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Featured Blog Posts
Become a World Class Negotiator (3/21/15) Victoria Pynchon It's not rocket science and it's not a secondary sexual characteristic. You don't "negotiate like a man" or "like a woman." You read, you practice, you fail, you succeed, you learn.
Blue Bloods and Restorative Justice (3/21/15) Cynthia Alkon As we know, it is rare that any form of dispute resolution makes it onto network television in prime time. Friday night’s episode of Blue Bloods—the New York police drama starring Tom Selleck—featured a story line about restorative justice. Unfortunately, it wasn’t a good example. In the story, a young woman whose family was killed when she was a child got a letter from the convicted killer.
Texas Legislature Considers Measure that Would Require Out-of-Network Emergency Room Providers to Arbitrate Payment Claims (3/21/15) Beth Graham A bill seeking to establish an arbitration process designed to protect patients who are treated by an out-of-network provider during an emergency room visit from being hit with hefty medical charges is currently before the Texas Legislature. House Bill 1638, “Relating to nonpreferred provider claims under a preferred provider benefit plan related to emergency care,” was introduced by Representative Smithee and filed on February 19, 2015. An accompanying proposal was introduced in the Texas Senate on March 12th by Senator Taylor of Galveston.
Conflict Transformation in TV and Movies (3/21/15) Dan Simon My wife and I started using movie and TV clips in mediation training after participating in a workshop facilitated by Baruch Bush and Joe Folger called Rethinking Conflict in 2008. We were so inspired by this teaching and learning tool that we picked up the ball and ran with it.
The Managed Mediation of a Payor-Provider Health Care Dispute (3/21/15) Viggo Boserup Typically, more than 95 percent of mediations are initiated by one or two parties who agreed on a mediator, scheduled the mediation, filed a brief and showed up at the mediation session. The mediation session is often the first time the parties discuss the issues with the mediator or each other.
Where Have All The Idealists Gone? Long Time Passing (3/21/15) Jeffrey Krivis A recent discussion among a seasoned group of neutrals about the struggles of the professional mediator caught my eye. Some complained that the trend in litigated cases was to reduce the value of the mediator to a commodity, due to the constraints put on them by the litigants who were not process oriented.
Blurred Lines: Non-attorneys Representing Parties in Arbitration (3/13/15) Sarah Cole As an arbitrator and teacher of arbitration, I’ve noticed that legal issues are more frequently the focus in arbitration proceedings, both non-labor and labor. I have watched non-lawyer representatives struggle to make legal arguments (although, in fairness, sometimes that is true of lawyers as well). To ensure adequate representation of parties in arbitration involving legal issues, I believe that the parties should be represented by counsel, and that failure to have counsel (rather than non-lawyer representatives) in such proceedings may well be the unauthorized practice of law.
8 Habits of a Conflict Resolver (3/13/15) Vivian Scott Raise your hand if you’ve ever heard someone say, “I don’t do conflict.” It’s the type of statement that can be mindboggling because, really, we all do conflict. Whether small and fleeting or the only thing you can think about for months, we are all in some way or another doing conflict every day.
Minnesota Considers Moving Divorce out of Court (3/13/15) Dan Simon “In our culture, court means contest – it means a fight. . . we’ve culturally viewed divorce as a battle” says Bill Doherty. Doherty says that, no matter how well-intentioned the lawyers, the assumption that judicial supervision is needed greatly increases the risk of destructive conflict arising. Doherty believes that, very often, couples who get divorced without the help of lawyers do better than they would with lawyers. Doherty’s plan takes divorce entirely outside the courts.
There’s Always Time for a Second Opinion (3/13/15) Chris Poole The litigation process is full of variables and, no matter how strong a party’s case might be, going to trial is rarely a sure thing. There is also a tendency for counsel and clients to be overconfident in their assessments of their position. Thanks to the evolution of ADR, however, parties have many options available to them to secure an unbiased, neutral evaluation or second opinion about the strengths and weaknesses of a particular case and trial strategy.
