Facilitation Articles

Facilitation Articles

Mediations Are Supposed To Be Confidential... But Are They Really? (12/19/14)
Phyllis Pollack
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. But, are mediations really confidential? This article was reposted to ensure mediators are fully aware of this important topic.

6 Reasons You Need a Prenup (12/19/14)
Bruce Provda
Many divorces happen because of financial problems. A prenup forces both parties to look at — and reveal — their financial picture. An open discussion about finance may help to build a firm foundation for marriage.

Police Academy IX: This Time It’s Interpersonal (12/19/14)
Brad Heckman
The New York Peace Institute recently conducted a mediation training for the NYPD. They have kindly shared how the training went, tips and tricks for training, and some insights into the cross-over between police and mediation.

How You Go About Resolving Your Dispute Is Up To You (12/19/14)
Michael A. Zeytoonian
One point we want to drive home with clients in this series about tiered dispute resolution clauses is that parties have the right and the need to find the right process choice. Not only do parties have options, but with good, creative advice from their lawyers, they can sometimes design the process so that it is tailored to their needs, bandwidth and the circumstances of the specific dispute.

What an 8-year-old Taught Me About Life (12/19/14)
Meredith Richardson
Playing games brings out the worst in us," normalized these feelings for me. I am not the only one who feels a little yucky during the game as the competitive spirit takes over, while, at the same time, there is no clear path to controlling the situation so as to create the best possible outcome for myself. The need to win can bring out the worst in each of us.

Najar on Dispute Management 2.0 (12/19/14)
F. Peter Phillips
Najar, his colleague Michael McIlwrath, his former colleague PD Villarreal, and others at General Electric were responsible for pounding into my head two distinctions. The first was the concept of “dispute management” rather than “dispute resolution,” and the other was “Early Dispute Resolution” rather than “Alternative Dispute Resolution.”

Non-Judicial Means of Collective Redress in Europe (12/19/14)
Beth Graham
S.I. Strong, Associate Professor at the University of Missouri School of Law, has published a book chapter entitled Non-Judicial Means of Collective Redress in Europe in Collective Redress in Europe (Oxford University Press, anticipated 2015); University of Missouri School of Law Legal Studies Research Paper No. 2014-29. In her book chapter, Professor Strong analyzes large-scale arbitration and other non-judicial avenues for collective redress in Europe.

Mediation Going Forward: What Do We Know? What Can We Expect? (12/17/14)
Donald T. Saposnek
The current complexity of our problems, at least in the U.S., is close to the point of overwhelm; for the individuals involved, for the governments that rule them, for the courts that adjudicate them, for the economic systems that support them, and because of the corrupted values that guide them.

Beyond “Getting to Yes:” Building Mediation Skills and Insights into Relationships (12/16/14)
Tom Stipanowich
A quarter century ago many believed we were experiencing a revolution in the way conflict was managed. Nowhere was this more noticeable than in the construction sector, the primary focus of my practice as an advocate and dispute resolution professional.

Agatha Christie Helped Me Be A More Effective Mediator (12/12/14)
Elizabeth Kent
This short article presents a technique that the author calls a "Miss Marple Moment." Through the use of parallel stories, a neutral may address attribution and perceived negative intentions, and assist participants in seeing their situation in a different light and help them reflect on their contributions to the conflict. Hopefully, it is a fun read, just like an Agatha Christie book.

Mediator Ethics and Professionalism: A Recipe for Success (12/12/14)
Josefina Rendon
I attended an interesting presentation on agreement writing and other mediation issues for advocates. One presenter talked in terms of moves, strategies, bluffs and get-away-with’s. The other talked in terms of good practice and ethical standards. Though the first mediator never advocated unethical conduct, the second struck me as a professional whose values and ethical standards were at the forefront of his practice.

Workplace Restoration Case Study (12/12/14)
Jeanette Bicknell
Relations between the account services team and the head of production (“Bob”) were at an all-time low. The “drama” was a distraction from business. The manager wanted people to be able to work together collaboratively as a team. She was tired of responding to complaints about Bob and wasn’t sure what to do. And she wanted a quick solution before key staff members left for vacation. So she turned to a mediator.

