Mediation is deeply rooted in Judaism under laws of compromise and justice known as p’shara. Aaron, brother of Moses, was called a pursuer of peace (rodef shalom) and is recognized as Judaism’s first mediator. Implicit in p’shara is the belief that much is to be gained by the one who exhausts the effort to settle a dispute out of court, including peace of mind and spiritual strength. Mediation today is generally understood to mean a confidential session where a neutral party called ‘Mediator’ meets with parties to a dispute and their counsel (if represented) outside the litigation process. The mediator, who has no authority to make any ruling, is there to guide the parties to reach a settlement on their own and avoid the need for an imposed solution by a court or arbitrator. Use of mediation in the United States and internationally, as the first step to settling disputes, is booming. For good reason. It works. Parties who use mediation invariably praise it for saving them time, expense, uncertainty and continued stress that accompanies litigation. Sometimes mediation even succeeds to repair broken relationships. read
The European Parliament has called for the immediate launch of a new EU mediation mission "at the highest political level" to secure a peaceful outcome to the current crisis in Ukraine. This is stated in a European Parliament resolution on the outcome of the Vilnius Summit and the future of the Eastern Partnership, in particular as regards Ukraine, which was voted during a plenary session of the European Parliament in Strasbourg on Thursday. "[The European Parliament] calls for the immediate launch of a new, fully fledged EU mediation mission at the highest political level, to achieve, and assist in, roundtable talks between the government and the democratic opposition and civil society and to secure a peaceful outcome to the current crisis," reads the resolution. In addition, the European Parliament expresses its full solidarity "with those demonstrating for a European future; and calls on the Ukrainian authorities to fully respect people's civil rights and the fundamental freedom of assembly and peaceful protest." read
A local radio ad has called attention to mediation and its advantages — or disadvantages. Contrary to the advertisement’s claims, mediation frequently results in a better understanding of dispute issues and legally binding agreements, at less emotional and financial cost than litigation. Mediation uses an impartial third-party to help people discuss their disputes, decide next steps and come up with solutions. Mediation is increasingly considered the appropriate dispute resolution process due to its cost-effectiveness, efficiency and ability to help people make decisions while resolving conflict constructively. read
The federal regulations for Individuals with Disabilities Act (IDEA) includes many provisions to protect the rights of parents and their child with a disability while also giving families and school systems means by which to resolve disputes. These rights are known as procedural safeguards. Parents have specific rights under this law to mediation under 34 CFR &200.506. Your school district must make mediation available to allow you and the school to resolve disagreements involving any matter under Part B of the IDEA. This includes matters which may have come up prior to the filing of a due process complaint. Mediation is available to resolve disputes whether or not you have filed a due process complaint requesting a due process hearing. If you have filed a due process complaint, mediation is typically offered as a potential way to settle these disagreements. read
Model helps resolve conflicts between family members and clinicians. A new project by the Medical Mediation Foundation, aimed at breaking down tension between family members and health professionals when there is a disagreement about a child's course of treatment, is in full swing at Evelina London Children's Hospital, The Guardian reported. Noting the importance of communication between caregivers to a child's recovery, the Evalina Resolution Project offers mediation at the request of parents or staff members, and trains hospital personnel in stress management techniques. It also teaches staff how to recognize triggers for conflict and ways to rebuild trust when a situation deteriorates, the article states. More than 90 staff nurses have completed training sessions, with doctors set to begin training this month. The sessions help staff think about issues from the parents' perspective and reflect on how their actions impact them, according to the article. read
Lord Justice Briggs says that: “This case sends out an important message to civil litigants, requiring them to engage with a serious invitation to participate in ADR, even if they have reasons which might justify a refusal, or the undertaking of some other form of ADR, or ADR at some other time in the litigation. To allow the present appeal would, as it seems to me, blunt that message. The court’s task in encouraging the more proportionate conduct of civil litigation is so important in current economic circumstances that it is appropriate to emphasise that message by a sanction which, even if a little more vigorous than I would have preferred, nonetheless operates pour encourager les autres.” read
