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More This Week's Best Blog Posts
Gratitude For The Law (4/03/15) Bill Marsh This year in the UK we are celebrating the 800th anniversary of the Magna Carta, or “Great Charter”. Interestingly, and less well-known, this deal was mediated.
Federal Court Case Update, Filings and Firings (4/03/15) Richard Birke Following is the start of a new series on the JAMS ADR Blog, featuring short synopses of recent case rulings related to arbitration or ADR. We’re excited to share this information as we know this is an area that will be of interest to our readers and those in the legal industry.
Where Have All The Idealists Gone? Long Time Passing, Part II (4/03/15) Jeffrey Krivis Over the years, a common theme heard among litigators after a grueling case where one side loses is that there must be a better way to manage disputes. In the mid -1970s, legal scholars from around the nation came together to review ways to make the legal process more user-friendly and accessible. They concluded, among other things, that a multi-door courthouse with processes that were designed to fit the forum to the dispute might be worth considering.
How to Be a Problem-solving Superhero Without Fixing it Yourself (4/03/15) Tammy Lenski Years ago, a student came to my office with a problem. I was a dean at the time and I had many appointments like this in an average day. To give you a sense of what it’s like to be a dean, I’ll tell you that when I left that job to begin a new career as a conflict resolutionary, one of the good-bye gifts from my staff was a fire extinguisher “to remember the job by.”
Snap Judgments (4/03/15) Phyllis Pollack Snap Judgments. We all make them … and how they can lead us astray! This obvious point is made in a blog posted on March 2, 2015 on the Harvard Program on Negotiation’s blog website ( entitled “How Snap Judgments Can Lead Negotiators Astray In Negotiation Conversations” ).
When Man First Came Down From the Trees… He Decided to Own the Language (3/31/15) Katherine Graham I am disappointed by the media’s return to the generic ‘he’ and ‘man’. What happened to respect and dignity? I certainly don’t feel respected when I’m told that ‘mankind’s first dwellings were…’ or that ‘a doctor feels he needs to…’. I feel my dignity is under attack when, on challenging this, I am told that a generic masculine is ‘understood’ to ‘include’ women, and that really I am making a silly, outdated fuss about nothing very important.
Joint Sessions: Are Lawyers Right to Hate Them? (3/31/15) Martin Quinn Mention holding a joint session and you are sure to provoke an argument between mediators and teachers of mediation on one side and lawyers who represent clients in mediations on the other. That dichotomy is not wholly accurate because many mediators have also abandoned the use of joint sessions.
Family Law Arbitration Act (3/31/15) Susan Yates People who have been involved with family law are likely to have encountered mediation, especially in child-related issues. But what about arbitration?
Is This the Best Dispute Resolution We Can Do? (3/31/15) Michael A. Zeytoonian I suppose somewhere, some group celebrated the “win” of recapturing Syrian cities as a strategic victory. The problem was that there was nothing left to recapture. Whatever had once been there was gone. The people were either dead, injured or gone. There was no other movement.
Mediation Confidentiality Strikes Again (3/31/15) Phyllis Pollack Once again, an appellate court in California has confirmed the “…near categorical prohibition against judicially crafted exceptions to mediation confidentiality.” In Amis v Greenberg Traurig, LLP et al, (Issued March 18, 2015, Case No. BC 426815) (Id. at 8.), the Court of Appeal for the Second Appellate District held that mediation confidentiality precluded an attorney malpractice action from going forward.
Thirteen Days in September (3/31/15) Joe Markowitz Speaking of peace in the Middle East, I've been reading the new book about the Camp David negotiations by Lawrence Wright. Surprisingly, reading this account made me feel a little more hopeful about the prospects for peace between Israelis and Palestinians, the great unfinished business of the Camp David accords, even though the conventional wisdom in light of Prime Minister Netanyahu's recent re-election is that resolution of the issues in the territories is now a long ways off.
The Primal Roots of Blame, Defensiveness, and Reactivity (3/31/15) Tammy Lenski Handling blame, defensiveness, and high reactivity during conflict can challenge both the informal mediators and professional conflict resolvers among us. I’ve found that the “primal lens” for considering possible roots of these behaviors to be really helpful and want to share it with you.
Become a World Class Negotiator (3/21/15) Victoria Pynchon It's not rocket science and it's not a secondary sexual characteristic. You don't "negotiate like a man" or "like a woman." You read, you practice, you fail, you succeed, you learn.
Blue Bloods and Restorative Justice (3/21/15) Cynthia Alkon As we know, it is rare that any form of dispute resolution makes it onto network television in prime time. Friday night’s episode of Blue Bloods—the New York police drama starring Tom Selleck—featured a story line about restorative justice. Unfortunately, it wasn’t a good example. In the story, a young woman whose family was killed when she was a child got a letter from the convicted killer.
