How Do You Manage the Unrepresented Party in Litigation?
This week, I had two hearings with unrepresented Plaintiffs. These can be doubly vexing when the Lawyer representing the Defendant attempts to bully the Plaintiff by his/her superior knowledge of the process and the law. Just as on the playground, I find that bullies do not usually win out in life, though they can certainly inflict some pain at the moment.
How to Focus That Wandering Mind
Stephanie West Allen
Below is an article with a good overview of a skill and habit that is helpful, probably essential, to both parties in dispute and conflict professionals: focusing a mind that's wandering. The article also explains some of the neuroscience underlying focus and wandering.
Say you're planning an excursion to the beach. Would it make sense to suggest that the best way to get there would be to head in the opposite direction, toward the desert? When your passengers question that route, the only excuse you might have to offer is that after they spend a few hours driving around in the dry heat, they will appreciate eventually getting to the beach even more.
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.
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.”
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.
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.
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.
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.
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.
That Made My Blood Boil
Did you know that there was a belief that blood actually boils when people become angry or excited? We know that is not true and even has a sort of sci-fi feeling to it. However, that made my blood boil is an expression used by some of us when commenting on something that highly offends us. Wiktionary describes the idiom to mean: “To cause a person to feel angry or very annoyed, especially in situations in which one cannot fully display that feeling to others”.
Good Judgment -- Handy Mediation Hint
Good judgment skills are crucial in mediation and investigation. Misread a situation and it can be fatal. Act without prior consideration and it can destroy rapport. Misjudge parties and they may forgive you, but it will take a while before they trust you again.
Why Your Leadership Title Means Zilch
I remember my mother making me write letters to some youth about something that I did when I was a teenager. She said to me, “You’re a leader now, other kids will be looking up to you so you need to set a good example!” I didn’t want to be a leader, I had never asked to be one. It’s not something that I had consciously signed up for. It was the day I was told to become a conscious leader.
IBA Guidelines on Party Representation in International Arbitration
F. Peter Phillips
The International Bar Association has been responsible for several definitive guidelines to assist practitioners in international arbitration. These include the 2010 Guide for Drafting International Arbitration Agreements, the 2010 Rules for Taking of Evidence, and the 2004 Guide on Conflicts of Interest. To this we now add the IBA Guidelines on Party Representation in International Arbitration, adopted by the IBA Council on May 25, 2013.
Hey Kid, Stop Using Twitter During Negotiation Standoff
Social media has increasingly become part of crisis and hostage situations. The role social media ranges from messages being posted by the subject leading up to the incident, the subject and victims posting during the incident as well as the police, and finally the police sharing information post-incident.
Apple & Samsung Agree to Mediation
Electronics giants Apple, Inc. and Samsung Electronics Co. have reportedly agreed to engage in mediation over the companies’ latest technology dispute. In Apple Inc. v. Samsung Electronics Co. Ltd., No. 11-1846 (N. D. California), the two smartphone manufacturers are once again at odds over patented technology related to Samsung’s Android operating system.
What Deal Lawyers and Dispute Lawyers Can Learn From Each Other
F. Peter Phillips
It sometime sometimes seems that the community of business lawyers is divided into two broad tribes: The lawyers who handle the deals, and the lawyers who handle what happens when the deals fall apart. Unfortunately, these two tribes too seldom mix. They don’t go to the same ABA meetings, their spouses don’t dine together, their kids are on different soccer teams.
Should Governments Negotiate With Terrorists?
The priority of governments after a terrorist attack is to ensure the safety of the population, stabilize the state, and make sure that no other attacks will follow. Debates about whether governments should enter talks with terrorists produce a lot of heat, but a unanimous decision is never reached, mainly because of the emotional aftershock of an attack.
