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04/26/2015

Forced Arbitration Leaving Consumers High and Dry

Data confirm that forced arbitration gives consumers little recourse or relief. With the completion of its study of forced arbitration, the Consumer Financial Protection Bureau now has the authority to prohibit the practice in the financial markets it oversees. The bureau has made a compelling case for doing so. Forced arbitration clauses, widely found in take-it-or-leave it contracts for checking accounts, prepaid cards, credit cards and other financial services, require consumers to give up the right to go to court in the event of a dispute. Instead, you are forced to bring your case to a private arbitration firm that has been chosen by the company – your opponent in the dispute. The CFPB’s data show how unfair this increasingly common corporate practice is, and how damaging it can be to the financial marketplace.


Keeping the peace at Pine Ridge Elementary

It’s not easy to become a Peacemaker. Anyone in the fourth grade can apply, but not all applicants are chosen for an interview with Linn and the current group of Peacemakers. Linn weighs in on who is chosen, but the kids are involved in the selection process, too. Those who make the cut get an important lesson in leadership.


Secrets of a Successful Divorce Mediation

As a former litigator turned mediator, I'm frequently asked why divorce mediation works. My response is a list of benefits: "faster, costs less, resolves conflict, calms emotions instead of amping everyone up." But today, when reading Teri McCowen's blog on ChickChainWalkingClub.com about the power of listening, I realized I haven't been answering the question of why mediation works. Teri hit the nail on the head in her description of what it feels like to be with a master listener.


Oregon GMO critics, proponents agree on mediation system

Disputes over genetically modified crops would be mediated by Oregon farm regulators under legislation that has won support from biotech critics and proponents. Mediators from the Oregon Department of Agriculture would help resolve coexistence conflicts among growers of biotech, conventional and organic crops as part of House Bill 2509, which is headed for a vote on the House floor. A farmer who refuses to participate in such mediation and later loses a lawsuit in the dispute would be required to pay the opposing party’s costs and attorney fees. In conflicts over infringing farm practices — such as unwanted cross-pollination between crops — ODA officials would also oversee the collection of samples to establish a “chain of custody.”


Uber lawsuit over alleged India rape heading to mediation

A lawsuit filed in California against Uber Technologies by a woman who alleged she was raped by a driver while taking a trip in Delhi appears to be heading to mediation. Both parties have asked the court for permission to proceed with the process, known as “alternative dispute mediation,” with a private mediator. They didn’t specify a deadline for coming up with a resolution. The filing comes just over a week after Uber petitioned the U.S. District Court for the Northern District of California to throw out the complaint. It said the court in San Francisco lacked jurisdiction because the two parties are both Indian citizens and the alleged rape occurred in India.


Dueling neighbors: It's time for mediation in a Shadyside bed-and-breakfast

Zoning battles in residential neighborhoods have been a fact of life as long as there have been property rights. The Mansion at Maple Heights, a bed and breakfast owned and operated in Shadyside by former Steelers lineman Chukky Okobi, has generated a protracted battle with some of the neighbors. The dispute at its heart is very simple. Mr. Okobi has a large tent on the property that he would like to continue offering for social events. The neighbors insist that the party tent is a source of noise and violates the legal criteria for a permitted business “accessory.”

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Paul Monicatti
A Top Ten List of Keys to Success in Court-Ordered Mediation (4/24/15)
Paul Monicatti
In an era of the vanishing trial, mediation advocacy is gradually replacing trial advocacy as the key litigator's skill. From a mediator with nearly 30 years mediation experience, here is a concise best practice list for the mediation advocate.

Uma Ramanathan
Torch Bearers in Mediation (4/24/15)
Uma Ramanathan
Goals, predictions, vision statement. Frame it in any manner, what stakeholders are looking for is the fulfilment of the promise of mediation.

Ricardo Padilla
(Instrumental) Reconciliation Without (authentic) Forgiveness (and Social Justice): A Recurrent Paradox in Political Conflicts (4/24/15)
Ricardo Padilla
After a conflict between communities or nations has been led to an ending phase, political reconciliation requires that both parties be brought closer to the point they may have respect for each other’s rights and can live peacefully together. When the conflict passed through war or mass atrocity, reconciliation is especially hard to achieve. There are limits to forgiveness that may state significant barriers on the pathway to reconciliation.

