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Vengeance Shall Never Be Yours! (8/01/14) Phyllis Pollack In a recent post, I discussed that the best way to calm someone down is to address the emotion and not the words. I learned this in a training session with Douglas E. Noll. However, I did not explain the theory behind this strategy.
Using Diplomacy in Negotiation (8/01/14) Jan Frankel Schau n my humble opinion, neither missiles nor trials are effective at getting the message across to an unwilling, unreceptive party. Instead, we should choose our negotiating partners wisely by picking the person whom we most trust to carry the message of our people or our cause with the most respect, tact, and reserve, but forcefully and convincingly.
Which System Is In Control? (7/26/14) Phyllis Pollack In his bestselling book, Thinking Fast and Slow, Daniel Kahneman (Farrar, Straus and Giroux, New York, 2011) notes that our brains contain two systems of thought: System 1 which "... operates automatically and quickly, with little or no effort and no sense of voluntary control" (Id. at 20) and System 2 which "...allocates attention to the effortful mental activities that demand it, including complex computations...." (Id. at 21.)
Prisoners (Spoilers!) (7/26/14) Joe Markowitz In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation programs and texts.
Facebook’s Templates for Conflict Resolution and Court ADR (7/26/14) Mary Novak Facebook recently announced its creation of a self-guided dispute resolution system for users. The company has designed a new user-to-user conflict resolution system that could have implications for court ADR systems as well. As in the courts, Facebook must process a large number of conflicts. While the company manages reports of issues such as threats and graphic violence, they wanted to provide users with tools to handle insults and embarrassing photos on their own. The company worked with a team from Yale to research users’ needs and design a large-scale conflict resolution system.
Start Spreading the News: Mandatory Mediation Comes to New York (7/26/14) Lorraine Brennan As someone who started her legal career as a litigator, I, like many other litigators, viewed mandatory mediation with both skepticism and some suspicion. When my client was sent to court-ordered mediation by a judge in the SDNY in the 1990s, I assumed that my adversary and I would merely tick the “attendance” box and return to the judge to let him know that mediation had failed to resolve our complex dispute. 1 Comment
Transformative Mediation, Slovenia, and the Wright Brothers (7/26/14) Dan Simon Many times throughout the Transformative Mediation Congress, I saw mediators explore various aspects of the transformative approach– how it looks in practice, what it means to be non-directive, how to talk to clients as a transformative mediator. We grappled with what this work means to us and to our clients. We discussed ways to help people understand this different approach to conflict resolution. The participants were willing to embrace the challenges of applying the Transformative Approach to their practice and wrestle with them.
Stepping into Someone's Shoes (7/26/14) Cinnie Noble The phrase stepping into someone’s shoes – the subject of this week’s blog – is commonly used to describe a way to envision the situation from the other person’s perspective. As one source said, “only the wearer knows where the shoe pinches”.
ABA / Straus Institute Survey (7/18/14) Tom Stipanowich One of the three recent surveys undertaken by the Straus Institute in 2013 as part of the Theory-to-Practice Research Project was a survey of corporate counsel co-sponsored by the American Bar Association’s Section on Public Utilities, Communication and Transportation (PUCAT) ADR Committee.
FINRA Appoints New Arbitration Task Force (7/18/14) Jill Gross FINRA announced today the formation of a new Arbitration Task Force “to consider possible enhancements to its arbitration forum to improve the transparency, impartiality and efficiency of FINRA’s securities arbitration forum for all participants.”
Do You Flip Your Lid? (7/18/14) Cinnie Noble I was unable to find the derivation of the expression flip your lid, but I have heard it used to describe an excessively angry reaction. In recent years I have heard the term apoplectic used when referring to extreme rage and for me, the meaning of these two expressions are similar. The visual of flip your lid however, conjures up an interesting image of the top of the head blowing open – presumably with fury propelling it. Perhaps, the expression symbolizes the emotional part of the brain (limbic area) becoming over-activated and overflowing with anger, pushing out the front of the brain (pre-frontal cortex) which loses its capacity to think! 2 Comments
Case Study: The Mediating Manager (7/18/14) Katherine Graham Sian is the Communications Manager for a UK charity and has recently appointed James, a designer whose job required frequent contact with production officer Helga, who had worked with Sian for over 3 years. Sian had a sinking feeling that things were not going too well between James and Helga, but Sian was busy and, optimistically, had put the tensions down to early teething troubles and hoped she could leave them to sort out their differences ‘as adults’.
