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09/04/2015

Mediation 2015: Trends

The cost of litigation, from discovery to judgment, generally continues to rise in recognised centres of excellence such as the US, UK and Germany, meaning that clients are more concerned than ever with dispute avoidance or resolution at the lowest possible price. In this commercial environment, and given that the cost of arbitration also continues to rise, contributors to our research have highlighted the opportunity to further mediation’s reputation as a user-friendly, cost-effective and flexible form of dispute resolution that cannot only resolve disputes amicably and confidentially but facilitate stronger working relationships between commercial parties.


Krier calls for mediation about Lucky’s sad plight

Lucky, a 55-year-old female elephant last year at the San Antonio Zoo, has lived alone for more than two years. Elephants are highly social animals. Still, zoo officials do not want to move her. Could mediation be a way to improve Lucky’s life? That’s the hope of City Councilman Joe Krier, who has called on the San Antonio Zoo and Animal Legal Defense Fund to head to mediation about Lucky’s inadequate living conditions.


Mediation Program Saves Kane County Homes From Foreclosure: Study Finds AG-Funded Programs Are Effective

Established in 2014, the Kane County (IL) Mandatory Residential Foreclosure Mediation Program served 366 homeowners in its first year. The program, administered by Chicago-based Resolution Systems Institute ("RSI") through funding from the Illinois Office of the Attorney General and support from the Kane County Board, was established to assist homeowners struggling to navigate the court system with a fair and efficient process for resolving what happens to their homes. A recently completed evaluation found that the IL mediation programs are meeting this goal.


Mediation 2015: Roundtable

Who’s Who Legal brings together three leading experts to discuss issues facing lawyers today.


A New York Convention for mediation may be coming soon

In July 2014, during a session of UNCITRAL that took place in New York, a Proposal to undertake work on the preparation of a convention on the enforceability of international commercial settlement agreements reached through mediation/conciliation was put forward to UNCITRAL by the government of the United States of America. If the Convention is created and taken up, it will create a strong international legal framework for mediation.


Dayton Police: Mediation to Help Resolve 'Eye Contact' Traffic Stop

Police officials say they are using mediation to help work through the issue of a contentious traffic stop that was recorded on cellphone video. A statement from the city of Dayton said a Dayton police officer, who they didn't identify, pulled John Felton of Michigan over Aug. 15, 2015, for failing to signaling within 100 feet of a turn. "During the stop the Officer additionally acknowledged that Mr. Felton made sustained direct eye contact prior to being stopped," the city's statement reads. "The traffic infraction was verified by the video; however making direct eye contact with an officer is not a basis for a traffic stop."


Enforcing Prelitigation Mediation Clauses in State Court

When a dispute arises, parties to a contract generally look for ways to stay out of court if they can. Including a clause requiring mediation before litigation is one way to accomplish that goal. This kind of clause can make good business sense: after all, being warned of a dispute and having the chance to try and resolve it in mediation is usually preferable to being served with a summons and a copy of a complaint. Plus, a successful mediation is faster and cheaper than litigation and often more private. But what happens if a party fails to honor a prelawsuit mediation requirement and instead runs directly to court?

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More Testimonials
I have never met a man so ignorant that I couldn't learn something from him.

New at Mediate.com

Malcolm Sher
Unravelling Cultural Diversity in Mediation (8/28/15)
Malcolm Sher
What is “culture” anyway? Webster defines culture as the “customary beliefs, social forms and material traits of a racial, religious or social group.” Dutch psychologist Geert Hofstede, defines culture more generally as “the collective programming of the mind that distinguishes the members of one group or category of people from another.”

Sig Cohen
Mediation as a "Disruptive Innovation" (8/28/15)
Sig Cohen
Borrowing from Harvard Prof. Clayton Christensen’s 1997 classic The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail, this article examines how mediation can replace litigation to become the standard practice for resolving disputes in the U.S. While most consider mediation an ‘alternative’ to litigation, I argue it’s only a matter of time before mediation reaches ‘cornerstone status’ in our legal system. Among other things, the article focuses on how law firms and legal education may have to adapt to achieve this goal. However, the outcome can only result in a less expensive, time consuming and emotionally draining process.

