What's New
Mediation Given Key Role in Gulf Oil Spill Settlement (5/15/12)
Keith Seat
A federal judge in the BP gulf oil spill case has named a mediator to focus on resolving seafood claims for which $2.3 billion has been set aside in the proposed class action settlement. The seafood claims cover commercial fishing and oyster leaseholders and harvesters, but not the processing or sale of seafood. This is the only portion of the settlement that is capped, with the overall settlement estimated to be about $7.8 billion.
Nola.com (March 9, 2012)
Real Knowledge is to Know the Extent of One's Ignorance (5/14/12)
Lily Ng
“Real knowledge is to know the extent of one’s ignorance,” Confucius says. The effects of culture on contradiction and conflict management
Mediation Confidentiality: Update on AB 2025 (5/07/12)
Phyllis Pollack
On February 23, 2012, Assembly Bill 2025 (ab_2025_bill_20120223_introduced) was introduced in the California legislature. The intent of the bill was to abolish mediation confidentiality with respect to “… 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 attorney’s professional negligence or misconduct forms the basis of the client’s allegations against the attorney.
Fifteen Things We Know about Environmental Dispute Resolution (5/07/12)
Larry Susskind
I was recently asked by my Harvard Law School class to summarize what we know (from actual experience) about environmental dispute resolution. I offered the following list.
Mediators Instead of Police? (5/07/12)
Jeff Thompson
A new report, ordered after last year’s student protests on the UC Berkley campus resulting in the pepper-spraying of nonviolent student protesters that received global media coverage, has resulted in 50 recommendations over 133 pages. The report details recommendations on how to prepare and respond for similar situations in the future.
Because The Other Side Has A Perspective (5/06/12)
John DeGroote
“Every truth has two sides; it is as well to look at both, before we commit ourselves to either”. Aesop’s quote made sense over 2000 years ago, and the rest of this story reminds us it’s good advice today. This article examines the scandal at the New York Philharmonic when one patron's cell phone rang continuously--a good reminder to examine both sides' story without forming a conclusion.
In Support of California Assembly Bill 2025 (4/30/12)
Elizabeth Moreno
This article discusses in detail California Assembly Bill 2025. This bill is currently being considered before the California Supreme Court. AB 2025 changes the rules of mediation confidentiality.
Competitive Bargaining Delays 2011-2012 NBA Season (4/09/12)
Michael Finkelstein
This article focuses on the positional bargaining tactics employed by the NBA and its players during the league's recent labor dispute. The article explores how highly competitive bargaining led to a mediation impasse and how, by showing that they were unwavering in their position, the NBA pressured its players into accepting an agreement.
Violate Mediation Confidentiality? Case Dismissed! (4/09/12)
F. Peter Phillips
J. Michael Hand didn’t like the Walnut Valley Sailing Club’s storage shed. A member of the club, though not disabled himself, Mr. Hand thought the structure didn’t comply with the accessibility requirements of the Americans with Disabilities Act. So he sued.
The Rise of Civil Society (3/26/12)
Anna Spain
With the Kyoto Protocol expiring at the end of this year, international lawmakers have been gathering to find a productive process for resolving environmental conflict. Their conversations are an example of where international conflict resolution is headed and who the key players will be.
The Ecuador Project: JAMS Foundation & Mediators Beyond Borders (3/26/12)
Chris Poole
Mediators Beyond Borders (MBB) and the JAMS Foundation launched a mediation project inEcuador, providing tools and resources to support growth and professionalization of ADR. At the same time, this project will offer Ecuadorian and American mediators an opportunity for cross-cultural exchange and mutual learning.
A Mediator’s Proposal – Whether, When, and How It Should Be Used (Part 2) (3/19/12)
Stephen A. Hochman
As most mediators know, a mediator’s proposal is a settlement proposal that the mediator makes to all parties, and each party is requested to accept or reject it, on the exact terms proposed, in a confidential communication to the mediator. This section discusses the disadvantages of a mediator's proposal as well as what to do when only one side accepts the proposal.
Looking Behind the Curtain (3/12/12)
Roger C. Benson
Mediation training has developed ad hoc over the last few decades. As the field begins to get a foothold in the legal industry, however, it is important to be intentional about what should be necessary in training a mediator. The author suggests some topics that should remain, points out some topics that are often inadvertently left-out of many trainings, and invites suggestions for additional topics.
Distinguishing Between Compromising and Collaborating (3/12/12)
Ralph Kilmann
People often ask me to clarify the difference between compromising and collaborating, especially since these two modes involve both people getting their needs met. In particular, people often use the word compromise to indicate that they have completely resolved the matter at hand: “We achieved a successful compromise!”
The Unfairness of Arbitration? (3/12/12)
Art Hinshaw
In the New York Times, Stanford Law Prof. Amalia Kessler has an interesting op-ed about consumer arbitration. The interesting thing about this piece is not its arguments against consumer arbitration but its historical take on arbitration that looks back past the FAA.
