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Time for a Mediator’s Hippocratic Oath? (8/19/14)
Deborah Masucci, Michael Leathes
It is one of the defining characteristics of professions whose stakeholders invest great trust in their practitioners. Doctors make the Hippocratic Oath. Accountants, lawyers, police officers, elected officials, social workers, veterinarians and others in a position of trust also make various forms of oaths. Yet mediators do not make an oath, even though mediators are invariably taken into parties’ trust. Should mediators make a Hippocratic-style oath?


“Talk To Me”: What It Takes To Be An NYPD Hostage Negotiator (8/18/14)
Hugh M. McGowan, Ph.D., Jeff Thompson
Crisis and hostage incidents are known for being stressful, unpredictable, tense, anxiety-filled, and emotionally driven. Add to this volatile concoction is that these incidents often can involve violence that has been threatened or having already occurred. Amidst these chaotic incidents New York City Police Department hostage negotiators emerge to provide the antidote to the ensuing turbulence.

Cris Pastore
Using the 17 Factors of Alimony in PA in Divorce Mediation (8/15/14)
Cris Pastore
Curious about how alimony is determined in Pennsylvania? Read this comprehensive article and learn about alimony and about the 17 factors the court considers in determining it.

Rolando Perez
La Mediacion en Costa Rica y el Papel del Mediador (8/15/14)
Rolando Perez
La mediación es un método de Resolución Alterna de Conflictos (RAC) de naturaleza auto-compositiva que busca solucionar las diferencias a través del dialogo. En ese sentido, es un método en el cual un tercero imparcial, llamado mediador, interviene en un conflicto entre dos o más personas a solicitud y con la anuencia de las mismas, con el fin de ayudarles en la búsqueda de soluciones pacíficas, cooperativas y mutuamente satisfactorias.

Cynthia Alkon
“Tell her Capt. Johnson is sorry and he apologizes.” (8/15/14)
Cynthia Alkon
Five days ago, an unarmed eighteen year old, Michael Brown, was killed by a police officer in Ferguson, Missouri. As is all too commonly the situation, Mr. Brown was African American and the police officer who did the shooting (as with most of the police in Ferguson) was white. An investigation is on-going, but the reports of what happened are disturbing enough that there have been protests since Mr. Brown’s death.

Cinnie Noble
Upsetting the Applecart (8/15/14)
Cinnie Noble
When we accuse someone of upsetting the applecart we generally think that person is causing trouble and creating difficulties by doing or saying something that challenges the status quo. Of the four variations of the source of the expression that I read about, the most basic and generic derivation refers to farmers in the 1800s who would bring applecarts loaded with neatly piled, fresh apples for sale to market.

Beth Graham
Mediator Ethical Breaches: Implications for Public Policy (8/15/14)
Beth Graham
Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services.

Regina Kim
Is Being Adaptive in Conflict Better than Being Purely Cooperative? (8/15/14)
Regina Kim
Recent studies have shown that being adaptive in conflict situations (employing resolution strategies that fit with different types of situations) is associated with more satisfaction with conflict outcomes and well being at work than using cooperative approaches. This finding largely contradicts decades of research showing that more cooperative forms of negotiation, mediation and conflict management work best at work. Coleman & Kugler (in press) found that managers and executives who were adaptive – or had the capacity to use various conflict strategies (i.e. benevolence, dominance, support, appeasement, autonomy) in a way that fit the demands of the situations they faced were more satisfied with their conflict outcomes and processes.

Joel Grossman
Big Mac Attack: Is the Franchisor a Joint Employer? (8/15/14)
Joel Grossman
On July 29, 2014, the National Labor Relations Board (“NLRB”) issued a brief statement that could turn labor law in the world of franchising upside down. The NLRB’s General Counsel stated that it plans to go forward with a number of complaints that allege unfair labor practice claims against McDonald’s USA, LLC.

Phyllis Pollack
To Mediate Or Not To Mediate Now, That Is The Question (8/15/14)
Phyllis Pollack
With the upmost respect and acknowledgment to Hamlet's famous soliloquy in Shakespeare's Hamlet, (Act 3, Scen3 1, lines 55-87), the question often arises of when should the parties attempt to negotiate a settlement, through mediation or otherwise.

