Me, Myself, and I
Who hasn’t seen the poster on a break room wall or heard the rally cry at a company meeting that shouts, “There’s no I in team!”? Yep, the quote is everywhere and even though I understand the intention behind it, I say pshaw to that notion!
When Mediation isn’t Mediation At All…
At the risk of being accused of being too much of a purist, I just have to have a little grumble about the latest misappropriation of the term mediation. All involved in promoting and encouraging the use of mediation know how one of the largest barriers to people availing of this process is the lack of understanding of its key principles and how it really works.
Mediating Between Charlie Brown and Lucy
Is it finally time for Charlie Brown to trust Lucy not to pull the football away? As mediators, we like to see our clients regain or establish a level of trust that allows them to make commitments to each other and move forward. Sure, many times Lucy has pulled the ball away from Charlie at the last minute, despite promising otherwise. But here they are in mediation, a chance to turn over a new leaf, to come clean, to let go of their mistrust and to collaborate. Isn’t it our job to encourage Charlie to take a risk?
Much has been written in recent years about whether arbitration has lived up to its billing as a “better, faster, cheaper” alternative to litigation. No matter one’s views about this, litigation is undoubtedly very costly, and wise counsel must look for ways to reduce unnecessary costs and time delays.
Values and Interests Revealed in Detroit “Grand Bargain”
The story of the Detroit bankruptcy mediation’s emerging “Grand Bargain” (as it has been dubbed in the media) is a fascinating case of many different groups working to protect their chosen interests. The bargain demonstrates how mediation allows parties to consider what they are willing to give in order to secure the things that matter most to them, and how traditional rivals may collaborate for a shared goal.
Mediators and the World Cup
As it happens every four years, it is the FIFA World Cup again. I must confess that I am not a football enthusiast myself, but with the greatest football stars at my doorstep, and all the media hype, it is almost impossible for any Brazilian not to get involved at some level. But it is not all rosy, as street protests and some other initial reactions by the Brazilian population against the event throughout the last 12 months have negatively impacted the tournament image.
El Ministerio Público de la Defensa incorpora el uso de Nuevas Tecnologías
Con el objeto de superar las dificultades que impiden u obstaculizan a aquellas personas de escasos recursos económicos obtener asistencia ante conflictos jurídicos, la Defensoría General de la Provincia decidió avanzar hacia el uso de las Nuevas Tecnologías Interactivas a través de herramientas como la webconferencia, en un trabajo conjunto con ODR Latinoamérica.
Some interesting back-and-forth occurred during the last panel of the day yesterday at the 2014 ODR conference, when David Bilinsky, a legal practice consultant, described the high tech tools he uses in teaching law students. To oversimplify his presentation, these tools allow students to conduct side discussions during lectures in a chat feature that can be employed either during an online or even an in-person class. The theory is that these side chats can expand on the lecture, and reinforce learning by facilitating more interactive participation.
Are You a Pot-Stirrer?
This week’s ConflictMastery™ Quest(ions) blog is not about cooking, though the title and the metaphor seems to conjure up the picture of soups and stews simmering on top of a stove. When it comes to conflict the expression – stirring the pot – is defined by one source as “to cause unrest or dissent”. It is an idiomatic way to explore what some of us do when we disagree with a decision, or it may be what we do in reaction to something another person does or says that we do not like, or it may be when we raise issues on purpose to encourage debate or to cause unrest for some reason.
U.S. Supreme Court Asked to Consider Scope of Nursing Home Arbitration Agreements
The United States Supreme Court was recently asked to consider whether an arbitration agreement precludes a wrongful death claim in a nursing home dispute. In Pisano v. Extendicare, the heirs of a man who passed away in 2011 while in the care of a Pennsylvania nursing home filed a lawsuit against the facility seeking damages for his alleged personal injuries and wrongful death. When the man was initially admitted to the skilled nursing facility, however, his daughter signed an agreement to arbitrate any future disputes with the institution.
A Primer on Arbitrability
Drafters of arbitration clauses must understand the concept of arbitrability if the parties’ objectives are to be achieved. Arbitrability is the portmanteau for several distinct concepts.
