The Economics of Co-resolution and its Place in the Field of ADR

[This post is a response to the questions, "What disputes should be addressed by co-resolution, and which disputes are more appropriate for other processes?" and also, "Why should disputants opt for two co-resolvers over one mediator?"]

An economist would gauge the usefulness (or "utility" as they would call it) of a dispute resolution process by the circumstances and price at which people will pay money for it.  Admittedly, gauging warm, soft, human systems with cold, hard cash might not appear to be the best fit (can you put a price on a hug?).  While it is impossible to place a gratuity on gratitude, Economics could lend a few tips, which the field of ADR isn't doing well enough, economically, to ignore.

So, to follow up my previous blog post on how mediation is offered and used within the overall market, let us now use very basic economic analysis to consider how co-resolution should be offered and used.

First, if a dispute can be resolved quickly and efficiently with the help of a single mediator, then co-resolution would not be necessary or useful to those disputants (why pay for two ADR professionals when you could resolve the issue with one?).  On the other hand, if a single mediator cannot resolve a dispute (because, for example, the parties need the assistance of personal coaching) then hiring one mediator would be a waste of resources and a team of co-resolvers may be better suited for the situation.  Also, if one mediator would take a long time shuttling back-and-forth between the parties, then two co-resolvers might be able to reach a resolution more quickly by simultaneously caucusing with their respective parties, prepping them for the negotiation, and then efficiently communicating and cutting to the bottom line when the four-way negotiation resumes.

[Note:  Susan and I have resolved a number of cases in co-resolution in which we knew to a reasonable degree of certainty, based on the conduct of the parties and our experience with mediation, that the cases would not have settled or would not have settled nearly as quickly had they been handled by a single mediator.  And, to be fair, Susan and I have also handled a number of cases in which co-resolution was overkill--the parties already communicated effectively and had the case largely resolved already.]

 At the other end of the spectrum, if cooperative advocacy and coaching in effective communication and negotiation is not enough, and the parties need the advice of independent attorneys, financial specialists, and child-development experts, then collaborative law and the collaborative team approach would be the more appropriate ADR process.  And, of course, cases that cannot afford all of this assistance will not benefit from the availability of this process and will need a cheaper, more efficient alternative.  In fact, despite the enthusiasm of its proponents, collaborative law has experienced only limited use by only the most well-resourced couples, according to Deborah Cantrell in her article "The Role of Equipoise in Family Law," Journal of Law and Family Studies, vol. 14, page 65 (2012). 

As another aside, while co-resolvers will not be able to provide the parties with legal advice (legal advice can only be given by INdependent advocates), they can become familiar with any substantive area of knowledge that could benefit their parties.  As a divorce attorney, I find it necessary to understand basics in child development and financial planning and would think that two co-resolvers could provide expertise and knowledge in these areas and efficiently provide the non-legal benefits of the four-person collaborative team.  For example, a co-resolver could use their partisan position to offer suggestions and ideas about parenting plans when their party would benefit from this input.

In fact, like private arbitrators, co-resolvers can become experts in the subject matters they address, coaching and advocating for their parties with knowledge about more than just effective communication and negotiation (serving as substantive experts as well as procedural experts).

In conclusion, I want to make it clear that I do not intend that co-resolution "replace" existing dispute resolution processes such as mediation and collaborative law.  Each of these processes has its appropriate place in the field of ADR, and each dispute should be directed into the process that will most effectively guide it toward resolution.  I suggest that the method by which we conduct disputes to their best-fitting process is by offering all of the options and their associated prices--from mediation ($) to co-resolution ($$) to collaborative law ($$$$)--and allowing the parties and dispute resolution professionals to gauge the level of assistance that the dispute will require.