Mandela – A Titan Remembered
With the death of Nelson Mandela, without doubt the most significant political leader in my lifetime, lots has been written about his impact not only on South Africa but also on the world. And plenty is still to be written.
The Promise of International Commercial Mediation
Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes.
Scotland Can Provide Secure Forum for Global Disputes
This is a difficult time for the world as we face serious tensions in the Middle East. Thirty years ago, the situation was similar. On 1 September that year, fighter jets from the Soviet Union shot down a South Korean jumbo jet near Sakhalin Island, in the Sea of Japan, killing all 269 people on board. The Cold War was at a peak. Relations between East and West were at a low ebb.
What is Your Best Alternative?
Negotiation 101 tells us that we must develop a clear understanding of what our best alternative is to negotiating an agreement (“BATNA”) in advance of the negotiation in case the impasse cannot be overcome. A negotiator’s BATNA is the course of action or, if you like, the path he/she will take if a resolution to the impasse cannot be reached through direct negotiation.
To Move or Not To Move an Elder
This article concerns the important decisions that often face caregivers or other family members concerning where an elder family member will live, the strong emotions that are evoked in families contemplating a possible elder move, the important questions that should be considered in considering a move, and how mediation can support families in having a productive discussion concerning this important, complex and highly emotional issue.
So, You Want to be a Mediator?
I find myself regularly asked “what do I need to do to become a mediator?” While I do not pretend to have all of the answers, here are some suggestions for beginning your journey.
Who’s Been Getting More From Mediation?
In many organisations, mediation plays only a limited part, and is done as an activity to resolve a specific conflict. But mediation is more than a specific process. It’s also a set of tools designed to help people let go of their anger and pain and arrive at win-win outcomes; and it’s a collection of values and beliefs which determine how we go about responding to conflict.
Recommendations to Develop International Commercial Mediation in Singapore
On December 3, 2013, Singapore’s Ministry of Law unveiled key initiatives to transform and develop its international commercial mediation sector. Based on recommendations of a Working Group established in April 2013 by Singapore’s Chief Justice and the Ministry, the recommendations include the establishment of two new independent mediation entities: a new professional mediation body (the “Singapore International Mediation Institute”), and a new international mediation service provider (the “Singapore International Mediation Centre”).
In Memory of Mediator Jennifer Lynch
A trusted and well-respected lawyer, mentor, and advisor to her friends and colleagues around the world, Jennifer will be fondly remembered for her knack of connecting and supporting people, for livening up meetings and events with her warmth and humor and for generously providing her wisdom and knowledge.
Parent Conflict After Separation: Taking a Closer Look
Joan B. Kelly, Ph.D.
High conflict is often described as the most damaging factor in the post-separation adjustment of children and adolescents. High conflict that continues in the years after separation is indeed a major risk factor for children’s longer-term well-being. However, more recent research has demonstrated that it is only one of several important factors creating risk and potential detriment. The quality of parenting after separation and divorce, for example, is now recognized as equally important, if not more so, because competent and warm parenting acts as a protective barrier against the effects of high conflict.
The Mediator's Checklist
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.
The Disappearing Opening Statement
Robert A. Berlin
The disappearing opening statement is a disservice to the parties, by not giving them a heads-up as to what’s about to occur. By going to immediate problem solving without the parties getting the mediation process blueprint may inhibit their full participation. This, in turn, may deny their self-determination: “That to which they give birth, they will support.”
Bringing Oxytocin into the Room
While people in conflict commonly make reference to the facts, behaviors,
feelings, personalities, or events surrounding their conflicts, for the most part
they ignore the deeper reality that these experiences are all processed and
regulated by their nervous systems, and are therefore initiated, resolved,
transformed, and transcended by their brains. Yet only recently have mediators
begun to consider how our brains influence our conflict behaviors.