Phyllis Pollack
Update on Mediation Confidentiality (8/28/15)
Phyllis Pollack
As originally drafted and introduced into the California State Assembly, it provided that mediation confidentiality would not preclude the introduction of “… communications between a client and his or her attorney during mediation… in an action for legal malpractice or breach of fiduciary duty or both, and in a State Bar disciplinary action, if the attorneys’ professional negligence or misconduct forms the basis of the client’s allegations against the attorney.” In short, mediation confidentiality would not provide a shield to an attorney in a legal malpractice action, State Bar proceeding or disciplinary action where his alleged misfeasance or malfeasance arose during mediation.

Ian MacDuff
Laying the Table (8/28/15)
Ian MacDuff
In both practice and training, we’ve long operated on some assumed attributes of mediation – confidentiality, neutrality – and a loose consensus on at least the key elements of what mediation looks like, though without offending our other cherished values of pluralism, diversity, mediator autonomy, and context-sensitive design.

Dr. Lynne C. Halem
Divorce Mediation: The Best Forum for Families with Special Needs Children (8/21/15)
Dr. Lynne C. Halem
Families who have children with special needs constitute a significant percentage of the divorced population. Children, all children, present a mixed blessing. Some times they may help to save a marriage; other times they add to the stresses of daily living in ways that parents are not able to handle.

Gracious Timothy
The Downside of Arb-Med-Arb Procedures (8/21/15)
Gracious Timothy
The AMA procedure is not the end of the line. Enforcement of settlement agreements is cited as a crucial aspect and the AMA procedure is not completely geared up for it looking at its many downsides. It would be more desirable and feasible to prepare a uniform model provision on enforcement of mediated settlement agreements that would be universally acceptable.

Jeanne Cleary
On the Question of a Party's Capacity to Use Mediation (8/21/15)
Jeanne Cleary
A mediator came to me for a consult with an intriguing situation while co-mediating a Harassment Prevention case in a local court. I analyze the situation in this article.


An Action Plan for Family Business Conflicts (8/19/15)
Kathy Goodman, Karen LaRose
Hurtful relationship remarks can be understood as expressions of unmet needs for respect, appreciation, autonomy and acknowledgement. Unfortunately, even mild expressions of frustrations felt in family businesses, if left unattended, have consequences. Family business disputes are especially emotional, and repeated hurts and miscommunications accumulate into grudges, damaging silence, and feelings of injustice. They can, and often do, result in costly legal actions among family members. Relationships can become difficult or impossible to heal after such ordeals.

Mediate.com ZZZZZ
Melvin Alvin Max Rubin (8/17/15)
Mediate.com
On August 12th, 2015, Mel Rubin passed away. All who knew him are deeply saddened by his loss. Also see www.mediate.com/Memorials.

John Sturrock
Some Valuable Learning Points From Recent Mediations (8/13/15)
John Sturrock
“What’s been going on in recent mediations”, asked a colleague. “Any highlights?” (The trouble with doing anything on a regular basis is that you can omit to reflect on the learning from each occasion.)

Michael Toebe
Problem-solving Effectiveness of Sports Mediation (8/05/15)
Michael Toebe
Sports is a highly-competitive culture and that same commitment and drive it takes to get results can also be a strength so strong, too strong in fact, that it becomes a weakness in minimizing or resolving very costly conflicts, whether that be relationally, performance wise or financially.

Malcolm Sher
Embracing "Cultural Diversity" in Mediation (8/05/15)
Malcolm Sher
More than seventy percent of my mediations involve parties who were born, raised, educated or lived somewhere other than the U.S. or are younger generations of people who were. Their differing “cultures” often play a big part in “who” they are and how they may behave in the face of conflict.

Gracious Timothy
The UNCITRAL Convention on Enforceability of Settlement Agreements Resulting from International Commercial Mediation (7/30/15)
Gracious Timothy
In February 2015, the U. N. Commission on International Trade Law (UNCITRAL) Working Group II (Arbitration and Conciliation) met in New York to consider the case for a Convention on the recognition and enforcement of international settlement agreements achieved through mediation. The task was to report on feasibility and the possible form of work in that area. The Working Group did receive several comments from states on the need; the status of settlements; possible exceptions; and the technical feasibility of this new convention. This article collectively summarises the questions underlying possible harmonized solutions.

