What Movie Do You Want To Make?
The arc of a litigated case has many narratives, particularly when it comes to settlement opportunities. While some cases fall into standard, often repeated formulas, others cannot be scripted. Yet, there are moments in the cycle of a case where some litigators simply react to events as they unfold rather than actively creating the settlement drama. The drama of a case is like storytelling in a trial, where events unfold in front of an audience of people who are in a position to evaluate and put a price on the story. Knowing what scripts are available in advance will assist in being less reactive and more resilient in achieving a better process and successful resolution.
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)?
Lessons in Mediation: Use Your Words
How often have found yourself in conflict with someone who you felt was “acting like a spoiled brat” or “behaving like a child”? If you have, you’re in good company. You’re also closer to understanding these situations than you thought you were, for difficult behaviour in adults often reflects strategies learned as children.
Bilingual Mediation, Part 2
As a dispute resolution practitioner, one must constantly assess oneself in various elements, aspects and total competency before taking a task, assignment, or mission to manage the process of mediation where parties are not able to communicate in a culturally competent level. To be an effective bilingual mediator, one should possess the cultural sensibility and linguistic competency to quickly create a rapport that subsequently opens parties up for amicable dialogue.
The Case for Forgiveness in Legal Disputes, Part 2
The case for forgiveness in legal disputes. Without emotional healing and forgiveness, even when a case is settled in mediation, parties are often left with more hostility and mistrust than when they began. This article discusses the importance of encouraging forgiveness in clients.
Avoid Disputes Created by Misunderstanding Contracts
Recently I've seen a number of mediation situations where contract issues are in dispute as a result of unfulfilled expectations by a customer. In each of these cases an employee of the company met with their prospective customer and discussed the customer needs and the benefits of the using their company or purchasing their product.
Mediation Feedback: Who is it For?
This article is the result of switching seats – moving from practitioner to party. Every mediation service I've worked for sends out feedback forms. Sometimes immediately after sessions, sometimes a few weeks later. This experience made me question the importance of mediation evaluation.
Recently, numerous websites marketing bilingual mediation services in the States have appeared. To many, this may be a negligible appearance, but to some, it is a core part of their own breath and heartbeat, because they are either active amongst the community that inherited a culture and language other than English; or they are living isolated, sustained by a culture and language other than English; for instance, the deaf community and perhaps the blind community as well.
The Case for Forgiveness in Legal Disputes
Although the notion of forgiveness may seem far afield from the world of law, forgiveness is a powerful and important tool for conflict resolution. Litigants need legal solutions, but they also need peace, healing, and closure. Forgiveness provides a vehicle for achieving all of these.
How Do You Keep the Parties at the Mediation Hearing Until Settlement?
This week, I presided over two hearings where the parties were in a hurry to leave. In one, the case was settled, but in our collective haste, not one of the parties or their lawyers caught the fact that the short-form settlement agreement expressed an agreement to pay $00.00. This left the Plaintiff’s lawyer concerned enough that the following day he sent an email revoking his client’s acceptance of the offer!
Why Learning Conflict Resolution Skills Won't Help
The way you view conflict has a tremendous impact on the way you respond and react to the conflicts in your life. Learning better, shinier, or newer conflict resolution skills won’t make the kind of difference you think it will, unless you also reconsider what you believe about conflict in general.
So, once again, in recalling the facts surrounding a dispute, beware; our memories are not what we think they are, and unknowingly, our memories will revise the history of what happened and/or how it happened. To resolve the dispute, it will help NOT to be adamant about the facts giving rise to it. Rather... focus on the future to get it settled. Our memories, while they may be time travelers to the past, have not yet become time travelers to the future.
5 Things You Didn’t Know about Class Action ADR
For both plaintiffs and defendants, class action litigation is time-intensive, costly and requires close oversight from start to finish. As a result, parties are increasingly turning to alternative dispute resolution (ADR) providers to manage many aspects of class action litigation. The value that ADR can offer to parties extends well beyond reaching a settlement.
