Are You Really Ready for Divorce? The 8 Questions You Need to Ask
Bruce Derman, Wendy Gregson
This article outlines what couples need to do in order to face the numerous dilemmas that are inherent in divorce. A dilemma implies that you are torn between two choices, each of which have undesirable fearful elements. If people have not resolved their dilemmas before the divorce, they go through the process trying to manage their fear in different ways by hiding their doubt, responsibility; vulnerability, or dependency.
Getting “the Good Stuff” from Feedback
I confess that I have had a love-hate relationship with feedback. In my teaching and coaching, I am passionately committed to improving and growing. And, I always want to be a good spouse, friend, and colleague as well.
We Have to Talk: A Step-By-Step Checklist for Difficult Conversations
What you have here is a brief synopsis of best practice strategies: a checklist of action items to think about before going into the conversation; some useful concepts to practice during the conversation; and some tips and suggestions to help you’re energy stay focused and flowing, including possible conversational openings. You’ll notice one key theme throughout: you have more power than you think.
ODR and Ombudsmanship
This chapter focuses on the applicability of Online Dispute Resolution (ODR) for a specific
dispute resolution mechanism, the Ombudsman. The chapter is based on the experiences
and observations of Dr. Frank Fowlie, who served as the Inaugural Ombudsman for the
Internet Corporation for Assigned Names and Numbers (ICANN).
Dispute Must be Arbitrated Under FINRA Despite AAA Agreement
Texas’ Fifth District Court of Appeals has ruled that a dispute between a licensed securities broker and an investment company must be arbitrated before FINRA rather than the AAA. In Morford v. Esposito Securities, LLC, No. 05-14-01223-CV (Tex. App – Dallas, September 18, 2015), a securities broker and Financial Industry National Regulatory Authority (“FINRA”) member, Esposito, provided a group of customers, Nemaha Water Services, with assistance in locating investors. In exchange for his help, Nemaha agreed to pay Esposito five percent of any funds the company received as a result. As part of the transaction, the parties signed a letter agreement which stated any future disputes would be resolved through arbitration before the American Arbitration Association (“AAA”).
Bad Day at JAMS, Part 1
An old friend (I’ll call him Frank) called to tell me he was being sued by a former employer (I’ll call him Owen) for improperly taking customers and trade secrets. I warned Frank that mediations conducted by retired judges often feel silly, meaningless and frustrating to litigants, and that they achieve, best case scenario, a settlement that both sides are unhappy with.
What is Court ADR? Clearing Up Some Misconceptions
How can you make good decisions if the information you have is limited or wrong? That’s the question that drove me to the fields of research and program evaluation – good policy and effective programs are passions of mine, and there’s no way to have either without accurate, reliable information. It’s also the question that ran through my head as I read the article, “To Mediate in Court or out of Court, that is the Question” in Financier Worldwide. In the article, the author distinguishes between court and private mediation in a way that is not consistent with the wide variety of court and private mediation that exists in the United States. The article provides a good example of the misconceptions I often see in articles about mediation, misconceptions that can lead to poor decisions about the use of mediation.
Stop and Think … Before Suing!
Californians have a reputation for being litigious; for making mountains out of mole hills. Judge Kozinski of the Ninth Circuit Court of Appeals minces no words on this point. A very small “tiff” got very much out of hand apparently because neither party had the courage (or common sense?) to admit the error and/or apologize.
Our Peacebuilding Pope
The Pope, a rabbi and an imam…sounds like the beginning of a very funny joke but last week was a reality. elliot pope As you likely know, last Friday the Pope hosted an interfaith prayer gathering at the 9/11 Memorial and Museum. This was trailblazing and I’ve linked to the video here for those you who have not yet seen it.
So What is a Meitheal Anyway?
Michael A. Zeytoonian
The Fall issue of The Collaborative Review (Vol. 15, Issue 2), has just been published and features an article by Michael Zeytoonian, Director of Dispute Resolution Counsel, LLC in Wellesley and Westborough, MA about the essence of Collaborative Law. The article is entitled “What Makes Collaborative Law Collaborative Law (really)?”
