Featured Blog Posts
Retire Already! Why?
This article discusses retirement in non-traditional fields such as mediation and teaching. Should there be a set retirement age?
It Is All In Your Perspective!
The December 2014 edition of The Atlantic contains an interesting article entitled "The Real Roots of Midlife Crisis" by Jonathan Rauch. In it, he notes that mid-life crisis is not a unique reality to the United States. Rather, it is a worldwide phenomenon explained by science and more particularly the "U" or happiness curve.
The Californication of Mediation
The rise and rise of the mediator’s proposal  and other evaluative interventions by many of our number, along with the relentless demise of the joint session, are all part of a larger lurch to the right for mediation practice.
Mediator’s Proposals: God’s Gift to Mediation, or a Betrayal?
Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system. The great early teachers and scholars of mediation — Frank Sanders, Christopher Moore, Leonard Riskin and others — envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path.
I recently stumbled upon a useful analogy that I used in our required Lawyering course, namely that lawyers are like “conflict doctors.”
In the Midst of Ferguson Chaos, an Apology Done Right
It would have been easy for Louis Head to blame his raging words the other night fully on the grand jury. Or on the Ferguson, Missouri police department. Or on Office Darren Wilson. Or on racism and injustice. And if he had, there’d be a lot of people who would have given him a pass under the circumstances.
Arbitration Trends in 2014
A survey recently conducted by Today’s General Counsel asked in-house attorneys about their thoughts on arbitration. The results published in Arbitration Trends 2014 indicate that nearly half of lawyers surveyed normally choose arbitration over traditional litigation because it is required by contract. In addition, 38 percent stated they select arbitration because it is less expensive than litigating a case and the process preserves confidentiality.
Behind Mediation’s Smoke and Mirrors
Positive mediation outcomes are fairly common, which you might think is down to the magic of mediation. But there are several implicit reasons why mediation outcomes are high, which aren’t generally to do with the quality of the mediator! I want people to understand the reality of mediation and what it can achieve, and not to be taken in by the rhetoric you’ll find on some websites.
Having an Axe to Grind
According to wiseGEEK “There are two meanings to the phrase ‘an axe to grind’. The first meaning is the traditional American one, which means having an ulterior motive or personal reasons, other than the obvious, for doing something. The British meaning is to hold a grudge or a grievance against someone or something.”
Talking About Ferguson
We have started the last week of classes in ADR this week and usually, at this time in the semester, I turn to the overarching subject of how to counsel clients when choosing among different dispute resolution processes. Last night, I took a deep breath, and asked the class to think about the situation in Ferguson.
Use and Perception of International Commercial Mediation and Conciliation
The project was constructed with two goals in mind. First, the study attempted to discover and describe current behaviors and attitudes relating to international commercial mediation and conciliation so as to set a benchmark for further analysis in this field. Second, the research attempted to determine whether the legal and business communities thought an international instrument in this area of law would be useful and if so, what shape they believed that document should take.
Improve Your Communication: Use Earplugs!
Guest blogger Kees van Eijk writes, "It started as a communication problem between my spouse and me. But my hearing impairment has remarkably become the most important instrument in my communication toolbox."
The Key “Moral” from Stories Mediators Tell
The theme of the 2014 Mediation Week was inspired by Stories Mediators Tell, a moving and illuminating collection of stories about the often dramatic facts of mediation life that Editors Eric R. Galton and Leila P. Love coaxed from a diverse group of experienced mediators to share with the rest of us.
My Least Favorite Part of Conflict
My least favorite part of conflict is not the conflict itself, nor is it any argument that may result. It's the aftermath. It could be that the conflict remains unresolved. It could be that things were said that deeply hurt one or both people, and that hurt feelings have been lingering for quite some time and only recently voiced.
Trials, Part One
Mediation is often touted as a better alternative to taking a lawsuit to trial. It usually is; but I believe that is still the wrong comparison to make in most cases.
Mediator’s Proposals? A Story…
I have never been a great fan of mediator’s proposals. I took the view that the mediator’s job, done well, was to help the parties to come to a solution themselves. Party autonomy and all that. Achieving a satisfactory outcome, I thought, shouldn’t require a specific suggestion by the mediator.
Processing it All on the Last Day….
On my last evening in Israel, I walked on the beach and gazed at the sunset over the beautiful Mediteranean Sea and I was full of so many complex thoughts. That day my visit to Neve Shalom Wahat Al-Salam involved me joining a group of German Citizens who came to view the atrocities imposed upon the Palestinians by the Israeli Government.
What is a “Tiered Dispute Resolution Clause” and What Options Does it have to Offer?
