Which System Is In Control?
In his bestselling book, Thinking Fast and Slow, Daniel Kahneman (Farrar, Straus and Giroux, New York, 2011) notes that our brains contain two systems of thought: System 1 which "... operates automatically and quickly, with little or no effort and no sense of voluntary control" (Id. at 20) and System 2 which "...allocates attention to the effortful mental activities that demand it, including complex computations...." (Id. at 21.)
In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation programs and texts.
Facebook’s Templates for Conflict Resolution and Court ADR
Facebook recently announced its creation of a self-guided dispute resolution system for users. The company has designed a new user-to-user conflict resolution system that could have implications for court ADR systems as well. As in the courts, Facebook must process a large number of conflicts. While the company manages reports of issues such as threats and graphic violence, they wanted to provide users with tools to handle insults and embarrassing photos on their own. The company worked with a team from Yale to research users’ needs and design a large-scale conflict resolution system.
Start Spreading the News: Mandatory Mediation Comes to New York
As someone who started her legal career as a litigator, I, like many other litigators, viewed mandatory mediation with both skepticism and some suspicion. When my client was sent to court-ordered mediation by a judge in the SDNY in the 1990s, I assumed that my adversary and I would merely tick the “attendance” box and return to the judge to let him know that mediation had failed to resolve our complex dispute.
Transformative Mediation, Slovenia, and the Wright Brothers
Many times throughout the Transformative Mediation Congress, I saw mediators explore various aspects of the transformative approach– how it looks in practice, what it means to be non-directive, how to talk to clients as a transformative mediator. We grappled with what this work means to us and to our clients. We discussed ways to help people understand this different approach to conflict resolution. The participants were willing to embrace the challenges of applying the Transformative Approach to their practice and wrestle with them.
Stepping into Someone's Shoes
The phrase stepping into someone’s shoes – the subject of this week’s blog – is commonly used to describe a way to envision the situation from the other person’s perspective. As one source said, “only the wearer knows where the shoe pinches”.
Understanding Each Party’s Power in Family Mediation-Arbitration: Why it is Critical
A recent Ontario Superior Court of Justice decision illustrates the need for clearer guidelines for “screening for power imbalances and domestic violence”, a mandatory component of Ontario family arbitration. It also demonstrates the benefits for parties, lawyers and arbitrators in understanding that some methods of screening are more effective than others; and in ensuring that screening is done in accordance with the best practices before the mediation in a mediation-arbitration.
FINRA Appoints New Arbitration Task Force
FINRA announced today the formation of a new Arbitration Task Force “to consider possible enhancements to its arbitration forum to improve the transparency, impartiality and efficiency of FINRA’s securities arbitration forum for all participants.”
Case Study: The Mediating Manager
Sian is the Communications Manager for a UK charity and has recently appointed James, a designer whose job required frequent contact with production officer Helga, who had worked with Sian for over 3 years. Sian had a sinking feeling that things were not going too well between James and Helga, but Sian was busy and, optimistically, had put the tensions down to early teething troubles and hoped she could leave them to sort out their differences ‘as adults’.
EBay y Sotheby’s se asocian para transmitir subastas de arte por Internet
La compañía de comercio electrónico eBay y la casa de subastas Sotheby’s para transmitir en directo Internet algunas de las subastas que tengan lugar en la central de la casa de subastas en Nueva York. Se hará a través de una nueva plataforma que la empresa australiana de comercio electrónico añadirá en su página web, y se planea que el siguiente paso sea que los internautas puedan pujar desde cualquier parte del mundo. Las dos empresas tienen previsto centrar esta apuesta digital en segmentos como la joyería, los relojes, los grabados, la fotografía, el vino y el diseño del siglo XX.
Minimizing the Litigation Risk in Mediation
Litigation is risky, uncertain and expensive. Mediation works when the factors discussed are put into play and when they are not, mediation may not have been the proper path to follow.
Jumping From the Frying Pan into the Fire
It happens in conflict that things frequently escalate in a way that results in the other person or us making things worse. The expression “jumping from the frying pan into the fire” applies here as an idiom that generally means escaping a bad situation for a worse situation. According to one source, “it was made the subject of a 15th-century fable that eventually entered the Aesopic canon”. Here is the story in brief.
