Experience Based Decision Making – Mediation and Avalanche Terrain

I was reading an interesting book this weekend about backcountry skiing. The author discussed the heuristics people used to assess the risk of avalanches. (Heuristics are basically rules of thumbs or techniques used to make decisions).

At one point in the book the author discussed heuristics that don’t work very well in terms of predicting avalanches. For example, some people reason that a slope must be safe because they’ve never seen an avalanche on it. That heuristic could work really well if someone observed the slope hundreds or thousands of times, but it isn’t very good if they’ve only checked out the slope once or twice.

Mediation is a lot like skiing in avalanche terrain. It’s about risk assessment (for both plaintiffs and defendants). That risk assessment can be distilled down to one question: will I likely do better or worse than the current settlement offer/demand if I take the case to trial?

It’s a big decision for both sides. And it’s important to use heuristics that make sense and are supported by a lot of experience.

Participants at mediation who make decisions based on what they’ve heard from friends or in the media about personal injury cases are almost always going to make a bad decision. The accuracy of the information is questionable and it provides only one data point. It would be like making a decision about whether to ski a particular slope in the Cascades based on a story one of the skiers had heard from a cousin who skied a similar slope in New Brunswick.

"I read about a homeless woman in Anchorage who received over a million dollars and wasn’t really hurt…." I hear that a lot from clients. Even if true, it’s only one data point. It doesn’t tell us the slope is safe and doesn’t provide a reliable basis for making decisions about whether to settle or try a particular case.

Heuristics based on accurate and detailed experiential data are great tools. False heuristics result in bad decisions. That’s why the vast majorities of people get caught in avalanches and make bad decisions (without the proper guidance) about whether to settle their cases. There is a great article in the New York Times about this precise issue.

Hiring an attorney is like going skiing in an unfamiliar area with a local guide. You don’t need to substitute the guide’s judgment for your own, but it makes sense to give it a lot of weight and consideration before making an important decision.