Escalating conflicts have the potential to impact on care of patients and all others on a unit. A project run by the Medical Mediation Foundation and funded by the Guy's and St Thomas's charity aims to prevent conflicts escalating into crises. The project was launched at the Evelina London children's hospital in January, to support families and health professionals where there is disagreement, tension and anger surrounding a child's medical care. read
In the field of Alternative Dispute Resolution, mediators, among other things, help people in dispute come to a mutually acceptable resolution about issues they do not agree on. Each party typically holds a disparate perspective from the other on what constitutes an appropriate settlement. By the time they get to talk it out in the mediation process to see if they can resolve matters, they have often become entrenched in their positions and the relationship is suffering. read
Professor S.I. Strong, Associate Professor at the University of Missouri School of Law (and a friend of this blog) has published “Beyond International Commercial Arbitration? the Promise of International Commercial Mediation,” 42 Washington University Journal of Law and Policy, 2014, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2013-21. In her article, Professor Strong examines the role of mediation in international business disputes. read
Los Angeles County called in a mediator as a strike by social workers over caseload size reached its fifth day. Striking social workers jammed the hallways outside of L.A. County Supervisor Gloria Molina’s El Monte field office Monday. The supervisor and her staff were out, but the strikers chanted and paraded past the door to make their presence known. “This is worth it. It’s all worth it,” said one striker. “It’s all about childsafety for us.” Striking workers insist they will return to work if the county will put in writing a guarantee of smaller caseloads, limiting the number of cases to 20 to 25 from the nearly 30 to 40 they have now. The county says they are not ready to put that in writing. read
City Uses Mediation to Avoid Bankruptcy (3/12/12) Keith Seat
Stockton, California avoided bankruptcy by bringing in a mediator to resolve disputes with creditors and unions, as required by a California law enacted last year. Stockton is the first city affected by the law, and might be the beginning of a trend, as other cities in California are under financial stress. Twenty-four states permit municipalities to file Chapter 9 bankruptcies, with some restrictions.
World Bank Analyzes ADR Benefits (3/12/12) Keith Seat
A World Bank paper discusses the effectiveness of alternative dispute resolution, looking at the empirical benefits of mediation and other forms of ADR and noting the need for additional studies outside the U.S. The short paper, by the Investment Climate Impact Project, focuses on measurable issues of cost savings and timing. It also discusses less measurable impacts, such as improving business relationships and problem-solving skills, reducing pressure on courts, and improving investors’ perceptions about the safety of business investments in emerging markets.
U.K. Trying Regional Workplace Mediation Networks (2/07/12) Keith Seat
The U.K. Government announced that it is establishing two regional mediation networks for small and medium size enterprises (SMEs) in a pilot program to reduce workplace disputes and the number of employment tribunal cases. The mediation networks will be in Cambridge and Manchester, with mediation training of employees at 24 SMEs, as smaller companies are often not aware of the benefits of mediation and rarely use it. Trained mediators will then be able to assist other organizations in their regional network. The government is seeking a provider for the first round of mediation training. The pilot program is part of the government’s reform of the employment tribunal system; in the last two years tribunal claims have risen to 218,000, an increase of 44 percent. The program will run 12 months and expand to other areas if successful.
Japanese Mediation Center Beginning to Resolve Fukushima Nuclear Accident Claims (2/07/12) Keith Seat
The mediation center established by the Japanese government is now beginning to resolve claims resulting from the Fukushima nuclear power plant catastrophe, with three resolutions from the 600 claims that have been submitted thus far. Many more claims are likely from the 150,000 people displaced by the nuclear accident, but to begin the process each claimant must complete a 56-page form using a 150-page instruction manual and provide receipts and other documentation. The Japanese government has set up a $26 billion fund to pay damages on behalf of Tokyo Electric Power Co. (Tepco), with another $11.7 billion approved in November and more likely to follow. Few lawsuits have been filed, although one lawyer is threatening to file a shareholder derivative action against Tepco’s corporate directors seeking $72 billion for failing to raise the height of tsunami barriers.
