MEDIATION AND POST-ELECTION LITIGATION Perhaps the ·biggest reason an evaluative model may be useful in postelection process disputes has to do with information imbalance. One campaign might hire a sophisticated legal team that understands how various process decisions affect its candidate. If the other campaign has not hired a sophisticated election attorney (or if the attorney hired proves to be less skillful than opposing counsel) this imbalance might prove a great disadvantage. This disadvantage is not just problematic for the candidate, but also for the voters who selected that candidate. In a recount scenario, poor or uninformed lawyering can result in the disenfranchisement of voters. As noted above, state election administrators and judges also vary widely in process sophistication. Over time, should mediation become more widely used in this context, a cadre of "election mediators" might develop. One could imagine that just as Ken Feinberg is now the go-to person for mass disaster claims, 100 specialized and respected election mediators might eventually apply accumulated expertise to resolving post-election process disputes efficiently. Seasoned election law mediators who have developed a track record for helping parties identify and resolve process disputes could prove invaluable towards more efficient resolution of post-election process matters. 101 Election mediators might prove useful for a further reason. Parties in mediation have more flexibility in crafting solutions that resolve more aspects of their dispute than the narrow set of issues presented in a court proceeding.! 02 This is at least in part because a good mediator will foster a lOO Ashby Jones, Ken Feinberg (Who Else?) To Handle Oil-Spill Escrow Fund, J. L. BLOG (June 16, 2010), http:/lblogs.wsj.com/law/2010/06/16/ken-feinbergwho-else-to-handle-oil-spill-escrow-fund. 10 1 In an article in which she argues that lawyers should adopt a more problemsolving, less adversarial role, Carrie Menkel-Meadow describes a perspective that could be used in the election dispute resolution context to good effect: WALL ST. [L]awyer-mediators may use law in their work as facilitators of negotiated solutions to litigational or transactional problems: [they can] help ... [clients] evaluate the merits of an argument, the legality of a solution, assisting in the drafting of an agreement, or in cases of evaluative mediation, actually predicting what a court might do with a particular case or offering particular substantive resolutions of particular legal issues. See Menkel-Meadow, supra note 74, at 804. 102 Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REv. 7, 33 (1996) (A facilitative mediator who takes a broad approach to dispute resolution "will help the parties defme the scope of the problem to be addressed in the mediation, often encouraging them to explore underlying interests to the extent that they wish to do so." Riskin contrasts this approach with mediators who "accept the obvious problem 349 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 349 2012