The use of mediation has become an almost universal practice in litigation. More cases are resolved by mediation than by jury trials. Because of this, it is very important that insurance professionals understand the mediation process and learn how to make it effective. read
5/23:Airport suit over damage caused by Obama visit sent to mediation
A public airport is suing the U.S. Secret Service for what it claims was close to $700,000 in property damage caused by a 2010 visit by the president. At the request of attorneys for both sides, U.S. District Court Judge Timothy S. Hillman has sent the case to mediation. The owners of Marlboro Airport filed their $676,000 civil action claiming Obama’s Marine helicopters and armored convoy, including a 20-ton fire-suppression foam truck and other security vehicles, tore up their 1,682-foot runway and grass apron during the commander-in-chief’s 2010 visit to the Massachusetts Emergency Management Agency in Framingham during record flooding. read
5/23:Research project analyses practice of mediation in two public hospitals in Valencian Community
The research project from the Universitat Jaume I de Castellón (Spain) analyses the practice of mediation in two public hospitals in the Valencian Community through cases that involved a team of mediators over two years. read
5/23:Oregon House votes to extend foreclosure mediation
The Oregon House has voted to extend a requirement that some mortgage lenders meet with struggling borrowers and a professional mediator before initiating foreclosure proceedings. The mediation requirement was first adopted last year. It applies only to certain foreclosures that are processed outside the courts. The measure approved Wednesday would extend it to all foreclosures. The majority of foreclosures in Oregon have long been processed outside courts, but they shifted to the judicial system after an appellate court ruling last year. Proponents hope the mediation will lead to an agreement that would allow borrowers to keep their home. The measure goes next to Gov. John Kitzhaber. read
5/23:The Pedestrian–Cyclist Armistice Reached with Online Negotiation
Following in the footsteps of Amsterdam; Portland, Ore.; and Washington, D.C., among other cities, New York is set to launch its bike-share program, Citi Bike, on Memorial Day. New Yorkers have met the impending influx of bikes with both excitement and dread. Slate convened a summit between a representative cyclist and a representative pedestrian to see if they could defuse tensions a bit. Rules were proposed via email and ironed out with a short G-chat session. A bilateral, 10-point resolution to end the decades-long conflict between walkers and bikers is the result! read
5/23:NAFCM Receives Funding for a National Training Resource Center
The National Association for Community Mediation (NAFCM) successfully applied for and will receive $50,000 from the JAMS Foundation (JAMS). The grant is for the development of the Training Resource Center for community mediation nationally. The Training Resource Center (TRC) will be the largest compilation of community mediation resources in the country. NAFCM will partner with community mediation centers across the country to collect new and existing resources including but not limited to PowerPoint, handouts, mocks, videos, and more. read
5/23:NADN Announces Partnerships With DRI - The Voice of The Defense Bar and the American Association for Justice
The National Academy of Distinguished Neutrals, the premier association for experienced civil ADR practitioners is delighted to announce partnerships with DRI, the largest professional organization for members of the defense bar, and the AAJ (formerly the American Trial Lawyers Association), the world’s largest association of trial lawyers. read
5/23:GiveForward partners with Medical Bill Mediation to help families reduce high medical bills
GiveForward, a crowdfunding leader helping families and friends raise money for a loved one's medical bills, is pleased to announce a new partnership with Medical Bill Mediation of the Karis Group, Inc., a service which helps patients consolidate and reduce their healthcare bills. This alliance stems from both organizations' shared mission of empowering patients to face the rising cost of healthcare in America. read
5/21:Judges assigned, mediation dates set in MSU mass litigation
Several lawsuits have been filed in state court against Mountain State University regarding its accreditation. A December order referred pending or subsequently filed state court cases to the mass litigation panel. According to this order, all of these cases involve "harm caused to plaintiff as a result of Mountain State University's loss of its general accreditation, special accreditations in its nursing and nurse anesthetist programs and any other educational programs that require independent accreditation." read
5/21:Mediation Continues in Suit to Block LG Project
Mediation between lawyers for a group preservationists and LG Electronics is ongoing after the effort to find common ground in a lawsuit to block the company's proposed Englewood Cliffs headquarters began early this month, representatives for both sides said Monday. At issue is LG's plan to build a 143-foot high office complex visible above the Palisades in Englewood Cliffs. The preservations say the building will tarnish the scenic cliffs. LG, however, contends the project will bring much-needed jobs to the area and features an environmentally friendly design. read
Is Compromise Possible? (5/17/13) Colin Rule Any serious talk of pragmatism and compromise in American politics usually ends with some nettlesome questions: What about the social issues? What about abortion? What about gun control? These are issues on which reasonable people disagree passionately. Anyone who tells you that there is a “right” answer on abortion has not spent much time thinking about the issue or lacks the empathy to appreciate how other people think about it. Americans’ views on these issues tend to be theological — literally in many cases.
