Litigation Funding of Smaller Parties Provides Mediation Counterweight
Keith Seat

A litigation funding company in Australia provides resources in carefully selected cases to individuals and small businesses involved in disputes with larger entities who may try to use their advantage in resources to obtain procedural wins or force unfair settlements. The funding company sees itself as helping to level power imbalances, but selects only cases it feels are likely to generate a good return. The managing director believes mediation is the best option for resolving business disputes, but that mediation works better when the smaller party has options.

Sydney Morning Herald (June 7, 2008)

Victoria, Australia Expanding Court-Connected Mediation
Keith Seat

Australian Supreme and County Courts will be able to send cases to mediation for the first time in a pilot project being started in Victoria, which will include large commercial disputes. Based on a Canadian model, senior judges will be involved to give the mediation process their imprimatur. The project is allocated A$3.7 million in the current budget package for the judicial system. In addition, the budget includes a A$5.8 million expansion of the mediation program in Magistrate Court and A$6.2 million to expand alternative dispute resolution regionally in Victoria.

The Age (May 4, 2008)

Mediation Central to Civil Justice Reforms in Victoria, Australia
Keith Seat

Australia’s longest-serving attorney general is urging that mediation “take center stage” in the reforms of Victoria’s legal system which are under way. The Victorian Law Reform Commission proposed introducing pre-action protocols, which may include mandatory mediation, in recommendations presented to the attorney general.

The Australian (March 7, 2008)

Bond Newsletter
Geoff Sharp

Bond University's eagerly awaited Dispute Resolution Centre's April Newsletter is just out!

Edited by John Wade, the letter always delivers sophisticated content for the experienced mediator.

There's a good article on Overconfidence at mediation and in a follow up to my popular post The Secrets of Successful (and Unsuccessful) Mediators - a completed Questionnaire for Advanced Mediators that John gives to experienced mediators in his regular Advanced Mediation Courses about what they see and do at mediations.

Australian Agency Uses Mediation to Assist Small Businesses
Keith Seat

The Victorian Small Business Commission uses its broad investigative powers and mediation to end unfair market practices and bullying of small businesses by larger companies. The Australian agency has increasingly focused on franchising relationships, along with retail tenancy disputes and other contract issues. The Commission encourages mediation as a way to resolve conflicts without necessarily ruining relationships. The Commission has dealt with 4,000 complaints since the office opened in 2003 and resolved about 80% before or at mediation. The Commission also encourages companies to avoid conflict by utilizing specified practices to sustain good working relationships.

My Small Business (December 17, 2007)

The Ok Tedi Negotiations: Rebalancing the Equation in a Chronic Sustainability Dilemma
Peter Adler
Between November 2005 and June 2007, a team from The Keystone Center helped organize and implement a multiparty negotiation process aimed at increased redress for people affected by river contamination from the Ok Tedi Mine in Papua New Guinea (PNG). Ok Tedi is often cited as one of the worst man-made environmental disasters in the world. It is also a true sustainability dilemma. The mine produces 20% of PNG’s gross domestic product, but it has also disrupted the traditional food webs and lives of more than 50,000 people by putting 90,000 tons of rock waste and tailings per day into the Fly River system. After 18 months of effort, a major benchmark was accomplished. Delegates of the nine affected regions along the river, the mining company, the government, and others concluded a Memorandum of Agreement (MOA) that will ultimately give the people in the impacted area about 1.1 billion kina (roughly US$350 million) in funds, projects, and services.

Persuasion in Negotiation and Mediation Article by John Wade
Geoff Sharp

Prof. John Wade's latest article on Persuasion in Negotiation and Mediation is fresh out today.

Typically, it's 30 something pages are brimming with generous take-aways.

John provides a framework for common patterns of behaviour and persuasion observed in high conflict negotiations in civil and family disputes, often including legal representatives.

The article sets out:
• Some introductory boundaries to the topic of “persuasion”
• A composite model of a persuasive lawyer – negotiator
• Basic negotiation patterns
• The task of creating doubt about rights, goals and power
• Cialdini’s sales levers
• Persuasion and pause
• A glimpse at deception of others during negotiation
• A glimpse at deception of self and “decision traps”.
• Persuasion via “intangibles” – procedural skill and emotional awareness.

West Australia Mediating Serious Criminal Cases
Keith Seat

Western Australia’s Supreme Court began a pilot program to mediate criminal cases last November, and is now expanding its “criminal case conferencing” program by covering more serious crimes, including murder and armed robbery, and appointing a second mediator. Mediation occurs only with the consent of the accused and victims (or secondary victims in the case of murder). While possible outcomes of mediation include agreements to substitute charges, obtaining admissions that will shorten the trial, and solutions that avoid trial altogether, the program is not plea bargaining. Further, as with civil mediation, mediation communications cannot be used in any later trial and the mediation is entirely separate from the court proceedings. The Supreme Court is the highest court in the state and deals with serious criminal charges and large civil cases.

Australian (July 13, 2007)(Subscription Required)

The Alliterative Allure of Prof. John Wade
Geoff Sharp

I mention Prof. John Wade a lot in this blog for a couple of reasons.

