Facilitation Articles

Facilitation Articles

The Italian ADR Saga: a Machiavellian Plot, or Just Lawyers Without a Plan (10/24/14)
Giuseppe dePalo
Mediation has long been a matter of contention in Italy. First introduced by a government decree in 2011, mandatory mediation resulted in strikes by part of the legal profession, and was then quashed in 2012 by the country’s Constitutional Court. As the number of mediations dropped drastically after the court decision, in September 2013 Italy re-introduced the mandatory requirement. The country is still in the growing pains of a new system.

Body Language in Online Mediation - What Do We Miss? (10/24/14)
Giuseppe Leone
Leaving aside for a moment the question as to whether the "limited" body language in online dispute resolution is sufficient or not for doing our job, I believe that while for us mediators body language is a key factor, from the parties' perspective it is not the "only" factor. For them, there are other important factors to consider.

Expectations and Conflict (10/24/14)
Cinnie Noble
One of the things that can lead to conflict has to do with unmet expectations. For instance, we had hoped that another person would have said or done something that reflects their care and concern for us; they excluded us from a gathering or decision; they had something we wanted and knew it was important to us; or they didn’t provide their support or were unreliable about a matter.

Eight Tips on How to Impress Your Arbitrator (10/24/14)
Richard Levie
While the most successful way to impress your arbitrator is with the merits of your case, there are smaller, but important, ways to create a favorable impression of yourself and your client’s case. This article is one arbitrator’s guide to creating an arbitral environment favorable to you and your client.

Federal Judge Orders Google Wallet Consumer Privacy Dispute to Mediation (10/24/14)
Beth Graham
A federal judge in California has reportedly ordered a consumer privacy dispute that was filed against technology giant Google to mediation.

Faith-Based Mediation: What is it and does it matter? (10/21/14)
Leslie Short, Joyce P. Dugger
This article is defining what we believe a faith based mediation is seen and practice through the lens of being inclusive of all faith and belief system. This article asks two question "What is faith" and "Does it Matter" we explore these two questions understanding the process of embracing all faith. To create a dialog that opens all faith to come to the table without being judge.

The Mediator's Log: A Mediation Story - Section 2 (10/21/14)
John Sturrock
Part 1 discusses a typical mediator's morning, where all of the details of the case and the arguments are revealed. This section, Part 2, discusses a mediator's afternoon, where he uses all of his tools to help the parties understand each other.

Lessons from Jerusalem, Part II: The trouble with false assumptions (10/21/14)
Michael A. Zeytoonian
I wanted to continue the theme from my last Blog post about the Sea of Galilee and the notion of “being a Galilee” a bit with this blog post. This article discusses what I learned over this trip and the trouble with false assumptions.

Mediation 101: Know What It Is That You Want! (10/21/14)
Phyllis Pollack
I had an interesting mediation the other day. I say "interesting" as I am not sure what other adjective to use. Like most of my mediations, it involved an automobile. The plaintiff claimed that the defendant, a used car dealer, misrepresented several important details in the financing of the used automobile that she was purchasing. As a result, she was suing.

Occupy Central: Resolving the Current Impasse (10/13/14)
Jody Sin
Occupy Central (“OC”) has been promoted as a peaceful civil disobedience movement in Hong Kong where the leaders of OC mobilize masses of protestors to blockade Central District to fight for what they consider as genuine universal suffrage. These skirmishes are becoming increasingly violent, and it is time to find a non-violent end to this conflict.

When You Might Need Mediation After Divorce (10/13/14)
Cris Pastore
When the divorce mediation process succeeds, spouses and their families often report a tremendous benefit from having chosen the option. However, there are still times when ex-spouses, even if they remain amicable after divorce, may need post-divorce mediation.

Recognition of International Arbitration in Ukraine in Figures (10/13/14)
Konstantin Pilikov
Arbitration practitioners often put Ukraine below the average ranking of countries in terms of recognition of arbitration. Ukraine’s image of a not entirely arbitration-friendly jurisdiction is “promoted” with common thought about problematicenforcement of arbitral awards in Ukraine. However, in recent years Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach. That progress had been measured during the study resulted in the research paper “Ukraine. Arbitration-friendly jurisdiction: statistical report, 2011-2012”

Seal It With a Kiss (10/13/14)
Michael P. Carbone
Justice Antonin Scalia was in the Bay Area recently, speaking to students at the University of San Francisco School of Law. On the subject of trial advocacy he told them that they should learn how to take a complex case and make it sound simple.

