The Italian ADR Saga: a Machiavellian Plot, or Just Lawyers Without a Plan
Mediation has long been a matter of contention in Italy. First introduced by a government decree in 2011, mandatory mediation resulted in strikes by part of the legal profession, and was then quashed in 2012 by the country’s Constitutional Court. As the number of mediations dropped drastically after the court decision, in September 2013 Italy re-introduced the mandatory requirement. The country is still in the growing pains of a new system.
Dr. Lynne C. Halem
Most people do not think of their household belongings as assets. It is, after all, just “stuff”. Except, that is, if asked to view the stuff as property subject to division in divorce. Then, suddenly, even the smallest or most insignificant items are seen in a whole new light, indeed take on a whole new value.
Workplace Conflict – Putting It in Context
Many articles on workplace conflict miss out on a key subject area and one which is often best considered first – the context within which the conflict has arisen in the first place. In other words, we cannot consider a conflict situation in isolation from the circumstances in which it has occurred, and the key to its resolution may well lie as much in this contextual realm as it does in appreciating the conflict issue and the people involved in the dispute.
Gender and Decision-Making
Men and women are pretty much equally good decision-makers when under low stress levels, but “When stressed, men are more prone to taking risky bets with little payoff.”
Is ADR Your 1st Career?
Mediation for many is a second field--after giving the first half of their professional career to the law, social work, therapy, real estate, business negotiations, and many other fields. This law focuses on the few who began their career in ADR--and how they managed to get started without another path to build on.
Body Language in Online Mediation - What Do We Miss?
Leaving aside for a moment the question as to whether the "limited" body language in online dispute resolution is sufficient or not for doing our job, I believe that while for us mediators body language is a key factor, from the parties' perspective it is not the "only" factor. For them, there are other important factors to consider.
To Puff or Not to Puff . . . (or When and How to Puff)
I’m no expert on moral philosophy or the social psychology of lying, but I think that most people probably believe that some misrepresentation is acceptable and even justified. Students in my Lawyering course regale the class with tales of their perfidy, sometimes with pride rather than shame.
Expectations and Conflict
One of the things that can lead to conflict has to do with unmet expectations. For instance, we had hoped that another person would have said or done something that reflects their care and concern for us; they excluded us from a gathering or decision; they had something we wanted and knew it was important to us; or they didn’t provide their support or were unreliable about a matter.
The Consolidation Arbitrator – An Arbitrator Too Far?
Whilst many institutional rules now contain provisions which expressly address the complex issue of consolidation, the recently revised rules of the International Centre for Dispute Resolution (the “ICDR”), the international arm of the American Arbitration Association (the “AAA”), are the first to have introduced the novel concept of the “consolidation arbitrator”.
Eight Tips on How to Impress Your Arbitrator
While the most successful way to impress your arbitrator is with the merits of your case, there are smaller, but important, ways to create a favorable impression of yourself and your client’s case. This article is one arbitrator’s guide to creating an arbitral environment favorable to you and your client.
Faith-Based Mediation: What is it and does it matter?
Leslie Short, Joyce P. Dugger
This article is defining what we believe a faith based mediation is seen and practice through the lens of being inclusive of all faith and belief system. This article asks two question "What is faith" and "Does it Matter" we explore these two questions understanding the process of embracing all faith. To create a dialog that opens all faith to come to the table without being judge.
The Mediator's Log: A Mediation Story - Section 2
Part 1 discusses a typical mediator's morning, where all of the details of the case and the arguments are revealed. This section, Part 2, discusses a mediator's afternoon, where he uses all of his tools to help the parties understand each other.
Trade Secret Mediation: Negotiating Beyond the Distrust
Trade secret litigation often involves deep levels of distrust, suspicion, and anger on the part of parties and counsel. To avoid trial, the plaintiff must negotiate with the thief, adding insult to injury. The defendant may express outrage at being accused of theft, and suspect the litigation is merely a “fishing expedition” to uncover the defendant’s own trade secrets. How then can the parties overcome these issues and reach agreement during mediation? This article provides counsel with information and suggestions for successfully mediating trade secret disputes.
Mediation - The Savvy Choice
Elder mediation can be helpful for families trying to make difficult decisions. It helps children and parents make decisions that include everyone's opinions.