It Is All About The Food
Something tells me that being a foodie if not a chef should be part of the job description of a mediator. About a month ago, I wrote about a study that showed how one's grumpiness and thus willingness to settle disputes depends on the level of one's blood sugar; the grumpier one is, the greater the likelihood that one wants to stick pins in a voodoo doll representing the opposing party.
Michael P. Carbone
In 1997 the California Legislature enacted Evidence Code Sections 1115-1128, which established mediation confidentiality as an evidentiary exclusion in California. The purposes of this legislation were (a) to clarify and codify the law and (b) to encourage participants in mediation to be open and candid with the mediator and with each other. The central point of the law is that no communications that take place during mediation can be used in any trial, hearing, or other legal proceeding.
The Hearty Handshake, and Other Lessons From My Father
Jan Frankel Schau
With more and more mediation hearings occurring before the litigation gets fully underway, many disputants and opposing counsel have never met before the mediation hearing. In a handshake study conducted at the Harvard Business School, subjects were asked to negotiate a mock purchase and sale of a piece of real estate. The control group was requested to begin with a handshake. The other group were seated across the table from one another and most of them entered into an immediate negotiation without bothering to shake hands beforehand.
The Real Bergdahl Error
For more than a decade, starting with a fellowship at the National Institute of Justice and subsequently conducting research in Europe and Israel, I studied hostage negotiations.
Arbitration as a Means of Avoiding Class Actions
F. Peter Phillips
In AT&T Mobility v. Concepcion, the Supreme Court held that a waiver of class action that was part of an arbitration clause in a consumer contract was enforceable despite state law to the contrary. Subsequently, in Oxford Health Plans v. Sutton, it upheld an arbitrator’s ruling that a class action could be sustained in a commercial arbitration agreement, because the arbitrator’s finding had drawn its essence from interpretation of the arbitration agreement itself.
While not very impressive grammatically, the statement published today on Tesla's website that "all our patent are belong to you" might have some earthshaking consequences in the intellectual property world.
Let us suppose that you are at a mediation or in some sort of negotiation and the other party has just said something that has gotten you so angry, you are ready to grab your belongings and storm out of the mediation/negotiation.
Our Best Negotiators are Humble People . . .
"The best negotiators are humble people who like to communicate with people from all walks of life." Walking into Gilbert Wong’s office is like stumbling into Aladdin’s Cave – a treasure trove of memories and stories of his 21 years in the Hong Kong Police Force. Amongst his library of books on crisis negotiation, psychology, counseling, psychotherapy and other relevant fields, there are mementos, certificates, awards and honours representing this negotiator’s passion for people and his commitment to developing the field of crisis negotiation.
Wilcox v. Apraio – the 9th Circuit Sidesteps Mediation Confidentiality Questions
Wilcox, a member of the Board of Supervisors, along with virtually everyone who was indicted, sued the County under 42 USC §1983 and several other state claims (malicious prosecution, infliction of emotional distress, etc.). Recognizing the potential for conflict of interest charges in these cases, the Board of Supervisors adopted a resolution giving the County Manager the authority to “enter into binding arbitration/mediation agreements” and to “enter into contracts as needed” to settle the various lawsuits.
New York’s Commercial Dispute Rocket Docket
The state of New York now offers a consensual accelerated commercial dispute docket for the Commercial Division of its State courts. Rule 9 of Section 202.70(g) of the Uniform Rules for the Supreme and County Courts provides that disputing parties who consent to this process must be ready for trial in nine months (including completion of mandatory mediation).
Best Practices for Settling Multi-District Litigations
In recent years, studies have shown an increase in product liability lawsuits, and given the widespread sales of the products, many of these cases are being consolidated into multi-district litigations (MDLs). Many state courts, such as California’s, have coordinated proceedings and have similar coordinated settlement models, and there is increased cooperation between federal MDLs and similar state-court-coordinated cases.
Settlement Conferences and the Price of Contempt
In a settlement conference, what is the value of having someone present with full authority to settle? If one party lacks the authority, it can result in aggravation, wasted court fees, and lost time for trial preparation. American Family Insurance (AFI) recently learned this to their cost in a dog-bite case in Washoe County, Nevada. Because Judge Janet Berry did not believe the insurers had complied in good faith with her rules on authority to settle, she found the company in contempt and sanctioned them $50,000.
Sunshine in Litigation Act Reintroduced
From a recent National Law Journal: Federal lawmakers have renewed legislation that would require judges to consider the public’s interest before agreeing to seal court records about products liability lawsuits with companies.
