One of the biggest challenges we face as dispute resolvers is helping our parties understand the choices they face in a given dispute, and the direct impact of each choice on the possible resolutions they can achieve. All of us, parties and mediators included, experience various psychological dynamics in a negotiation (e.g. cognitive bias, fixed-pie/distributive orientations, emotional escalation, fundamental attribution error) that can make it difficult for us to act rationally and strategically when we have to make a decision. Helping our parties manage their way through these psychological challenges, and getting clarity around the choices they need to make, is a big part of the value we can bring to the resolution process. After all, resolving a dispute is the same as making a multi-criteria decision between parties with conflicting agendas.
One powerful way to provide this type of assistance to our parties is through the use of decision science. Now I’m guessing that many mediators may have felt a sudden drop in their enthusiasm for this article when they got to those two words. I admit, I’m sympathetic to that reaction, because I once felt the same way. Decision science can sound like a lot of math and diagrams scribbled on white boards and legal pads by people who aren’t communicating with each other, which isn’t what most mediators feel their work is about.
I knew I wanted to spend my career in dispute resolution long before I first heard the phrase “decision science” in grad school. I was passionate about peacemaking in high school, took my first mediation training as an undergrad, and wrote my senior thesis on collegiate peer mediation programs, so I felt I had a pretty good handle on the skills needed to be an effective mediator. I thought, mediators are in the people business: we listen, we reframe, we reflect, we help brainstorm and problem solve. At the time, decision science felt quite removed from the honesty and empathy that I thought lay at the heart of the work of a mediator.
But then I showed up at the first day of my (required) decision science class, and I quickly changed my tune. Yes, there was a lot of diagramming with decision trees, and weighting branches with probabilities, but the more I learned the more I realized that these techniques didn’t displace communication, they made it more effective. And that resolutions achieved through the use of these tools could be better for both parties, and more durable over time. That class made clear to me that there was a very close connection between the tools of decision science and the work that we do as mediators.
But I wasn’t the first to see that connection, not by a long shot. Legends like Howard Raiffa had been talking about the synergies between decision science, game theory, and conflict resolution for decades before I ever took my first mediation training. In fact, one of my dispute resolution idols, Marjorie Aaron (who was heading up the Program on Negotiation at Harvard Law School at the time) was a major proponent of the use of these tools. Her most recent book, Risk and Rigor: A Lawyer’s Guide to Decision Trees for Assessing Cases and Advising Clients (DRI Press 2019, available online for free) and her website https://www.riskandrigor.com/ do a excellent job demystifying these approaches and explaining how they can be useful for mediators, parties, and lawyers in finding effective resolutions.
Now since I finished grad school I’ve devoted my energy to the expanding field of online dispute resolution (ODR), and surprisingly over the past twenty years there have not been many ODR platforms that have leveraged the synergies between decision science and dispute resolution. There are some platforms that use decision trees to help parties estimate the value of their legal cases, but they don’t take the next step toward using that insight to assist the dispute resolution process. That’s why I was delighted when I first discovered the NextLevel Mediation system built by my friend Robert Bergman.
The NextLevel Mediation (NLM) decision science application (available at NextLevelMediation.com) helps mediators understand party priorities while providing those parties with a clearer understanding of their best path forward in a given situation. NLM’s algorithm takes participants down a clear path, moving from emotion-driven psychological dynamics to more structured, critical thinking. NLM’s application helps parties make more informed and logic-based decisions in exploring the ZOPA (zone of potential agreement) in their disputes. In my experience, NLM can help to assure that all parties have their true priorities clearly understood, which improves the quality of resolutions.
Robert founded NextLevel Mediation back in 2017. He’s an expert in high-technology and Decision Science. He’s also worked with some top notch engineers (including his son, Jason, and Jonathan Ewing who is also an attorney and mediator) to build a powerful, intuitive platform. Every time I see a new demo, I see updated features and an improved user experience interface. As ODR has grown in popularity over the past few years, the NLM application has grown in sophistication.
Throughout any mediation, party priorities can change in response to the stages of a negotiation. New information and counteroffers can confuse parties, sometimes leading to a situation where their stated priorities are in conflict with their actual goals. The beauty of the NLM application is that it can help to reveal their true priorities as well as illuminate risks – assisting the client (and their counsel) in arriving at better decisions.
NextLevel Mediation’s approach to dispute resolution science enables a new type of mediation, backed by powerful software tools (sometimes referred to as a fourth party). This unique algorithm applies methodologies from decision science to help parties achieve an optimal resolution efficiently and effectively. The NLM system analyzes and consolidates key interests of all the disputing parties including objectives, priorities, cost, and the probability of litigation or ADR vs. settlement. Then it helps the parties make rational decisions, free of emotional distraction and bias. The NLM system combines tools like the Consultation Workspace, Priority Models, Priority Assessment, Questionnaires, Risk Analysis, Negotiation, and Secure Messaging to help parties gain clarity and achieve resolution.
Let me be clear: the NextLevel Mediation software suite is extremely powerful, and as a result, it can seem complicated upon first glance. It’s not the kind of system the average individual can just log into and immediately understand. That’s why the NLM team is building a panel of Dispute Resolution Analysts to help parties leverage the power of the NLM platform. A Dispute Resolution Analyst is a professional mediator who has been trained in the application of decision analytics to dispute resolution. They have completed the NLM training program and have received a certificate of competency issued by NextLevel Mediation. There aren’t many of these trained Analysts out there, but as word gets out about the NLM platform, demand will surely grow.
I was lucky enough to get a chance to take the new training the NLM team has created, and it really blew my mind. It changed the way I think about mediation, and it has influenced my vision for the future of ODR. If you are a dispute resolution professional who wants to be a certified NLM analyst I urge you to sign up for the full training program. The training demonstrates all the functionality of the NLM platform in a step-by-step way, combining exercises with clear demonstrations to ensure that each certified analyst has a firm handle on the value of the platform.
Signing up for the training is easy, and Robert was kind enough to give Mediate.com readers a special discount coupon for 50% off. Just visit https://nextlevelmediation.com/, click on free trial, then register for the 30-day trial. Once you’re into the system, you can go to the knowledge area documentation and then select “TalentLMS course” to register for the training. The coupon code is ODRSCIENCE.
I’m confident you’ll find it as interesting as I did. Let me know your thoughts. The potential for decision science in the work we do as mediators (especially now that everything has moved on line) seems unlimited. I think the approaches embodied in the NLM platform will end up playing a major role in the coming expansion of AI and algorithmic resolutions, and I bet certified NLM Dispute Resolution Analysts will play a key role in shaping future developments as a result of the expertise they refine through the use of this platform.
It is beyond the scope of this article to distinguish among the various types of ODR that are rapidly evolving both here in the U.S. and abroad (from automated complaint...By Charles Hill