Fall is a Time to Reap What You've Sown
Fall is in the air. The nights are cooler and longer. The apples at local farms are almost ready to be picked. If you've been taking care of yourself and your relationships, then spending time at home with your loved ones may be quite pleasant.
The Trading Zone in Mediation of Employment Disputes
Sometimes I feel like I’m in the middle of a tug-of-war. This week I had the anomolous situation of having two nearly identical full day cases back to back. In the first, the Plaintiff started the demand at $1 million and Defense offered $30,000 (the equivalent to one year of salary). She was alleging age discrimination, though the Company had laid her off in a reduction in force and she was only 42. In the second, Plaintiff started the demand at $200,000.00.
Mediation 101: Know What It Is That You Want!
I had an interesting mediation the other day. I say "interesting" as I am not sure what other adjective to use. Like most of my mediations, it involved an automobile. The plaintiff claimed that the defendant, a used car dealer, misrepresented several important details in the financing of the used automobile that she was purchasing. As a result, she was suing.
Occupy Central: Resolving the Current Impasse
Occupy Central (“OC”) has been promoted as a peaceful civil disobedience movement in Hong Kong where the leaders of OC mobilize masses of protestors to blockade Central District to fight for what they consider as genuine universal suffrage. These skirmishes are becoming increasingly violent, and it is time to find a non-violent end to this conflict.
When You Might Need Mediation After Divorce
When the divorce mediation process succeeds, spouses and their families often report a tremendous benefit from having chosen the option. However, there are still times when ex-spouses, even if they remain amicable after divorce, may need post-divorce mediation.
Recognition of International Arbitration in Ukraine in Figures
Arbitration practitioners often put Ukraine below the average ranking of countries in terms of recognition of arbitration. Ukraine’s image of a not entirely arbitration-friendly jurisdiction is “promoted” with common thought about problematicenforcement of arbitral awards in Ukraine. However, in recent years Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach. That progress had been measured during the study resulted in the research paper “Ukraine. Arbitration-friendly jurisdiction: statistical report, 2011-2012”
Seal It With a Kiss
Michael P. Carbone
Justice Antonin Scalia was in the Bay Area recently, speaking to students at the University of San Francisco School of Law. On the subject of trial advocacy he told them that they should learn how to take a complex case and make it sound simple.
Compassion for Your Clients
One surprising way to think about trauma is not by measuring the magnitude of the horrific event, but rather by measuring the extent to which the person who experiences the tragedy is left alone with it. This article provides a useful reminder that we can never understand the pain that our clients have encountered, and that we might be providing one of the only safe places in their life for them to discuss what they are going through.
Certainly there is no shortage of candidates for blame when you have lost something. Yet finding the right person to pin the blame for failure can't be the whole story.
Walking on Eggshells
When applied to interpersonal conflict I think of those disconcerting situations – such as walking on eggshells – when I am reluctant to raise an issue expecting that by doing so I will overly upset the other person. It seems this is most likely to occur when I have a history with and am aware of her or his sensibilities. Though I expect it also happens when we don’t know the other person but reckon that what we have to say will be difficult to receive. In any case, the image itself – from whatever the source –conjures up an extremely uncomfortable experience.
Just Don’t Ask and Get Good Karma??!!
As many are probably aware, Microsoft’s CEO recently said that women who don’t ask for raises will enjoy “good karma.” So, his negotiation advice seems to boil down to just don’t ask and you count on the universe rewarding you in this life (or the next).
Lessons from Jerusalem: What Attitude Do We Bring to our Conflicts?
Michael A. Zeytoonian
Strange as this might sound, I had the good fortune of being in Israel during a war, a declared cease fire and its aftermath, and experiencing how these impacted the people involved. While it was a source of some tension and heightened vigilance, it provided a rare opportunity to experience the shifts and changes that occur when a war stops and a cease fire is in effect, in this place that has been a historical hotbed for conflict.
When to Fight
President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world. With respect to such crises as Russian aggression toward Ukraine, preventing a nuclear Iran, and the Israeli-Palestinian conflict, the president reiterated his belief in finding cooperative, negotiated solutions.
