Facilitation Articles

Facilitation Articles




Update on Mediation Confidentiality (8/28/15)
Phyllis Pollack
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" (8/28/15)
Sig Cohen
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 (8/28/15)
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 (8/28/15)
Ian MacDuff
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 (8/21/15)
John Lande
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 (8/21/15)
Lorraine Segal
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? (8/21/15)
Katherine Graham
“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.


There’s Never Been A More Important Time To Learn About Effect (8/21/15)
Jason Dykstra
This blog is a part of a series about the communication model – Intent, Action and Effect. Today we’re tackling effect, to see the others visit here.


Patent Arbitration: It Still Makes Good Sense (8/21/15)
Beth Graham
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.


On the Question of a Party's Capacity to Use Mediation (8/21/15)
Jeanne Cleary
A mediator came to me for a consult with an intriguing situation while co-mediating a Harassment Prevention case in a local court. I analyze the situation in this article.


The Downside of Arb-Med-Arb Procedures (8/21/15)
Gracious Timothy
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 (8/13/15)
John Sturrock
“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 (8/08/15)
Tammy Lenski
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 (8/08/15)
Phyllis Pollack
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 (8/08/15)
Jeff Murphy
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 (8/08/15)
Sabine Walsh
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 (8/07/15)
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 (8/05/15)
Michael Toebe
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 (7/30/15)
John Lande
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.


Make the Most of Your Mediation: The Single-Family Construction Defect Case (7/30/15)
Lynn Duryee
How can you economically and effectively settle the single-family construction defect case? In a recent mediation involving a homeowner, contractor and 15 subs, the participants used the following practices, which resulted in 16 signed settlements at the end of one day.


Just to be clear: Family Court Doesn’t Resolve Conflict (7/30/15)
Gary Direnfeld
Parents turn to the court thinking a Judge will settle matters and life will be peaceful thereafter. This is far from the truth.


Legal Informed Consent Includes Knowing Your Legal Process Options (7/30/15)
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.


Litigation vs. Mediation - “Child’s Play” for Understanding Your Options (7/30/15)
Jennifer Winestone
This article applies the litigation and mediation processes to a common parenting scenario in order to illustrate the differences between the processes and the advantages of resolving family conflict through mediation.


The UNCITRAL Convention on Enforceability of Settlement Agreements Resulting from International Commercial Mediation (7/30/15)
Gracious Timothy
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 (7/21/15)
Lorraine Segal
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 (7/14/15)
Zena Zumeta
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 (6/29/15)
John Sturrock
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 (6/29/15)
Charlie Irvine
"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 (6/19/15)
John Sturrock
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.


The Surprising Way to Ask Better Questions in Conflict (6/19/15)
Tammy Lenski
When we’re stuck in conflict, sometimes it’s the questions we’re asking ourselves or our sparring partner. To ask better questions in conflict, try this surprisingly useful trick…


Researchers Identify Useful Negotiation Strategies for 'Honor Cultures' (6/19/15)
Jeff Thompson
The following research study could be of interest to crisis negotiators as it involves the concept of different cultures- especially those in which "honor" has a significant role.


Consolidation and Conflict in the Health Care Industry (6/19/15)
Viggo Boserup
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


The Cincinnati Police-Community Relations Collaborative as a National Model for Improving Police-Community Relations Today (6/19/15)
Jay Rothman
The US is now facing national crisis and vigorous discussion about the faults of its criminal justice system, particularly around the African American community and its encounter with the police. This is an opportune moment to take stock of lessons learned from The Cincinnati Collaborative, hailed as national model for police-reform and improving partnership and problem solving between police and community.


“Bags of Trouble” (6/19/15)
Jai Jayaraman
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.


Planning is Critically Important for Early Dispute Resolution (6/12/15)
John Lande
Early mediation is a waste of time. This was a refrain I heard several months ago at a meeting of lawyers representing large corporations.


So You Think You Don’t Need Dispute Resolution in Your Organisation? (6/12/15)
Katherine Graham
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?


Why We Have Different Experiences (6/12/15)
Jason Dykstra
How often does this happen to us? We experience the same action as another person and walk away from the action with a totally different perspective that happened. It happens at staff meetings, conversations with our bosses or employees, and even with our partners and kids.


