LEXPERT MAGAZINE
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APRIL 2016 7
fortuna favet fortibus
APRIL 2016
VOLUME 17 NO. 6
EDITOR-IN-CHIEF:
Jean Cumming
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LEXPERT.CA
Jean Cumming
Editor-in-Chief
EDITORIAL
Sometimes More is Less
IT IS AXIOMATIC that young lawyers have more information coming toward them than
did lawyers in generations 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 media-
tion and negotiation, the decisions, or at least the terms, are usually confidential.
is 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 medi-
ated 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 "prec-
edents." 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 dis-
putants, including when it comes to cost-cutting and fairness.
Aer 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.
