More This Week's Best Blog Posts
The Downside of Evaluation in Mediation
“Based on my years of experience as a litigator and as a judge, I’d say your latest positions are both within the reasonable range for this case. I’d say the plaintiff’s demand of $200,000 is on the high side of that range; and I’d say the defendant’s offer of $100,000 is on the low side of that range. So I’d say that any settlement you arrive at now, between those numbers, would be a good deal for both sides, considering the costs and uncertainty of continued litigation.”
To Publish, or Not to Publish Arbitral Awards: That is the Question
Einer R. Elhauge, Petrie Professor of Law at the Harvard Law School, has authored “To Publish, or Not to Publish Arbitral Awards: That is the Question…,” 81 International Journal of Arbitration, Mediation and Dispute Management, Number 1, 2015. In his research paper, Professor Elhauge examines some potential pros and cons of establishing a publication mechanism for international commercial arbitral awards.
Truly Constructive Conflict
A friend and I were talking about how different people work and how their different ways of focusing on a problem can lead to new problems even as they all work toward the same goal. It was an interesting insight, and I wanted to use it as a way of understanding how conflict in groups or teams can be generated without people even realizing the source.
Quick Point on Empathy
I've been doing quite a lot of research and training lately on empathy. Needless to say, I think it is one of the most important words in existence, and it is even more important to practice it- regardless of your profession.
Is Mediation the Golden Opportunity to put a Square Peg in a Round Hole?
Jan Frankel Schau
I learned something last weekend about laws in other nations when I had drinks with a colleague from the U.K. and another from Ontario, Canada at the Board meeting of the International Academy of Mediators. In both of those Countries, the law protects an employee from termination unless there is cause (poor performance or wrongful conduct) or a legitimate financial need to downsize.
Mediation Advocacy – Countdown to a Successful Mediation
Barbara Reeves Neal
Lawyers and mediators sometimes fail to appreciate that a mediation requires as much advance planning and consideration of strategy as a trial. Too often, lawyers (and some mediators) pick up the file a day or two in advance (at best) and wing it, relying on their advocacy skills and smarts to negotiate their way through the mediation day.
Privatizing Mass Settlement
University of Georgia School of Law Assistant Professor Jaime Dodge has published “Privatizing Mass Settlement,” 90 Notre Dame L. Rev. 335 (2014); UGA Legal Studies Research Paper No. 2015-2. In her scholarly article, Professor Dodge examines privatized bilateral mass settlement as an alternative to both arbitration and multi-district litigation.
Teaching in a World of Racism Without Racists?
As the Martin Luther King Jr. weekend comes to an end, and as a new semester is beginning, I am thinking about how we talk about race, and how we handle race, both in the classroom and in the larger society. Clearly the events in Ferguson last year, the unfortunately not uncommon killing of a young black man by a police officer coupled with the all too common failure to criminally prosecute the police officer, is just one aspect of the larger issues in our society.
Benefit Vs. Purpose
My first mediation of 2015 settled based on pragmatism. It was a lemon law matter filed under California's Song Beverly Consumer Warranty Act - Civil Code Section 1792 et seq. Plaintiff purchased the vehicle from a neighbor somewhat on a whim, thinking she would use it for commuting. Unfortunately, Plaintiff found herself taking the vehicle in for repairs quite frequently- too frequently for her liking. While Plaintiff thought the vehicle to be a "lemon", the defendant manufacturer took a hard look at the repair orders and found that many of the concerns were repaired after one attempt.
Neutral Analysis and Second Opinions
Corporate counsel—under seemingly never-ending pressure to contain costs—have a wide array of dispute resolution tools available to them, including negotiation, mediation, arbitration and litigation. There are other devices, however, that merit consideration at any stage of a dispute.
“Investment Arbitration Is Now On Broadway, And The Critics Are Not Being Kind”
That was the assessment of Constantine Partasides QC, founding partner of Three Crowns, during his keynote address to the joint ITA-IEL conference. According to Mr. Partasides, there is a developing consensus among states that it is acceptable, and even virtuous, to challenge investor-state arbitration as an infringement on the rights of the public to pass laws through their democratically-elected representatives.
