Time limited mediation and optimism biasAugust 21, 2016
Rushing a process can be a false economy. Ask the hare
Time limited mediation (a mediation limited to an hour or a morning for example) has its place. It can be useful in low value claims with narrow issues, perhaps an argument over a simple low value debt where emotional issues are less significant. The parties costs of the mediation are likely to be more proportionate to the amount in dispute. However, I do not recommend time limited mediation for more complex and higher value disputes including higher financial value and emotionally charged cases. Disputed will cases, estate claims, land disputes and business partnership disputes would benefit from a full mediation day.
A mediation involves people and people and their drivers are complex. One example is the optimism bias. A person tends to believe that they are at less risk of experiencing a negative event than others. (I have previously referred to the ‘myth of justice’ which is a form of optimism bias). This is partly why mediators ‘reality test’ during mediation. There is little opportunity to reality test in a complex but short mediation. It takes time to explore and address optimism bias.
A mediation does tend to follow stages from opening to exploration and exchange and hopefully to settlement. On many occasions I have witnessed parties reach settlement terms believing this to be an end to the day only to wait hours in some cases for the legal representatives to draft the necessary written agreement to sign off and be binding. This takes time in more complex cases and forced time limits could mean that a deal will not be reached or that matters unravel as the parties leave before the mediation has really run its natural course.
Any competent mediator can help you or your legal representative decide whether your dispute is or is not suitable for a time limited mediation. Please contact me if you would like to discuss further.
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