Texas Legislature Considers Measure that Would Require Out-of-Network Emergency Room Providers to Arbitrate Payment Claims (3/21/15) Beth Graham A bill seeking to establish an arbitration process designed to protect patients who are treated by an out-of-network provider during an emergency room visit from being hit with hefty medical charges is currently before the Texas Legislature. House Bill 1638, “Relating to nonpreferred provider claims under a preferred provider benefit plan related to emergency care,” was introduced by Representative Smithee and filed on February 19, 2015. An accompanying proposal was introduced in the Texas Senate on March 12th by Senator Taylor of Galveston.
Conflict Transformation in TV and Movies (3/21/15) Dan Simon My wife and I started using movie and TV clips in mediation training after participating in a workshop facilitated by Baruch Bush and Joe Folger called Rethinking Conflict in 2008. We were so inspired by this teaching and learning tool that we picked up the ball and ran with it.
The Managed Mediation of a Payor-Provider Health Care Dispute (3/21/15) Viggo Boserup Typically, more than 95 percent of mediations are initiated by one or two parties who agreed on a mediator, scheduled the mediation, filed a brief and showed up at the mediation session. The mediation session is often the first time the parties discuss the issues with the mediator or each other.
Where Have All The Idealists Gone? Long Time Passing (3/21/15) Jeffrey Krivis A recent discussion among a seasoned group of neutrals about the struggles of the professional mediator caught my eye. Some complained that the trend in litigated cases was to reduce the value of the mediator to a commodity, due to the constraints put on them by the litigants who were not process oriented.
Blurred Lines: Non-attorneys Representing Parties in Arbitration (3/13/15) Sarah Cole As an arbitrator and teacher of arbitration, I’ve noticed that legal issues are more frequently the focus in arbitration proceedings, both non-labor and labor. I have watched non-lawyer representatives struggle to make legal arguments (although, in fairness, sometimes that is true of lawyers as well). To ensure adequate representation of parties in arbitration involving legal issues, I believe that the parties should be represented by counsel, and that failure to have counsel (rather than non-lawyer representatives) in such proceedings may well be the unauthorized practice of law.
8 Habits of a Conflict Resolver (3/13/15) Vivian Scott Raise your hand if you’ve ever heard someone say, “I don’t do conflict.” It’s the type of statement that can be mindboggling because, really, we all do conflict. Whether small and fleeting or the only thing you can think about for months, we are all in some way or another doing conflict every day.
Minnesota Considers Moving Divorce out of Court (3/13/15) Dan Simon “In our culture, court means contest – it means a fight. . . we’ve culturally viewed divorce as a battle” says Bill Doherty. Doherty says that, no matter how well-intentioned the lawyers, the assumption that judicial supervision is needed greatly increases the risk of destructive conflict arising. Doherty believes that, very often, couples who get divorced without the help of lawyers do better than they would with lawyers. Doherty’s plan takes divorce entirely outside the courts.
There’s Always Time for a Second Opinion (3/13/15) Chris Poole The litigation process is full of variables and, no matter how strong a party’s case might be, going to trial is rarely a sure thing. There is also a tendency for counsel and clients to be overconfident in their assessments of their position. Thanks to the evolution of ADR, however, parties have many options available to them to secure an unbiased, neutral evaluation or second opinion about the strengths and weaknesses of a particular case and trial strategy.
Connecticut Evaluates Mortgage Foreclosure Mediation Program (3/13/15) Shawn Davis In October 2014, the Connecticut Judicial Branch released an evaluation of its Mortgage Foreclosure Mediation Program. The Connecticut study evaluates six years of foreclosure mediation program data, dating from the program’s inception in 2008. As RSI prepares the first evaluation of Illinois’ six foreclosure mediation incubation programs, the earliest of which began accepting cases in December 2013, it’s interesting to review Connecticut’s data and how the program has evolved over time.
First Things First: Design the Arbitration Process You Want (3/06/15) Richard Chernick The principles for drafting a pre-dispute arbitration clause are straightforward. They do require an understanding of the legal relationship, which will be the subject of the clause, some sense of the nature of disputes that are likely to arise and a basic understanding of arbitration process.
Bad Deals (3/06/15) Joe Markowitz Israeli Prime Minister Benjamin Netanyahu's speech to Congress yesterday about the conflict with Iran (transcript here) illustrates an attitude many parties in conflict take toward settlement negotiations. As the possibility of a negotiated resolution of a conflict begins to emerge, elements on one side or the other often find themselves resisting the deal.
“Good Faith” vs. “Naive Realism”? (3/06/15) Phyllis Pollack Perhaps I am an idealist, or even though a baby boomer with many years of litigation experience behind me— a bit naïve. Or –perhaps it is because I am a mediator and so am privy to both sides of the dispute and can see the “story” as an outsider or bystander. I do not know.
