Originally from:

AAA Handbook on Mediation - Third Edition

USING RISK ANALYSIS AS A MEDIATION TOOL

Evan Slavitt

I. Introduction
Successful mediation presents two related challenges: conveying the complexities of a case to the mediator  so he can engage opposing counsel and the parties in pro¬ductive dialogue. The most common way of conveying the complexities of a case to the mediator is verbal advocacy. In essence, each side argues its case to the mediator and the adversary, hoping to convey the most strength while conceding the least weak¬ness. There will always be a place for such advocacy in mediation. However, it has several weaknesses. First, advocacy is entirely qualitative.  As a result, it is hard to compare one side’s advocacy with another’s. Thus, the adjectives used in advocacy have no common meaning. For example, if one side says it has a strong case, how strong is “strong?” And how much stronger is “very strong?” In addition, the discursive technique does not tend to lead the parties to separately evaluate different aspects of a conflict and then come together to reach some common ground. Finally, it is hard to determine how changes in an evaluation of one aspect change the evaluation of the case as a whole.
One underused technique that can ameliorate these weaknesses is risk analysis (also called probability analysis). Risk analysis involves making judgments in quantitative terms, thereby allowing for more precise and productive discourse.
Part I of this chapter provides a basic introduction (written for the most math-phobic attorney) to the elements of risk analysis. Part II demonstrates how to use risk analysis to evaluate cases. Part III discusses a refinement called “sensitivity analysis.” Part IV covers risk analysis in the settlement context and Part V demonstrates this process in the context of mediation.