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12/16: 'We Must Negotiate With Islamic State', Says Senior Mediator

When Padraig O'Malley says we must talk to Islamic State, he's speaking from experience. A seasoned mediator, O'Malley brought together warring parties in Iraq at the height of the sectarian conflict in 2007 and 2008, resulting in an agreement that formed the basis for political reconciliation in Iraq and helped curb the violence. He did this with the aid of negotiators from South Africa, and from Northern Ireland, where he had been instrumental in organizing the 1998 Good Friday Agreement that ended 30 years of sectarian conflict. read


12/16: Mediation for pool dispute?: District backing off lawsuit; forms committee to look into city’s proposed cost-sharing

The wheels are in motion for a resolution to the dispute over usage and the funding model for the shared city and San Mateo Union High School District pool at Burlingame High School, while some are speaking out about their dismay regarding the tumultuous relationship between the two entities. The district is backpedaling on a lawsuit it threatened last week that was in relation to the city of Burlingame not responding to the district’s request for additional space in the 50-meter Olympic size pool for its teams and more payments from the city for its usage. Now, the district and city are both expressing interest in finding common ground. Trustee Linda Lees Dwyer explained the board is forming a committee to analyze the city proposal to reach an amicable resolution by early 2015. read


12/16: Mediation process could avoid legal battle over West Long Beach SCIG railyard project

Long Beach city and school officials and other groups suing the city of Los Angeles over a controversial $500 million railyard project bordering West Long Beach will try to reach a settlement before the matter heads to trial next year. Three days of mediation is set to begin Wednesday in Santa Monica between the city of Los Angeles and the seven petitioners, which include the city of Long Beach, Long Beach Unified School District and the South Coast Air Quality Management District, said Michael Mais, assistant city attorney for Long Beach. The parties agreed to hire a judge with expertise in environmental matters found through a private alternative dispute resolution service that typically hires retired Supreme Court and federal court judges, Mais said. read


12/16: Child & Family to pilot mediation service for veterans

Child & Family Services is launching a new mediation service aimed at veterans and their families. The program, operated by the agency's Center for Resolution and Justice, is funded by a $12,000 grant from the JAMS Foundation and the National Association for Community Mediation. It was among just six community mediation sites around the country funded through the program. Working with the five other centers, the organization will assess the need for mediation services for veterans and their families; build a pilot program; and provide leadership nationwide through training materials. read


12/16: Why Are Attorneys Afraid of Conflict in Mediation?

The custom of not make opening statements in certain parts of the country and in certain substantive case types has now led to not even having a joint session during some mediations. Except in the rare situation where there is the potential for violence, this is a mistake. The parties and their counsel should at least be willing to sit in the same room with one another for some period of time while the mediator explains the process and lays the groundwork for a productive day. read


12/16: IRS Expands Post-Appeals Mediation for Offers in Compromise

The Internal Revenue Service released a revenue procedure Friday providing rules for the nationwide rollout of post-appeals mediation for both Offer in Compromise and Trust Fund Recovery Penalty cases. The IRS Office of Appeals originally launched post-appeals mediation for both types of cases as a pilot program that was available in certain cities in December 2008 and is now expanding the program nationwide. Post-appeals mediation is available to help resolve disputes after unsuccessful negotiations with the IRS Office of Appeals and is available for both factual and legal issues. The mediator’s role is to help the parties reach their own agreement collaboratively, but the IRS noted that the mediator does not have settlement authority over any issue. read


12/10: Seventh Circuit Interprets Wisconsin's Mediation Privilege

When Wisconsin’s legislature enacted the state’s so-called “mediation privilege” in Wis. Stat. § 904.085, it expressly sought, in subsection (1) of that provision, “to encourage the candor and cooperation of disputing parties, to the end that disputes may be quickly, fairly, and voluntarily settled.” The privilege itself provides that “no oral or written communication relating to a dispute in mediation” is admissible in evidence or discoverable in any judicial or administrative proceeding. Wis. Stat. § 904.085(3)(a). Exceptions to the privilege exist, but they are few in number and relatively narrow—a point driven home in the Seventh Circuit’s recent decision in Doe v. Archdiocese of Milwaukee, No. 13-3783 (7th Cir. Nov. 5, 2014), authored by Judge Ann Claire Williams. read


