Employers can require their workers to sign arbitration agreements waiving all rights to class-action lawsuits over workplace grievances, a federal appeals court ruled Tuesday. The ruling from the 5th U.S. Circuit Court of Appeals overturns a National Labor Relations Board decision last year that found such agreements conflicted with federal law giving workers the right to pursue collective action to complain about workplace conditions. The court's ruling is a win for businesses that want to limit legal exposure from the rising cost of class-action lawsuits over unpaid overtime and other wage violations. But it's a blow to workers who find it easier to band together when challenging the policies at a large company. read
A long-running battle over whether the top U.S. securities regulator should release records about its supervision of Wall Street's arbitration process is about to go another round, this time with input from a vocal consumer advocate. For nearly four years, a group of lawyers has been pushing the U.S. Securities and Exchange Commission to release documents about its oversight over how the Financial Industry Regulatory Authority selects arbitrators who hear legal disputes between brokerages and investors. FINRA, the Wall Street industry-funded watchdog, runs the arbitration forum where investors and brokerages must resolve their legal disputes. The Public Investors Arbitration Bar Association (PIABA), a lawyers' group pushing for the release, has now enlisted lawyers of its own. The litigation arm of Public Citizen, a consumer rights group in Washington, filed a brief on PIABA's behalf in a federal appeals court last week to overturn a U.S. district court's earlier decision to keep the records a secret. read
Steinbrenner High School seniors Katya Brioni and Erica Maurino are part of a group of students trying to make a difference. According to them, they have no choice but to deal with uncomfortable realities of life, and sometimes get in the faces fellow students – but it’s all worth it. They are part of the Steinbrenner Peacemakers, a peer mediation group that deals with almost every issue that makes their fellow students uncomfortable, especially when it comes to bullying. read
Afghan police have recorded more reports of violence against women under a recently enacted law, but prosecutions remain low, a U.N. report says. "The landmark law on the Elimination of Violence Against Women was a huge achievement for all Afghans," U.N. High Commissioner for Human Rights Navi Pillay said in a release. "But implementation has been slow and uneven, with police still reluctant to enforce the legal prohibition against violence and harmful practices." read
In the field of Alternative Dispute Resolution, mediators, among other things, help people in dispute come to a mutually acceptable resolution about issues they do not agree on. Each party typically holds a disparate perspective from the other on what constitutes an appropriate settlement. By the time they get to talk it out in the mediation process to see if they can resolve matters, they have often become entrenched in their positions and the relationship is suffering. read
Professor S.I. Strong, Associate Professor at the University of Missouri School of Law (and a friend of this blog) has published “Beyond International Commercial Arbitration? the Promise of International Commercial Mediation,” 42 Washington University Journal of Law and Policy, 2014, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2013-21. In her article, Professor Strong examines the role of mediation in international business disputes. read
There comes a time in many class actions when the parties agree to mediate. Like class litigation, the mediation of class actions, whether pre-certification or post-certification, is more complicated than the mediation of individual cases. Here are a few tips for making the most of the experience. read
To the two pessimistic sides in ongoing peace talks, John Kerry quoted Nelson Mandela, who said of challenges: "It always seems impossible until it is done." U.S. Secretary of State John Kerry closed another Middle East troubleshooting mission on Friday by urging Israel and the Palestinians to follow Nelson Mandela's lead and make peace. The death on Thursday of Mandela, who fought apartheid in South Africa and became its first black president, was mourned across the globe, including by Israelis and Palestinians — the latter calling him an inspiration for their statehood struggle. Kerry wants to coax the two sides towards a negotiated accord, and set a nine-month deadline when talks were launched in July. But both sides have indicated they are pessimistic about the outcome. Before departing from Tel Aviv after a two-day visit to Israel and the Palestinian territories, Kerry quoted Mandela as having said, in the face of challenges, that "it always seems impossible until it is done." read