Ben Ziegler
Adding Verbal and Non-Verbal Communications Capacity in Virtual Contexts (8/11/14)
Ben Ziegler
Working virtually can put the squeeze on our full range of verbal and nonverbal communication skills. This is a given with it comes to nonverbal. When we’re in the same physical space together, the success of our communication effort is mightily influenced by our nonverbal, visual, actions. Where is body language, and tone of voice, in a tweet or Facebook post? Fortunately, there are virtual ways to add back some of our lost communications capacity, both verbal and nonverbal.

Don Cripe
Shooting Yourself in the Foot (8/08/14)
Don Cripe
One of the earliest “learned professions” in the Western world is the law.  A reading of ancient history from the earliest beginnings of Western civilization will reveal allusions to lawyers.  Popes, kings and feudal governments in medieval Europe relied heavily upon lawyers to guide them.  Yet, from early days and primarily because of the educational and status advantages lawyers held over most of society, the profession has suffered from poor public opinion and criticism; literature and in popular culture with the onset of the “lawyer joke.”

Alberto Elisavetsky
Observatorio del Conflicto Social - en Espanol (8/08/14)
Alberto Elisavetsky
En un contexto social de alta litigiosidad, bajo apego al cumplimiento de las normas que regulan la vida social, el incremento de la violencia como forma de intercambio interpersonal y el uso del poder como forma demasiado extendida de resolver diferendos, parece oportuna la creación de un Instituto del Conflicto, que profundice y articule actividades académicas y sociales, en el nuevo y vasto campo de la resolución de conflictos.

Oran Kaufman
On What Level Are We Mediating? (8/08/14)
Oran Kaufman
How do you define success in mediation? The answer depends in part on who is asking the question? Success for the parties may be different than success for the mediator or success for the court. This article explores the question of how to define success in mediation from a variety of angles including what does success mean for the mediation profession?

Kevin Boileau
The Myth of Mediation Neutrality - book excerpt (8/08/14)
Kevin Boileau
The traditional view is that a mediator is a neutral, third party who helps two or more conflicting parties cooperatively resolve their differences. Interestingly enough, this belief is analogous to the Cartesian-Newtonian epistemological position that holds that one can be an independent observer of an objective world, in science or in daily life. However, I am skeptical about this position, both epistemologically and clinically. What remains an open question is whether a mediator can actually ever be a “neutral third.”

Gunther Horvath
Compensation for a Dismissed Arbitrator? (8/08/14)
Gunther Horvath
The Austrian Supreme Court (OGH) confirmed that an arbitrator who is dismissed during the arbitration by a state court because of conflict of interest before the award is rendered may recover compensation for (useful) services rendered until dismissal.

Sabine Walsh
Remembering to See the Wood for the Trees – A Mediator’s Reality Check (8/08/14)
Sabine Walsh
“When you look into the abyss, the abyss looks into you.” (Nietzsche) Relationship breakdown and the resulting fall-out is an abyss most people do not like to look into, even as they tumble into it. As family mediators, our job is to accompany and support people’s navigation into, through and, hopefully, out of the abyss again.

Jennifer Shack
Grievance Procedures and Mediation Policy Goals (8/08/14)
Jennifer Shack
Parties to court mediation in Florida have the opportunity to submit their complaints regarding a mediator to a robust grievance process. The structure includes four stages: committee review to determine whether a complaint is facially sufficient; a preliminary review of rules that may have been violated and the mediator’s response to the complaint, which are used to determine probable cause; a meeting between mediator and complainant; and a formal hearing.

Clare Fowler
Time Lord Mediators (8/08/14)
Clare Fowler
As a culture, we really like there to be a bad guy, a reason why things went south, a scapegoat, someone who started it, leaving us feeling pretty clear and blameless and dang good about ourselves. But what if . . . shudder to even say it . . . we are all a little good and even (deep breath) a little bad?

John Cratsley
Three Lessons About ADR (8/08/14)
John Cratsley
Having recently completed a manual about the ADR process, there are three features of mediation that jump out at me as noteworthy, but are often overlooked by the practitioner. First are the multiple opportunities for the alert attorney to engage opposing counsel in a mediation of a pending court case without seeming too eager to mediate.

