Stop and Think … Before Suing!
Californians have a reputation for being litigious; for making mountains out of mole hills. Judge Kozinski of the Ninth Circuit Court of Appeals minces no words on this point. A very small “tiff” got very much out of hand apparently because neither party had the courage (or common sense?) to admit the error and/or apologize.
Mediations are Supposed to be Confidential… But Are They Really?
Either as a participant in a mediation or as the mediator, we have all learned the cardinal rule that mediations are confidential both in terms of the statements and other communications made during the mediation and the information the mediator keeps to herself, not sharing it with the other parties. Many times a mediator has analogized mediation confidentiality to the television ad, “What happens in Vegas, stays in Vegas” to explain the sacrosanct nature of mediation confidentiality.
Sawubona: I See You
In moments of conflict, seeing someone whole is both a noble and a difficult thing. It is a worthwhile pursuit whether we’re part of the conflict or we’re helping them sort it out — because that’s where possibility lives.
How Likely Am I to Win? Risk, Uncertainty & the Turkey Illusion
When parties are faced with an attractive settlement offer, they frequently wish to compare the offer to what they might get at trial, which is the product of the odds of winning times the value of the verdict or award. Naturally, they ask their lawyer “how likely am I to win?”
Staying Present: What Couples and Mediators Long For
The most elusive thing in this world is present-time relationship. It is hard enough to be mindful all by ourselves. There is a reason that meditation practices are traditionally done sitting on our own individual cushion and in silence.
Keep it Simple. Keep it Interesting.
In an age of ever-increasing complexity, where your watch can open your garage and answer your phone (yes, the Apple watch can really do that), many of us in the international arbitration community have lost sight of the most powerful weapon in the advocate’s toolbox: simplicity.
Rudeness Begets Rudeness!
I conducted a mediation the other day in which both sides professed that they wanted to settle the matter as the trial would be a “big distraction” but were stymied in their efforts due to personality conflicts. (They both wanted to settle as they did not want to have anything further to do with the other: to each party- the other was not to be trusted.) It reminded me of a divorce in which both parties want the result but are so busy hating each other that they cannot get past the hatred to work towards the mutual goal of ending the relationship.
After twenty years practice and at the point of retirement, one of my mediator colleagues reflected on her experience of working with people in dispute. What struck her most forcefully was how rare it was for people to be able to disagree constructively. Disagreement inevitably ended up as conflict. At which point, people no longer had different points of view, they had a fight.
Scientific mediators attempt to tread the path between “Merchants of Doom” and “Merchants of Doubt” as “Merchants of Discourse” using multiple working hypotheses and multiple ways of knowing as their moral compass.
Straight Outta Compton
Who would have thought that the new movie, Straight Outta Compton, in addition to its great story and great music, would also contain some great lessons about negotiation?
The Transformative Lawyer
The skills and underlying premises of transformative mediation are often contemplated in the context of mediation. But is there a place for using the skills of a transformative mediator as an advocate in a contentious litigation? Here is the story of Chris G., a recent Hofstra graduate who was a member of the mediation clinic where transformative mediation was the approach taught and used.
Reasoned Awards in International Commercial Arbitration
University of Missouri School of Law Professor S.I. Strong has written “Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy,” 37 Michigan Journal of International Law, 2016, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2015-18. In her publication, Professor Strong analyzes the requirement for reasoned awards in the context of international commercial arbitration.
What if Jon Stewart and Stephen Colbert Reacted to Simon & Rhoades on Imperati on Bush and Folger!
This article rebuts “Bush and Folger on Reclaiming Mediation’s Future” written by Dan Simon, Dusty Rhoades, and Vicky Rhoades for Mediate.com in 2015. Their article attempts to rebut my 2015 article, “Ironically, Bush and Folger are Evaluative,” which was itself a rebuttal to the 2014 Bush and Folger article, “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination.” There’s a whole lot of rebutting going on!
Update on Mediation Confidentiality
As originally drafted and introduced into the California State Assembly, it provided that mediation confidentiality would not preclude the introduction of “… communications between a client and his or her attorney during mediation… in an action for legal malpractice or breach of fiduciary duty or both, and in a State Bar disciplinary action, if the attorneys’ professional negligence or misconduct forms the basis of the client’s allegations against the attorney.” In short, mediation confidentiality would not provide a shield to an attorney in a legal malpractice action, State Bar proceeding or disciplinary action where his alleged misfeasance or malfeasance arose during mediation.
