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"The articles are always interesting and helps keep me on the cutting edge of new developments and approaches. Thanks. Keep it up."
Howard Reiss


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READ & SEARCH NEWS
10/01/2014

Reimagining Arbitration

The rapid growth of commercial arbitration has not been without drawbacks. As counsel have become more sophisticated in dispute process design, arbitrations now often incorporate many elements of a court trial. The inevitable consequence of these changes has been increased expense and delay. To preserve the benefits of arbitration, it is necessary to address this issue from several perspectives, starting with the arbitration clause. A thoughtful process usually should include a negotiation or mediation step, reasonable limits on the scope of discovery, overall time limits on the arbitration, and the designation of one rather than three arbitrators whenever possible.


Defusing Office Drama

Where there are people, there is conflict, and your office is no different. It doesn’t matter if there are just two employees or two hundred, there are going to be fights; there is going to be drama. Unfortunately, that makes life difficult for many of us. I don’t like drama. I’d rather just avoid getting involved and let it play out. But when you run a business, you can’t think that way. Too much office drama can make your business grind to a halt, and it’s up to you to help resolve sticky situations.


Mediation Techniques for Producers (and Everyone): Dealing with the Off-Stage Dramas

Did you make it through the festival season unscathed? Many artists find themselves self-producing in the summer and having to embark on sensitive relationships with directors and others. This unique workshop will offer techniques for communicating effectively and productively as you embark on sensitive artistic relationships, now and in the future, as well as offer guidance and clues about finding colleagues who will work collaboratively.


Atlanta Symphony Orchestra and its musicians agree to mediation

Late Saturday, the Atlanta Symphony Orchestra sent out a press release saying that the ASA management and its musicians had agreed to mediation to try to find consensus on a contract. The ASO management and the Atlanta Symphony Orchestra Players’ Association (ASOPA) agreed to restart collective bargaining agreement discussions using a federal mediator. The mediator is Allison Beck, deputy director of the Federal Mediation and Conciliation Service. She served as the mediator during the Metropolitan Opera Musicians’ labor dispute in August.


Help in Quality-of-Life Disputes with Neighbors?

I'm fighting with my neighbor. It's gotten to the point where I want to sue her for leaving her garbage laying around and letting her dogs bark all day and night. Don't I have a right to a quiet, peaceful home? But my board wants me to try mediation. What is that? Is it worth it?

READ & SEARCH NEWS
"Mediate.com has performed an astounding service to the mediation community for many years now. I always suggest that participants in my mediation trainings visit the site and search through the thousands of excellent articles offered free. I also suggest they consider the nearly instant professional web presence available there, if they're intending to hang out their shingle."
Ron Kelly


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Treat people well. Don't mislead them. Don't be prickly. Don't say things that are aggravating. Try to be as agreeable as you can be. Try to be helpful rather than harmful."
Retired Supreme Court Justice Sandra Day O'Connor

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Donald Lloyd
Conflict Resolution Day is October 16, 2014 (10/01/14)
Donald Lloyd
ACR's original intention was for Conflict Resolution Day to be promoted by community centers around the country. The belief is that if the public has a better understanding and awareness of mediation, they will be more likely to hire a mediator. And the more mediators that are hired, the better for all of us!

Cris Pastore
Divorce Mediation Sessions: What Goes on Behind Closed Doors (9/26/14)
Cris Pastore
If you are considering using divorce mediation as the option for your separation or divorce, you might find it helpful to understand what is actually discussed in the mediation room.

Randy Drew
Defining Mediation: Voluntary Assisted Negotiation (9/26/14)
Randy Drew
Mediators have historically resisted defining mediation, because mediation can be necessarily amorphic and definitions can be dangerous. However, the world is defining mediation with or without us. Therefore, it is time for us to weigh in on the question: What is mediation?

Chris Poole
Experts Predict ADR Will Help Resolve ACA Claims (9/26/14)
Chris Poole
The use of ADR to resolve healthcare-related claims will increase with the implementation of the Patient Protection and Affordable Care Act (ACA). Experts predict the increase will stem from the need to reduce costs as well as the healthcare groups that will bring new disputes for resolution.