Art Hinshaw
Sternlight – New Executive Order Blocks Mandatory Employment Arbitration (8/08/14)
Art Hinshaw
FOI Jean Sternlight (UNLV) provides us with this guest post on the President’s recent actions on employment arbitration.

John Sturrock
Beware of Ultimatums When Negotiating (8/01/14)
John Sturrock
Good negotiation involves lots of client moves, client satisfaction, flexible negotiators, . . . and few ultimatums. Remember these tips in order to get the best agreement for your client.

Ralph Kilmann
Do Your Surrounding Systems Support Your Inner Self? (8/01/14)
Ralph Kilmann
Are your surrounding systems separate from your inner self? I would like to address the observation that we typically define our sense of self as being separate from our surrounding systems. So I ponder: What are the consequences of keeping our sense of self (some integration of ego, soul, and self-worth) separate from our surrounding systems?

Maria Eugenia Sole
Mediación Comunitaria, Redes Sociales, y Javier Mascherano - en Espanol (8/01/14)
Maria Eugenia Sole
Mediación comunitaria, redes sociales y Javier Mascherano en nuestra mesa De la “hombría” a la “caballerosidad”. En las últimas horas las redes sociales se vieron inundadas de referencias a Javier Mascherano, capitán “sin cinta” de la selección de futbol argentina, exaltando su hombría de bien, su temple, perseverancia y espíritu de equipo.

Kyong Mazzaro
From Practice to Research: When Peacebuilding Fails: The Limits of the Liberal Peace (8/01/14)
Kyong Mazzaro
Since the ratification of the United Nations Charter in 1945 and the deployment of numerous peacekeeping missions, one could conclude that peacebuilding is a difficult concept to grasp. It involves many actors and activities, including the demobilization of troops and the provision of humanitarian assistance, at different levels, from the community to the region. However, there seems to be a common thread in how the UN conceptualizes and implements peacebuilding around the world: an emphasis on the importance of economic liberalization and democratization to achieve peace.

Alex Polsky
Developmental Negotiation: Preliminary Stage (8/01/14)
Alex Polsky
Developmental negotiation involves a plan and execution of the development of all five stages to maximize the likelihood of a beneficial outcome. The five stages are preliminary, preparation, information, negotiation and closing.

Shawn Davis
Authorities Crack Down on Foreclosure Rescue Scams with “Operation Mis-Modification” (8/01/14)
Shawn Davis
Recently, the foreclosure mediation team at RSI has been thinking a lot about foreclosure scams and mortgage modification fraud. Now that we’ve launched foreclosure mediation programs in Lake, Kane and Winnebago Counties here in Illinois, we’ve been focusing on how to provide quality housing counseling and mediation services and get the word out to the public that these services exist.

Geoff Sharp
Dynamos, Cruisers, and Losers (8/01/14)
Geoff Sharp
Before I left my law firm in the late 1990's David Maister, a Boston management guru of whom many of you will know, was the darling of every large service firm, especially in the law and accountancy fields.

He has long since retired but at his height he was good, very good – despite being a former Harvard Business School professor, he had a practical wisdom that could cut through the management gobbledygook I was struggling with at my firm’s monthly management meetings at the time.


What the Supreme Court of India Got Right and What it Got Wrong (8/01/14)
Niyata Samir Ghandi
The Kluwer Arbitration Blog published an outsider’s perspective on the decision of the Supreme Court of India which has been applauded by international practitioners around the world since it curbed the jurisdiction of Indian courts over an arbitration agreement supplementing the pro-arbitration jurisprudence coming from the SCI over the last two years. The writer has commented not only as an outsider but also and more particularly as a Civil Lawyer, proposing an excellent alterative to the court’s approach. However, it may be necessary to have an insider’s perspective on the judgment.

Phyllis Pollack
Vengeance Shall Never Be Yours! (8/01/14)
Phyllis Pollack
In a recent post, I discussed that the best way to calm someone down is to address the emotion and not the words. I learned this in a training session with Douglas E. Noll. However, I did not explain the theory behind this strategy.