Pain in the Neck
When we are in conflict with another person or the dynamics between us seem to be leaning towards one developing, some of us have a tendency to begin to find fault with the other person. We may attribute negative motives to her or him. We may stay away from this person or show the emotions we are experiencing in various ways.
La Trama - Mediación en Portugal - en Espanol
Estamos inaugurando con este número una nueva propuesta: compartir experiencias provenientes del otro lado del Atlántico. Comenzamos con Portugal para luego seguir con España e Italia, con la intención de ofrecer al lector un panorama del desarrollo de la mediación en esos países.
Quick Tip: Hostage Negotiator's Tone of Voice
Crisis and hostage negotiator's are involved in situations that are tense, stressful, and anxiety-filled. In order to try to reduce the overwhelming emotions being experienced by the person they are trying to help, the negotiator's tone of voice is an important tool that can help move the conversation toward a peaceful resolution.
Confidentiality and Due Process
Can mediation confidentiality threaten a party's right to due process? A recent case out of the Central District of California, Milhouse v. Travelers, currently on appeal to the Ninth Circuit, held that the due process rights of a party can override the parties' agreement, and a state evidentiary rule precluding the admission in any subsequent proceedings of statements made in mediation.
Given the huge numbers of settlements, in contrast to adjudications, we should perhaps think of the DFEH not so much as a law enforcement agency, charged with putting teeth into statutory prohibitions against discrimination, but rather as a conflict resolution service offered by the government to assist parties in dealing with all manner of employment disputes.
One of the ways that some people manage conflict is by using the ‘silent treatment’. This expression refers to “Maintenance of aloof silence toward another as an expression of one’s anger or disapproval”. The same source says this phrase is “a deliberate discourteous act”.
Quick Tips for Developing Your ADR Career
Developing a career as an arbitrator or mediator can be very challenging. Before you consider moving into the field it is important that you talk to those arbitrators and mediators who have done it successfully. Over the years I have had the opportunity to take their counsel. The following are some of the best of their many tips regarding how to develop and sustain an ADR career.
The Value of a Gesture of Good Faith
Jan Frankel Schau
This week I learned something from a friend and colleague, Steve Rottman, who, more often than I do, mediates at the lawyer’s offices. He sets up the condition that whoever has the convenience of holding the hearing in their office must pay for lunch and parking for all parties. This article discusses the importance of good faith gestures.
Dispute Resolution Options
Michael A. Zeytoonian
Most people think that when they get into a legal dispute, they have to file a lawsuit. They retain a lawyer, often a litigator, and start an expensive, time-consuming process called litigation. “I’ll sue.” “I’ll take you to court.” It’s what we are taught and reared on, what we see in movies and on TV and what people talk about here in America, the world’s most litigious society. - See more at: http://www.disputeresolutioncounsel.com/2014/05/dispute-resolution-options/#sthash.IQ6GFRXc.dpuf
When You Inadvertently Magnify a Conflict
Conflict doesn't necessarily mean something fundamental has shifted in your business or personal relationship. It's possible the relationship is as sound and strong as it ever was. It's just hard to see that when the conflict is crowding out your wider view. I was reminded of this recently in an experience with a certain company whose services I use to manage a small digital aspect of my conflict resolution business.
The Dispute Resolution Dilemma: Opt-In or Opt-Out?
In his now famous Stanford Commencement Address in June 2005, Steve Jobs remarked: “Remembering that I’ll be dead soon is the most important tool I’ve ever encountered to help me make the big choices in life…. [and] to avoid the trap of thinking you have something to lose.”
Tales From Middle School
Each day in English my daughter's class has homework, a quiz, or a test in class. After finishing, they put away their pencils, take out red pens, and grade their own work themselves as the teacher calls out the answers. This time of self-analysis and self-regulation has brought up complex questions.
"I Wish I Hadn't Said That"
There are times in our interpersonal conflicts that – after the fact – we state things like, “I wish I hadn’t said that”. This is along the lines of “If I had it to do over”. It is often a statement made when we acknowledge that something we said triggered off a reaction in the other person that served no purpose except maybe to escalate the dispute. When we are at a point when we are wishing we had not said something, reasons, explanations, apologies, and requests are not generally heard or accepted. These and other efforts to redeem ourselves are not received well and we are left with regret and self-blame.