Mediation as a "Disruptive Innovation"
Borrowing from Harvard Prof. Clayton Christensen’s 1997 classic The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail, this article examines how mediation can replace litigation to become the standard practice for resolving disputes in the U.S. While most consider mediation an ‘alternative’ to litigation, I argue it’s only a matter of time before mediation reaches ‘cornerstone status’ in our legal system. Among other things, the article focuses on how law firms and legal education may have to adapt to achieve this goal. However, the outcome can only result in a less expensive, time consuming and emotionally draining process.
Transforming Disputes into Transactions via Collaborative Law
Michael A. Zeytoonian
When I work with people to help them resolve their disputes, I often find that they are very preoccupied with finding fault and placing blame for what has happened to trigger the dispute. We spend a lot of our energies, time and emotion – clients and lawyers alike – looking backward at what happened and seeing who we can hold liable.
Laying the Table
In both practice and training, we’ve long operated on some assumed attributes of mediation – confidentiality, neutrality – and a loose consensus on at least the key elements of what mediation looks like, though without offending our other cherished values of pluralism, diversity, mediator autonomy, and context-sensitive design.
Conversation with Peter Benner About PEDR, Part 6
I think company managers, by and large, do feel they have control, which is, as you say, reflected in increasingly tight litigation management, which does predominate and persist, as well as loosened loyalties to a particular firm. Beating up lawyers on fees is now considered part of the relationship. The issue is one of culture and disposition rather than control.
No Sour Grapes in this Conflict
What would you do if someone secretly took grapes from your garden? Would you get mad? Feel like a victim? Blame the neighbors and call them thieves? Put up a fence to protect your property? Post angry warning signs?
Are You Seeing the Benefit of Soft Skills?
“Soft skills like communication and teamwork are incredibly important to our business because of the impact they can have on our customers’ experience. As integral as they are to the performance and progression of our employees, I know that we can do more to recognise their importance which is why we are launching this campaign," says the Chief People Officer of McDonalds UK.
Patent Arbitration: It Still Makes Good Sense
Peter Michaelson, Michaelson ADR Chambers, LLC, has published “Patent Arbitration: It Still Makes Good Sense,” Landslide (Journal of the ABA Section of Intellectual Property Law); July/August 2015, pp. 42-47. In his paper, Mr. Michaelson examines the future of patent arbitration following the implementation of the Leahy-Smith America Invents Act.
The Downside of Arb-Med-Arb Procedures
The AMA procedure is not the end of the line. Enforcement of settlement agreements is cited as a crucial aspect and the AMA procedure is not completely geared up for it looking at its many downsides. It would be more desirable and feasible to prepare a uniform model provision on enforcement of mediated settlement agreements that would be universally acceptable.
Some Valuable Learning Points From Recent Mediations
“What’s been going on in recent mediations”, asked a colleague. “Any highlights?” (The trouble with doing anything on a regular basis is that you can omit to reflect on the learning from each occasion.)
Managing Difficult Behavior: Lowest Level of Intervention First
When responding to someone else’s difficult behavior during conflict, a good rule of thumb is, “Use the lowest level of intervention first.” Here’s why this rule of thumb is useful for managing difficult behavior and a concrete example to illustrate.
Empathy - Part 2
Last week, I wrote about empathy – its definition and what researchers have found about why we may be more empathetic in certain situations and/or given our personalities. The blog concluded with the notion that empathy can be learned; it is our choice whether we wish to be more empathetic.
Sometimes You Need to Give Them Reasons to Mediate
So you would like to mediate your divorce, but you think you’ll have a hard time convincing your spouse to go along. I’m assuming he or she is ready to end the marriage as well and having a conversation about how to do it won’t be a surprise.
What Mediation and Marathon Running Have in Common
I like mediating. I also like running marathons. What this says about my sanity is a question for another day, but the more I do both the more similarities I identify between the two disciplines. A recent week of particularly arduous mediation brought these similarities to mind more than usual.
