Featured Blog Posts
Good Practice Framework
“Universities should include mediation in their framework for handling student complaints,” says the IOAHE – and so say all of us at CMP! The formal process is long, complex and saps everyone’s time and energy; most students with complaints about staff behaviours and attitude would prefer to talk it out, in our experience.
Federal Arbitration Case Update | Bound and Determined
APMM contracted with Noatex to build a building and Noatex subcontracted with King. When Noatex deemed King’s work inadequate, King filed a stop work notice and informed APMM that Noatex owed King $260,000. This matter resulted in APMM’s interpleading the money while the federal court in Mississippi figured out who was entitled to what.
Applied Decision Theory
Richard Birke, a law professor at Willamette University, gave a talk at the ABA Dispute Resolution conference expressing frustration with the term "Alternative Dispute Resolution." The term is too limiting to describe the many ways that the skills of negotiation, mediation, and other forms of conflict resolution can be applied in practice.
Just Be Reasonable
When a person is very angry, the part of their brain associated with being reasonable and articulating reasonable thoughts more or less shuts down. Closed for business. Sign on the door — go away, can’t do this right now.
This blog entry arises not so much from any mediation, but from one aspect of regular social encounters that is all too normal a part of negotiation and mediation. As the title suggests, it’s about the role of inquiry, asking questions – not merely gathering information, but going beyond that in the expression of interest in one’s social contacts and especially the other disputant.
To Build Rapport- Laugh Together!
Well- we missed it! March 20 was International Day of Happiness. Evidently, it was created by a United Nations Resolution passed at its 118th plenary meeting on June 28, 2012, declaring March 20th of each year to be the holiday. As one might guess, the resolution was promoted by the Kingdom of Bhutan which has a Gross National Happiness Index.
Domestic Violence Finding Overrides Agreement to Mediate
A case in the Appellate Division of New Jersey Superior Court stands as a reminder of the complexities of family mediation when domestic violence is involved. Indeed, the court found that a finding of domestic violence can trump a requirement to mediate.
Fifth Circuit Rules Arbitrator Exceeded His Authority in Contract Dispute
The United States Court of Appeals for the Fifth Circuit has held that an arbitrator exceeded his authority in a contract dispute. In PoolRe Insurance Corp. v. Organizational Strategies Inc., No. 14-20433, Organizational Strategies Inc. (“OSI”) entered into a contract with Capstone Associated Services to create a new captive insurance program.
Good Practice Framework
Universities should include mediation in their framework for handling student complaints! The formal process is long, complex and saps everyone’s time and energy; most students with complaints about staff behaviours and attitude would prefer to talk it out, in our experience.
The Value of Joint Sessions
Over the last few years, the trend in California has been not to hold joint sessions in mediation but, to conduct the entire mediation using separate sessions so that the adverse parties are never in the same room at the same time.
The Future of Mediation Careers
Barry Goldman poses that an analysis of the health of the field is looking at the current open job openings for that field--he uses this as a divining rod to look at the future of the mediation field.
Moving from the Shadows into the Sunlight
Perhaps my biggest learning on my own journey to healing and recovery is that I have a choice at any moment, to continue to stand in a shadow of my own creation, or to change my attitude so I can move into light, trust, faith and optimism. Your attitude makes the difference.
This is kind of a chicken and egg situation. Which came first, the possibility of reconciliation or choosing to use the Collaborative process?
Courts are Limited When it Comes to Problem Solving
Michael A. Zeytoonian
Recently I represented a party in a dispute over some business equipment. This case would have been better resolved by the parties either directly communicating with each other or communicating and negotiating with each other through their lawyers. But before that could be done, one party opted to file a complaint in federal court and as a result, we were engaged in court proceedings.
Reaching Agreement on the Nile
Egypt, Ethiopia, and Sudan recently signed a Declaration of Principles aimed at resolving an increasingly contentious dispute over Ethiopia’s ongoing effort to build the $4.6 billion-dollar hydroelectric power plant project called the Grand Ethiopian Renaissance Dam, Africa’s largest. The Declaration does not seek to resolve the larger question of how the overall waters of the Nile will be shared. The fact that the Declaration was signed is an important accomplishment. I want to look closely, though, at the ten principles spelled out in the Declaration because I’m worried that some may be difficult to implement.
Juries of Their Peers
When I was in fourth grade, a few millennia ago, our teacher established a system so we could settle a lot of our own disputes. General mischief-maker, Walter, was elected judge, a decision that completely confounded our teacher, and the class was the jury. We explained our choice of Walter as judge by saying that judges always behave well, and if Walter were judge, he would have to behave better than usual. It was completely logical to us, but I’ll bet the teacher would never have seen that possibility and would have continued to discipline Walter rather than offer opportunity.
