Reality Checks: Are Those Nightmare Stories Useful in Mediation?
Jan Frankel Schau
Mediators and attorneys generally discuss the alternatives to a mediated solution in terms of risk analysis, cost analysis, investments of time and likely verdict potential in litigated cases. But occasionally, a case goes awry in ways that seem unpredictable and aberrant. Are these stories useful to help get cases settled or is it too easy to discard these as hyperbolic nightmares?
Global Currents: Trends in Complex Cross-Border Disputes
In February 2014, the Litigation and Arbitration Practice of international law firm Hogan Lovells announced the findings of a survey they conducted among 146 senior lawyers and executives from among the world’s largest companies in 18 industries to assess how cross border disputes have affected the legal landscape. The survey’s findings reveal some interesting perspectives, and hint at the scale of opportunity for mediation.
The Five Stages
In 2000, when I took my first mediation training class, my teacher discussed the five stages of loss and grief first proposed by Elisabeth Kubler-Ross in her 1969 book, On Death and Dying. The particular training course I was attending focused on divorce mediations and so the stages were relevant because of the loss and grief suffered by the parties in a divorce.
Is Windows XP Unethical? Is Starbucks?
F. Peter Phillips
An interesting panel at the recent Spring Meeting of the ABA Business Law Section addressed questions of the ethical obligations of business lawyers in various hypothetical situations. Chaired by Ellen Pansky, the panel included Jeff Kraus, Jacqueline Unger and Lois Mermelstein.
Leadership is Defined as a Relationship, Not a Person
ediation has become so closely associated with the legal system recently that its value in all areas of discussion and leadership has been overwhelmed. Gerzon points out the value of the approach in public areas of concern, education, business and international relations. Now, if we could only get people to learn how to use it.
“Hot-Tubbing” and ADR?
Did you know there is an ADR process called “hot-tubbing?” This was news to me when I heard it mentioned last week at the Court ADR Symposium (which occurs every year on the day before the ABA Dispute Resolution Section Conference). As I understand it, the process is used sometimes in arbitration when there are conflicting expert opinions. Basically, the idea is that rather than simply hear expert testimony from each side sequentially, the arbitrator questions the experts concurrently.
Children, Divorce, and Dating
Shannon Rios Paulsen
In my role as a counselor for children of divorce, my focus is the children. Parents made a decision to divorce and they also made a decision to have children. It is my view that they must do all things possible to mitigate the effects of the divorce on their children. The question about dating arises in every session of “Co-parenting Through Your Divorce” that I facilitate. This article addresses this question for parents of divorce and for those who are dating others who are divorced with children.
Senator Jon Kyl’s 10 Negotiation Lessons
Recently I had the pleasure of having former US Senator Jon Kyl as a guest speaker in my Negotiation course. Time magazine recognized Kyl as one of the world’s most influential people in 2010 (along with Lady Gaga, as he is quick to point out) and as one of the 10 best senators in 2006. Naturally the best thing about having guest speakers is their built in credibility, and that credibility is amplified when it’s someone like Kyl who has been in the mix at such a high level.
Reason or Excuse
I have been thinking about when I hear someone explaining their rationale for saying or doing something that has upset or provoked me or another person. I realize that at times it sounds like an excuse and at other times it sounds like a reason. You may ask what difference does it make?
At the ABA Dispute Resolution section spring conference, I attended a talk on mediating discovery disputes, a subject that has been of interest to me for a long time, but which should be more urgent given the difficulty traditional court processes and rules have in managing the continuing explosion of data. As Marian Riedy, who has written about the difficulties of retrieving electronic data, pointed out, the enormous costs of discovery of such data make it essential that parties cooperate in crafting agreements on the scope of discovery. Indeed, federal and state rules generally require efforts to resolve discovery issues by negotiation. That being the case, there would seem to be a place for mediators to step in and assist attorneys and parties having difficulty reaching negotiated solutions.
La Mediación con Enfoque Gestáltico -- en español
Hoy quería contaros algo acerca del enfoque gestáltico que personalmente utilizo en la mediación y en la gestión de los conflictos en general.
