New Important Developments in Mediation

I’ve just returned from the Seattle International Academy of Mediators conference. I am a past president of this group and we had 155 elite members present, representing 16 countries. In the past year, we have experienced several developments in mediation which I would like to bring to you and your colleagues’ attention which may well serve to improve your mediation experience. I will list each briefly for you:

1. Exchanging confidential pre-mediation submissions with opposing counsel. Historically, the tradition in Texas has been to provide your pre-mediation submission for the mediator’s eyes only. That has not been the tradition in the majority of states. It’s time to rethink this. As you know, the joint session has disappeared in Texas and around the country. The joint session was counsel’s only opportunity to present their case directly to the other side. Sharing a pre-mediation submission may be an effective substitute and will be helpful for purposes of risk assessment. Additionally, sharing the submission allows the mediator to discuss all of their points with opposing counsel in the private caucus. In the many states where this is practiced, counsel are free to send an additional private submission to the mediator for matters which are strictly confidential and not to be shared. From an efficiency perspective, sharing submissions can save time during the actual session itself. You still will mark your submission as for mediation purposes only. Many counsel have reported to me over the past three decades that there really wasn’t much in their submission that they were unwilling to share.

2. Virtual versus in-person. Mediators are reporting nationally that 70% of their mediations are virtual and 30% are in-person, even after COVID. Likely, the logistical ease and transportation and other cost savings are the primary reasons for this. Virtual also allows parties to be productive during lengthy caucuses with the opposition and not have to worry about things like flights or childcare. The most significant development is that the data now suggests settlement rates are virtually the same with virtual mediation and in-person. You would never have convinced me of that four years ago, but after conducting over 800 virtual mediations myself, the data correlates with my experience. In-person remains a significant and effective format for mediation when counsel collectively believe the physical presence of the client is critical to the success of the mediation. Two other factors are interesting. First, because of the logistical ease of mediation, I have spoken to more fully authorized decision makers in the last four years than in the thirty years before. A decision maker may easily drop into a mediation. Second, and this is counter-intuitive, but high emotion cases do better in virtual. I worried about the ability to engage parties in such cases. Because these parties are often joining from their homes or a comfortable office, they seem to feel more safe and therefore more engaged. I predict both formats will continue well into the future.

3. Skipping the initial and frustrating too-high too-low dance. Counsel for decades have been frustrated by the first three back-and-forth moves during a mediation. Many counsel report it as a waste of time or that nothing really happens until after lunch… or later. Two interesting approaches to this problem have begun to be used around the country, so far with encouraging results. One approach is what I will call the “Three Step Negotiation”. This approach invites counsel to commence the negotiation with their 12 o’clock proposals and skip making the stratospheric opening demand which inevitably results in a lowball response. Negotiation science demonstrates that negotiation does not become effective until each side makes credible offers, and credible offers can still leave plenty of room for negotiation. The point here is to avoid the frustrating dance that sometimes creates the impasse. Obviously, this might not be right for every case and requires some modicum of trust between counsel. The second approach is very different. The parties are encouraged to make no offers and counters but rather to engage in a joint effort with the mediator to make a sensible evaluation of the case and a sensible range of settlement that will lead to a resolution. By avoiding polarizing offers, the parties essentially engage in a collaborative risk analysis. You should view both these methods as options to the traditional approaches you are familiar with.

4. Finally, of course AI. We saw mind-blowing demonstrations of AI risk analysis, AI developed negotiation strategies, and AI predictive ability based on analysis of existing case law. The “hallucinations” which had those lawyers sanctioned for using AI’s fictitious cases are being weaned out of the system. Like it or not, there is an inevitability to the use of AI both in the law practice and mediation. Also, there will be serious ethical issues associated with AI’s use. In that regard, I have determined not to use AI in mediation for the time being, largely for privacy and confidentiality concerns. Whether counsel at mediation are using AI to formulate negotiation strategies is another matter. One last tip: If you are thinking of a new laptop, hold off until the first quarter of 2025. My son is head of international sales for one of the largest semiconductor companies. Everything will be different when that technology is released. I think we will all be challenged by this brave new world.


Eric Galton