Without Compulsion: Teaching Mediators Empathy
When we are in conflict, our counterparts become our enemies. We block positive feelings we may have about them. We may try and bravely think of something good to say, but emotional leakage gives away the pain we are feeling. It is difficult to move our counterpart out of the enemy camp, and even more difficult to say something positive about him or her.
If somebody were to ask me (actually somebody did ask me) about the future of conflict resolution, my answer would have to include technology. Technology is already enabling us to do things that would have been unimaginable only, say, 20 years ago.
Truly Constructive Conflict
A friend and I were talking about how different people work and how their different ways of focusing on a problem can lead to new problems even as they all work toward the same goal. It was an interesting insight, and I wanted to use it as a way of understanding how conflict in groups or teams can be generated without people even realizing the source.
Quick Point on Empathy
I've been doing quite a lot of research and training lately on empathy. Needless to say, I think it is one of the most important words in existence, and it is even more important to practice it- regardless of your profession.
Benefit v. Purpose
My first mediation of 2015 settled based on pragmatism. It was a lemon law matter filed under California’s Song Beverly Consumer Warranty Act – Civil Code Section 1792 et seq. Plaintiff purchased the vehicle from a neighbor somewhat on a whim, thinking she would use it for commuting.
Is Mediation the Golden Opportunity to put a Square Peg in a Round Hole?
Jan Frankel Schau
I learned something last weekend about laws in other nations when I had drinks with a colleague from the U.K. and another from Ontario, Canada at the Board meeting of the International Academy of Mediators. In both of those Countries, the law protects an employee from termination unless there is cause (poor performance or wrongful conduct) or a legitimate financial need to downsize.
Mediation Advocacy – Countdown to a Successful Mediation
Barbara Reeves Neal
Lawyers and mediators sometimes fail to appreciate that a mediation requires as much advance planning and consideration of strategy as a trial. Too often, lawyers (and some mediators) pick up the file a day or two in advance (at best) and wing it, relying on their advocacy skills and smarts to negotiate their way through the mediation day.
Privatizing Mass Settlement
University of Georgia School of Law Assistant Professor Jaime Dodge has published “Privatizing Mass Settlement,” 90 Notre Dame L. Rev. 335 (2014); UGA Legal Studies Research Paper No. 2015-2. In her scholarly article, Professor Dodge examines privatized bilateral mass settlement as an alternative to both arbitration and multi-district litigation.
Beyond “Half Full or Half Empty” - Getting the Right Glass
The mediation field continues to debate its future with optimists and pessimist talking past each because fundamentally we do not agree on what constitutes mediation. The article takes a different perspective and suggests several ways to tackle the thorny issue of definitions along with using a practitioner to manage these divisive issues.
Truths in Advertising
Several times in the course of my life I’ve been involved with a cohort of people who envisioned themselves as a possible vanguard of fundamental social change even while they were pursuing professional careers In fact, many of the early mediation practitioners were also veterans of civil rights and anti-war activities who were drawn to ADR as an alternative path to justice, equality, and social change.
The Police and the Public: A Mediator’s Reflections
In a society where media coverage and public concern shift rapidly from one headline to another, tension surrounding the deaths of Michael Brown and Eric Garner seems to have exceptional durability and to be spilling into numerous venues, not least the conflict between New York’s police and its mayor. What insight can mediators offer as we seek to understand, and perhaps avoid, such escalating situations in the future?
Joint Sessions: More Arrows in the Mediation Advocacy Quiver
Daniel Ben-Zvi, Caroline Vincent
While private caucuses and shuttle diplomacy successfully produce settlements, attorneys who also choose to advocate directly to their opposition in joint session are availing themselves of more arrows in the attorney’s quiver. Mediators Daniel Ben-Zvi and Caroline Vincent encourage attorneys not to overlook this valuable tool and discuss strategies to use in conjunction with joint sessions to provide the most favorable resolution for their clients.
Recovering After Conflict - Book Excerpt
When people have lived with an ongoing conflict for a while, it is often hard for them to find a new identity. Conflict often becomes a part of people and fuels their fire. After conflict, it is important to take to heal and find ways to fuel a new fire. This book excerpt discusses that process.
