Ruling in a closely watched case, the California Supreme Court made clear Monday that consumers trying to escape arbitration agreements must do more than show the contract favored the other side. A six-justice majority reversed the Second District Court of Appeal, which ruled in 2011 that an arbitration agreement in a sales contract for a used Mercedes-Benz could not be enforced because it favored the car dealer. However, the court stopped short of adopting a new, possibly more rigorous, standard for proving unconscionability. Writing for the majority in Sanchez v. Valencia Holding, Justice Goodwin Liu said not all one-sided contract provisions can be struck down.
RAMSEY - The borough is moving into mediation to seek to resolve a dispute with a Pennsylvania swimming pool contractor, which is claiming the borough owes it $40,500 for work done on the municipal pool. The $2 million in renovations were supposed to be done by May 2, 2014, but because of construction delays the pool didn't open until mid-June last year. The borough says it is withholding the $40,500 for late fees stipulated in the contract.
A global design, engineering, and consultancy firm has released a report stating disputes relating to major construction projects in North America decreased in value while the length of time to resolve conflict increased significantly last year.
While mediation-arbitration in the family law context is a fairly recent phenomenon, there’s been a growing controversy around its use. The thrust of the concern is that mediators, who are privy to a lot of sensitive information during the settlement phase of proceedings, should not later become arbitrators of the same case.
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The UNCITRAL Convention on Enforceability of Settlement Agreements Resulting from International Commercial Mediation (7/30/15) Gracious Timothy In February 2015, the U. N. Commission on International Trade Law (UNCITRAL) Working Group II (Arbitration and Conciliation) met in New York to consider the case for a Convention on the recognition and enforcement of international settlement agreements achieved through mediation. The task was to report on feasibility and the possible form of work in that area. The Working Group did receive several comments from states on the need; the status of settlements; possible exceptions; and the technical feasibility of this new convention. This article collectively summarises the questions underlying possible harmonized solutions.
How to Become a Successful Mediator (7/23/15) Bennett G. Picker The theme of today’s conference is “Succeeding in Mediation.” The simplest definition of mediation is “facilitated negotiations by a trusted individual.” If I had to define mediation in only one word, my word would be “opportunity.” The process offers the parties an opportunity to telescope issues in hours that might take years in litigation, to forge solutions based upon underlying interests, to preserve relationships and, quite obviously, to avoid the time, expenses and distractions of litigation.
The Future of Mediation: Changing the Default of Fault (7/21/15) Richard Barbieri Will the future of mediation be, as Woody Allen remarked, “much like the present, only longer”? Given what we know about human nature, systems, and the resistance of each to change, that’s perhaps the safest prediction. But it’s also a less than hopeful prognosis, because mediation has much to offer the future, far more than it has achieved at present.
Good Communication Starts With Listening (7/14/15) Nancy Foster When you are speaking and someone is not paying attention, how do you feel? Annoyed, frustrated, discounted, rejected, anxious or angry? Such feelings usually make communication more difficult. So how can we show someone who is speaking that we really are paying attention to them?
Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation (7/14/15) Zena Zumeta Mediators around the country find themselves uncomfortable with what is being called mediation in their own and other areas. Accusations are made that one or another approach to mediation is not “real” mediation or are not what clients wanted. In addition, many clients and attorneys are confused about what mediation is and is not, and are not sure what they will get if they go to mediation.
Dealing With Defensiveness In High Conflict People (7/14/15) Bill Eddy When most people think of high conflict people (HCPs), they think of bad behavior. The goal seems to be to get them to STOP their bad behavior, by verbally motivating them to have insights into how bad they are acting. However, the high conflict behavior of HCPs is not driven by logic and self-awareness. If you don’t understand this and don’t accept this, you will waste your time arguing for insights and miss your opportunities to calm them down and set real limits on their behavior.
Finding a Maryland Divorce Mediator (7/08/15) Donna Duquette If you are thinking about working with a divorce mediator, then this is probably one of the more difficult times in your life. To make matters even more challenging, in the midst of this emotional turmoil you are called upon to make some important family decisions. One of these decisions is how to find a divorce mediator who will be right for you and your spouse. Here are suggestions for finding a divorce mediator in Maryland.
Seven Steps for Effective Problem Solving in the Workplace (7/06/15) Tim Hicks Problem solving and decision making. Ask anyone in the workplace if these activities are part of their day and they'd certainly answer 'Yes!' But how many of us have had training in problem solving? We know it's a critical element of our work but do we know how to do it effectively?