In the early days of personal computing, the development of the “graphical user interface” was accompanied by the acronym, WYSIWYG: “What you see is what you get.” While some frustrated computer users know that this was never entirely true, or might only have been true for the computer boffins who designed the interface, the idea was nevertheless an important one: what was there on the surface was what you had to deal with – folder and files and trash cans were all there on the virtual “desktop.”
Best Practice Guide on the Use of Mediation in Cross-Border Disputes
Jamie Walker, Zeno Daniel Sustac
Sometimes, the act of justice leaves one or more parties being unsatisfied with a judicial decision and generates a resolution based on the “loser-winner” paradigm. The consequence is often, in addition to the preservation of their conflicted status, the prolonging of the expensive and stressful judicial dispute. Mediation, as an alternative method of conflict resolution, starts with the principle of seeking to most capably satisfy the parties’ interests with a sustainable agreement based on free will. This approach, in the context of globalization, confers mediation with the quality of being an effective cross-border and cross-cultural method of conflict resolution. This article is an excerpt of a thesis analyzing the benefits and unforeseen consequences of mediation in cross-border disputes. This article focuses on the importance of training mediators on cross-border disputes.
Third Party Assisted Negotiation and High Pressure Settlement of Disputes
After twenty years of marriage, two parties separate. They are each college educated and gainfully employed. The parties have two children whom they hope to send to college, ages 13 and 15. They have amassed many assets during their marriage. This articles discusses how our current legal system does not have an effective way of dividing the mutually valued sum of these two people's lives.
Compassionate or Benevolent Divorce
This is an essay on compassionate divorce and the role of lawyers in the divorce or dispute resolution process. For the parties, the core of my system is to negotiate for the welfare of both sides. For the lawyers, the core is to throw away the law books and let imagination help the lawyers find creative resolutions to their cases.
On Being Understood
Michael P. Carbone
Continuing this month with our review of the Seven Habits of Highly Effective People, Habit No. 5 is to "Seek First to Understand, Then to Be Understood." Rarely do I see advocates in mediation who have mastered this habit. The duty of zealous advocacy almost always prevails, and lawyers seem to be generally better at speaking than at listening.
How Your Memory Rewrites the Past
Stephanie West Allen
Since the past is usually an important factor in a dispute, understanding the process of memory can be helpful to anyone involved in the dispute and its resolution. Although the malleability of memory is not a new topic here in this blog, a reminder can be of value.
What is Sustainable City Development?
By 2025, Malaysia intends to be a developed, not a developing, nation. In addition to explicit economic development targets, there is also growing environmental awareness (with a national commitment to becoming a low-carbon society), as well as an emerging commitment to social development. Our question, then, is "has all of this translated in some measurable way to more sustainable patterns of city development?" And, what more can be done to ensure that this happens?
ADR, Access to Justice and the RPM
I have been mulling lately on the connections between ADR & access to justice and how the "reasonably person model" (RPM) might inform a conflict resolution dialogue. Some ADR professionals may be wary of such a dialogue because the "solution" may be posed as free or cut-rate ADR processes.
The Subtleties of Memory
All disputes are premised on what occurred in the past, with the view of resolving matters by looking forward. We are often told not to "dwell on the past" but to "look forward" in trying to figure out how to best resolve the issues. For some participants, particular older participants, it may not be so easy to quickly look to the future.
While exaggerated, television depictions of international diplomacy has its roots in reality. I heard a talk the other day about the history of negotiations between the US and Iran over Iran's nuclear program. Those negotiations broke down a number of times over the past 10 years, in part because the negotiators for each side did not always have the full backing of their respective governments.
The Argument As A Persuasive Tool In Negotiation
Mediation, like the sketches in Monty Python, is like theatre. In order to succeed, the actors must keep the scene going forward without denying the other actors the opportunity to be heard. Arguments work on the stage provided they are done in a way that maintains the flow of the scene, allows conversation to be fluid, and doesn’t box in the other players.
What is Mediation?
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.
I've heard a number of evangelists of the mediation world talk about the seemingly limitless future of the mediation process. That future seems to depend on the public finally becoming more aware of the possibilities of mediation to resolve not only conflicts that have already worked their way through the court system, but also conflicts that have never even made it to court, or that might be unsuitable for court.
