GUEST-POST | Definitive Creative Impasse-Breaking Techniques in Mediation: Sausage Making Laid Bare

This is my second post giving you a tease from one or more chapter in Definitive Creative Impasse-Breaking Techniques in Mediation, Molly Klapper, J.D., Ph.D. (NYSBA 2011). Find the first post here.

Today, I would like to focus on Simeon Baum’s “Sausage Making Laid Bare.” Simeon Baum is a leading NY mediator and former chair of the NYSBA’s Dispute Resolution Section. He actually contributed two separate chapters to the book and has the literal last word. His final chapter is about using the philosophy of the Toa-te Ching in mediation. He describes the philosophy as non-doing, a calming listening presence, not using a particular technique but truly staying tuned. It should be read in full by all mediators since, as he recognizes, a tool box is a wonderful resource, but in the end the mediator must have integrated something more ineffable that allows the mediator to peacefully accept the parties and inspire their trust.[i] That final chapter, “The Technique of No Technique,” points to the need for assimilation, and self-knowledge that leads to proficiency and calm.

In “Sausage Making”, Simeon generously provides a concrete method for dealing with multiparty-finger-pointing disputes. He calls this the consensus-based-risk-allocation model. It not only provides a road map for resolution but effectively uses the “wisdom of crowds” as its own solution.[ii] In three sets of caucuses Simeon asks and records each of the multiple defendants’ answers to three questions:

(1.) What is the likelihood the plaintiff will win at trial, and if so how much?

(2.) What percentage liability will be allocated to each defendant?

(3.) How much will it cost to try this case?

Having discussed risk analysis with each defendant, he records the answers on an Excel spread sheets (templates are provided). He then works with the average amount plaintiff is predicted to win multiplied by the average likelihood of success to obtain the risk assessed damages. He uses the total cost of defense (cumulatively) or if there are wide discrepancies, he can average the estimates and multiply by the number of defendants. He then calculates each defendant’s share of the settlement pot based on the defendants total predictions. This framework helps Simeon to calculate the group’s assessment of risk and to apply it to costs and the potential range of recovery and to create three graduated pots for offers to the plaintiff based on the collective thinking. How Simeon gets buy-in, develops the pots, and the templates he uses are by themselves worth the price of the book for any mediator who faces a multiparty dispute.

Laura A. Kaster is a mediator and arbitrator in Princeton, New Jersey, working in the wider NY metropolitan area. She is the Chair of the NJSBA Dispute Resolution Section and Co-editor in Chief of the NYSBA’s Dispute Resolution Lawyer. She is a CEDR Accredited and IMI certified mediator and an adjunct professor at Seton Hall Law School and regularly presents for the NJSBA, NYSBA, ABA and PLI. From 1997–2006 Chief Litigation Counsel for AT&T Corporation. Until 1997 she was a partner in the Chicago law firm of Jenner & Block. From 1973 to 1975 she was law clerk to Judge Frank M. Coffin of the U.S. Court of Appeals for the First Circuit. More information is available at
http://www.AppropriateDisputeSolutions.com.