Mary Novak
The Ups and Downs of ADR Policymaking (9/26/14)
Mary Novak
This is the story of how a law intended to increase mediation use led to a dramatic drop-off in mediation and what was done to try to fix the error.


Harvesting Data to Shape the Future of International Dispute Resolution (9/22/14)
Deborah Masucci, Michael Leathes
Among the early words of wisdom expressed by Sherlock Holmes was this classic line: "I never guess. It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts." And so it is with dispute resolution. There is a paucity of reliable statistics out there to enable users of dispute resolution services, as well as advisers, providers, educators, adjudicators and policymakers, to understand how best to prepare and steer ourselves for the future.

Steven Bennett
Models for Use of Mediation in e-Discovery (9/19/14)
Steven Bennett
Many commentators and courts suggest that cooperative approaches to e-discovery planning hold the key to lower-cost, higher-quality e-discovery processes. Yet, admonitions to cooperate hardly suffice to motivate self-interested parties. Some system to foster cooperation, beyond the parties themselves, appears essential. One system proposed as a means to promote e-discovery cooperation involves use of mediation. This article outlines an array of mediation techniques that could be used for that purpose.

Laurie Israel
Is Mediating Prenups a Form of Marital Mediation? (9/19/14)
Laurie Israel
I have been noticing a trend in my practice lately: the first draft of prenuptial agreements generally sketched out a marriage with no guaranteed financial interplay.

Maria Simpson
Great Workplaces (9/19/14)
Maria Simpson
Fortune magazine publishes an annual list of great places to work, and this year, as in many others, Goldman Sachs took first prize. Many people are surprised by that considering the hours and workload, but there are other elements to consider besides hours.

Robert Benjamin
Game-Playing in Negotiation and Mediation: Machiavelli’s Place At the Table (9/13/14)
Robert Benjamin
While often dismissed as irrational, disingenuous, unethical or “Machiavellian,” game playing strategies and devices are a natural and necessary part of the negotiation and mediation of difficult issues and controversies. If acknowledged and monitored thoughtfully, gaming behavior allows participants a measure of self-protection and provides a lubricant for the constructive, creative and ethical management of complex issues.

John Sturrock
The Mediator's Log: A Mediation Story (9/12/14)
John Sturrock
What happens when you are a mediator and you start another mediation day? We have printed below the details of a mediator's typical morning. The sequel will be printed shortly. Read on as the story unfolds....

Kenneth Feinberg
Ken Feinberg on High Profile Dispute Resolution (9/12/14)
Kenneth Feinberg
Well-known dispute resolution professional Ken Feinberg speaks on high profile dispute resolution and its relation to mediation.

Richard Barbieri
Mediators, Transformed and Untransformed (9/12/14)
Richard Barbieri
The French have a wonderful term for a common phenomenon: déformation professionelle. Similar to the saying, “If your only tool is a hammer, you tend to see every problem as a nail,” this phrase suggests that people see the world through the lens of their work. This article addresses that concern, and helps mediators to remember their clients are people that cannot fit into a mold.

Keith Seat
Legal Mediation News – September 2014 (9/12/14)
Keith Seat
This is another in a series of updates on Legal Mediation News by Mediate.com News Editor, Keith Seat. See our related Newsletter Service for your clients and referral sources.

Phyllis Pollack
Duologue: Inattentive Conversing (9/12/14)
Phyllis Pollack
Daniel Simons and Christopher Chabris discuss the notion of Inattentional Blindness or how when we are looking at a scene, we may become so focused on one particular aspect of what we are viewing that we miss the other objects or stimuli that are in plain sight. "Inattentional Blindness occurs where attention to one thing causes us to miss what to others may seem to be blindingly obvious. We have a limited ability to focus and attention in one area can distract us from another area."

