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Featured Blog Posts



Sarah Cole
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.

Beth Graham
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.

Lorraine Brennan
Do We Need a New York Convention for Mediation/Conciliation? (2/27/15)
Lorraine Brennan
The 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) is viewed by many as one of the most (if not the most) successful commercial treaties to which the United States has become a party.

Ian MacDuff
Changing the Architecture of Justice: ODR, Dispute Resolution, and Design (2/27/15)
Ian MacDuff
In his 1956 text, The Queen’s Courts, Sir Peter Archer suggested that the development of the Courts was more organic than by design, and – though he doesn’t say as much – more pragmatic than principled. He calls on Topsy’s response to Ophelia in Uncle Tom’s Cabin, to suggest that, like Topsy, they “just grow’d”.

Tammy Lenski
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.

Joe Markowitz
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.

Joe Markowitz
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.

Shawn Davis
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.

Lynn Duryee
Make the Most of Your Mediation: Seal the Deal (2/20/15)
Lynn Duryee
It sometimes happens that, despite the best efforts of all participants, negotiations grind to a stubborn halt and disappointment sets in. Before packing your bags, ask yourself these five questions.

Dan Simon
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?

Jeff Thompson
Communication Techniques: How To Be Someone People Love To Talk To (2/20/15)
Jeff Thompson
When do we really learn good conversation skills? Well, we don't. We're just kind of expected to pick them up...

Beth Graham
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.

Mary Novak
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.

Katherine Graham
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.

Vivian Scott
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.

Lorraine Segal
From Fear and Avoidance to Love and Trust: Transforming Your Relationship with Money. (2/13/15)
Lorraine Segal
Looking back, my needs around money have always been met. But it didn’t feel that way to me at all. I bounced between vagueness, avoiding concrete information or action about money, and terror, that I would be destitute and never have enough.

Phyllis Pollack
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.

Michael A. Zeytoonian
Why Our Practice Areas Include Special Education Cases (2/13/15)
Michael A. Zeytoonian
There is a personal reason and a law practice philosophy reason why we represent clients – parents and families of special education children – in disputes involving special education matters and include this area of practice in our services.

Joe Markowitz
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.

Bill Marsh
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.

Jennifer Shack
What Happens to Temporary Loan Modifications Reached in Foreclosure Mediation? (2/06/15)
Jennifer Shack
A lot of the cases that go through RSI’s foreclosure mediation programs end with a temporary loan modification – a trial payment plan in which the homeowner pays a new mortgage amount for a few months. If the homeowner makes the payments on time and in full during the trial period, the homeowner and bank agree to make the modification permanent.

Richard Levie
A Mediator’s Pleas(e) (2/06/15)
Richard Levie
A mediator is placed between the action and reaction – sometimes leading, sometimes following.

Dan Simon
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.”

Beth Graham
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.

Maria Simpson
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.

Jeff Thompson
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.

Jan Frankel Schau
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.

Barbara Reeves Neal
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.

Beth Graham
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.

Cynthia Alkon
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.

Phyllis Pollack
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.

Kim Taylor
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.

Vernon Cassin
“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.

Beth Graham
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.

Tammy Lenski
Conflict Resolution and the Ancient Art of Kintsugi (1/23/15)
Tammy Lenski
What if, instead of viewing conflict as something that leaves permanent cracks and breaks in our relationships, we viewed those fault lines as testament to what the relationship has weathered?

Art Hinshaw
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.

Cinnie Noble
The Cost of Organizational Conflict (1/16/15)
Cinnie Noble
Ill-managed conflict costs organizations in many ways besides the expense of litigation and related claims.

Katherine Graham
“Serious incident” Investigator Training Hits the Spot (1/16/15)
Katherine Graham
The Health Board South Wales asked us to train their Serious Incident Investigators. Although we know investigating inside and out, this was a new context for us that involved a lot of research and adapting to their needs. And it paid off!

Beth Graham
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.

Jeffrey Grubman
Why are Attorneys Afraid of Conflict in Mediation? (1/16/15)
Jeffrey Grubman
The mediation process has evolved significantly over the past few decades. Mediation was initially viewed skeptically by trial attorneys who viewed themselves as warriors who preferred to try cases rather than settle them.

Sabine Walsh
The Big Irish “What If?” (1/16/15)
Sabine Walsh
A couple of years ago in January I wrote a post on likely developments in Ireland in the New Year which, if I recall correctly, had the expression “High Hopes” in the title. Those hopes related primarily to the publication of a new, comprehensive piece of legislation on mediation and the impact it might have upon the practice and profession of mediation.

Alfred Siwy
Fees of the Successfully Challenged Arbitrator? (1/16/15)
Alfred Siwy
In its decision of 17.2.2014, the Austrian Supreme Court decided on a claimant’s request for reimbursement of the portion of the fees advanced to the arbitrator whom it had successfully challenged during ongoing proceedings and on his liability for frustrated costs caused by the challenge and the appointment of a new arbitrator.

Paul Kirgis
On Forced Arbitration (1/09/15)
Paul Kirgis
Over the past year or so, critics of consumer and employment arbitration have coined a new term for what ADR scholars have historically called mandatory pre-dispute arbitration: “forced arbitration.”

Phyllis Pollack
California's Legislature - Hard At Work Once Again-2014 (1/09/15)
Phyllis Pollack
Each year, I find it interesting to look through the new laws enacted by the California legislature to see if my tax dollars were well spent. Once again, the legislature was "hard at work."

