5/17:Bermuda: Gang Mediation Structure Put In Place
A structure has been put in place around gang mediation and police officers will directly engage with students to stem the growth of the gang culture, read
5/17:Charles Schwab Drops Forced-Arbitration Clause From Contracts
After AT&T somehow convinced the U.S. Supreme Court that a couple of sentences buried toward the end of a contract that maybe .05% of customers ever think about reading was all that was needed to preempt class-action lawsuits, many large companies have rushed to pack their user agreements and licenses with clauses that force customers into arbitration. But, stuck in a battle with an industry regulator, the folks at Charles Schwab have decided to go another way, announcing that they have gotten rid of their arbitration clause… for now. read
5/17:More ADR Tools for Shippers
Arbitration, and not litigation, is the driving force behind rules that federal regulators hope will settle simmering disputes between freight railroads and shippers, including coal plant operators.
The Surface Transportation Board announced the policies May 13, after nearly three years of studying prolonged rate challenge cases. “Changes to the arbitration rules are intended to consolidate and simplify formerly separate arbitration procedures and to encourage greater use of arbitration,” the board said. read
5/17:National Association for Community Mediation (NAFCM) receives $50,000 grant from JAMS Foundation for development of national Training Resource Center.
The Training Resource Center (TRC) will be the largest compilation of community mediation resources in the country. NAFCM will partner with community mediation centers across the country to collect new and existing resources including but not limited to PowerPoint, handouts, mocks, videos, and more. read
5/17:Kobe Bryant Judge Orders Mediation in Memorabilia Dispute
Kobe Bryant, the All-Star basketball guard, must undergo mediation before a possible June 17 trial to resolve a dispute over whether a New Jersey auctioneer can sell his memorabilia on behalf of his mother. U.S. District Judge Renee Marie Bumb set a mediation session for May 17 in federal court in Camden, New Jersey, to try to settle a lawsuit between Bryant and Goldin Auctions LLC. Bryant, a Los Angeles Laker, seeks to block Goldin Auctions from selling 100 items consigned by his mother, Pamela Bryant. The firm estimates the auction could raise more than $1 million. read
5/17:Bishop Eddie Long Agrees to Mediation (Huff Post Opin)
With little fanfare or news coverage, the four sexual coercion lawsuits confronting Bishop Eddie Long had the first hearing recently, with both sides opting for mediation to avoid a trial.
"Bishop Eddie Long agreeing to mediation of sexual coercion charges is an end-run around the universally accepted moral and ethical responsibilities of any ecumenical leader. Mediation of sexual allegation grievances is tantamount to an admission of "some" guilt, "some" form of ministerial misconduct. Innocent folk don't make deals if the claims against them are baseless and untrue. Mediation for the accused is a forfeiture of the right to ever claim innocence, and readers should be absolutely clear on this point." read
5/17:Amazon wants seller lawsuit to go to arbitration
Amazon.com’s response to two former sellers complaining about tied-up payments can be summed up as: We’ll see you in arbitration. Seattle-based Amazon, in a 28-page document filed in U.S. District Court in Seattle, asks Judge Marsha Pechman to move the case to arbitration. The two sellers claimed in a lawsuit filed in March that Amazon refused to pay them for more than 90 days after it shuttered their accounts. They want full restitution of “monies wrongfully obtained,” plus interest and other unspecified damages.
In its response, Amazon noted that when the plaintiffs signed up to sell products on its website they agreed to arbitrate any disputes. The suit, which seeks class-action status, says Amazon routinely holds sellers’ money longer than allowed to rack up interest and “reap many tens of millions of dollars annually.” read
5/14:Mediation Myths and Misunderstandings That May Affect Your Decisions in Divorce
The decision to divorce is probably one of the most important -- and most difficult -- decisions one will make during the course of a marriage. The unknowns and avalanche of effects falling like dominoes are often too overwhelming for one person to handle: "How do I start the process? When is the best time for me to initiate the divorce? If and when I make the decision to divorce, should I litigate or mediate?" It can be mind-boggling. read
5/14:Arbitration Fairness Act of 2013 Introduced in Congress
As discussed by the American Association for Justice, the new law seeks to end the abusive practice of so many large corporations, including nursing home conglomerates, that seek to insulate themselves from legal accountability with forced arbitration. As the AAJ summarized, the law is critically needed, because when it comes to arbitration, “The process is secretive, costly and rigged so that corporations cannot be held accountable. By removing access to justice, it grants corporations a license to steal and violate the law.” read
5/14:Discussion stuck? Call in a virtual mediator
Ever find yourself in a collaborative situation that’s gone awry? Maybe one person on the team dominates the conversation or an offhand comment distracts everyone for a whole meeting. Experts in social computing are developing a virtual mediator to turn around unproductive discussions. read
Control Anger During Conflict like a Fly on the Wall (5/17/13) Tammy Lenski Trying to control anger by focusing on angry thoughts and hurt feelings is like fanning the flames. It’s far more effective to pretend you’re a fly on the wall of a situation, new research confirms.