Further Thoughts on Armstrong Arbitration Award (2/27/15) Sarah Cole Lance Armstrong was named the winner of the Tour de France in 2002, 2003, and 2004. When Armstrong won in 2004, considerable speculation existed regarding whether he had won cleanly. SCA Promotions, the prize insurer, was reluctant to pay the prize money given the speculation, and ultimately SCA, Armstrong, and Tailwind Sports arbitrated the case.
Teaching Students to Be Problem-Solvers and Dispute-Resolvers (2/27/15) Beth Graham Reports on what lawyers should know, including the MacCrate Report and Educating Lawyers, regularly list problem-solving, negotiation, and dispute resolution as skills that lawyers should have. Best Practices for Legal Education called for law schools to educate students in problem-solving and in practical wisdom, in order to solve clients’ problems effectively and responsibly.
Our Narratives Reflect Who We Are (2/27/15) Tammy Lenski Somewhere in the Pacific Ocean, a single whale calls out again and again and again. Whale 52, as he’s known, has never been seen by humans. But he has been heard. For years. His call has been recorded and it’s in a frequency that matches no other whale species.
Mediation Confidentiality in California (2/27/15) Joe Markowitz Many mediators are troubled by the Milhouse case currently pending in the Ninth Circuit, which recognized a vaguely-defined "due process" exception to mediation confidentiality to allow evidence of offers and demands exchanged in an unsuccessful mediation to be introduced in an insurance bad faith case. In addition, the California Law Revision Commission is currently considering whether to allow an exception to mediation confidentiality in attorney malpractice cases.
Learning From Mediation (2/20/15) Joe Markowitz It seems a shame that the natural tendency of parties and their attorneys is to analyze the issue in legal terms and threaten to go back to court for resolution.
Mediation Program Outreach: Reflecting on What Works (2/20/15) Shawn Davis RSI started running three foreclosure mediation programs in 2014, which means we’ve spent a lot of time over the last year thinking about how to make mediation services more accessible and increase program usage rates. Such issues can be a challenge and often require creativity, especially with limited resources. Here’s what we’ve learned.
A Conversation about Evaluation in Mediation (2/20/15) Dan Simon A made up conversation follows. It’s an amalgamation of conversations I’ve had with mediation trainees.
Mediation Trainee: I get it that mediation is about self-determination. Therefore, when parties ask us to give them an evaluation of their case, shouldn’t we honor that determination they’ve made? I mean they’ve hired us to settle the case, right? Don’t they need to know if their expectations are too high?
Federal Judge Orders Sugar Land Nursing Home Visitation Dispute to Mediation (2/20/15) Beth Graham A Sugar Land nursing home dispute that arose after an elderly resident’s family was banned from a long-term care facility over a number of social media posts has reportedly been ordered to mediation. According to a complaint filed in the Southern District of Texas, Silverado Senior Living barred a woman’s two sons and daughter-in-law from the premises after the individuals refused to remove several photos and videos of their mother at the facility from their social media accounts.
Court ADR Trends for 2015 (2/17/15) Mary Novak Last year perhaps the most visible trend in court ADR was the courts’ use of mediation to address truly large-scale crises. From the mediators who helped opposing groups reach the Grand Bargain that led Detroit out of bankruptcy, to the mediations being used to address thousands of insurance claims that remain from Hurricane Sandy, courts essentially created ad-hoc ADR programs to respond to major crises.
Why I Said “HR Should Be Ashamed of Itself” (2/13/15) Katherine Graham It’s no secret that I can be spikey – and I sometimes rue the things I say after I’ve said them. And, believe me, I do understand why HR Directors need to be at the Board Room table, because without that influence your job is all the more difficult.
When Your Boss Won’t Change (2/13/15) Vivian Scott Who doesn’t have a list of things they’d like their manager to do differently? Everything from the way he slurps that first cup of coffee in the morning to how he plays his staff against one another is a frustration. Though it’s possible to make adjustments in any working relationship, there are still going to be some things that don’t change; no matter your efforts. What then? Here are a few ideas.
Is Conflict Like Driving? (2/13/15) Phyllis Pollack Recently, the Kluwer Mediation Blog posted an interesting discussion about the cognitive biases at play during a dispute. What caught my interest is that the author- Charlie Irvine- used the example of driving to make his point.
Accessing Justice (2/06/15) Joe Markowitz A recent artical in the ABA Journal on movements to license legal technicians to perform limited legal services cited a Bar Foundation study showing that most people encountering what the study called "civil justice situations" either handled the situation themselves, did nothing about it, or enlisted the help of friends and family.
Whisper It Quietly? (2/06/15) Bill Marsh This is a blog I have shied away from writing. Several times. Even now, as I do so, I am wary of it. But here goes. I’ll come right out with it.
The Downside of Evaluation in Mediation (2/06/15) Dan Simon “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 (2/06/15) Beth Graham 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 (1/30/15) Maria Simpson 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 (1/30/15) Jeff Thompson 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? (1/30/15) 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.