When Trust is Broken (10/13/14)
Meredith Richardson
Do you want to be right or do you want to be in relationship? This can be one of the hardest questions to answer.

Walking on Eggshells (10/13/14)
Cinnie Noble
When applied to interpersonal conflict I think of those disconcerting situations – such as walking on eggshells – when I am reluctant to raise an issue expecting that by doing so I will overly upset the other person. It seems this is most likely to occur when I have a history with and am aware of her or his sensibilities. Though I expect it also happens when we don’t know the other person but reckon that what we have to say will be difficult to receive. In any case, the image itself – from whatever the source –conjures up an extremely uncomfortable experience.

Just Don’t Ask and Get Good Karma??!! (10/13/14)
Cynthia Alkon
As many are probably aware, Microsoft’s CEO recently said that women who don’t ask for raises will enjoy “good karma.” So, his negotiation advice seems to boil down to just don’t ask and you count on the universe rewarding you in this life (or the next).

When to Fight (10/05/14)
Joe Markowitz
President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world. With respect to such crises as Russian aggression toward Ukraine, preventing a nuclear Iran, and the Israeli-Palestinian conflict, the president reiterated his belief in finding cooperative, negotiated solutions.

How to Mediate High-Conflict Cases: Balance and Control (10/05/14)
Jennifer Shack
Like a lot of ADR researchers, I’m always interested to know what really happens in the black box that is the mediation session. So, when someone pries the box open to look inside, my eyes light up. Researchers have begun using conversation analysis to uncover what happens in mediation that leads to successful outcomes. The latest contribution to this research comes from Norway, with a study of 154 custody mediations.

I Hate When He . . . (10/04/14)
Cinnie Noble
Lately I have been hearing several of my friends complaining about their life partners. It seems it is more than usual, but maybe I am just more aware of their plaints these days for some reason. The gripes typically start with “I hate when he (or she)…” and the “odious” acts, as they perceive them, may be how the person answers the phone, eats, flosses, leaves laundry on the floor, makes puns, and on and on.

Creating Spaces for Effective CVE Approaches (10/04/14)
Jeff Thompson
Have a look at the following. It reminds me firstly of Bernie Mayer's Beyond Neutrality- if we as conflict resolution professionals are seeking to make an impact in the world, perhaps we have to move beyond the neutral role of mediators (and other neutral roles).

Finding Success in Leadership (10/04/14)
Jason Dykstra
We asked a leader how anyone manages to stay engaged when they have to re-inspire leaders in a variety of different settings. The answer that they gave, seems to be the secret to success in every field, mediation and otherwise.

Creating A Foundation for Cohabitation (10/03/14)
Halee Burg
You are in a committed relationship. You and your significant other desire to live together but are not ready for or interested in marriage. You decide to rent or purchase a property together, or to move into a place one of you currently rents or owns. You are in good company, joining over eight million cohabiting couples in the United States.

Conflict in Start-ups (10/03/14)
Jeanette Bicknell
From one perspective, conflict in a start-up should not be different from conflict in any other similarly sized organization. And to be sure, some of the same factors that cause conflict in any organization – whether it is a family business or a partnership or a non-profit – can contribute to conflict in a start-up. Yet start-ups also have some unique challenges, and I’ve seen some rather bad advice targeted to them.

Conflict Resolution Day is October 16, 2014 (10/01/14)
Donald Lloyd
ACR's original intention was for Conflict Resolution Day to be promoted by community centers around the country. The belief is that if the public has a better understanding and awareness of mediation, they will be more likely to hire a mediator. And the more mediators that are hired, the better for all of us!

Divorce Mediation Sessions: What Goes on Behind Closed Doors (9/26/14)
Cris Pastore
If you are considering using divorce mediation as the option for your separation or divorce, you might find it helpful to understand what is actually discussed in the mediation room.