The Priming Effect of Temperature
Roaming around on the internet the other day, I stumbled across an interesting article on LiveScience.com about the effect of temperature on our psyches. Entitled, “5 Weird Ways Cold Weather Affects Your Psyche”, the author Laura Geggel discusses different studies showing that we react differently depending upon whether a room is hot or cold. While the March 11, 2015 article discusses 5 “weird ways”, three of them are pertinent to negotiations.
Gratitude For The Law
This year in the UK we are celebrating the 800th anniversary of the Magna Carta, or “Great Charter”. Interestingly, and less well-known, this deal was mediated.
Federal Court Case Update, Filings and Firings
Following is the start of a new series on the JAMS ADR Blog, featuring short synopses of recent case rulings related to arbitration or ADR. We’re excited to share this information as we know this is an area that will be of interest to our readers and those in the legal industry.
Where Have All The Idealists Gone? Long Time Passing, Part II
Over the years, a common theme heard among litigators after a grueling case where one side loses is that there must be a better way to manage disputes. In the mid -1970s, legal scholars from around the nation came together to review ways to make the legal process more user-friendly and accessible. They concluded, among other things, that a multi-door courthouse with processes that were designed to fit the forum to the dispute might be worth considering.
How to Be a Problem-solving Superhero Without Fixing it Yourself
Years ago, a student came to my office with a problem. I was a dean at the time and I had many appointments like this in an average day. To give you a sense of what it’s like to be a dean, I’ll tell you that when I left that job to begin a new career as a conflict resolutionary, one of the good-bye gifts from my staff was a fire extinguisher “to remember the job by.”
Snap Judgments. We all make them … and how they can lead us astray! This obvious point is made in a blog posted on March 2, 2015 on the Harvard Program on Negotiation’s blog website ( entitled “How Snap Judgments Can Lead Negotiators Astray In Negotiation Conversations” ).
When Man First Came Down From the Trees… He Decided to Own the Language
I am disappointed by the media’s return to the generic ‘he’ and ‘man’. What happened to respect and dignity? I certainly don’t feel respected when I’m told that ‘mankind’s first dwellings were…’ or that ‘a doctor feels he needs to…’. I feel my dignity is under attack when, on challenging this, I am told that a generic masculine is ‘understood’ to ‘include’ women, and that really I am making a silly, outdated fuss about nothing very important.
Joint Sessions: Are Lawyers Right to Hate Them?
Mention holding a joint session and you are sure to provoke an argument between mediators and teachers of mediation on one side and lawyers who represent clients in mediations on the other. That dichotomy is not wholly accurate because many mediators have also abandoned the use of joint sessions.
Family Law Arbitration Act
People who have been involved with family law are likely to have encountered mediation, especially in child-related issues. But what about arbitration?
Is This the Best Dispute Resolution We Can Do?
Michael A. Zeytoonian
I suppose somewhere, some group celebrated the “win” of recapturing Syrian cities as a strategic victory. The problem was that there was nothing left to recapture. Whatever had once been there was gone. The people were either dead, injured or gone. There was no other movement.
Mediation Confidentiality Strikes Again
Once again, an appellate court in California has confirmed the “…near categorical prohibition against judicially crafted exceptions to mediation confidentiality.” In Amis v Greenberg Traurig, LLP et al, (Issued March 18, 2015, Case No. BC 426815) (Id. at 8.), the Court of Appeal for the Second Appellate District held that mediation confidentiality precluded an attorney malpractice action from going forward.
Thirteen Days in September
Speaking of peace in the Middle East, I've been reading the new book about the Camp David negotiations by Lawrence Wright. Surprisingly, reading this account made me feel a little more hopeful about the prospects for peace between Israelis and Palestinians, the great unfinished business of the Camp David accords, even though the conventional wisdom in light of Prime Minister Netanyahu's recent re-election is that resolution of the issues in the territories is now a long ways off.
The Primal Roots of Blame, Defensiveness, and Reactivity
Handling blame, defensiveness, and high reactivity during conflict can challenge both the informal mediators and professional conflict resolvers among us. I’ve found that the “primal lens” for considering possible roots of these behaviors to be really helpful and want to share it with you.
Become a World Class Negotiator
It's not rocket science and it's not a secondary sexual characteristic. You don't "negotiate like a man" or "like a woman." You read, you practice, you fail, you succeed, you learn.
Blue Bloods and Restorative Justice
As we know, it is rare that any form of dispute resolution makes it onto network television in prime time. Friday night’s episode of Blue Bloods—the New York police drama starring Tom Selleck—featured a story line about restorative justice. Unfortunately, it wasn’t a good example. In the story, a young woman whose family was killed when she was a child got a letter from the convicted killer.
Texas Legislature Considers Measure that Would Require Out-of-Network Emergency Room Providers to Arbitrate Payment Claims
A bill seeking to establish an arbitration process designed to protect patients who are treated by an out-of-network provider during an emergency room visit from being hit with hefty medical charges is currently before the Texas Legislature. House Bill 1638, “Relating to nonpreferred provider claims under a preferred provider benefit plan related to emergency care,” was introduced by Representative Smithee and filed on February 19, 2015. An accompanying proposal was introduced in the Texas Senate on March 12th by Senator Taylor of Galveston.