Arbitrators in disputes between investors and brokers will get more pay for their work, the brokerage industry's self-regulator decided Thursday, people familiar with the matter said. Lawyers and arbitrators hope the pay rise, the first in 14 years, will attract more--and more skilled--arbitrators. The Financial Industry Regulatory Authority Inc., which oversees the arbitration process, approved an increase in compensation for hearing arbitrators. Finra's board agreed to raise pay by 50%, to $300 for half-day dispute hearings and $600 for full-day sessions, according to people familiar with the matter. The chairperson of an arbitration panel is to receive an extra $125, an increase of 67%, these people said. The pay increases are "long overdue," Philip Aidikoff of Aidikoff, Uhl & Bakhtiari, a Beverly Hills, Calif., law firm that represents mainly investors who seek compensation from brokers for investment losses. "It's an acknowledgment that the arbitrators, for the most part, do a very good job and take it very seriously." read
TRI-CITIES MICHIGAN — As much as people hope to avoid it, conflict exists in life. Whether it's the board room, the bedroom, the classroom or at City Hall, conflict crops up with the potential to destroy. There's also the potential for growth, and for understanding. That's the goal of The Resolution Center, a conflict resolution clearinghouse which now serves the Thumb. TRC is one of 18 community mediation centers located throughout the state, and has been in existence since 1993. The non-profit center is funded by a state grant from the Michigan Supreme Court, civil matter filing fees and a variety of foundations and fundraisers. TRC's expanded coverage area includes Macomb, St. Clair, Lapeer, Sanilac, Huron and Tuscola counties. TRC provides non-adversarial mediation to businesses, individuals, neighbors, families and more. Persons can choose the process on their own; some may be referred by or ordered through the court system. read
Espanol: Finalizó el Primer Encuentro Federal de Mediadores (11/15/13) Alberto Elisavetsky El Encuentro Federal de Mediadores, organizado por el Ministerio de Justicia y Derechos Humanos de la Nación y el Ministerio de Justicia de Salta, duró tres días. Participaron personas de diversas provincias del país y de países de Latinoamérica. El segundo encuentro será en Buenos Aires, el año próximo.
Green Spaces and Aggression (11/15/13) Karen Hollett Many people have experienced how a walk in the woods on a beautiful Fall day can clear our minds and make us feel good. Whenever I have a problem to solve, I find that a walk on the river trail near my home helps me think more clearly and some of my best ideas seem to arise spontaneously while I am enjoying the colours, scents and sounds of the trail.
Beware the Bully Negotiator (11/15/13) Jan Frankel Schau I have just finished reading Professor Dwight Golann's excellent book, "Sharing a Mediator's Powers". It was timely in that last week I mediated a contentious wrongful termination case in which one of the advocates was a notorious "bully".
What is Your S.W.O.T.? (11/15/13) Phyllis Pollack A few months ago, I attended a board of directors meeting of the SCMA Education Foundation. At the meeting, the president started talking about "S.W.O.T. Analysis". Not having majored in business, I had no clue to what she was referencing.
Helping a Friend in Conflict (11/08/13) Tammy Lenski When friends, loved ones, and colleagues tell us about a conflict they’re experiencing, how we respond helps shape their conflict story. And what they do next.
Information Please (11/08/13) Phyllis Pollack There is a study by Art Hinshaw and Jess K. Alberts about ethics in negotiations using practicing attorneys from metropolitan Phoenix and metropolitan St. Louis, Missouri who were asked how they would react in hypothetical situations during mediation. The results indicated that only about 62% of the attorneys would act ethically in a hypothetical negotiation while 19% indicated they would not act ethically, and the remaining 19% were not sure how they would react in the hypothetical situation.
Mediating in Cases in Domestic Violence – Between a Rock and a Hard Place (11/08/13) Sabine Walsh The question of whether, and how, to mediate with couples who have experienced or are experiencing domestic violence or abuse has challenged and divided mediation professionals for many years now without consensus on how to handle such cases having been reached. Domestic abuse can be a contra-indicator for mediation for a number of reasons, mainly however that it is likely to compromise the equality of bargaining power, the free interaction with and the voluntary participation in mediation.
Contact is Good (11/08/13) Regina Kim Intergroup conflicts are prevalent in our society. In organizations, we often see tension between departments, units, workgroups and teams. Although workgroup relations in organizations should be cooperative and allow for positive intergroup contact, they have been found to provide fertile ground for intergroup conflict. Such conflicts have been shown to negatively affect employee well-being because they contribute to bullying and stress.
How You Can Make A Difference (11/07/13) Jason Dykstra This article discusses the Community Justice Initiatives. Since the Stride program has begun, they’ve supported 71 circles and in the past 3 years, only one of those women have ended up back in federal custody. The majority of women that have been through the Stride program have went on to have productive and successful lives.