Rachel Ehrlich
Shhhh! The Big Risk Associated With Mediation Confidentiality Nobody Talks About (9/05/14)
Rachel Ehrlich
In complex civil disputes it is not uncommon for information to be provided through mediation and that information is often subject to mediation confidentiality. When related disputes (contractual indemnity, insurance carrier contribution, insurance coverage and bad faith, and reinsurance) arise, mediation confidentiality prohibits using the information relied upon as evidence in the related matter.

Cris Pastore
6 Major Mistakes to Avoid in a Do-It-Yourself Divorce (9/05/14)
Cris Pastore
Although spouses claim to have everything worked out, they almost always fail to consider some very important details. Read this article and learn the 6 common mistakes to avoid when attempting to resolve your own divorce.

Katherine Graham
What’s a ‘Successful’ Mediation? (9/05/14)
Katherine Graham
Mediation is commonly measured in terms of settlement rate (i.e. did the parties agree?) and you’ll see figures like ’80% settlement rate’ bandied about. In our view this is not the only measure of success. There are many more! Think about which measures matter to you – the parties, the mediators, and your organisation.

Keith Seat
International Mediation Updates - September 2014 (9/05/14)
Keith Seat
This is another in a series of updates on the development of mediation internationally by Mediate.com News Editor, Keith Seat.

Dale Ordas
Rethinking Negotiation Strategy (9/02/14)
Dale Ordas
Too frequently, negotiations are fruitless due to inadequate preparation. Rethinking Negotiation Strategy sets forth critical areas that should be part of the preparation for negotiation. In each segment there are references, which provide for a more in depth exploration of these indispensable tools for the successful negotiator.

Kim Lovegrove
Mediation-in-Depth Analysis - Video (9/02/14)
Kim Lovegrove
Prof. Kim Lovegrove and distinguished lawyers look at Mediation as a dispute resolution process, its advantages, and disadvantages.

James Melamed
Reported Complaints About Mediation.com (9/01/14)
James Melamed
This article includes reported complaints and email correspondence with and regarding Mediation.com and their selling practices.

Rolando Perlaza Perez
Resolucion Alterna de Conflictos en Costa Rica y la Apertura Hacia Nuevas Formas de Gestionar el Conflicto (9/01/14)
Rolando Perlaza Perez
Hace 17 años en Costa Rica se promulgó la Ley Sobre Resolución Alterna de Conflictos y Promoción de la Paz Social ley número 7727 (Ley RAC) y se iniciaron campañas de formación y concientización de la ciudadanía sobre las ventajas y bondades de la solución pacífica, dialogada y colaborativa del conflicto. Desde entonces, Costa Rica ha avanzado en el desarrollo y fortalecimiento de los métodos tradicionales de RAC (Resolución Alterna de Conflictos), entiéndase Arbitraje, Mediación/conciliación, Negociación y en los últimos años los Círculos de Paz. Incluso en el año 2011 se promulgó la Ley Sobre Arbitraje Comercial internacional Ley 8937, que sienta las bases para que Costa Rica sirva de Sede para arbitrajes internacionales de naturaleza comercial.

Keith Seat
Update on Home Foreclosure Mediation - September 2014 (9/01/14)
Keith Seat
This is another in a series up updates on the development of home foreclosure mediation in the United States by Mediate.com News Editor, Keith Seat.

Brad Heckman
Mediation and Mindfully Getting in the Middle (Redux) - Video (8/26/14)
Brad Heckman
In this insightful talk, Brad Heckman discusses mindfulness in conflict mediation. Using poignant humor and his own hand-drawn illustrations, Heckman effectively communicates the necessary balance of emotions, relief and reflection that mindfulness supports in the mediation process.

Jeffrey Krivis
The Negotiation Campaign (8/25/14)
Jeffrey Krivis
Negotiations are like political campaigns. It is an organized effort to influence decision makers. Don’t just throw a case against the wall and hope the other side gets it. Mount a negotiation campaign that is strategic and considers who might be needed to vote for your side and what they will need to solidify their vote.