Being Creative with Child Support
Using the Collaborative Law process, we feel impelled to be creative with solutions, even where there are standard guidelines in the Texas Family Code for such things as how to set child support. In most litigation cases, the child support amount is quickly set by following the standard formula. The Code deals with the amounts of income and the number of children before the Court, as well as considering if there are other children that need to be supported.
Mediations are Supposed to be Confidential… But Are They Really?
Either as a participant in a mediation or as the mediator, we have all learned the cardinal rule that mediations are confidential both in terms of the statements and other communications made during the mediation and the information the mediator keeps to herself, not sharing it with the other parties. Many times a mediator has analogized mediation confidentiality to the television ad, “What happens in Vegas, stays in Vegas” to explain the sacrosanct nature of mediation confidentiality.
Ride Sharing Arbitration Agreement is Socially Unconscionable
A California judge has reportedly declined to order a dispute between transportation network company Uber and a former driver to arbitration. In the case, a San Francisco Superior Court judge ruled that the arbitration clause between the parties was “substantively unconscionable” due to its contradictory language.
California Confidentiality Will End Unless You Take Action Now!
On August 7, 2015 the California Law Revision Commission voted 4-1 to draft a recommendation removing our current protections. Nearly all its recommendations become law. The legislation will remove current protections whenever a mediation party alleges misconduct by their lawyer advocate or lawyer mediator.
Officers Join the Peace Party
The best part of the police trainings has been the privilege of listening in on the discussions about the work the officers do and hearing the care, compassion and energy they have for children and youth.
Restorative Justice to Handle Sexual Assault Cases at Universities?
I think there can be great advantages to using restorative justice processes in a variety of settings. My concern is that we have seen that universities don’t have a great track record in terms of dealing with sexual assaults on campus (in fairness, few institutions in our society do have a great track record).
Sawubona: I See You
In moments of conflict, seeing someone whole is both a noble and a difficult thing. It is a worthwhile pursuit whether we’re part of the conflict or we’re helping them sort it out — because that’s where possibility lives.
Keep it Simple. Keep it Interesting.
In an age of ever-increasing complexity, where your watch can open your garage and answer your phone (yes, the Apple watch can really do that), many of us in the international arbitration community have lost sight of the most powerful weapon in the advocate’s toolbox: simplicity.
Legal Costs and ‘Mediation Receptivity’
In 2006 Frank Sander produced his ‘Mediation Receptivity Index’(22 Ohio State Journal on Dispute Resolution, 599-618). The MRI would be a way of discerning the extent of ‘mainstreaming’ or ‘institutionalization’ of mediation in different US states. It doesn’t seem to have caught on, but we discuss Sanders work here.
Arbitrating Antitrust Claims From Suspicion to Trust
Vera Korzun, Adjunct Professor at the Fordham University School of Law, has authored “Arbitrating Antitrust Claims: From Suspicion to Trust,” New York University Journal of International Law and Politics (JILP), Vol. 48, 2016, Forthcoming. In her scholarly article, Professor Korzun discusses the adjudication and enforcement of domestic antitrust laws by international arbitral tribunals.
My rabbi's Rosh Hashanah sermon this year concerned the important topic of healing the widening rifts in the Jewish community, which have broken out especially over the nuclear weapons deal with Iran. The problem he was talking about is not so much that there is disagreement about the advisability of this deal. Considering how troublesome and untrustworthy an adversary Iran has been, one would expect strong disagreements among supporters of Israel about how we should deal with that adversary.
Second Thoughts on Mediation Confidentiality
Recently, I posted a blog about the August 2015 meeting of the California Law Revision Commission (CLRC) in which as part of its study on the “Relationship between Mediation Confidentiality and Attorney Malpractice and Other Misconduct ” (Study K-402), the Commission requested that Staff Counsel draft legislation to include exceptions to mediation confidentiality.