The Subtlety of Actual Mediations (5/17/13) Phyllis Pollack Most folks think that the purpose of mediation is to settle cases. However, in the last few weeks, I have conducted some actual mediations that were "successful" yet did not settle. Although the parties came to mediation with the goal of settling, they walked out accomplishing other purposes.
You Can Catch More Flies with Honey than Vinegar (5/17/13) Cinnie Noble I was fairly young when I first heard the idiom ‘you can catch more flies with honey than with vinegar’. It was one of my mother’s pearls of wisdom. Her name was Pearle and so, she took her name seriously by dispensing precious lessons on life with short homilies and expressions.
Was OJ Simpson’s Lawyer Ineffective? (5/17/13) Cynthia Alkon OJ Simpson will be back in court this week in Las Vegas bringing an appeal from his 2008 armed robbery and kidnapping conviction in 2008. He has apparently filed, through his new lawyer, a 94-page petition for a new trial—which reportedly includes 19 specific issues that the court has agreed to hear “mostly claiming that lawyer Yale Galanter provided such poor representation that Simpson deserves a new trial.”
So Who is Your Primary Care Legal Counsel? (5/17/13) Michael A. Zeytoonian In our last blog, we suggested that people approach resolving legal disputes the way they approach making medical decisions. The starting point is to have a “primary care lawyer”, a true legal counselor, just as we have a primary care physician.
Using Mediation to Resolve Tax Disputes (5/10/13) Rafal Morek Her Majesty’s Revenue & Customs (HMRC), a department of the UK Government responsible for the collection of taxes, published the results of its pilot ADR project evaluation. It has been testing a new way of resolving tax disputes, with the SMEs and individual taxpayers, since 2011.
Arbitration and the Power Sector in Brazil (5/10/13) Gilberto Giusti One of the segments of the infrastructure sectors in Brazil that have lately triggered the greatest amount of disputes are the power generation, distribution and trading sectors. In effect, there’s little disagreement in Brazil nowadays that, just as with other sectors that could also be mentioned here (such as oil and gas, sanitation, ports, etc.), in the power sector in general the arbitrators and the lawyers defending the interests of the litigants must have expertise in or at least deeper technical knowledge of the matter in controversy, namely as a result of the complex regulations that followed the introduction of the new regulatory framework for the Brazilian power sector through Law No. 10,847 and Law No. 10,848 of 15 March 2004.
In Mediation, Four Things Really Matter (5/10/13) Peter T. Coleman Although the research on mediation is considerable and proliferating, our field still lacks a basic unifying framework which provides theoretical coherence and integrates our understanding of various research findings. Today, the research presents a piecemeal understanding of what constitutes “effective mediation” and how to achieve it.
Nice Guys Fight on a Plane (5/10/13) Dan Simon It’s the disputing, not the dispute. Interaction matters, even more than the “subject” of the dispute.
Arbitration in India (5/10/13) F. Peter Phillips In this research paper I will analyze and comment on India’s arbitration and jurisprudence from pre-colonization to post-colonization in 1947. In Part I, I will briefly discuss the goal and purpose of arbitration, for those who are unfamiliar with them, and I will delve into the history of India’s arbitration, including the major legislative acts and arbitration institutions.
Boston, Violence, and Listening (5/03/13) Lee Jay Berman We are once again in the wake of a tragedy. News outlets are filled with coverage, details are slowly emerging, and the cover of Time Magazine shows a frightened child in the aftermath of the Boston Marathon bombing. Many runners were running in memory of the Newtown, Connecticut victims, meeting tragedy with tragedy.
“The Process is the Punishment” (5/03/13) Colin Rule Court delays of as long as five years in felony cases have pushed the Bronx criminal courts into the bottom ranks of courts nationally, reaching what even the judges call crisis levels.
Effective Negotiations (5/03/13) Phyllis Pollack I know I may sound like a broken record as I have discussed each of these points several times before - but they are invaluable and make the difference between resolving a dispute and continuing the acrimony.