A Mediator's Reflections on the Occupy Movement (1/30/12) Grace Eagle Reed The police in Portland, unlike other cities of its size, became national examples of progressive community policing during the Occupy Movement. By calmly responding to the conflict around them, they are open to ongoing community feedback, are continuing to look for ways to do a better job and are using better judgment when they have to restrain protestors. Their patience and openness is appreciated by all involved. It is also the perfect example of a counter-story peacefully challenging the accepted stock story, for the betterment of all involved.
Knee-Jerk Responses (3/27/11) Joe Markowitz Since we hung back several weeks before intervening militarily in Libya, Gingrich attacked the administration for that. Once we intervened, Gingrich attacked the administration for that. I'm sure some of Newt Gingrich's supporters prefer this stance of unrelenting opposition, but I have to think a lot of voters looking for a more coherent, logical approach, must be turned off by it.
Excuse Me for Having to Be Rescued: Negotiating Order in Japan (3/14/11) Victoria Pynchon I do not know anyone who would apologize to their rescuers for the inconvenience caused by the need to be saved. And I cannot imagine the destruction to my own City by the occurrence of a quake with a magnitude greater than eight. I do know, however, that in the face of crisis, whether we live in Hollywood, Tokyo, Cairo, New Orleans, New York City, or Bangalore, we pull together, set aside our differences, care first for the weakest and and carry on.
Minnesota Farmer-Lender Mediation Program Having Bigger Impact (1/12/11) Keith Seat
The annual report on the Farmer-Lender Mediation Program in Minnesota shows further increase in the use of mediation in the program. In 2010, farm enterprises and lenders completed over 400 mediations involving $624 million in debt, which was nearly double the amount in 2009. Creditors with secured debts over $5,000 against agricultural property in Minnesota are required to offer mediation prior to judgment collection, repossession or foreclosure. Farmers choosing mediation have 90 days to work with lenders to renegotiate their debts.
EEOC Reports Record Number of Mediation Resolutions (1/12/11) Keith Seat
The U.S. Equal Employment Opportunity Commission reports that in fiscal 2010 it set records both for the number of charges received, at just under 100,000, and the number of resolutions in its mediation program, which were up ten percent. The agency also set a record for the amount of monetary relief obtained for individuals, at $319 million, of which over $140 million was obtained in mediations.
North Dakota Expands Agricultural Mediation to Oil Exploration (11/23/10) Keith Seat
The Agricultural Mediation Service of North Dakota has been authorized to expand beyond helping farmers, ranchers and their creditors to addressing disputes between landowners, producers and energy companies. While the mediation program is voluntary and requires agreement to participate by both sides, the leading oil and gas industry organization in the state, the North Dakota Petroleum Council, is encouraging its members to use mediation to maintain strong relationships with surface owners.
Missouri Proposes Mandatory Mediation for All Large Civil Cases (11/23/10) Keith Seat
A commission of the Missouri Supreme Court has issued a report proposing revisions to the state’s mediation rule, including court-ordered mediation in all civil cases with a demand over $25,000. The commission also considered the Uniform Mediation Act, but proposes merely to clarify the state’s current rules on admissibility and confidentiality. While recognizing that mandatory mediation may be a challenge in rural areas where mediation is less common, the commission was influenced by the national trend towards mediation. The commission began with surveys that showed a high level of use and satisfaction with mediation in Missouri and a majority favoring court-ordered mediation in all cases. The commission is seeking input on its proposals by early December and expects the Court to act by next summer.
