Resolve Mediation Services, Inc.

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Resolve Mediation Services, Inc. Commercial Division Training May 27, 2009 / June 3, 2009 Risk Analysis for Commercial Mediators Simeon H. Baum, Esq. Resolve Mediation Services, Inc. New York, NY (212) 355-6527 www.mediators.com

The Higher Math of Risk Analysis

Reasons to Try Risk Analysis Creates feeling of objectivity & sense of legitimacy – not “me” Neutral, logical, shared structure Engenders dispassionate approach Gives feeling of doability Creates party Buy-In Addresses/sparks the FUD Factor

FUD FACTOR: FEAR UNCERTAINTY DOUBT

More Reasons for Risk Analysis Addresses varying views of probable outcomes Is funnel for integrating and creating symmetry of information Gives Agents something to Write Home about Steadies Communication Stills Reactive Devaluation

(Expected Present Value) What Is Risk Analysis? Remember Louis Nizer? Converting Probabilities to $#s (Expected Present Value)

Probable Outcomes & Factors Settle or Litigate Win or Lose Summary Judgment Discovery & Evidence Win or Lose at Trial Varying Damages Appeal Risks Collection Risks Transaction & Opportunity Costs Time Value of $ - interest/inflation

DEFINITIONS Decision Node: Decision maker must choose which option to pursue. Chance Node: Decision maker has no control over the outcome. Lines emanating from the circle denote possible outcomes of an event, each bearing an associated probability (P) of occurrence. P for all branches emanating from a chance node must produce a sum of 1.0 (or 100%) Terminal Node is the point beyond which no activity is possible. It represents the consequence, payoff, or net value.

DEFINITIONS, continued Expected Value is the mean of the possible outcomes in a situation with each outcome weighted by its likelihood of occurring. Sensitivity Analysis provides a means of assessing how the results of a decision tree are affected by variations in one or more of the uncertain quantities relevant to the decision. e.g., likelihood of winning & Expected Damages

Disaggregation The spirit of decision analysis is divide and conquer: Decompose a complex problem into simpler problems; think straight, paste analyses together with logical glue, get program for action. Howard Raiffa

Tao te Ching Think of the small as large And the few as many Confront the difficult while it is still easy; Accomplish a great task By a series of small acts

Risk Analysis’s Detractors It overlooks importance of Emotion, Values and Subjectivity (Kierkegaard: Concluding Unscientific Postscript To The Philosophical Fragments, 1846) BIBO GIGO (bad in bad out) It is only as good as the information you gather and the assumptions you make It is a Pseudo Science or at least an Irregular Science

Working the #s

The Art of Risk Analysis Gather Information Set the Right Tone Develop Trust Good Timing Involve the Parties & Counsel Do not Get Stuck Consider Caucus/Joint Session Couple with Transaction Cost Analysis