12/10: University of Oregon strike ends after 22-hour mediation session

The strike by 1,500 University of Oregon graduate teaching fellows ended this morning after a 22-hour mediation session. Union officials said the new contract provides the teaching assistants with fair wages and a hardship fund to provide paid medical and family leave. Access to the fund is "protected by language in the collectively bargained agreement, and can be grieved if an employee is denied reasonable access to the fund," according to a statement from the Graduate Teaching Fellows Federation. "I'm extremely proud of the graduate employees of GTFF," AFT-Oregon President David Rives said. "This contract is a monumental achievement for workers across all campuses." The union and supporters will hold a celebration rally at noon today at Matthew Knight Arena. The teaching assistants will return to work later today, union officials said. read


12/10: Pilots call for wider mediation in dispute with Lufthansa

Pilots at Lufthansa have called for mediation to cover all areas of their dispute with the German airline's management, not only the early retirement row that has resulted in 10 strikes this year. Lufthansa offered last week to enter mediation to resolve the long-running dispute over early retirement benefits, seeking to halt the pummeling it was taking from repeated industrial action. The company estimated this week that labour strikes this year have cost it close to 200 million euros ($247.5 million) in operating profit. read


12/10: Expert Shares Top Tips for Mediation Preparation

Preparation is key to a successful mediation, according to Kevin Quinley, founder and principal of Quinley Risk Associates. During a recent interview he shared his tips on how to best prepare for mediation. Quinley explained why adjusters are often wary of mediation. Adjusters suspect that the purpose of mediation often boils down to terrorizing them to pay more. Most mediators’ and judges’ stances towards adjusters at mediation is like Cuba Gooding’s character in “Jerry Maguire” show me the money,” said Quinley. "The starting premise of many, if not virtually all, mediations is it’s not whether the adjuster is going to pay. The only question is how much. That’s not a starting point that adjusters or many policyholders relish." read


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Understanding Mediation



Jessica A. Stepp
How Does The Mediation Process Work?
Jessica A. Stepp
This article provides an overview of the mediation process.

Michael Roberts
Why Mediation Works
Michael Roberts
We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney's fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute.

Adrienne Krikorian
Litigate Or Mediate?: Mediation As An Alternative To Lawsuits
Adrienne Krikorian
Mediating a case before a lawsuit is filed enables the parties to present their case to a mutually selected neutral person before any money is spent on litigation. The cost of mediating a case is minimal compared to the costs incurred through the life of a lawsuit.

Edward P. Ahrens
What Does A Mediator Do?
Edward P. Ahrens
Okay, we know you can't make decisions. We know you can't issue orders. ('I'm not a judge or an arbitrator, blah, blah, blah.') We know you can't take sides, must always remain neutral. And we know you can't give us legal advice. And then you tell us mediation is a consensual process. Bummer. Now the other side can walk at will! "So, what in the hell DO you do?"

Paula Young
The “What” of Mediation: When Is Mediation the Right Process Choice?
Paula Young
As mediators, lawyers, and their clients gain more experience with mediation, fewer and fewer types of disputes will seem less amenable to the process. Even if mediation only succeeds in improving the parties’ communication, in identifying their underlying interests, in narrowing the issues in conflict, or in helping them more carefully evaluate their litigation option, it can move the dispute towards a quicker, more cost effective resolution.   1 Comment

Rachel Fishman Green, Esq.
Mediator Neutrality: How is it possible?
Rachel Fishman Green, Esq.
How could a mediator be neutral about your situation when you are getting divorced? Surely one of you is right and the other is wrong! If you know in your bones – and all of your friends agree – that you are right, you may think that mediation would not make sense for you, because you don’t want to compromise.   25 Comments

Forrest (Woody) Mosten
Eleven Questions Most Commonly Asked About Mediation
Forrest (Woody) Mosten
We all have questions about mediation. Not just disputants, but also the lawyers, and mediators themsleves. This list aims to answer some of the peristent ones.


