Written by Lance Currie, Partner
Improving mediation outcomes
Panelists emphasized the need for early preparation, both
for the mediator and our clients. As one speaker correctly noted, the actual
day of mediation should be viewed as the last step in a process that starts
much earlier. In our experience, the initial strategy assessment for a matter
must include consideration of whether and when a negotiated resolution could
achieve our client’s goals.
By taking the time to understand our client’s objectives and
to consider the obstacles to settlement, we can develop a schedule for
potential mediation that allows time to overcome those challenges. In
addition to gathering both the factual and expert information needed for
meaningful discussions about risks and opportunities, early conversations about
potential negotiated outcomes compared to the best alternative to a
negotiated agreement allow clients to see clearly the costs and benefits
of settlement. Likewise, we have found that early engagement with mediators to
ensure they understand the parties’ positions, legal arguments, personal
dynamics, and barriers to agreement increases the likelihood of settlement.
One particularly impactful conference session focused on the
neuroscience of mediation and negotiation. The panel focused on cognitive
biases that impede good decision making. Confirmation bias, for example, can
impose blinders, causing one to miss key points on the other side of an issue
by assigning greater weight to evidence that supports a predetermined
conclusion. Availability and recency bias can cause one to favor readily
available information over information they may not have direct access to or
that is no longer fresh in their mind. The fallacy of sunk costs often stands
in the way of settlement at mediation. Realizing that the past is done
and focusing on what can be done in the future is critical to avoid throwing
good money after bad. Catastrophizing means letting your emotions spiral rather
than approaching an issue calmly and thoughtfully. Awareness of how these
biases may impact either side’s behavior at mediation allows us to think
creatively about how to present resolution options that aren’t blurred by the
biases. Creative thinking involves considering alternative value levers, such
as time, relationships, and risk, rather than focusing only on dollars and
cents. As advocates, we can also reframe the issues through a
problem-solving lens, rather than as a zero-sum game. The best negotiated
outcomes involve finding ways for all parties to work toward a shared solution.
Making arbitration more efficient
According to survey data gathered for the conference,
arbitration leads over litigation in perception and outcomes when it comes to
speed and confidentiality. Skepticism continues as to whether arbitration is
less costly than litigation, with discovery being a primary driver of costs.
Presenters discussed options for improving efficiency in arbitration with
resulting lower costs, including:
- Front-load
case management at the preliminary hearing: lock in tailored schedules,
proportionate discovery, and clear motion practice criteria. As advocates,
we have found that arbitrators are often receptive to our suggestions that
streamline discovery to what we truly need to present the case, rather
than following a rote playbook driven by standard rules of
procedure. We often find that the final outcome turns on dozens of
documents—not thousands.
- Consider
dispositive motions. Despite the perception they are rarely granted, the
AAA presented data showing that in 2024, 49% of dispositive motions were
granted in whole or in part. From initial selection of arbitrators,
through the preliminary hearing and status conferences, we evaluate the
importance of dispositive issues to efficiently resolve issues and weigh
the time and costs of those efforts against the potential benefits.
- Tailor
the final hearing to the needs of the case. Arbitrations can afford
significant flexibility for efficiently presenting summary evidence as
well as fact and expert witnesses. In a recent arbitration we
significantly shortened the final hearing by streamlining the expert
testimony and still achieved a $22 million award for our client.
In addition to the valuable learning that conferences like
those offered by the ABA Forum on Construction Law provide, our group continues
to grow an exceptional network of construction lawyers, experts, and industry
professionals around the country who help us better serve our clients. We
look forward to learning more this March at the Annual Texas Construction Law
Conference in San Antonio and in April when the ABA Forum on Construction Law
celebrates its 50th anniversary in Chicago.