NAFCM Releases the 2013 State of Community Mediation Report Supplement
On October 25, the National Association for Community Mediation (NAFCM) will release its 2013 State of Community Mediation Report Supplement to its membership. Building upon the groundbreaking 2011 report, the State of Community Mediation 2013 focuses in on inspiring, concrete examples of where community mediation has grown during tough economic times. The report provides a rare, inside look at successful community mediation centers from diverse geographic locations and center sizes. The report will be made available to the public on December 3, 2013 on the NAFCM website www.nafcm.org
REVIEW of Ellen Bruno’s DVD, “SPLIT: Divorce Through Kids’ Eyes”
Donald T. Saposnek
Ellen Bruno’s new film, Split
takes us to a whole new level in understanding the effects of divorce on children. The movie is 28 minutes long and consists 100% of interviews of real children (no adults were harmed used in the making of this film) telling about their experiences going through their parents’ divorces. I strongly encourage you to view this lovely film and discover ways to integrate it into your work of supporting families going through divorce.
“Private Caucusing” In Civil Pretrial Mediations
Jessica Grynberg, Jeffrey Makoff
Two California litigators-mediators challenge the dominant "private caucusing" mediation method, based upon principles and best practices now being taught at the Harvard Law School Program on Negotiation. The authors observe that private caucus mediation or "shuttle diplomacy" is often ineffective in achieving early settlements and argue that skillfully-conducted joint sessions should replace private caucusing in most cases.
Grief, Anger, and Fear
Family law mediation is laced with raw emotions. Emotional pain, sorrow,
sadness, regret and remorse are encountered in circumstances that call for
courage, calm and control. Family law mediators are called upon to ferret out
motivations, interests and needs in what are often trying circumstances. Such
mediators must be prepared to deal with the four basic emotions of grief, anger
fear, and love.
Complex Civil Appeals
More than 90 percent of civil cases are settled without trial. By contrast, most civil appeals are briefed, argued and decided by the court. In complex cases when large amounts of money are at stake, settlements pending an appeal seem to be the exception: such appeals frequently go forward to decision without a serious attempt to settle.
The Last Gap in Negotiations. Why is it Important?
The aim of this paper is threefold. First, to summarise some basic principles concerning negotiation; secondly, to reflect on the reasons why the last gap in negotiations is difficult to cross; and thirdly, to set out in problem solving fashion a number of methods or options to anticipate and cross the last gap.
Avoiding Conflict in the Workplace
No employee wants to become embroiled in a workplace dispute. If conflict at work isn’t resolved, it can cause stress, frustration, loss of sleep, a bad temperament, illness or other issues for individual employees.
Family Mediation UK - Video
This video is produced by the Ministry of Justice in the UK . It highlights the benefits of using mediation for family cases.
The Key to Mediation is to Find the Real Issue: A Congress Case Study
Identifying all the possible ways forward and assessing these rationally is the hallmark of good mediation, says John Sturrock. The stalemate in the US Congress, now resolved temporarily, has attracted much comment from those interested in how disputes can be resolved. The US press had openly called for mediation to be used, leading to discussion about what mediation could achieve and how it actually works.
Lessons in Mediation from Nelson Mandela
In 1964, George Bizos, a young lawyer, probably saved his client and good friend Nelson Mandela’s life by persuading him to change his now famous speech at the Rivonia treason trial. This speech helped to usher in skills of peace and negotiation.
Mandatory Mediation Strikes Back
The question of mandatory mediation is an interesting issue per se. According to some, the fundamental principles are at stake once discussing the forced attendance of parties in mediation procedure. The Italian legislator is obviously of different opinion having reintroduced the “mandatory mediation” to its legal system. One has to add – for the second time.
Behind Bars and Behind the Gun
Behind bars and behind the gun: Answers for America's juvenile justice problem and catabolic ommunity-based conflicts. With a rise of deaths, abuse cases, and other atrocities in the Juvenile Justice System there has been questioning as to whether the present paradigm of understanding is the most appropriate solution available for handling issues of wrong behavior by adolescents. Ultimately, the author urges communities to become more involved in the justice system to urge Collaborative Justice-based solutions in juvenile justice issues.