Joan B. Kelly, Ph.D.
Family Mediation Research: Is There Empirical Support for the Field? (An Update) (4/22/15)
Joan B. Kelly, Ph.D.
The divorce rate began its sharp increase in the early 1960’s and more than doubled by the end of the 1970s.  This was accompanied by dramatic changes in cultural traditions, societal expectations, and divorce and child custody laws which led to increased reliance on the courts to adjudicate separation and divorce disputes, including decisions related to children.


The 2015-16 Global Pound Conference Series - Prospectus (4/21/15)
Jeremy Lack, Michael McIlrath
“Shaping the Future of Dispute Resolution & Improving Access to Appropriate Justice." The goal of the Global Pound Conference (“GPC”) Series is to improve access to justice around the world by generating actionable data from stakeholders in the dispute prevention and resolution fields to facilitate greater access to appropriate dispute resolution (“ADR”) processes worldwide. Please join our efforts!

Stacy Roberts
Getting on the Same Page Regarding Mediation in the Future (4/20/15)
Stacy Roberts
I agree with many other colleagues that going forward there should be a focus on public awareness, the training and licensing of mediators, but also, and maybe most importantly, the training of attorneys who will be using mediation. I say this because mediation is used when there is a dispute, so we know that litigation and mediation will almost always go hand in hand, and will therefore, almost always involve attorneys. So bear with me as I discuss the rationale for this thought process on the future of mediation and two recent observations that have led me to this conclusion.

Boroka Ganyu
Conflict and the Mediator: Peace Within – Redefining Interpersonal Conflict (4/17/15)
Boroka Ganyu
This article introduces a feminine (emotional-relational) approach to interpersonal conflict. I will redefine interpersonal conflict as a mental representation, and as a basis for defining inner peace.

Sherri Donovan
Family Mediation In The Digital Age (4/17/15)
Sherri Donovan
Twenty-first century technology will continue to impact family life and mediation. The family mediator’s awareness of the possible positive and inflammatory influences of the internet, may be instrumental in effectively identifying and resolving the modern family’s disputes. Social media, cyber abuse, the child’s computer voice, the use of a forensic computer expert and the futuristic divorce are factors to be considered in the practice of family mediation.

Laura Snoke
Always Expect the Unexpected (4/17/15)
Laura Snoke
As an attorney and mediator for many years, I have learned the most important lesson for mediation: always expect the unexpected. Whether the parties send formal, lengthy briefs, replete with numerous citations to both facts and legal authorities, or whether they simply show up at the mandated start time, there are always surprises. A good mediator must be ready to handle any situation that arises, with patience, flexibility and a good sense of humor.

Mary Novak
Domestic Violence Finding Overrides Agreement to Mediate (4/17/15)
Mary Novak
A case in the Appellate Division of New Jersey Superior Court stands as a reminder of the complexities of family mediation when domestic violence is involved. Indeed, the court found that a finding of domestic violence can trump a requirement to mediate.

Marvin E. Johnson
The Integrity of ADR Processes and the Risks of Blurred Boundaries (4/14/15)
Marvin E. Johnson
Historically, the three main dispute resolution methods used in the United States have been violence, avoidance, and litigation. Today, there are a variety of additional processes that can be used to foster the resolution of disputes. Many of these processes began gaining popularity in the early 1970s as a result of frustration with the varied human and financial costs associated with litigation.

Kristen Blankley
How to Make Mediation Safer in Cases of High Conflict (4/10/15)
Kristen Blankley
This article considers issues of safety in mediation. Mediation involves parties in conflict, and safety should be a priority of all mediators. Mediators should be aware of both participant and mediator safety throughout the process. This article considers practical advice for all mediators to consider before, during, and after a mediation session to ensure participant and mediator safety.

Michael Leathes
The Medici Effect of Mediation (4/10/15)
Michael Leathes
As the Danish mediator Tina Monberg has pointed out in The Butterfly Effect, chaos theory sits at many intersections: conflict and consensus; litigation and negotiation; problem and solution; public policy and private process, art and science, servant leadership and personal leadership, and others. Mediation is both a practice and a theory, cutting across negotiation and justice, practicality and academia, needs and demands.