Jennifer Winestone
Litigation vs. Mediation - “Child’s Play” for Understanding Your Options (7/30/15)
Jennifer Winestone
This article applies the litigation and mediation processes to a common parenting scenario in order to illustrate the differences between the processes and the advantages of resolving family conflict through mediation.

Cecilia Iro-Cunningham
Comparing Arbitration and Mediation as ADR tool for Workplace Conflict (7/29/15)
Cecilia Iro-Cunningham
Recently arbitration has been considered or mandated by many employers in response to increasing cost associated with employment litigation (Shea, 2015). Arbitration in workplace dispute is mostly used to determine bridge of collective agreement and grievances arising from terms and conditions of employment as contained in the collective agreement.

Bennett G. Picker
How to Become a Successful Mediator (7/23/15)
Bennett G. Picker
The theme of today’s conference is “Succeeding in Mediation.” The simplest definition of mediation is “facilitated negotiations by a trusted individual.” If I had to define mediation in only one word, my word would be “opportunity.” The process offers the parties an opportunity to telescope issues in hours that might take years in litigation, to forge solutions based upon underlying interests, to preserve relationships and, quite obviously, to avoid the time, expenses and distractions of litigation.

Jay Folberg
Mediating Family Property and Estate Conflicts: Keeping the Peace and Preserving Family Wealth (7/22/15)
Jay Folberg
Of all of the cases I have mediated over the past 30 years, the most challenging and rewarding disputes have been those between family members over family property, estates, trusts and businesses.

Richard Barbieri
The Future of Mediation: Changing the Default of Fault (7/21/15)
Richard Barbieri
Will the future of mediation be, as Woody Allen remarked, “much like the present, only longer”? Given what we know about human nature, systems, and the resistance of each to change, that’s perhaps the safest prediction. But it’s also a less than hopeful prognosis, because mediation has much to offer the future, far more than it has achieved at present.

Nancy Foster
Good Communication Starts With Listening (7/14/15)
Nancy Foster
When you are speaking and someone is not paying attention, how do you feel? Annoyed, frustrated, discounted, rejected, anxious or angry? Such feelings usually make communication more difficult. So how can we show someone who is speaking that we really are paying attention to them?

Zena Zumeta
Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation (7/14/15)
Zena Zumeta
Mediators around the country find themselves uncomfortable with what is being called mediation in their own and other areas. Accusations are made that one or another approach to mediation is not “real” mediation or are not what clients wanted. In addition, many clients and attorneys are confused about what mediation is and is not, and are not sure what they will get if they go to mediation.

Bill Eddy
Dealing With Defensiveness In High Conflict People (7/14/15)
Bill Eddy
When most people think of high conflict people (HCPs), they think of bad behavior. The goal seems to be to get them to STOP their bad behavior, by verbally motivating them to have insights into how bad they are acting. However, the high conflict behavior of HCPs is not driven by logic and self-awareness. If you don’t understand this and don’t accept this, you will waste your time arguing for insights and miss your opportunities to calm them down and set real limits on their behavior.

Donna Duquette
Finding a Maryland Divorce Mediator (7/08/15)
Donna Duquette
If you are thinking about working with a divorce mediator, then this is probably one of the more difficult times in your life. To make matters even more challenging, in the midst of this emotional turmoil you are called upon to make some important family decisions. One of these decisions is how to find a divorce mediator who will be right for you and your spouse. Here are suggestions for finding a divorce mediator in Maryland.

Mieke Brandon
Book Review: Handbook of Positive Supervision for Supervisors, Facilitators, and Peer Groups (7/07/15)
Mieke Brandon
This book introduces us and gives the reader a taste of a unique form of supervision, based on positive psychology and solution-focused brief therapy, which have their philosophical roots in social constructivist tradition.

Tim Hicks
Seven Steps for Effective Problem Solving in the Workplace (7/06/15)
Tim Hicks
Problem solving and decision making. Ask anyone in the workplace if these activities are part of their day and they'd certainly answer 'Yes!' But how many of us have had training in problem solving? We know it's a critical element of our work but do we know how to do it effectively?