Retire Already! Why? (12/12/14)
Larry Susskind
This article discusses retirement in non-traditional fields such as mediation and teaching. Should there be a set retirement age?

It Is All In Your Perspective! (12/12/14)
Phyllis Pollack
The December 2014 edition of The Atlantic contains an interesting article entitled "The Real Roots of Midlife Crisis" by Jonathan Rauch. In it, he notes that mid-life crisis is not a unique reality to the United States. Rather, it is a worldwide phenomenon explained by science and more particularly the "U" or happiness curve.

The Californication of Mediation (12/12/14)
Geoff Sharp
The rise and rise of the mediator’s proposal [1] and other evaluative interventions by many of our number, along with the relentless demise of the joint session, are all part of a larger lurch to the right for mediation practice.

Mediator’s Proposals: God’s Gift to Mediation, or a Betrayal? (12/12/14)
Martin Quinn
Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system. The great early teachers and scholars of mediation — Frank Sanders, Christopher Moore, Leonard Riskin and others — envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path.

‘Tis the Season for Mediation (12/12/14)
Susan Yates
In what has become an annual tradition, here is RSI’s seasonal parody of the Twelve Day of Christmas. Enjoy!

The Future of Alternative Dispute Resolution (12/09/14)
Jerry Barrett
Given the creativity of ADR practitioners and scholars, the best of ADR will continue to grow and expand to new areas of practice, and unheard of new ADR practice will emerge.

Mobbing at Work - en Espanol (12/05/14)
Alicia Millán
Este artículo intenta abarcar tres aspectos diferenciados aunque esenciales para el reconocimiento y tratamiento de este modo de violencia que tanto el Informe sobre Seguridad en el Trabajo de la Organización Internacional del Trabajo (O.I.T.) como otras publicaciones especializadas en la materia y en Congresos y Eventos sobre el tema lo califican como “nueva plaga laboral del siglo XXI”.

Dealing with Difficult People (12/05/14)
Jon Warner, John Radclyffe
We have to face dealing with difficult people at any time in our lives (and at both work and in our home lives). But in general, it’s not so much that the people themselves are difficult (although there are exceptions to this of course), but it is more likely that we find their current behavior difficult to deal with at a particular point of time.

Arbitration Trends in 2014 (12/05/14)
Beth Graham
A survey recently conducted by Today’s General Counsel asked in-house attorneys about their thoughts on arbitration. The results published in Arbitration Trends 2014 indicate that nearly half of lawyers surveyed normally choose arbitration over traditional litigation because it is required by contract. In addition, 38 percent stated they select arbitration because it is less expensive than litigating a case and the process preserves confidentiality.

Behind Mediation’s Smoke and Mirrors (12/05/14)
Katherine Graham
Positive mediation outcomes are fairly common, which you might think is down to the magic of mediation. But there are several implicit reasons why mediation outcomes are high, which aren’t generally to do with the quality of the mediator! I want people to understand the reality of mediation and what it can achieve, and not to be taken in by the rhetoric you’ll find on some websites.

Having an Axe to Grind (12/05/14)
Cinnie Noble
According to wiseGEEK “There are two meanings to the phrase ‘an axe to grind’. The first meaning is the traditional American one, which means having an ulterior motive or personal reasons, other than the obvious, for doing something. The British meaning is to hold a grudge or a grievance against someone or something.”

Revisiting Reframing: Mediation and the Impact of “Spin” (12/01/14)
Barbara Wilson
In this brief piece I argue that it is time to revisit some of the existing critiques of mediation. I look again at the function of reframing, question whether it still warrants the essentialism attributed to it in practice, and explore some alternative strategies. I also argue that, as a consequence of contemporary manoeuvring by the state and the media, disputants may perceive reframing in mediation as a form of “spin”, defined by the Oxford Dictionary as “the presentation of information in a particular way; a slant, especially a favourable one”.

Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination (12/01/14)
Robert A. Baruch Bush, Joseph P. Folger
For us and the colleagues we’ve worked with for many years, our first premise has always been that self-determination, or what we call empowerment, is the central and supreme value of mediation – a premise probably shared by many in the field. This is what we were struck by when we began, and believed was uniquely served by mediation. We believe in the value of upholding party choice, and we also believe that increasing understanding, reaching sustainable resolution, and other goals all rest on the foundation of genuine party self-determination. At this point in the evolution of mediation, the question in our view is, what has happened to the mediator’s mission of supporting self-determination?

