Commercial Mediation Articles
Looking to the Future: Complexity, Chaos, and Making Connections
Diversity matters! For mediation to develop in fresh and vibrant ways, we need to think and act creatively. Some of the best ideas come from making connections – for example, between mediation, sciences, and the arts – and through using these connections in practice. Bernie Mayer's article in the Mediation Futures series struck chords with me, with its references to complexity science, chaos, and the importance of adapting the ways we mediate to meet diverse needs, instead of expecting participants to fit in with the particular way we choose to mediate.
The Future of Mediation
It is impossible to talk about the future, present or past of mediation without putting some sort of definition to that term. Clearly, mediation as dispute resolution has been around as long as disputes. When defined as a process that involves a designated third-party to assist in the resolution of disputes, mediation can be considered an old process.
The Mediation Future
So long as market users , i.e. the true decision makers, remain dependent on their legal counsel to select, direct and control the mediation/negotiation process, there is likely to be little advancement in public education about the importance and availability of mediation.
Is Conflict Like Driving?
Recently, the Kluwer Mediation Blog posted an interesting discussion about the cognitive biases at play during a dispute. What caught my interest is that the author- Charlie Irvine- used the example of driving to make his point.
The Business of Mediation
Many mediators are drawn to this field because they have a calling to help. This article reminds us that the work we do is valuable. It is important to see mediation as a legitimate business--and then the public will begin reflecting that view.
Negotiation Advocacy and the Future of Alternative Dispute Resolution
One promising and yet underdeveloped segment of the alternative dispute resolution movement is negotiation advocacy. Roles such as collaborative attorney and conflict coach are allowing ADR practitioners to enhance their clients’ experience at the negotiation table with communication coaching and a style of advocacy that is cooperative in nature.
F=T(Q+I) F = The Future; T=Trust; Q=Quality; I=Information
Deborah Masucci, Michael Leathes
The Future of mediation hangs on several factors. Probably the most important is Trust. If mediation is not widely trusted by users, it has a mediocre future. This is simply because mediation depends on the parties, who usually do not trust each other, fully trusting the mediator and the mediation process. Unfortunately, mediation appears to stand some way down the trust stakes.
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.
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.
Mediation: Centerpiece of World Recovery
This articles examines the future of mediation as a tool for global improvement. There are a variety of venues where mediation might prove to be the only answer for entrenched conflict.
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.
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.
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.”
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.
Why are Attorneys Afraid of Conflict in Mediation?
The mediation process has evolved significantly over the past few decades. Mediation was initially viewed skeptically by trial attorneys who viewed themselves as warriors who preferred to try cases rather than settle them.
Re-conceptualizing the Work as Something Bigger than Ourselves--Reconciliation
After toiling in this field for 30 years, I have the strong sense that the patina has worn off and the institutions we have created are fraying and unsustainable in their current manifestations. I’m in good company in this perception; however, that doesn’t mean there is no future for mediation.
Najar on Dispute Management 2.0
F. Peter Phillips
Najar, his colleague Michael McIlwrath, his former colleague PD Villarreal, and others at General Electric were responsible for pounding into my head two distinctions. The first was the concept of “dispute management” rather than “dispute resolution,” and the other was “Early Dispute Resolution” rather than “Alternative Dispute Resolution.”
Non-Judicial Means of Collective Redress in Europe
S.I. Strong, Associate Professor at the University of Missouri School of Law, has published a book chapter entitled Non-Judicial Means of Collective Redress in Europe in Collective Redress in Europe (Oxford University Press, anticipated 2015); University of Missouri School of Law Legal Studies Research Paper No. 2014-29. In her book chapter, Professor Strong analyzes large-scale arbitration and other non-judicial avenues for collective redress in Europe.
Some Good Questions
In 1998, commenting on the hot controversy about the “Rand Report’s” finding that certain mediation programs did not save time or money (measured in terms of lawyers’ work hours), Professor Craig McEwen argued that it was the wrong question to ask whether “mediation works.”
Use and Perception of International Commercial Mediation and Conciliation
The project was constructed with two goals in mind. First, the study attempted to discover and describe current behaviors and attitudes relating to international commercial mediation and conciliation so as to set a benchmark for further analysis in this field. Second, the research attempted to determine whether the legal and business communities thought an international instrument in this area of law would be useful and if so, what shape they believed that document should take.
What is a “Tiered Dispute Resolution Clause” and What Options Does it have to Offer?
Michael A. Zeytoonian
Tiered dispute resolution clauses in contracts -- this is the first step in providing clients with alternatives to court and litigation. It gives parties value in three ways: (1) It gives them the opportunity to work together on how they will resolve a dispute; (2) it allows lawyers to educate their clients on what their options are, how they work and what their pros and cons are while the parties are calm and agreeable; and (3) it gives the parties more control over the process as well as the outcome.
Arbitration in Evolution
The arbitration survey conducted by Professor Tom Stipanowich and the Straus Institute revealed current practices and trends in arbitration. This article specifically examines the demographics of the arbitrators and questions whether these demographics are the best for the business.
$1B Settlement Reached in Stryker Hip Implant Mass Tort
Thousands of plaintiffs in New Jersey and around the country who had surgery to remove failed hip implants settled their claims November 3 in a deal that is expected to pay out more than $1 billion. It was reached after four months of negotiations with Stryker mediated by retired U.S. Magistrate Judge Diane Welsh, a JAMS mediator based in Philadelphia.
The Growth of Arbitrator Power to Control Counsel Conduct
There have been increasing calls over the past few years for an international code of conduct for counsel in international commercial arbitration, and for arbitrators to have more power to control counsel conduct. The growing concern is related to significant changes that have taken place in international arbitration practice.
Reflections on the State and Future of Commercial Arbitration
What may be most striking about these developments is that, until fairly recently, cost- and time-saving were often regarded as among the leading potential benefits of arbitration and a primary basis for distinguishing arbitration as an alternative to litigation. The growing prominence of these elements as perceived negatives of arbitration is therefore particularly troubling.
I was interviewed the other day for a possible article on court-ordered mediation. In discussing this topic, it's hard to avoid talking about such questions as settlement rates in various kinds of programs, or how mediation programs affect the workload of the courts
The Urgent Need For Data: Are the Needs of Users and the Dispute Resolution Market Misaligned?
Deborah Masucci, Michael Leathes
Seismic tremors emanating from London's Guildhall on October 29th 2014 are set to send change-inducing shockwaves, around the international dispute resolution community. It is widely known that dispute resolution's customers, the disputants, have different needs and interests from the supply side of the market such as external counsel, ADR providers, and educators. The shock comes from the initial data generated at this Convention, suggesting just how far out of alignment the supply side may be with the views and needs of the users. Additional data is needed on an international scale.
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.
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.
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.
The Trading Zone in Mediation of Employment Disputes
Jan Frankel Schau
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.
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.
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.
Harvesting Data to Shape the Future of International Dispute Resolution
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Deborah Masucci, Michael Leathes
Among the early words of wisdom expressed by Sherlock Holmes was this classic line: "I never guess. It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts." And so it is with dispute resolution. There is a paucity of reliable statistics out there to enable users of dispute resolution services, as well as advisers, providers, educators, adjudicators and policymakers, to understand how best to prepare and steer ourselves for the future.