Earlier today, I was joined by Jeff Kichaven,one of the country’s top mediators, to share practical advice for mediatingcorporate disputes. As my mediation practice has grown, I have been the direct beneficiary of Jeff’s mentorship, both formally in the International Academy of Mediators and informally by phone or email whenever I have a question. So it was aspecial moment to have Jeff fly in from California to speak to a room ofcorporate and commercial litigators from over 25 Delaware firms about thesophisticated cases litigated in the corporate capital of the world.
This marks my last post discussing how litigators can apply decision making tactics to the benefit of their clients in dispute resolution. In Quit, best-selling author and decision making consultant Annie Duke describes our fixation with sunk costs and waste.
As attorneys, we make countless decisions each day often with limited information. For those who have been following along, I have thoroughly enjoyed Annie Duke's teachings on decision making and have found them invaluable in my mediation and dispute resolution practice. In this penultimate post about how litigators can apply Duke’s teachings, I want to discuss her thoughts on uncertainty from her book Thinking in Bets.
Many of us have represented clients in mediation who want to know whether the mediator agrees with their view of the case. That's entirely understandable - they want to be heard and, naturally, they believe in their case. But because this is mediation and not trial, is that conductive to the resolution process?
This is my second of five posts applying the decision making teachings of Annie Duke to litigators advising clients in mediation and other forms of dispute resolution.
In How to Decide, Duke discusses the use of decision trees to assess upsides and downsides. In another book, Quit, she discusses the use of expected value. Both are relevant to dispute resolution in litigation.
Ten years ago, I wrote an article for the Delaware Law Review identifying the ways that litigators and the courts can utilize court appointed neutrals to minimize the burdens of litigation. In that article—titled the E-Discovery Promised Land (undoubtedly the nerdiest and least cool Bruce Springsteen homage to date)—I suggested that the use of discovery magistrates and discovery facilitators could help parties and the judiciary alike respond to the volume of discovery disputes that continue to rise due to the exponential increase in electronic discovery.