Judy Ringer
We Have to Talk: A Step-By-Step Checklist for Difficult Conversations (7/06/15)
Judy Ringer
What you have here is a brief synopsis of best practice strategies: a checklist of action items to think about before going into the conversation; some useful concepts to practice during the conversation; and some tips and suggestions to help you’re energy stay focused and flowing, including possible conversational openings. You’ll notice one key theme throughout: you have more power than you think.


Are You Really Ready for Divorce? The 8 Questions You Need to Ask (7/06/15)
Bruce Derman, Wendy Gregson
This article outlines what couples need to do in order to face the numerous dilemmas that are inherent in divorce. A dilemma implies that you are torn between two choices, each of which have undesirable fearful elements. If people have not resolved their dilemmas before the divorce, they go through the process trying to manage their fear in different ways by hiding their doubt, responsibility; vulnerability, or dependency.

J. Kim Wright
What is Integrative Law? The Emergence of a New Legal System (7/02/15)
J. Kim Wright
The author describes the pillars that have developed and appear to be the foundation of the Integrative Law movement and the emergence of a new legal system.

Gini Nelson
Dear Futures Project: What I Think I Know (7/01/15)
Gini Nelson
We are the fortunate beneficiaries of Jim Melamed and Mediate.com's twenty years of dogged persistence in all things mediation. Here are a few things about what I think I know about the next five years or so to come.

John Sturrock
In An Interdependent World There Is No Them And Us, Only Us (6/29/15)
John Sturrock
The old certainties are gone. The disruption caused by the General Election result will inevitably cause instability - and opportunity. Now is the time for new thinking, a break from the old paradigms. You don't solve your problems by using the same thinking that got you into them, as Einstein would say.

Charlie Irvine
“Justice” Report for England and Wales: A Missed Opportunity for Radical Change (6/29/15)
Charlie Irvine
"Justice," a UK think-tank committed to legal reform, launched a new report in April 2015 entitled "Delivering Justice in an Age of Austerity". It proposes significant changes to the justice system of England and Wales, including a new character, the "Registrar", who would have powers to mediate, provide early neutral evaluation, dismiss cases or refer them to a judge. The article provides a detailed critique of the proposals, concluding that despite great merit, they extend the "shadow of the law" by making early neutral evaluation the default. A more radical and empowering change would have been to make mediation the default, with ENE and adjudication the remedial alternatives.

Don Gordon
Solving the Growing Never Married Parent Dilemma for Courts and Divorce Professionals (6/29/15)
Don Gordon
Almost one of every four births today are to unmarried, cohabitating couples. This represents an 80% increase. It used to be that marriage was the norm when pregnancy was involved. Now it is not.

Richard Bone
Avoiding the Uncertainty of a Medical Malpractice Trial (6/19/15)
Richard Bone
Alternative dispute resolution (ADR) provides viable and attractive alternatives to jury trials as a means of resolving medical legal disputes arising out of allegations of professional negligence. The two primary alternatives to a jury trial for medical malpractice cases are mediation and binding arbitration.

Jay Rothman
The Cincinnati Police-Community Relations Collaborative as a National Model for Improving Police-Community Relations Today (6/19/15)
Jay Rothman
The US is now facing national crisis and vigorous discussion about the faults of its criminal justice system, particularly around the African American community and its encounter with the police. This is an opportune moment to take stock of lessons learned from The Cincinnati Collaborative, hailed as national model for police-reform and improving partnership and problem solving between police and community.

John Sturrock
Making Better Use of Mediation to Resolve Disputes and Manage Difficult Issues (6/19/15)
John Sturrock
Mediation encourages parties who have – or who anticipate having – differences, conflict or a dispute to sit down and talk, with a view to finding a mutually acceptable way forward. It is usually most appropriate when, for a number of reasons, people are unable to negotiate effectively for themselves or have reached some sort of impasse or deadlock. It recognises that direct negotiations can be difficult in many situations. It can also be effective to prevent awkward situations escalating.