Have You Got What it Takes to be a Mediator? (12/01/14)
Katherine Graham
I’ve always been intrigued about what it’s like to be someone else. We’re so isolated in our own thoughts and feelings, we only see the surface of each other. And it’s scary to be genuine with other people; there are so many social constructions that formalise how we talk to each other and I find those exhausting and limiting, and often meaningless. So what I love about mediation is that when you’re mediating you’re actually in a space where people are really working hard to not collude with those social constructions.

Use and Perception of International Commercial Mediation and Conciliation (12/01/14)
Beth Graham
The project was constructed with two goals in mind. First, the study attempted to discover and describe current behaviors and attitudes relating to international commercial mediation and conciliation so as to set a benchmark for further analysis in this field. Second, the research attempted to determine whether the legal and business communities thought an international instrument in this area of law would be useful and if so, what shape they believed that document should take.

Improve Your Communication: Use Earplugs! (12/01/14)
Dan Simon
Guest blogger Kees van Eijk writes, "It started as a communication problem between my spouse and me. But my hearing impairment has remarkably become the most important instrument in my communication toolbox."

The Key “Moral” from Stories Mediators Tell (12/01/14)
Wayne Brazil
The theme of the 2014 Mediation Week was inspired by Stories Mediators Tell, a moving and illuminating collection of stories about the often dramatic facts of mediation life that Editors Eric R. Galton and Leila P. Love coaxed from a diverse group of experienced mediators to share with the rest of us.

My Least Favorite Part of Conflict (12/01/14)
Meredith Richardson
My least favorite part of conflict is not the conflict itself, nor is it any argument that may result. It's the aftermath. It could be that the conflict remains unresolved. It could be that things were said that deeply hurt one or both people, and that hurt feelings have been lingering for quite some time and only recently voiced.

The Art and Science of Mediation: How the Principles of Commitment/Consistency and Expectation May be Applied to Mediation to Help Break Party Impasse - Part Two (11/21/14)
Jennifer Winestone
This article provides a review of two psychological concepts derived from Robert Cialdini's "Influence: The Psychology of Persuasion" and Dan Ariely's "Predictably Irrational" and considers their practical and ethical implications as applied to mediation.

Fear Comes to School: Mediating Among Parents Around Ebola (11/21/14)
Richard Barbieri
As medical personnel, emergency aid workers, and diplomatic personnel return to the U.S. from West Africa, schools must manage tensions between local families who are fearful for their own children, and parents who have been at the front lines attempting to stem the epidemic. What mediator strategies may prove useful?

De qué manera puede incidir e insertarse el Crowdsourcing en la Resolución Electrónica de Disputas (CORD) en un futuro? (11/21/14)
Alberto Elisavetsky
El siguiente es un artículo colectivo, producto de los aportes, comentarios y reflexiones que se realizaron en el foro de Cyberweek 2014.

First Ever Conflict Resolution Flash Mob! (11/21/14)
Linda Mealey-Lohman
Talk about creative ways to teach the public about ADR! Watch the video of the first conflict resolution flash mob.

Processing it All on the Last Day…. (11/21/14)
Karmit Bulman
On my last evening in Israel, I walked on the beach and gazed at the sunset over the beautiful Mediteranean Sea and I was full of so many complex thoughts. That day my visit to Neve Shalom Wahat Al-Salam involved me joining a group of German Citizens who came to view the atrocities imposed upon the Palestinians by the Israeli Government.

10 Tips for Choosing the Right Divorce Mediator (11/14/14)
Cris Pastore
Perhaps you've come to the realization that divorce mediation is the way to go for you and your spouse, but how do you choose a divorce mediator? After all, not all divorce mediators are created equal.

5 Ways to Ruin Your Relationships (11/14/14)
Jason Dykstra
Ugh…relationships…who needs them? They are so needy! Your coworker always wants to go out for a beer after work, your partner wants to spend time with you, your friend keeps calling you up to come see your new house. Who has time for all this? It’s probably better just to get rid of them all. So here’s 5 things you can do to ruin any relationship in your life; work, home, friends, even acquaintances.

