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.
News this week that a well respected San Francisco litigation shop is in trouble and may close.
The main reason being offered is that Heller Ehrman has settled too many of its cases and gave away 60% of the firm's revenue... highlighting once again the tightrope attorneys walk when weighing up the various tensions (client and firm) involved in deciding whether to negotiate or mediate.
'So what has happened to Heller, which has long ranked as one of the top firms in San Francisco and one of the top litigation shops in the country? For starters, the firm had many huge litigation matters settle in rapid succession last year, including its representation of Ernst & Young in securities fraud suits against AOL and Cendant. About one-fourth of its litigation business settled last year–a huge blow given that litigation makes up about 60% of the firm’s revenue, according to a Heller attorney. And that revenue has been hard to make up in a soft litigation market' [read more]
So, should a law firm's interests be part of the decision to mediate?
Those interests might be around future fees, especially if there is a contingency deal where the firm effectively has an equity stake in the asset (aka claim) they now share with the client.
Those interests might also be around getting partners into the courtroom on a strong case and being seen to win it, any number of competing interests...
Well, maybe Owen 'settlement is the civil analogue of plea bargaining' Fiss had a better crystal ball than I gave him credit for in my recent post.
With news this week from Clay County, Kentucky that its crime mediation program - in which felony cases are mediated - was wildly successful.
Heck, they did 19 in one day in Clay County and 12 more in nearby Boyd County, including matters of burglary, drug trafficking, theft, assault, fleeing and evading law enforcement, and manufacturing methamphetamine - all in the name of congested dockets and cost saving.
"Now it's just a matter of identifying the next areas to use this program, which likely will be jurisdictions with heavy caseloads and an overcrowded jail nearby" says the manager of the program.
And it sounds like mediation confidentiality is screwed too - "If a defendant says something incriminating during mediation and it falls through, I expect to be able to use it at trial," said Rothgerber, first assistant Jefferson commonwealth's attorney.
Read more at Judges Successfully Mediate Felony Cases For First Time In Clay County and Mediation can offer swift dose of justice
As I say, is this OK? I mean, it might be - is it just restorative justice in drag?
After all, restorative justice may be part of a sentence that includes prison time or may even take place before sentencing and thereby influence the punishment.
This gives mediators a bad name.
I have written before on coaching in mediation asking - is it OK to coach people on how to say something or who should say it in a mediation?
