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11/22/2014

Canadian Disputants Await Clarification of Mediation Privilege’s Boundaries

Today, Canadians are mediating their disputes in record numbers. One partial explanation for this phenomenon is that mediation purports to keep discussions between parties confidential, traditionally backstopped by settlement privilege. But the extent to which parties can pierce this bubble of confidentiality and use information disclosed in the course of mediation in subsequent court proceedings is an evolving issue.


How To Select The Best Mediator Is a Must Read for Everyone

Generally speaking, mediation is unregulated, which means that anyone may call themselves a "mediator" and any process involving a "mediator" is called "mediation." On October 22, 2014, I read a wonderful eBook by Brandon S. Peters titled "How to Select the Best Mediator." In his book, Mr. Peters makes the following statement, which I agree with completely: "Your success at mediation is directly tied to your choice of mediator.... The three most important elements of selecting the right mediator for your case: (1) Approach; (2) Style; and (3) Background.... Different cases require different approaches to mediation...."


Family Strife Over Elder Care Consider An Elder Mediator

One or both parents requiring care can create serious stresses and conflicts within families. Sometimes disagreements and misunderstandings over elder care or inheritance issues can lead families to break apart, affecting descendants for generations. To avoid this, elder mediation is available to resolve family disputes that otherwise may go unaddressed or lead to costly and traumatic litigation. A successful resolution can preserve family ties to the benefit of the entire family tree.


Top Missouri court overturns St. Louis County foreclosure mediation law

The Missouri Supreme Court has overturned a St. Louis County ordinance enacted during the housing crisis to help stave off foreclosures.  Adopted by the County Council in 2012, the “Mortgage Foreclosure Intervention Code” required creditors to post fees totaling $450, of which $100 was nonrefundable, to cover the cost of a “mediation coordinator.” Lenders that failed to comply with the code faced potential fines of up to $1,000. The council enacted the ordinance to keep homeowners from abandoning foreclosed properties which might then fall into disrepair. Passage of the bill came at a time when declining property values were taking a toll on county revenue from property taxes. The Missouri Bankers Association and the Jonesburg State Bank challenged the ordinance saying state law guiding real estate lending superseded the intent of the action taken by the County Council. Judge George W. Draper III, writing the majority opinion in the case, agreed with the bankers. Counties and municipalities, the justice concluded, lack the authority to enact broad legislation to address a broad “national crisis.” State law, Draper wrote “limits” the authority of local government to “participate in a mediation program prior to foreclosure … or face criminal prosecution.”


Mediation, dispute resolution programs are community assets

Last month in San Antonio volunteers and lawyers honored the service of Marlene LaBenz-Hough, retiring executive director of the Bexar County Dispute Resolution Center (BCDRC). Under Marlene’s guidance, the center has led efforts in combating violence in San Antonio public schools by working in partnership with the San Antonio Bar Foundation (SABF). The BCDRC was awarded a Criminal Justice Department grant to develop and implement the “Amigos in Mediation” (AIM) Peer Mediation Program. Now in its 15th year, the AIM program helps schools establish their own peer mediation programs by teaching school faculty and students ways to resolve conflicts without violence.


Amesbury Middle School teens honored as mediators

Two thirteen-year old students received a standing ovation from the assembled guests at the recent 20th Anniversary Celebration of the North Shore Community Mediation Center. Hanna Scotch and Michael Woo, two 13-year-old students at the Amesbury Middle School were recipients of the Derek Sheckman Fair Play Award for Youth Mediation. Having successfully completed the peer mediation program in their school, both young teens affirmed that the mediation training has taught them to be good communicators — and especially good listeners —which are among the mediation skills they hope to use even beyond the school day.

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Without forgiveness, life is governed by an endless cycle of resentment and retaliation.

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Jennifer Winestone
The Art and Science of Mediation: How the Principles of Commitment/Consistency and Expectation May be Applied to Mediation to Help Break Party Impasse - Part Two (11/21/14)
Jennifer Winestone
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.

Richard Barbieri
Fear Comes to School: Mediating Among Parents Around Ebola (11/21/14)
Richard Barbieri
As medical personnel, emergency aid workers, and diplomatic personnel return to the U.S. from West Africa, schools must manage tensions between local families who are fearful for their own children, and parents who have been at the front lines attempting to stem the epidemic. What mediator strategies may prove useful?

Jon Warner
Is Conflict Always Negative (or Where is the Tiger)? (11/21/14)
Jon Warner
Once upon a time, when we lived among the tigers, we wisely kept our threat detectors on sensitive.1 With no time to think, when seconds might make the difference between having and being dinner, we reacted, and quickly. Knee-jerk made sense as time was usually on the tiger’s side.