Financial Consumers Can Only Avoid Arbitration By Using A Credit Union
Disputing would like to invite you to check out Liz Kramer’s recent blog post entitled CFPB’s Preliminary Report: Financial Consumers Can Only Avoid Arbitration By Using A Credit Union. In her post, Ms. Kramer discusses the surprising and expected findings included in the Consumer Finance Protection Bureau’s 168-page preliminary results regarding consumer financial arbitration.
Sawubona, Temple and In Medias Res – My Three Words for 2014
Another year has come and went out the door. As I sit here, on the beginning of the new year, reflecting on this past year I can’t help but feel lucky to be here! There have been lots of exciting things that have happened this year (both personally and professionally) and lots of scary, painful things as well (like breaking my collarbone and getting into a fairly serious motorcycle accident).
Elder Divorce Mediation
Dr. Lynne C. Halem
As the remaining baby boomers turn 50 this year, we continue to see a significant increase in divorce and separation among the general population of those in that 50-plus age bracket.
Do You Really Want This Job?
More people need to know that mediation exists and how to access it, because most of these documents include a mandatory arbitration agreement that precludes your right to your “day in court” if a dispute arises. In general, these agreements are not to your advantage.
Begin With the End in Mind
Michael P. Carbone
Stephen Covey became famous twenty-five years ago for writing The Seven Habits of Highly Effective People. I recall hearing about this book a few years later during my first mediation training.
Hard Line Negotiation Leverage Trumps Fair, Reasonable
This article discusses a classic negotiation battle between leverage and standards. The buyer appears to have strong leverage (probably a really good Plan B to the Plan A with the seller). And the seller has strong independent, objective standards ˆ powerful justifications for a higher sale price.
Is Collaborative Law a Good Fit for You?
Adryenn Cantor, a San Diego, CA attorney included an excellent list of five questions for people to ask themselves to determine if they are a good candidate for using Collaborative Law in a divorce case.
DIFC Arbitration Law
On 15 December 2013, the Dubai International Financial Centre (DIFC) Authority enacted Law No.6 of 2013 (Arbitration Amendment Law) which amended the DIFC Arbitration Law to make it clear that the DIFC Courts have the power to stay court proceedings in favour of a foreign seated arbitration.
Opening Statements by the Mediator
Arnold W. Zeman
It's important in the mediation process, irrespective of the model, for the mediator to explain how she works in an opening statement. There are two reasons for this: participants have a right to know what to expect from the mediator and how the process will unfold; and, participants have a right to make an informed decision on whether the process will be helpful to them.
Arbitration Case Update
This article discusses the case of Piallo GmbH v Yafriro International Pte Ltd,  SGHCR 20 (“Yafriro (AR)”). The issue was whether a claim on certain dishonoured cheques paid pursuant to a Distributorship Agreement could avoid a stay of court proceedings for reference to arbitration pursuant to an arbitration clause in that agreement.
AudioBlog: Animal Conflicts and Alternative Dispute Resolution
In this episode, the co-speakers will introduce listeners to the subfield within Alternative Dispute Resolution of animal related conflicts. Debra Hamilton and Gary Norman will tell you the what, where and how to include animal related conflicts in to your practice and how you can use the full range of tools available to alternative dispute resolution practitioners to assist these parties find their own solution to such conflicts.
How Do You Manage Multiple Defendants?
I was up late last night mediating a challenging case where an employee sued her former company after it had been sold to another Company. Though the first company had sold all of it's assets, there was a contract that specifically stated that the successor company did not purchase or assume any of it's liabilities. Luckily, there was some insurance coverage for the old company, since it no longer had any assets and was defunct.
No Environment is Neutral
Mediators are often concerned with their own neutrality and with ensuring the processes that they facilitate are 'neutral' or favour no particular side. But environmental psychologists understand that no environment can be totally neutral. People are affected by their environments.
Familiarity in Mediation
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One of the more interesting assignments I had this year required me to mediate a dispute between two mediators. In preparing for this mediation, I wondered whether my usual conflict resolution techniques would work. These two experts were already wise to all of the usual mediators' tricks. What could I possibly suggest that they had not thought of already?