Si bien la Gestalt es una rama de psicología humanista que nace con Fritz Perls, médico neuropsiquiatra y psicoanalista cuya máxima en su práctica era la intuición y búsqueda de lo obvio huyendo de toda teoría rígida que impida ver al paciente, el Enfoque Gestálticose ha ido definiendo desde esta raíz y a través de influencias profundas, evolucionando y enriqueciéndose gestalt
Mindful Listening to Enhance Leadership Performance
I am often asked this question: how come that guerrilla fighters, paramilitary leaders and gang members sit down with you and confess to you? More often than not, I respond with a smile and a gentle shrug of the shoulders, but over the past few weeks, as I was designing a new training in effective communication, I pondered that question and wondered about the listening skills I honed in 20-plus years of conflict resolution work in hot spots across the world
The Importance of Mediation in Family Business Management
Managing a business can be difficult enough—but when your in-laws are the board of directors and your sister is the CEO, management of a family business can also become a contentious issue. Problems related to leadership and ownership of family businesses arise in a variety of situations. Sometimes there is a power struggle, other times people feel they have been treated unfairly or do not get enough of a say in the company.
Justify or Just-Iffy?
The other day a friend – I’ll call her Jane – was telling me about an ongoing dispute she was having with a co-worker. She complained about the way her colleague Ted acts, looks, talks, and just about everything else. Clearly, their interactions had deteriorated over time and their current communications are mostly through others.
Stupid Nice Things Good People Say
Why is it that whenever someone shares disappointing or sad news with us our first inclination is to throw on a super-hero cape and deliver the perfect words that will make everything better? No matter our good intentions, what usually happens, though, is that we end up saying really stupid things—meant to be nice and comforting, mind you, but stupid nonetheless. This article shows you a few examples.
Taming the Wild West of Arbitration Ethics
Kristen Blankley, Assistant Professor at the University of Nebraska College of Law has authored an interesting article entitled Taming the Wild West of Arbitration Ethics, Kansas Law Review, Forthcoming. In her article, Professor Blankley examines legal ethics in the arbitral forum.
The Value of No
Fairly early in William Smithburg’s career as the CEO of Quaker, he impulsively bought Gatorade for $220 million because he liked the taste (as the story goes at least). Quaker quickly grew the Gatorade brand and shortly thereafter their $220 million purchase was roughly valued at $3 billion.
Collaborative Justice and the Changing World of Mediation
The internet has made the world a much smaller place. As needs change, the world of ADR is constantly adapting to fill needs. American and UK-based forms of ADR used to be drastically different in their approach. However, the two are changing and adopting practices from across “the pond.” The author suggests that there is a movement among both American and UK ADR professionals towards Collaborative Justice where some issues are dealt with using Conflict Resolution practices while other situations may merit Conflict Transformation practices. Practices such as Collaborative Law and Expert Determination are merging with Transformative Mediation, Community Mediation, Victim-Offender Mediation (VOMA), juvenile panels, and others – essentially blurring the lines between the different modesl in an effort to handle issues of catabolic (harmful) conflict.
Yes, It Can Be Done: Ten Mediation Program Models, One Online System
When Resolution Systems Institute received a grant from the Illinois Attorney General to develop foreclosure mediation programs across the state, it was our opportunity to practice what we preach. From RSI’s inception, we’ve been telling courts that they need to monitor and evaluate their mediation programs to ensure that they’re providing quality services to those who come to them to resolve disputes. We’ve also been urging them to incorporate the development of a monitoring and evaluation system into their program design process.
Inspiration or Immunity?
Social media currently advocates people to feel free, empowered, and liberated from regrets and mistakes. This article discusses the impact that social media has on taking responsibility for one's actions. How might this impact participants in a mediation?
Questions About Being in Conflict That Have No Right to Go Away
In his wonderful poem “Sometimes” (from Everything is Waiting for You, 2007, Many Rivers Press), David Whyte refers to questions that “have no right to go away”. I really like that statement and it touched a chord in me. So, considering my fascination with the art of inquiry I thought about using Whyte’s phrase as the title and premise of this week’s blog.
