Edward Brunet
Volume 18
Issue 1
PUBLISHED
Fall 2011
Abstract
Several generalizations dominate mediation discourse. Discussions of mediation often invoke near-mythic concepts such as trust, confidentiality, expertise, and the supposed asymmetric information advantages held by risk-neutral, data-rich insurance companies. This short essay critiques these generalizations and exposes them as incomplete and often erroneous. Mediator expertise is elusive and not always necessary; mediators frequently lack substantive expertise and possess only procedural skill, making their expertise partial and sometimes minimal. Confidentiality, likewise heralded as central to mediation, is overstated. In reality, mediators routinely filter and redistribute information gathered in earlier caucuses—“noisy mediation”—which is essential to mediation theory and indispensable to settlement. Mediator comments often carry implicit informational signals. Similarly, the stereotype that data-rich insurers, as repeat players, possess a universal advantage in making and receiving offers is undermined by the rise of sophisticated, organized plaintiff networks that prevent insurers from dominating the mediation process. As for trust, often deemed essential, the author expresses mixed views: trust can be helpful and influential, particularly early in the mediation process, but it is difficult to generate and does not guarantee a successful settlement.