Colin J. Wall Memorial
F. Peter Phillips
The death of Colin J. Wall on July 16, 2015, is a crushing blow to our profession and a personal loss to me.
Problem-solving Effectiveness of Sports Mediation
Sports is a highly-competitive culture and that same commitment and drive it takes to get results can also be a strength so strong, too strong in fact, that it becomes a weakness in minimizing or resolving very costly conflicts, whether that be relationally, performance wise or financially.
Seeing the World Through Others’ Eyes
In our conversations, I have talked about the value of trying to see the world through others’ eyes. There are several reasons why I have found it valuable including moral, practical, and even mental health reasons – it helps me maintain whatever sanity I have left.
Legal Informed Consent Includes Knowing Your Legal Process Options
Michael A. Zeytoonian
"An educated consumer is our best consumer." That was the memorable tagline for Syms, a successful men’s clothing retail store in the New York area years ago. It struck a chord for many reasons. A business that wants its customers to be educated on its products or services reflects honesty, transparency and a shared desire for quality and value. It respects and compliments the customers. It implies that the business wants its customers to be intelligent, do their homework, research and due diligence before coming into the store or office and doing business together.
The UNCITRAL Convention on Enforceability of Settlement Agreements Resulting from International Commercial Mediation
In February 2015, the U. N. Commission on International Trade Law (UNCITRAL) Working Group II (Arbitration and Conciliation) met in New York to consider the case for a Convention on the recognition and enforcement of international settlement agreements achieved through mediation. The task was to report on feasibility and the possible form of work in that area. The Working Group did receive several comments from states on the need; the status of settlements; possible exceptions; and the technical feasibility of this new convention. This article collectively summarises the questions underlying possible harmonized solutions.
The Long Path to Immediate Forgiveness
I had a short lived fight with my wife, Linda, recently that I actually feel good about, because it shows the positive results of my ( and her) long hard work on forgiveness.
Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation
Mediators around the country find themselves uncomfortable with what is being called mediation in their own and other areas. Accusations are made that one or another approach to mediation is not “real” mediation or are not what clients wanted. In addition, many clients and attorneys are confused about what mediation is and is not, and are not sure what they will get if they go to mediation.
In An Interdependent World There Is No Them And Us, Only Us
The old certainties are gone. The disruption caused by the General Election result will inevitably cause instability - and opportunity. Now is the time for new thinking, a break from the old paradigms. You don't solve your problems by using the same thinking that got you into them, as Einstein would say.
“Justice” Report for England and Wales: A Missed Opportunity for Radical Change
"Justice," a UK think-tank committed to legal reform, launched a new report in April 2015 entitled "Delivering Justice in an Age of Austerity". It proposes significant changes to the justice system of England and Wales, including a new character, the "Registrar", who would have powers to mediate, provide early neutral evaluation, dismiss cases or refer them to a judge. The article provides a detailed critique of the proposals, concluding that despite great merit, they extend the "shadow of the law" by making early neutral evaluation the default. A more radical and empowering change would have been to make mediation the default, with ENE and adjudication the remedial alternatives.
Making Better Use of Mediation to Resolve Disputes and Manage Difficult Issues
Mediation encourages parties who have – or who anticipate having – differences, conflict or a dispute to sit down and talk, with a view to finding a mutually acceptable way forward. It is usually most appropriate when, for a number of reasons, people are unable to negotiate effectively for themselves or have reached some sort of impasse or deadlock. It recognises that direct negotiations can be difficult in many situations. It can also be effective to prevent awkward situations escalating.
Consolidation and Conflict in the Health Care Industry
The health care industry has experienced a significant increase in consolidations among providers of facilities and services alike. From drugs to devices to service providers, 2014 saw the largest consolidation within the health care industry in the past 20 years. - See more at: http://jamsadrblog.com/#sthash.AQhZ4CpV.dpuf
“Bags of Trouble”
I started getting interested in conflict resolution back in the late 90s. At the time I was a business analyst working on retail supply chain issues.
So You Think You Don’t Need Dispute Resolution in Your Organisation?
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Over the next 6 weeks we will be following Carol, Mike and their colleagues, as they experience the difficulties that arise when we don’t have the skills to handle conflict at work. It all ends in an unnecessary grievance; so how did something that started out as a small problem get to that outcome?