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Featured Blog Posts
Our Peacebuilding Pope (10/02/15) Andrea Schneider The Pope, a rabbi and an imam…sounds like the beginning of a very funny joke but last week was a reality. elliot pope As you likely know, last Friday the Pope hosted an interfaith prayer gathering at the 9/11 Memorial and Museum. This was trailblazing and I’ve linked to the video here for those you who have not yet seen it.
Dispute Must be Arbitrated Under FINRA Despite AAA Agreement (10/02/15) Beth Graham Texas’ Fifth District Court of Appeals has ruled that a dispute between a licensed securities broker and an investment company must be arbitrated before FINRA rather than the AAA. In Morford v. Esposito Securities, LLC, No. 05-14-01223-CV (Tex. App – Dallas, September 18, 2015), a securities broker and Financial Industry National Regulatory Authority (“FINRA”) member, Esposito, provided a group of customers, Nemaha Water Services, with assistance in locating investors. In exchange for his help, Nemaha agreed to pay Esposito five percent of any funds the company received as a result. As part of the transaction, the parties signed a letter agreement which stated any future disputes would be resolved through arbitration before the American Arbitration Association (“AAA”).
Bad Day at JAMS, Part 1 (10/02/15) Dan Simon An old friend (I’ll call him Frank) called to tell me he was being sued by a former employer (I’ll call him Owen) for improperly taking customers and trade secrets. I warned Frank that mediations conducted by retired judges often feel silly, meaningless and frustrating to litigants, and that they achieve, best case scenario, a settlement that both sides are unhappy with.
What is Court ADR? Clearing Up Some Misconceptions (10/02/15) Jennifer Shack How can you make good decisions if the information you have is limited or wrong? That’s the question that drove me to the fields of research and program evaluation – good policy and effective programs are passions of mine, and there’s no way to have either without accurate, reliable information. It’s also the question that ran through my head as I read the article, “To Mediate in Court or out of Court, that is the Question” in Financier Worldwide. In the article, the author distinguishes between court and private mediation in a way that is not consistent with the wide variety of court and private mediation that exists in the United States. The article provides a good example of the misconceptions I often see in articles about mediation, misconceptions that can lead to poor decisions about the use of mediation.
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.
Being Creative with Child Support (9/25/15) Dick Price Using the Collaborative Law process, we feel impelled to be creative with solutions, even where there are standard guidelines in the Texas Family Code for such things as how to set child support. In most litigation cases, the child support amount is quickly set by following the standard formula. The Code deals with the amounts of income and the number of children before the Court, as well as considering if there are other children that need to be supported.
Ride Sharing Arbitration Agreement is Socially Unconscionable (9/25/15) Beth Graham A California judge has reportedly declined to order a dispute between transportation network company Uber and a former driver to arbitration. In the case, a San Francisco Superior Court judge ruled that the arbitration clause between the parties was “substantively unconscionable” due to its contradictory language.
California Confidentiality Will End Unless You Take Action Now! (9/18/15) Ron Kelly On August 7, 2015 the California Law Revision Commission voted 4-1 to draft a recommendation removing our current protections. Nearly all its recommendations become law. The legislation will remove current protections whenever a mediation party alleges misconduct by their lawyer advocate or lawyer mediator.
Officers Join the Peace Party (9/18/15) Marcia Greig The best part of the police trainings has been the privilege of listening in on the discussions about the work the officers do and hearing the care, compassion and energy they have for children and youth.
Restorative Justice to Handle Sexual Assault Cases at Universities? (9/18/15) Cynthia Alkon I think there can be great advantages to using restorative justice processes in a variety of settings. My concern is that we have seen that universities don’t have a great track record in terms of dealing with sexual assaults on campus (in fairness, few institutions in our society do have a great track record).
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.
Arbitrating Antitrust Claims From Suspicion to Trust (9/18/15) Beth Graham Vera Korzun, Adjunct Professor at the Fordham University School of Law, has authored “Arbitrating Antitrust Claims: From Suspicion to Trust,” New York University Journal of International Law and Politics (JILP), Vol. 48, 2016, Forthcoming. In her scholarly article, Professor Korzun discusses the adjudication and enforcement of domestic antitrust laws by international arbitral tribunals.