Mediation: A Process To Regain Control of Your Life
Nathan Davidovich
Mediation provides a method for people with disputes or conflicts to exercise their own choices and discretion and to regain a sense of control over their lives in resolving disputes. It is a means by which you can be an active participant in the decision making process and have direct involvement in the determination of your destiny.

Jim Melamed
Frequently Asked Questions about Mediation and Negotiation
Jim Melamed
Jim Melamed answers nine frequently asked questions about mediation and negotiation such as "What is mediation? and "What if I want to be a mediator?". Includes links to further resources.

Constantin-Adi Gavrila
Defining Mediation
Constantin-Adi Gavrila
Recently, talking to a very experienced mediator, we started to describe a particular practice of an attorney-mediator during one of his cases. At the end, we asked: was that mediation? Our friend told us that no, it wasn’t mediation. We asked why and a long silence fell over our table. Then he confessed that it cannot tell exactly why, but somehow he felt uncomfortable with the practices we described and certainly he would not attempt to use them during his own cases.

Hilary Linton
What is Mediation?
Hilary Linton
This rant is for those (few remaining) lawyers who discourage their clients from trying mediation with the lame allegation that mediation is too “touchy-feely.” It is hard to believe that, in this day and age, some lawyers still have such a patronizing attitude.

Lawrence A. Huerta
Why Mediation?
Lawrence A. Huerta
While the benefits of mediation vary somewhat depending upon the nature of the dispute, and model of mediation applied, the following are some of the benefits typically associated with mediation.

Elizabeth Moreno
The Mediators Role: Tackling Their Illusion of Objectivity
Elizabeth Moreno
Recent studies of employment discrimination jury verdicts in California, substantiated the bias of humans. How can mediators tackle their illusion of objectivity and keep neutral during the mediation process?

Michael P. Carbone
Confidentiality Revisited
Michael P. Carbone
In 1997 the California Legislature enacted Evidence Code Sections 1115-1128, which established mediation confidentiality as an evidentiary exclusion in California. The purposes of this legislation were (a) to clarify and codify the law and (b) to encourage participants in mediation to be open and candid with the mediator and with each other. The central point of the law is that no communications that take place during mediation can be used in any trial, hearing, or other legal proceeding.

David Laufer
The Mediator's Checklist
David Laufer
Preparing a Mediator’s Check List (“MCL”) of Key Legal and Factual Issues will assist the Mediator to focus on the issues she must master during the Mediation Process (“MP”) to facilitate a voluntary settlement of the dispute.

Selecting a Mediator



Julie Denny
Choosing A Divorce Mediator
Julie Denny
Finding and selecting a mediator can be easier if you follow some simple steps. In the best of circumstances, divorce is an uncomfortable process. Take the time to assure you have a mediator whom you like, respect and believe to be qualified to help both of you negotiate that equitable settlement.

Michael Roberts
Choosing The Right Mediator: A Guide To Effective Mediation Styles
Michael Roberts
The market demands a mediator who will give the parties the best chance of settling their dispute. So, how do you choose that mediator? Here are one mediator's views after having mediated thousands of disputes over the past fourteen years.

Norm Brand
Choosing the "Expert" Mediator
Norm Brand
When a dispute is truly ripe for mediation, who you choose to mediate is unlikely to affect the outcome. Frequently, however, who you choose to mediate can be critical to making mediation work.

Jerry Roscoe
Advocacy Skills: Tips for Selecting a Good Mediator
Jerry Roscoe
With several sources for professional mediators, the advocate often struggles with criteria for mediator selection. Selection criteria are all too often limited to mediation experience and settlement rate. If you are in the market for a mediator, your mediator selection process may benefit if you consider the following additional criteria:


A Study in Mediation Styles: A Comparative Analysis of Evaluative and Transformative Styles
Katina Foster This study investigates two of the four primary mediation styles, evaluative and transformative mediation, and evaluates their strengths and weaknesses. The final conclusion of this study is that no one style is appropriate for dealing with all conflicts. Instead, different styles should be considered as options during the conflict resolution process.   2 Comments

Where Can Mediation Be Useful?