Michael A. Zeytoonian
Tiered dispute resolution clauses in contracts -- this is the first step in providing clients with alternatives to court and litigation. It gives parties value in three ways: (1) It gives them the opportunity to work together on how they will resolve a dispute; (2) it allows lawyers to educate their clients on what their options are, how they work and what their pros and cons are while the parties are calm and agreeable; and (3) it gives the parties more control over the process as well as the outcome.
The Golden Sounds of Silence
Once you acquire some skill in mediation, I find one of the hardest things to master is keeping quiet when emotions erupt. Yes, anger, shouting, tears and bluster happen. Our job as mediators is to bring peace and calm into the room, but I find one of the challenges is to remain silent and still without reacting in a “fix it” mode. Eventually, the anger usually blows over once the steam has been let out.
Thanksgiving Through The Centuries!
Thanksgiving will soon be upon us. And while we will all give thanks for the many blessings that we have, I thought I would share some of the lesser known, but interesting facts about our national holiday. (Spoiler alert: This blog has absolutely nothing to do with mediation!--maybe just communication and national culture?)
Whose Job is the Conflict?
I am a big proponent of taking responsibility for resolving a conflict that somehow includes or affects you, especially if you started the dispute, and this article offers skills for doing this.
5 Ways to Ruin Your Relationships
Ugh…relationships…who needs them? They are so needy! Your coworker always wants to go out for a beer after work, your partner wants to spend time with you, your friend keeps calling you up to come see your new house. Who has time for all this? It’s probably better just to get rid of them all. So here’s 5 things you can do to ruin any relationship in your life; work, home, friends, even acquaintances.
$1B Settlement Reached in Stryker Hip Implant Mass Tort
Thousands of plaintiffs in New Jersey and around the country who had surgery to remove failed hip implants settled their claims November 3 in a deal that is expected to pay out more than $1 billion. It was reached after four months of negotiations with Stryker mediated by retired U.S. Magistrate Judge Diane Welsh, a JAMS mediator based in Philadelphia.
The Growth of Arbitrator Power to Control Counsel Conduct
There have been increasing calls over the past few years for an international code of conduct for counsel in international commercial arbitration, and for arbitrators to have more power to control counsel conduct. The growing concern is related to significant changes that have taken place in international arbitration practice.
Time Is "Like-The-Present"
There is an old adage, "Why do today what you can put off until tomorrow?" And indeed, many of us do just that because time is a precious commodity of which there is never enough.
Who Are You When You're in Conflict?
It happens sometimes that we lose track of ourselves when in conflict. We may find we turn into someone who doesn’t even resemble who we usually are and how we interact. We may become an angry parent, a petulant child, a dogmatic teacher, a judge or other personas that reflect a different somebody than we want to be.
5 Reasons It’s Hard for Mediators to Support Self-Determination
Many mediators practice consistently with our intention to support party self-determination throughout the process. These mediations tend to be very meaningful to the parties and tend to lead to profound shifts in how parties see the situation, themselves, and each other. They also tend to lead to settlements that all parties are genuinely, lastingly at peace with. But in the world of litigation, mediations continue to be far less effective, meaningful, and empowering than they could be. Many mediators who work on litigated cases continue to use methods that undermine self-determination, that interfere with inter-party recognition and that cause the process to be far less satisfying. Here are 5 reasons that these less effective practices persist.
I was interviewed the other day for a possible article on court-ordered mediation. In discussing this topic, it's hard to avoid talking about such questions as settlement rates in various kinds of programs, or how mediation programs affect the workload of the courts
Did Hunger Sabotage A Mediation?
The other day, I conducted two mediations between the same plaintiff's counsel, the same defendants and their counsel. The only different party in the two mediations was the plaintiff. One mediation was to start in the morning and the next in early afternoon, figuring each would take about 3 hours.
What is Negotiation?
We often think of negotiation as a distinct and climactic phase of a dispute. Interactions leading up to the final settlement event are often considered merely as preparation, if that. In litigated cases, we often ignore the litigation as if it was largely irrelevant to the information available and the dynamics in negotiation.
Hair Trigger Temper
You may have heard the phrase hair trigger temper referring to someone who reacts strongly when angry. As an adjective hair trigger has been described to mean “easily activated or set off; reacting immediately to the slightest provocation or cause”.
10 Things I’ve Learned From Being a Mediator
I’m lucky that I’ve had so much training and experience in mediating issues between others. It’s impossible to be a part of the mediation community and not learn a thing or two about oneself in the process. So, today I’m going to share, in no particular order of importance, ten things I’ve learned along the way.