Why Couples Are Choosing Mediation in Divorce Cases
If you are contemplating a divorce or having trouble settling divorce issues with your spouse, mediation might be the best choice. Mediation is a great setting for you and your spouse to settle your divorce issues in a more amicable fashion with less stress on you and other family members, including your children. Being able to settle issues quickly helps children and other family members adjust to the situation as well.
La Resolución de Conflictos: ADR & ODR--en Espanol
El trabajo de los operadores de conflictos se ha visto sustancialmente modificado en los últimos años, más precisamente a finales del siglo XX, como consecuencia de la irrupción en la práctica profesional de las Nuevas Tecnologías de Información & Comunicación (NTIC).
Ten Tips for Developing and Drafting Effective Parenting Plans in Mediation
Donald T. Saposnek
A mediation process that is thoughtful, respectful, and paced to fit the communication style and needs of the parents will increase the chances of crafting a clear and comprehensive parenting plan. Such a process offers a supportive and cooperative context, promotes direct communication between the parents, empowers the parents to make their own decisions, remains sensitive to their unique couple dynamics, and maximizes a tone of flexibility for future modifications to their agreement. While this context is very important, even more is needed to develop an effective parenting plan. The following ten tips will ensure a well-drafted product.
Crisis in the Courts: Making a Virtue out of a Necessity
Crisis grips the California court system.
In Los Angeles County, budget cutbacks
have forced the courts to do away
with court reporters, reduce clerical staff,
close 10 courthouses, and assign personal injury
cases to a master trial calendar system.
At a time when ADR might be considered
one of the solutions for relieving
the increased burdens on the civil trial
courts that these changes will impose, the
Superior Court in Los Angeles instead
took the surprising step of closing its
entire court-connected ADR program.
Respect and Integrity in Response to Violence
I’ve been thinking about connections a lot in my recent PhD research, given recent events. At first glimpse, a school shooting in Georgia may unrelated to US military action in Syria. But if you scratch beneath the surface, they are intimately related—in how we see and respond to violence.
Tender the Lawsuit to the Insurer
This article walks through what steps you should take if your client is sued for wrongful conduct. Is this an appropriate time to ask for a neutral? Is this an opportunity to mediate?
On Settling Employment Cases
Michael P. Carbone
All too frequently the employment relationship leads to disputes that result in litigation. Mediators see a wide variety of claims, such as wrongful termination, harassment, discrimination, and violation of wage and hour rules.
Consistently Inconsistent: The Need for Predictability in Awards
In investment treaty arbitrations, the stakes are high. It is not uncommon for claims to be asserted for hundreds of millions of dollars, and for the costs to resolve such disputes to run into the millions of dollars. Despite the substantial sums involved in resolving such disputes, there exists no uniform practice on awarding costs and fees in investment treaty arbitrations.
Attribution Biases – How Do You See The World?
Often it is the little things that annoy people. People can jump to conclusions and attribute them to either a person or other circumstances. People have attribution biases, or their own way of seeing the world and this article helps readers understand what the common attributions are and how they can overcome them. These tips can help improve relationships in the workplace, in the community and family.
8 Top Mobile Apps for Mediators
This article highlights some popular mobile apps that ADR practitioners can find useful. It also draws attention to the trends in mobile computing that many of their potential clients will already be using or familiar with.
ADR: Simple But Not Easy
Conflict resolution is, in theory, quite simple. Yet who among us hasn’t experienced times when our common sense flies out the window and even the most basic skills desert us. Those times demonstrate that conflict resolution may be simple, but is far from easy. Let’s see why.
Washington Could Use a Little More Mediation
Most of us were at least slightly frustrated by Washington’s inability to reach agreement over budget and debt limit issues in the past weeks and months. In fact this kind of dysfunction and brinksmanship has become more of a regular pattern than an aberration. Clearly the issues are complex as in any political debate and blame can be placed just about anywhere.