Mediation: The Sensible Means For Resolving Contract Disputes
Kenneth P. Kelsey
Along with more complex contracts comes increased opportunities for contractual disputes. Most construction contracts today contain some form of Alternative Dispute Resolution (ADR): a contractual means to resolve disputes without going into the classic courtroom setting.


Getting A Divorce? Why You Should Not Just Fight It Out
Mimi E. Lyster
Many have traveled the adversarial road, and probably for many of the same reasons. Constant fighting, arguing and blaming in a marriage or similarly committed relationship generally leads to more of the same while dissolving it. Unfortunately, the consequences of continuing this behavior can be dramatic, including protracted litigation, escalating costs, a dramatically reduced standard of living and significant damage to your children’s emotional well-being.

Noa Zanolli
When Conflict In The Workplace Escalates To Emotional Abuse
Noa Zanolli
Millions of men and women of all ages, ethnic, and racial backgrounds all across the U.S. hate going to work, gradually fall into despair and often become gravely ill. Some flee from jobs they used to love, others endure the situation unable to figure a way out.

Michael Roberts
Resolving Disputes Through Employment Mediation
Michael Roberts
Few controversies are more damaging to a business than a dispute with an employee. In today's environment, a single major employment dispute can result in the erosion of substantial assets because of legal fees and a potential jury award.


Construction Mediation Really Works
Gary Morgerman
The use of mediation to resolve disputes between members of the construction community is finally taking hold in the industry as word of its effectiveness, efficiency and economy spreads. Following is the story of a construction mediation mediated by Construction Mediation Inc in New York City.


Estate Planning and Family Business Mediation
Laura Bachle
Unlike J.R. Ewing in Dallas, controversy arises among families and business owners more often as a result of misunderstanding than malevolent motives. When people get beyond the resistance and begin working together on an estate plan MOU or partnership charter, they discover that openly dealing with issues lessens the likelihood of misperception, builds trust and confidence, and improves their chances for long-term success.

Jonathan W. Reitman
The Allagash: A Case Study of a Successful Environmental Mediation
Jonathan W. Reitman
What are the elements which make possible the successful mediation of an environmental dispute? In this article, Jonathan Reitman analyzes what conditions led to the resolution of a 33-year-old controversy about the management of the Allagash Wilderness Waterway in northern Maine. The polarized dispute involved wilderness canoeists, sportsmen, environmental organizations, local residents and state and federal regulators. Their recent negotiated agreement was hailed as "comprehensive and visionary." The mediator who facilitated the negotiations reflects on lessons learned.

Lester L. Adams
Congregational Conflict Resolution And The Use Of Scriptures
Lester L. Adams
This article gives some insight and wisdom on how the scriptures are useful in resolving congregational conflict.


ADR in Healthcare: The Last Big ADR Frontier?
Rob Robson, Ginny Morrison
You are probably saying to yourself “What a strange title.” This seems especially true when you consider that dispute resolution and conflict management (DR/CM) practitioners are a fairly flexible, adaptable and imaginative group. Surely there will be lots of new “frontiers” left for us to conquer in the future?


Cyber-Mediation:
Medium Massaging The Message

Robin M. Kennedy, Jon Michael Gibb, Llewellyn Joseph Gibbons
The course of ecommerce is not always smooth. Disputes are inevitable. These disputes will have to be resolved if ecommerce is to develop to its full potential. Alternative Dispute Resolution (ADR) is a range of processes for resolving online disputes. Businesses and consumers who engage in ecommerce are often more willing to mediate than to arbitrate their disputes in an online forum because mediation is a voluntary process in which a third-party facilitator assists the parties to the dispute to arrive at a mutually agreed upon resolution.