A Lasting Peace: Evidence Shows That Civil Society Matters
Over the last few decades, civil society has been accepted as an important actor i n post-conflict peacebuilding. However, the relative importance and the actual roles that civil society representatives play in the peace settlement process have been the subject of a long debate. On one hand, getting the actual actors involved in a conflict to partake in the negotiation seems like a logical step.
Five Things You Didn’t Know about Arbitration
Arbitration is by no means a new option for resolving disputes. Yet, parties and their counsel may not be aware of everything that this method of alternative dispute resolution brings to the table. Here are five things you may not know about arbitration from members of the JAMS arbitration panel.
Michael P. Carbone
The purchaser of any service has to know in advance whether the provider can deliver high quality. If the purchaser happens to be a lawyer, and if the provider will be a mediator, how should the lawyer evaluate the potential provider?
Mediation: The Greeks Have a Word for It
Mediators are fond of pointing out the transformative effects of successful mediation in the world of peacebuilding and so it is with the formation of a new center providing services to working class communities in Greece. In fact, the group of facilitators bringing the center to life call themselves “Team Metaplasis,” meaning “transformation” in Greek.
At Work, Our Mental Models of Conflict Matter
The way we think about conflict matters. These “mental models” of conflict influence the strategies we employ when we are engaged in conflict. Our models are influenced by our personality, life experiences, and general orientation to the world around us. In turn, they impact how others will react to us, influencing the likelihood of reaching more or less constructive outcomes.
Implications for Mediation of Patent Infringement Suits
James M. Amend
Most mediators will agree that a key to reaching a settlement is to have the right people in the room at the mediation. Unless all interested parties are represented by people having the authority to settle on their behalves, settlement is unlikely at the mediation session.
Making Assumptions in Mediation
Jan Frankel Schau
This Saint Patrick’s Day I had a good reminder that a mediator should never make assumptions about matters such as culture, experience or sophistication of the parties before them. The case was brought by a Japanese man who had sued his former employer, an American company, for wrongful termination.
How Do You Get Them To. . .?
When I spend a day teaching mediators who were originally trained in a
Facilitative approach, many questions start with “So how do you get them
to. . . ?” That question reveals that the asker has a different sense
of what self-determination means than I do. That is, I don’t want to
get clients to do anything. I find that clients tend to do certain
things with my support, but it’s their choice whether and when they do
those things; and it’s their choice whether they want to do . . .
How Effective is Distributive Bargaining when the Parties are Hundreds of Thousands of Dollars apart?
I find that most of the cases that I mediate need a third party neutral because the two sides are evaluating both liability and damages very differently. The mediator is the bridge to some better understanding. But beyond the conceptual, how effective is it to conduct distributive bargaining by way of demand, offer, counter-offer and counter-demand when the parties start out with a demand of something like $1 million and an offer of $5,000.?
It's All about the Relationship
In 2000, I decided to move away from practicing law because I got tired of fighting with opposing counsel and being labeled and treated as the "bad guy" simply because I was representing an allegedly "bad guy". It seemed that civility and professionalism among lawyers no longer existed, and I and my clients were continuously lumped together as "hated and despised" individuals.
Don’t Apply Risk Analysis To Discounted Settlement Value
In preparing for a course about alternative dispute resolution that I recently taught, I did some research into the relationship between probability theory and the way “decision analysis” (sometimes called “risk analysis”) is sometimes used to try to determine the “discounted settlement value” of civil cases.
Dallas COA Holds Cellular Network Technology Dispute is Subject to Arbitration
Texas’ Fifth District Court of Appeals in Dallas has affirmed a lower court’s decision stating an agreement to arbitrate existed between two cellular network technology companies. In Tecore, Inc. v. AirWalk Communications, Inc., No. 05-12-00130-CV (Dallas App. – December 4, 2013), a cellular network manufacturer, Tecore, agreed to purchase and distribute equipment manufactured by AirWalk Communications.
I Didn't Mean it That Way
It seems statements that go like, “I didn’t mean it that way” are ones we use when something we said or how we said it is misinterpreted by another person and offends her or him. Or, it may be a gesture that is misread. In either case, as a consequence of the other person’s reaction to us and the realization that our words or actions are perceived in a way that is not intended, we attempt to defend ourselves and explain what we meant. This is when we may utter phrases like, “I didn’t mean it that way”.