Fifth Circuit Reverses Course in Construction Defect Case
The Fifth Circuit Court of Appeals has reversed its prior decision affirming summary judgment in favor of an insurance company that refused to pay an arbitral award in a construction defect case. In Crownover v. Mid-Continent Casualty Co., No. 11-10166, a Texas couple, the Crownovers, initiated arbitration against the company that built their defective home, Arrow. After an arbitrator ruled in favor of the homeowners, the builder filed for bankruptcy protection. The couple next sought to recover damages from Arrow’s insurance company.
Mediator Horror Stories
I’m in the process of finishing up an article inspired by a horrific local mediator who, as a result of his “mediation” actions, now resides in the state penitentiary.
U.S. Supreme Court Asked to Review Case Where Mediator Conflict Existed
The United States Supreme Court has reportedly been asked to review a federal court’s order refusing to set aside a jury’s verdict where a court-appointed mediator failed to disclose his close personal relationship with a partner at the law firm representing several of the defendants. In CEATS Inc. v. Continental Airlines, Inc., et al., No. 14-681, CEATS filed a patent infringement lawsuit in the Eastern District of Texas against Continental Airlines, Ticketmaster, and a number of other corporations over the companies’ alleged use of CEATS’s technology in certain seat selection software.
The Big Irish “What If?”
A couple of years ago in January I wrote a post on likely developments in Ireland in the New Year which, if I recall correctly, had the expression “High Hopes” in the title. Those hopes related primarily to the publication of a new, comprehensive piece of legislation on mediation and the impact it might have upon the practice and profession of mediation.
Fees of the Successfully Challenged Arbitrator?
In its decision of 17.2.2014, the Austrian Supreme Court decided on a claimant’s request for reimbursement of the portion of the fees advanced to the arbitrator whom it had successfully challenged during ongoing proceedings and on his liability for frustrated costs caused by the challenge and the appointment of a new arbitrator.
On Forced Arbitration
Over the past year or so, critics of consumer and employment arbitration have coined a new term for what ADR scholars have historically called mandatory pre-dispute arbitration: “forced arbitration.”
Taking a Fresh New Look at Conflict
Jan Frankel Schau
The New Year is a great time to push “refresh” on all subjects. I spent the last week going through my (now adult) children’s closets and getting rid of the things that we will no longer return to: huge computer systems with no screens or monitors, outdated televisions which can’t play cable, the expensive, must-have tennis shoes that every boy needed in High School a decade ago. I also took the last week or two to purge old paper work (as my son says–no modern businesses even use “file cabinets” these days).
Was there ever an opportunity for peaceful resolution of this civil rights conflict? We see President Johnson acting at times a little bit like a mediator between King and Governor Wallace, but no real attempt was made at creating a dialogue that could resolve the dispute.
The Mediator as Process Designer
A mediator is a facilitator who has the skill to work around or overcome obstacles to settlement created by parties or their counsel. In particular, when negotiations have gotten the parties close to a settlement, the skilled mediator is able to keep negotiations moving even when the parties are prepared to give up.
The Year of Arbitrator Authority
Liz Kramer at Arbitration Nation has compiled a thorough year in review of arbitration cases decided on a variety of topics in 2014. Her blog post, entitled “2014: The Year of Arbitrator Authority,” addresses state and federal court decisions on validity, formation, preemption, vacatur, and, of course, arbitrator authority.
A New Dawn for Mediation?
The Singapore International Mediation Centre (“SIMC”) was officially launched on 5 November 2014. Set up following the recommendations of a Working Group chaired by Edwin Glasgow CBE QC and George Lim SC, the SIMC will supplement the array of international dispute resolution options available in Singapore.
In an exchange of letters published in the most recent issue of the New York Review of Books, commenting on an article last month about reforming the plea bargaining process by Federal District Judge Jed Rakoff in New York, Judge Rakoff defends his proposal to get judges more involved in plea bargaining by comparing it to the way mediation is offered to civil litigants in the same court.