Can Mediation Work When Harassment is Alleged?
Lucy and Andrew are senior professionals in a small department within a major IT company. Lucy reports to Andrew, but the relationship is an unhappy one. Andrew comes to Karl, the Head of HR, because he’s had enough of Lucy’s behaviour which he describes as difficult, negative, undermining and disloyal. He sees putting her through the Disciplinary process as his only option.
I’m Ready to Resolve! (and you’re not)
In my line of work we talk about the importance of process. People like to know that we’re following a process; we know that everyone needs time to process, and some say it’s all about the process. Individual journeys are, well, individual and just because you’ve decided you’re ready to apologize or tell someone a thing or two doesn’t mean that they’re at a place in their own journey in which they’re willing to sit on a park bench with you and hear you out.
¿Tramitaremos siniestros por Twitter?
En posts anteriores, repasamos la pésima imagen de los call center, la cual trasluce el rechazo a los teléfonos 902 (peor práctica empresarial de 2014) y que está irremediablemente unida a la tramitación de siniestros.
Conflict is Contagious
Mediators, coaches, negotiators, and ombuds- your verbal and nonverbal actions are contagious. As "guides" in assisting people involved in conflicts and disputes, you can help or hinder them on their journey.
Expanding the Pie with Critical Non-Monetary Concessions
Jan Frankel Schau
I had the privilege of learning from Professor Peter Robinson of The Straus Institute for Dispute Resolution that a well-articulated apology can go a long distance towards resolving even the most contentious commercial dispute. Yet, it is such a difficult word to summon when being sued by another person, as it may suggest acceptance of blame, guilt and responsibility for some conduct which has legally been “denied”.
Stew in Your Own Juices
The other day a colleague (I’ll call her Janet) told me she and a co-worker (I’ll call him David) had a heated disagreement about a work matter. Janet went on to say that David called her a few hours after and left a contrite message asking to have a coffee and work things out. She then told me she decided not to reply for a few days to let David “stew in his own juices” for a while. When I asked what she means by that, Janet answered, “I thought I’d just let him feel badly a little longer for being a jerk”.
Collaborative Law in Civil Disputes and Basketball’s Triangle Offense
Michael A. Zeytoonian
For basketball junkies like me, there was a great article in the Fall, 2013 issue of Good magazine about the Triangle Offense. This system was used by Phil Jackson and Tex Winter to redirect the talents of superstar players to work within a system with others team members without restricting their natural abilities. The similarities between using the Triangle Offense and using Collaborative Law to resolve disputes are striking.
You've Got to Go Slow to Go Fast
I don’t like to put things off. I’m for getting everything done as quickly as possible. And even though I’m trained as a planner, I’ve always been more focused on the present than the future. So, when we started the Consensus Building Institute (CBI) in 1983, I was committed to moving quickly to launch a not-for-profit organization that would offer mediation and other neutral services in as many locations as possible, as quickly as possible. We didn’t have a business plan.
Leadership is Defined as a Relationship, Not a Person
I have always maintained that, if people weren’t so afraid of the process of disagreeing, they would have much better outcomes and more creative solutions to problems. Now, Mark Gerzon in Leading Through Conflict: How Successful Leaders Transform Differences into Opportunities, provides sound arguments for why leaders need conflict and how to use it to their advantage to build relationships and organizations. This book is well worth your time.
People Moving: Using the Dimension of Space to get “Unstuck” in Mediation
Jan Frankel Schau
I read Ken Cloke’s newest book, “The Dance of Opposites” over the last weekend and then yesterday I attended an excellent training by my friends and colleagues at the IAM, Tracy Allen and Eric Galton at the United States District Court. They reminded me of a concept Tracy calls, “People Moving” as a means to getting the parties out of position that appears to be heading towards impasse or “stuck”. In essence, the concept is simple in both dancing and negotiating: if you stop moving, the dance is over.
Mediation Assumptions - Are They Necessary?
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Generally-speaking, a common reaction – when we are provoked by something another person says or does (or doesn’t say or do) – is to make assumptions about their motive, character, etc.
This tendency often heightens in intensity and malevolence if the perceived offense is repeated and our emotional reaction increases.