Is Compromise Possible? (5/17/13) Colin Rule Any serious talk of pragmatism and compromise in American politics usually ends with some nettlesome questions: What about the social issues? What about abortion? What about gun control? These are issues on which reasonable people disagree passionately. Anyone who tells you that there is a “right” answer on abortion has not spent much time thinking about the issue or lacks the empathy to appreciate how other people think about it. Americans’ views on these issues tend to be theological — literally in many cases.
The Subtlety of Actual Mediations (5/17/13) Phyllis Pollack Most folks think that the purpose of mediation is to settle cases. However, in the last few weeks, I have conducted some actual mediations that were "successful" yet did not settle. Although the parties came to mediation with the goal of settling, they walked out accomplishing other purposes.
You Can Catch More Flies with Honey than Vinegar (5/17/13) Cinnie Noble I was fairly young when I first heard the idiom ‘you can catch more flies with honey than with vinegar’. It was one of my mother’s pearls of wisdom. Her name was Pearle and so, she took her name seriously by dispensing precious lessons on life with short homilies and expressions.
Was OJ Simpson’s Lawyer Ineffective? (5/17/13) Cynthia Alkon OJ Simpson will be back in court this week in Las Vegas bringing an appeal from his 2008 armed robbery and kidnapping conviction in 2008. He has apparently filed, through his new lawyer, a 94-page petition for a new trial—which reportedly includes 19 specific issues that the court has agreed to hear “mostly claiming that lawyer Yale Galanter provided such poor representation that Simpson deserves a new trial.”
So Who is Your Primary Care Legal Counsel? (5/17/13) Michael A. Zeytoonian In our last blog, we suggested that people approach resolving legal disputes the way they approach making medical decisions. The starting point is to have a “primary care lawyer”, a true legal counselor, just as we have a primary care physician.
Using Mediation to Resolve Tax Disputes (5/10/13) Rafal Morek Her Majesty’s Revenue & Customs (HMRC), a department of the UK Government responsible for the collection of taxes, published the results of its pilot ADR project evaluation. It has been testing a new way of resolving tax disputes, with the SMEs and individual taxpayers, since 2011.
Arbitration and the Power Sector in Brazil (5/10/13) Gilberto Giusti One of the segments of the infrastructure sectors in Brazil that have lately triggered the greatest amount of disputes are the power generation, distribution and trading sectors. In effect, there’s little disagreement in Brazil nowadays that, just as with other sectors that could also be mentioned here (such as oil and gas, sanitation, ports, etc.), in the power sector in general the arbitrators and the lawyers defending the interests of the litigants must have expertise in or at least deeper technical knowledge of the matter in controversy, namely as a result of the complex regulations that followed the introduction of the new regulatory framework for the Brazilian power sector through Law No. 10,847 and Law No. 10,848 of 15 March 2004.
In Mediation, Four Things Really Matter (5/10/13) Peter T. Coleman Although the research on mediation is considerable and proliferating, our field still lacks a basic unifying framework which provides theoretical coherence and integrates our understanding of various research findings. Today, the research presents a piecemeal understanding of what constitutes “effective mediation” and how to achieve it.
Nice Guys Fight on a Plane (5/10/13) Dan Simon It’s the disputing, not the dispute. Interaction matters, even more than the “subject” of the dispute.
Arbitration in India (5/10/13) F. Peter Phillips In this research paper I will analyze and comment on India’s arbitration and jurisprudence from pre-colonization to post-colonization in 1947. In Part I, I will briefly discuss the goal and purpose of arbitration, for those who are unfamiliar with them, and I will delve into the history of India’s arbitration, including the major legislative acts and arbitration institutions.
Boston, Violence, and Listening (5/03/13) Lee Jay Berman We are once again in the wake of a tragedy. News outlets are filled with coverage, details are slowly emerging, and the cover of Time Magazine shows a frightened child in the aftermath of the Boston Marathon bombing. Many runners were running in memory of the Newtown, Connecticut victims, meeting tragedy with tragedy.
“The Process is the Punishment” (5/03/13) Colin Rule Court delays of as long as five years in felony cases have pushed the Bronx criminal courts into the bottom ranks of courts nationally, reaching what even the judges call crisis levels.
