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More This Week's Best Blog Posts



Bill Marsh
Mediating Early and Late (6/06/15)
Bill Marsh
It’s not always easy to spot trends. But one that I have noticed over the last year or two is an increase in the number of cases I am being asked to mediate in which litigation or arbitration proceedings have not yet been issued.

Phyllis Pollack
Seeking “Justice” (6/06/15)
Phyllis Pollack
Plaintiffs file lawsuits seeking “justice”. Defendants respond, stating they are seeking “justice” as well. Both come to mediation, seeking “justice”. When I am told this, that each side wants “justice”, I am not sure how to respond because I do not know exactly what that word means.

Richard Barbieri
Presenting Your Presentation: A Few Words (6/05/15)
Richard Barbieri
The passing of William Zinsser leads me to offer some suggestions on writing well in a specific context: applying to present at a professional conference, or seeking to attract participants to a workshop, based on over forty years of both writing and reviewing proposals.

Phyllis Pollack
Competition to Cooperation (6/01/15)
Phyllis Pollack
When I started mediating cases, I never thought that I would have to be aware of or learn advanced mathematics. But a book that I recently finished has shown me otherwise.

Lynne Kinnucan
In This Corner: The Antisocial Personality Disorder (It’s all about me!) Hostage-taker (6/01/15)
Lynne Kinnucan
A few years ago, police in New England cornered a young man, who, after a long hot pursuit from an aborted bank robbery in Vermont entered a residence in Massachusetts, and took a deputy sheriff and his children hostage in their home. This individual, who said he had to rob the bank because his parole agent was demanding he repay the car loan that he lost gambling, met his father for the first time when they were in the same state prison. During protracted negotiations, he rationalized his situation and blamed others for his troubles.

Patricia Porter
Workplace Systemic Issues: Do Your Leaders Really Want to Know? (6/01/15)
Patricia Porter
Like many conflict resolution or ADR professionals who start as a mediator, it doesn’t take long before a mediator doing workplace cases in one organization begins to wonder about the organization’s culture, communication, or leadership skills. “If only the organization had better practices, the mediation (or coaching or training or group facilitation) wouldn’t be needed”, many have thought.

Maria Simpson
Juries of Their Peers (6/01/15)
Maria Simpson
When I was in fourth grade, a few millennia ago, our teacher established a system so we could settle a lot of our own disputes. General mischief-maker, Walter, was elected judge, a decision that completely confounded our teacher, and the class was the jury.

Tammy Lenski
Bearing Witness to Suffering: Mediating in the Shadow of Pain (6/01/15)
Tammy Lenski
Philosopher Simone Weil wrote, "Those who are unhappy have no need for anything in this world but people capable of giving them their attention. The capacity to give one's attention to a sufferer is a very rare and difficult thing; it is almost a miracle; it is a miracle.

Art Hinshaw
Asking Tough Questions About Mandatory Arbitration and Article III (6/01/15)
Art Hinshaw
Our good friend Jean Sternlight (UNLV) sends along her opinions on Sharif, one of last week’s Supreme Court cases and how it impacts the Federal Arbitration Act.

Meredith Richardson
Outwitting Cognitive Dissonance (5/22/15)
Meredith Richardson
We like to believe that we are rational beings who make rational decisions. Sometimes, we are. And sometimes, we are not.

John Lande
Recipes for Success (5/22/15)
John Lande
I love the cookbook that Andrea and 1001 chefs wrote, Cooking Up a Deal: Negotiation Recipes for Success. It’s a wonderfully short and fun piece to assign for the last day of class.

Beth Graham
Checkmate: Early Moves Define Negotiation (5/22/15)
Beth Graham
The Litigation Section of the State Bar of Texas recently published Don Philbin’s article entitled “Checkmate: Early Moves Define Negotiation Outcomes” in its newsletter. In his article, the Chair of the Texas Bar’s ADR Section discusses the insight predictive analytics can provide to negotiators.

Jack Wright Nelson
Waiving the Right to Arbitrate in the United States: Should the Prejudice Requirement be Discarded? (5/22/15)
Jack Wright Nelson
The Sixth Circuit Court of Appeals recently ordered a fund management committee (‘SBC’) to arbitrate its dispute with Navistar International (‘Navistar’) – at Navistar’s request – despite the fact that Navistar refused SBC’s own request for arbitration, ignored SBC’s formal notice of arbitration, and then litigated SBC’s claim in court for over a year.

