January 2009

The following articles linked to below make essential reading for the professional mediator, addressing as they do three important topics in mediation practice — reaching settlement, making decisions, and what to do with those notes.

Reaching settlement.

Giving us a ring-side seat for the final hours of a tough negotiation, Victoria Pynchon, an experienced mediator of complex commercial disputes, considers the devil in the details with a four-part series that offers a rare glimpse inside a mediator’s mind as she wrestles with demons:

• “You’ve Settled? With a Term Sheet? The Devil in the Details“
• “The Devil in the Details: When Do You First Talk Terms?“
• “Devil in the Details: Sticker Term Shock“
• “Devil in the Details: the Deal, the Whole Deal and Nothing But the Deal“

Decision-making.

Perhaps one of the most important services that mediators provide is to aid clients in reaching decisions.  Attorney John DeGroote, who shares Settlement Perspectives and negotiation advice based on eight years as the Chief Litigation Counsel of a global company, makes a strong case for using decision trees to improve settlement decisions in a two-part series.  “Decision Tree Analysis in Litigation: The Basics” introduces readers to decision trees –“tree-shaped models of [a] decision to be made and the uncertainties it encompasses,” according to Suffolk University Law Professor Dwight Golann in Mediating Legal Disputes — and links to The Arboretum, a free online tool provided by mediator Daniel M. Klein for building decision trees.  In “Why Should You Try a Decision Tree in Your Next Dispute?“, John convinces the naysayers, offering persuasive reasons why decision trees make smart business sense.

Mediator’s notes — destroy or keep?

One of the ongoing debates within the mediation community concerns what to do with notes — keep them or destroy them?

Mediators who destroy their notes typically do so because it:

• Protects the confidentiality of mediation communications
• Eliminates the burden on the mediator and the mediator’s resources to store and secure notes
• Reduces the risk that the parties will subpoena the mediator later if negotiations fail, particularly if the mediator informs the parties in the agreement to mediate that he or she routinely destroys notes as a matter of practice

Those who keep their notes (and I count myself in this group) do so because:

• Due to the nature of the mediator’s practice, parties may return for follow-up sessions after a period of time, and notes will refresh the mediator’s recollection of the case
• Notes, with suitable precautions taken to conceal the identity of the parties, can be used to create case studies for purposes of mediation and negotiation training
• Destroying notes could prejudice a mediator’s professional liability insurer defending a malpractice action against the mediator, potentially voiding the mediator’s insurance coverage

Mediator Geoff Sharp directs his readers to an article by Australian mediator Michael Creelman, who advocates the retention of notes in large part due to the insurance issue in “Mediators’ notes of the mediation – a mediator’s protective device“. Meanwhile, Atlanta-based attorney and mediator Christopher Annunziata offers the view from Georgia, coming down in favor of destroying notes.

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