Three Things to Know about Mediating Licensing Disputes (5/03/13) Zela Claiborne The number of IP disputes resolved in mediation has continued to increase as attorneys make efforts to find speedy resolutions and cut litigation time and cost for their clients. Only a small percentage of costly patent infringement cases actually go to trial; approximately 90 percent of them are settled.
Healthcare Collaboration: The Experience at One Hospital (5/03/13) Holly Hayes At Cleveland Clinic, a patient was asked to keep a journal of all the caregivers she saw over her five-day stay. She noted eight doctors, 60 nurses and so many others she lost track. The journal didn’t even track staff from non-clinical areas – food services, parking or billing. A May 2013 Harvard Business Review article by James I. Merlino and Ananth Raman reported on the Cleveland Clinic’s effort to get everyone in the organization to start thinking like a caregiver.
Increasing Referrals to Small Claims Mediation Programs (5/03/13) Heather Scheiwe Kulp My favorite part of new mediator training is watching the attendees discover the potential value of mediation. They nod knowingly when they realize how brainstorming creative options based on parties’ real interests may change the dynamic of winner-takes-all, money-is-everything court battles.
The Present and Future of ADR (5/01/13) Chris Poole The budget cuts to the court system have perhaps been felt more severely in California. In March, California Chief Justice Tani Cantil-Sakauye lamented in a speech to the state legislature, “our judicial branch budget has been cut greater and deeper than any other court in the United States.”
Priming for Likely Range of Outcomes (4/26/13) Jan Frankel Schau Sometimes the only way to strike oil is to prime the pump until it begins to flow. It takes some effort and foresight, but the result is all the more satisfying.
Filters and Frames: Mediation is all About the Viewfinder (4/26/13) Stephanie West Allen Our brains are vigilant, hyperaware of any sensed change to see if it represents danger. Partly because they use a lot of our energy, our brains seek to deal with new information quickly and easily. So, rather like a photographer, the brain applies filters and frames. The filters shift, accentuate, and diminish what is seen. And the frames limit what is viewed to certain boundaries.
Arbitration and Access to Justice: Economic Analysis (4/26/13) Beth Graham Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others.
New Perspective on Domestic Violence and Mediation in Montana (4/26/13) Mary Novak The original Montana provisions for family court mediation, enacted in 1993, attempted to shield abuse survivors from attending mediation with their abusers. This reflected a national focus on the issue at the time. Section 40-4-301 of the Montana Code Annotated allowed courts to require any parties to participate in family law mediation. However, it made an exception for domestic violence.
Is Collaborative Law Worth the Cost? (4/22/13) Dick Price For people facing divorce, a common question is whether Collaborative cases are "cheaper than litigation". While there is no way to compare a specific Collaborative case to an abstract idea of a litigated case, we can say that Collaborative Law will avoid a lot of the expense involved in litigation.
ISDA Issues Model Arbitration Clauses for use with Master Agreements (4/22/13) Herbert Smith The International Swaps and Derivatives Association (“ISDA“) has released a number of model arbitration clauses for use with the ISDA 2002 Master Agreement and ISDA 1992 Master Agreement (Multicurrency – Cross Border), which are the market leading standard form agreements for documenting derivatives transactions.
AudioBlog: Transforming Difficult Decision Making In Elder Care Planning (4/22/13) Patricia Porter Families today are assuming responsibility for the informal care of over 75 percent of elderly family members and are often faced with difficult decisions from a bewildering array of choices: e.g. estate planning, financial issues, and guardianship. In the best of circumstances, this can be a stressful process and sometimes leads to disagreements, confusion, and conflict at a time when the best intentions of the family are to work together for the needs of a loved and respected aging family member.
In Someone Else’s Shoes: Are the Investor’s Rights His Own or Those of the Home State? (4/22/13) Inna Uchkunova, Roger Alford There is a Taoist fable of the three stupid men who were traveling together from one village to the next. They rested for the night under a banyan tree. In the morning, it turned out that the travelers have forgotten whose shoes are whose. Because none of the three men was able to walk in another man’s shoes or to recognize his own their journey ended under the banyan tree.
Durability of Mediated Settlements and More (4/22/13) Richard Weiler Deals negotiated in mediation tend to hold or, at least, that’s been the conventional wisdom. The theory is that because of the consensual nature of the process parties tend to abide by the agreements they’ve struck in mediation.
Concerted Action Includes Concerted Dispute Resolution (4/12/13) Beth Graham As interpreted by the Supreme Court, the Federal Arbitration Act has largely swept all before it, validating agreements to arbitrate almost all disputes, including those involving claims under statutes regulating the employment relation. That era may be nearing an end.
