Lewis & Clark Law School
December 16, 2011
Connecticut Insurance Law Journal, Vol. 18, No. 1, p. 279, 2011
Lewis & Clark Law School Legal Studies Research Paper No. 2012-7
Several generalizations dominate the mediation discourse. When discussing mediation one often hears the almost mythic words of trust, confidentiality, expertise, and asymmetric information advantages held by risk neutral and data rich insurance companies. This short essay critiques these generalizations and exposes them as incomplete and erroneous.
Mediator expertise is elusive and not always necessary. Mediators frequently lack substantive expertise and exhibit only procedural expertise. Their expertise is only partial and may be minimal.
Confidentiality, often deemed central to a mediation, is similarly overblown. In truth, the mediators commitment to confidentiality is overstated. Most mediators act to filter and then redistribute important information gained in earlier caucus sessions. Such “noisy mediation” is central to mediation theory and indispensable to settlement. Mediator comments are often pregnant with new information hints. The stereotype that data rich insurers, repeat players in dispute resolutions possess an advantage in making and receiving offers is not universally true. The emergence of sophisticated and efficient networks of organized plaintiffs who operate to prevent insurers from controlling the mediation process undercuts this generalization.
I have mixed reactions to trust, often claimed a mediation essential. To be sure, trust remains a helpful and useful characteristic that plays a major role in settlement, particularly in the early stages of mediation. However, units of trust are difficult to create and do not guaranty a successful mediated settlement.