Alberto Elisavetsky
De qué manera puede incidir e insertarse el Crowdsourcing en la Resolución Electrónica de Disputas (CORD) en un futuro? (11/21/14)
Alberto Elisavetsky
El siguiente es un artículo colectivo, producto de los aportes, comentarios y reflexiones que se realizaron en el foro de Cyberweek 2014.

Cris Pastore
10 Tips for Choosing the Right Divorce Mediator (11/14/14)
Cris Pastore
Perhaps you've come to the realization that divorce mediation is the way to go for you and your spouse, but how do you choose a divorce mediator? After all, not all divorce mediators are created equal.

Jennifer Winestone
The Art and Science of Mediation: How the Principles of Commitment/Consistency and Expectation May be Applied to Mediation to Help Break Party Impasse - Part One (11/14/14)
Jennifer Winestone
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.

Beth Graham
Arbitration in Evolution (11/14/14)
Beth Graham
The arbitration survey conducted by Professor Tom Stipanowich and the Straus Institute revealed current practices and trends in arbitration. This article specifically examines the demographics of the arbitrators and questions whether these demographics are the best for the business.

Keith Seat
Legal Mediation News Update - November 2014 (11/12/14)
Keith Seat
This is another in a series of updates on Legal Mediation News from Mediate.com News Editor, Keith Seat.

Dave Johnston
A History of Hostage Negotiation Presentation to The Chartered Institute of Arbitrators London Branch (11/11/14)
Dave Johnston
Hostage negotiators have long been used in some form or other and indeed, it is an ancient art or skill, which stretches back to at least the Greek era. Polybius, the son of an eminent Greek governor was one of the 1000 nobles who in 168 BC were transported to Rome as hostages and detained there for 17 years. I can only think in horror, of the logistics of maintaining such a negotiation.

Michael A. Zeytoonian
The Case for Dispute Resolution Clauses in Contracts (11/11/14)
Michael A. Zeytoonian
I am fortunate enough to have some great clients. They do their jobs well, they run their businesses and organizations well. Because they do things right, I have less “back end” (reactive) work from them because they don’t get many claims against them. That is partly because we work together on the “front end” (proactive) work of anticipating issues before they arise and preventively address them.

Beth Graham
Reflections on the State and Future of Commercial Arbitration (11/11/14)
Beth Graham
What may be most striking about these developments is that, until fairly recently, cost- and time-saving were often regarded as among the leading potential benefits of arbitration and a primary basis for distinguishing arbitration as an alternative to litigation. The growing prominence of these elements as perceived negatives of arbitration is therefore particularly troubling.

Tammy Lenski
Intervening in Conflict When It's Not Your Job (11/11/14)
Tammy Lenski
When you’ve got conflict resolution skills, you can’t help but notice all the situations around you that might benefit from your help. But how do you choose when to help informally and when to stay out of it?

Michael Scott
Themes in Mediation (11/10/14)
Michael Scott
Hidden beneath the arguments of a couple in mediation there is a repeating theme. The argument is like Joseph’s coat of many colors. Each disagreement on the surface appears to be about something different, like one of the many colors on the coat. Under the coat, however, there is only Joseph, who remains mostly unchanged.

Keith Seat
Update on Home Foreclosure Mediation - November 2014 (11/08/14)
Keith Seat
This is another in a series of updates on home foreclosure mediation in the United States by Mediate.com News Editor, Keith Seat.


The Urgent Need For Data: Are the Needs of Users and the Dispute Resolution Market Misaligned? (11/07/14)
Deborah Masucci, Michael Leathes
Seismic tremors emanating from London's Guildhall on October 29th 2014 are set to send change-inducing shockwaves, around the international dispute resolution community. It is widely known that dispute resolution's customers, the disputants, have different needs and interests from the supply side of the market such as external counsel, ADR providers, and educators. The shock comes from the initial data generated at this Convention, suggesting just how far out of alignment the supply side may be with the views and needs of the users. Additional data is needed on an international scale.

Doris Tennant
Reflections on Everything is Workable: A Zen Approach to Conflict Resolution (10/31/14)
Doris Tennant
Everything is Workable (Shambhala, 2013) is Hamilton’s book about how to live consciously in a world sated with conflicts. She acknowledges that learning conflict skills asks something of us: “The more intimate we become with human suffering, the greater our compulsion to serve others.”

