5/23:Research project analyses practice of mediation in two public hospitals in Valencian Community
The research project from the Universitat Jaume I de Castellón (Spain) analyses the practice of mediation in two public hospitals in the Valencian Community through cases that involved a team of mediators over two years. read
5/23:Oregon House votes to extend foreclosure mediation
The Oregon House has voted to extend a requirement that some mortgage lenders meet with struggling borrowers and a professional mediator before initiating foreclosure proceedings. The mediation requirement was first adopted last year. It applies only to certain foreclosures that are processed outside the courts. The measure approved Wednesday would extend it to all foreclosures. The majority of foreclosures in Oregon have long been processed outside courts, but they shifted to the judicial system after an appellate court ruling last year. Proponents hope the mediation will lead to an agreement that would allow borrowers to keep their home. The measure goes next to Gov. John Kitzhaber. read
5/23:The Pedestrian–Cyclist Armistice Reached with Online Negotiation
Following in the footsteps of Amsterdam; Portland, Ore.; and Washington, D.C., among other cities, New York is set to launch its bike-share program, Citi Bike, on Memorial Day. New Yorkers have met the impending influx of bikes with both excitement and dread. Slate convened a summit between a representative cyclist and a representative pedestrian to see if they could defuse tensions a bit. Rules were proposed via email and ironed out with a short G-chat session. A bilateral, 10-point resolution to end the decades-long conflict between walkers and bikers is the result! read
5/21:Judges assigned, mediation dates set in MSU mass litigation
Several lawsuits have been filed in state court against Mountain State University regarding its accreditation. A December order referred pending or subsequently filed state court cases to the mass litigation panel. According to this order, all of these cases involve "harm caused to plaintiff as a result of Mountain State University's loss of its general accreditation, special accreditations in its nursing and nurse anesthetist programs and any other educational programs that require independent accreditation." read
5/21:Mediation Continues in Suit to Block LG Project
Mediation between lawyers for a group preservationists and LG Electronics is ongoing after the effort to find common ground in a lawsuit to block the company's proposed Englewood Cliffs headquarters began early this month, representatives for both sides said Monday. At issue is LG's plan to build a 143-foot high office complex visible above the Palisades in Englewood Cliffs. The preservations say the building will tarnish the scenic cliffs. LG, however, contends the project will bring much-needed jobs to the area and features an environmentally friendly design. read
5/13:Africa: Mediation can stop costly conflicts
The cost of conflicts on Africa’s development between 1990 and 2005 was about $300 billion (about R272.31bn), according to Oxfam International findings published in 2007. The study, “Africa’s Missing Billion”, shows that our continent loses an average of $18 billion a year because of armed conflicts. This is a clear demonstration of the imperative need for peaceful conflict resolution through mediation in Africa. read
5/08:Westchester group asks for mediation on LAX runway change
A Westchester community group is seeking legal mediation with the city of Los Angeles regarding a plan to move a runway at Los Angeles International Airport. The request comes two days after the Los Angeles City Council approved, on a vote of 10-3, a proposal to move the airport's northernmost runway 260 feet closer to Westchester homes and businesses. read
5/06:San Bernardino County joins cities seeking LAX mediation
San Bernardino County and Ontario joined Culver City and Inglewood on Tuesday, May 7, in demanding mediation with the city of Los Angeles over its environmental report on the expansion of Los Angeles International Airport. All three cities and the county had raised concerns about the report, which the Los Angeles City Council used to approve the expansion and moving the north runway closer to neighboring homes and businesses. Ontario and San Bernardino County are concerned that expanding LAX will further siphon passenger traffic away from Ontario International Airport, which has lost 40 percent of its passenger volumes since 2007. Los Angeles officials have five days to respond to the demand. If they fail to do so or refuse to go to mediation, the cities and the county can sue. read
4/30:The challenge of good faith mediation in Florida
Once upon a time, Supreme Court-certified mediators knew of no statutes, rules or common law governing court-ordered mediation in good faith; mediation communications were confidential; mediators were required to report the absence of an agreement without comment and mediators were not permitted to report failure of parties to mediate in good faith.
Yet, in advisory opinion 2012-005, Florida Supreme Court's Mediator Ethics Advisory Committee stated a certified mediator may disclose a party failed to negotiate in good faith or willfully failed to appear at a court-ordered mediation as required by the local rules of the U. S. Bankruptcy Court for the Middle District of Florida.
For more than a decade nationwide, Legislatures and the judiciary have mandated good faith mediation in the belief the threat of sanctions promotes more productive participation and reduces the backlog of cases. Like it or not, it appears mandated good faith mediation is here to stay. read
4/24:Parents Temporarily Lose PCB Advocate as NYLPI Enters Mediation With City
Parents are losing a major advocate in their fight against toxic PCBs in the city's schools, as the leading activists are taking a temporary step back from the battle to enter mediation with the Department of Education. read
The certainties of one age are the problems of the next.