Connecticut Evaluates Mortgage Foreclosure Mediation Program (3/13/15) Shawn Davis In October 2014, the Connecticut Judicial Branch released an evaluation of its Mortgage Foreclosure Mediation Program. The Connecticut study evaluates six years of foreclosure mediation program data, dating from the program’s inception in 2008. As RSI prepares the first evaluation of Illinois’ six foreclosure mediation incubation programs, the earliest of which began accepting cases in December 2013, it’s interesting to review Connecticut’s data and how the program has evolved over time.
First Things First: Design the Arbitration Process You Want (3/06/15) Richard Chernick The principles for drafting a pre-dispute arbitration clause are straightforward. They do require an understanding of the legal relationship, which will be the subject of the clause, some sense of the nature of disputes that are likely to arise and a basic understanding of arbitration process.
Bad Deals (3/06/15) Joe Markowitz Israeli Prime Minister Benjamin Netanyahu's speech to Congress yesterday about the conflict with Iran (transcript here) illustrates an attitude many parties in conflict take toward settlement negotiations. As the possibility of a negotiated resolution of a conflict begins to emerge, elements on one side or the other often find themselves resisting the deal.
“Good Faith” vs. “Naive Realism”? (3/06/15) Phyllis Pollack Perhaps I am an idealist, or even though a baby boomer with many years of litigation experience behind me— a bit naïve. Or –perhaps it is because I am a mediator and so am privy to both sides of the dispute and can see the “story” as an outsider or bystander. I do not know.
Further Thoughts on Armstrong Arbitration Award (2/27/15) Sarah Cole Lance Armstrong was named the winner of the Tour de France in 2002, 2003, and 2004. When Armstrong won in 2004, considerable speculation existed regarding whether he had won cleanly. SCA Promotions, the prize insurer, was reluctant to pay the prize money given the speculation, and ultimately SCA, Armstrong, and Tailwind Sports arbitrated the case.
Teaching Students to Be Problem-Solvers and Dispute-Resolvers (2/27/15) Beth Graham Reports on what lawyers should know, including the MacCrate Report and Educating Lawyers, regularly list problem-solving, negotiation, and dispute resolution as skills that lawyers should have. Best Practices for Legal Education called for law schools to educate students in problem-solving and in practical wisdom, in order to solve clients’ problems effectively and responsibly.
Our Narratives Reflect Who We Are (2/27/15) Tammy Lenski Somewhere in the Pacific Ocean, a single whale calls out again and again and again. Whale 52, as he’s known, has never been seen by humans. But he has been heard. For years. His call has been recorded and it’s in a frequency that matches no other whale species.
Mediation Confidentiality in California (2/27/15) Joe Markowitz Many mediators are troubled by the Milhouse case currently pending in the Ninth Circuit, which recognized a vaguely-defined "due process" exception to mediation confidentiality to allow evidence of offers and demands exchanged in an unsuccessful mediation to be introduced in an insurance bad faith case. In addition, the California Law Revision Commission is currently considering whether to allow an exception to mediation confidentiality in attorney malpractice cases.
Learning From Mediation (2/20/15) Joe Markowitz It seems a shame that the natural tendency of parties and their attorneys is to analyze the issue in legal terms and threaten to go back to court for resolution.
Mediation Program Outreach: Reflecting on What Works (2/20/15) Shawn Davis RSI started running three foreclosure mediation programs in 2014, which means we’ve spent a lot of time over the last year thinking about how to make mediation services more accessible and increase program usage rates. Such issues can be a challenge and often require creativity, especially with limited resources. Here’s what we’ve learned.
A Conversation about Evaluation in Mediation (2/20/15) Dan Simon A made up conversation follows. It’s an amalgamation of conversations I’ve had with mediation trainees.
Mediation Trainee: I get it that mediation is about self-determination. Therefore, when parties ask us to give them an evaluation of their case, shouldn’t we honor that determination they’ve made? I mean they’ve hired us to settle the case, right? Don’t they need to know if their expectations are too high?
