Increasingly, couples seeking divorce are using alternative dispute resolution (ADR) methods to resolve issues in divorce proceedings. Mediation is probably the most common type of ADR method used in divorce cases today. While not advisable in all cases, this approach to navigating the divorce process can work well when couples are on equal footing, and want to plan for the future and have a role in developing the settlement agreement that will get them there.
Group calls for uniform international arbitration rules
Lawyers are hoping for more consistent rules for international arbitration across Canada as plans are in the works to smooth out differences between the provinces and territories. A working group is looking into creating consistent laws throughout the country on issues from the power of arbitral tribunals to make ex parte orders to whether it’s appropriate to have the same limitation periods everywhere in Canada. It’s a step toward making Canada an “arbitration-friendly” country, says Gerald Ghikas, a commercial arbitration lawyer at Vancouver Arbitration Chambers who’s also chairman of a working group that’s proposing the changes.
State Supreme Court Mandates Arbitration in Nursing Home Death Case
The Florida Supreme Court recently made it more difficult for the families of wrongful death victims to have their cases heard in court. In February, the Supreme Court unanimously ruled that a mandatory arbitration agreement signed by an elderly nursing home patient extended to, and was binding on, his estate and heirs. Many states refuse to enforce binding arbitration clauses in nursing home contracts, as they can be unconscionably biased in favor of the nursing home, but the justices refused to make such a declaration in this case.
Lawyer Says RCMP Refuses To Mediate Harassment Suit
A lawyer representing 300 women who worked for the RCMP alleging harassment and gender-based discrimination in a lawsuit says the national police force is declining an offer to mediate.
Mediate "The Way" says Fiji Chief Justice
Fiji CJ Anthony Gates believes that it was the failure of the non-confrontational approach widely used in Fiji that contributed to the first two coups of 1987. Speaking at the ADR International Seminar held in Kochin, India, Justice Gates said mediation has begun to play a more significant role in Fiji today. Justice Gates told the participants that Fiji had its own mediation system in the past. He said the mediation system was in place even before the missionaries arrived and it was known as 'i soro'.
Attorneys ordered to mediation in big-rig crash suit
Attorneys involved in a personal injury lawsuit filed by a family hurt in a crash that left their car suspended off a Highway 101 bridge have been ordered to mediation.
New mediation service aims to resolve rental disputes
A new mediation service in Fargo, ND aims to prevent landlord and tenant disputes from leading to court or eviction. A mediation service for landlords and tenants was created by the Successful Outcomes for Tenants and Landlords Committee, which is made up of area landlords and representatives of housing agencies.
If there is anything the nonconformist hates worse than a conformist it's another nonconformist who doesn't conform to the prevailing standards of nonconformity.
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Business As Usual? Mediation and the Justice System (5/19/13) Charlie Irvine 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?"
ODR in North America (5/18/13) Arthur Pearlstein, Noam Ebner, Bryan Hanson In the chapter, the authors map out the state of ODR private market services and look at our federal government and its potential roles
as a major provider and user of ODR services. The US and Canada have not only spear-headed the offering of ODR services. North American institutions were also the first to set up research institutes in this area of dispute resolution, as well as to incorporate ODR into academic curricula.
ODR in Europe (5/18/13) Graham Ross, Marta Poblet This paper offers an overview of the present situation of ODR in Europe and discusses effective development of ODR deployments to handle online,
offline, national and cross-border disputes in Europe. To do so, we proceed by first defining the scope of ODR and reviewing existing services. We then continue by analyzing the major challenges faced by ODR in Europe and finally conclude by suggesting some future scenarios.
