Gut instinct, sloppy guesswork and grey hair no longer seem to be enough in complex, high stakes mediation.
Mediators (and mediation lawyers) need to get better and more scientific about analysing risk in mediation.
Often times the BATNA for each party is a trial but they need to have more than an optimistic hope the judge will see it their way on the day, more than an educated guess at what might happen with a following breeze, especially when it seems that lawyers are increasingly afflicted by optimistic overconfidence as to the likelihood of success.
So is it time for an objective tool to sit along side our hard won, but unscientific, judgement?
The trouble is the available tools all seem to be absurdly mathematical combining elements of diagnostic and predictive reasoning about uncertainty using risk maps – aka Bayesian networks, probability tables and statistical simulations.
… and since this mediator achieved 26% in the last high school maths exam he ever took, I hate doing this stuff on the run on the whiteboard.
So here are some key resources to take for a spin;
1. Making Better Litigation Decisions Through the Use of Decision and Risk Analysis is a helpful starting point
2. Litigation Risk Analysis and ADR is a very thorough piece and would make a good ‘are you interested in this?’ email to repeat mediation lawyer clients
3. Prof. John Wade’s simple risk analysis ; How much pressure, advice and risk analysis should a mediator offer?
4. TreeAge Software demo (be patient as this takes a while to load)
Free trial downloads;
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