Building Trust in Volatile Situations
The recent "Siege in Sydney" provided me with the chance to consider how the Trust Edge illustrates a workable approach even in the most volatile, life-threatening and unpredictable situations.
Wanting It Too Much
Imagine a marine layer floating over a coastal town. A family in this town is hopeful that the sun will burn the fog away so they can go to the beach and enjoy the great weather. The day seems to go on forever and the sun never comes out. The children are totally bored and expect their parents to figure out ways to keep them busy.
4 Tips for a Stress-Free New Years
The holidays can be a cheerful time — with plenty of work, it seems. But with loads of family smashed into tiny spaces, many find themselves feeling less than jolly. Lashing out is common around the holidays. But Dr. Tammy Lenski, a conflict resolution trainer and author of The Conflict Pivot: Turning Conflict into Peace of Mind, has a few tips for keeping your gathering from turning into a war zone.
Giving Yourself Permission
The holidays are upon us, and with them come the usual stress and tension that family events often bring. Over Thanksgiving, I had an experience that put it in perspective for me. Although I am supposed to be the conflict resolution person, it was a cousin that gave me a very much needed "reality check", if not "permission" to think differently about family loyalty.
Moral Imagination Revisited via Jon Hyman
F. Peter Phillips
The recent confluence of my Conflict Transformation work with the New York Yearly Meeting of the Society of Friends (Quakers) and the richly rewarding session offered by David Hoffman at the April 2014 Meeting of the ABA Dispute Resolution Section have made me increasingly aware of the moral component of non-adjudicative conflict resolution.
Mediations Are Supposed To Be Confidential... But Are They Really?
Many times a mediator has analogized mediation confidentiality to the television ad, "What happens in Vegas, stays in Vegas" to explain the sacrosanct nature of mediation confidentiality. But, are mediations really confidential? This article was reposted to ensure mediators are fully aware of this important topic.
How You Go About Resolving Your Dispute Is Up To You
Michael A. Zeytoonian
One point we want to drive home with clients in this series about tiered dispute resolution clauses is that parties have the right and the need to find the right process choice. Not only do parties have options, but with good, creative advice from their lawyers, they can sometimes design the process so that it is tailored to their needs, bandwidth and the circumstances of the specific dispute.
What's the Right Thing to do When You are Really Angry About What's Happening in America?
Students are marching in the streets to protest the recent killings of Black Americans. They want those in positions of power to acknowledge that these deaths are, at least in part, the result of unchecked racism that is still very much alive in our country. Whatever progress has been made over the past fifty years to address inequality, unfairness, racial bias, ignorance, lack of empathy and unequal opportunities, there is still a long way to go before everyday life in America aligns with the ideals we espouse as a nation.
What an 8-year-old Taught Me About Life
Playing games brings out the worst in us," normalized these feelings for me. I am not the only one who feels a little yucky during the game as the competitive spirit takes over, while, at the same time, there is no clear path to controlling the situation so as to create the best possible outcome for myself. The need to win can bring out the worst in each of us.
Najar on Dispute Management 2.0
F. Peter Phillips
Najar, his colleague Michael McIlwrath, his former colleague PD Villarreal, and others at General Electric were responsible for pounding into my head two distinctions. The first was the concept of “dispute management” rather than “dispute resolution,” and the other was “Early Dispute Resolution” rather than “Alternative Dispute Resolution.”
Non-Judicial Means of Collective Redress in Europe
S.I. Strong, Associate Professor at the University of Missouri School of Law, has published a book chapter entitled Non-Judicial Means of Collective Redress in Europe in Collective Redress in Europe (Oxford University Press, anticipated 2015); University of Missouri School of Law Legal Studies Research Paper No. 2014-29. In her book chapter, Professor Strong analyzes large-scale arbitration and other non-judicial avenues for collective redress in Europe.
Retire Already! Why?
This article discusses retirement in non-traditional fields such as mediation and teaching. Should there be a set retirement age?
It Is All In Your Perspective!
