Facilitation Articles

Facilitation Articles

Make the Most of Your Mediation – The Personal Injury Case

(11/13/15)Lynn Duryee Doesn’t it seem like all personal injury cases should settle at mediation? Due to the mountain of available data, there is much more predictability with the outcome of PI cases than with other civil cases.

Death and Conflict are Part of Life

(11/09/15)Dan Simon In conflict, professionals often believe that containment, suppression and an efficient settlement are needed. That is, they try to make the conflict go away, just as physicians try to make disease go away.

Federal Arbitration Case Update: The Powers that Be

(11/09/15)Richard Birke Following are two interesting and recent federal court rulings related to arbitration.

Compassion Business: Whose Business is It?

(10/30/15)Michelle Brenner This article discusses a conversation between a Social Psychologist, a politician and community leaders.

Nonviolent Communication: A Language of Life: Life-Changing Tools for Healthy Relationships

(10/30/15)Denise Arellano This article is a book review of the Nonviolent Communication. It details how to have healthy communications with those all around us in a variety of settings.

Dispute Resolution Systems and the Future of Our Field

(10/23/15)John Lande First, I suggested that trials should be considered as part of (A)DR. Now, my school publishes a symposium on judicial education in our Journal of Dispute Resolution. You might understandably wonder if we have lost our freaking minds.

The Hague Convention, Seven Characteristics, and Mediation

(10/23/15)Mary Damianakis This article discusses the Hague Convention on child abductions. It gives an update on dealing with children in international custody negotiations.

Fresh Eyes and Bruce Springsteen

(10/23/15)Hannah Kaufman The feeling of settling in has clear value for those of us involved in mediation, but it poses risks as well.

Why Do We Do These Things?

(10/16/15)Don Cripe I am certain that I have learned more about the law and human beings in my 18 years of mediation experience than I ever believed possible. I am constantly amazed, and I mean that term sincerely, with the things I have witnessed my lawyer colleagues do in mediation.

The Upside of Anger

(10/12/15)Phyllis Pollack In most disputes, when people get angry- it is a bad sign! It usually means that the dispute will NOT get resolved, and that one or the other party will leave in a huff. Indeed, neuroscience teaches us that when the emotional side of our brain (right brain) is operating in full force, there is absolutely no way that we can think deliberately or rationally (?). Our left brain is being overpowered by right brain.

Yes, it Does Matter What Others Think of You

(10/12/15)Vivian Scott If you’re on the Internet at all, you’ve probably seen those quotes floating around social media that are supposed to give you strength, inspire you, or simply provide a chuckle here and there. Some of them can be quite thought provoking; enough so that I often share them myself because I think they’re a quick way to remind us all to be our best, try our hardest, and to generally calm down while we focus on the good things in our lives.

Stop and Think … Before Suing!

(10/02/15)Phyllis Pollack 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?

(9/25/15)Phyllis Pollack 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

(9/18/15)Tammy Lenski 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

(9/18/15)Richard Birke 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

(9/18/15)Sarah Peyton 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.

(9/18/15)Sapna Jhangiani 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!

(9/12/15)Phyllis Pollack 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.

Facilitating Disagreement

(9/11/15)Michael Jacobs 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 Mediation

(9/11/15)Todd Jarvis 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.

Tips for Lawyers Who Want to Get Good Results for Clients and Make Money

(9/04/15)John Lande Recently, I was asked to write an article with advice for law students and lawyers, My Last Lecture: More Unsolicited Advice for Future and Current Lawyers. Here are some highlights from that article.

Straight Outta Compton

(9/04/15)Joe Markowitz 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

(9/04/15)Dan Simon 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

(9/04/15)Beth Graham 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!

(9/01/15)Joseph Callahan 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!
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