Arbitration in Evolution (11/14/14)
Beth Graham
The arbitration survey conducted by Professor Tom Stipanowich and the Straus Institute revealed current practices and trends in arbitration. This article specifically examines the demographics of the arbitrators and questions whether these demographics are the best for the business.

The Growth of Arbitrator Power to Control Counsel Conduct (11/14/14)
Margaret Moses
There have been increasing calls over the past few years for an international code of conduct for counsel in international commercial arbitration, and for arbitrators to have more power to control counsel conduct. The growing concern is related to significant changes that have taken place in international arbitration practice.

Time Is "Like-The-Present" (11/14/14)
Phyllis Pollack
There is an old adage, "Why do today what you can put off until tomorrow?" And indeed, many of us do just that because time is a precious commodity of which there is never enough.

Who Are You When You're in Conflict? (11/11/14)
Cinnie Noble
It happens sometimes that we lose track of ourselves when in conflict. We may find we turn into someone who doesn’t even resemble who we usually are and how we interact. We may become an angry parent, a petulant child, a dogmatic teacher, a judge or other personas that reflect a different somebody than we want to be.

5 Reasons It’s Hard for Mediators to Support Self-Determination (11/11/14)
Dan Simon
Many mediators practice consistently with our intention to support party self-determination throughout the process. These mediations tend to be very meaningful to the parties and tend to lead to profound shifts in how parties see the situation, themselves, and each other. They also tend to lead to settlements that all parties are genuinely, lastingly at peace with. But in the world of litigation, mediations continue to be far less effective, meaningful, and empowering than they could be. Many mediators who work on litigated cases continue to use methods that undermine self-determination, that interfere with inter-party recognition and that cause the process to be far less satisfying. Here are 5 reasons that these less effective practices persist.

Giving Children a Voice (11/11/14)
Sabine Walsh
“There can be no keener revelation of a society’s soul than the way in which it treats its children.” Nelson Mandela

Intervening in Conflict When It's Not Your Job (11/11/14)
Tammy Lenski
When you’ve got conflict resolution skills, you can’t help but notice all the situations around you that might benefit from your help. But how do you choose when to help informally and when to stay out of it?

Metrics (11/11/14)
Joe Markowitz
I was interviewed the other day for a possible article on court-ordered mediation. In discussing this topic, it's hard to avoid talking about such questions as settlement rates in various kinds of programs, or how mediation programs affect the workload of the courts

Did Hunger Sabotage A Mediation? (11/11/14)
Phyllis Pollack
The other day, I conducted two mediations between the same plaintiff's counsel, the same defendants and their counsel. The only different party in the two mediations was the plaintiff. One mediation was to start in the morning and the next in early afternoon, figuring each would take about 3 hours.

Reflections on Everything is Workable: A Zen Approach to Conflict Resolution (10/31/14)
Doris Tennant
Everything is Workable (Shambhala, 2013) is Hamilton’s book about how to live consciously in a world sated with conflicts. She acknowledges that learning conflict skills asks something of us: “The more intimate we become with human suffering, the greater our compulsion to serve others.”

The Shocking Cost of Divorce in PA (10/31/14)
Cris Pastore
The added expense of living in two separate households may be obvious in a divorce case, but have you also budgeted for the cost of hiring a divorce lawyer to go to court? Read this article to gain a full understanding of the fees associated with a divorce lawyer and understand why divorce mediation may the better option for you.

Mediation will Get its Foot in a South African Door (10/31/14)
Jacques Joubert
A fortuitous incident one Monday morning changed everything for two disputees. The two trustees found themselves in the uncomfortable position of getting into the same lift. Without acknowledging each other’s presence they watched the doors close and felt the lift slide down from the 12th floor. It stayed stuck there for two hours - perhaps the most fortuitous two hours of their lives. For in those two hours they resolved a two-year long frozen conflict by talking to each other – person to person.

What is Negotiation? (10/31/14)
John Lande
We often think of negotiation as a distinct and climactic phase of a dispute. Interactions leading up to the final settlement event are often considered merely as preparation, if that. In litigated cases, we often ignore the litigation as if it was largely irrelevant to the information available and the dynamics in negotiation.

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