Arbitrating Antitrust Claims: From Suspicion to Trust
Vera Korzun, Adjunct Professor at the Fordham University School of Law, has authored “Arbitrating Antitrust Claims: From Suspicion to Trust”. In her scholarly article, Professor Korzun discusses the adjudication and enforcement of domestic antitrust laws by international arbitral tribunals.
Yes, Make them Negotiate
A quick follow up to circle back on my proposal to have my 70 students negotiate the parameters of their ADR class. I it was great! They all negotiated and the group reached agreement. Here are the benefits I’ve seen so far.
Some Food for Thought Over Labor Day Weekend
Michael A. Zeytoonian
Over 95% of the cases filed in courts end up settling and never go to trial. If you know there is an overwhelming likelihood that your case will settle through negotiations or mediation – doesn’t it make sense to use a process designed to reach a settlement in a time and cost effective way?
“Perversion of Law” in Chinese Criminal Law – An Indiscriminate Legal Weapon Against Arbitrators
Article 399A included in the Criminal Law of People’s Republic of China, provides for criminal liability to arbitrators for “perversion of law” (Wangfa Zhongcai Zui). The provision has been a Part of the Criminal Law since 2006. However, on 24 June 2015, the Supreme People’s Court (‘SPC’) and the Supreme People’s Procuratorate (SPP) of China have undertaken the task of interpreting Article 399A (Further information about the process may be found here).
Rudeness Begets Rudeness!
I conducted a mediation the other day in which both sides professed that they wanted to settle the matter as the trial would be a “big distraction” but were stymied in their efforts due to personality conflicts. (They both wanted to settle as they did not want to have anything further to do with the other: to each party- the other was not to be trusted.) It reminded me of a divorce in which both parties want the result but are so busy hating each other that they cannot get past the hatred to work towards the mutual goal of ending the relationship.
Mediation in Turkey
F. Peter Phillips
A recent trip to Turkey included a delightful visit at the offices of leading Turkish law firm Hergüner Bilgen Özeke and several of its members, including H. Tolga Danisman. It was also a chance to get an inside look at a rapidly developing legislative and judicial initiative in commercial mediation in this troubled and beautiful country.
After twenty years practice and at the point of retirement, one of my mediator colleagues reflected on her experience of working with people in dispute. What struck her most forcefully was how rare it was for people to be able to disagree constructively. Disagreement inevitably ended up as conflict. At which point, people no longer had different points of view, they had a fight.
Scientific mediators attempt to tread the path between “Merchants of Doom” and “Merchants of Doubt” as “Merchants of Discourse” using multiple working hypotheses and multiple ways of knowing as their moral compass.
Keep Mediation and Arbitration Separate?
One topic which stimulated some forthright conversation recently was the use of hybrids whereby a mediator takes on the role of arbitrator if the matter does not resolve by mediation. In particular, we discussed the transition from mediator to arbitrator with the consent of the parties.
Reasoned Awards in International Commercial Arbitration
University of Missouri School of Law Professor S.I. Strong has written “Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy,” 37 Michigan Journal of International Law, 2016, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2015-18. In her publication, Professor Strong analyzes the requirement for reasoned awards in the context of international commercial arbitration.
Cyberweek en Espanol
Cyberweek es la conferencia virtual anual sobre Online Dispute Resolution. Cyberweek produce una gran cantidad de actividades y diálogos enfocados en temáticas de ODR -las intersecciones entre tecnología y las áreas de negociación, manejo del conflicto, mediación y diseño de sistemas de disputas.
The Transformative Lawyer
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The skills and underlying premises of transformative mediation are often contemplated in the context of mediation. But is there a place for using the skills of a transformative mediator as an advocate in a contentious litigation? Here is the story of Chris G., a recent Hofstra graduate who was a member of the mediation clinic where transformative mediation was the approach taught and used.