Mastering mediation: Using the psychology of conflict, risky choice and bias to improve alternative dispute resolution

Many policymakers and pundits believe that America is in the midst of a litigation crisis. Civil litigation has become more expensive, more time consuming and more adversarial than at any point in our history. Many believe that the problem will only escalate, and that an effective solution is now urgently required. Alternative Dispute Resolution (or "ADR") has been widely embraced by lawmakers and legal commentators as an affordable, effective antidote for our ailing and overburdened civil justice system. Among ADR processes, mediation in particular has proven its ability to resolve disputes in a fair and effective manner that satisfies disputants. Unfortunately, mediation has yet to demonstrate that it can do so in a way that provides significant time and cost savings over litigation. Considering the premium that lawmakers have placed on efficient dispute resolution, this is a serious problem.;Recent research has drastically expanded our understanding of how people make decisions under uncertain conditions. Individuals are less than perfect decision makers, and their thought processes are often fraught with biases and inconsistencies. With appropriate interventions, however, the influence of these idiosyncrasies can be predicted, managed and mitigated. The nobel-winning research of Daniel Kahneman and Amos Tversky has helped describe the way in which real decision makers behave when faced with risky choices. The decision analytic work of Max Bazerman has helped shed light on how that behavior will play out in the negotiation context. The science of dispute resolution has also leapt forward. Groundbreaking work by theorists such as Ronald Fisher and Vamik Volkan has significantly deepened our understanding of the dynamics of conflict and reconciliation.;Experts have struggled to come up with viable strategies for streamlining mediation without sacrificing its overall quality. Research suggests that two areas in particular are critical to this endeavor: improving the speed and cost effectiveness of mediation, while at the same time preserving its ability to get to the heart of disputes and fully resolve them. Although many excellent texts and articles have been written on both negotiation decision analysis and conflict dynamics, it appears that the two approaches have yet to be brought together to tackle ADR's unique challenges.;This dissertation seeks to improve ADR via a cohesive, "unified" framework. It proposes a two-tiered approach to tackling ADR's challenges: it seeks to improve ADR's efficiency by tailoring mediation interventions to suit the idiosyncrasies of the human decision-making process, while at the same time applying our knowledge of conflict dynamics to help resolve disputes effectively. It surveys the relevant research base in both areas in an effort to improve ADR's efficiency and effectiveness. It then focuses in on mediation, and offers research-based mediation strategies that address both areas of concern. It then offers some general suggestions on how these insights might be incorporated into mediation procedures, and proposes some future directions for research.