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More This Week's Best Blog Posts
Dallas COA Affirms Arbitral Award Despite Evident Partiality Claims (9/26/14) Beth Graham The Fifth District Court of Appeals of Texas in Dallas has affirmed a trial court’s order confirming an arbitral award in a dispute between a residential builder and several homeowners. In Meritage Homes of Texas, L.L.C. v. Ruan, No. 05-13-00831-CV (Tex. App. – Dallas, September 16, 2014) a group of individuals who bought newly built homes from Meritage allegedly learned that their houses were smaller than the square footage that was represented to them prior to purchase.
On Collaboration (9/26/14) Ian MacDuff Many companies and their executives have embraced the imperative of sustainability, but it’s that step into a collaborative approach that still seems too hard.
When to Fight (9/26/14) Joe Markowitz President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world.
Prisoner’s Dilemma Game Show (9/19/14) Andrea Schneider In class earlier this week, we rebooted the idea of the prisoner’s dilemma as previously portrayed on The Bachelor Pad (discussed on the Freakonomics Blog and four years ago on this site). This time, the conversation revolved around a British game show called Golden Balls that was very popular several years ago. I can only assume that you’ve already discounted Golden Balls’ educational value based on its name alone but bear with me . . .
Never Cut What You Can Untie (9/19/14) Cinnie Noble Recently on the Conflict Coaching Guild on LinkedIn I asked members if they would share idioms, phrases, metaphors and other expressions on conflict that they like. There are many I had not heard of and one of those is the title of today’s blog – never cut what you can untie.
Should Your Next Mediator Be An Avatar? (9/19/14) Phyllis Pollack Once again, The Economist has reported on an interesting study concerning artificial intelligence and psychology. In its August 16, 2014 edition, the authors of "The Computer will see you now" discuss a study in which the participants chatted with an avatar.
New AAA Consumer Arbitration Rules are Now in Effect (9/19/14) Beth Graham On September 1st, new American Arbitration Association (AAA) Consumer Arbitration Rules went into effect. The 55 new rules reportedly replaced the eight Consumer-Related Disputes Supplementary Procedures that previously applied to consumer arbitrations filed with the organization. The new rules apply to all arbitral cases filed after September 1, 2014
Creating Spaces for Effective CVE Approaches (9/19/14) Jeff Thompson Have a look at the following. It reminds me firstly of Bernie Mayer's Beyond Neutrality- if we as conflict resolution professionals are seeking to make an impact in the world, perhaps we have to move beyond the neutral role of mediators (and other neutral roles).
The ADR Provisions of EU Privacy Laws (9/19/14) Kim Taylor Companies doing business globally have a variety of complex issues to deal with, not the least of which is concern about the security of personal data collected from their customers.
Lawyers Benefit from Transformative Mediation – Video (9/12/14) Dan Simon Why hasn’t transformative mediation swept the world of litigated disputes with represented parties? A new video reveals that there’s no good reason. While the transformative approach has succeeded in the US Postal Service workplace mediation program, and while some community mediation centers and family mediators have embraced it, the realm of civil litigation continues to be dominated by far more directive approaches.
Mediation Briefs: Do’s and Don’ts (9/12/14) Martin Quinn Here are some Do’s and Don’ts from a mediator’s perspective to help you prepare your mediation briefs. Treat the event with the importance it deserves, and start by preparing an effective, timely brief.
What Did Labor Day Teach Us About ADR? (9/12/14) Susan Yates For a while in the evolution of the ADR field, when two neutrals met they would sometimes ask what the other’s “profession of origin” was. What they meant was, “what did you do before you were a mediator?” There were some unspoken questions packed in there, too. They wanted to know, are you a full-time neutral or are you really from some other profession and trying to break into this one?
High Conflict Personality: Are you sure? (9/12/14) Tammy Lenski High conflict personality: Are you sure?
"He's such a high conflict personality that I'm scared to disagree with him." "She's high conflict and I don't think any of these approaches will work with her." "How can we best deal with high conflict personalities in the workplace?" "I've been labeled 'high conflict' and I'm blamed for starting every argument."
Truth, Justice, and Peace (9/12/14) Joe Markowitz One of the top reasons people advance for being reluctant to agree to a negotiated resolution of conflict is that they cannot abandon the quest for truth and justice. I just heard this feeling expressed recently in a mediation between two former business partners who each felt betrayed by the other.
