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10/20/2014

Getting a fair shake in arbitration

The Public Investors Arbitration Bar Association has made one valid point in its criticism of the pool of arbitrators used by Finra to settle suits by investors against brokers, but it also makes a number of unjustified assumptions about members of the pool. In a study it released last week, PIABA implied that investors cannot get a fair shake from the Financial Industry Regulatory Authority Inc.'s arbitrators because 80% of the roster is male, the average age is 67 and 73% have advanced degrees. It noted that “PIABA's research shows Finra's arbitrator pool consists primarily of elderly men who have socioeconomic status that puts them out of touch with the average investor.” It also reported that the “win rate” for claimants dropped from about 60% in the early 1990s to 42% in 2013.


Mediation talks in Rory McIlroy case to take place this week

Mediation talks between golfer Rory McIlroy and his former sports management agency over a disputed fees agreement will take place this week, the Commercial Court heard today. Mr McIlroy is suing Dublin-based Horizon Sports Management Ltd along with two other companies, Gurteen Ltd, with a registered address in Malta, and Dublin-based Canovan Management Services. He claims a representation agreement signed by him in December 2011 is not valid and unenforceable on grounds including undue influence. He says that agreement was signed when he was aged just 22, inexperienced and without the benefit of independent legal advice.


For people filing complaints against New Orleans police, mediation now an option

A man feels disrespected by a police officer during a traffic stop. A woman believes a cop ignored her calls for help. An arrestee feels an officer was rude. These are among the types of situations that most commonly prompt residents to file a complaint at the New Orleans Police Department. Such matters are investigated, but in most cases the citizen receives a letter a few months later saying the allegations could not be proven. Meanwhile, the officer involved is skipped over for promotions. But now there is a new option available that officials hope will prove more satisfying for residents and cops. If both the officer and the person who filed the complaint agree, they can now opt for mediation, a face-to-face airing of grievances.


Pokémon to Mediation

The civil war intensified. My two teammates fired shots at one another. I buried my face in my palms, avoiding the crossfire. The battlefield was a dorm room at the California Institute of Technology two summers ago. Our mission, as students in a high school computer science program, was coding a game using the programming language, Python. We chose Lights Out, originally programmed by Steve Jobs. Yet our mission seemed impossible given the explosive arguments of my teammates, Goku and Vegeta.


Legal mediation: Resolving confidential matters by private agreement

Confidential and swift resolutions to private legal matters are paramount, especially when problems are solved, confidences are preserved, and long-term relationships prevail. State-certified and trained mediators provide a formal structure and process for resolving legal issues by mutual agreement without public litigation.


Blocking the Use of Mediation Documents in Litigation

The central question is not whether the documents were produced or used in mediation. If that were the question, a party could shield from discovery each and every document it uses in connection with a mediation, which naturally would encourage document dumps in mediation. The issue is whether the challenged documents existed before the parties engaged in mediation.

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George Washington

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Cris Pastore
When You Might Need Mediation After Divorce (10/13/14)
Cris Pastore
When the divorce mediation process succeeds, spouses and their families often report a tremendous benefit from having chosen the option. However, there are still times when ex-spouses, even if they remain amicable after divorce, may need post-divorce mediation.

Konstantin Pilikov
Recognition of International Arbitration in Ukraine in Figures (10/13/14)
Konstantin Pilikov
Arbitration practitioners often put Ukraine below the average ranking of countries in terms of recognition of arbitration. Ukraine’s image of a not entirely arbitration-friendly jurisdiction is “promoted” with common thought about problematicenforcement of arbitral awards in Ukraine. However, in recent years Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach. That progress had been measured during the study resulted in the research paper “Ukraine. Arbitration-friendly jurisdiction: statistical report, 2011-2012”

Michael P. Carbone
Seal It With a Kiss (10/13/14)
Michael P. Carbone
Justice Antonin Scalia was in the Bay Area recently, speaking to students at the University of San Francisco School of Law. On the subject of trial advocacy he told them that they should learn how to take a complex case and make it sound simple.

Sarah Peyton
Compassion for Your Clients (10/13/14)
Sarah Peyton
One surprising way to think about trauma is not by measuring the magnitude of the horrific event, but rather by measuring the extent to which the person who experiences the tragedy is left alone with it. This article provides a useful reminder that we can never understand the pain that our clients have encountered, and that we might be providing one of the only safe places in their life for them to discuss what they are going through.

Katherine Graham
Bullying and Harassment – Evidence it Accounts for Sickness Absence (10/04/14)
Katherine Graham
For years, I’ve sought data on how much sickness absence is caused by workplace conflict. I know that conflict makes people go off sick with stress – but how could I prove this?

Halee Burg
Creating A Foundation for Cohabitation (10/03/14)
Halee Burg
You are in a committed relationship. You and your significant other desire to live together but are not ready for or interested in marriage. You decide to rent or purchase a property together, or to move into a place one of you currently rents or owns. You are in good company, joining over eight million cohabiting couples in the United States.

Jeanette Bicknell
Conflict in Start-ups (10/03/14)
Jeanette Bicknell
From one perspective, conflict in a start-up should not be different from conflict in any other similarly sized organization. And to be sure, some of the same factors that cause conflict in any organization – whether it is a family business or a partnership or a non-profit – can contribute to conflict in a start-up. Yet start-ups also have some unique challenges, and I’ve seen some rather bad advice targeted to them.

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.

Jim Melamed
Reported Complaints About Mediation.com (9/01/14)
Jim 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?

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