Federal Judge Orders Sugar Land Nursing Home Visitation Dispute to Mediation (2/20/15) Beth Graham A Sugar Land nursing home dispute that arose after an elderly resident’s family was banned from a long-term care facility over a number of social media posts has reportedly been ordered to mediation. According to a complaint filed in the Southern District of Texas, Silverado Senior Living barred a woman’s two sons and daughter-in-law from the premises after the individuals refused to remove several photos and videos of their mother at the facility from their social media accounts.
Court ADR Trends for 2015 (2/17/15) Mary Novak Last year perhaps the most visible trend in court ADR was the courts’ use of mediation to address truly large-scale crises. From the mediators who helped opposing groups reach the Grand Bargain that led Detroit out of bankruptcy, to the mediations being used to address thousands of insurance claims that remain from Hurricane Sandy, courts essentially created ad-hoc ADR programs to respond to major crises.
Why I Said “HR Should Be Ashamed of Itself” (2/13/15) Katherine Graham It’s no secret that I can be spikey – and I sometimes rue the things I say after I’ve said them. And, believe me, I do understand why HR Directors need to be at the Board Room table, because without that influence your job is all the more difficult.
When Your Boss Won’t Change (2/13/15) Vivian Scott Who doesn’t have a list of things they’d like their manager to do differently? Everything from the way he slurps that first cup of coffee in the morning to how he plays his staff against one another is a frustration. Though it’s possible to make adjustments in any working relationship, there are still going to be some things that don’t change; no matter your efforts. What then? Here are a few ideas.
Is Conflict Like Driving? (2/13/15) Phyllis Pollack Recently, the Kluwer Mediation Blog posted an interesting discussion about the cognitive biases at play during a dispute. What caught my interest is that the author- Charlie Irvine- used the example of driving to make his point.
Accessing Justice (2/06/15) Joe Markowitz A recent artical in the ABA Journal on movements to license legal technicians to perform limited legal services cited a Bar Foundation study showing that most people encountering what the study called "civil justice situations" either handled the situation themselves, did nothing about it, or enlisted the help of friends and family.
Whisper It Quietly? (2/06/15) Bill Marsh This is a blog I have shied away from writing. Several times. Even now, as I do so, I am wary of it. But here goes. I’ll come right out with it.
The Downside of Evaluation in Mediation (2/06/15) Dan Simon “Based on my years of experience as a litigator and as a judge, I’d say your latest positions are both within the reasonable range for this case. I’d say the plaintiff’s demand of $200,000 is on the high side of that range; and I’d say the defendant’s offer of $100,000 is on the low side of that range. So I’d say that any settlement you arrive at now, between those numbers, would be a good deal for both sides, considering the costs and uncertainty of continued litigation.”
To Publish, or Not to Publish Arbitral Awards: That is the Question (2/06/15) Beth Graham Einer R. Elhauge, Petrie Professor of Law at the Harvard Law School, has authored “To Publish, or Not to Publish Arbitral Awards: That is the Question…,” 81 International Journal of Arbitration, Mediation and Dispute Management, Number 1, 2015. In his research paper, Professor Elhauge examines some potential pros and cons of establishing a publication mechanism for international commercial arbitral awards.
Truly Constructive Conflict (1/30/15) Maria Simpson A friend and I were talking about how different people work and how their different ways of focusing on a problem can lead to new problems even as they all work toward the same goal. It was an interesting insight, and I wanted to use it as a way of understanding how conflict in groups or teams can be generated without people even realizing the source.
Quick Point on Empathy (1/30/15) Jeff Thompson I've been doing quite a lot of research and training lately on empathy. Needless to say, I think it is one of the most important words in existence, and it is even more important to practice it- regardless of your profession.
Is Mediation the Golden Opportunity to put a Square Peg in a Round Hole? (1/30/15) Jan Frankel Schau I learned something last weekend about laws in other nations when I had drinks with a colleague from the U.K. and another from Ontario, Canada at the Board meeting of the International Academy of Mediators. In both of those Countries, the law protects an employee from termination unless there is cause (poor performance or wrongful conduct) or a legitimate financial need to downsize.
