Readers may remember our July 1, 2009 announcement concerning an American Bar Association teleconference on mediation hosted by Don Philbin, Randall Kiser and Katherine Billingham (post here). The conference took place as scheduled on July 14, 2009, and we thought it was excellent.
Don Philbin and Randall Kiser explained a theory of mediation based on a combination of brain science, psychology, statistical analysis, and computer graphics, which we thought was as inspiring as it was fascinating. They discussed the results of empirical studies of decisional errors in litigation, comparing last settlement positions of parties who failed to settle to the ultimate outcome of the proceeding. They explained who did better, who did worst, and what the cost of the error was. They also described a technique that can overcome psychological barriers to settlement that uses graphically-depicted outcome-scenarios. Randall discussed a book he is writing, which will explain and advocate a scientific approach to decision making, and which will delve into the legal malpractice considerations associated with poor decision making. Randall’s book will hit the shelves this fall.
Once upon a time I thought mediation was, to a significant extent, based on “touch” and “feel,” but Don and Randall have proved me wrong. To some extent it is certainly an art, but science plays an important role, especially when the mediators are trained to use it properly.
Katherine Billingham discussed a scientific approach to resolve through mediation complex multi-insurer, multi-layer, multi-year asbestos-related insurance coverage disputes, using excellent graphics. She explained how these disputes can be mediated in a multi-phase process that takes into account nearly every one of the myriad of variables that must be considered. Her methodology can also be applied to complex reinsurance disputes, which she also mediates.
All in all, there was much useful information packed into the one-hour presentation, and we view it as a springboard for further research and study. Kudos to all involved!