Tammy Lenski
Control Your Emotions Better by Labeling Them (5/22/15)
Tammy Lenski
If you want to control your emotions better during difficult conversations, do something counter-intuitive: Give up trying not to feel them. Instead, put a label on them. Recognizing and naming an emotion can have a powerful effect on quelling it. Psych professor Matthew Lieberman, author of Social: Why Our Brains Are Wired to Connect, calls it “affect labeling.” You can use affect labeling to help yourself and others.

Joe Markowitz
The Art of Negotiation (5/22/15)
Joe Markowitz
A long time ago, when I was fairly new at law practice, I represented a plaintiff in a contentious sexual harassment case against a large company. After a series of pre-trial battles, the defendant's counsel opened the door to the possibility of settlement, throwing out an insultingly low-ball number. I wasn't sure how to respond.

Phyllis Pollack
The Simplest Way to Negotiate (5/22/15)
Phyllis Pollack
I have mediated over 1400 matters. Thus, I have seen parties approach negotiation in a myriad of ways; some appear to be “winging it” while others appear to have some sort of strategy in mind. The common thread appears to be “self-interest” or how can each party get the best deal possible. Yet, pursuing one’s own self-interest at the expense of the other party often leads to poor results for both parties.

Larry Susskind
Evaluating a Consensus Building Effort (5/22/15)
Larry Susskind
I worry a lot about how to evaluate the success or failure of consensus building efforts in which I get involved. When I try to convince someone in a position of responsibility to commit to consensus building, I need to tell them how they'll be able to gauge the results.

Belinda Jokinen
Divorce Mediation is a Waste of Time (5/15/15)
Belinda Jokinen
I’ve heard it so many times. My clients say that mediation won’t work for them. The most common reason they give is that the other party (ie: {exes} spouse or significant other) won’t agree to anything reasonable. The second most common reason given is that they will only do something if forced to by a Judge. Both are absolutely right.

Gary Direnfeld
Differentiating Between Mediation, Med/Arb and Parenting Coordination (5/15/15)
Gary Direnfeld
There are only so many options available for separated parents to settle their parenting disputes in a way that minimizes lawyer involvement. Chief among them are: Mediation; Mediation/Arbitration (Med/Arb); and Parenting Coordination.

Katherine Graham
Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights (5/15/15)
Katherine Graham
Judith Resnik, Arthur Liman Professor of Law at Yale Law School, has published “Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights,” 124 Yale Law Journal 2015. In her article, Professor Resnik provides a different perspective regarding the effect recent Supreme Court precedent pertaining to class waivers has had on arbitration in the United States.

Dan Simon
The Meanings of May Fourth (5/15/15)
Dan Simon
My social media feed was filled with clever posts yesterday (May 4th, 2015.) The Stars Wars geeks in my life are many and so were the “may the fourth be with you” memes. But every time I saw “May 4th” a very different image came to my mind. In 1970, four students were killed and nine others wounded by gunfire from the National Guard at Kent State. I went to Kent State in the 90’s, not knowing much about the events of May 4th.

Phyllis Pollack
Beyond “Being Difficult”! (5/15/15)
Phyllis Pollack
Recently I read an article about two lawyers assaulting each other during a deposition being conducted in the courthouse. Two attorneys were arrested and charged with simple assault on Wednesday after they got into a heated dispute that turned into a fist fight at the Bergen County Courthouse in Hackensack, authorities and witnesses said.

Beth Graham
Fundamentally Unfair: An Empirical Analysis of Social Media Arbitration Clauses (5/08/15)
Beth Graham
Our systematic examination of 329 of the world’s largest social media providers reveals that 29 percent of these providers require users to submit to predispute mandatory arbitration as a condition of using their services.

Bruce Friedman
Mediation Impasse-Busting Techniques (5/08/15)
Bruce Friedman
There comes a time in every mediation when negotiations reach an impasse. Negotiations can stall at the outset of a mediation when the parties are unwilling to bargain with one another either because “it is the other side’s turn,” “we won’t respond to that outrageous demand” or “we won’t accept that insulting offer.”

Kimberly Ackmann
Bringing Court ADR Programs into the Courtroom (5/08/15)
Kimberly Ackmann
As the RSI foreclosure mediation team continues to incubate foreclosure mediation in Illinois, we have explored a variety of ways to reach out and connect with homeowners who could benefit from our programs’ services. One approach has been to establish our programs’ presence at the courthouses where homeowners are attempting to navigate the foreclosure process. Going to court can be an overwhelming or intimidating prospect for homeowners facing foreclosure.

Andrea Maia
New Winds from Brazil (5/08/15)
Andrea Maia
In the late 90’s in Brazil, a sudden interest in Mediation started to develop under the influence of the newly enacted Argentinean legislation (1995). Unfortunately, just until a few years ago, mediation had grown at a very slow pace, with a few advocates effortlessly lobbying for its widespread implementation and for a local legislation.