John Lande
Litigation as Violence (4/10/15)
John Lande
Litigation is an important part of the dispute resolution system and it is quite legitimate for people to use it in appropriate cases. Litigation (including negotiation and mediation conducted during litigation) often functions appropriately without causing undue violence or other harm. People usually don’t pay as much attention when things work properly and this may be the case with litigation most of the time. But too often, unnecessary injury is a by-product.

Michelle LeBaron
Bodies at Work: Moving toward Alchemy (4/10/15)
Michelle LeBaron
The single most neglected truism in mediation, whether virtual or in person, is that it does not happen without bodies. We do not mediate with beings in other realms (unless we attach a very different meaning to mediation than is contemplated in this collection of articles on the future of our craft). Thus involving those with current corporeal substance, we mobilize to engage and reach toward understanding while literally standing our ground.

Alan E. Gross
Expanding Mediation’s Future: Integrating Party Self-Determination with other Mediation Principles that can Aid Party Understanding and Truly Informed Decision Making (4/06/15)
Alan E. Gross
Bush and Folger recently contributed an article to this “Mediation Futures Project” series that advocates strongly for “Refocusing on Party Self-Determination” but also suggests that mediators should conform to orthodox Transformative Mediation practices. This partial rejoinder, while acknowledging the important contribution of the TM focus on self-determination to mediation practice, also recognizes the value of other mediation practices.

John Licciardello
National Divorce Survey Yields Surprising Insights (4/03/15)
John Licciardello
Divorce is as popular as ever in America, with over 50% of first marriages and 70% of second marriages ending prematurely. In addition to traditional litigation couples are increasingly turning to mediation and the “do it yourself” pro se divorce process in the quest to have “successful” divorces as measured by satisfactory settlements, minimal relationship damage and reasonable cost.

Gregorio Billikopf
Party-Directed Mediation. Another Step Towards Non-Directive Mediation (4/03/15)
Gregorio Billikopf
The contribution of two models is presented in this article, Party-Directed Mediation (PDM) and Negotiated Performance Appraisal (NPA) to deal with peer mediation and hierarchical mediation, respectively. Both models are especially useful for dealing with deep seated interpersonal conflict. Originally, they were used as organizational mediation models.

Ryan O'Connell
Using Mindfulness to Inform Our Responses to Conflict (4/03/15)
Ryan O'Connell
A mindfulness technique known by the acronym RAIN can be a useful tool for informing our conflict responses and transforming our conditioned, reactive conflict behaviors.

Jeffrey Krivis
Where Have All The Idealists Gone? Long Time Passing, Part II (4/03/15)
Jeffrey Krivis
Over the years, a common theme heard among litigators after a grueling case where one side loses is that there must be a better way to manage disputes. In the mid -1970s, legal scholars from around the nation came together to review ways to make the legal process more user-friendly and accessible. They concluded, among other things, that a multi-door courthouse with processes that were designed to fit the forum to the dispute might be worth considering.

Lisa Parkinson
Looking to the Future: Complexity, Chaos, and Making Connections (3/31/15)
Lisa Parkinson
Diversity matters! For mediation to develop in fresh and vibrant ways, we need to think and act creatively. Some of the best ideas come from making connections – for example, between mediation, sciences, and the arts – and through using these connections in practice. Bernie Mayer's article in the Mediation Futures series struck chords with me, with its references to complexity science, chaos, and the importance of adapting the ways we mediate to meet diverse needs, instead of expecting participants to fit in with the particular way we choose to mediate.

Noa Zanolli
Mediation is a Common Good (3/31/15)
Noa Zanolli
Mediation does not belong to professionals and specialists only. The mere thought of mediation, its philosophy, mediation’s essence, is for the common good and so the question is: How could mediation become a common good?

Jim Melamed
Now Negotiating with Iran; Remembering Senior Mediators Statement Urging Effective Negotiation Approaches (3/30/15)
Jim Melamed
This article was originally posted during October of 2006. That was a time when the Bush administration absolutely refused to talk with Iran. This outraged many Americans, including many mediators. Now, with the U.S. and Iran seriously talking, if not agreeing, it is appropriate and timely to wonder whether this example of "mediator activism," now 9 years ago, may have played a small part in encouraging the negotiations that have come to take place.