ODR and Ombudsmanship (5/13/13) Frank Fowlie This chapter focuses on the applicability of Online Dispute Resolution (ODR) for a specific
dispute resolution mechanism, the Ombudsman. The chapter is based on the experiences
and observations of Dr. Frank Fowlie, who served as the Inaugural Ombudsman for the
Internet Corporation for Assigned Names and Numbers (ICANN).
ODR and the Courts (5/11/13) Karim Benyekhlef, Nicholas Vermeys Whilst acknowledging that ODR assumes two roles as a competing and complementing
system to state courts, our focus in the following pages shall be exclusively directed to the
complementary role of ODR, and to the development of court annexed ODR schemes.
Accordingly, we shall commence by providing an overview of how states have started to
incorporate ODR into the legal process, and then proceed to shed light on possible
future paths for state-run ODR systems.
Can a Med-Arb Serve in Two Processes? (5/10/13) Laura Lozano Med-Arb is a controversial hybrid of two processes in which parties first go to mediation, and if the process is not successful, they arbitrate. In the “pure” form, the same Neutral assists both processes. But how can an arbitrator who has held discussions with the parties satisfy the requirements of “impartiality” and be a “fair arbitrator?” 2 Comments
Arbitration and the Power Sector in Brazil (5/10/13) Gilberto Giusti One of the segments of the infrastructure sectors in Brazil that have lately triggered the greatest amount of disputes are the power generation, distribution and trading sectors. In effect, there’s little disagreement in Brazil nowadays that, just as with other sectors that could also be mentioned here (such as oil and gas, sanitation, ports, etc.), in the power sector in general the arbitrators and the lawyers defending the interests of the litigants must have expertise in or at least deeper technical knowledge of the matter in controversy, namely as a result of the complex regulations that followed the introduction of the new regulatory framework for the Brazilian power sector through Law No. 10,847 and Law No. 10,848 of 15 March 2004.
ODR and Justice (5/08/13) Ruha Devanesan, Jeff Arresty In this chapter, we analyze the interaction between traditional concepts of justice and fields in which
Online Dispute Resolution (ODR) has flourished and is burgeoning. We then explore the
ways in which justice as traditionally conceptualized is adapting to the digital environment,
and ask the question: Are traditional notions of justice relevant to contemporary online
interactions between individuals, businesses, and governments?
Los Angeles Superior Court Shutters ADR Program (5/06/13) Randy Drew After more than 20 years, the largest program of its kind in the United States is calling it quits. We’re discussing the ending of possibly the largest single ADR practical training ground in the world. Could this be a "make lemonade" moment for mediators? Will this megalithic event impact mediators homogeneously, or will there be a stratification of consequences? 5 Comments
Boston, Violence, and Listening (5/03/13) Lee Jay Berman We are once again in the wake of a tragedy. News outlets are filled with coverage, details are slowly emerging, and the cover of Time Magazine shows a frightened child in the aftermath of the Boston Marathon bombing. Many runners were running in memory of the Newtown, Connecticut victims, meeting tragedy with tragedy.
Effective Negotiations (5/03/13) Phyllis Pollack I know I may sound like a broken record as I have discussed each of these points several times before - but they are invaluable and make the difference between resolving a dispute and continuing the acrimony.
Three Things to Know about Mediating Licensing Disputes (5/03/13) Zela Claiborne The number of IP disputes resolved in mediation has continued to increase as attorneys make efforts to find speedy resolutions and cut litigation time and cost for their clients. Only a small percentage of costly patent infringement cases actually go to trial; approximately 90 percent of them are settled.
ODR and Government (5/01/13) Ethan Katsh, Daniel Rainey The topic at hand is the use of the Internet to govern, and the role that ODR can play in e-government. Our discussion of e-government will be divided into three main sections: What has changed?; What must government (and e-government) do?; and Where are e-government and ODR going?
Managing Business Risk (4/26/13) John Sturrock Managing business risk can be done through effective negotiation and conflict management. Mediators can help to manage that business risk by nipping things in the bud – and resolving difficult disputes.
Bach, Beijing, and Being at the Table (4/12/13) F. Peter Phillips Negotiators at the table might have completely different interests and no shared ground as to the law or the facts; they can nevertheless contribute to a productive mediation because they are there. They share the dispute itself, and they share at least an interest in resolving the dispute in their clients’ favor. They share a recognition of the process, and a willingness to make themselves heard.
The Mediation Trainer’s Toolbox (4/12/13) Sabine Walsh Having spent the last few weeks immersed in mediation theory, conflict theory, negotiation theory and a variety of other theories for various projects, including the preparation of a mediation training course, I feel the need for a little practicality.
Negotiation Tactics (4/12/13) Phyllis Pollack In some mediations, I have witnessed the “nibbling” approach: one party keeps making demands on top of demands, often very small ones, in an effort to get the other party to reach a breaking point and either cave in to the demands or storm out of the negotiation.
The Winner’s Curse (4/08/13) Phyllis Pollack Suppose you have a jar of coins and ask several friends to bid on the jar. The highest bid will be deemed the winner. According to Richard H. Thaler two results will occur: “(1) the average bid will be significantly less than the value of the coins (bidders are risk adverse); (2) the winning bid will exceed the value of the jar”. This is known as the “winner’s curse”.