Effective Negotiations (5/03/13) Phyllis Pollack I know I may sound like a broken record as I have discussed each of these points several times before - but they are invaluable and make the difference between resolving a dispute and continuing the acrimony.
Three Things to Know about Mediating Licensing Disputes (5/03/13) Zela Claiborne The number of IP disputes resolved in mediation has continued to increase as attorneys make efforts to find speedy resolutions and cut litigation time and cost for their clients. Only a small percentage of costly patent infringement cases actually go to trial; approximately 90 percent of them are settled.
Healthcare Collaboration: The Experience at One Hospital (5/03/13) Holly Hayes At Cleveland Clinic, a patient was asked to keep a journal of all the caregivers she saw over her five-day stay. She noted eight doctors, 60 nurses and so many others she lost track. The journal didn’t even track staff from non-clinical areas – food services, parking or billing. A May 2013 Harvard Business Review article by James I. Merlino and Ananth Raman reported on the Cleveland Clinic’s effort to get everyone in the organization to start thinking like a caregiver.
Increasing Referrals to Small Claims Mediation Programs (5/03/13) Heather Scheiwe Kulp My favorite part of new mediator training is watching the attendees discover the potential value of mediation. They nod knowingly when they realize how brainstorming creative options based on parties’ real interests may change the dynamic of winner-takes-all, money-is-everything court battles.
The Present and Future of ADR (5/01/13) Chris Poole The budget cuts to the court system have perhaps been felt more severely in California. In March, California Chief Justice Tani Cantil-Sakauye lamented in a speech to the state legislature, “our judicial branch budget has been cut greater and deeper than any other court in the United States.”
Priming for Likely Range of Outcomes (4/26/13) Jan Frankel Schau Sometimes the only way to strike oil is to prime the pump until it begins to flow. It takes some effort and foresight, but the result is all the more satisfying.
Filters and Frames: Mediation is all About the Viewfinder (4/26/13) Stephanie West Allen Our brains are vigilant, hyperaware of any sensed change to see if it represents danger. Partly because they use a lot of our energy, our brains seek to deal with new information quickly and easily. So, rather like a photographer, the brain applies filters and frames. The filters shift, accentuate, and diminish what is seen. And the frames limit what is viewed to certain boundaries.
Arbitration and Access to Justice: Economic Analysis (4/26/13) Beth Graham Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others.
New Perspective on Domestic Violence and Mediation in Montana (4/26/13) Mary Novak The original Montana provisions for family court mediation, enacted in 1993, attempted to shield abuse survivors from attending mediation with their abusers. This reflected a national focus on the issue at the time. Section 40-4-301 of the Montana Code Annotated allowed courts to require any parties to participate in family law mediation. However, it made an exception for domestic violence.
Is Collaborative Law Worth the Cost? (4/22/13) Dick Price For people facing divorce, a common question is whether Collaborative cases are "cheaper than litigation". While there is no way to compare a specific Collaborative case to an abstract idea of a litigated case, we can say that Collaborative Law will avoid a lot of the expense involved in litigation.
ISDA Issues Model Arbitration Clauses for use with Master Agreements (4/22/13) Herbert Smith The International Swaps and Derivatives Association (“ISDA“) has released a number of model arbitration clauses for use with the ISDA 2002 Master Agreement and ISDA 1992 Master Agreement (Multicurrency – Cross Border), which are the market leading standard form agreements for documenting derivatives transactions.
AudioBlog: Transforming Difficult Decision Making In Elder Care Planning (4/22/13) Patricia Porter Families today are assuming responsibility for the informal care of over 75 percent of elderly family members and are often faced with difficult decisions from a bewildering array of choices: e.g. estate planning, financial issues, and guardianship. In the best of circumstances, this can be a stressful process and sometimes leads to disagreements, confusion, and conflict at a time when the best intentions of the family are to work together for the needs of a loved and respected aging family member.
In Someone Else’s Shoes: Are the Investor’s Rights His Own or Those of the Home State? (4/22/13) Inna Uchkunova, Roger Alford There is a Taoist fable of the three stupid men who were traveling together from one village to the next. They rested for the night under a banyan tree. In the morning, it turned out that the travelers have forgotten whose shoes are whose. Because none of the three men was able to walk in another man’s shoes or to recognize his own their journey ended under the banyan tree.
Durability of Mediated Settlements and More (4/22/13) Richard Weiler Deals negotiated in mediation tend to hold or, at least, that’s been the conventional wisdom. The theory is that because of the consensual nature of the process parties tend to abide by the agreements they’ve struck in mediation.