Michael A. Zeytoonian
Why Taking the High Road to Deflate “Deflategate” is Important (6/19/15)
Michael A. Zeytoonian
It’s the most talked about dispute in New England and in sports these days. Deflategate. But really, how important is this issue? Whether the league rule was violated and footballs were intentionally deflated to a weight less than the range allowed. On a scale of 1 to 10, 10 being most important, this topic is a 1, if that. Ask anyone who ever played football, at any level.


Designing a Successful Parenting Plan (6/17/15)
Don Gordon, Jack Arbuthnot
Here are several important issues you should think about as you design your parenting plan. A child needs the love and affection of both parents, but they also need both as teachers. These roles should override your desire to “own” your children.

Zachary Ulrich
Not All Mediation Educational Programs Are Worth the Time or Money (6/12/15)
Zachary Ulrich
Given the rapid expansion of the mediation field over the past several decades, an increasingly important question for young and aspiring mediators is whether it is worth the time and/or money to invest in what are, in many cases, quite extensive mediation and dispute resolution training programs that have popped up around the world.

Mattie Robertson
Compliance Success with Mediated Settlements in Small Claims (6/11/15)
Mattie Robertson
A report on the success of mediated settlement agreements by SEEDS Community Resolution Center's mediation team in Small Claims Court in Alameda County. High compliance with settlements has provided litigant parties with a reliable and effective way to resolve their cases using interest-based negotiation within a community mediation model.

Laura Athens
Overcoming Reluctance to Engage in Mediation (6/11/15)
Laura Athens
Many attorneys know and appreciate the benefits of mediation.  Those who are familiar with the benefits of mediation readily propose and eagerly participate in it.  However, should you encounter any resistance, how can it be addressed?

John Ford
The Future of Mediation (6/09/15)
John Ford
A coach once asked me to predict which way a drop of water would go around a rock up ahead. Of course there is no way of knowing: the water drop may not make it due to evaporation to the atmosphere, absorption by the river bank, and then if it does make it to the rock, whether it goes left or right, over or below. However, even if the future is uncertain, we can still comment on where the drop of water is at the moment. Even its relationship to our imagined future. And of course about its past.

Brian Jerome
Musings of a Long Time Arbitrator (6/05/15)
Brian Jerome
Musings of a Long Time Arbitrator reflects on the positive and challenging aspects of serving as a neutral, in a manner both realistic and humorous. Similar practitioners will be able to immediately relate, and those that seek or utilize the services of ADR providers will get a direct look at the implications of a neutral’s daily reality.

Larry Gaughan
Beyond “Divorce American Style": The Search for a More Responsive Process (6/05/15)
Larry Gaughan
Marriage is a high risk undertaking. Consider the statistics. In recent years the number of marriages each year is just over twice the number of divorces in the same year. So when two adults in their late 20’s – let’s call them Justin and Lisa - decide to get married and have an expensive wedding with all the trimmings, there is a good chance that they will also get divorced. And when they do, it wouldn’t be unusual for their divorce to cost as much as (or more than) their wedding and honeymoon.

Renita Spotser
Why Mediation Would Benefit In The Adrian Peterson Saga (6/05/15)
Renita Spotser
Adrian Peterson’s current situation needs a mediator…STAT! This article explains how mediation could be beneficial in the Adrian Peterson saga.

Richard Barbieri
Presenting Your Presentation: A Few Words (6/05/15)
Richard Barbieri
The passing of William Zinsser leads me to offer some suggestions on writing well in a specific context: applying to present at a professional conference, or seeking to attract participants to a workshop, based on over forty years of both writing and reviewing proposals.

Kenneth Cloke
Let’s Talk: Charlie Hebdo, Immigration, Terror and Prejudice -- Notes Toward a Proposal for Dialogue over Difficult and Dangerous Issues (6/02/15)
Kenneth Cloke
As wars, religious and political differences, and international problems such as global warming, environmental degradation and poverty expand their reach, importance and severity, stimulating mass migrations and deepening social tensions, we are increasingly forced to recognize that military solutions cannot succeed; that legal processes take too long to implement; and that diplomacy does not reach deep enough into the ranks of those who are drawn to violence.

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