The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante

UC Davis Law Professor Donna Shestowsky's PhD in psychology along with her law degree enable her to do a lot of interesting research on ADR.  She surveys civil litigants at the start of their cases and finds that litigants like mediation, bench trial, and negotiations with both lawyers and clients present.  She also finds, as Andrea Schneider puts it,  that "Repeat players – those who had been either a defendant or plaintiff in a prior case – liked the idea of using binding arbitration for their case more than first-time litigants. 'This finding resonates with the idea that repeat litigants are more likely than first-time litigants to appreciate the fact that trials are often associated with painful, protracted discovery and the threat of an appeal.'”

Mediator Certification

Hamline Law Professor Sharon Press has done a lot of good writing on mediation and here addresses mediator certification.  She sensibly argues "that a certification process is incomplete unless accompanied by an adopted standard of conduct, a process for handling complaints, and the authority to remove certification from an individual if warranted." 

I am particularly interested in the government/private questions regarding mediator certification.  Should government (including courts) ever require parties to use a mediator who has been certified, as opposed to just requiring them to mediate?  Should government subsidies for mediation be directed only to mediation conducted by certified mediators?  If these sorts of questions are answered "yes", then determining who gets to the do the certifying becomes an important legal and even political question.   

Structured Settlements

Settlement agreement is the goal of much ADR and structured settlements are a particular interesting type.  Structured settlements are discussed in this paper by Jeffrey Stradling, who receives a hat tip  "for writing a detailed analysis about the secondary market and practices of factoring companies in the structured settlement industry. Perhaps he is the watchdog that the industry has been waiting for."

International Commercial Mediation

University of Missouri Law Professor Stacy Strong does a lot of good writing on international arbitration and here addresses international commercial mediation. 

Written Position Statements in Mediation

Parties and counsel can write position statements before mediation.  These can be given confidentially to the mediator only, or can be shared with the other side of the dispute.  Tips and pros and cons of various approaches to position statements in mediation are provided here by Cullen and Dykman.

Mediation Progress in the Hallway

A mediation's progress toward settlement can occur not only in joint caucus of all participants (parties and lawyers) or by the mediator shuttling between separate rooms, but also in the hallway between rooms.  As Geoff Sharp aptly writes, such "corridor encounters often appear to be accidental", "typically occur en route to the loo/kitchen/for a smoke/to make a phone call", and "have a hushed ‘in passing’ tone about them."

Geoff Sharp insightfully adds "Cut through/bottom line mediation language is expected and such encounters often determine what happens next in the process and, to that extent, have a coaching element to them aimed at choreographing a forthcoming exchange."