Know Your BATNA and WATNA (11/04/13) Jan Frankel Schau Looking at your BATNA and WATNA, a term that most business students learn, but law students seldom know will make you look smart and may improve the outcome for your client, too.
Med-Arb and the Legalization of Alternative Dispute Resolution (11/04/13) Beth Graham Use of Med-Arb, a dispute resolution process incorporating both mediation and arbitration, is on the rise. Much of the recent interest in Med-Arb stems from the growing similarity between arbitration and litigation, and a resulting decline in Arbitration’s popularity. The formalization of mediation and arbitration provides incentives for combining the two and using Med-Arb to “correct” for the legalization of these ADR processes.
When to Use Mediation (11/04/13) Rebecca Foreman When is it the right time to use mediation? Our advice is always suggest mediation: explain its benefits; and encourage the party to talk to CMP without obligation, to see if mediation is the right option for them!
So What is this Different Kind of Legal Advocacy? (11/04/13) Michael A. Zeytoonian There is a special niche in the legal profession for the role of focused representation, serving clients as settlement counsel or collaborative counsel. As clients demand better value in legal services and as lawyers are driven to develop better ways to serve their clients, this new niche will continue to grow.
On Settling Employment Cases (10/25/13) Michael P. Carbone All too frequently the employment relationship leads to disputes that result in litigation. Mediators see a wide variety of claims, such as wrongful termination, harassment, discrimination, and violation of wage and hour rules.
Reflections on Conflict, Respect and the RPM (10/25/13) Karen Hollett The Reasonable Person Model describes the environmental conditions under which people are more likely to "be at their best." The model is premised upon three basic and simply articulated - but vitally important - domains which describe human needs and inclinations.
Begin the Mediation Before the Hearing (10/25/13) Jan Frankel Schau Call me old-fashioned, but I think it is critical to have a voice to voice conversation with every lawyer involved in a litigated case before the mediation begins. This week, I failed to follow my own cardinal rule because after the first conversation with the defense lawyer, I knew that my hardest effort would be to get his clients on board with an earnest interest in settling the dispute.
You Started It (10/25/13) Tammy Lenski Which one started it? I heard someone ask. I think her dog started it, replied the other, pointing to the chagrined-looking spaniel. A third person said, Well, you never know, the other dog might have sent a signal the spaniel didn’t like. On the discussion went as the bystanders tried to figure out which dog had started the 10-second ruckus.
The Good and bad of Eye Contact (10/25/13) Phyllis Pollack Is eye contact a good thing or a bad thing? Some will answer by saying it depends upon the person's cultural background as Westerners value sustained eye contact while Middle Easterners and/or Asians will view it as inappropriate. Others will answer by saying it depends on which study is under discussion. 1 Comment
The Importance of Culture in Conflict Resolution (10/25/13) Chris Poole At a Mediation Week panel discussion in New York, a panel of seasoned ADR professionals, including two JAMS mediators, a doctor of Anthropology, a New York Police detective and an organizational consultant, explored the role culture plays in conflict resolution.
Consistently Inconsistent: The Need for Predictability in Awards (10/25/13) Beth Graham In investment treaty arbitrations, the stakes are high. It is not uncommon for claims to be asserted for hundreds of millions of dollars, and for the costs to resolve such disputes to run into the millions of dollars. Despite the substantial sums involved in resolving such disputes, there exists no uniform practice on awarding costs and fees in investment treaty arbitrations.
Are You Always Right? (10/18/13) Joanna Wares When emotions are running high it is easy to discount the value of the opinions of others. This quote by Winston Churchill “The greatest lesson in life is to know that even fools are right sometimes.” is a great reminder that the other party may have ideas and insights that are worth exploring.
Lessons from Improv Actors for Negotiators (10/18/13) Jan Frankel Schau This week, I'm preparing a couple of talks on negotiation skills and conducting some research which has lead me to draw upon improvisational acting class. One of the cardinal rules of improvisational comedy, (as in negotiation), is "offer" and "acceptance".