How to Mediate High-Conflict Cases: Balance and Control
Like a lot of ADR researchers, I’m always interested to know what really happens in the black box that is the mediation session. So, when someone pries the box open to look inside, my eyes light up. Researchers have begun using conversation analysis to uncover what happens in mediation that leads to successful outcomes. The latest contribution to this research comes from Norway, with a study of 154 custody mediations.
I Hate When He . . .
Lately I have been hearing several of my friends complaining about their life partners. It seems it is more than usual, but maybe I am just more aware of their plaints these days for some reason. The gripes typically start with “I hate when he (or she)…” and the “odious” acts, as they perceive them, may be how the person answers the phone, eats, flosses, leaves laundry on the floor, makes puns, and on and on.
Creating Spaces for Effective CVE Approaches
Have a look at the following. It reminds me firstly of Bernie Mayer's Beyond Neutrality- if we as conflict resolution professionals are seeking to make an impact in the world, perhaps we have to move beyond the neutral role of mediators (and other neutral roles).
Amarillo COA Holds Arbitration is Required in Construction Fee Dispute
In January 2013, several of the subcontractors (“Scottco”) filed a lawsuit against Journeyman to recover payment for services rendered pursuant to their respective subcontracting agreements. Journeyman responded by filing a motion to abate the court proceedings and compel arbitration. After the district court denied Journeyman’s motion, the general contractor filed an interlocutory appeal with the Amarillo appeals court.
Finding Success in Leadership
We asked a leader how anyone manages to stay engaged when they have to re-inspire leaders in a variety of different settings. The answer that they gave, seems to be the secret to success in every field, mediation and otherwise.
It Is All In The Attitude !
Once again, the New York Times has published an interesting article in its Sunday Review section on September 5, 2014 entitled "Liking Work Really Matters" by Paul A. O'Keefe. The thesis is that when we really enjoy what we are doing, we can do it for much longer than if we find it to be tedious. Our mental gas tank is nowhere as depleted when we are in the "in the zone" or in "flow": "During a flow state, people are fully absorbed and highly focused; they lose themselves in the activity." (Id.)4545
Creating A Foundation for Cohabitation
You are in a committed relationship. You and your significant other desire to live together but are not ready for or interested in marriage. You decide to rent or purchase a property together, or to move into a place one of you currently rents or owns. You are in good company, joining over eight million cohabiting couples in the United States.
Conflict in Start-ups
From one perspective, conflict in a start-up should not be different from conflict in any other similarly sized organization. And to be sure, some of the same factors that cause conflict in any organization – whether it is a family business or a partnership or a non-profit – can contribute to conflict in a start-up. Yet start-ups also have some unique challenges, and I’ve seen some rather bad advice targeted to them.
Conflict Resolution Day is October 16, 2014
ACR's original intention was for Conflict Resolution Day to be promoted by community centers around the country. The belief is that if the public has a better understanding and awareness of mediation, they will be more likely to hire a mediator. And the more mediators that are hired, the better for all of us!
Defining Mediation: Voluntary Assisted Negotiation
Mediators have historically resisted defining mediation, because mediation can be necessarily amorphic and definitions can be dangerous. However, the world is defining mediation with or without us. Therefore, it is time for us to weigh in on the question: What is mediation?
My Way or the Highway
t has been a long time since I first heard the expression my way or the highway. Within the context I first heard it and ever since, I have interpreted it to mean that if someone doesn’t go along with the other’s view (position, want, need, etc.) she or he might as well just leave or go away.
Dallas COA Affirms Arbitral Award Despite Evident Partiality Claims
The Fifth District Court of Appeals of Texas in Dallas has affirmed a trial court’s order confirming an arbitral award in a dispute between a residential builder and several homeowners. In Meritage Homes of Texas, L.L.C. v. Ruan, No. 05-13-00831-CV (Tex. App. – Dallas, September 16, 2014) a group of individuals who bought newly built homes from Meritage allegedly learned that their houses were smaller than the square footage that was represented to them prior to purchase.
Experts Predict ADR Will Help Resolve ACA Claims
The use of ADR to resolve healthcare-related claims will increase with the implementation of the Patient Protection and Affordable Care Act (ACA). Experts predict the increase will stem from the need to reduce costs as well as the healthcare groups that will bring new disputes for resolution.
Many companies and their executives have embraced the imperative of sustainability, but it’s that step into a collaborative approach that still seems too hard.
When to Fight
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President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world.