How Do You Manage the Unrepresented Party in Litigation?
This week, I had two hearings with unrepresented Plaintiffs. These can be doubly vexing when the Lawyer representing the Defendant attempts to bully the Plaintiff by his/her superior knowledge of the process and the law. Just as on the playground, I find that bullies do not usually win out in life, though they can certainly inflict some pain at the moment.
How to Focus That Wandering Mind
Stephanie West Allen
Below is an article with a good overview of a skill and habit that is helpful, probably essential, to both parties in dispute and conflict professionals: focusing a mind that's wandering. The article also explains some of the neuroscience underlying focus and wandering.
Say you're planning an excursion to the beach. Would it make sense to suggest that the best way to get there would be to head in the opposite direction, toward the desert? When your passengers question that route, the only excuse you might have to offer is that after they spend a few hours driving around in the dry heat, they will appreciate eventually getting to the beach even more.
Avoid Disputes Created by Misunderstanding Contracts
Recently I've seen a number of mediation situations where contract issues are in dispute as a result of unfulfilled expectations by a customer. In each of these cases an employee of the company met with their prospective customer and discussed the customer needs and the benefits of the using their company or purchasing their product.
Mediation Feedback: Who is it For?
This article is the result of switching seats – moving from practitioner to party. Every mediation service I've worked for sends out feedback forms. Sometimes immediately after sessions, sometimes a few weeks later. This experience made me question the importance of mediation evaluation.
How Do You Keep the Parties at the Mediation Hearing Until Settlement?
This week, I presided over two hearings where the parties were in a hurry to leave. In one, the case was settled, but in our collective haste, not one of the parties or their lawyers caught the fact that the short-form settlement agreement expressed an agreement to pay $00.00. This left the Plaintiff’s lawyer concerned enough that the following day he sent an email revoking his client’s acceptance of the offer!
Why Learning Conflict Resolution Skills Won't Help
The way you view conflict has a tremendous impact on the way you respond and react to the conflicts in your life. Learning better, shinier, or newer conflict resolution skills won’t make the kind of difference you think it will, unless you also reconsider what you believe about conflict in general.
So, once again, in recalling the facts surrounding a dispute, beware; our memories are not what we think they are, and unknowingly, our memories will revise the history of what happened and/or how it happened. To resolve the dispute, it will help NOT to be adamant about the facts giving rise to it. Rather... focus on the future to get it settled. Our memories, while they may be time travelers to the past, have not yet become time travelers to the future.
5 Things You Didn’t Know about Class Action ADR
For both plaintiffs and defendants, class action litigation is time-intensive, costly and requires close oversight from start to finish. As a result, parties are increasingly turning to alternative dispute resolution (ADR) providers to manage many aspects of class action litigation. The value that ADR can offer to parties extends well beyond reaching a settlement.
In the early days of personal computing, the development of the “graphical user interface” was accompanied by the acronym, WYSIWYG: “What you see is what you get.” While some frustrated computer users know that this was never entirely true, or might only have been true for the computer boffins who designed the interface, the idea was nevertheless an important one: what was there on the surface was what you had to deal with – folder and files and trash cans were all there on the virtual “desktop.”
On Being Understood
Michael P. Carbone
Continuing this month with our review of the Seven Habits of Highly Effective People, Habit No. 5 is to "Seek First to Understand, Then to Be Understood." Rarely do I see advocates in mediation who have mastered this habit. The duty of zealous advocacy almost always prevails, and lawyers seem to be generally better at speaking than at listening.
How Your Memory Rewrites the Past
Stephanie West Allen
Since the past is usually an important factor in a dispute, understanding the process of memory can be helpful to anyone involved in the dispute and its resolution. Although the malleability of memory is not a new topic here in this blog, a reminder can be of value.
What is Sustainable City Development?
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By 2025, Malaysia intends to be a developed, not a developing, nation. In addition to explicit economic development targets, there is also growing environmental awareness (with a national commitment to becoming a low-carbon society), as well as an emerging commitment to social development. Our question, then, is "has all of this translated in some measurable way to more sustainable patterns of city development?" And, what more can be done to ensure that this happens?