Me, Myself, and I
Who hasn’t seen the poster on a break room wall or heard the rally cry at a company meeting that shouts, “There’s no I in team!”? Yep, the quote is everywhere and even though I understand the intention behind it, I say pshaw to that notion!
The Hopeless Case
Michael P. Carbone
This article discusses the reason why many clients are adverse to mediation: "This is a hopeless case; we are too far apart." The common refrains about being too far apart explain why mediation is needed. If the two sides were close, they would probably settle the case on their own. The reason why they need a mediator is that they are polarized.
Values and Interests Revealed in Detroit “Grand Bargain”
The story of the Detroit bankruptcy mediation’s emerging “Grand Bargain” (as it has been dubbed in the media) is a fascinating case of many different groups working to protect their chosen interests. The bargain demonstrates how mediation allows parties to consider what they are willing to give in order to secure the things that matter most to them, and how traditional rivals may collaborate for a shared goal.
Mediators and the World Cup
As it happens every four years, it is the FIFA World Cup again. I must confess that I am not a football enthusiast myself, but with the greatest football stars at my doorstep, and all the media hype, it is almost impossible for any Brazilian not to get involved at some level. But it is not all rosy, as street protests and some other initial reactions by the Brazilian population against the event throughout the last 12 months have negatively impacted the tournament image.
Some interesting back-and-forth occurred during the last panel of the day yesterday at the 2014 ODR conference, when David Bilinsky, a legal practice consultant, described the high tech tools he uses in teaching law students. To oversimplify his presentation, these tools allow students to conduct side discussions during lectures in a chat feature that can be employed either during an online or even an in-person class. The theory is that these side chats can expand on the lecture, and reinforce learning by facilitating more interactive participation.
Does Mediation Make Us Better?
The prevailing measures of success of mediation have largely examined settlement rates. I examine this among many other things in an empirical study that asks: Does Mediation Make Us Better? This article contains a video that summarizes the study, and a link to the entire article.
How to Encourage Perspective-Taking
When people get angry or upset, they have the tendency to forget to look at other possible circumstances or view points of the situation. They look at just the behaviour and not the possible intentions or causes of the behaviour. It is the mediator’s role to help the parties to see other view points. The article explores examples of situations where perspective-taking can be beneficial. It also explores strategies that encourage perspective-taking. These include telling stories where the participants have been pushed to a point, examining their own behaviour and looking at common values or goals.
Post-Divorce Blues: Unresolved Issues and New Problems Unsettle Divorced Spouses
Dr. Lynne C. Halem
Months, even years, of haggling and anxiety were finally at an end. A new beginning was in the offering. Yet the initial relief, may be filled with sadness, and may well be short-lived. Divorced couples are often faced with agreements that do little to help them navigate an evolving, and even rocky, future. Mediation provides an agreement which is clear and specific as to beginning points and ends, as to the details of property, support, and the children, including education, death, and taxes, provides insurance for protecting couples from the surprises of tomorrow.
agreement which is clear and specific as to beginning points and ends, as to the details of property, support, and the children, including education, death, and taxes, provides insurance for protecting couples from the surprises of tomorrow.
Winks, Nods, and Corporate Culture
Have you ever walked out of a meeting with an agenda for future action that you knew no one would follow though on? Apparently they did just that at GM.
Let us suppose that you are at a mediation or in some sort of negotiation and the other party has just said something that has gotten you so angry, you are ready to grab your belongings and storm out of the mediation/negotiation.
"Conflict - The Unexpected Gift" Book Review
Jack Hamilton, Elisabeth Seaman
Conflict is a common aspect of life that is extremely difficult to avoid because each person is different from others and arrives at his or her own conclusions about the behavior of others and the events in a situation. Although conflicts may seem unavoidable, one can actually learn how to work through them and come out with a better relationship in the end. The book “Conflict—The Unexpected Gift: Making the Most of Disputes in Life and Work”
presents a highly detailed and comprehensive approach to resolving interpersonal conflicts.