Compliance Success with Mediated Settlements in Small Claims (6/11/15)
Mattie Robertson
A report on the success of mediated settlement agreements by SEEDS Community Resolution Center's mediation team in Small Claims Court in Alameda County. High compliance with settlements has provided litigant parties with a reliable and effective way to resolve their cases using interest-based negotiation within a community mediation model.


Overcoming Reluctance to Engage in Mediation (6/11/15)
Laura Athens
Many attorneys know and appreciate the benefits of mediation.  Those who are familiar with the benefits of mediation readily propose and eagerly participate in it.  However, should you encounter any resistance, how can it be addressed?


Seeking “Justice” (6/06/15)
Phyllis Pollack
Plaintiffs file lawsuits seeking “justice”. Defendants respond, stating they are seeking “justice” as well. Both come to mediation, seeking “justice”. When I am told this, that each side wants “justice”, I am not sure how to respond because I do not know exactly what that word means.


The 2016 Global Pound Conference Series (6/06/15)
Jeff Thompson
In April 1976, an event now known as the Pound Conference ignited modern ADR in the USA, launching discussion of what might be the “greatest reform in the history of the country’s judicial system “.[1] Forty years later, all stakeholders in the dispute prevention and resolution fields around the world are being invited to participate in a series of unique thought leadership events around the globe under the auspices of a Global Pound Conference (“GPC”) series.


The Little Things in Our Relationship Won’t Ruin Us (6/06/15)
Vivian Scott
A few months ago Yahoo Style published an item by Sloane Bradshaw that talked about how letting the little things go in her relationship ended her marriage. The headline caught my eye and, as I began to read, I expected to recognize small warning signs in my own relationship.


Intent…Action….Effect! (6/06/15)
Jason Dykstra
This is a repost of a blog from a few years ago that was recently brought to my attention. I received a message from a reader that asked if I could point them to the follow-up posts that I alluded to in this post. As I searched for the follow-ups I realized that I didn’t actually write any! So…in the coming weeks (this time) I’ll be posting more about this communication model and it’s awesomeness.


Dissolution- Don’t let the Resolve Dissolve (6/06/15)
Belinda Jokinen
I was helping this couple, Jane and John of course, sort out the details of their divorce. The item that was the most difficult to “separate” was the china cabinet. They had invested time, and money, and both had an attachment to it. We were on our 3rd session and they had been able to remain in the same room every time. When we discussed the cabinet they got real snippy so it was time to visit with them separately.


Presenting Your Presentation: A Few Words (6/05/15)
Richard Barbieri
The passing of William Zinsser leads me to offer some suggestions on writing well in a specific context: applying to present at a professional conference, or seeking to attract participants to a workshop, based on over forty years of both writing and reviewing proposals.


Musings of a Long Time Arbitrator (6/05/15)
Brian Jerome
Musings of a Long Time Arbitrator reflects on the positive and challenging aspects of serving as a neutral, in a manner both realistic and humorous. Similar practitioners will be able to immediately relate, and those that seek or utilize the services of ADR providers will get a direct look at the implications of a neutral’s daily reality.


Let’s Talk: Charlie Hebdo, Immigration, Terror and Prejudice -- Notes Toward a Proposal for Dialogue over Difficult and Dangerous Issues (6/02/15)
Kenneth Cloke
As wars, religious and political differences, and international problems such as global warming, environmental degradation and poverty expand their reach, importance and severity, stimulating mass migrations and deepening social tensions, we are increasingly forced to recognize that military solutions cannot succeed; that legal processes take too long to implement; and that diplomacy does not reach deep enough into the ranks of those who are drawn to violence.


Workplace Systemic Issues: Do Your Leaders Really Want to Know? (6/01/15)
Patricia Porter
Like many conflict resolution or ADR professionals who start as a mediator, it doesn’t take long before a mediator doing workplace cases in one organization begins to wonder about the organization’s culture, communication, or leadership skills. “If only the organization had better practices, the mediation (or coaching or training or group facilitation) wouldn’t be needed”, many have thought.


Bearing Witness to Suffering: Mediating in the Shadow of Pain (6/01/15)
Tammy Lenski
Philosopher Simone Weil wrote, "Those who are unhappy have no need for anything in this world but people capable of giving them their attention. The capacity to give one's attention to a sufferer is a very rare and difficult thing; it is almost a miracle; it is a miracle.


Competition to Cooperation (6/01/15)
Phyllis Pollack
When I started mediating cases, I never thought that I would have to be aware of or learn advanced mathematics. But a book that I recently finished has shown me otherwise.

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