Transformative Mediation Program Helps Ohio Employees
Calls kept coming in to the Ohio Employees’ EAP program. Some calls came from a supervisor who was having trouble dealing with an employee. Some came from an employee who was having trouble with a supervisor. Sometimes it was co-workers who were in conflict with each other. Regardless of whom the conflict involved, the EAP was underequipped to help. They could counsel the caller, but the director of the EAP knew a different type of service was needed. So they sought outside expertise on workplace conflict intervention, and they put out a Request for Proposal.
Gender and Decision-Making
Men and women are pretty much equally good decision-makers when under low stress levels, but “When stressed, men are more prone to taking risky bets with little payoff.”
Is ADR Your 1st Career?
Mediation for many is a second field--after giving the first half of their professional career to the law, social work, therapy, real estate, business negotiations, and many other fields. This law focuses on the few who began their career in ADR--and how they managed to get started without another path to build on.
Body Language in Online Mediation - What Do We Miss?
Leaving aside for a moment the question as to whether the "limited" body language in online dispute resolution is sufficient or not for doing our job, I believe that while for us mediators body language is a key factor, from the parties' perspective it is not the "only" factor. For them, there are other important factors to consider.
To Puff or Not to Puff . . . (or When and How to Puff)
I’m no expert on moral philosophy or the social psychology of lying, but I think that most people probably believe that some misrepresentation is acceptable and even justified. Students in my Lawyering course regale the class with tales of their perfidy, sometimes with pride rather than shame.
Expectations and Conflict
One of the things that can lead to conflict has to do with unmet expectations. For instance, we had hoped that another person would have said or done something that reflects their care and concern for us; they excluded us from a gathering or decision; they had something we wanted and knew it was important to us; or they didn’t provide their support or were unreliable about a matter.
The Consolidation Arbitrator – An Arbitrator Too Far?
Whilst many institutional rules now contain provisions which expressly address the complex issue of consolidation, the recently revised rules of the International Centre for Dispute Resolution (the “ICDR”), the international arm of the American Arbitration Association (the “AAA”), are the first to have introduced the novel concept of the “consolidation arbitrator”.
Eight Tips on How to Impress Your Arbitrator
While the most successful way to impress your arbitrator is with the merits of your case, there are smaller, but important, ways to create a favorable impression of yourself and your client’s case. This article is one arbitrator’s guide to creating an arbitral environment favorable to you and your client.
Mediation - The Savvy Choice
Elder mediation can be helpful for families trying to make difficult decisions. It helps children and parents make decisions that include everyone's opinions.
Fall is a Time to Reap What You've Sown
Fall is in the air. The nights are cooler and longer. The apples at local farms are almost ready to be picked. If you've been taking care of yourself and your relationships, then spending time at home with your loved ones may be quite pleasant.
The Trading Zone in Mediation of Employment Disputes
Sometimes I feel like I’m in the middle of a tug-of-war. This week I had the anomolous situation of having two nearly identical full day cases back to back. In the first, the Plaintiff started the demand at $1 million and Defense offered $30,000 (the equivalent to one year of salary). She was alleging age discrimination, though the Company had laid her off in a reduction in force and she was only 42. In the second, Plaintiff started the demand at $200,000.00.
Mediation 101: Know What It Is That You Want!
I had an interesting mediation the other day. I say "interesting" as I am not sure what other adjective to use. Like most of my mediations, it involved an automobile. The plaintiff claimed that the defendant, a used car dealer, misrepresented several important details in the financing of the used automobile that she was purchasing. As a result, she was suing.
Certainly there is no shortage of candidates for blame when you have lost something. Yet finding the right person to pin the blame for failure can't be the whole story.
Walking on Eggshells
When applied to interpersonal conflict I think of those disconcerting situations – such as walking on eggshells – when I am reluctant to raise an issue expecting that by doing so I will overly upset the other person. It seems this is most likely to occur when I have a history with and am aware of her or his sensibilities. Though I expect it also happens when we don’t know the other person but reckon that what we have to say will be difficult to receive. In any case, the image itself – from whatever the source –conjures up an extremely uncomfortable experience.
Just Don’t Ask and Get Good Karma??!!
As many are probably aware, Microsoft’s CEO recently said that women who don’t ask for raises will enjoy “good karma.” So, his negotiation advice seems to boil down to just don’t ask and you count on the universe rewarding you in this life (or the next).
Lessons from Jerusalem: What Attitude Do We Bring to our Conflicts?
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Michael A. Zeytoonian
Strange as this might sound, I had the good fortune of being in Israel during a war, a declared cease fire and its aftermath, and experiencing how these impacted the people involved. While it was a source of some tension and heightened vigilance, it provided a rare opportunity to experience the shifts and changes that occur when a war stops and a cease fire is in effect, in this place that has been a historical hotbed for conflict.