ADR as a First Career (9/05/14) Art Hinshaw There has been a lot of discussion on DR list serves about the next generation of ADR professionals, practitioners and academics. For recent graduates interested in pursuing a career in ADR, the advice they often receive is to first practice law or gain experience in another field before transitioning to ADR as a 2nd (or even 3rd) career. I assume this advice stems from the personal experience of those giving it – as this was the career path of ADR’s founding generation. But is this necessarily the narrative for our next generation?
The Last Word (9/05/14) Cinnie Noble When we are in an interpersonal conflict we may find ourselves reacting when the other person tries to have or succeeds at getting the last word. Or, we may be the one who is trying or succeeds in doing so. According to one source, the definition of the phrase the last word includes: “the last thing said in an argument”; “information that everyone considers to be the best”; “the right to make a decision that everyone must obey”; and “the newest and best type of something”.
Preventing Conflict in the Workplace by Taking Time for Yourself (9/05/14) Vivian Scott I just got back from a holiday with my significant other and as I get ready to take a long weekend with family, I’m thinking about how fortunate I am this year to be taking so much time off. I realize not everyone has the same opportunity, so I thought I’d share some ways in which one can take a vacation at work without actually taking time off.
Texas Supreme Court Agrees to Decide Whether Construction Dispute Should be Arbitrated (9/05/14) Beth Graham The Supreme Court of Texas has agreed to review whether an arbitration clause applies to a construction dispute between a developer, a builder, an architectural firm, and others. In G.T. Leach Builders, L.L.C. v. Sapphire VP, LP, No. 13-0497, a condominium complex was destroyed by a hurricane while still under construction. Prior to the hurricane, the builder, G.T. Leach, apparently allowed its insurance coverage to lapse. As a result, the builder lacked sufficient funds to rebuild the condominium project or make the owner whole again. In response, the developer, Sapphire, filed a lawsuit for breach of contract and negligence in Cameron County against the builder.
Employment Mediation Requires a Unique Touch (9/05/14) Jeffrey Grubman Although the fact patterns of employment cases vary considerably, there is always a common theme. The plaintiffs believe they have been mistreated by their employers, and the employers almost always deny the factual allegations.
Law Professor Transformed (9/05/14) Dan Simon Professor Sherry Colb, who teaches criminal procedure and evidence at Cornell Law School, took a training in transformative mediation this spring and it blew her mind. You can read the full text of the article she wrote about it here. In her article Colb explains the fundamentally different assumptions that underly the legalistic paradigm as compared to the transformative paradigm. Here are a dozen of the insights that the training inspired in her:
Do Unethical Leaders Foster Conflict Among Followers? (9/05/14) Nick Redding Recent events, such as the BP Gulf of Mexico oil spill, questionable accounting practices at Enron, and illegal hiring practices among Silicon Valley’s most prominent companies, are just a few among many examples of unethical organization leadership practices today.While the impact of unethical leadership practices on local communities is often times immeasurable, what is less well understood is the impact of this type of leadership inside the organization. Specifically, how does unethical leadership impact those individuals working under it?
Getting to Yes…or No?! (9/02/14) John Sturrock On Thursday 4 September, Collaborative Scotland hosts a Day of Dialogue which will focus on respect and reconciliation in the lead up to, and after, the independence referendum in Scotland on 18 September. It is not about Yes and No but how we will live and work together regardless of the outcome of the referendum.
Balancing Fairness with Justice (9/02/14) Jan Schau As an arbitrator (or a Judge) we have limits–on our outward demonstration of compassion, our creativity in crafting appropriate and fair remedies and our moral indignancy where wrongs occur without remedies. As poorly as we may feel about how someone was mis-treated, we are constrained to follow the letter of the law (even where it may be at odds with it’s “spirit”) and dole out remedies only where each element of a given cause of action has been proven by a preponderance of evidence together with actual, credible, available damages. Yet, life is messy.
Seven Challenges When Using the Neuroscience Lens to See the World (9/02/14) Stephanie West Allen Over the years, I have learned that people reading this blog come from a wide range of belief systems, including atheist, agnostic, and those involved to large or small degree in various spiritual and religious practices. Although this blog post to which I am linking today is written by a Christian and part of the post is from a Christian perspective, I think anyone can learn from this article.
