Some thoughts on using 'deep canvassing' as a technique during mediations. Deep canvassing is a technique used by political activists to encourage opponents to explore counterarguments to their own position on a controversial topic. The concept appears in the book 'How Minds Change' by David McRaney. (Photo by Mateusz D on Unsplash)
“Better ten years of negotiation than one day of war.” - Andrei Andreyevich Gromyko, Soviet Foreign Minister (1957 - 1985)
A party might settle early to avoid the risk of paying your costs of going to trial. They will pay something now to avoid that risk. In other words, they are paying you now for legal costs you have not yet incurred. It seems rather obvious once you run the numbers, but I think many people don't think of settlement negotiations in this way.
"Lawyers draft long documents ... because they do not take the time to think hard enough about the case to draft short ones." - Sir Geoffrey Vos, 31 Mar 2022 Ouch! In this video, I share some thoughts on this from my standpoint as a commercial mediator.
The robots are coming. What happened when I asked the GPT-3 artificial intelligence system to provide mediation / litigation advice? Spoiler: it is truly mind-blowing, but still some way to go before the robots take over. Also, watch to the end to hear GPT-3's advice on how to burgle my neighbour's house. PS - The video includes some rapid-fire arithmetic around expected value calculations. If you need a refresher on that, then try my Maths for Smart Lawyers online course: www.mathsforsmartlawyers.com
I asked OpenAI's GPT-3 to summarize Halsey. Here is what it came up with (note to anyone stumbling across this from a Google search for Halsey - this is a convincing, but entirely false, summary written by a robot and not to be relied on!)
My Maths for Smart Lawyers course is now available as a self-study online course.
Kleros is an online dispute resolution platform which uses crytocurrency and game theory to resolve disputes.
The McGurk shows that it is possible for two people to be exposed to the same spoke sentence, but for each person to hear something slightly different to the other. What can this auditory illusion tell us about mediation? (Photo credit Roger Bradshaw / Unsplash)
Real life example of how fallible memory can be.
Considering different outcomes, and estimating the likelihood of these outcomes, and keeping them all in mind, plays an important role in effective dispute resolution.
Arbitration: you hire a private judge in a private courtroom. Mediation: you hire a skilled neutral negotiator to help both sides agree a settlement.
What might a Civil Justice API look like, and why might we need one?
How a simple change of perspective can reveal new routes to settlement.
Ten places to look for creative solutions to a dispute
Video, aimed at mediation advocates, explaining how to help your client work through their best case / worst case if they end up going to trial.
Dispute Calculator is a free online tool to help lawyers estimate the probability of success at trial. My barrister friend Robin Somerville and I have put it together over the past few months.
Only about 7% of trials, outside the Small Claims Track, have attempted mediation first. Should mediation be made compulsory?
Lawyers need to be able to understand the basics of probability to confidently predict outcomes at court. This post covers everything you need to know.
Sir Geoffrey Vos, Master of the Rolls, outlines his ideas for bringing all types of dispute resolution -- litigation, arbitration, mediation, and ombudsman schemes -- under one umbrella.
Two-hour CPD session for smart lawyers to brush up their maths and spreadsheet skills
Mediation provides a swift, cost-effective alternative to waiting for a court hearing to resolve your commercial dispute.
Fixed fee mediation for smaller claims. As a former business owner, I will understand the real issues behind your dispute better than most mediators. I'll help you and the other side navigate to an out-of-court settlement with the minimum of fuss and drama. Try mediation first before taking your chances in court. Over 80% of mediations reach a settlement.
Insolvency litigation funders: Vultures or providers of a valuable public service?
Even though a dispute might not be of your making, you might have to accept that you need to pay money to resolve it. View it like any other expensive unexpected situation: a customer goes bust owing you money; a key staff member falls seriously ill; a product you rely on is discontinued. These are all situations which will cost you money to fix, but you wouldn't begrudge that money - it is just a cost of doing business. Stuff happens.
A collection of quotes from judges, mostly from the England & Wales Court of Appeal, extolling the virtues of mediation (or, more often, sternly berating the parties for coming to court without having first tried mediation).
In this situation, a local education authority denies a child a place even though the child lives just round the corner from the school. It turns out the local authority were following a secret internal rule which did not appear in their admissions policy. Child wins.
There are AI tools out there to help manage a negotiation. I take a look at SmartSettle One. How intelligent is it?
There is a subtle dual meaning in Ray Dalio's Principle 3.3: "Appreciate the art of thoughtful disagreement"
What should you expect during a commercial mediation process? Here’s how a typical day would pan out during a well-run mediation session.
I’ve seen several situations where parents have helped their offspring buy houses. In none of these situations have the family thought carefully about whether they are providing debt or equity funding.
A busy start-up deals rather carelessly with a founding employee and risks being taken to an employment tribunal. How is the situation resolved?
In which a shareholder dispute looks like it might go sour, but is soon resolved amicably
How a small primary school resolved a funding dispute with their local education authority.