EBay y Sotheby’s se asocian para transmitir subastas de arte por Internet (7/18/14) Alberto Elisavetsky La compañía de comercio electrónico eBay y la casa de subastas Sotheby’s para transmitir en directo Internet algunas de las subastas que tengan lugar en la central de la casa de subastas en Nueva York. Se hará a través de una nueva plataforma que la empresa australiana de comercio electrónico añadirá en su página web, y se planea que el siguiente paso sea que los internautas puedan pujar desde cualquier parte del mundo. Las dos empresas tienen previsto centrar esta apuesta digital en segmentos como la joyería, los relojes, los grabados, la fotografía, el vino y el diseño del siglo XX.
Hope and Hopelessness in Intractable Conflicts (7/18/14) Jen Hull Have you ever been involved in a conflict you just couldn’t imagine being resolved? In other words, a conflict that was so entrenched, you felt hopeless? Researchers studying the role of emotions in the context of intractable (lengthy, all-encompassing, and possibly violent) conflicts have begun to look at the emotion of hope to understand what effect it can have on conciliatory attitudes.
Angry Faces Win Negotiations (7/12/14) Jeff Thompson Research has found that facial expressions can convey more information than verbal communication alone and a new Harvard University study has found that an angry glare can add effectiveness to a negotiator’s demands.
Walking Away with Grace (7/11/14) Cinnie Noble Sometimes when we are in conflict with another person we are faced with a dilemma about what we are or are not willing to say or do, or give or take, to reconcile matters. Though at some level of consciousness we want to settle things, there are times when we realize that what it may take to do so would compromise our values and needs.
The Settlement Drift (7/11/14) Jeffrey Krivis According to commentator Rachel Maddow in her book “Drift,” the way the United States goes to war has gradually become more secretive and less democratic. She observes that in the last half century, the decision to go to war has become too easy. This is contrary to what the Founders of our nation had in mind. Hence, we have “drifted” away from our founding principles about war.
Rewriting Your Conflict Story (7/11/14) Jason Dykstra During recess in elementary school, I was playing pickle with some friends at the side of a baseball diamond. We were in our own little world; trapping people between the bases, faking out the runners, diving to tag our friends so that we could switch spots. We were having a great time until . . .
20 Questions Every Corporate General Counsel or Head of Litigation Might Ask in Mediation (7/11/14) Michael Leathes Being responsible for resolving a large number of disputes for any organization is a stressful occupation. It involves risk, cost and resources and navigating between leadership and management, success and failure as well as blame and experimentation. Although there is no magic bullet, the task can be aided considerably by harvesting the answers to the following twenty questions, and devising an action plan where weaknesses are exposed.
Jumping From the Frying Pan into the Fire (7/07/14) Cinnie Noble It happens in conflict that things frequently escalate in a way that results in the other person or us making things worse. The expression “jumping from the frying pan into the fire” applies here as an idiom that generally means escaping a bad situation for a worse situation. According to one source, “it was made the subject of a 15th-century fable that eventually entered the Aesopic canon”. Here is the story in brief.
Courage to Manage: Evaluation Summary (7/07/14) Rebecca Foreman Demand for ‘soft skills’ training to prevent conflict is growing, and our clients have increasingly been asking for alternatives to classroom training that will effect behaviour change in a more cost-effective and less time-consuming way. We developed our latest e-learning package, The Courage to Manage: having essential conversations at work, in response.
Me, Myself, and I (7/07/14) Vivian Scott 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… (7/07/14) Sabine Walsh 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 (6/30/14) Dan Simon 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?
Arbitrator Selection (6/30/14) Kim Taylor 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” (6/30/14) Mary Novak 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 (6/30/14) Andrea Maia 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 (6/30/14) Alberto Elisavetsky 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.
Multi-tasking (6/30/14) Joe Markowitz 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? (6/20/14) Cinnie Noble 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 (6/20/14) Beth Graham 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 (6/20/14) Richard Chernick 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 (6/20/14) Phyllis Pollack 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.
Confidentiality Revisited (6/13/14) 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 (6/13/14) 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 (6/13/14) Abraham Miller 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. 1 Comment
Arbitration as a Means of Avoiding Class Actions (6/13/14) 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.
Patent Litigation (6/13/14) Joe Markowitz 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.
Anger Management (6/13/14) Phyllis Pollack 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 . . . (6/13/14) Nadja Alexander "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 (6/06/14) Art Hinshaw 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 (6/06/14) Renee Kolar 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 (6/06/14) Catherine Yanni 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 (6/06/14) Mary Novak 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 (6/03/14) Michael Moffitt 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 (6/03/14) Cinnie Noble 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 (6/03/14) Alberto Elisavetsky 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 (6/03/14) Jeff Thompson 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 (6/03/14) Joe Markowitz 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.
Employment Disputes (5/23/14) Joe Markowitz 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.