Jan Frankel Schau
Using Diplomacy in Negotiation (8/01/14)
Jan Frankel Schau
n my humble opinion, neither missiles nor trials are effective at getting the message across to an unwilling, unreceptive party. Instead, we should choose our negotiating partners wisely by picking the person whom we most trust to carry the message of our people or our cause with the most respect, tact, and reserve, but forcefully and convincingly.

Michael Leathes
Book Review: The Variegated Landscape of Mediation (7/31/14)
Michael Leathes
Never before has an attempt been made to capture the distinctive qualities and differences that combine to make mediation eclectic and also truly comprehensible. Until now. The Variegated Landscape of Mediation (Eleven International Publishing, July 2014) is a collaboration of around 90 of mediation's thought leaders from around the world. It is the first work that explains on a global plane how mediation has cross-pollinated itself into such a kaleidoscopic display of both consistent and contradictory features.

Keith Seat
Legal Mediation News - July 2014 (7/29/14)
Keith Seat
This is another in a series of updates on Legal Mediation News from Mediate.com News Editor, Keith Seat.

Phyllis Pollack
Which System Is In Control? (7/26/14)
Phyllis Pollack
In his bestselling book, Thinking Fast and Slow, Daniel Kahneman (Farrar, Straus and Giroux, New York, 2011) notes that our brains contain two systems of thought: System 1 which "... operates automatically and quickly, with little or no effort and no sense of voluntary control" (Id. at 20) and System 2 which "...allocates attention to the effortful mental activities that demand it, including complex computations...." (Id. at 21.)

Joe Markowitz
Prisoners (Spoilers!) (7/26/14)
Joe Markowitz
In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation programs and texts.

Mary Novak
Facebook’s Templates for Conflict Resolution and Court ADR (7/26/14)
Mary Novak
Facebook recently announced its creation of a self-guided dispute resolution system for users. The company has designed a new user-to-user conflict resolution system that could have implications for court ADR systems as well. As in the courts, Facebook must process a large number of conflicts. While the company manages reports of issues such as threats and graphic violence, they wanted to provide users with tools to handle insults and embarrassing photos on their own. The company worked with a team from Yale to research users’ needs and design a large-scale conflict resolution system.

Lorraine Brennan
Start Spreading the News: Mandatory Mediation Comes to New York (7/26/14)
Lorraine Brennan
As someone who started her legal career as a litigator, I, like many other litigators, viewed mandatory mediation with both skepticism and some suspicion. When my client was sent to court-ordered mediation by a judge in the SDNY in the 1990s, I assumed that my adversary and I would merely tick the “attendance” box and return to the judge to let him know that mediation had failed to resolve our complex dispute.   1 Comment

Dan Simon
Transformative Mediation, Slovenia, and the Wright Brothers (7/26/14)
Dan Simon
Many times throughout the Transformative Mediation Congress, I saw mediators explore various aspects of the transformative approach– how it looks in practice, what it means to be non-directive, how to talk to clients as a transformative mediator. We grappled with what this work means to us and to our clients. We discussed ways to help people understand this different approach to conflict resolution. The participants were willing to embrace the challenges of applying the Transformative Approach to their practice and wrestle with them.

Cinnie Noble
Stepping into Someone's Shoes (7/26/14)
Cinnie Noble
The phrase stepping into someone’s shoes – the subject of this week’s blog – is commonly used to describe a way to envision the situation from the other person’s perspective. As one source said, “only the wearer knows where the shoe pinches”.

Rosa Abdelnour
La Mediación en Costa Rica (7/25/14)
Rosa Abdelnour
A mediados de la década de los noventa se realizó en Costa Rica, por parte del Poder Judicial, una consulta ciudadana para evaluar la percepción acerca del sistema judicial. Los resultados mostraron descontento entre la población por el formalismo para acceder al sistema y la mora o duración de los procesos que se consideraba excesiva.

Hilary Linton
Understanding Each Party’s Power in Family Mediation-Arbitration: Why it is Critical (7/25/14)
Hilary Linton
A recent Ontario Superior Court of Justice decision illustrates the need for clearer guidelines for “screening for power imbalances and domestic violence”, a mandatory component of Ontario family arbitration. It also demonstrates the benefits for parties, lawyers and arbitrators in understanding that some methods of screening are more effective than others; and in ensuring that screening is done in accordance with the best practices before the mediation in a mediation-arbitration.