Tammy Lenski
Conflict Resolution Activities: The Fist Press (5/08/15)
Tammy Lenski
When I’m mediating, coaching, or training, there are moments I want to illustrate why resistance builds up. There are moments I want to help someone understand in a quick and visceral way that pushing their agenda relentlessly is contributing to getting things good and stuck.

Phyllis Pollack
The Slippery Slope (5/08/15)
Phyllis Pollack
Everyone enters into a negotiation with the intent to be honest. But- ay- that is the “rub”. One party’s (“Jane”) definition of “honesty” may be different than the other party’s (“Mary”). Why? Research has shown that one’s honesty will vary with the environment.

Katherine Graham
Good Practice Framework (5/01/15)
Katherine Graham
“Universities should include mediation in their framework for handling student complaints,” says the IOAHE – and so say all of us at CMP! The formal process is long, complex and saps everyone’s time and energy; most students with complaints about staff behaviours and attitude would prefer to talk it out, in our experience.

Richard Birke
Federal Arbitration Case Update | Bound and Determined (5/01/15)
Richard Birke
APMM contracted with Noatex to build a building and Noatex subcontracted with King. When Noatex deemed King’s work inadequate, King filed a stop work notice and informed APMM that Noatex owed King $260,000. This matter resulted in APMM’s interpleading the money while the federal court in Mississippi figured out who was entitled to what.

Joe Markowitz
Applied Decision Theory (5/01/15)
Joe Markowitz
Richard Birke, a law professor at Willamette University, gave a talk at the ABA Dispute Resolution conference expressing frustration with the term "Alternative Dispute Resolution." The term is too limiting to describe the many ways that the skills of negotiation, mediation, and other forms of conflict resolution can be applied in practice.

Tammy Lenski
Just Be Reasonable (5/01/15)
Tammy Lenski
When a person is very angry, the part of their brain associated with being reasonable and articulating reasonable thoughts more or less shuts down. Closed for business. Sign on the door — go away, can’t do this right now.

Ian MacDuff
On Inquiry (5/01/15)
Ian MacDuff
This blog entry arises not so much from any mediation, but from one aspect of regular social encounters that is all too normal a part of negotiation and mediation. As the title suggests, it’s about the role of inquiry, asking questions – not merely gathering information, but going beyond that in the expression of interest in one’s social contacts and especially the other disputant.

Michael Moffitt
Whisper, "Here's My Contact Information; Don't Accept Anything Until We've Talked." (4/24/15)
Michael Moffitt
In this morning’s Chronicle of Higher Education, an article entitled “Time to Change the Rules of Negotiation,” focusing on entry-level employment negotiations, what’s negotiable, what’s reasonable, and what’s not.

Beth Graham
Use and Perception of International Commercial Mediation and Conciliation: An Empirical Study (4/24/15)
Beth Graham
This Article analyzes results from the first-ever large-scale international survey regarding the use and perception of international commercial mediation and conciliation by the international legal and business communities.

Jeffrey Grubman
ADR is on the Rise in Employment Cases (4/24/15)
Jeffrey Grubman
While there is a long history of utilizing arbitration in the labor union context, the majority of employment disputes have historically been litigated in federal court.

Martin Svatos
And What is Your Biggest Achievement in Mediation? (4/24/15)
Martin Svatos
The MBB was founded in 2006 in order to promote mediation not only in the USA but also worldwide. Its main task is expressed in the following motto: “The only lasting peace is the one built by the disputants themselves.”

Phyllis Pollack
To Build Rapport- Laugh Together! (4/24/15)
Phyllis Pollack
Well- we missed it! March 20 was International Day of Happiness. Evidently, it was created by a United Nations Resolution passed at its 118th plenary meeting on June 28, 2012, declaring March 20th of each year to be the holiday. As one might guess, the resolution was promoted by the Kingdom of Bhutan which has a Gross National Happiness Index.

Mary Novak
Domestic Violence Finding Overrides Agreement to Mediate (4/17/15)
Mary Novak
A case in the Appellate Division of New Jersey Superior Court stands as a reminder of the complexities of family mediation when domestic violence is involved. Indeed, the court found that a finding of domestic violence can trump a requirement to mediate.

Richard Birke
Federal Employment Case Update: Pizza and Beer (4/17/15)
Richard Birke
When Jacqueline Conners brought a class action lawsuit against her employer Gusano’s (alleging unlawful tip pooling practices), Gusano’s instituted an arbitration policy that required individual arbitration of any disputes.

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