Concerted Action Includes Concerted Dispute Resolution (4/12/13) Beth Graham As interpreted by the Supreme Court, the Federal Arbitration Act has largely swept all before it, validating agreements to arbitrate almost all disputes, including those involving claims under statutes regulating the employment relation. That era may be nearing an end.
Disputes: A Clash of Imperfect Ideas (4/12/13) Cinnie Noble It is common in the midst of conflict that we become more assertive about our perspective – especially when the other person is equally or more assertive about hers or his. One or both of us may push our viewpoints to the extent that things escalate and stronger feelings evolve – accompanied by even more push back. It is as though both of us are convinced and have to convince the other that our view is the perfect and correct one.
Collaboration (4/12/13) Joe Markowitz There was talk around the ABA Dispute Resolution Conference this week that the demand for mediation services may be declining. If that's true, does that mean that mediation is falling out of favor, just as arbitration has somewhat fallen out of favor? Or is it a reflection of the economy and the decline in demand for dispute resolution services in general?
Bach, Beijing, and Being at the Table (4/12/13) F. Peter Phillips Negotiators at the table might have completely different interests and no shared ground as to the law or the facts; they can nevertheless contribute to a productive mediation because they are there. They share the dispute itself, and they share at least an interest in resolving the dispute in their clients’ favor. They share a recognition of the process, and a willingness to make themselves heard.
Is There Good and Bad Mediation Practice? (4/12/13) Diane Cohen Wow! I’ve been overwhelmed with work and haven’t posted in months. But I’m back now and thinking about the topic: Is there good and bad mediation practice?
The Mediation Trainer’s Toolbox (4/12/13) Sabine Walsh Having spent the last few weeks immersed in mediation theory, conflict theory, negotiation theory and a variety of other theories for various projects, including the preparation of a mediation training course, I feel the need for a little practicality.
Negotiation Tactics (4/12/13) Phyllis Pollack In some mediations, I have witnessed the “nibbling” approach: one party keeps making demands on top of demands, often very small ones, in an effort to get the other party to reach a breaking point and either cave in to the demands or storm out of the negotiation.
The Winner’s Curse (4/08/13) Phyllis Pollack Suppose you have a jar of coins and ask several friends to bid on the jar. The highest bid will be deemed the winner. According to Richard H. Thaler two results will occur: “(1) the average bid will be significantly less than the value of the coins (bidders are risk adverse); (2) the winning bid will exceed the value of the jar”. This is known as the “winner’s curse”.
Signing Arbitration Contracts on Admission to a Nursing Home – Who Is Bound? (4/08/13) Richard Birke As our population ages, more and more people are being admitted to nursing homes at or near the end of their lives. But when a person is admitted to a nursing home and they sign a contract agreeing to arbitrate any disputes arising out of the care they receive, should their heirs and the estate be bound by that contract?
Martha Stewart Living Ordered to Mediate Dispute With Macy’s and J.C. Penney (4/08/13) Beth Graham Mediation is in the news again. Last week, a New York judge ordered a dispute between Macy’s, Inc., J.C. Penney Co., and Martha Stewart Living to mediation. The lawsuit itself reportedly arose after New York-based Martha Stewart Living signed a contract with Plano-based J.C. Penney to open a Martha Stewart mini shop in many of the retailer’s stores.
What Does the Fortune 1,000 Survey Portend for International Mediation? (4/02/13) Tom Stipanowich A new study of dispute resolution practices in Fortune 1,000 corporations shows that many large companies are using binding arbitration less often and relying more on mediated negotiation and other approaches aimed at resolving disputes informally, quickly and inexpensively.
Facing a Divorce Later in Life? (3/29/13) Dick Price It has become noticeable that Baby Boomers and even older people are starting to experience a significant number of divorces. Couples married for 20 to 40 years are getting divorced.
The Straw That Broke The Camel's Back (3/29/13) Cinnie Noble I have used the expression “the straw that broke the camel’s back” or a similar idiom when referring to an incident that pushes an ongoing situation too far across a line of tolerance. I didn’t know the derivation of this particular expression and when I looked it up I found the meaning is consistent with this same notion.
Empowered Victims & Moral Perpetrators: A Needs-Based Model of Reconciliation (3/29/13) Christine Webb At a recent workshop at Leiden University on Obstacles and Catalysts for Peaceful Behavior, Nurit Shnabel presented exciting research distinguishing the needs of victims and perpetrators in interpersonal and intergroup conflicts. According to Shnabel and colleagues’ Needs-Based Model of Reconciliation, victims of conflict experience a psychological loss of status and honor, thus undermining their identities as powerful actors. Perpetrators, on the other hand, experience a psychological loss of social acceptance, thus threatening their identities as moral actors.