Student/Peer Mediation: A Multi-Purpose Tool
Jim Eisele After reviewing several articles regarding student/peer mediation, one thing is clear: student/peer mediations have several benefits, many of which are long-lasting.   3 Comments

Rikk Larsen
Tipping Points - Reasons Why Mediation Works in Complex Family Disputes
Rikk Larsen
Timing is everything. In complex family disputes the simple fact is that mediation can be the forum for positive change, the tipping point, but it needs a number of preconditions to be successful.   3 Comments

Janet E. Mitchell
Eldercare Mediation: A New Way To Make Decisions Regarding Aging Parents
Janet E. Mitchell
The article describes how families can work together in making collaborative decisions regarding the care of elderly parents. It defines and explains family mediation, noting the kinds of topics that can be discussed.

Barry Simon
How Mediation Can Help Same Gender Relationships
Barry Simon
Since same gender couples cannot legally marry yet in most states and foreign countries, how can they formalize their relationships? By using a "Living Together Agreement." In this way they can couple consciously in an attempt to create a solid foundation on which to build their relationship. It's the perfect tool for sweeping away false expectations and building honest, authentic communication.   1 Comment


Mediation in Sexual Harassment Cases
Tim Hicks Mediation can provide an ideal setting in which the complainant can accomplish the primary aim of stopping the behavior. Without such a mechanism for dealing with the situation, the complainant has only two choices: go through the process of a formal complaint and investigation, or do nothing. These options often do not meet the needs of the employee or the organization.   1 Comment

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Using Mediation Effectively



John Gromala
Pre-Mediation Questionnaire: Dispute Clarification Tool
John Gromala
Many disputes have a prior history of an amicable relationship. This is especially true in business disputes. Thinking back on "better days" can create the atmosphere for productive dialogue. Use this tool to help prepare for mediation.

Tom Sebok
Preparing For Your Mediation
Tom Sebok
It is likely that you asked for or agreed to mediation because the strategies you have already tried have not helped you resolve your dispute. The purpose of this article is to help you think - before your mediation - about what you can do as a participant to give your mediation the best chance to succeed.

Norm Brand
Learning To Use The Mediation Process - A Guide For Lawyers
Norm Brand
Mediation is changing law practice. It is the cheapest, lowest risk, and most under-utilized form of alternative dispute resolution. And the demand for it is rapidly growing.

Steven P. Cohen
Focusing On Interests Rather Than Positions -- Conflict Resolution Key
Steven P. Cohen
We can take positive steps to prepare for the decision-making process and we can monitor our own behavior - and that of other participants -- as the process goes forward. By following a few common sense rules we can reduce conflict and turn it into cooperation and reach solutions that really work for all the participants.   3 Comments

Eileen Barker
Tips for Dealing with Emotion in Mediation
Eileen Barker
You don't have to be a mediator to know that emotional issues lie at the heart of conflict. Seasoned mediator, Eileen Barker provides practical suggestions to deal with the emotional dimension of conflict.   1 Comment

Jessica Notini
Effective Alternatives Analysis In Mediation: “BATNA/WATNA” Analysis Demystified
Jessica Notini
This article explains the concept of alternatives analysis and presents a method for conducting an analysis with parties in mediation, including many of the considerations that may affect the parties’ perception and use of the analysis.

Rick Voyles
Managing an Imbalance of Power
Rick Voyles
One technique I often get requests to train on is managing an imbalance of power. There are effective techniques for handling power imbalance, however before we go too far, let’s consider what is an imbalance of power?

Jeffrey Krivis
Dealing With A Competitive Approach In Mediation
Jeffrey Krivis
Most people approach mediation with the best of intentions. However, they sometimes encounter adversaries who don't quite see things their way, and approach the process in a much more competitive and sometimes hostile manner.


A Practical Guide to Comprehensive Conflict Management Systems
Carole Houk, Deborah Katz
Many organizations have embraced alternative dispute resolution. Yet, they continue to search for more comprehensive approaches that help them not only to resolve conflicts that have escalated into disputes but also to manage risk, manage relationships and manage their bottom line. Is the answer to this search integrated conflict management systems (ICMS)?




Straus Institute for Dispute Resolution

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