Mediation Styles (3/30/15)
Tony Belak, William Hymes
Conflict is not unique to humans, but it can be said that the involvement of third parties in conflict, for better or worse, is a distinctly human activity and it has been around since Man began speaking and walking erect. Given this history, it is unsurprising that over time, innumerable styles, techniques and customs have come into play, and it is further unsurprising that the relative merits, and applicability of of these techniques have become the topic of scrutiny, study and academic debate.

Susan Bulfinch
Reflections on Mediation: Past, Present, and Future (3/30/15)
Susan Bulfinch
To reflect on the future, it is helpful to understand where we are and how we got here. This article gives an overview of mediation and suggests some directions for the future. Social media will help increase interest in the field and teaching conflict resolution at an early age may help reduce conflict at school, home and work.

Brendan Schutte
Gateways and Barriers to the Widespreading of Mediation and Restorative Justice (3/30/15)
Brendan Schutte
If mediation and restorative justice are such great ideas, why are they taking such a long time to spread across communities, workplaces, and organizations? Hidden human biases act against adoption of new ideas and also act in favour of aggressive or adversarial approaches more than constructive resolution of conflict. But there are also ways to help spread ideas and good news stories and increase the chances that mediation and restorative justice will flourish.

Robert Benjamin
Game Playing in Negotiation: Part 2, An Inventory of Strategies and Devices--- 2.1 Overview and Organizational Approach (3/30/15)
Robert Benjamin
The organizational approach to this inventory of game playing strategies and devices is based on the working assumptions that gaming behavior is an integral part of all negotiative processes, regardless of context; that every negotiative approach, whether reasoned persuasion, competitive, or interpersonal/relational, has a valid purpose and application in some circumstances; and, that each negotiative approach spawns and has associated with it characteristic gaming strategies and devices. This article provides an overview of the association of game playing with the five most common negotiative approaches.

Chris Poole
The Future of Mediation (3/26/15)
Chris Poole
It is impossible to talk about the future, present or past of mediation without putting some sort of definition to that term. Clearly, mediation as dispute resolution has been around as long as disputes. When defined as a process that involves a designated third-party to assist in the resolution of disputes, mediation can be considered an old process.

David Matz
On Tools and Their Dangers (3/26/15)
David Matz
We, like all professionals, focus most of our attention on making and using tools. We have jobs to do, expectations to meet, and tools are extensions of our selves. They imply a strategy for proceeding, a source of confidence that we really can make an impact on a reality that badly needs it. The negotiation literature, especially the teaching and research literature, is dominated by a focus on tools. Tools are thus essential, and also dangerous.

Howard Bellman
It’s Been A Trip and We're Not There Yet (3/26/15)
Howard Bellman
It seems I have reached the point in my career when those who would be historians ask for my recollections, assessment of the state of the art and vision of the future. Here is my polite reply, including my very personal description of our earliest days, some aspects of our evolution and the future as I would prefer it, not how I predict it. I would only add that I don’t know the dimensions of the learning curve we are on and I prefer to believe that despairing over unachieved goals is premature. Optimism, patience and tenacity ought to come naturally to mediators.

Donald T. Saposnek
Book Review: The Master Agreement by Jay Bultz (3/25/15)
Donald T. Saposnek
The Master Agreement offers a comprehensive manual of issues, clauses and phrases for use in drafting Marital Settlement Agreements. The author capably provides a collection of relevant issues and then a multitude of options for clauses to include in your divorce and separation agreements. This book is unique, of very high quality, will save you time and elevate the quality of your drafting.


The Role of Intra-Group Consensus-Building in Disarming Militant Groups in Northern Ireland (3/24/15)
Ariel Heifetz Knobel, Gary Mason, Benedetta Berti
This study examines the internal process that led combatant groups in Northern Ireland, focusing on the Loyalist camp, to relinquish armed struggle as a viable strategy to accomplish their political goals. The study focuses on internal dynamics, i.e. intra-group negotiations and consensus- building mechanisms that Loyalist militant organisations employed to switch from violence to non-violence and from confrontation to engagement with their enemies.

Jeffrey Krivis
Where Have All The Idealists Gone? Long Time Passing (3/21/15)
Jeffrey Krivis
A recent discussion among a seasoned group of neutrals about the struggles of the professional mediator caught my eye. Some complained that the trend in litigated cases was to reduce the value of the mediator to a commodity, due to the constraints put on them by the litigants who were not process oriented.