Mark Baril
MED-ARB: The Best of Both Worlds or Just A Limited ADR Option? (Part Two) (8/22/14)
Mark Baril
Med-arb is the melding of two well-established processes for conflict resolution into one hybrid process. Mediation and Arbitration are used in conjunction with one another and, in the truest form of med-arb, the same third-party neutral plays the role of both mediator and arbitrator. In this paper, the term med-arb refers to this pure form that uses the same neutral, and is distinct from the common process where different neutrals are used in a mediation phase and an arbitration phase.

Judy Ringer
Conflict Resolution for Kids (8/22/14)
Judy Ringer
My good friend and colleague, Thomas Crum, taught me a lot of what I know about having hard conversations. A method he uses with children - the BLT - is so simple and easy to remember, I often use it and have found it to work very well with children and adults: Breathe, Learn, Talk.

Ken Johnson
The Good and Bad of Conflict (8/22/14)
Ken Johnson
As conflict professionals, we should strive to understand the subject of conflict in all its various forms. However, the large majority of the industry only desires to resolve conflict. Indeed, conflict can be beneficial (anabolic) or destructive (catabolic). Knowing the difference can give businesses and other organizations a catalystic edge to take them to the next level.


Time for a Mediator’s Hippocratic Oath? (8/19/14)
Deborah Masucci, Michael Leathes
It is one of the defining characteristics of professions whose stakeholders invest great trust in their practitioners. Doctors make the Hippocratic Oath. Accountants, lawyers, police officers, elected officials, social workers, veterinarians and others in a position of trust also make various forms of oaths. Yet mediators do not make an oath, even though mediators are invariably taken into parties’ trust. Should mediators make a Hippocratic-style oath?


“Talk To Me”: What It Takes To Be An NYPD Hostage Negotiator (8/18/14)
Hugh M. McGowan, Ph.D., Jeff Thompson
Crisis and hostage incidents are known for being stressful, unpredictable, tense, anxiety-filled, and emotionally driven. Add to this volatile concoction is that these incidents often can involve violence that has been threatened or having already occurred. Amidst these chaotic incidents New York City Police Department hostage negotiators emerge to provide the antidote to the ensuing turbulence.

Cris Pastore
Using the 17 Factors of Alimony in PA in Divorce Mediation (8/15/14)
Cris Pastore
Curious about how alimony is determined in Pennsylvania? Read this comprehensive article and learn about alimony and about the 17 factors the court considers in determining it.

Rolando Perlaza Perez
La Mediacion en Costa Rica y el Papel del Mediador (8/15/14)
Rolando Perlaza Perez
La mediación es un método de Resolución Alterna de Conflictos (RAC) de naturaleza auto-compositiva que busca solucionar las diferencias a través del dialogo. En ese sentido, es un método en el cual un tercero imparcial, llamado mediador, interviene en un conflicto entre dos o más personas a solicitud y con la anuencia de las mismas, con el fin de ayudarles en la búsqueda de soluciones pacíficas, cooperativas y mutuamente satisfactorias.

Mark Baril
MED-ARB: The Best of Both Worlds or Just A Limited ADR Option? (Part One) (8/15/14)
Mark Baril
Med-arb is the melding of two well-established processes for conflict resolution into one hybrid process. Mediation and Arbitration are used in conjunction with one another and, in the truest form of med-arb, the same third-party neutral plays the role of both mediator and arbitrator. In this paper, the term med-arb refers to this pure form that uses the same neutral, and is distinct from the common process where different neutrals are used in a mediation phase and an arbitration phase.

Ben Ziegler
Adding Verbal and Non-Verbal Communications Capacity in Virtual Contexts (8/11/14)
Ben Ziegler
Working virtually can put the squeeze on our full range of verbal and nonverbal communication skills. This is a given with it comes to nonverbal. When we’re in the same physical space together, the success of our communication effort is mightily influenced by our nonverbal, visual, actions. Where is body language, and tone of voice, in a tweet or Facebook post? Fortunately, there are virtual ways to add back some of our lost communications capacity, both verbal and nonverbal.