Cris Pastore
The Shocking Cost of Divorce in PA (10/31/14)
Cris Pastore
The added expense of living in two separate households may be obvious in a divorce case, but have you also budgeted for the cost of hiring a divorce lawyer to go to court? Read this article to gain a full understanding of the fees associated with a divorce lawyer and understand why divorce mediation may the better option for you.

Jacques Joubert
Mediation will Get its Foot in a South African Door (10/31/14)
Jacques Joubert
A fortuitous incident one Monday morning changed everything for two disputees. The two trustees found themselves in the uncomfortable position of getting into the same lift. Without acknowledging each other’s presence they watched the doors close and felt the lift slide down from the 12th floor. It stayed stuck there for two hours - perhaps the most fortuitous two hours of their lives. For in those two hours they resolved a two-year long frozen conflict by talking to each other – person to person.

Keith Seat
International Mediation Developments - November 2014 (10/31/14)
Keith Seat
This is another in a series of updates on International Mediation Developments from Mediate.com News Editor, Keith Seat.

Giuseppe dePalo
The Italian ADR Saga: a Machiavellian Plot, or Just Lawyers Without a Plan (10/24/14)
Giuseppe dePalo
Mediation has long been a matter of contention in Italy. First introduced by a government decree in 2011, mandatory mediation resulted in strikes by part of the legal profession, and was then quashed in 2012 by the country’s Constitutional Court. As the number of mediations dropped drastically after the court decision, in September 2013 Italy re-introduced the mandatory requirement. The country is still in the growing pains of a new system.

Dr. Lynne C. Halem
Dividing Stuff (10/24/14)
Dr. Lynne C. Halem
Most people do not think of their household belongings as assets. It is, after all, just “stuff”. Except, that is, if asked to view the stuff as property subject to division in divorce. Then, suddenly, even the smallest or most insignificant items are seen in a whole new light, indeed take on a whole new value.

Jon Warner
Workplace Conflict – Putting It in Context (10/24/14)
Jon Warner
Many articles on workplace conflict miss out on a key subject area and one which is often best considered first – the context within which the conflict has arisen in the first place. In other words, we cannot consider a conflict situation in isolation from the circumstances in which it has occurred, and the key to its resolution may well lie as much in this contextual realm as it does in appreciating the conflict issue and the people involved in the dispute.

Maria Simpson
Gender and Decision-Making (10/24/14)
Maria Simpson
Men and women are pretty much equally good decision-makers when under low stress levels, but “When stressed, men are more prone to taking risky bets with little payoff.”

John Sturrock
The Mediator's Log: A Mediation Story - Section 2 (10/21/14)
John Sturrock
Part 1 discusses a typical mediator's morning, where all of the details of the case and the arguments are revealed. This section, Part 2, discusses a mediator's afternoon, where he uses all of his tools to help the parties understand each other.

Erica Bristol
Trade Secret Mediation: Negotiating Beyond the Distrust (10/21/14)
Erica Bristol
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.

Jody Sin
Occupy Central: Resolving the Current Impasse (10/13/14)
Jody Sin
Occupy Central (“OC”) has been promoted as a peaceful civil disobedience movement in Hong Kong where the leaders of OC mobilize masses of protestors to blockade Central District to fight for what they consider as genuine universal suffrage. These skirmishes are becoming increasingly violent, and it is time to find a non-violent end to this conflict.

Cris Pastore
When You Might Need Mediation After Divorce (10/13/14)
Cris Pastore
When the divorce mediation process succeeds, spouses and their families often report a tremendous benefit from having chosen the option. However, there are still times when ex-spouses, even if they remain amicable after divorce, may need post-divorce mediation.

Konstantin Pilikov
Recognition of International Arbitration in Ukraine in Figures (10/13/14)
Konstantin Pilikov
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”

Michael P. Carbone
Seal It With a Kiss (10/13/14)
Michael P. Carbone
Justice Antonin Scalia was in the Bay Area recently, speaking to students at the University of San Francisco School of Law. On the subject of trial advocacy he told them that they should learn how to take a complex case and make it sound simple.

Sarah Peyton
Compassion for Your Clients (10/13/14)
Sarah Peyton
One surprising way to think about trauma is not by measuring the magnitude of the horrific event, but rather by measuring the extent to which the person who experiences the tragedy is left alone with it. This article provides a useful reminder that we can never understand the pain that our clients have encountered, and that we might be providing one of the only safe places in their life for them to discuss what they are going through.