The "Paradox of Choice" and the "Sweet Spot"
The other day, I came across an article on the PBS NewsHour website entitled "Is the famous paradox of choice a myth" by Barry Schwartz dated January 29, 2014. Evidently, there is much controversy whether too many choices create a paralysis.
Marital Mediation is Not Therapy
Dr. Lynne C. Halem
Mediation is not therapy. Mediation is a problem solving process in which the three participants, husband, wife, mediator, determine the issues to be tackled, what information is needed to embark on the process and what were the objectives to be gained.
Writing a "Winning" Mediation Brief
Like other briefs, a quality mediation brief starts with a careful evaluation of the audience. Who will see your brief? Who is making the settlement decision? Who are you trying to influence? Too many mediation briefs try to influence only the mediator. Every mediation is different. Every case has its own settlement personality. But there are recurring themes and issues that confront attorneys whose clients are heading to mediation.
Do You Engage Clients in a True Risk/Benefit Analysis?
In the theme of Valentine’s Day, I attended a networking meeting of a group of lawyers today who almost uniformly reported that what they loved about their jobs was bringing solutions to their clients who presented them with a wide array of legal problems, ranging from tax indebtedness to estate planning to white collar crime to divorce.
Conflict from Workplace Behaviors
Years ago a wonderful little book appeared called Everything I Need to Know I Learned in Kindergarten. It was mostly about basic consideration for others such as taking turns, sharing, and not wrecking other people’s possessions.
Student Writing Competition in ADR
Here's a great opportunity for current students- the annual Student Writing Competition in ADR organized by the Association for Conflict Resolution for Greater New York (ACR-GNY) and generously sponsored by the JAMS Foundation will be held once again this year.
Whose Fault Is It?
Shannon Rios Paulsen
When parents are arguing, children are typically caught in the middle. The children try to figure out who is at fault and what they can do to stop it. This article suggests that what children need is not a place to assign blame, but a place of peace.
The Good, the Interesting, and the Modern
It is Friday afternoon, and I am bored. Being desperate, I decided to review the Daily Journal's supplement of "New California Laws for 2014." Not only did I manage to stay awake throughout the entire 70 pages, I actually found some interesting laws.
Are You Beating Around the Bush?
When we are in conflict, some of us avoid coming to the point about something we think may upset the other person. The idiom beat around (or about) the bush describes the sort of prevarication when we delay or are evasive about raising difficult things. Or, it may be we act this way when we are having challenges answering a hard question.
Is that a Threat?
A body of previous research has established important differences between resource- and value-based conflicts, particularly when it comes to effective resolutions. A new study by Kouzakova and colleagues (2014)1 of Leiden University sheds light on the motivational underpinnings of these discrepancies.
What Went Wrong with Mediation?
Presenting recently the results of the study on ‘Rebooting’ the Mediation Directive, Giuseppe de Palo talked about the “European Union mediation paradox” – the existence of a “highly acclaimed, efficient, effective process that very few people use”, in his own words – and the need of “rebooting” the implementation of mediation process in the EU in the light of the limited effects of current legislation upon the number of civil cases mediated.
Curso de Posgrado
Nuestro siglo nos presenta permanentemente situaciones paradójicas. La Globalización puede lograr que los avatares económicos de Gambia tengan decidida influencia en Bolivia, pese a que crecen y se multiplican los medios de comunicación, cada vez las personas se sienten más solas. La fragmentación del saber llega hasta límites tan increíbles que el grado de sofisticación en las especialidades parece no tener fin y a veces se pierde la noción del todo por el imperio de las partes. Internet irrumpió en nuestras vidas para quedarse, como sobreponernos al alud de información, de qué manera articular los avances tecnológicos con todas las profesiones.
Mediate is Top Ranked Mediation Website
Click here for MORE ARTICLES
Mediate.com is ranked the top mediation and dispute resolution website by Alexa in its February 1, 2014 global website rankings. In business since 1996, Mediate.com has over 15,000 searchable mediation articles, blog posts, news items and videos. Mediate.com also hosts the most used mediator directory and offers mobile friendly website development, professional promotional services and cloud-based case management systems.