Over ninety percent of cases ultimately are resolved before trial. However, with 60 to 80 percent of the cost of litigation consumed by discovery, the time to settlement is the key to corralling costs. With corporate counsel bent on controlling the costs of litigation and seeking lawyers and mediators who know how to do that, Paul Lurie is spearheading a new approach to mediation best practices that he calls Guided Choice. He is Chair of the Guided Choice Interest Group, The American Arbitration Association is on board with the concept and hosted a webinar discussing this approach just this week.
In a nutshell, Guided Choice envisions the mediator as confidential investigator and process manager throughout the stages that will lead to resolution. In Guided Choice, mediation is a process not an event and impasse is only another potential stage in the process that needs to be overcome. It is not a reason for the mediation process to end, particularly since ending the process will prolong resolution of the case leading to avoidable costs.
Guided Choice emphasizes the importance of pre-mediation activities. The mediator conducts a confidential inquiry of all parties to discover their information needs, the cognitive biases, communication styles, the path to authorization for settlement and the necessary participants to the mediation (including any insurers). That pre-mediation step precedes any attempt at negotiation either by the parties or in a mediation session. The mediator helps the parties to undertake appropriate risk assessments and cost calculations, discusses the potential for barriers to arise and the fact that solutions to those barriers may include further information exchange, the use of a neutral expert, dispute boards or even referral of specific issues to arbitration or to a judge. The mediator assesses the best process for the in-person mediation meeting, including whether there should be a joint session or sequenced caucuses. The mediator deals with multiple parties. This is no one size fits all process but a very tailored assessment by an experienced mediator working to get to the earliest possible and least costly result for the parties. With a heavier pre-mediation investment of time, more productive mediation sessions are promised and potential solutions to impediments are surfaced. There are fewer surprises at the in-person session.
Individually, these ideas have been followed by the best mediators; curated in Guided Choice, they promise a much more focused effort to properly time and design a resolution process.