Jan Frankel Schau
Taking a Fresh New Look at Conflict (1/09/15)
Jan Frankel Schau
The New Year is a great time to push “refresh” on all subjects. I spent the last week going through my (now adult) children’s closets and getting rid of the things that we will no longer return to: huge computer systems with no screens or monitors, outdated televisions which can’t play cable, the expensive, must-have tennis shoes that every boy needed in High School a decade ago. I also took the last week or two to purge old paper work (as my son says–no modern businesses even use “file cabinets” these days).

Joe Markowitz
Selma (1/09/15)
Joe Markowitz
Was there ever an opportunity for peaceful resolution of this civil rights conflict? We see President Johnson acting at times a little bit like a mediator between King and Governor Wallace, but no real attempt was made at creating a dialogue that could resolve the dispute.

Richard Chernick
The Mediator as Process Designer (1/09/15)
Richard Chernick
A mediator is a facilitator who has the skill to work around or overcome obstacles to settlement created by parties or their counsel. In particular, when negotiations have gotten the parties close to a settlement, the skilled mediator is able to keep negotiations moving even when the parties are prepared to give up.

Beth Graham
The Year of Arbitrator Authority (1/02/15)
Beth Graham
Liz Kramer at Arbitration Nation has compiled a thorough year in review of arbitration cases decided on a variety of topics in 2014. Her blog post, entitled “2014: The Year of Arbitrator Authority,” addresses state and federal court decisions on validity, formation, preemption, vacatur, and, of course, arbitrator authority.

Nadja Alexander
Do We Need Laws to Help Us Say Sorry? (1/02/15)
Nadja Alexander
On the last day of the year, like many of you, I find myself reflecting on the events of the past 12 months, the highs and lows, the tensions and the takeaways. Here is one of the takeaways.

Emmanuel Chua
A New Dawn for Mediation? (1/02/15)
Emmanuel Chua
The Singapore International Mediation Centre (“SIMC”) was officially launched on 5 November 2014. Set up following the recommendations of a Working Group chaired by Edwin Glasgow CBE QC and George Lim SC, the SIMC will supplement the array of international dispute resolution options available in Singapore.

Joe Markowitz
Plea Bargaining (1/02/15)
Joe Markowitz
In an exchange of letters published in the most recent issue of the New York Review of Books, commenting on an article last month about reforming the plea bargaining process by Federal District Judge Jed Rakoff in New York, Judge Rakoff defends his proposal to get judges more involved in plea bargaining by comparing it to the way mediation is offered to civil litigants in the same court.

Cinnie Noble
Ten New Year's Conflict Resolutions (12/26/14)
Cinnie Noble
If you make New Year’s resolutions, here are some “conflict resolutions” that you might want to consider for the new year and beyond.

David Horsager
Building Trust in Volatile Situations (12/26/14)
David Horsager
The recent "Siege in Sydney" provided me with the chance to consider how the Trust Edge illustrates a workable approach even in the most volatile, life-threatening and unpredictable situations.

Jeffrey Krivis
Wanting It Too Much (12/26/14)
Jeffrey Krivis
Imagine a marine layer floating over a coastal town. A family in this town is hopeful that the sun will burn the fog away so they can go to the beach and enjoy the great weather. The day seems to go on forever and the sun never comes out. The children are totally bored and expect their parents to figure out ways to keep them busy.

Tammy Lenski
4 Tips for a Stress-Free New Years (12/26/14)
Tammy Lenski
The holidays can be a cheerful time — with plenty of work, it seems. But with loads of family smashed into tiny spaces, many find themselves feeling less than jolly. Lashing out is common around the holidays. But Dr. Tammy Lenski, a conflict resolution trainer and author of The Conflict Pivot: Turning Conflict into Peace of Mind, has a few tips for keeping your gathering from turning into a war zone.

Phyllis Pollack
Giving Yourself Permission (12/26/14)
Phyllis Pollack
The holidays are upon us, and with them come the usual stress and tension that family events often bring. Over Thanksgiving, I had an experience that put it in perspective for me. Although I am supposed to be the conflict resolution person, it was a cousin that gave me a very much needed "reality check", if not "permission" to think differently about family loyalty.

F. Peter Phillips
Moral Imagination Revisited via Jon Hyman (12/26/14)
F. Peter Phillips
The recent confluence of my Conflict Transformation work with the New York Yearly Meeting of the Society of Friends (Quakers) and the richly rewarding session offered by David Hoffman at the April 2014 Meeting of the ABA Dispute Resolution Section have made me increasingly aware of the moral component of non-adjudicative conflict resolution.

Phyllis Pollack
Mediations Are Supposed To Be Confidential... But Are They Really? (12/19/14)
Phyllis Pollack
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. But, are mediations really confidential? This article was reposted to ensure mediators are fully aware of this important topic.

Michael A. Zeytoonian
How You Go About Resolving Your Dispute Is Up To You (12/19/14)
Michael A. Zeytoonian
One point we want to drive home with clients in this series about tiered dispute resolution clauses is that parties have the right and the need to find the right process choice. Not only do parties have options, but with good, creative advice from their lawyers, they can sometimes design the process so that it is tailored to their needs, bandwidth and the circumstances of the specific dispute.

Larry Susskind
What's the Right Thing to do When You are Really Angry About What's Happening in America? (12/19/14)
Larry Susskind
Students are marching in the streets to protest the recent killings of Black Americans. They want those in positions of power to acknowledge that these deaths are, at least in part, the result of unchecked racism that is still very much alive in our country. Whatever progress has been made over the past fifty years to address inequality, unfairness, racial bias, ignorance, lack of empathy and unequal opportunities, there is still a long way to go before everyday life in America aligns with the ideals we espouse as a nation.

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