Procrastination! (9/02/14) Phyllis Pollack In the last few weeks, I have published blogs about the way we think. That is, while we use System 1 throughout most of the day, it is intuitive, lazy, and emotional and does not always lead us down the correct path. In contrast, our System 2 is analytical, deliberate, slow, effortful and rational. It takes effort to use it, uses up energy, and being the lazy souls that we are, we tend to default to System 1 thinking as much as possible.
Philosophy (9/02/14) Joe Markowitz We know that mediators sometimes need to act as an amateur psychologist, an amateur economist, an amateur diplomat, an amateur judge, or apply other kinds of expertise to help resolve conflict. That's what makes the practice of mediation so interesting. We might not have realized that mediators also need to act as amateur philosophers. This book provides great approaches to look at many of our clients' questions.
What Happens on the Bus, Shouldn’t Stay on the Bus! (9/02/14) Patricia Porter With the start of 2014-2015 school year in full swing, children across the country will be boarding the school bus to arrive before the morning bell sounds. According to the National Highway Safety Administration, school buses are the safest mode of transportation for getting children back and forth to school. But how safe is a child from the other children inside of the bus? School bus bullying is becoming a growing concern among parents, school administrations, and bus drivers. According to the U.S. Department of Education 10 percent of school bullying occurs on the school bus. Stopbullying.gov defines bullying as “unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time.
Be Sure To Get Some Sleep ! (8/22/14) Phyllis Pollack Once again, another study has connected sleep deprivation with cognitive function. And, it provides some good news and some bad news. The bad news is that if a party witnesses an event while sleep deprived, and then is asked later to recall the event while still sleep deprived, she will recall it inaccurately; that is, she will have a false memory of it.
When the Mediators Pay the Highest Price (8/22/14) Martin Svatos Recent development in the Near East reminds how long and disastrous the Arabic-Israeli conflict is. Unfortunately, it has already claimed thousands of victims and every one of these tragedies could narrate a specific and sad story. One among them is especially important to be commemorated since it recounts a life and work of the first UN mediator who had saved thousands of prisoners in the Second World War and who was later killed carrying out his duties.
Managing Construction Conflict: Unfinished Revolution, Continuing Evolution (8/22/14) Renee Kolar Thomas J. Stipanowich, Academic Director of the Straus Institute for Dispute Resolution, William H. Webster Chair in Dispute Resolution, and Professor of Law at the Pepperdine University School of Law just completed yet another article for a special issue of The Construction Lawyer titled: Managing Construction Conflict: Unfinished Revolution, Continuing Evolution; Pepperdine University Legal Studies Research Paper No. 2014/22.
Marching Together (8/22/14) Joe Markowitz What a remarkable turnaround we witnessed today in Ferguson, Missouri, where five days of protests in the wake of the shooting death of Michael Brown this past weekend, had been met with police armed to the teeth with military weapons and tactics. But when Governor Nixon finally decided to replace the local police force with state highway patrol officers, the situation changed almost immediately. Today the new representatives of law enforcement started marching with the protesters, and a much different atmosphere returned to the streets.
“Tell her Capt. Johnson is sorry and he apologizes.” (8/15/14) Cynthia Alkon Five days ago, an unarmed eighteen year old, Michael Brown, was killed by a police officer in Ferguson, Missouri. As is all too commonly the situation, Mr. Brown was African American and the police officer who did the shooting (as with most of the police in Ferguson) was white. An investigation is on-going, but the reports of what happened are disturbing enough that there have been protests since Mr. Brown’s death.
Upsetting the Applecart (8/15/14) Cinnie Noble When we accuse someone of upsetting the applecart we generally think that person is causing trouble and creating difficulties by doing or saying something that challenges the status quo. Of the four variations of the source of the expression that I read about, the most basic and generic derivation refers to farmers in the 1800s who would bring applecarts loaded with neatly piled, fresh apples for sale to market.
Mediator Ethical Breaches: Implications for Public Policy (8/15/14) Beth Graham Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services.
