Hurry Up! We Have a Plane to Catch! The Effects of Time Pressure on Negotiation and Mediation

Joseph R. Soraghan

By Joseph R. Soraghan



Not surprisingly, there is both anecdotal and empirical evidence that time constraints affect behavior generally.  It is also, therefore, not surprising that high time pressure (hereinafter “HTP”) probably affects both parties and mediators in mediation.

I recently ran across this question, and found particularly interesting (though not recent) articles by social science researchers which could assist both parties and mediators in their participation in mediation sessions.

In “Time Pressure in Negotiation and Mediation,” a 1993 article, Professors Peter Carnevale, Kathleen O’Connor and Christopher McCusker, then professors in the Department of Psychology, University of Illinois (“Carnevale, et al.”), reviewed the scientific research to that date on HTP in negotiation generally, and mediation in particular, to identify common themes, interesting questions, possible outcomes of differing HTPs and resulting behaviors.  It is only possible here to review possible conclusions of (not the methods of) the research and suggest actions to be taken accordingly by mediation participants to benefit their outcomes.  [This article was one of 18 chapters in a larger volume entitled “Time Pressure and Stress in Human Judgment and Decision Making” (Plenum Press 1993). The article, as did the other chapters, discussed the effect of HTP in negotiation generally; it then discussed the effects of such pressure on mediation in particular.]

The authors initially noted that the three strategies primarily used in mediation are: Continue reading »

Sometimes It’s Good to Have the DTs (Decision-Tree Analyses) in Mediation

Joseph R. Soraghan

By Joseph R. Soraghan



In my Med-Arb Memo of August 2010, I pointed out that a formal mediation session actually should be considered as just one part of a possible multi-part process.

I just read an interesting article suggesting that disputing parties each hire a (separate) consultant to perform decision-tree (DT) analyses when entering into negotiation or mediation.[1] The article argues, and cites instances in which, the hiring of neutral consultants by both parties to the dispute to perform DT analyses led to a greater number of resolutions of those disputes.[2] For many disputes, particularly high-dollar disputes, this is an excellent idea.

But use of DT and other risk analyses and probability assessments in mediation should not be restricted to use of expensive analytic consultants. The parties and the mediator should consider using them without consultants, with much less expense.

DT analysis in litigation is not rocket science. It simply calls on each party (or counsel) to (honestly) analyze and decide the following: the ultimate issues (those whose outcomes individually or in combination would be dispositive of the case with respect to liability, plus those comprising the major components of damages) on issues which each party must prevail in the case in its entirety; and finally, to assess (again, honestly) the percentage likelihood of prevailing on each such issue. At each step in the analyses, of course, the likelihood of success on each issue being less than 100%, the likelihood of total success is discounted. Continue reading »

Quick! . . . Mediate That Business Divorce!

Joseph R. Soraghan

By Joseph R. Soraghan



One of the officers of a corporate client calls. You note the distress in his voice immediately. He tells you that a dispute has arisen between the major shareholder factions of the company, and he wants you to advise on what he and those in his faction can do to win this. And you can tell he expects you to talk “reason” to the other faction.

But you quickly realize that although for the moment knowledge of the dispute is restricted to people in the company, it will only be a short time before it gets out to the customers, suppliers, banks and others with whom the company does business, threatening the existence of the company.

You should consider recommending the factions mediate the dispute, if possible before litigation is filed.

Advantages of Mediation

Some advantages of mediation are:

No Publicity. No lawsuit is filed. The situation can be kept as confidential as the parties want.

Speed. Trial, or even a hearing for significant injunctive relief, will take months, if not years. And as soon as customers hear there is an internal dispute — and they will — they will take their business elsewhere, to a “stable” competitor. And this risk increases significantly if a lawsuit is filed. A mediation can begin immediately.

Continue reading »

You Should Exchange Your Briefs

Joseph R. Soraghan

By Joseph R. Soraghan



Your pre-mediation briefs, that is.

It is generally agreed among lawyers that some amount of information must be possessed by both disputing parties to a mediation, if the mediation is to result in settlement. (Of course, theories on how much information is necessary, i.e. how much discovery, if any, differ with types of case and frequently from attorney to attorney.) I’ll write more about that in future memos.

Continue reading »