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
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?
In 1992, John Gray, Ph.D. published Men Are From Mars, Women are From Venus (HarperCollins Publishing 1992) to explain why men and women have difficulty communicating with each other.
ADR, ODR, e-Mediación y Negociación Automática
Los mecanismos en línea que se vienen implementando en todo el mundo para la resolución alternativa de conflictos, abarcan procedimientos con características propias, y diferentes perfiles conceptuales, en donde las fronteras –en ocasiones extremadamente sutiles- existen y determinan su naturaleza jurídica.
Change Your Words; Change Your World
How we frame our offer, our doubt, our idea, our concern can make the difference between being heard and being ignored, between interest and aversion, between succeeding and stumbling.
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.
Looking Backward to Go Forward -- Mediation in the New Year
Notably, as 2013 marched towards New Year's Eve and the beginning of 2014, each of us looked back on 2013, thinking about different events and how they could have/should have/ would have turned out differently if we had altered our behavior ever so slightly or had done something differently.
Diversity in Mediation
Mediation, as a form of dispute resolution, relies heavily on the mediator’s ability to recognize, comprehend and address the emotions and social cues of the parties involved. Without this understanding, there lies the potential for irrationality, miscommunication and perhaps intractability.
5 Tips on Measuring Negotiation Effectiveness
Progress is not always easy to measure during a negotiation, mediation, or an attempted collaboration. Sure, it is easy to measure lack of progress as it is laden with clear negative emotions and also the lack of a resolution or jointly decided upon conclusion but positive progress is not as easily defined.
Recently, talking to a very experienced mediator, we started to describe a particular practice of an attorney-mediator during one of his cases. At the end, we asked: was that mediation? Our friend told us that no, it wasn’t mediation. We asked why and a long silence fell over our table. Then he confessed that it cannot tell exactly why, but somehow he felt uncomfortable with the practices we described and certainly he would not attempt to use them during his own cases. But he also agreed that, in extremis, those kinds of practices can be considered as being part of the mediation process and there were a lot of mediators using them.
Be Sure To Check the Facts
A female middle manager complained she had been bullied by her male senior manager, who she had described as aggressive and demanding. One of the allegations related to an occasion when she had gone into his office for a discussion, which had become heated on both sides and, according to her, he had started to shout and swear at her and continued to do so as he followed her out of the room.
Tips for Working with Multiple Bosses
When companies consolidate departments or lay-off employees, the action often results in administrative support staff working with multiple bosses. Though the strategic goal is to save money, the act can backfire if the new normal doesn’t quickly fall into place.
Using Your Mediation Skills to Survive New Years' Parties
Ah yes….the season is here. Maybe it’s even already started for you; Work parties, family gatherings, functions with friends, and on and on. It’s a festive season, lots of food, drinks, and maybe even some presents here and there. Sing songs, drink spiked hot chocolate, eggnog, the act of giving, family traditions, Christmas trees and lights, etc, etc, etc. You get the point. It’s a happy time of year.
What is Your Organization’s Conflict Style?
Prior research had explored conflict styles at the individual and group level, but had yet to explore whether organizations have distinct conflict styles. Recently, researchers using data from a large bank in the mid-Atlantic United States found evidence to suggest that three distinct conflict styles operate within organizational cultures: collaborative, dominating, and avoidant.
Conflict: It's Relational and That Ain't Situational
Many mediators say they adjust their approach according to the situation. This makes sense on one level. If a mediator remains responsive to the parties, the interventions will necessarily vary according to the parties, and will even vary with the same parties as their interaction changes.
The Pre-Mediation, Its importance in the Mediation Process
The phase of pre-mediation not always is considered an important an ineludible phase in the mediation process, when is it the opportunity to the mediator to prepare parties to attend in a better way their conflict in the joint session and can make the difference between the success of the fail of the negotiation.
Experiencing Your Conflict
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In previous ConflictMastery™ Quest(ions) blogs I have discussed somatic symptoms of conflict. Today’s post is about what we experience internally that we may or may not show externally. That is, there are ways we are aware of – that others do not necessarily observe – about things going on for us in our body, heart, and brain. Some signs, of course, are evident and will be considered in this discussion.