Business As Usual? Mediation and the Justice System
This article considers the under-use of mediation in the UK's second largest jurisdiction, Scotland. The article has three sections: a "myth buster" and two questions. The first examines three popular myths about mediation; the second addresses the question, "How does mediation add value to the justice system"; and the third presents the business case for lawyers, "Why does mediation make good business sense?"
Control Anger During Conflict like a Fly on the Wall
Trying to control anger by focusing on angry thoughts and hurt feelings is like fanning the flames. It’s far more effective to pretend you’re a fly on the wall of a situation, new research confirms.
As we find ourselves satiated with the lurid details of the Boston Marathon Bombing, we notice the comic relief story: “Social Media Shows Support for Alleged Bomber’s Innocence." The temptation here is to either chuckle at Dzhokhar’s supporters’ refusal to accept the incursion of reality into their lives or express anger that there is any support at all for one who seems likely to have committed such an atrocity, and utilize this as an opportunity to allow ourselves to exclude these voices and belittle their message.
Fourth and Goal: How The 2011 NFL Season Was Saved
The National Football League (“NFL”) labor dispute lasted over 130 days. The specific dispute was a labor controversy over revenue sharing, and effective negotiations were the only thing that allowed the 2011 NFL season to proceed.
Can a Med-Arb Serve in Two Processes?
Med-Arb is a controversial hybrid of two processes in which parties first go to mediation, and if the process is not successful, they arbitrate. In the “pure” form, the same Neutral assists both processes. But how can an arbitrator who has held discussions with the parties satisfy the requirements of “impartiality” and be a “fair arbitrator?”
Online Mediation: If the Shoe Fits
As the Internet expanded the opportunities for transactions among buyers and sellers from different counties, several roadblocks emerged during disputes, including the expense of filing a lawsuit in a foreign country, the complex jurisdiction issues, and the distances involved. In response, an online forum surfaced as the most efficient way for the two parties to resolve any potential conflicts. Skeptics of online mediation have resisted the new forum due to the inability to communicate face-to-face and the lack of familiarity with the cyber-environment. Today, however, online mediation is no longer perceived as an experiment. As a matter of fact, the cyberspace model of online dispute resolution has expanded its disputes from simple e-commerce transactions to cater to a wide array of disputes.
Developing an Online Mediation Practice
This article chronicles the observations and lessons learned of a mediator, new to both webcam communication and online mediations, during a series of simulated mediations with Virtual Mediation Labs (VML). Ben describes some of the problems he encountered during the simulations and the implementation of Skype into his practice and how instrumental the VML programme is to a prospective online mediator. The lessons learned in this article will enable a mediator to be aware of the fundamentals of online mediation and gives a brief synopsis of the commonest problems encountered during online mediation.
Resolving the Truth Between Two People in Conflict
"There are three truths: My truth, your truth, and what really happened." But if we think of the possibilities for synergy (collaboration) of two people's versions of reality, maybe it would make it easier to realize that some truths are socially constructed anyway...so we might as well negotiate it into something useful and healing.
Preparing for Mediation: A Practical Guide to Saving Face
Greg Stone's latest book Preparing for Mediation: A Practical Guide provides straight-forward tips for mediators. This excerpt from his book discusses the importance of saving face. It also suggests ways for mediators to allow their clients to save face while making progress in the mediation.
In some mediations, I have witnessed the “nibbling” approach: one party keeps making demands on top of demands, often very small ones, in an effort to get the other party to reach a breaking point and either cave in to the demands or storm out of the negotiation.
A Narrative Approach to Business Partner Disputes
To listen for the important issues, we should tune in to the emotional charge, to the repetition as the speaker rehearses well-worn arguments, and to particular phrases that might have resonance in a slightly different version of the story. If we ask the right questions based on those phrases, it may shunt the conversation onto different track, helping the partners construct a new story based on new or newly acknowledged information.
Negotiation: Body Language, Baselines, & Baloney
If you add up the little things in negotiation they can make a big difference. Next time you are involved in a negotiation, consider preparing first and make sure it includes setting your own goals, establishing their baseline, being away of their actions, and bring a partner along too.
Liability of Counsel in International Arbitration: Any Changes?
Lisa Bench Nieuwveld
A week ago today, it was my privilege to participate in the annual UNCITRAL/VIAC/YAAP Joint Conference, addressing hot topics in international arbitration. The conference successfully considered many key topics, including my topic, liability of counsel in international arbitrations. This topic, similar to my recent book topic (Kluwer Law International, Third-Party Funding in International Arbitration), is receiving a lot of attention with limited actual changes.
Steubenville Tragedy Needs Effective Communication
The divisiveness and acrimony that played out in this past fall's trial of two lacrosse players that sexually assaulted an intoxicated young lady is playing out again in Northeastern Ohio in a similar way. Because of the adversarial nature of the judicial process this has been traumatic for everyone involved, including the victim, the rapists, their friends and families the community at large and even the CNN correspondent covering the trial. The only hope of dealing and restoring the fabric of the community is a restorative intervention, which may also be useful in developing a program of prevention.