Is Being Adaptive in Conflict Better than Being Purely Cooperative? (8/15/14) Regina Kim Recent studies have shown that being adaptive in conflict situations (employing resolution strategies that fit with different types of situations) is associated with more satisfaction with conflict outcomes and well being at work than using cooperative approaches. This finding largely contradicts decades of research showing that more cooperative forms of negotiation, mediation and conflict management work best at work. Coleman & Kugler (in press) found that managers and executives who were adaptive – or had the capacity to use various conflict strategies (i.e. benevolence, dominance, support, appeasement, autonomy) in a way that fit the demands of the situations they faced were more satisfied with their conflict outcomes and processes.
Big Mac Attack: Is the Franchisor a Joint Employer? (8/15/14) Joel Grossman On July 29, 2014, the National Labor Relations Board (“NLRB”) issued a brief statement that could turn labor law in the world of franchising upside down. The NLRB’s General Counsel stated that it plans to go forward with a number of complaints that allege unfair labor practice claims against McDonald’s USA, LLC.
Online Dispute Resolution Conference Videos (8/12/14) Alberto Elisavetsky An International Conference on Online Dispute Resolution, ODR2014, brought together the technology and dispute resolution communities, legal practitioners, mediators and other ADR professionals, academic researchers, financial institutions, ecommerce companies and social media companies, members of judiciaries worldwide, and social justice advocates using innovative technologies to leverage change. ODR2014 is the thirteenth ODR Forum and the first to be held in the United States. This article is a recording of one of the speakers, Dr. Alberto Elisavetsky.
Compensation for a Dismissed Arbitrator? (8/08/14) Gunther Horvath The Austrian Supreme Court (OGH) confirmed that an arbitrator who is dismissed during the arbitration by a state court because of conflict of interest before the award is rendered may recover compensation for (useful) services rendered until dismissal.
Remembering to See the Wood for the Trees – A Mediator’s Reality Check (8/08/14) Sabine Walsh “When you look into the abyss, the abyss looks into you.” (Nietzsche)
Relationship breakdown and the resulting fall-out is an abyss most people do not like to look into, even as they tumble into it. As family mediators, our job is to accompany and support people’s navigation into, through and, hopefully, out of the abyss again.
Grievance Procedures and Mediation Policy Goals (8/08/14) Jennifer Shack Parties to court mediation in Florida have the opportunity to submit their complaints regarding a mediator to a robust grievance process. The structure includes four stages: committee review to determine whether a complaint is facially sufficient; a preliminary review of rules that may have been violated and the mediator’s response to the complaint, which are used to determine probable cause; a meeting between mediator and complainant; and a formal hearing.
Time Lord Mediators (8/08/14) Clare Fowler As a culture, we really like there to be a bad guy, a reason why things went south, a scapegoat, someone who started it, leaving us feeling pretty clear and blameless and dang good about ourselves. But what if . . . shudder to even say it . . . we are all a little good and even (deep breath) a little bad?
Three Lessons About ADR (8/08/14) John Cratsley Having recently completed a manual about the ADR process, there are three features of mediation that jump out at me as noteworthy, but are often overlooked by the practitioner. First are the multiple opportunities for the alert attorney to engage opposing counsel in a mediation of a pending court case without seeming too eager to mediate.
Developmental Negotiation: Preliminary Stage (8/01/14) Alex Polsky Developmental negotiation involves a plan and execution of the development of all five stages to maximize the likelihood of a beneficial outcome. The five stages are preliminary, preparation, information, negotiation and closing.
Authorities Crack Down on Foreclosure Rescue Scams with “Operation Mis-Modification” (8/01/14) Shawn Davis Recently, the foreclosure mediation team at RSI has been thinking a lot about foreclosure scams and mortgage modification fraud. Now that we’ve launched foreclosure mediation programs in Lake, Kane and Winnebago Counties here in Illinois, we’ve been focusing on how to provide quality housing counseling and mediation services and get the word out to the public that these services exist.
Dynamos, Cruisers, and Losers (8/01/14) Geoff Sharp Before I left my law firm in the late 1990's David Maister, a Boston management guru of whom many of you will know, was the darling of every large service firm, especially in the law and accountancy fields.
He has long since retired but at his height he was good, very good – despite being a former Harvard Business School professor, he had a practical wisdom that could cut through the management gobbledygook I was struggling with at my firm’s monthly management meetings at the time.
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”.