Attorneys and Negotiation Ethics: A Material Misunderstanding?
Our research suggests that a true norm of ethical negotiation behavior exists within the legal profession. This conclusion is tempered, however, with the knowledge that a large minority of our research respondents — at times approaching one-third of them — engaged in unethical and even fraudulent behavior.
Divorcing Parents: Avoid Bringing Your Battles to Court
You're getting divorced and you're angry, resentful, hurt, vindictive or any combination of other painful emotions. Hiring the most aggressive litigious divorce lawyer you can find seems like your smartest choice. If you're a divorcing parent who is thinking along those lines, you're making a choice you may long regret.
Negotiating With Fallible Memories: Buyer Beware
When it comes to relying on our memories in negotiation, the cautionary tale is buyer beware! Once again, another study has been published demonstrating that our memories are quite fallible. They are simply not nearly as reliable as we think they are, and consequently, we should not rely on them in the courtroom (or in everyday life, for that matter.)
ACR Presidential Speech 2013 - Video
2013-2014 President of the Association for Conflict Resolution (ACR) delivers her first address as President at the 2013 ACR Annual Conference on October 11, 2013 in Minneapolis, MN
Fretboard Logic: Learning From The Guitar How To Value Your Case
The Problem: You think that your client’s pain is so severe and different than the typical client that you value the case substantially higher than the other side will pay. The Solution: Understand what “category” your adversary has put your case in and either accept it or try and create a new category of value.
The Art and Practice of Second-Guessing Negotiated Deals
If you are going to negotiate or mediate, prepare to be second-guessed. While wars, litigation and arbitration have the allure of being final and determinative processes -- albeit often falsely so -- negotiation offers little of that elusive finality and is particularly vulnerable.
Is Mediation Ready for Primetime?
Claudio Ruben and Charles Fox both took mediation training, a mediator and trainer of 23 years. Years later, they hooked up to create a one-hour television drama about a very robust full-service mediation firm located in colorful Santa Fe, New Mexico.
What is Mediation and How Can it Help Me?
When business or personal disputes and arguments reach a point where communication stops or becomes adversarial, it’s difficult to know what to do next. Many turn to litigation but there is an alternative. Mediation, as a practice is extremely effective in helping parties find solutions. So successful that statistics of 75% to over 80% success rates have been published in voluntary mediation.
The Future of Financial Services Arbitration
Arbitration practitioners in Asia have long been used to seeing arbitration clauses as the prevalent form of dispute resolution in cross-border finance transactions. As other emerging markets (such as those in Africa) continue their rise, this trend looks set to spread to other regions. Within the EMEA (Europe, Middle East and Africa) region typically used as a business division within the financial services sector, it is only for intra-EU transactions where the old orthodoxy of court jurisdiction continues to hold strong.
Building Better Business Cultures
A culture shift from conflict to collaboration
is taking place, leading mediators believe, in
handling difficult situations and disputes, not only
in business but in many aspects of public life –
a development which presents fresh challenges
to the legal profession.
Ten Ways To Be Successful in Mediation
It’s no secret that insurance carriers have altered their practices in the past several years. Authority and independent judgment previously possessed has been removed from adjusters, managers and supervisors as executives in the companies strive for uniformity in claims handling and ironclad control over settlement decisions. Rarely at mediation is there a person present from an insurance carrier with genuine ability to be flexible and exercise individual judgment beyond parameters established in advance.
Mediation Monster Mash-up
To quote Frankenstein’s monster, FIRE BAD. Mediators take a different view. We fearlessly go toward the heat in conflict, giving our clients a safe space for tough conversations…no matter how scary. Here’s a round-up of my Halloween tweets quoting mediators working with monstrous, er, misunderstood, clients.
The Solution-Focused ‘Language Game’ in Mediation
Fredrike P. Bannink
Without clear, concise ways to know whether mediation has either failed or succeeded, mediation can go on endlessly. Therefore, early in their conversations, mediators and clients address the question: “How do we know when to stop meeting like this?” This article helps to define solution-focused mediation.