Phyllis Pollack
Article on Advocacy (3/21/15)
Phyllis Pollack
Several months ago, Joan Kessler asked that I provide an article to be included in the ADR issue of The Advocate. Since then, I have pondered on what I should write about. For inspiration, I went to my weekly blog which I have been posting since August 31, 2006. Reviewing them, I noticed a recurring theme: preparation for mediation. At least twice a year, I posted vignettes about mediations gone badly due to a lack of preparation. Because preparing for mediation is so important, I would like to share them with you, as my contribution to this ADR issue of The Advocate.

Peter Salem
The Future of Family Dispute Resolution: Mediation as a Piece of the Puzzle (3/20/15)
Peter Salem
Had I written about the future of family dispute resolution in the late 1980s, when I was a young and enthusiastic child custody mediator working for a Wisconsin family court agency, I would probably have focused exclusively on mediation rather than considering the current broad spectrum of family dispute resolution (FDR) processes that I did not anticipate at the time.

Ralph Steele
Understanding Culture in Mediation (3/20/15)
Ralph Steele
Culture is the sum total of our birth life and continuous environment. Every person has at least three (3) distinct DNA cultural ties that they are born with. There is no pure race or culture; culture is truly a human phenomenon. The problem is some people aren’t cognizant of or don’t understand their own culture.

John Lande
How Can You Get a Piece of the Action? (3/13/15)
John Lande
There is a significant problem with the traditional negotiation paradigm of two coherent models, positional and interest-based negotiation (or other labels for essentially the same models). This paradigm has been helpful in moving us forward in recent decades. But simply saying that something was a interest-based or positional negotiation not only doesn’t convey things clearly, but it actually can be misleading.

Ian MacDuff
Access to Mediation: Future Mediators (3/12/15)
Ian MacDuff
Much of the focus of the previous papers in this fascinating series on the future of mediation have, understandably, been on just that topic - that is, what will, or should, mediation look like. The questions asked have been both exercises in reflection on where we’ve been (after all, the best way to anticipate the future is to understand the past), on the coherence or not of the profession, the risk of our having been distracted from the core values and value of mediation, and - in the end - questions about what mediation really is and what we as mediators really do.

Lisa Parkinson
Family Mediation - Preface (3/12/15)
Lisa Parkinson
The Children and Families Act 2014 is focusing more attention on the role of family mediation in the family justice system. Family mediators have been given greater responsibility to encourage consideration of non-court dispute resolution processes before application is made to the family court, and to assess the suitability of mediation in particular circumstances.

Steffi Berkowitz
Future of Mediation: Uphold the Process (3/08/15)
Steffi Berkowitz
What's the down side of mediator self promotion over promotion of the mediation process? I think that the future of mediation could be put at-risk, or minimally compromised, by those in the profession who consciously, or unconsciously, leverage a belief system of "who knows best."

Louise Phipps Senft
Transforming the Adversarial Ethic (3/06/15)
Louise Phipps Senft
This article describes the differences between transformative mediation and directive mediation and posits that transformative mediation, which assists people with quality dialogue helping them to engage in meaningful explorations of the situation and possible solutions, whether they agree or not, is exactly what corporate counsel and litigators could embrace.

Elliot Platt
It's Never Just About Money (3/06/15)
Elliot Platt
This article describes the mediation process and the approach of a good mediator. It is intended to encourage litigators to utilize mediation.

John Wade
Negotiation Lessons from the Book (not the Film) of Exodus (3/06/15)
John Wade
The recent film “Exodus: Gods and Kings” has sparked some renewed interest in the actual written record of those events.So I share some of the themes which have emerged belatedly for me in this case study extraordinaire. One of the indicators from research of an “expert” modern day negotiator is someone who takes time to reflect systematically on past negotiations and attempts to record lessons from those events.

Merri L. Hanson
Back to the Future of Mediation (3/05/15)
Merri L. Hanson
For some reason, beyond my understanding, the decades old debate continues. How should mediation be defined? The better question is, “How can the practice be applied?” And herein is the genesis of the divergent paths upon which mediation has developed in the last thirty years.


The Future of Mediation - Video Interview of Ken Cloke (3/03/15)
Kenneth Cloke, Peter Adler
The use of mediation has grown and evolved over last the thirty years. As the “founders” begin to retire and new voices emerge, what is the future of mediation from a global perspective?

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