Defining Mediation: Voluntary Assisted Negotiation (9/26/14)
Randy Drew
Mediators have historically resisted defining mediation, because mediation can be necessarily amorphic and definitions can be dangerous. However, the world is defining mediation with or without us. Therefore, it is time for us to weigh in on the question: What is mediation?

My Way or the Highway (9/26/14)
Cinnie Noble
t has been a long time since I first heard the expression my way or the highway. Within the context I first heard it and ever since, I have interpreted it to mean that if someone doesn’t go along with the other’s view (position, want, need, etc.) she or he might as well just leave or go away.

On Collaboration (9/26/14)
Ian MacDuff
Many companies and their executives have embraced the imperative of sustainability, but it’s that step into a collaborative approach that still seems too hard.

The Ups and Downs of ADR Policymaking (9/26/14)
Mary Novak
This is the story of how a law intended to increase mediation use led to a dramatic drop-off in mediation and what was done to try to fix the error.

When to Fight (9/26/14)
Joe Markowitz
President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world.

Models for Use of Mediation in e-Discovery (9/19/14)
Steven Bennett
Many commentators and courts suggest that cooperative approaches to e-discovery planning hold the key to lower-cost, higher-quality e-discovery processes. Yet, admonitions to cooperate hardly suffice to motivate self-interested parties. Some system to foster cooperation, beyond the parties themselves, appears essential. One system proposed as a means to promote e-discovery cooperation involves use of mediation. This article outlines an array of mediation techniques that could be used for that purpose.

Is Mediating Prenups a Form of Marital Mediation? (9/19/14)
Laurie Israel
I have been noticing a trend in my practice lately: the first draft of prenuptial agreements generally sketched out a marriage with no guaranteed financial interplay.

How to Make Mediation Accessible to People who are Suspicious (9/19/14)
Katherine Graham
Mediation is not an easy option; it is far easier for humans to tolerate the status quo or seek someone else to fix things for them. Mediation must be the workplace equivalent of root canal work at the dentist.

New AAA Consumer Arbitration Rules are Now in Effect (9/19/14)
Beth Graham
On September 1st, new American Arbitration Association (AAA) Consumer Arbitration Rules went into effect. The 55 new rules reportedly replaced the eight Consumer-Related Disputes Supplementary Procedures that previously applied to consumer arbitrations filed with the organization. The new rules apply to all arbitral cases filed after September 1, 2014

Creating Spaces for Effective CVE Approaches (9/19/14)
Jeff Thompson
Have a look at the following. It reminds me firstly of Bernie Mayer's Beyond Neutrality- if we as conflict resolution professionals are seeking to make an impact in the world, perhaps we have to move beyond the neutral role of mediators (and other neutral roles).

The ADR Provisions of EU Privacy Laws (9/19/14)
Kim Taylor
Companies doing business globally have a variety of complex issues to deal with, not the least of which is concern about the security of personal data collected from their customers.

The Mediator's Log: A Mediation Story - Section 1 (9/12/14)
John Sturrock
What happens when you are a mediator and you start another mediation day? We have printed below the details of a mediator's typical morning. The sequel will be printed shortly. Read on as the story unfolds....

Mediation Briefs: Do’s and Don’ts (9/12/14)
Martin Quinn
Here are some Do’s and Don’ts from a mediator’s perspective to help you prepare your mediation briefs. Treat the event with the importance it deserves, and start by preparing an effective, timely brief.

What Did Labor Day Teach Us About ADR? (9/12/14)
Susan Yates
For a while in the evolution of the ADR field, when two neutrals met they would sometimes ask what the other’s “profession of origin” was. What they meant was, “what did you do before you were a mediator?” There were some unspoken questions packed in there, too. They wanted to know, are you a full-time neutral or are you really from some other profession and trying to break into this one?

Duologue: Inattentive Conversing (9/12/14)
Phyllis Pollack
Daniel Simons and Christopher Chabris discuss the notion of Inattentional Blindness or how when we are looking at a scene, we may become so focused on one particular aspect of what we are viewing that we miss the other objects or stimuli that are in plain sight. "Inattentional Blindness occurs where attention to one thing causes us to miss what to others may seem to be blindingly obvious. We have a limited ability to focus and attention in one area can distract us from another area."