Katherine Graham
Bullying and Harassment – Evidence it Accounts for Sickness Absence (10/04/14)
Katherine Graham
For years, I’ve sought data on how much sickness absence is caused by workplace conflict. I know that conflict makes people go off sick with stress – but how could I prove this?

Halee Burg
Creating A Foundation for Cohabitation (10/03/14)
Halee Burg
You are in a committed relationship. You and your significant other desire to live together but are not ready for or interested in marriage. You decide to rent or purchase a property together, or to move into a place one of you currently rents or owns. You are in good company, joining over eight million cohabiting couples in the United States.

Jeanette Bicknell
Conflict in Start-ups (10/03/14)
Jeanette Bicknell
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.

Donald Lloyd
Conflict Resolution Day is October 16, 2014 (10/01/14)
Donald Lloyd
ACR's original intention was for Conflict Resolution Day to be promoted by community centers around the country. The belief is that if the public has a better understanding and awareness of mediation, they will be more likely to hire a mediator. And the more mediators that are hired, the better for all of us!

Cris Pastore
Divorce Mediation Sessions: What Goes on Behind Closed Doors (9/26/14)
Cris Pastore
If you are considering using divorce mediation as the option for your separation or divorce, you might find it helpful to understand what is actually discussed in the mediation room.

Randy Drew
Defining Mediation: Voluntary Assisted Negotiation (9/26/14)
Randy Drew
Mediators have historically resisted defining mediation, because mediation can be necessarily amorphic and definitions can be dangerous. However, the world is defining mediation with or without us. Therefore, it is time for us to weigh in on the question: What is mediation?

Chris Poole
Experts Predict ADR Will Help Resolve ACA Claims (9/26/14)
Chris Poole
The use of ADR to resolve healthcare-related claims will increase with the implementation of the Patient Protection and Affordable Care Act (ACA). Experts predict the increase will stem from the need to reduce costs as well as the healthcare groups that will bring new disputes for resolution.

Mary Novak
The Ups and Downs of ADR Policymaking (9/26/14)
Mary Novak
This is the story of how a law intended to increase mediation use led to a dramatic drop-off in mediation and what was done to try to fix the error.


Harvesting Data to Shape the Future of International Dispute Resolution (9/22/14)
Deborah Masucci, Michael Leathes
Among the early words of wisdom expressed by Sherlock Holmes was this classic line: "I never guess. It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts." And so it is with dispute resolution. There is a paucity of reliable statistics out there to enable users of dispute resolution services, as well as advisers, providers, educators, adjudicators and policymakers, to understand how best to prepare and steer ourselves for the future.

Steven Bennett
Models for Use of Mediation in e-Discovery (9/19/14)
Steven Bennett
Many commentators and courts suggest that cooperative approaches to e-discovery planning hold the key to lower-cost, higher-quality e-discovery processes. Yet, admonitions to cooperate hardly suffice to motivate self-interested parties. Some system to foster cooperation, beyond the parties themselves, appears essential. One system proposed as a means to promote e-discovery cooperation involves use of mediation. This article outlines an array of mediation techniques that could be used for that purpose.

Laurie Israel
Is Mediating Prenups a Form of Marital Mediation? (9/19/14)
Laurie Israel
I have been noticing a trend in my practice lately: the first draft of prenuptial agreements generally sketched out a marriage with no guaranteed financial interplay.

Maria Simpson
Great Workplaces (9/19/14)
Maria Simpson
Fortune magazine publishes an annual list of great places to work, and this year, as in many others, Goldman Sachs took first prize. Many people are surprised by that considering the hours and workload, but there are other elements to consider besides hours.

Robert Benjamin
Game-Playing in Negotiation and Mediation: Machiavelli’s Place At the Table (9/13/14)
Robert Benjamin
While often dismissed as irrational, disingenuous, unethical or “Machiavellian,” game playing strategies and devices are a natural and necessary part of the negotiation and mediation of difficult issues and controversies. If acknowledged and monitored thoughtfully, gaming behavior allows participants a measure of self-protection and provides a lubricant for the constructive, creative and ethical management of complex issues.

John Sturrock
The Mediator's Log: A Mediation Story - Section 1 (9/12/14)
John Sturrock
What happens when you are a mediator and you start another mediation day? We have printed below the details of a mediator's typical morning. The sequel will be printed shortly. Read on as the story unfolds....

Kenneth Feinberg
Ken Feinberg on High Profile Dispute Resolution (9/12/14)
Kenneth Feinberg
Well-known dispute resolution professional Ken Feinberg speaks on high profile dispute resolution and its relation to mediation.

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