The December 2014 edition of The Atlantic contains an interesting article entitled "The Real Roots of Midlife Crisis" by Jonathan Rauch. In it, he notes that mid-life crisis is not a unique reality to the United States. Rather, it is a worldwide phenomenon explained by science and more particularly the "U" or happiness curve.
The Californication of Mediation
The rise and rise of the mediator’s proposal  and other evaluative interventions by many of our number, along with the relentless demise of the joint session, are all part of a larger lurch to the right for mediation practice.
Mediator’s Proposals: God’s Gift to Mediation, or a Betrayal?
Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system. The great early teachers and scholars of mediation — Frank Sanders, Christopher Moore, Leonard Riskin and others — envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path.
I recently stumbled upon a useful analogy that I used in our required Lawyering course, namely that lawyers are like “conflict doctors.”
In the Midst of Ferguson Chaos, an Apology Done Right
It would have been easy for Louis Head to blame his raging words the other night fully on the grand jury. Or on the Ferguson, Missouri police department. Or on Office Darren Wilson. Or on racism and injustice. And if he had, there’d be a lot of people who would have given him a pass under the circumstances.
Arbitration Trends in 2014
A survey recently conducted by Today’s General Counsel asked in-house attorneys about their thoughts on arbitration. The results published in Arbitration Trends 2014 indicate that nearly half of lawyers surveyed normally choose arbitration over traditional litigation because it is required by contract. In addition, 38 percent stated they select arbitration because it is less expensive than litigating a case and the process preserves confidentiality.
Behind Mediation’s Smoke and Mirrors
Positive mediation outcomes are fairly common, which you might think is down to the magic of mediation. But there are several implicit reasons why mediation outcomes are high, which aren’t generally to do with the quality of the mediator! I want people to understand the reality of mediation and what it can achieve, and not to be taken in by the rhetoric you’ll find on some websites.
Having an Axe to Grind
According to wiseGEEK “There are two meanings to the phrase ‘an axe to grind’. The first meaning is the traditional American one, which means having an ulterior motive or personal reasons, other than the obvious, for doing something. The British meaning is to hold a grudge or a grievance against someone or something.”
Talking About Ferguson
We have started the last week of classes in ADR this week and usually, at this time in the semester, I turn to the overarching subject of how to counsel clients when choosing among different dispute resolution processes. Last night, I took a deep breath, and asked the class to think about the situation in Ferguson.
Use and Perception of International Commercial Mediation and Conciliation
The project was constructed with two goals in mind. First, the study attempted to discover and describe current behaviors and attitudes relating to international commercial mediation and conciliation so as to set a benchmark for further analysis in this field. Second, the research attempted to determine whether the legal and business communities thought an international instrument in this area of law would be useful and if so, what shape they believed that document should take.
Improve Your Communication: Use Earplugs!
Guest blogger Kees van Eijk writes, "It started as a communication problem between my spouse and me. But my hearing impairment has remarkably become the most important instrument in my communication toolbox." Turning an impairment into a benefit.
The Key “Moral” from Stories Mediators Tell
The theme of the 2014 Mediation Week was inspired by Stories Mediators Tell, a moving and illuminating collection of stories about the often dramatic facts of mediation life that Editors Eric R. Galton and Leila P. Love coaxed from a diverse group of experienced mediators to share with the rest of us.
My Least Favorite Part of Conflict
My least favorite part of conflict is not the conflict itself, nor is it any argument that may result. It's the aftermath. It could be that the conflict remains unresolved. It could be that things were said that deeply hurt one or both people, and that hurt feelings have been lingering for quite some time and only recently voiced.
Trials, Part One
Mediation is often touted as a better alternative to taking a lawsuit to trial. It usually is; but I believe that is still the wrong comparison to make in most cases.
Mediator’s Proposals? A Story…
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I have never been a great fan of mediator’s proposals. I took the view that the mediator’s job, done well, was to help the parties to come to a solution themselves. Party autonomy and all that. Achieving a satisfactory outcome, I thought, shouldn’t require a specific suggestion by the mediator.