Conflict Transformation in TV and Movies
My wife and I started using movie and TV clips in mediation training after participating in a workshop facilitated by Baruch Bush and Joe Folger called Rethinking Conflict in 2008. We were so inspired by this teaching and learning tool that we picked up the ball and ran with it.
The Managed Mediation of a Payor-Provider Health Care Dispute
Typically, more than 95 percent of mediations are initiated by one or two parties who agreed on a mediator, scheduled the mediation, filed a brief and showed up at the mediation session. The mediation session is often the first time the parties discuss the issues with the mediator or each other.
Where Have All The Idealists Gone? Long Time Passing
A recent discussion among a seasoned group of neutrals about the struggles of the professional mediator caught my eye. Some complained that the trend in litigated cases was to reduce the value of the mediator to a commodity, due to the constraints put on them by the litigants who were not process oriented.
Blurred Lines: Non-attorneys Representing Parties in Arbitration
As an arbitrator and teacher of arbitration, I’ve noticed that legal issues are more frequently the focus in arbitration proceedings, both non-labor and labor. I have watched non-lawyer representatives struggle to make legal arguments (although, in fairness, sometimes that is true of lawyers as well). To ensure adequate representation of parties in arbitration involving legal issues, I believe that the parties should be represented by counsel, and that failure to have counsel (rather than non-lawyer representatives) in such proceedings may well be the unauthorized practice of law.
8 Habits of a Conflict Resolver
Raise your hand if you’ve ever heard someone say, “I don’t do conflict.” It’s the type of statement that can be mindboggling because, really, we all do conflict. Whether small and fleeting or the only thing you can think about for months, we are all in some way or another doing conflict every day.
Minnesota Considers Moving Divorce out of Court
“In our culture, court means contest – it means a fight. . . we’ve culturally viewed divorce as a battle” says Bill Doherty. Doherty says that, no matter how well-intentioned the lawyers, the assumption that judicial supervision is needed greatly increases the risk of destructive conflict arising. Doherty believes that, very often, couples who get divorced without the help of lawyers do better than they would with lawyers. Doherty’s plan takes divorce entirely outside the courts.
There’s Always Time for a Second Opinion
The litigation process is full of variables and, no matter how strong a party’s case might be, going to trial is rarely a sure thing. There is also a tendency for counsel and clients to be overconfident in their assessments of their position. Thanks to the evolution of ADR, however, parties have many options available to them to secure an unbiased, neutral evaluation or second opinion about the strengths and weaknesses of a particular case and trial strategy.
Connecticut Evaluates Mortgage Foreclosure Mediation Program
In October 2014, the Connecticut Judicial Branch released an evaluation of its Mortgage Foreclosure Mediation Program. The Connecticut study evaluates six years of foreclosure mediation program data, dating from the program’s inception in 2008. As RSI prepares the first evaluation of Illinois’ six foreclosure mediation incubation programs, the earliest of which began accepting cases in December 2013, it’s interesting to review Connecticut’s data and how the program has evolved over time.
First Things First: Design the Arbitration Process You Want
The principles for drafting a pre-dispute arbitration clause are straightforward. They do require an understanding of the legal relationship, which will be the subject of the clause, some sense of the nature of disputes that are likely to arise and a basic understanding of arbitration process.
Israeli Prime Minister Benjamin Netanyahu's speech to Congress yesterday about the conflict with Iran (transcript here) illustrates an attitude many parties in conflict take toward settlement negotiations. As the possibility of a negotiated resolution of a conflict begins to emerge, elements on one side or the other often find themselves resisting the deal.
“Good Faith” vs. “Naive Realism”?
Perhaps I am an idealist, or even though a baby boomer with many years of litigation experience behind me— a bit naïve. Or –perhaps it is because I am a mediator and so am privy to both sides of the dispute and can see the “story” as an outsider or bystander. I do not know.
Further Thoughts on Armstrong Arbitration Award
Lance Armstrong was named the winner of the Tour de France in 2002, 2003, and 2004. When Armstrong won in 2004, considerable speculation existed regarding whether he had won cleanly. SCA Promotions, the prize insurer, was reluctant to pay the prize money given the speculation, and ultimately SCA, Armstrong, and Tailwind Sports arbitrated the case.
Teaching Students to Be Problem-Solvers and Dispute-Resolvers
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Reports on what lawyers should know, including the MacCrate Report and Educating Lawyers, regularly list problem-solving, negotiation, and dispute resolution as skills that lawyers should have. Best Practices for Legal Education called for law schools to educate students in problem-solving and in practical wisdom, in order to solve clients’ problems effectively and responsibly.