Forgiving When Asked
Forgive me. I apologize. I was an idiot. You didn’t deserve what I said. I was so wrong. I didn’t mean it. You are a saint for putting up with me. Will you please forgive me? In whatever form requests for forgiveness take, it is not incumbent upon the receiver to forgive. For some reason many people think they ‘should’ forgive or at least say they do. It’s just not always that straightforward.
Empathy is an essential tool in mediation, both for the mediator and hopefully a quality the participants develop as well. Mediators recognize, unless we want to act purely as evaluators (and even then the capacity for empathy is still important), that we need to try to empathize with the needs and feelings of both sides in every case, to build trust and encourage understanding.
The Art of Mediation in the Real World
This mediator gives examples from his life about his mediation style. He discusses mediation techniques that have been successful for him and reflects on the practices he has seen.
Mutual respect and courtesy may be the key to success in finding consensus. It helps people to lower barriers and explore difficult topics.
Freedom and Peace of Mind After Conflict
I’m disillusioned with terms like “conflict management” and “conflict resolution,” though I continue to use them. I use them because I haven’t yet found an optimal replacement.
Great Mediation in Progress
Maria Simpson gives advice for mediators on how to arrange a great mediation session. She discusses practical tips to make sure that every mediation session is spent wisely.
Character Assassinations a Machete
This article discusses how participants bring up the past in mediations, as though it would have some bearing on current mediations. People act so differently in conflict situations that their past actions rarely affect their mindset in a mediation.
Is this a Problem to Solve? Or a Tension to Navigate?
I used to work for a social service agency. This agency got funding from the government who set up various guidelines and reporting measures that we needed to abide by. Every now and then they would add various compliances that our organization needed to meet. Especially when it came to reporting and documentation.
A Reality Check
One of the jobs of a mediator is to provide a “reality check”; to be a neutral, dispassionate third party, who can be objective and discuss with a party the “downside” or “adverse consequences” to her side of dispute. The goal is to have that party accept what is being said and to act accordingly.
Clients Choose Mediation Based on Mediator’s Words and Silences
Recently, I had the good fortune to attend an outstanding webinar by Professor of Social Interaction Elizabeth Stokoe, hosted by the National Association for Community Mediation (NAFCM). Professor Stokoe performs conversation analysis on interactions between mediators and parties. In her presentation, she discussed four common problems mediators may encounter during intake calls with potential clients who are involved in a neighbor-to-neighbor dispute. The problems can lead to the potential client rejecting the opportunity to mediate.
Special Needs Education Dispute Resolution
Caring for a special needs child involves an often overwhelming lifelong commitment that introduces an added strain to the parents’ own relationship, which can increase the likelihood of divorce. Mediation can be especially valuable to divorcing parents of a special needs child—both during and after the divorce process itself. This articles helps parents to discuss special considerations for themselves and their children.
Musings on the Mediator’s Job
I’ve been working my way through research notes for my upcoming book and today came across these excerpts on the mediator’s job from Winslade and Monk’s 2000 classic, Narrative Mediation. If you’re a mediator and you haven’t read it, you ought to. They have several worthy sequels, too.
Protracted litigation can be one of the most destructive elements in society: it destroys businesses, breaks up marriages, and damages health. There is therefore an urgent social need to dissuade people from unnecessarily entering into prolonged disputes.
Face-to-Face Film Review
The time has come for a movie to capture the art and struggle of being a conflict resolver/mediator. “Face to Face” is a film that transcends depictions of the mediation field currently found in the US mainstream media. This a raw, unfiltered look at a mediator engaged in the drama of mediation.
A Response To The Critics Of “Profiting From Injustice”
Some arbitrators and investment lawyers have rejected these allegations, claiming that the investment arbitration system is not pro-investor biased. They told the Vancouver Sun that “states win a significant number of cases” and have as much influence over the composition of the panel of arbitrators deciding the cases as the claimant.
"Face to Face" Explores Restorative Justice - Jan. 9 & 10 Screenings in LA
The award-winning film “Face to Face” will screen on January 9 and 10 in Southern California. The Australian drama deals with the concept of restorative justice, in which a mediator is appointed to resolve conflicts and legal issues. Plaintiff and defendant confront each other in a controlled, guided situation. The benefits of such an approach are obvious: Swift justice, rather than a costly protracted trial in the criminal court system: Good for the plaintiff, good for the defendant, good for the taxpaying public.
Year-End Wrap Up: Are We There Yet?
F. Peter Phillips
Some of us have been at the task of providing alternatives to business litigation for fifteen years. Some have been at it much, much longer. Stepping back from the fray for a moment, one might well ask: Are we any closer to where we want to go? What is the current state of the profession of business mediation, arbitration and negotiation?
Anchoring and Fairness
Two weeks ago, I posted a blog about “cognitive bias”. As explained on ScienceDaily.com, “a cognitive bias is any of a wide range of observer effects identified in cognitive science and social psychology…that are common to all human beings.”
