Robin Horton is a J.D. student at Harvard Law School conducting a short survey of practicing mediators for research on what has been called ‘the noisy disclosure mediation technique’.
In Economic Rationales for Mediation (1994) Jennifer Brown of Quinnipiac University School of Law and Ian Ayres, then of Yale Law School, suggested that, through caucusing, mediators can help parties avoid bargaining failures by assisting parties in determining whether a zone of possible agreement exists.
They opined that caucusing can avoid bargaining failures because parties are often willing to disclose privately to the mediator possible concessions that they would be reluctant to disclose directly to the opposing party. Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).
They found that, without explicitly violating confidentiality, a mediator’s imprecise disclosures can help parties navigate toward a resolution of their differences.
The purpose of Robin’s survey is to examine the extent to which this “noisy” communication is practiced and whether practicing mediators consider it to be appropriate and effective.
Robin, I’m interested in the concept that such disclosure can occur ‘without explicitly violating confidentiality’. If you willing, why not add a question to your survey about the perceived ethics of this technique…
Go on, take the survey here.
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