Teamwork (9/18/15) Joe Markowitz My rabbi's Rosh Hashanah sermon this year concerned the important topic of healing the widening rifts in the Jewish community, which have broken out especially over the nuclear weapons deal with Iran. The problem he was talking about is not so much that there is disagreement about the advisability of this deal. Considering how troublesome and untrustworthy an adversary Iran has been, one would expect strong disagreements among supporters of Israel about how we should deal with that adversary.
Second Thoughts on Mediation Confidentiality (9/18/15) Phyllis Pollack Recently, I posted a blog about the August 2015 meeting of the California Law Revision Commission (CLRC) in which as part of its study on the “Relationship between Mediation Confidentiality and Attorney Malpractice and Other Misconduct ” (Study K-402), the Commission requested that Staff Counsel draft legislation to include exceptions to mediation confidentiality.
Arbitrating Antitrust Claims: From Suspicion to Trust (9/12/15) Beth Graham Vera Korzun, Adjunct Professor at the Fordham University School of Law, has authored “Arbitrating Antitrust Claims: From Suspicion to Trust”. In her scholarly article, Professor Korzun discusses the adjudication and enforcement of domestic antitrust laws by international arbitral tribunals.
Yes, Make them Negotiate (9/12/15) Andrea Schneider A quick follow up to circle back on my proposal to have my 70 students negotiate the parameters of their ADR class. I it was great! They all negotiated and the group reached agreement. Here are the benefits I’ve seen so far.
Some Food for Thought Over Labor Day Weekend (9/12/15) Michael A. Zeytoonian Over 95% of the cases filed in courts end up settling and never go to trial. If you know there is an overwhelming likelihood that your case will settle through negotiations or mediation – doesn’t it make sense to use a process designed to reach a settlement in a time and cost effective way?
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.
Mediation in Turkey (9/12/15) F. Peter Phillips A recent trip to Turkey included a delightful visit at the offices of leading Turkish law firm Hergüner Bilgen Özeke and several of its members, including H. Tolga Danisman. It was also a chance to get an inside look at a rapidly developing legislative and judicial initiative in commercial mediation in this troubled and beautiful country.
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.
Cyberweek en Espanol (9/04/15) Alberto Elisavetsky Cyberweek es la conferencia virtual anual sobre Online Dispute Resolution. Cyberweek produce una gran cantidad de actividades y diálogos enfocados en temáticas de ODR -las intersecciones entre tecnología y las áreas de negociación, manejo del conflicto, mediación y diseño de sistemas de disputas.
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.
Whistleblower Cases are Custom Tailored for ADR (9/04/15) Jeffrey Grubman Various state and federal statutes exist to protect and compensate employees whose employers retaliate against them after they disclose certain fraudulent practices to the employers or government agencies. These are known as Whistleblower statutes.
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?
What if Jon Stewart and Stephen Colbert Reacted to Simon & Rhoades on Imperati on Bush and Folger! (9/01/15) Sam Imperati 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!
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.
Crisis Negotiation: From Suicide to Terrorism Intervention (8/28/15) Jeff Thompson This is a snippet from a chapter which uses an account of a real-life crisis negotiation to explore what is know about these high-stakes, emotion-fueled interactions. We begin by reviewing literature relevant to four different interaction periods within the case: first impressions and the verbal and nonverbal factors that effect initial exchanges; rapport development and the communicative skills that facilitate information gathering; sensemaking and the frameworks that help negotiators understand the motivations of their interlocutor; and, influence strategies and their impact on moving a perpetrator from antagonism to cooperation.
ADR-Related Legislation (8/28/15) F. Peter Phillips Larson Frisby, of the ABA Governmental Affairs Office, recently offered an update on the status of federal ADR legislation and other related measures. Some of the most interesting proposals are briefly described in this article.
Openings, Part 2 (8/28/15) Joe Markowitz When we meet someone for the first time, we immediately start forming impressions of them. It takes a lot to change that perception, even if they turn out to be quite different from the way we initially perceived them. Similarly with conflict. The way in which a controversy is framed does much to affect the way parties subsequently see the dispute.
3 Things Your Mediator Probably Won’t Tell You (8/28/15) Tammy Lenski I used to think it was just me, that I was the only mediator in the world who occasionally totally sucked at conflict in my own life. When I sucked at it, I’d beat myself up about it too. Just so I could suffer some more. (Buddhists call this the second arrow — the first arrow is the initial pain, the second arrow is the suffering based on our reaction.)