Disputes: A Clash of Imperfect Ideas (4/12/13) Cinnie Noble It is common in the midst of conflict that we become more assertive about our perspective – especially when the other person is equally or more assertive about hers or his. One or both of us may push our viewpoints to the extent that things escalate and stronger feelings evolve – accompanied by even more push back. It is as though both of us are convinced and have to convince the other that our view is the perfect and correct one.
Collaboration (4/12/13) Joe Markowitz There was talk around the ABA Dispute Resolution Conference this week that the demand for mediation services may be declining. If that's true, does that mean that mediation is falling out of favor, just as arbitration has somewhat fallen out of favor? Or is it a reflection of the economy and the decline in demand for dispute resolution services in general?
Bach, Beijing, and Being at the Table (4/12/13) F. Peter Phillips Negotiators at the table might have completely different interests and no shared ground as to the law or the facts; they can nevertheless contribute to a productive mediation because they are there. They share the dispute itself, and they share at least an interest in resolving the dispute in their clients’ favor. They share a recognition of the process, and a willingness to make themselves heard.
Is There Good and Bad Mediation Practice? (4/12/13) Diane Cohen Wow! I’ve been overwhelmed with work and haven’t posted in months. But I’m back now and thinking about the topic: Is there good and bad mediation practice?
The Mediation Trainer’s Toolbox (4/12/13) Sabine Walsh Having spent the last few weeks immersed in mediation theory, conflict theory, negotiation theory and a variety of other theories for various projects, including the preparation of a mediation training course, I feel the need for a little practicality.
Negotiation Tactics (4/12/13) Phyllis Pollack In some mediations, I have witnessed the “nibbling” approach: one party keeps making demands on top of demands, often very small ones, in an effort to get the other party to reach a breaking point and either cave in to the demands or storm out of the negotiation.
The Winner’s Curse (4/08/13) Phyllis Pollack Suppose you have a jar of coins and ask several friends to bid on the jar. The highest bid will be deemed the winner. According to Richard H. Thaler two results will occur: “(1) the average bid will be significantly less than the value of the coins (bidders are risk adverse); (2) the winning bid will exceed the value of the jar”. This is known as the “winner’s curse”.
Signing Arbitration Contracts on Admission to a Nursing Home – Who Is Bound? (4/08/13) Richard Birke As our population ages, more and more people are being admitted to nursing homes at or near the end of their lives. But when a person is admitted to a nursing home and they sign a contract agreeing to arbitrate any disputes arising out of the care they receive, should their heirs and the estate be bound by that contract?
Martha Stewart Living Ordered to Mediate Dispute With Macy’s and J.C. Penney (4/08/13) Beth Graham Mediation is in the news again. Last week, a New York judge ordered a dispute between Macy’s, Inc., J.C. Penney Co., and Martha Stewart Living to mediation. The lawsuit itself reportedly arose after New York-based Martha Stewart Living signed a contract with Plano-based J.C. Penney to open a Martha Stewart mini shop in many of the retailer’s stores.
What Does the Fortune 1,000 Survey Portend for International Mediation? (4/02/13) Tom Stipanowich A new study of dispute resolution practices in Fortune 1,000 corporations shows that many large companies are using binding arbitration less often and relying more on mediated negotiation and other approaches aimed at resolving disputes informally, quickly and inexpensively.
Facing a Divorce Later in Life? (3/29/13) Dick Price It has become noticeable that Baby Boomers and even older people are starting to experience a significant number of divorces. Couples married for 20 to 40 years are getting divorced.
The Straw That Broke The Camel's Back (3/29/13) Cinnie Noble I have used the expression “the straw that broke the camel’s back” or a similar idiom when referring to an incident that pushes an ongoing situation too far across a line of tolerance. I didn’t know the derivation of this particular expression and when I looked it up I found the meaning is consistent with this same notion.
Empowered Victims & Moral Perpetrators: A Needs-Based Model of Reconciliation (3/29/13) Christine Webb At a recent workshop at Leiden University on Obstacles and Catalysts for Peaceful Behavior, Nurit Shnabel presented exciting research distinguishing the needs of victims and perpetrators in interpersonal and intergroup conflicts. According to Shnabel and colleagues’ Needs-Based Model of Reconciliation, victims of conflict experience a psychological loss of status and honor, thus undermining their identities as powerful actors. Perpetrators, on the other hand, experience a psychological loss of social acceptance, thus threatening their identities as moral actors.