Expectation and Regret - A Look Back At How Mediation Has Fared In The U.S. (5/17/13) Peter Adler In May, 2013, I gave a keynote talk to the Civil Mediation Council in London for their 7th National Conference. The question I was asked to address was: “What should we in England learn from the U.S. mediation experience?” Said differently, what might others profitably take from the explosive growth of court, community and privately offered mediation over the last 25 years in the U.S.? What hind-sights can we offer now that, by some measures, both countries have succeeded in marrying mediation into their civil law systems and legal cultures and what regrets and appreciations do Americans hold? 2 Comments
ODR and e-Arbitration – Trends & Challenges (5/17/13) Mohamed S. Abdel Wahab This chapter is divided into five sections. In section 1, the author sheds
light on the conceptual framework of e-arbitration. In section 2, the issues pertaining
to the e- arbitration agreement are scrutinized. Section 3 focuses on e-arbitral
proceedings and section 4 addresses e-arbitral awards. Section 5 provides
an overview of some e-arbitration projects and initiatives. Finally, the author offers some
Lincoln Unchained: A Principled Hardball Negotiator For the Ages - Film Review (5/16/13) Robert Benjamin “Lincoln” is worthy of admission to the elite pantheon of excellent films, few in number, that focus on negotiation. More than merely a well-drawn historical drama, as some have characterized it, the film pushes beyond the simplistic mythology of Lincoln as the great emancipator and savior of the Union to examine the reality of what is required to negotiate difficult human events. Not surprisingly, little has changed in the intervening 150 years, which makes the film deserving of careful review by teachers and practitioners of negotiation and mediation.
eMediation (5/16/13) Noam Ebner This chapter beings with a brief discussion of the developmentof e-mediation within the wider context of ODR growth. Next, a snapshot is provided
of the field’s status quo with respect to stakeholders, modes of communication and technology utilized, as well as the prevailing trends. The third section addresses substantive and process issues in e-mediation: mediation process models, stages and issues, practitioner skills, professional issues, ethics and practitioner standards.
Dzhokar Tsarnaev (5/16/13) William Hymes 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.
ODR and eNegotiation (5/15/13) Ernest Thiessen, Paul Miniato, Bruce Hiebert Online dispute resolution (ODR) and eNegotiation are two overlapping components within
the world of electronic group decision support systems. eNegotiation encompasses all
online transactions in which two or more parties seek an agreement through negotiation.
These negotiations can range from e-Commerce to international peace treaties.
ODR and Ombudsmanship (5/13/13) Frank Fowlie This chapter focuses on the applicability of Online Dispute Resolution (ODR) for a specific
dispute resolution mechanism, the Ombudsman. The chapter is based on the experiences
and observations of Dr. Frank Fowlie, who served as the Inaugural Ombudsman for the
Internet Corporation for Assigned Names and Numbers (ICANN).
ODR and the Courts (5/11/13) Karim Benyekhlef, Nicholas Vermeys Whilst acknowledging that ODR assumes two roles as a competing and complementing
system to state courts, our focus in the following pages shall be exclusively directed to the
complementary role of ODR, and to the development of court annexed ODR schemes.
Accordingly, we shall commence by providing an overview of how states have started to
incorporate ODR into the legal process, and then proceed to shed light on possible
future paths for state-run ODR systems.
Can a Med-Arb Serve in Two Processes? (5/10/13) Laura Lozano 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?” 2 Comments
Online Mediation: If the Shoe Fits (5/10/13) Negeen Rivani 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.
ODR and Justice (5/08/13) Ruha Devanesan, Jeff Arresty In this chapter, we analyze the interaction between traditional concepts of justice and fields in which
Online Dispute Resolution (ODR) has flourished and is burgeoning. We then explore the
ways in which justice as traditionally conceptualized is adapting to the digital environment,
and ask the question: Are traditional notions of justice relevant to contemporary online
interactions between individuals, businesses, and governments?
Los Angeles Superior Court Shutters ADR Program (5/06/13) Randy Drew After more than 20 years, the largest program of its kind in the United States is calling it quits. We’re discussing the ending of possibly the largest single ADR practical training ground in the world. Could this be a "make lemonade" moment for mediators? Will this megalithic event impact mediators homogeneously, or will there be a stratification of consequences? 5 Comments
One Language and One Video at a Time (5/03/13) Giuseppe Leone Online mediation is becoming increasingly popular. Giuseppe Leone is hoping to build on this popularity by using Skype to give mediators practice at testing their dispute resolution skills. Mr. Leone also points out that viewing a mediation role play can alleviate some clients' fears of the unknown.
Holding Both (5/03/13) Jeanne Cleary “What do you need to grow in order to have the capacity to hold both?” Holding both is a concept of holding on to your true self and seeing yourself in relation to the world around you. This author examines that concept in relation to the Boston marathon bombing.