Teaching in a World of Racism Without Racists?
As the Martin Luther King Jr. weekend comes to an end, and as a new semester is beginning, I am thinking about how we talk about race, and how we handle race, both in the classroom and in the larger society. Clearly the events in Ferguson last year, the unfortunately not uncommon killing of a young black man by a police officer coupled with the all too common failure to criminally prosecute the police officer, is just one aspect of the larger issues in our society.
Benefit Vs. Purpose
My first mediation of 2015 settled based on pragmatism. It was a lemon law matter filed under California's Song Beverly Consumer Warranty Act - Civil Code Section 1792 et seq. Plaintiff purchased the vehicle from a neighbor somewhat on a whim, thinking she would use it for commuting. Unfortunately, Plaintiff found herself taking the vehicle in for repairs quite frequently- too frequently for her liking. While Plaintiff thought the vehicle to be a "lemon", the defendant manufacturer took a hard look at the repair orders and found that many of the concerns were repaired after one attempt.
Neutral Analysis and Second Opinions
Corporate counsel—under seemingly never-ending pressure to contain costs—have a wide array of dispute resolution tools available to them, including negotiation, mediation, arbitration and litigation. There are other devices, however, that merit consideration at any stage of a dispute.
“Investment Arbitration Is Now On Broadway, And The Critics Are Not Being Kind”
That was the assessment of Constantine Partasides QC, founding partner of Three Crowns, during his keynote address to the joint ITA-IEL conference. According to Mr. Partasides, there is a developing consensus among states that it is acceptable, and even virtuous, to challenge investor-state arbitration as an infringement on the rights of the public to pass laws through their democratically-elected representatives.
Fifth Circuit Reverses Course in Construction Defect Case
The Fifth Circuit Court of Appeals has reversed its prior decision affirming summary judgment in favor of an insurance company that refused to pay an arbitral award in a construction defect case. In Crownover v. Mid-Continent Casualty Co., No. 11-10166, a Texas couple, the Crownovers, initiated arbitration against the company that built their defective home, Arrow. After an arbitrator ruled in favor of the homeowners, the builder filed for bankruptcy protection. The couple next sought to recover damages from Arrow’s insurance company.
The Future of Mediation: Toward a Conflict Revolution
We evolve, not only as individuals, but as couples, families, groups, organizations, societies, economies and polities, both in the nature of our conflicts and in our approaches to resolution, moving from simple to more complex, nuanced and skillful forms. But in order to evolve, it is necessary for us not merely to settle or resolve the particular conflict we are facing, but also its hidden coda, essential nature, or binding principle, by learning the secret lesson it took place in order to teach us.
Mediator Horror Stories
I’m in the process of finishing up an article inspired by a horrific local mediator who, as a result of his “mediation” actions, now resides in the state penitentiary.
U.S. Supreme Court Asked to Review Case Where Mediator Conflict Existed
The United States Supreme Court has reportedly been asked to review a federal court’s order refusing to set aside a jury’s verdict where a court-appointed mediator failed to disclose his close personal relationship with a partner at the law firm representing several of the defendants. In CEATS Inc. v. Continental Airlines, Inc., et al., No. 14-681, CEATS filed a patent infringement lawsuit in the Eastern District of Texas against Continental Airlines, Ticketmaster, and a number of other corporations over the companies’ alleged use of CEATS’s technology in certain seat selection software.
The Big Irish “What If?”
A couple of years ago in January I wrote a post on likely developments in Ireland in the New Year which, if I recall correctly, had the expression “High Hopes” in the title. Those hopes related primarily to the publication of a new, comprehensive piece of legislation on mediation and the impact it might have upon the practice and profession of mediation.
Fees of the Successfully Challenged Arbitrator?
In its decision of 17.2.2014, the Austrian Supreme Court decided on a claimant’s request for reimbursement of the portion of the fees advanced to the arbitrator whom it had successfully challenged during ongoing proceedings and on his liability for frustrated costs caused by the challenge and the appointment of a new arbitrator.