British Culture Minister Seeks Mediation Service to Address Online Privacy (11/23/10) Keith Seat
The British Secretary of State for Culture, Communications and Creative Industries is proposing a new mediation service to give an additional means of redress to consumers concerned about breaches of online privacy or seeking to get inaccurate personal information removed from the internet. The Minister is also pushing an updated code of internet conduct and seeking to meet with internet service providers and other key players to encourage their participation.
Tulsa Mayor and City Council Continue to Sort out Process to Address Disputes Between Them (11/09/10) Keith Seat
While the mayor of Tulsa, Oklahoma continues to favor formal mediation to resolve pending legal issues and other disputes with the City Council, the council has concluded that it should only participate in facilitated open meetings in order to comply with the Oklahoma Open Meeting Act. An earlier plan for council members to meet in smaller closed groups to determine the ground rules for an open meeting has been rejected as improper circumvention of the Open Meetings Act. Potential issues include a criminal probe, actual and threatened litigation and an ethics complaint, but the mayor is awaiting communication about the exact purpose of the open meeting. The mayor says he is likely to attend, but is concerned about the posturing, cheap shots and criticism that are likely at open meetings.
SBA Encourages Greater Use of ADR in Appeals (9/28/10) Keith Seat
The Small Business Association recently modified its regulations covering appeals before its Office of Hearings and Appeals, including two provisions to encourage greater use of alternative dispute resolution. The first adds Sec. 134.216(b) to permit a judge to offer ADR to the parties at any time. The second provision adds Sec. 134.216(c) to permit designation of either a judge or an OHA attorney to serve as an ADR neutral. Other clarified provisions which address mediation are in section 134.804-807.
Tulsa Mayor and City Counsel Jockey over Mediation of Disputes Between Them (9/28/10) Keith Seat
The mayor of Tulsa, Oklahoma and the City Council are embroiled in numerous disputes between them and are discussing mediation as a possible avenue for resolution. The current list of nine potential agenda items for mediation includes a criminal probe, actual and threatened litigation and an ethics complaint. A former Oklahoma Supreme Court justice and another retired judge are being considered to act as co-mediators. The City Council is taking a formal vote on whether to mediate the disputes. How the Oklahoma Open Meeting Act would impact the mediation is also being analyzed. The former justice emphasized the importance of mediation confidentiality, but stated that confidentiality is consistent with the Open Meeting Act as long as the mediation only discusses proposals, with the Council publicly voting on whether to mediate and on the issues to be mediated, and then publicly explaining, justifying and voting on any resolution at the end of the process.
Five NYC Hospitals Participating in Federally-Funded Mediation Program (9/28/10) Keith Seat
Five New York City hospitals have agreed to participate in a three-year mediation pilot program, which is receiving $3 million in federal funding. Under the program, hospitals will admit medical mistakes early, offer settlements more quickly and use judges to mediate disputes. The goal is to cut medical-malpractice costs and reduce the $1.4 billion spent on med-mal premiums in New York state each year.
The Wall Street Journal (July 23, 2010)
We All Have A Part To Play In Coalition’s Success . . . Or Failure (8/09/10) John Sturrock We all know something really interesting happened in British politics with the agreement of
the Conservatives and Liberal Democrats to work in coalition. What is interesting is the reaction. People don't quite know how to deal with it. We are
accustomed to an adversarial approach in politics. So, the observations now tend to focus
on the differences and potential areas of disagreement – and where it might go wrong.
Can Government Solve Big Problems Collaboratively? (7/12/10) John Folk-Williams The Open Government Initiative of the Obama Administration has given high priority to increasing the use of collaboration in the federal government. Yet many federal offices have not in the past encouraged the sort of collaborative mindset that is necessary for meaningful efforts in this direction.