Mediation Advocacy – Countdown to a Successful Mediation (1/30/15) Barbara Reeves Neal Lawyers and mediators sometimes fail to appreciate that a mediation requires as much advance planning and consideration of strategy as a trial. Too often, lawyers (and some mediators) pick up the file a day or two in advance (at best) and wing it, relying on their advocacy skills and smarts to negotiate their way through the mediation day.
Privatizing Mass Settlement (1/30/15) Beth Graham University of Georgia School of Law Assistant Professor Jaime Dodge has published “Privatizing Mass Settlement,” 90 Notre Dame L. Rev. 335 (2014); UGA Legal Studies Research Paper No. 2015-2. In her scholarly article, Professor Dodge examines privatized bilateral mass settlement as an alternative to both arbitration and multi-district litigation.
Teaching in a World of Racism Without Racists? (1/23/15) Cynthia Alkon As the Martin Luther King Jr. weekend comes to an end, and as a new semester is beginning, I am thinking about how we talk about race, and how we handle race, both in the classroom and in the larger society. Clearly the events in Ferguson last year, the unfortunately not uncommon killing of a young black man by a police officer coupled with the all too common failure to criminally prosecute the police officer, is just one aspect of the larger issues in our society.
Benefit Vs. Purpose (1/23/15) Phyllis Pollack My first mediation of 2015 settled based on pragmatism. It was a lemon law matter filed under California's Song Beverly Consumer Warranty Act - Civil Code Section 1792 et seq. Plaintiff purchased the vehicle from a neighbor somewhat on a whim, thinking she would use it for commuting. Unfortunately, Plaintiff found herself taking the vehicle in for repairs quite frequently- too frequently for her liking. While Plaintiff thought the vehicle to be a "lemon", the defendant manufacturer took a hard look at the repair orders and found that many of the concerns were repaired after one attempt.
Neutral Analysis and Second Opinions (1/23/15) Kim Taylor Corporate counsel—under seemingly never-ending pressure to contain costs—have a wide array of dispute resolution tools available to them, including negotiation, mediation, arbitration and litigation. There are other devices, however, that merit consideration at any stage of a dispute.
“Investment Arbitration Is Now On Broadway, And The Critics Are Not Being Kind” (1/23/15) Vernon Cassin That was the assessment of Constantine Partasides QC, founding partner of Three Crowns, during his keynote address to the joint ITA-IEL conference. According to Mr. Partasides, there is a developing consensus among states that it is acceptable, and even virtuous, to challenge investor-state arbitration as an infringement on the rights of the public to pass laws through their democratically-elected representatives.
Fifth Circuit Reverses Course in Construction Defect Case (1/23/15) Beth Graham The Fifth Circuit Court of Appeals has reversed its prior decision affirming summary judgment in favor of an insurance company that refused to pay an arbitral award in a construction defect case. In Crownover v. Mid-Continent Casualty Co., No. 11-10166, a Texas couple, the Crownovers, initiated arbitration against the company that built their defective home, Arrow. After an arbitrator ruled in favor of the homeowners, the builder filed for bankruptcy protection. The couple next sought to recover damages from Arrow’s insurance company.
Mediator Horror Stories (1/16/15) Art Hinshaw I’m in the process of finishing up an article inspired by a horrific local mediator who, as a result of his “mediation” actions, now resides in the state penitentiary.
U.S. Supreme Court Asked to Review Case Where Mediator Conflict Existed (1/16/15) Beth Graham The United States Supreme Court has reportedly been asked to review a federal court’s order refusing to set aside a jury’s verdict where a court-appointed mediator failed to disclose his close personal relationship with a partner at the law firm representing several of the defendants. In CEATS Inc. v. Continental Airlines, Inc., et al., No. 14-681, CEATS filed a patent infringement lawsuit in the Eastern District of Texas against Continental Airlines, Ticketmaster, and a number of other corporations over the companies’ alleged use of CEATS’s technology in certain seat selection software.