time for ADR professionals to get involved in the failure of meaningful discourse in American public life, and to assist people to talk to each other about deeply held beliefs. He focused on disputes that arise “when people describe who they are rather than what they want” and outlined an approach to dispute resolution that is distinct from the familiar Fisher/Ury interest-based model.
The underlying assumptions of interest-based facilitation — that the parties have interests, know their BATNAs, will seek maximum return without unnecessary delay, and will accept an agreement whose terms are better than no agreement – don’t work when people’s values, or their very identities, at at stake. Abortion or same-sex marriage are not interests, or even principles; they define who some people are. When these defining values are encroached upon or attacked, what facilitation model applies? Read more »