Educación y Paz Integral Sustentable y Duradera - en Espanol
Eduardo Andres Sandoval Forero
En el presente capítulo exponemos algunas ideas sobre la paz integral, su sustentabilidad y durabilidad. Abordamos la relación de la paz integral con la educación, entendida como un subsistema en el que se presentan conflictos, violencias, variedades áulicas y dinámicas de respeto y aplicación de los derechos humanos, de tolerancia, reconocimiento a las diversidades y praxis de cultura de paz.
Hope for The Future of Mediation Internationally
My own work has taken me into the legislatures of many of the assemblies and parliaments in the countries of the United Kingdom to train and coach members in “scrutiny skills”. I believe that many politicians do understand the real value of this training at an individual level. I believe that they wish to move away from the time-consuming, energy-depleting, morale-sapping and often futile game of positional politics. They sense that this change is what their constituents want too.
Looking to the Future: Is There Still A Place For Proactive, Early Intervention Mediation in Our Changing Field?
In the author's experience as a mediator in over 4,000 cases and in almost thirty years of working with advocates, consulting attorneys, and collaborative lawyers, she believes that all forms of mediation are valuable processes which each have their place in helping parties move forward in their conflicts. She takes no position on the "best" process, only that self-determination remains the ultimate goal of any form of mediation. She is hopeful that mediators, participants, and attorneys will re-examine the trend of late intervention, lawyer-centric mediation and bring pro-active, early mediation back as one of the important focuses of the mediation field.
The Critical Role of Mediation in Bridging the Access to Justice Gap
For more than a decade, Colorado has worked to provide access to justice (ATJ) for its indigent and modest means citizenry. Despite efforts by the bar and the courts, the state continues to struggle in its pursuit. What has been so often overlooked, however, is how mediation provides the courts and litigants an affordable, efficient option to resolving many disputes.
Alimony in PA: Friend or Foe in Divorce?
Alimony has become the "black sheep" of divorce law, often viewed as evil, spiteful and punitive. In my opinion, these perceptions are greatly misguided. I see alimony as entirely moral and appropriate, but only when it is necessary. Read my article to understand why.
Everyone experiences conflict in their life so it should be no surprise that it also occurs in the workplace. However, organizational conflict theory says there are several varieties of conflicts within a given enterprise, with interpersonal being only one type. Departments have conflicts with one another, senior managements have power struggles and teams/organizations even have conflict with other teams/organizations.
On Forced Arbitration
Over the past year or so, critics of consumer and employment arbitration have coined a new term for what ADR scholars have historically called mandatory pre-dispute arbitration: “forced arbitration.”
Taking a Fresh New Look at Conflict
Jan Frankel Schau
The New Year is a great time to push “refresh” on all subjects. I spent the last week going through my (now adult) children’s closets and getting rid of the things that we will no longer return to: huge computer systems with no screens or monitors, outdated televisions which can’t play cable, the expensive, must-have tennis shoes that every boy needed in High School a decade ago. I also took the last week or two to purge old paper work (as my son says–no modern businesses even use “file cabinets” these days).
Was there ever an opportunity for peaceful resolution of this civil rights conflict? We see President Johnson acting at times a little bit like a mediator between King and Governor Wallace, but no real attempt was made at creating a dialogue that could resolve the dispute.
Who's Running the Show?
Noted mediation thinkers such as Robert Bush and Joseph Folger write an empassioned challenge to the profession “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination”, arguing that mediation has shifted radically away from the party self-determination which is its essence.
The Mediator as Process Designer
A mediator is a facilitator who has the skill to work around or overcome obstacles to settlement created by parties or their counsel. In particular, when negotiations have gotten the parties close to a settlement, the skilled mediator is able to keep negotiations moving even when the parties are prepared to give up.
Violencia Familiar y ODR - Video en Espanol
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Maria Eugenia Sole
¿Cómo podemos definir la violencia familiar? En primer lugar, podemos decir que la violencia familiar o violencia doméstica es cualquier forma de abuso entre los miembros de una misma familia, de un miembro a otro miembro. Este abuso generalmente causa un daño físico o psicológico a este miembro de la familia.