PON Setting the Stage - Video
Professor Guhan Subramanian has created a video for Harvard's Program on Negotiation called Setting the Stage.
Judge Praises Transformative Mediation
This force of law, backed up by full-blown coercive force, is present even in family cases. It is not unheard of for the police to appear at a parent's house "WITH A GUN" to take a child to the other parent's house, based on a court order. Most often we don’t hear about it when that happens, but sometimes we do.
LIBOR Liability: What’s next in Securities Litigation?
V. James Mann
Securities litigators looking for the “next big thing” cannot have failed to take note of the manipulated LIBOR (London Interbank Offered Rate) investigations and potential prosecutions in the United States and Europe.
Citizen Participation, Media Hype and… Dogs
A while ago, I facilitated a public meeting about dogs in the municipality of Zandvoort (Holland), a fishermans village that, over the years, has transformed itself into a tourist beach resort. It houses approximately 16.000 inhabitants and, with the seasons, has a flow of millions of tourists each year. There are hotels, cafes, clubs, a race-circuit, and of course, there’s the beach itself.
Mediating Between the Mediation Models - Part 3
This final section of the Mediation Models article gives an example: What if you had two clients at the table that have a different expectation of what the mediation model will look like? Kathy Goodman presents some practical ideas and literature references to mediate between multiple models.
Mediating Between the Mediation Models - Part 2
This article discusses the three most prominent models of mediation: Evaluative, Facilitative, and Transformative. It then compares them with the four mediation stories discussed in Part 1.
Binding Mediation/Baseball Arbitration
Michael P. Carbone
This article explains one of the settlement options that mediators and clients can utilize. This option provides for binding mediation by including a hybrid dispute resolution process of binding arbitration.
Mediation: The New Workout?
In a recent Fairly Legal episode, I watched Kate Reed on her “mediation high.” Her face was flushed, her words had accelerated. it was apparent her heart rate had quickened. In the midst of the conflict, the tension, and the anxiety she almost looked like she was . . . enjoying herself?
Balance Listening and Limits with Storming Teens
How can parents stay loving and detached but still listen when challenged by preteens and new teens? My favorite pediatrician, T Berry Brazelton, advises parents of teens who are being challenged or insulted to say calmly, “I’m interested in what you have to say, but you’ll have to find another way of saying it.” (Press Democrat Tuesday December 13, 2011)
The Cold Shoulder
One of the reactions to people who provoke us is to give them ‘the cold shoulder’. In the dictionaries I consulted, I found that the source of this is Sir Walter Scott. There is no reason explaining its derivation but rather descriptors of what the expression reflects, including words such as aloofness and disdain.
Reading Into Things
It’s not a straightforward exercise to figure out from where and how our assumptions come to us. Life experience, family, friends, teachers, observations, gossip, others’ tales, and a wide range of variables have an impact on our thinking. How we interpret peoples’ words, actions, behaviours, attitudes, etc. leads us to act and react in ways that are based on our assumptions – not necessarily on what is actually intended. Conflict can easily arise from erroneous perceptions and misinterpretations. Unexplored attributions are antithetical to any effort to master conflict responses.
Innocents Pleading Guilty
In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty.
The “Secret Sauce” of Grief Counseling and Mediation: A Different Eye
Karin S. Hobbs
I recently attended a session entitled “What Mediators Can Learn from the Brain Science of Grief Counseling” at the Northwest Dispute Resolution Conference in Seattle. I was interested that the lecturer, Professor John Medina, a molecular biologist fed up with current popular myths surrounding neuroscience and author of Brain Rules, was explaining a method of grief counseling that actually helps people who have been traumatized.
Give us a Break: Mediation Marathon or Some Conflict Calm? Another Case for Mindful Reflection
Stephanie West Allen
As each day passes, the pace of life seems to accelerate – demands on productivity continue ever upward and there is hardly ever a moment when we aren’t, in some way, in touch with our family, friends, or coworkers. While moments for reflection may be hard to come by, a new article suggests that the long-lost art of introspection —even daydreaming — may be an increasingly valuable part of life.
Since I heal people, I might as well be a heart surgeon.
One thing that I have noticed from watching Fairly Legal is that Kate Reed is so effective at her job, not just because the skills come naturally to her, but also because she is very comfortable with the process. She doesn't have to waste time thinking about when to consult an expert, what constitutes as legal advice, what is a break of confidentiality, what is an enforceable agreement, and what are the parties real interests. This shows me that she has years of training and practice which, combined with her natural skills, have created a very effective (albeit slightly wacky) mediator.
Reconciliation as an Evolved Strategy
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Conflict does not just plague human societies. It also afflicts other group-living animals, who (like humans) have evolved strategies for mitigating social conflict. One such strategy is ‘reconciliation,’ first defined by de Waal & van Roosmalen (1979) as post-conflict friendly interaction between former opponents.