Collaborative Lawyers' Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients' Informed Consent to Use Collaborative Law (5/20/12)
Forrest (Woody) Mosten, John Lande
Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions.

Keys to Successful Mediation: Understanding Brain Wiring and the Complex Listening Dynamic (5/20/12)
Gloria Vanderhorst, Ellen Kandell
Shifting your clients from positional, competitive mindsets to more cooperative and collaborative thinking where creative and mutually beneficial solutions can be generated is the goal of most dispute resolution professionals. This article explores some of the brain's structure and functions and how they contribute to the natural competitive and collaborative instincts that operate simultaneously.

Judge and Mediator - Big Brother? (5/14/12)
Clare Fowler
Judges and court-appointed mediators have an interesting relationship. ”Interesting” can be defined as big brother, incestuous, or a match made in heaven.

Real Knowledge is to Know the Extent of One's Ignorance (5/14/12)
Lily Ng
“Real knowledge is to know the extent of one’s ignorance,” Confucius says. The effects of culture on contradiction and conflict management

Tenth Circuit Affirms Dismissal of Case as Sanction for Violating Mediation Confidentiality (5/08/12)
Keith Seat

The U.S. Court of Appeals for the Tenth Circuit readily affirmed dismissal of a case with prejudice to sanction plaintiff’s violation of mediation confidentiality provisions. The appellate court concluded that the sanction was not disproportionate, noting the egregious nature of the violation of confidentiality in which plaintiff left the unsuccessful mediation and sent emails to over 40 people with extensive and prejudicial details about the mediation. The appellate court also criticized and rejected plaintiff’s new argument on appeal that he did not know about the confidentiality requirement.

Hand v. Walnut Valley Sailing Club, No. 11-3228 (U.S.C.A. 10th Cir., April 4, 2012).

Federal Court Refuses to Sanction Party for Trying to Reach Global Settlement in Mediation (5/08/12)
Keith Seat

An unsuccessful mediation between two brothers resulted in plaintiff filing a motion for sanctions against defendant for not mediating in good faith because defendant sought to resolve broader issues that would have required participation of a sister who was not a party in the litigation. A U.S. district court in Florida stated that it is up to the mediator to report bad faith mediation, not the parties. The court found that all participants required to be in mediation had been present, ignoring plaintiff’s assertion that defendant apparently sought to resolve additional issues that went beyond the litigation.

Kaplan v. Kaplan, No. 2:10-cv-00237 (U.S.D.C. M.D. Fla., March 30, 2012)

Fifteen Things We Know about Environmental Dispute Resolution (5/07/12)
Larry Susskind
I was recently asked by my Harvard Law School class to summarize what we know (from actual experience) about environmental dispute resolution. I offered the following list.

Conflict, Narrow Places, and Rebirth (4/30/12)
Ann Begler
As part of the Easter story, we are taught a lesson about the possibility of redemption and deliverance. In fact, we are taught about the miracle of seeing that even one who has lost all life -- that one who has died -- can be renewed and can find life, again ... Whether we are in the midst of our own conflict, or we are someone who helps others to work out conflict, these stories, and the powerful and compatible lessons, provide us with useful guidance.

Bridging the Old and the New (4/23/12)
Christine Webb
“New” wars in the Global South are characterized by their hybrid nature. They typically involve a variety of non-state actors, institutions, and stakeholders with equally varied motives and concerns, and highlight a chasm between modern and traditional approaches to conflict resolution.

Order Or Chaos – What Is Your Preference? (4/02/12)
Bill Marsh
I recently came across a new word – new to me, at least, which was irritating because I pride myself on having a pretty good vocabulary. The word is “Chaordic”. To quote Wikipedia, “The portmanteau chaordic refers to a system of governance that blends characteristics of chaos and order”.

Negative Peace, Positive Peace: What kind do you want? (3/26/12)
Tammy Lenski
“I don’t want to resolve this conflict,” said the professor, looking me squarely in the eye and leaning forward in his seat. “I want to exacerbate it.” The word exacerbate was pronounced with each syllable clipped and exaggerated to highlight his point. “It’s a conflict that needs to be done thoroughly, fearlessly, and with zest.”

The State of Community Mediation (3/19/12)
Justin Corbett
The National Association for Community Mediation (NAFCM) has released its much-anticipated new report: The State of Community Mediation. This fieldwide assessment is the most comprehensive in nearly a decade, and includes many never-before reported statistics detailing the size, scope, and impact of the the community practice area.