Mediate.com to Require Video As Part of Certification Program
Mediate.com will soon be requiring a mediator introductory video as part of Mediate.com's "full disclosure and transparency" certification process. Just as "a picture tells a thousand words," Mediate.com CEO Jim Melamed says that a short video provides referral sources and potential clients with "millions of words." The Mediate.com Board believes that a short video provides consumers with unique qualitative information as to whether a particular mediator selection is a good match.
Globalization of Family Mediation Rooted in Children’s Rights
Mediation now includes standards and guidelines for international family mediation. Unlike traditional family mediation rooted in state family law codes, international family mediation has developed within the context of international rights of children. The Hague Conference on Private International Law (HccH) used the principles found in the United Nations Convention on the Rights of the Child (UNCRC) in framing international family mediation. The first standards for cross border family mediators was presented in December 2012.
Love, Eros, and Negotiation
Even linking the notions of love with negotiation rubs some people the wrong way. Love, after all, should be pure and not subject to vicissitudes of business. And, negotiation, being business, many believe should never be personal. In most relationships, however, personal and business, love and negotiation are inseparable and he denial of that reality frequently and unnecessarily contribute to the end of many relationships.
Accusations, Mediation, and Closure
This article uses a case study to examine whether mediation is a sign of guilt and what the Bible says about resolving disputes. Biblical Based Mediation can help churches prevent embarrassment, devastating notoriety, church splits, and possibly legal actions that do permanent damage to one or both parties.
The “Too Attractive” Bias
A 10-year employed dental assistant in Fort Dodge, Iowa was terminated because she was “too attractive.” Initially, the Iowa Supreme Court affirmed the decision of the trial judge. The dental assistant petitioned for rehearing and, for only the fifth time in a decade, the court granted it. Their decision and the implications of it show us how important it is to be aware of our biases and the actions around them.
Engineering Peace - Achieving the promise of mediation in the world's most difficult conflicts
Tina Monberg, Nadja Alexander, Michael Leathes, Irena Vanenkova
Achieving the promise of mediation in conflicts that threaten the stability of societies and economies is one of the most important challenges of our time. Inspiring progress has been made in the past few years by the UN, and political leaders increasingly perceive mediation as vital for avoiding and resolving conflict at all levels in society, worldwide. Yet in individual cases mediation is rarely used as an avoidance and prevention process, and left until conflicts have escalated to the point that achieving a timely negotiated outcome, or avoiding a catastrophe, is virtually out of reach.
Why Perspective Take - Part 1
Perspective-taking can be defined as viewing the world from outside ourselves. With this definition, perspective-taking can be used not only to resolve conflicts with others, but also in decision-making and problem solving. Unfortunately, while we all have the capacity for perspective-taking, some people choose to utilize uni-directional thinking.
Someone said, perfection is the enemy of good and great. What I don’t like about perfection is that it can hold-up progress when it comes to mediation marketing. How many times have you asked a client to look inside and find the best person they can be? Perhaps it is time to do the same with your mediation marketing.
The Importance of the Reconciliation Model of Peacemaking
Kenneth C. Newberger
This article describes the major characteristics of the Reconciliation Model of Peacemaking (developed in my doctoral dissertation in Conflict Analysis and Resolution at Nova Southeastern University). It also describes the role of the mediator within this model. These descriptions are contrasted with the Transformative Model of Mediation and the mediator’s role in that model to highlight differentiation and increase clarity.
5 Top Business Boo Boos
In a special free report from the Program on Negotiation at Harvard Law School, the smartest negotiatiators in the room offer their advice on the five top bargaining errors.
The August issue of the California Bar Journal is devoted to the theme of lawyer as peacemaker. In his introduction, State Bar President Patrick Kelly argues that it is time for lawyers to refocus their efforts from advocacy to more of a problem-solving, peacemaking role.
