“𝘛𝘩𝘪𝘴 𝘤𝘢𝘴𝘦 𝘴𝘩𝘰𝘶𝘭𝘥 𝘴𝘦𝘵𝘵𝘭𝘦.” It’s a common refrain when mediation is broached. And it raises the obvious question: 𝘸𝘩𝘺 𝘩𝘢𝘴𝘯’𝘵 𝘪𝘵?
“Should settle” disputes often look like one of these:
• 𝑬𝒂𝒓𝒍𝒚, when business principals see that a protracted adversarial process makes little sense
• 𝑳𝒂𝒕𝒆𝒓, after extensive discovery clarifies strengths and weaknesses
• 𝑽𝒆𝒓𝒚 𝒍𝒂𝒕𝒆, on the figurative courthouse steps, when the window for resolution is closing
Issue. Rule. Application. Conclusion. Highly effective when a judge or jury is the ultimate decision-maker.
In mediation, the parties decide.When mediations go awry, it is often because the process is treated as a form of pre-adjudication. Parties dig in when the other side tries to argue the case.
Injunctive relief. Arbitration clauses. College football.
Usually, my LinkedIn feed is filled with Delaware corporate law updates and discussions of alternative dispute resolution. For college athletics news, I tend to look elsewhere. This week, those worlds briefly collided.
Impasse is the predicate for mediation. Parties arrive atimpasse, encounter it repeatedly during negotiations, and—with the righttechniques—break through it. Yet one of the most frustrating impasses occurswhen offers move backward instead of forward. David Hoffman's new book, The Artof Impasse Breaking in Mediation, addresses, among many other issues, thisparticularly thorny trigger: when offers get worse, not better. David was oneof my trainers at The Program on Negotiation at Harvard Law School. After watching hisrecent interview with Jeff Kichaven, I immediately purchased the book.
How should attorneys prepare for mediation? Understanding your mediator's orientation and your client’s needs is a critical starting point.In his influential work, Professor Leonard Riskin developed what's now known as "Riskin's Grid.” It is a framework that plots mediators along two axes: the scope of issues they address (narrow vs. broad) and the level of authority they exercise (evaluative vs. facilitative). According to Riskin, most mediators have a predominant orientation based on their background.
Before the New Year, the Wall Street Journal ran an interesting article titled "Inside the Little-Known World of Private Judges for Hire." Similar to arbitration, the benefits include speed and the ability to select a trier of fact with desired expertise. Unlike those forms of ADR, in states that permit private judging, the proceedings are typically public and appealable to the courts.