Liability of Counsel in International Arbitration: Any Changes? (3/29/13) Lisa Bench Nieuwveld A week ago today, it was my privilege to participate in the annual UNCITRAL/VIAC/YAAP Joint Conference, addressing hot topics in international arbitration. The conference successfully considered many key topics, including my topic, liability of counsel in international arbitrations. This topic, similar to my recent book topic (Kluwer Law International, Third-Party Funding in International Arbitration), is receiving a lot of attention with limited actual changes.
AudioBlog: Elder Mediation: Family Disputes Over Caregiving (3/29/13) Patricia Porter When families are faced with the long-term care arrangements for their aging parents and relatives, feelings of resentment, anger and jealousy that have festered since childhood often create new problems as families learn to cope and prepare for the road ahead. Instead of working together, families can get stuck placing blame.
Looking at E-mail Negotiations with the TKI Conflict Model (3/22/13) Ralph Kilmann There appears to be a rapid increase in the use of e-mail exchanges for resolving all kinds of personal and workplace conflicts. Instead of taking the extra time for phone calls, virtual meetings, or those old-fashioned face-to-face discussions, people are texting or e-mailing their concerns and solutions to one another.
Difficult Conversations (3/22/13) Phyllis Pollack A few weeks ago, I conducted a “lemon law” mediation. Over the past few months, most of these have been conducted by using separate sessions only; counsel have not wanted to participate in joint sessions. However, this time, plaintiff’s counsel wanted to hold a joint session. Defense counsel who had worked frequently with plaintiff’s counsel in the past and had a cordial relationship with plaintiff’s counsel, agreed.
Fifth Circuit Upholds Arbitrator’s Decision in Employment Dispute (3/22/13) Beth Graham The United States Fifth Circuit Court of Appeals has affirmed a lower court’s order to confirm an arbitrator’s decision in an employment dispute. In Haag v. Infrasource Services, Inc., No. 12-60159, (5th Cir. February 20, 2013), an employee, Fred Haag, was terminated from his position with Infrasource Services, Inc. for alleged gross misconduct.
Forgiving When Asked (3/22/13) Cinnie Noble Forgive me. I apologize. I was an idiot. You didn’t deserve what I said. I was so wrong. I didn’t mean it. You are a saint for putting up with me. Will you please forgive me? In whatever form requests for forgiveness take, it is not incumbent upon the receiver to forgive. For some reason many people think they ‘should’ forgive or at least say they do. It’s just not always that straightforward.
The Supreme Court and the Future of Arbitration (3/22/13) Art Hinshaw At the 2012 AALS meetings Ron Aronovsky (Southwestern) organized the ADR Section’s program entitled The Supreme Court and the Future of Arbitration. Here’s a short blurb describing the program.
“Protect, Respect, Remedy”: What is the Lawyer’s Social Responsibility? (3/22/13) F. Peter Phillips The current issue of IBA Global Insight (Feb/March 2013) features an excellent article by Rebecca Lowe that, on first glance, studies the defenses to liability under the Alien Tort Claims Act as presented by the U.S. Supreme Court’s consideration of Kiobel v. Royal Dutch Petroleum.
Mediation Saves Mediation in Massachusetts (3/15/13) Jennifer Shack At a time when lenders are working to keep mediation from becoming law in Missouri and Oregon, lenders in Massachusetts have voluntarily dropped their opposition to a mandatory program – and they did so through appellate mediation.
Five Tips to Let Go and Forgive after a Break-Up (3/15/13) Lorraine Segal Learning how to let go and forgive helped me a lot after two “break-ups.” Neither of these was with a spouse or romantic partner, but they were deep and difficult and painful nonetheless.
Empathy (3/15/13) Joe Markowitz Empathy is an essential tool in mediation, both for the mediator and hopefully a quality the participants develop as well. Mediators recognize, unless we want to act purely as evaluators (and even then the capacity for empathy is still important), that we need to try to empathize with the needs and feelings of both sides in every case, to build trust and encourage understanding.
Inquire About Each Disputant's Agenda Before you Begin (3/08/13) Jan Frankel Schau Litigation is typically a well-orchestrated process which is initiated by a formal "complaint", which includes several distinct "Causes of Action", together with a list of "remedies" and a "Prayer" for damages resulting from whatever misconduct is claimed. In response, Defendants file a formal "answer", usually denying all misconduct and perhaps adding a few "affirmative defenses" to the mix. By the time the case gets to mediation, it is usually less well-defined.