El Arte de la Negociación - en Espanol
Julian Ernesto Sccasso Losa
La aplicabilidad de la negociación en la formación militar permitirá preparar al hombre de armas en los distintos mecanismos y habilidades para lograr resultados exitosos antes de llegar al conflicto. En ese sentido estoy haciendo esfuerzos para concientizar sobre la necesidad de formar al personal militar en el conocimiento y dominio de esta disciplina. Entre las actividades que he realizado al respecto está la publicación de algunos artículos en revistas especializadas (militares) que hacen referencia a la aplicación del los MARC en la actividad castrense.
Book Review: Short and Happy Guide to Mediation
Will Pryor's "Short and Happy Guide to Mediation" is both. You can read it in a sitting, and probably will. But it covers the waterfront too. Pryor teaches the latest negotiation theory, but the focus is decidedly on applying it in practice. The book not only helps neutrals, it helps parties and their advocates better utilize the process to maximize results.
Is There A Bad Faith Exception to Mediation Confidentiality?
This articles analyzes an order of a federal court providing that mediation confidentiality would not apply to prevent an insurance company from using statements made during mediation to defend itself against claims of insurance bad faith.
Sunshine in Litigation Act Reintroduced
From a recent National Law Journal: Federal lawmakers have renewed legislation that would require judges to consider the public’s interest before agreeing to seal court records about products liability lawsuits with companies.
Pain in the Neck
When we are in conflict with another person or the dynamics between us seem to be leaning towards one developing, some of us have a tendency to begin to find fault with the other person. We may attribute negative motives to her or him. We may stay away from this person or show the emotions we are experiencing in various ways.
Quick Tip: Hostage Negotiator's Tone of Voice
Crisis and hostage negotiator's are involved in situations that are tense, stressful, and anxiety-filled. In order to try to reduce the overwhelming emotions being experienced by the person they are trying to help, the negotiator's tone of voice is an important tool that can help move the conversation toward a peaceful resolution.
Confidentiality and Due Process
Can mediation confidentiality threaten a party's right to due process? A recent case out of the Central District of California, Milhouse v. Travelers, currently on appeal to the Ninth Circuit, held that the due process rights of a party can override the parties' agreement, and a state evidentiary rule precluding the admission in any subsequent proceedings of statements made in mediation.
The Mediator, The Artist
Mediators can be compared to artists - they begin with a blank canvas with parties too angry to see the possibilities. They help people in conflict see the bigger picture. With each step of the process, a new view or perspective, a new colour, a new brush stroke or insight appears. At first it is only the mediator who can see the newly-formed, unique picture that has appeared through these new insights until through using their skills, those involved in the conflict begin to see the full picture too and move towards resolution.
When an Apology Sets the Tone of a Dispute in Mediation
For commercial mediators it is obvious that commercial interests such as the need to make a profit are the most important incentives for the parties to settle, in the context of course of their legal rights. But in practice and in theory, attention to psychological or personal interests (e.g. reputation, autonomy, status or acknowledgement) is often key to resolve commercial disputes.
Is There A Bad Faith Exception To Mediation Confidentiality?
Recently, I received an e mail alerting me to an order of a federal court providing that mediation confidentiality would not apply to prevent an insurance company from using statements made during mediation to defend itself against claims of insurance bad faith.
One of the ways that some people manage conflict is by using the ‘silent treatment’. This expression refers to “Maintenance of aloof silence toward another as an expression of one’s anger or disapproval”. The same source says this phrase is “a deliberate discourteous act”.
Dispute Resolution Options
Michael A. Zeytoonian
Most people think that when they get into a legal dispute, they have to file a lawsuit. They retain a lawyer, often a litigator, and start an expensive, time-consuming process called litigation. “I’ll sue.” “I’ll take you to court.” It’s what we are taught and reared on, what we see in movies and on TV and what people talk about here in America, the world’s most litigious society. - See more at: http://www.disputeresolutioncounsel.com/2014/05/dispute-resolution-options/#sthash.IQ6GFRXc.dpuf
Politics, Science and Collaboration
This article: “Politics, Science and Collaboration” by Robert Alm, Esq., President
of the Collaborative Leader’s Network in Honolulu, Hawaii, is from Mr. Alm's keynote presentation at the first ever Joint Fact Finding Conference coordinated by Peter Adler on March 6, 2014.