The Gray Divorce (5/03/13) Denise Tamir Though the fact that divorce has become more common and less of a stigma has some impact, that does not explain why the gray divorce rate is climbing while the general divorce rate is going down. Denise Tamir suggests a few contributing factors. 2 Comments
10 Helpful Tips for Mediating Child Related Issues (5/03/13) Lisa Nelson The article provides helpful tips and considerations for parents to address in divorce mediation when minor children are involved. There are specific considerations that parents need to be made aware of before they enter the mediation process with children.
Mediation Case Law Video: Wrongful Death (5/01/13) James Coben In Estate of Barber v. Guilford County Sheriff's Department,, the appellate court ruled that a plaintiff's obligation not to defame a wrongful death action defendant is not unenforceable as a prior restraint on speech, where record showed the mediated agreement was based on a knowing, voluntarily and intelligent waiver of constitutionally protected rights.
ODR and Government (5/01/13) Ethan Katsh, Daniel Rainey The topic at hand is the use of the Internet to govern, and the role that ODR can play in e-government. Our discussion of e-government will be divided into three main sections: What has changed?; What must government (and e-government) do?; and Where are e-government and ODR going?
Matt Phillips Is New NAFCM Executive Director (4/30/13) James Melamed Please welcome Matt Phillips as NAFCM’s new Executive Director. Matt’s most recent role was as director of the Volunteers of America Dispute Resolution Center in Everett, Washington. He was also the Chair-person for the Resolution Washington’s statewide legislative committee that was involved in raising over $12 million for conflict resolution.
Mediation Case Law Video: Those All-Day Mediations -- Maybe We Should Reassess? (4/30/13) James Coben In the case In re Rains, the appellate court concluded that the bankruptcy court did not clearly err in finding a debtor mentally competent to enter into a mediated settlement, notwithstanding that immediately following the conclusion of mediation the debtor drove himself to the hospital where he was admitted and diagnosed with a cerebral aneurysm and stroke.
Interview of Pattie Porter (4/29/13) Patricia Porter This interview of Pattie Porter by Dave Hilton of the Conflict Specialists Show addresses such issues as conflict coaching; CINERGY conflict coach training; workplace conflict; the value of joining professional coaching and dispute resolution organizations; branding and networking when you have a coaching business; and more.
ODR and Trust (4/29/13) Noam Ebner Trust is on the rise. Perhaps not in practice, but certainly as an area of interest and research. This is clear to anyone tracking the dispute resolution and conflict management fields, and is particularly noticeable in the field of ODR, in which trust has always received special attention.
Managing Business Risk (4/26/13) John Sturrock Managing business risk can be done through effective negotiation and conflict management. Mediators can help to manage that business risk by nipping things in the bud – and resolving difficult disputes.
I'm Heading for Divorce. How do I Start? (4/26/13) Rachel Virk This article walks through the divorce process for someone who is just beginning to consider a divorce. It gives a practical guide for people to navigate through the process without an emotional roller coaster.
Developing an Online Mediation Practice (4/26/13) Ben Davies 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.
The Mediator as Moral Witness (4/23/13) David A. Hoffman People in conflict often present their claims in starkly moral terms: "I'm in the right -- the other party is clearly in the wrong." Mediators are trained to deflect argument involving moral claims from a focus on entrenched positions to a focus on underlying interests. But what if the parties perceive their most profound underlying interest to be validation of their being “right”? What if each party is looking to the mediator to be a witness to the other party’s “moral culpability”? 1 Comment
Preparing for Mediation: A Practical Guide to Mediator Selection (4/22/13) Greg Stone Greg Stone's latest book Preparing for Mediation: A Practical Guide provides straight-forward tips for mediators. This excerpt from his book discusses considerations for selecting mediators. It also suggests ways for mediators to allow their clients to save face while making progress in the mediation.
Resolving the Truth Between Two People in Conflict (4/22/13) Ralph Kilmann "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.
ODR and Culture (4/13/13) Daniel Rainey This chapter begins with some basic definitions of culture, then address the relationship between ODR technology and culture, and finally offers observations about what may be the short term future of intercultural exchanges mediated by online dispute resolution tools.