Washington Could Use a Little More Mediation (10/18/13) Chris Poole Most of us were at least slightly frustrated by Washington’s inability to reach agreement over budget and debt limit issues in the past weeks and months. In fact this kind of dysfunction and brinksmanship has become more of a regular pattern than an aberration. Clearly the issues are complex as in any political debate and blame can be placed just about anywhere. 1 Comment
Are you a Nervous Negotiator? (10/18/13) Phyllis Pollack Do you have sweaty palms and a churning stomach whenever you have to negotiate something? Or, are you as cool as a cucumber during such events. A recent study indicates that your nervousness or lack of it affects the outcome of your negotiations.
Attorneys and Negotiation Ethics: A Material Misunderstanding? (10/18/13) Art Hinshaw Our research suggests that a true norm of ethical negotiation behavior exists within the legal profession. This conclusion is tempered, however, with the knowledge that a large minority of our research respondents — at times approaching one-third of them — engaged in unethical and even fraudulent behavior.
Incrementalism (10/18/13) Joe Markowitz Should we be celebrating the fact that Congress finally voted yesterday to allow the federal government to re-open and pay its bills? The bi-partisan agreement to re-open the government merely preserves the status quo for a short period, and leaves open the possibility of another round of brinksmanship very soon.
Does Freedom of Speech Have Limits? (10/15/13) Andrew Weisberg The case of Justin Carter has raised important issues regarding the line between Constitutional rights and public safety. If a person is accused of making a terroristic threat, however, he can be locked up during the investigation.
Negotiating With Fallible Memories: Buyer Beware (10/15/13) Phyllis Pollack When it comes to relying on our memories in negotiation, the cautionary tale is buyer beware! Once again, another study has been published demonstrating that our memories are quite fallible. They are simply not nearly as reliable as we think they are, and consequently, we should not rely on them in the courtroom (or in everyday life, for that matter.)
Getting Unhooked From Interpersonal Conflict (10/15/13) Tammy Lenski You’re familiar with hooks: Hooks for hanging coats, hooks for fishing, hooks for crocheting, hooks in computer programming, hooks in barbed wire. They share a kindred function: To intercept and snag, to catch and hold. But what is the role of a hook in mediation?
Keys to a Successful Personal Injury Mediation (10/15/13) Alex Polsky Mediating personal injury disputes is an art, not a science. At the core of a personal injury claim is an injured – or deceased – party, with loved ones and family members who are intimately involved in the case. All of these human factors weigh heavily on the mediation process.
Sticks and Stones May Break My Bones (10/15/13) Cinnie Noble Do you remember the expression “sticks and stones may break my bones but names will never hurt me”? If so, you may also recall, as I do, that it was (and may still be) a stock response to verbal bullying in grade school playgrounds. The meaning is evident and is simply described by one resource as follows: “A response to an insult, implying that ‘You might be able to hurt me by physical force but not by insults’.”
Is Mediation Ready for Primetime? (10/04/13) Debra Oliver Claudio Ruben and Charles Fox both took mediation training, a mediator and trainer of 23 years. Years later, they hooked up to create a one-hour television drama about a very robust full-service mediation firm located in colorful Santa Fe, New Mexico.
Mediation and the Meta-Metaphor Too (10/04/13) Randy Drew You – like me – are probably not unique in any particular significant way, but you – like I – are significantly unique when all things are considered. So that makes us the same, in a very particular way, on any given day; absurd? I long to be irresistible, consistent, and correct. What ends-up being consistent is my inability to meet those three objectives, simultaneously.
What is Mediation and How Can it Help Me? (10/04/13) Joanna Wares When business or personal disputes and arguments reach a point where communication stops or becomes adversarial, it’s difficult to know what to do next. Many turn to litigation but there is an alternative. Mediation, as a practice is extremely effective in helping parties find solutions. So successful that statistics of 75% to over 80% success rates have been published in voluntary mediation.
Subpoena of Third Party’s Documents in Aid of Arbitration (10/04/13) Shaun Lee This is a good and interesting example of how the Singapore courts can and will exercise its powers in aid of an arbitration. It is a good example of the importance of the courts assisting the process of arbitration while minimising curial intervention.
