A round-up of must-read articles for professional mediators

round-up of mediation linksThe 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:

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.

4 responses to “A round-up of must-read articles for professional mediators

  1. Diane–

    Thank you for your kind words — your generosity knows no bounds. I plan to add another post or two to the Decision Tree Analysis series soon; once I do, I’ll circle back and let you know. Thanks again for including Settlement Perspectives in your post–

    JD

  2. John, I must thank you. Your posts consistently make important contributions to understanding about negotiation, mediation, and settlement. I look forward to the continuation of this outstanding series.

  3. Hi Diane,
    I’m with you on “keeping the notes”. For us, another reason it is “acceptable” is the true independence and separate physical facilities from all parties that may be involved. To contrast this it has become increasingly questionable to hold any case related documentation with corporate ombuds offices embedded with executive corporate offices at the same physical location or even on the same “global enterprise IT network” and the ability of an IT person to “hack in” to e-mail and Intranet systems to access data. When I’m invited onto a companies IT network for a project I let them create my workspace, but my sensitive data is always kept on my notebook with separate wireless Internet access and firewall. This was an insightful post, glad I got to it today. Cheers.

  4. Clayton, thanks for the perspective from the ombud’s chair. I’m delighted you took the time to read and to comment. Thanks for raising the point about secure technology and confidentiality of data with respect to the work of the ombuds.