Obama’s “Red Line”: The Use of Ultimatums and Strategies of Commitment in Negotiation
To many, an ultimatum -- “drawing a line in the sand” -- is a blunt, if not primitive, negotiation tactic. But it continues to serve a purpose and remains in use in the refined form of a strategic commitment. It is an evolutionary cross between the human desire to honorably defend a principle and the enforcement of a blood oath that demands a vengeful honor killing. To be taken seriously and gain credibility, a negotiator or mediator must strategically demonstrate commitment.
The Development of Egyptian Alternative Dispute Resolution
The development of Egyptian Alternative Dispute Resolution needs to be based on two things: Legal Reform and Institutional Change. As the largest Arab country in the Middle East-North Africa (MENA) region, Egypt will play a significant role in the future as an advocate of Alternative Dispute Resolution (ADR). The incorporation of ADR is inevitable as Egyptian officials want to promote commercial ADR to entice Western corporations to invest in the region.
Mediation is Always . . . Voluntary?
In this millennium of cost cutting and financial disarray in the court system, it is even more important than ever for attorneys to rescue their clients from the mess. Avoiding conflict begins at the very beginning stage of every business relationship by anticipating every “what if” possible when drafting agreements and contracts. Thus, I propose that every agreement, including Marital Settlement Agreements/Stipulated Judgments, should include contractual mediation provisions, as explained in this article.
Income Inequality: Are Unions the Answer?
If income inequality is the problem; are unions the answer? The middle class is being pushed into poverty at an alarming rate. Four out of five Americans will experience poverty at some point in their lifetimes - up from 4 in 10 only a few years ago. America's top 1% now owns 35% of the nation's wealth, leaving the bottom 80% to share only 11% of the pie. The "middle" has seen a $6, 218 decline in median household income over the last decade. As the gap continues to widen, the social fabric rends and a substantial portion of the population is relegated to desperation and despair.
We must first recognize our error before we can make things right. While never easy, it is even harder when such recognition requires a public acknowledgement—an apology—to those we have injured. A true apology requires a great deal of humility and includes a sincere expression of regret, changed behavior and, when possible, restitution.
The "Fear Factor" and Conflict
As with the participants who performed stunts on the reality show called “Fear Factor”, many of us are outside of our comfort zones when we are in conflict. Unlike the contestants though when we are in conflict many of us do not experience conflict as sport, and we also lack their apparent boldness. This article expands on the notion of ‘fear factor’ when it comes to engaging in relational conflict and processes designed to facilitate the way through them.
Preparation is the Key
Value is always in the eyes of the beholder: what it is worth to them. But it is often very difficult to determine where to start your negotiation so as have enough room to negotiate as well as to engage your counterpart.
Intern Class Actions on the Rise
The rise in unpaid internships has led to an equally significant uptick in litigation brought by interns demanding compensation for performing the same work as paid employees.
And the interns are winning.
The NFL Concussion Settlement
I haven’t had the time to review the terms of the NFL’s concussion settlement with former players, but I’ve heard a lot of news coverage of it. On the Valley’s two morning drive-time sports talk shows (one local, one national) there was a lot of talk about the settlement and judging of winners and losers.
A Tale of Three CEOs
We know a lot about managing down, about supervising people who report to us and leading a team. We
know we have to make our goals and standards clear, we have to oversee the work without becoming
micromanagers, and we have to manage in a variety of styles that best suit the needs of staff members.
For those who like lots of structure, we provide that structure at the beginning of the project and save
time later by avoiding the mistakes and false starts because we missed a detail that took a staff member
down an expensively wrong path.
Let's Get Ready to Rumble - Part 2
The dream fight between Mayweather and Pacquiao would reenergize the waning boxing fan base; and, the fight could finally determine who is the best pound for pound fighter of the decade. However, the egos and interests of Pacquiao, Mayweather, and their respective representations have clashed at every stage of the negotiation process equating to an overall failed negotiation. (Part 2)