Shhhh! The Big Risk Associated With Mediation Confidentiality Nobody Talks About (9/05/14)
Rachel Ehrlich
In complex civil disputes it is not uncommon for information to be provided through mediation and that information is often subject to mediation confidentiality. When related disputes (contractual indemnity, insurance carrier contribution, insurance coverage and bad faith, and reinsurance) arise, mediation confidentiality prohibits using the information relied upon as evidence in the related matter.

6 Major Mistakes to Avoid in a Do-It-Yourself Divorce (9/05/14)
Cris Pastore
Although spouses claim to have everything worked out, they almost always fail to consider some very important details. Read this article and learn the 6 common mistakes to avoid when attempting to resolve your own divorce.

ADR as a First Career (9/05/14)
Art Hinshaw
There has been a lot of discussion on DR list serves about the next generation of ADR professionals, practitioners and academics. For recent graduates interested in pursuing a career in ADR, the advice they often receive is to first practice law or gain experience in another field before transitioning to ADR as a 2nd (or even 3rd) career. I assume this advice stems from the personal experience of those giving it – as this was the career path of ADR’s founding generation. But is this necessarily the narrative for our next generation?

What’s a ‘Successful’ Mediation? (9/05/14)
Katherine Graham
Mediation is commonly measured in terms of settlement rate (i.e. did the parties agree?) and you’ll see figures like ’80% settlement rate’ bandied about. In our view this is not the only measure of success. There are many more! Think about which measures matter to you – the parties, the mediators, and your organisation.

Texas Supreme Court Agrees to Decide Whether Construction Dispute Should be Arbitrated (9/05/14)
Beth Graham
The Supreme Court of Texas has agreed to review whether an arbitration clause applies to a construction dispute between a developer, a builder, an architectural firm, and others. In G.T. Leach Builders, L.L.C. v. Sapphire VP, LP, No. 13-0497, a condominium complex was destroyed by a hurricane while still under construction. Prior to the hurricane, the builder, G.T. Leach, apparently allowed its insurance coverage to lapse. As a result, the builder lacked sufficient funds to rebuild the condominium project or make the owner whole again. In response, the developer, Sapphire, filed a lawsuit for breach of contract and negligence in Cameron County against the builder.

Rethinking Negotiation Strategy (9/02/14)
Dale Ordas
Too frequently, negotiations are fruitless due to inadequate preparation. Rethinking Negotiation Strategy sets forth critical areas that should be part of the preparation for negotiation. In each segment there are references, which provide for a more in depth exploration of these indispensable tools for the successful negotiator.

Getting to Yes…or No?! (9/02/14)
John Sturrock
On Thursday 4 September, Collaborative Scotland hosts a Day of Dialogue which will focus on respect and reconciliation in the lead up to, and after, the independence referendum in Scotland on 18 September. It is not about Yes and No but how we will live and work together regardless of the outcome of the referendum.

Harvey Hostage Negotiator's Inside Look at Standoff (9/02/14)
Jeff Thompson
In an ABC7 exclusive, a key hostage negotiator gave Eyewitness News an inside look at how he and others helped bring that suburban standoff in Harvey to a peaceful end.

Balancing Fairness with Justice (9/02/14)
Jan Schau
As an arbitrator (or a Judge) we have limits–on our outward demonstration of compassion, our creativity in crafting appropriate and fair remedies and our moral indignancy where wrongs occur without remedies. As poorly as we may feel about how someone was mis-treated, we are constrained to follow the letter of the law (even where it may be at odds with it’s “spirit”) and dole out remedies only where each element of a given cause of action has been proven by a preponderance of evidence together with actual, credible, available damages. Yet, life is messy.

Seven Challenges When Using the Neuroscience Lens to See the World (9/02/14)
Stephanie West Allen
Over the years, I have learned that people reading this blog come from a wide range of belief systems, including atheist, agnostic, and those involved to large or small degree in various spiritual and religious practices. Although this blog post to which I am linking today is written by a Christian and part of the post is from a Christian perspective, I think anyone can learn from this article.

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