First, he is wonderfully knowledgeable about all things mediation, but more than that - he is one of my favorite types of people - he is a list junkie... he has 5 ways to do this, 10 ways to do that...

Prof. Wade's lists are adorned with alliterative titles like Dobermans and Diplomats (a list of 17 impasse breaking strategies) or How to respond when eager, expensive, entrenched expert egos escalate enmity (a list of 12 ways to respond to duelling experts).

Or The Five Humble Hypotheses may be more your thing; a list of 5 questions that every mediator must ask themselves as they make their way to the mediation room...

1. What are the causes of this conflict?

2. What interventions might be helpful?

3. What bumps/glitches are predictable?

4. What substantive outcomes are possible/probable?

5. What risks if the conflict continues?

Because it is with some confidence Wade decrees there are 16 (count'em 16) methods for 'crossing the last gap in negotiations'.

Take note, they are:

1. Talk - Try to convince

2. Split Difference

3. Expanding the pie by subdividing the last gap

4. Expanding the pie by an add-on offer - "What if I moved on.....?"

5. Refer to a third party umpire

6. Chance - flip coin

7. Chance - Draw gradations from a hat

8. Transfer the last gap to a third party

9. Conditional offers and placating incremental fears - "What if I could convince client to...? How would you respond?"

10. Pause - and speak to significant others

11. Pause - and schedule time for a specific offer

12. Defer division of last gap; divide rest

13. Sell last item at auction; split proceeds

14. Pick-a-pile; you cut, I choose

15. Skilled helper has a face-saving tantrum

16. File a (further) court application – pursue pain and hope For a detailed and useful discussion of each of the gap strategies go to the online full text at Chapter 54 of that seminal work The Negotiator's Fieldbook

P.S. I tried #15 the other day - the response from Counsel? "So Geoff, it's all about you is it?"... I will be moving on to try #1 thru' #14

Australian Reinsurance Contracts Increasingly Include Mediation Clauses

With arbitration becoming more like litigation, more reinsurers in Australia are turning to clauses in their contracts with insurers that require disputes to be resolved through mediation or expert determination. The trend is toward including both mediation and arbitration clauses in reinsurance contracts, with arbitration occurring only if mediation fails fully to resolve a dispute. Australian courts are encouraging parties to use mediation, which influences the way contracts are drafted. However, parties need to understand the benefits and limitations of mediation and other forms of alternative dispute resolution before incorporating the provisions in contracts. Reinsurers may be more comfortable incorporating mediation clauses in contracts with sophisticated insurers and relying on arbitration provisions with those less sophisticated.

Mondaq (October 31, 2006)

Australia Selects Mediation Firm for Grocery Industry

The Australian government has selected a firm to provide mediation services throughout the country to assist the Produce and Grocery Industry Ombudsman. The Produce and Grocery Industry receives subsidized dispute resolution services under its Code. The mediation firm’s contract is overseen by the Department of Industry, Tourism and Industry, which is instituting a nationwide public awareness campaign of the Ombudsman and the Code.

Industry, Tourism and Resources, Australia (August 31, 2006)

Mediation Growing in Asia Pacific Region

Participants from India, Australia, Malaysia, Japan, Hong Kong, Cambodia, Vietnam and the Philippines attended the Asia Pacific Conference on Contemporary Trends in Mediation and Arbitration in Kuala Lumpur in mid-July. The keynote address by Malaysian Chief Justice Ahmad Fairuz stated that his country is considering mediation legislation which would cover both voluntary and court-directed mediation in order to reduce court backlogs. The Chief Justice emphasized that courts around the world struggle to keep up with expanding caseloads and noted the successful use of mediation in Singapore, the United Kingdom, Canada and Australia. The conference was organized by the International Islamic University Malaysia and an arbitration center.

Bernama General News (July 18, 2006) (Subscription Required)

Mediation Avoids Australian Court Battle Over Corporate Assets

An intense three-day mediation resulted in the return to Huon Corporation of business assets by the company’s managing director, Charles Shultz. Mr. Shultz had transferred the assets to private trusts while putting Huon Corporation in receivership last month. The return of the assets will enable the company to satisfy obligations to employees of its three businesses and potentially to sell the businesses as going concerns. The successful court-ordered mediation avoided a costly pending action in the Australian Supreme Court.

The Advertiser (August 3, 2006); The Advertiser (Bendigo) (August 2, 2006)

Cleaning Up the Schoolyard
Sue Farley
The classroom isn’t the only place in the school community where tension can mount. Whether it’s in the grounds, the staff room, the board room or even at home, the staff, pupils and management provide a fertile environment for dysfunction to manifest and simmer away in.   1 Comment

Promoting Australian ADR Abroad
Sandra Purser
Australian mediators and alternative dispute resolution centres are taking a leading role in encouraging the use of dispute resolution techniques in the Asia-Pacific region. To take a case in point, the Dispute Resolution Centre at Bond University, initially at the invitation of the Australian Government and more recently as a result of its own efforts, has been actively promoting the adaptation of mediation techniques for use in Indonesia.