Liability of Counsel in International Arbitration: Any Changes? (3/29/13) Lisa Bench Nieuwveld A week ago today, it was my privilege to participate in the annual UNCITRAL/VIAC/YAAP Joint Conference, addressing hot topics in international arbitration. The conference successfully considered many key topics, including my topic, liability of counsel in international arbitrations. This topic, similar to my recent book topic (Kluwer Law International, Third-Party Funding in International Arbitration), is receiving a lot of attention with limited actual changes.
AudioBlog: Elder Mediation: Family Disputes Over Caregiving (3/29/13) Patricia Porter When families are faced with the long-term care arrangements for their aging parents and relatives, feelings of resentment, anger and jealousy that have festered since childhood often create new problems as families learn to cope and prepare for the road ahead. Instead of working together, families can get stuck placing blame.
Looking at E-mail Negotiations with the TKI Conflict Model (3/22/13) Ralph Kilmann There appears to be a rapid increase in the use of e-mail exchanges for resolving all kinds of personal and workplace conflicts. Instead of taking the extra time for phone calls, virtual meetings, or those old-fashioned face-to-face discussions, people are texting or e-mailing their concerns and solutions to one another.
Difficult Conversations (3/22/13) Phyllis Pollack A few weeks ago, I conducted a “lemon law” mediation. Over the past few months, most of these have been conducted by using separate sessions only; counsel have not wanted to participate in joint sessions. However, this time, plaintiff’s counsel wanted to hold a joint session. Defense counsel who had worked frequently with plaintiff’s counsel in the past and had a cordial relationship with plaintiff’s counsel, agreed.
Fifth Circuit Upholds Arbitrator’s Decision in Employment Dispute (3/22/13) Beth Graham The United States Fifth Circuit Court of Appeals has affirmed a lower court’s order to confirm an arbitrator’s decision in an employment dispute. In Haag v. Infrasource Services, Inc., No. 12-60159, (5th Cir. February 20, 2013), an employee, Fred Haag, was terminated from his position with Infrasource Services, Inc. for alleged gross misconduct.
Forgiving When Asked (3/22/13) Cinnie Noble Forgive me. I apologize. I was an idiot. You didn’t deserve what I said. I was so wrong. I didn’t mean it. You are a saint for putting up with me. Will you please forgive me? In whatever form requests for forgiveness take, it is not incumbent upon the receiver to forgive. For some reason many people think they ‘should’ forgive or at least say they do. It’s just not always that straightforward.
The Supreme Court and the Future of Arbitration (3/22/13) Art Hinshaw At the 2012 AALS meetings Ron Aronovsky (Southwestern) organized the ADR Section’s program entitled The Supreme Court and the Future of Arbitration. Here’s a short blurb describing the program.
“Protect, Respect, Remedy”: What is the Lawyer’s Social Responsibility? (3/22/13) F. Peter Phillips The current issue of IBA Global Insight (Feb/March 2013) features an excellent article by Rebecca Lowe that, on first glance, studies the defenses to liability under the Alien Tort Claims Act as presented by the U.S. Supreme Court’s consideration of Kiobel v. Royal Dutch Petroleum.
Mediation Saves Mediation in Massachusetts (3/15/13) Jennifer Shack At a time when lenders are working to keep mediation from becoming law in Missouri and Oregon, lenders in Massachusetts have voluntarily dropped their opposition to a mandatory program – and they did so through appellate mediation.
Five Tips to Let Go and Forgive after a Break-Up (3/15/13) Lorraine Segal Learning how to let go and forgive helped me a lot after two “break-ups.” Neither of these was with a spouse or romantic partner, but they were deep and difficult and painful nonetheless.
Empathy (3/15/13) Joe Markowitz Empathy is an essential tool in mediation, both for the mediator and hopefully a quality the participants develop as well. Mediators recognize, unless we want to act purely as evaluators (and even then the capacity for empathy is still important), that we need to try to empathize with the needs and feelings of both sides in every case, to build trust and encourage understanding.
Inquire About Each Disputant's Agenda Before you Begin (3/08/13) Jan Frankel Schau Litigation is typically a well-orchestrated process which is initiated by a formal "complaint", which includes several distinct "Causes of Action", together with a list of "remedies" and a "Prayer" for damages resulting from whatever misconduct is claimed. In response, Defendants file a formal "answer", usually denying all misconduct and perhaps adding a few "affirmative defenses" to the mix. By the time the case gets to mediation, it is usually less well-defined.
