Friday, January 26

Risk analysis in mediation

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;

Articles;

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?

Software;

4. TreeAge Software demo (be patient as this takes a while to load)

5. Agena

6. Litigation Risk Analysis

Free trial downloads;

7. TreeAge

8. AgenaRisk

5 comments:

Vickie said...

http://www.negotiationlawblog.com/2007/01/articles/negotiation/money/the-cost-of-a-thing-is-your-life/

synchronicity Geoff!! today's the day I posted part of my masters' thesis on reducing qualities to quantities. it's all just rationalizing money, isn't it? some people feel better with charts and graphs. i leave the link (above) since it feels perfectly responsive to decision analysis and because it's been sitting in my computer's bottom "drawer" for too long, unread by anyone but my long-suffering thesis advisor, ken cloke. cheers! vickie

John said...

That's a great list of decision-analysis resources.

Rick Weiler said...

Hi Geoff. Great post (sorry I'm just catching up now...). I use Treeplan http://www.treeplan.com/ , which, while not free, have worked well for me.

It's often a revelation, I find, when the parties realize they have to substract the negative contingency from the positive. It's helped me with lots of cases.

Hope all is well and your year's gotten off to a great start.

Best Regards

Rick

Jacob said...

Geoff,

Since you said:

"The trouble is the available tools all seem to be absurdly mathematical "

"... 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."

You'd be relieved to know there's software (SaaS) to the rescue!

You should take a look at www.paperchace.com - designed for mediators and litigators. It does the math for you. Easiest software of its kind to use.

Philip Hesketh said...

Hi Geoff, do you know of any decision tree software that will run on Mac OS X?
Cheers