Don Cripe
Shooting Yourself in the Foot (8/08/14)
Don Cripe
One of the earliest “learned professions” in the Western world is the law.  A reading of ancient history from the earliest beginnings of Western civilization will reveal allusions to lawyers.  Popes, kings and feudal governments in medieval Europe relied heavily upon lawyers to guide them.  Yet, from early days and primarily because of the educational and status advantages lawyers held over most of society, the profession has suffered from poor public opinion and criticism; literature and in popular culture with the onset of the “lawyer joke.”

Alberto Elisavetsky
Observatorio del Conflicto Social - en Espanol (8/08/14)
Alberto Elisavetsky
En un contexto social de alta litigiosidad, bajo apego al cumplimiento de las normas que regulan la vida social, el incremento de la violencia como forma de intercambio interpersonal y el uso del poder como forma demasiado extendida de resolver diferendos, parece oportuna la creación de un Instituto del Conflicto, que profundice y articule actividades académicas y sociales, en el nuevo y vasto campo de la resolución de conflictos.

Oran Kaufman
On What Level Are We Mediating? (8/08/14)
Oran Kaufman
How do you define success in mediation? The answer depends in part on who is asking the question? Success for the parties may be different than success for the mediator or success for the court. This article explores the question of how to define success in mediation from a variety of angles including what does success mean for the mediation profession?

Kevin Boileau
The Myth of Mediation Neutrality - book excerpt (8/08/14)
Kevin Boileau
The traditional view is that a mediator is a neutral, third party who helps two or more conflicting parties cooperatively resolve their differences. Interestingly enough, this belief is analogous to the Cartesian-Newtonian epistemological position that holds that one can be an independent observer of an objective world, in science or in daily life. However, I am skeptical about this position, both epistemologically and clinically. What remains an open question is whether a mediator can actually ever be a “neutral third.”

John Sturrock
Beware of Ultimatums When Negotiating (8/01/14)
John Sturrock
Good negotiation involves lots of client moves, client satisfaction, flexible negotiators, . . . and few ultimatums. Remember these tips in order to get the best agreement for your client.

Ralph Kilmann
Do Your Surrounding Systems Support Your Inner Self? (8/01/14)
Ralph Kilmann
Are your surrounding systems separate from your inner self? I would like to address the observation that we typically define our sense of self as being separate from our surrounding systems. So I ponder: What are the consequences of keeping our sense of self (some integration of ego, soul, and self-worth) separate from our surrounding systems?

Maria Eugenia Sole
Mediación Comunitaria, Redes Sociales, y Javier Mascherano - en Espanol (8/01/14)
Maria Eugenia Sole
Mediación comunitaria, redes sociales y Javier Mascherano en nuestra mesa De la “hombría” a la “caballerosidad”. En las últimas horas las redes sociales se vieron inundadas de referencias a Javier Mascherano, capitán “sin cinta” de la selección de futbol argentina, exaltando su hombría de bien, su temple, perseverancia y espíritu de equipo.


What the Supreme Court of India Got Right and What it Got Wrong (8/01/14)
Niyata Samir Ghandi
The Kluwer Arbitration Blog published an outsider’s perspective on the decision of the Supreme Court of India which has been applauded by international practitioners around the world since it curbed the jurisdiction of Indian courts over an arbitration agreement supplementing the pro-arbitration jurisprudence coming from the SCI over the last two years. The writer has commented not only as an outsider but also and more particularly as a Civil Lawyer, proposing an excellent alterative to the court’s approach. However, it may be necessary to have an insider’s perspective on the judgment.

Michael Leathes
Book Review: The Variegated Landscape of Mediation (7/31/14)
Michael Leathes
Never before has an attempt been made to capture the distinctive qualities and differences that combine to make mediation eclectic and also truly comprehensible. Until now. The Variegated Landscape of Mediation (Eleven International Publishing, July 2014) is a collaboration of around 90 of mediation's thought leaders from around the world. It is the first work that explains on a global plane how mediation has cross-pollinated itself into such a kaleidoscopic display of both consistent and contradictory features.

Keith Seat
Legal Mediation News - July 2014 (7/29/14)
Keith Seat
This is another in a series of updates on Legal Mediation News from Mediate.com News Editor, Keith Seat. See our related Newsletter Service for your clients and referral sources.

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