Law Practice,
Alternative Dispute Resolution
Jun. 29, 2022
The Heisenberg effect in mediations
Being sensitive to the effect that the observer may have on the observed could help prompt seemingly deadlocked negotiations toward resolution. In a mediation, any participant could at any time assume the role of an observer influencing the proceedings.
John H. Sugiyama
Arbitrator and Mediator
JAMS
Phone: (415) 774-2617
Email: jsugiyama@jamsadr.com
Hon. John H. Sugiyama (Ret.) is a mediator at JAMS with experience in myriad legal fields and disciplines adjudicating complex matters through trial and alternative dispute resolution processes. Judge Sugiyama presided for 18 years on the Contra Costa County Superior Court. During the last nine years of his judicial career, he served as the supervising judge for the Probate Division of his superior court. He may be reached at jsugiyama@jamsadr.com.
A mediation seldom follows a script. An initial offer may be immediately accepted. Or, more often, offers and counteroffers may be repeatedly rejected. Experience suggests that the latter frustrating sequence, rather than the former serendipitous moment, will more likely occur. The attorney thus must be prepared for the possibility that a process of exchanging incremental concessions will not achieve settlement.
A party ultimately may decl...
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