Charlie Irvine
Mind the Gap: Mediation and Justice (7/25/14)
Charlie Irvine
This article examines the alleged gap between mediation and justice. It considers ideas of both substantive and procedural justice and examines persistent critiques of mediation as falling short of the supposed gold standard of litigation. It goes on to propose an alternative reading of mediation as a site where parties are empowered to negotiate not only the outcome of their dispute but the criteria by which that outcome is judged. This can be read as providing more rather then less justice, particularly in diverse societies where legal and social norms are contested.

Keith Seat
International Mediation Updates (7/23/14)
Keith Seat
This is another in a series of updates on International Mediation Developments from Keith Seat, Mediate.com News Editor.

James Melamed
Incremental Progress in Mediation: Baby Steps, Strategic Mediation & Less is More (7/22/14)
James Melamed
Taken from Jim Melamed's training manual, these introductory excerpts suggest that progress in mediation is necessarily incremental; that the mediator should in fact strategically focus on baby steps of progress that can be made; and that, in effectively mediating, the mediator should seek to "only do so much as is necessary" to stimulate available progress so as to not over-direct the process and allow participants to claim progress as their own.

Don Cripe
Mediation: A Way Out or Hard Work? (7/18/14)
Don Cripe
After I closed my law practice in favor of providing full-time ADR services, I bumped into an old-time mediator whom I had known for many years. When I told him of the change in my career he commented, “So, you don’t want to work so hard anymore.” This article is my reflection on his observations.   1 Comment

Tom Stipanowich
ABA / Straus Institute Survey (7/18/14)
Tom Stipanowich
One of the three recent surveys undertaken by the Straus Institute in 2013 as part of the Theory-to-Practice Research Project was a survey of corporate counsel co-sponsored by the American Bar Association’s Section on Public Utilities, Communication and Transportation (PUCAT) ADR Committee.

Jill Gross
FINRA Appoints New Arbitration Task Force (7/18/14)
Jill Gross
FINRA announced today the formation of a new Arbitration Task Force “to consider possible enhancements to its arbitration forum to improve the transparency, impartiality and efficiency of FINRA’s securities arbitration forum for all participants.”

Cinnie Noble
Do You Flip Your Lid? (7/18/14)
Cinnie Noble
I was unable to find the derivation of the expression flip your lid, but I have heard it used to describe an excessively angry reaction. In recent years I have heard the term apoplectic used when referring to extreme rage and for me, the meaning of these two expressions are similar. The visual of flip your lid however, conjures up an interesting image of the top of the head blowing open – presumably with fury propelling it. Perhaps, the expression symbolizes the emotional part of the brain (limbic area) becoming over-activated and overflowing with anger, pushing out the front of the brain (pre-frontal cortex) which loses its capacity to think!   2 Comments

Katherine Graham
Case Study: The Mediating Manager (7/18/14)
Katherine Graham
Sian is the Communications Manager for a UK charity and has recently appointed James, a designer whose job required frequent contact with production officer Helga, who had worked with Sian for over 3 years. Sian had a sinking feeling that things were not going too well between James and Helga, but Sian was busy and, optimistically, had put the tensions down to early teething troubles and hoped she could leave them to sort out their differences ‘as adults’.

Alberto Elisavetsky
EBay y Sotheby’s se asocian para transmitir subastas de arte por Internet (7/18/14)
Alberto Elisavetsky
La compañía de comercio electrónico eBay y la casa de subastas Sotheby’s para transmitir en directo Internet algunas de las subastas que tengan lugar en la central de la casa de subastas en Nueva York. Se hará a través de una nueva plataforma que la empresa australiana de comercio electrónico añadirá en su página web, y se planea que el siguiente paso sea que los internautas puedan pujar desde cualquier parte del mundo. Las dos empresas tienen previsto centrar esta apuesta digital en segmentos como la joyería, los relojes, los grabados, la fotografía, el vino y el diseño del siglo XX.

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