Informed Decision-Making in Judicial Mediation and the Assessment of Litigation Risk
Ohio State Journal of Dispute Resolution, 2017
18 Pages Posted: 2 Apr 2018
Date Written: May 2017
While much has been written about how mediators can guide parties through impasse, the popular literature is less attentive to the method of litigation risk analysis and how it might fit inside judicial mediation. Opinions differ about whether and where a judge facilitating a settlement conference should allow an evaluative approach. This article reframes the focus from the judge’s style, to the litigant’s need to make informed decisions in any process. A litigation risk assessment can be adaptive, responsive to the environment created in judicial mediation. Within various mediation styles — even those which veer away from opinion-giving and evaluation — the judicial mediator can still help the parties develop realistic projections and measurements for comparison. Framing the conversation around a litigation risk assessment allows judicial mediators to reality-test while working to preserve judicial impartiality and party self-determination. The following discussion presents a practical framework for managing the risk assessment dialogue, and a spectrum of degrees of intervention, which allows judges and mediators to tailor the dialogue to fit their own mediation processes and styles.
Keywords: litigation risk analysis inside judicial mediation, litigation risk assessment, judicial impartiality
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