Washington Shutdown and Divorce Mediation (10/04/13) Jeff Murphy Most of us who are trained mediators learned the process of “Principled Negotiation”. It’s the theory behind Roger Fisher and William Ury’s Great work -”Getting To Yes”. It teaches how to negotiate without compromising principles but by examining each parties’ positions and exploring the underlying needs and interests to create options that can help reach fair and equitable solutions and settlements. 1 Comment
Getting Unhooked from Interpersonal Conflict (9/27/13) Tammy Lenski Getting unhooked from interpersonal conflict is not unlike freeing yourself from a barbed wire fence. There you are, squeezing between two rows of barbed wire, on your way to reaching a beautiful flower you wish to photograph, and the wool sweater your grandmother knitted you inadvertently becomes snagged. There is no going forward until you free yourself.
Be Mindful and Name That Feeling (9/27/13) Stephanie West Allen Brain imaging now supports what psychotherapists, writers, and the philosopher Baruch Spinoza have observed: Simply recognizing and naming an emotion quells its effect, making thoughtful management of subsequent behavior more likely. Psychotherapists employ this phenomenon when treating patients.
Advanced Negotiation Training (9/27/13) Larry Susskind Larry Susskind discusses his thought process for examining what an advanced mediation class should include. He examines what the basics of a basic mediation class should cover, and what he thinks an advanced class should cover.
Spreading ADR Best Practices Around the World (9/27/13) Chris Poole Although many countries have not developed formal ADR processes as part of their legal systems, dispute resolution practices have been in place practically since the beginning of time. These practices have taken on many forms in different societies and they continue to evolve and mature. While many of us think of ADR only in a legal and commercial context, some of the most effective systems in the world exist in some of the least developed economies.
Online Dispute Resolution (ODR): What is it, and is it the Way Forward? (9/27/13) Beth Graham This article provides a concise explanation of the notion of “dispute resolution” in cyberspace. It reviews some of the recent studies on the use of Online Dispute Resolution (ODR), especially the use of e-negotiation, e-mediation and e-arbitration, considers the issues concerning the intricacies of settling and resolving disputes in cyberspace and concludes that the idea of banishing offline dispute settlement and dispute resolution methods — in the near future — is extremely unlikely ever to come true.
Make No Assumptions in Mediation (9/20/13) Jan Frankel Schau The problems encountered by the Plaintiff are generally laid bare in pleadings and through discovery by the time of a mediation hearing. After reading and reviewing a comprehensive mediation brief, we mediators can get to a place of thinking we know the darkest secrets which lead to the conflict. But as a wise mediator said to me once, "you don't know what you don't know". For this reason, it's unwise to make any assumptions.
The Mediator's Life (9/20/13) Tammy Lenski I remember the first time I succeeded in a mediation. I was a newbie mediator, just barely out of my studies and on my own. A university dean I knew from my own days as a college dean hired me to mediate a nagging workplace conflict involving eight women in the same office. 2 Comments
PG&E to Settle San Bruno Pipeline Explosion Claims (9/20/13) Chris Poole Utility giant Pacific Gas & Electric Co. will pay out $565 million in legal settlements and other claims stemming from the 2010 natural gas explosion in San Bruno, Calif., that killed eight people and devastated a neighborhood, company officials said.
The Not-So-Effective Vindication Decision (9/20/13) Beth Graham This article provides commentary on the Supreme Court’s decision relating to classwide waivers in arbitration clauses in American Express Co. v. Italian Colors Restaurant, and immediate reception of the Court’s decision by the Second Circuit Court of Appeals. In one of the most closely-watched classwide arbitration cases on the 2012-13 docket, the Supreme Court in Italian Colors Restaurant was asked whether the “effective vindication rule” required access to class arbitration in federal antitrust litigation where an individual plaintiff’s claim was too small to be litigated separately. In a 5-3 decision (with Justice Sotomayor not participating) a divided Court ? led by its conservative wing ? responded with a resounding “no.”
Dealing with Your Ex’s New Other (9/20/13) Allison Pescosolido For many, some sort of relationship with your ex exists beyond divorce. Whether you have children, business interests, or other things in common after divorce, you may have to confront a new love interest in your ex’s life. Below are five tips to help you interact with the new other and maintain your personal integrity.
Bury Your Head in the Sand (9/20/13) Cinnie Noble It’s not likely that burying our heads in the sand when in conflict helps to solve matters, mend the relationship, or clarify assumptions and perceptions. Sometimes though it may be the best tact.