Feinberg Selected as Independent Claims Administrator for BP Compensation Fund (7/12/10) Keith Seat
As widely reported, Kenneth Feinberg has been appointed the independent claims administrator for the $20 billion BP compensation fund for the extensive damages caused by its ongoing oil spill. BP has established more than 400 claim centers across the Gulf Coast and is also accepting claims through its website and by telephone. Feinberg will be paid by BP, although the amount is still being negotiated.
Legislative Mediation Proposed for Congress (7/12/10) Keith Seat
An editorial in the Washington Post entitled “Congress needs a mediation tool to dissolve gridlock” emphasizes the need to build consensus in Congress to avoid stalemates and the dysfunction that has resulted in approval ratings for Congress falling below 25 percent. The editorial emphasizes the importance of good process, and suggests establishing a politically neutral service to provide legislative mediation organized along the lines of the Congressional Budget Office. A legislative mediation service could enrich the policy debate by highlighting information in a nonpartisan manner. And when requested by legislators, mediation techniques could be used to help the parties understand their interests, generate possible solutions and help find common ground.
No Risk? No Hope Then Either (7/05/10) Ronald S. Kraybill I witnessed with alarm a recent ruling of the US Supreme Court regarding the U.S. PATRIOT Act. This Act makes it illegal to give support of any kind to groups listed by the US government as terrorist groups, even if the support is designed to end violence.
U.S. Arbitration And Mediation Legislative Update (7/05/10) Victoria VanBuren The following bills relating to alternative dispute resolution were introduced by the 111st U.S. Congress. The session will last from January 3, 2009 until January 3, 2011. Click on the bill number to read its text and on the status link to find the bill’s most recent legislative action.
Washington Post: Congress Needs Mediation (6/21/10) Jeff Thompson In today's Washington Post, L. Michael Hager writes about the ever present disfunction of Congress and it it could help if it had a service where a third party neutral helps each party identify the issues and then explore possible solutions which meet, at least partially, each of their needs. He or she helps them make their own decision to determine what is best for them- given the situation.
DOJ Mediation Eases Racial Tension in Florida Community (5/20/10) Keith Seat
A routine traffic stop led to violence between police officers and a crowd in Lake Wales, Florida in November. After the local NAACP chapter began talks with the city, the U.S. Department of Justice began meeting in December and reached a mediation agreement in March. DOJ used its new mediation program called City Site Problem Identifying and Resolving Issues Together (City SPIRIT). The Lake Wales agreement includes representation of African-American and other minorities in city government and budget decisions, as well as improving communications and cultural sensitivity through training programs.
Greensboro Launches Landlord-Tenant Mediation Program (5/20/10) Keith Seat
The city of Greensboro, North Carolina is working with the Conflict Studies and Dispute Resolution Program of the University of North Carolina at Greensboro to launch a program to resolve disputes between landlords and tenants. The Landlord-Tenant Dispute Program has been developed with input from all stakeholders. The program is intended to reduce litigation, but depends on both sides voluntarily agreeing to participate.
UK Election (5/03/10) John Sturrock An intriguing and unheralded intervention in the general election campaign in the UK came last week from the Centre for Effective Dispute Resolution in London. The Centre suggested that, with the prospect of a “hung” parliament, what we need is a Parliamentary Coalition Independent Mediator. Although a bit of a mouthful, the general proposition that there may be a role for an independent mediator or mediators to work with party leaders and civil servants in the event that no party gains an overall majority in seats is worth reflecting on.
Washington State Moving to Extend Agricultural Mediation Program (4/20/10) Keith Seat
Legislation is moving forward in Washington state to extend to 2015 the agricultural mediation program which began in 1987. The bill authorizes $7.5 million per year, but less than $4.5 million has been appropriated for the current fiscal year. Washington is one of 32 states which participates in the Certified State Agricultural Mediation Program, administered by the Farm Service Agency of the U.S. Department of Agriculture, which helps farmers resolve disputes with lenders and others in order to avoid litigation, appeals, bankruptcy and foreclosure, and may occasionally deal with rural housing, development and even civil rights.