This article provides a review of two psychological concepts derived from Robert Cialdini's "Influence: The Psychology of Persuasion" and Dan Ariely's "Predictably Irrational" and considers their practical and ethical implications as applied to mediation.
Trade secret litigation often involves deep levels of distrust, suspicion, and anger on the part of parties and counsel. To avoid trial, the plaintiff must negotiate with the thief, adding insult to injury. The defendant may express outrage at being accused of theft, and suspect the litigation is merely a “fishing expedition” to uncover the defendant’s own trade secrets. How then can the parties overcome these issues and reach agreement during mediation? This article provides counsel with information and suggestions for successfully mediating trade secret disputes.
Arbitration practitioners often put Ukraine below the average ranking of countries in terms of recognition of arbitration. Ukraine’s image of a not entirely arbitration-friendly jurisdiction is “promoted” with common thought about problematicenforcement of arbitral awards in Ukraine. However, in recent years Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach. That progress had been measured during the study resulted in the research paper “Ukraine. Arbitration-friendly jurisdiction: statistical report, 2011-2012”
From one perspective, conflict in a start-up should not be different from conflict in any other similarly sized organization. And to be sure, some of the same factors that cause conflict in any organization – whether it is a family business or a partnership or a non-profit – can contribute to conflict in a start-up. Yet start-ups also have some unique challenges, and I’ve seen some rather bad advice targeted to them.
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 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”.
Too frequently, negotiations are fruitless due to inadequate preparation. Rethinking Negotiation Strategy sets forth critical areas that should be part of the preparation for negotiation. In each segment there are references, which provide for a more in depth exploration of these indispensable tools for the successful negotiator.
Med-arb is the melding of two well-established processes for conflict resolution into one hybrid process. Mediation and Arbitration are used in conjunction with one another and, in the truest form of med-arb, the same third-party neutral plays the role of both mediator and arbitrator. In this paper, the term med-arb refers to this pure form that uses the same neutral, and is distinct from the common process where different neutrals are used in a mediation phase and an arbitration phase.
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.
Scotland is having a referendum on its constitutional future. As I write this, it is only a few months until we vote. Whatever the outcome in September’s referendum about independence for Scotland, in this country we will all need to work hard to ensure that we can live well together after the referendum.
(5/23/14)Michael A. Zeytoonian
Most people think that when they get into a legal dispute, they have to file a lawsuit. They retain a lawyer, often a litigator, and start an expensive, time-consuming process called litigation. “I’ll sue.” “I’ll take you to court.” It’s what we are taught and reared on, what we see in movies and on TV and what people talk about here in America, the world’s most litigious society. - See more at: http://www.disputeresolutioncounsel.com/2014/05/dispute-resolution-options/#sthash.IQ6GFRXc.dpuf
(5/15/14)Donald T. Saposnek
Don Saposnek describes how different mediation models, while they may have different qualities and values, are often blended together by experienced mediators.
(5/09/14)Michael A. Zeytoonian
For basketball junkies like me, there was a great article in the Fall, 2013 issue of Good magazine about the Triangle Offense. This system was used by Phil Jackson and Tex Winter to redirect the talents of superstar players to work within a system with others team members without restricting their natural abilities. The similarities between using the Triangle Offense and using Collaborative Law to resolve disputes are striking.
(2/28/14)Michael A. Zeytoonian
Over 2013, we heard a few reasons from employers and companies for why they would forego using Collaborative Law – a much more efficient dispute resolution process than litigation – and opt for litigation or arbitration instead.
(2/21/14)Jamie Walker, Zeno Daniel Sustac
Sometimes, the act of justice leaves one or more parties being unsatisfied with a judicial decision and generates a resolution based on the “loser-winner” paradigm. The consequence is often, in addition to the preservation of their conflicted status, the prolonging of the expensive and stressful judicial dispute. Mediation, as an alternative method of conflict resolution, starts with the principle of seeking to most capably satisfy the parties’ interests with a sustainable agreement based on free will. This approach, in the context of globalization, confers mediation with the quality of being an effective cross-border and cross-cultural method of conflict resolution. This article is an excerpt of a thesis analyzing the benefits and unforeseen consequences of mediation in cross-border disputes. This article focuses on the importance of training mediators on cross-border disputes.
Adryenn Cantor, a San Diego, CA attorney included an excellent list of five questions for people to ask themselves to determine if they are a good candidate for using Collaborative Law in a divorce case.
What is the difference between mediation and collaborative law? Couples going through divorce today fortunately have many more options available to them to finalize their divorce. Choosing the right approach involves knowing and understanding the differences between approaches.
Since the early 1970s, two dimensions have been used to plot the five conflict modes: Assertiveness and Cooperativeness (my attempts to satisfy my own needs versus my attempts to satisfy the other person's needs, respectively). Occasionally, these two dimensions were modified to Person A and Person B, as just another way of focusing on the needs and concerns of two people engaged in an interpersonal conflict.
Crisis grips the California court system.
In Los Angeles County, budget cutbacks
have forced the courts to do away
with court reporters, reduce clerical staff,
close 10 courthouses, and assign personal injury
cases to a master trial calendar system.
At a time when ADR might be considered
one of the solutions for relieving
the increased burdens on the civil trial
courts that these changes will impose, the
Superior Court in Los Angeles instead
took the surprising step of closing its
entire court-connected ADR program.
You're getting divorced and you're angry, resentful, hurt, vindictive or any combination of other painful emotions. Hiring the most aggressive litigious divorce lawyer you can find seems like your smartest choice. If you're a divorcing parent who is thinking along those lines, you're making a choice you may long regret.
School violence has taken center stage in American debates as of late. The problem is that alternative solutions have proven to be impractical and costly. Other proposed solutions, based off mostly off of myths, actually may do more harm than good. In light of a federal investigation into Tennessee's juvenile justice practices, options are explored as to how one might make Tennessee's broken system better. A proposed solution is to use Collaborative Justice practices that merge traditional ADR with Restorative Justice techniques to make one unified practice. These proposed solutions have been well researched in used in school districts all over the world as well as the United State with greater than expected results.
At lunch today, a very good friend and I started talking about Collaborative Law. I have known him over 30 years and we often talk about law, divorce (he's had two) and what I do as a lawyer. We have discussed Collaborative Law a number of times. I learned today that I need to be a little clearer with others when I talk about how the process works. I was shocked to hear statement after statement of misunderstandings from him.
Litigation is an old-fashioned way to resolve disputes. Nowhere is this more evident than in the family law arena. Attorneys are increasingly developing and turning to nonlitigated forms of dispute resolution. Not only are there now choices between litigation, negotiation, collaboration and mediation, but all four of these basic methods can be further divided into even more refined processes, models and approaches.
Intractability is a somewhat difficult term to expain. It refers to a conflict that has stalled. Parties have no grip or traction on the conflict and the conflict is most likely spiraling out of control. Intractable conflicts are characterized by being complex and having far-reaching consequences. Most likely, intractable conflicts are conflicts that have escalated a fair bit.
Click here for MORE ARTICLES
There was talk around the ABA Dispute Resolution Conference this week that the demand for mediation services may be declining. If that's true, does that mean that mediation is falling out of favor, just as arbitration has somewhat fallen out of favor? Or is it a reflection of the economy and the decline in demand for dispute resolution services in general?