Mediation Saves Mediation in Massachusetts (3/15/13) Jennifer Shack At a time when lenders are working to keep mediation from becoming law in Missouri and Oregon, lenders in Massachusetts have voluntarily dropped their opposition to a mandatory program – and they did so through appellate mediation.
Negotiating Beyond Agreement to Commitment (3/08/13) John Wade This article speculates on rates of non-performance of different types of agreements; then sets out reasons for breach; and finally suggests a catalogue of methods to increase the durability of or commitment to negotiated agreements.
Inquire About Each Disputant's Agenda Before you Begin (3/08/13) Jan Frankel Schau Litigation is typically a well-orchestrated process which is initiated by a formal "complaint", which includes several distinct "Causes of Action", together with a list of "remedies" and a "Prayer" for damages resulting from whatever misconduct is claimed. In response, Defendants file a formal "answer", usually denying all misconduct and perhaps adding a few "affirmative defenses" to the mix. By the time the case gets to mediation, it is usually less well-defined.
Escaping Gender Bias in ADR (3/08/13) Victoria Pynchon “A professor was showing his class a chart of the species, at the top of which was man. A student raised her hand, asking why man was at the top. ‘Tortoises are heartier,’ she said, ‘cheetahs more swift, and grizzlies more ferocious. So why are we at the top?’
Mediation in Healthcare in European Union (3/07/13)
HOPE has recently published a report entitled Mediation in Healthcare, which presents the results of a survey aiming at comparing the scope and methodology of conflict resolution in the healthcare sector in the different EU Member States.
A Court Clash on Confidentiality and Mediation Policy (3/01/13) Mary Novak The Indiana Supreme Court recently declared that the state’s judicial policy supports “robust confidentiality” in mediation. In doing so, the court vacated a Court of Appeals ruling that would have expanded the circumstances in which confidentiality could be broken to obtain evidence. The two rulings reflect a strong contrast in interpretations of ADR rules and judicial policy toward mediation.
Compelling Mediation (3/01/13) Phyllis Pollack Everyone is waiting to see how this abolition of the Court’s mediation program will affect not only the mediation business, but the Courts in terms of case load and backlog for setting trials. If Mr. Randolph is correct; that our amygdala kicks in and prevents us from seeking a non trial by fire resolution unless we are forced to do so, then the LA County superior court system is in for a whole lot of trouble.
NY: Gov Cuomo Assigns AAA To Mediate Hurricane Sandy Disputes (2/25/13) James Melamed Governor Andrew M. Cuomo announced on February 25, 2013 that the Department of Financial Services has established a voluntary mediation process for homeowners disputing their insurance claims or dissatisfied with denials of their claims arising from Storm Sandy. “Mediation offers a speedy, low-cost resolution of insurance claims for homeowners who are unable to reach agreement with their homeowners’ insurance companies on claims from Storm Sandy,” Governor Cuomo said. “It is also much less expensive for insurers than litigation, so it’s a win for everyone.”
Court Update (2/22/13) Joe Markowitz Thanks to the Consumer Attorneys Association of Los Angeles and the Association of Southern California Defense Counsel for putting on an informative program tonight detailing changes about to take place in the LA Superior Courts due to budget cuts. Thanks especially for the plug provided for the Southern California Mediation Association's program still in development to provide a referral source for mediators.
Initiatives and Innovations for Effective, Court-Mandated Mediation (2/01/13) Uma Ramanathan Mediation attempts to use persuasion as the main tool for resolution. It is said that a Professor of Medicine taught his students to touch the patient while listening to them instead of standing by the bed. By standing near the bed, he felt that the patient would get the impression that the doctor wanted to move away, but by touching the patient, the doctor revealed special concern. Persuasive listening is said to be concerned listening as opposed to mere listening.
Hydropower Conflicts in Southern Chile (2/01/13) Larry Susskind Chile is now relying on hydropower to support its amazing economic growth. It is a country without oil, gas or coal reserves of its own. Liquified natural gas (LNG) and coal imports are being increased, and there is some talk of expanding non-conventional renewable resources, but hydro represents at least 35% of the current energy mix and is likely to grow.
The Importance of Getting the Arbitration Clause Right (1/25/13) Herbert Smith A recent Federal Court of Australia case, Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd (2012) 292 ALR 161 (DKN v BBCG), has highlighted the importance of parties carefully tailoring the arbitration and jurisdiction clauses in their agreements to reflect their particular circumstances. A failure to do so may have implications later when enforcement of an arbitral award is sought.
FMCS History Archive Story (1/18/13) Jerry Barrett This is the story of a career with FMCS. The FMCS historian tells of his career, successes and mistakes, and some of his most interesting experiences with the Federal Mediation and Conciliation Service. This story should be of interest for those new to the mediation field--it tells of the difficulties, the mundane, the struggle, the determination, the hope, and finally the reward of a career in the mediation field.
Shhh. It's a Secret! (1/04/13) Don Cripe This article discusses mediation cases involving insurance carriers. It discusses how mediators can resolve personal injury cases--specifically when one party enters the mediation with a perception of unfairness. 3 Comments