Straus Institute Conversation Series featuring Ken Feinberg (Video) (3/09/12)
Kenneth Feinberg
The Straus Institute for Dispute Resolution debuted a new “Conversation” series on November 14, 2011, as part of their 25th anniversary celebration. “Straus Presents: A Conversation with Ken Feinberg” featured one of the best-known figures in the field of alternative dispute resolution in a ninety-minute interview conducted by Straus Institute academic director and William H. Webster Chair Tom Stipanowich. The interview focused on Feinberg’s early involvement as special master mediating the Agent Orange cases and other mass tort claims, his role as special master of the September 11th Victim Compensation Fund, and his current oversight of the Gulf Oil Spill Fund.
Mediation Skills Development Around the World - with Skype (3/05/12)
Giuseppe Leone
This article discusses the practical steps in setting-up an online training system. This model uses Skype and a variety of mediation methods. It is run by the ACR Hawaii Chapter, and is used by mediators from around the world.
Review of the New Dispute Resolution Report from BIS (2/20/12)
John Crawley
In an effort to reduce the burden on the Employment Tribunal (ET) System the Government consulted widely in 2011 to come up with some proposals for pre-empting claims and resolving grievances before they escalate. In November last year BIS responded to the consultation with their proposals.
Court Funding (2/20/12)
Joe Markowitz
I heard LA Superior Court Presiding Judge Lee Edmon speak at a County Bar Association lunch recently about the current dire state of court funding. Due to the state budget crunch, the state legislature began drastically slashing the courts' budget several years ago, but the courts have managed to avoid the worst effects of these cuts by diverting capital funds and reserve funds to current operations.
Turning to International Cooperation: How Can Institutions Prevent Water Conflict? (2/13/12)
Kyong Mazzaro
The new legal framework of the Durban Climate Change Conference is expected to take effect in 2020, but as climate change negotiations drift farther away from establishing much-needed preventive measures, it looks like mitigation strategies will be key. As a consequence, with the continued increase of CO2 emissions, conflict resulting from climate change-induced water scarcity is more likely to occur.
U.K. Trying Regional Workplace Mediation Networks (2/07/12)
Keith Seat
The U.K. Government announced that it is establishing two regional mediation networks for small and medium size enterprises (SMEs) in a pilot program to reduce workplace disputes and the number of employment tribunal cases. The mediation networks will be in Cambridge and Manchester, with mediation training of employees at 24 SMEs, as smaller companies are often not aware of the benefits of mediation and rarely use it. Trained mediators will then be able to assist other organizations in their regional network. The government is seeking a provider for the first round of mediation training. The pilot program is part of the government’s reform of the employment tribunal system; in the last two years tribunal claims have risen to 218,000, an increase of 44 percent. The program will run 12 months and expand to other areas if successful.
People Management Magazine Online (January 23, 2012); eGov Monitor (January 24, 2012)
Japanese Mediation Center Beginning to Resolve Fukushima Nuclear Accident Claims (2/07/12)
Keith Seat
The mediation center established by the Japanese government is now beginning to resolve claims resulting from the Fukushima nuclear power plant catastrophe, with three resolutions from the 600 claims that have been submitted thus far. Many more claims are likely from the 150,000 people displaced by the nuclear accident, but to begin the process each claimant must complete a 56-page form using a 150-page instruction manual and provide receipts and other documentation. The Japanese government has set up a $26 billion fund to pay damages on behalf of Tokyo Electric Power Co. (Tepco), with another $11.7 billion approved in November and more likely to follow. Few lawsuits have been filed, although one lawyer is threatening to file a shareholder derivative action against Tepco’s corporate directors seeking $72 billion for failing to raise the height of tsunami barriers.
Law.com (January 26, 2012)
When to Negotiate (2/06/12)
Joe Markowitz
Anyone who has still been following budget negotiations in Congress has no doubt noticed that they have reached another interesting stage. Recall that last summer Congress struck a deal in which Republicans agreed to go along with raising the debt ceiling, in exchange for appointing a super committee to come up with additional debt reduction measures.
A Mediator's Reflections on the Occupy Movement (1/30/12)
Grace Eagle Reed
The police in Portland, unlike other cities of its size, became national examples of progressive community policing during the Occupy Movement. By calmly responding to the conflict around them, they are open to ongoing community feedback, are continuing to look for ways to do a better job and are using better judgment when they have to restrain protestors. Their patience and openness is appreciated by all involved. It is also the perfect example of a counter-story peacefully challenging the accepted stock story, for the betterment of all involved.
High Conflict Mediation and Ethics (1/30/12)
Ann Begler
Working with high conflict people requires skill that goes well beyond facilitating a conversation. Some mediators do it well and some should never try. If a mediator sees it as his or her responsibility to make a fair assessment about competency in this regard, everyone is well served – clients, mediator and the system, itself.