Stuck in Arbitration (3/12/12)
Colin Rule
YOU buy a cellphone, computer or car. You sign up for a credit card or open a retirement account. You apply for a job. In all these circumstances, you’re told that you must agree to dozens of terms and conditions, set forth in technical verbiage and tiny print. Eager to complete your purchase — or desperate to be hired — you ultimately sign without reading.

One Minute Lesson on Changing Your Brain (2/20/12)
Stephanie West Allen
How do you change your brain? Pay attention to what you're paying attention to; watch your mental flashlight. How do you help others to change their brains (e.g., parties to a dispute, attendees at a presentation)? Facilitate their attention, be an attention choreographer, an attention conductor.

Mediator - Subpoenaed? (2/19/12)
Michael Lang
“Mr. Lang, my name is Chris Adams.  I am a process server and have some papers for you.”  With as much calm as I could muster, I asked, “what sort of papers?”  He replied, “a subpoena.”  And with that simple telephone conversation, the story begins.   8 Comments

2012: The Move to Online Dispute Resolution (2/13/12)
Hon. Arthur Ahalt
As a new year begins there is always a clamor to know what is in store for the next 12 months. Some will look at last year and make a string of resolutions and predictions. While I do not pretend to be Carnac the Magnificent of Johnny Carson’s days, here is my take on the trends in 2012 that will shape ADR and ODR.

Guest Blogger: Ashok Panikkar on the Right to Offend (2/13/12)
Brad Heckman
Here’s a guest post from my friend and peacebuilding agent provocateur Ashok Panikkar, Executive Director of the Indian conflict resolution organization Meta-Culture. I’m not sure I agree with everything he says below. But he is quite persuasive…even moreso in person, where he’ll augment his reasoning with infectious laughter and impish charm.

High Conflict Mediation and Ethics (1/30/12)
Ann Begler
Working with high conflict people requires skill that goes well beyond facilitating a conversation. Some mediators do it well and some should never try. If a mediator sees it as his or her responsibility to make a fair assessment about competency in this regard, everyone is well served – clients, mediator and the system, itself.

Mediation in Ireland: Current Trends, Future Opportunities: Part 2 (1/16/12)
Caitriona Heffernan
This is the second article in a two-part series about mediation in Ireland. This article focuses on the current approach to training and accreditation and also looks toward the future.

Guest Blogger! Ray Shonholtz on Occupy Wall Street (1/10/12)
Brad Heckman
Folks, enjoy my very first guest blogger, mediation visionary Raymond Shonholtz, founder of Partners for Democratic Change and Community Boards. Ray based this post on his keynote address at the Oregon Mediation Association conference on November 4th.

ADR and the Occupy Movement: The Importance of Dialogue (12/12/11)
Chris Poole
The Occupy Movement has dominated headlines for the past several months and garnered significant attention. Though the movement is inherently political and certainly controversial, there did emerge themes from Occupy that echo values long held in the ADR community.

Taking the "Me" Out of Mediation (10/24/11)
Delores Manwar
The "Me" impacts many areas of the mediation process. We can leave the “Me” out of mediation and replace it with an armor of understanding, empathy, open mindedness, and non-judgmental practices.   2 Comments

Reading the Clouds – Secure File Sharing in ADR Cases (9/20/11)
James Melamed
You can now affordably take advantage of your own secure file sharing “cloud” for case collaboration. You can designate secure cloud folders per case, including email notification of new uploads to authorized users. This supports ongoing 365/24/7 attorney and party involvement in ADR cases, with security, elevated services and substantial cost savings.

Counsel and Client Penalized for Failure to State Demand Prior to Settlement Conference (9/20/11)
Keith Seat

A federal magistrate imposed attorneys’ fees and costs on plaintiff and her counsel for failing to provide a written demand and other information in the format required prior to a settlement conference with the magistrate. During a 3-1/2 hour settlement conference, plaintiff refused to budge from the $150,000 demand she had made months earlier. The magistrate refused to find that the negotiations were in bad faith, but did conclude that if defendant had known in advance that plaintiff’s position was firm, the voluntary settlement conference might have been cancelled. Relying on Rule 16(f)(1)(C) rather than three other bases, the magistrate awarded the attorneys’ fees and travel costs of defendant’s counsel, but not the lost time of the corporate representative, and then reduced that amount because defendant could have been proactive in contacting plaintiff to determine her position. The magistrate refused to include the $5,400 defendant spent preparing the sanctions motion, resulting in total sanctions of $3,300.

Snydman v. Amper, Politziner & Mattia, LLP, No. 10-1344 (U.S. E.D. Pa., July 15, 2011)

Predators and Punishment (6/05/11)
Stephanie West Allen
An article abstract on legal responsibility and psychopathy.