It is axiomatic that young lawyers have more information coming toward them than did lawyers in genertions past. Law firms and departments are grappling with ways to manage and curate information, access big data most effectively, and even consider the place of artificial intelligence.
And yet in one area, there is less information available: dispute resolution. In mediation and negotiation, the decisions, or at least the terms, are usually confidential.
This is not to suggest they should not be confidential; that’s one of their advantages for parties. But rather to consider, is there a way to keep this information anonymous and yet convert it to data with the consent of the parties?
In 2004, Carrie Menkel-Meadow wrote, “While one of the supposed advantages of mediation (over adjudication) is that the special circumstances in each situation can be addressed de novo, it is wrong to presume that the outcome of one mediation…has no impact on subsequent efforts to resolve similar disputes. In fact, I would argue that mediated agreements in which all sides have a chance to ensure that their interests are met are greater than court-imposed resolutions that may well have ignored the particularities of the case.” (Menkel-Meadow, Carrie. “Public Access to Private Settlements”. In Menkel-Meadow, Carrie and Wheeler, Michael (eds.), What’s Fair: Ethics for Negotiators. San Francisco, CA: Jossey-Bass, 2004, p. 507.)
At that time, she was largely referring to mediators making use of their own “precedents.” Even more so in the context of today’s (and the future’s) technology, if the terms of mediated settlements could be known by others, there might be benefits for other disputants, including when it comes to cost-cutting and fairness.
After all, if the percentage of civil disputes that end up in court trials are in the single digits, we may need to establish another line of jurisprudence.