Parenting, Mediation, and Divorce: Meeting the Needs of Our Children
Shannon Rios Paulsen
Children are a huge source of love in our lives; they can say one sentence, bring a huge smile to our face, and remind us of the innocence of childhood. Children all deserve that time of play, laughter, and fun as they grow up. This article addresses what parents and other loved ones can do for children before, during and after a divorce. You can take this information and pass it along or decide to be mentor or positive role model for the children yourself.
From Problems to People
My starting assumption for this article is that the work we do is largely defined by the problems we face. To put it crudely, there's a world of difference between the problems faced by a meteorologist responsible for forecasting the local weather and the problems confronting a surgeon who must decide the best place for an initial incision. And both of these are very different from the mediator sitting with a separating couple locked in conflict.
Do Women Shy Away From Mediation?
Dr. Lynne C. Halem
Women believe that mediation is something like a venus fly trap. The appearance is beguiling, but the results are deadly. In mediation, couples look at the well-being of the family unit, what it will take to forge new lives. A mediator’s responsibility is to make sure that women and men have the knowledge and the know-how to make intelligent choices, that both parties understand their options and opportunities.
Can Mediation Work When Harassment is Alleged?
Lucy and Andrew are senior professionals in a small department within a major IT company. Lucy reports to Andrew, but the relationship is an unhappy one. Andrew comes to Karl, the Head of HR, because he’s had enough of Lucy’s behaviour which he describes as difficult, negative, undermining and disloyal. He sees putting her through the Disciplinary process as his only option.
¿Tramitaremos siniestros por Twitter?
En posts anteriores, repasamos la pésima imagen de los call center, la cual trasluce el rechazo a los teléfonos 902 (peor práctica empresarial de 2014) y que está irremediablemente unida a la tramitación de siniestros.
Conflict is Contagious
Mediators, coaches, negotiators, and ombuds- your verbal and nonverbal actions are contagious. As "guides" in assisting people involved in conflicts and disputes, you can help or hinder them on their journey.
Workplace Violence - Part 2
From 9/11/2001 to 9/11/2013, approximately the same number of Americans died in the workplace due to violence as did American soldiers overseas fighting terrorists. Bullying, stress, domestic disputes, and other considerations account for this. Some researchers have suggested a new mental condition, similar to PSTD, called PTED, which workers may exhibit. Out of control catabolic (harmful) conflict poses a serious problem for both businesses and workers. This two-part series looks into this issue and suggests how ADR practitioners can work to better help businesses make the workplace safer and more productive.
Expanding the Pie with Critical Non-Monetary Concessions
Jan Frankel Schau
I had the privilege of learning from Professor Peter Robinson of The Straus Institute for Dispute Resolution that a well-articulated apology can go a long distance towards resolving even the most contentious commercial dispute. Yet, it is such a difficult word to summon when being sued by another person, as it may suggest acceptance of blame, guilt and responsibility for some conduct which has legally been “denied”.
From 9/11/2001 to 9/11/2013, approximately the same amount of Americans died in the workplace due to violence as did American soldiers overseas fighting terrorists. Bullying, stress, domestic disputes, and other considerations account for this. Some researchers have suggested a new mental condition, similar to PSTD, called PTED which workers may exhibit. Out of control catabolic (harmful) conflict poses a serious problem for both businesses and workers. This two-part series looks into this issue and suggests how ADR practitioners can work with other various professionals to better help businesses make the workplace safer and more productive.
People Moving: Using the Dimension of Space to get “Unstuck” in Mediation
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Jan Frankel Schau
I read Ken Cloke’s newest book, “The Dance of Opposites” over the last weekend and then yesterday I attended an excellent training by my friends and colleagues at the IAM, Tracy Allen and Eric Galton at the United States District Court. They reminded me of a concept Tracy calls, “People Moving” as a means to getting the parties out of position that appears to be heading towards impasse or “stuck”. In essence, the concept is simple in both dancing and negotiating: if you stop moving, the dance is over.