It Takes Two to Tango, and to Mediate: Legal Cultural and Other Factors Influencing United States and Latin American Lawyers’ Resistance to Mediating Commercial Disputes

This article examines legal cultural and other factors influencing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial ac- tors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite its potential advantages over adju- dicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods. Analyzing similarities arising from universal decision-making biases and shared legal cultural traditions, and differences flowing from common law and civil system influences, this article argues that all of these factors strongly influence U.S. and Latin American lawyers toward adjudicating and explains why mediation is not used more often to re- solve commercial disputes. This article concludes by presenting reasons why carefully assessing mediation as a pre-adjudication option helps lawyers counter perceptual, decision-making, and legal cultural biases while allowing commercial clients to avoid the risks and substantial transaction costs inherent in adjudicating disputes

It Takes Two to Tango, and to Mediate: Legal Cultural and Other Factors Influencing United States and Latin American Lawyers’ Resistance to Mediating Commercial Disputes

This article examines legal cultural and other factors influencing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial ac- tors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite its potential advantages over adju- dicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods. Analyzing similarities arising from universal decision-making biases and shared legal cultural traditions, and differences flowing from common law and civil system influences, this article argues that all of these factors strongly influence U.S. and Latin American lawyers toward adjudicating and explains why mediation is not used more often to re- solve commercial disputes. This article concludes by presenting reasons why carefully assessing mediation as a pre-adjudication option helps lawyers counter perceptual, decision-making, and legal cultural biases while allowing commercial clients to avoid the risks and substantial transaction costs inherent in adjudicating disputes

Can We Talk? Overcoming Barriers to Mediating Private Transborder Commercial Disputes in the Americas

This Article examines cognitive and cultural barriers creating the relatively infrequent use of mediation to resolve private, transborder commercial disputes in the Americas. It begins by analyzing the challenges presented by transborder commercial litigation. It then presents and supports the claim that international arbitration, the most frequently used transborder commercial dispute resolution method, suffers from many of litigation\u27s disadvantages including excessive expense and delay, loss of outcome control, damaging or ending rather than preserving and improving commercial relationships, and using legalistic, rights-based perspectives that obscure business interest-based solutions. This Article next examines several cognitive biases that impair rational decision making regarding dispute resolution method selection in transborder commercial disagreements. Analyzing selective and partisan perception, egocentric and optimistic overconfidence biases, and fixed pie and win-lose assumptions, the Article integrates empirical research and anecdotal data to support the claim that these cognitive biases encourage arbitration and discourage mediation. This Article also analyzes ways that American business and legal culture encourages cognitive biases, which leads disputants toward adjudication and away from mediation, and how other cultural differences generate misunderstandings that contribute to the frequent choice to arbitrate rather than mediate private transborder commercial disputes. This Article then suggests several strategies for overcoming these cognitive and cultural biases and analyzes how these proposals mirror techniques mediators commonly use to help disputants negotiate effectively. The Article concludes by explaining the currently minimal role in consensual dispute resolution played by formal trade regimes in the Americas and suggests how these provisions could encourage mediation and the effective outcomes this process often produces

Just Say No: Minimizing Limited Authority Negotiating in Court-Mandated Mediation

This article contends that requiring mediation participants to refrain from claiming limited negotiating authority and to just say no when they lack authorization, particularly regarding dollar issues, is more likely to encourage full preparation to negotiate the economic aspects of disputes that litigation invariably generates. It suggests that encouraging attorneys to comprehensively prepare the dollar dimensions of claims and defenses may help them anticipate and gather sufficient authority to handle potential decisions if conversations move to agreement options beyond economics. It concludes by defending its proposals against concerns that they will undercut important mediation policies regarding confidentiality and mediator impartiality