We Have to Talk: A Step-By-Step Checklist for Difficult Conversations (7/06/15) Judy Ringer What you have here is a brief synopsis of best practice strategies: a checklist of action items to think about before going into the conversation; some useful concepts to practice during the conversation; and some tips and suggestions to help you’re energy stay focused and flowing, including possible conversational openings. You’ll notice one key theme throughout: you have more power than you think.
Are You Really Ready for Divorce? The 8 Questions You Need to Ask (7/06/15) Bruce Derman, Wendy Gregson This article outlines what couples need to do in order to face the numerous dilemmas that are inherent in divorce. A dilemma implies that you are torn between two choices, each of which have undesirable fearful elements. If people have not resolved their dilemmas before the divorce, they go through the process trying to manage their fear in different ways by hiding their doubt, responsibility; vulnerability, or dependency.
Dear Futures Project: What I Think I Know (7/01/15) Gini Nelson We are the fortunate beneficiaries of Jim Melamed and Mediate.com's twenty years of dogged persistence in all things mediation. Here are a few things about what I think I know about the next five years or so to come.
In An Interdependent World There Is No Them And Us, Only Us (6/29/15) John Sturrock The old certainties are gone. The disruption caused by the General Election result will inevitably cause instability - and opportunity. Now is the time for new thinking, a break from the old paradigms. You don't solve your problems by using the same thinking that got you into them, as Einstein would say.
“Justice” Report for England and Wales: A Missed Opportunity for Radical Change (6/29/15) Charlie Irvine "Justice," a UK think-tank committed to legal reform, launched a new report in April 2015 entitled "Delivering Justice in an Age of Austerity". It proposes significant changes to the justice system of England and Wales, including a new character, the "Registrar", who would have powers to mediate, provide early neutral evaluation, dismiss cases or refer them to a judge. The article provides a detailed critique of the proposals, concluding that despite great merit, they extend the "shadow of the law" by making early neutral evaluation the default. A more radical and empowering change would have been to make mediation the default, with ENE and adjudication the remedial alternatives.
Avoiding the Uncertainty of a Medical Malpractice Trial (6/19/15) Richard Bone Alternative dispute resolution (ADR) provides viable and attractive alternatives to jury trials as a means of resolving medical legal disputes arising out of allegations of professional negligence. The two primary alternatives to a jury trial for medical malpractice cases are mediation and binding arbitration.
Making Better Use of Mediation to Resolve Disputes and Manage Difficult Issues (6/19/15) John Sturrock Mediation encourages parties who have – or who anticipate having – differences, conflict or a dispute to sit down and talk, with a view to finding a mutually acceptable way forward. It is usually most appropriate when, for a number of reasons, people are unable to negotiate effectively for themselves or have reached some sort of impasse or deadlock. It recognises that direct negotiations can be difficult in many situations. It can also be effective to prevent awkward situations escalating.
Why Taking the High Road to Deflate “Deflategate” is Important (6/19/15) Michael A. Zeytoonian It’s the most talked about dispute in New England and in sports these days. Deflategate. But really, how important is this issue? Whether the league rule was violated and footballs were intentionally deflated to a weight less than the range allowed. On a scale of 1 to 10, 10 being most important, this topic is a 1, if that. Ask anyone who ever played football, at any level.
Designing a Successful Parenting Plan (6/17/15) Don Gordon, Jack Arbuthnot Here are several important issues you should think about as you design your parenting plan. A child needs the love and affection of both parents, but they also need both as teachers. These roles should override your desire to “own” your children.
Not All Mediation Educational Programs Are Worth the Time or Money (6/12/15) Zachary Ulrich Given the rapid expansion of the mediation field over the past several decades, an increasingly important question for young and aspiring mediators is whether it is worth the time and/or money to invest in what are, in many cases, quite extensive mediation and dispute resolution training programs that have popped up around the world.
Compliance Success with Mediated Settlements in Small Claims (6/11/15) Mattie Robertson A report on the success of mediated settlement agreements by SEEDS Community Resolution Center's mediation team in Small Claims Court in Alameda County. High compliance with settlements has provided litigant parties with a reliable and effective way to resolve their cases using interest-based negotiation within a community mediation model.
Overcoming Reluctance to Engage in Mediation (6/11/15) Laura Athens Many attorneys know and appreciate the benefits of mediation. Those who are familiar with the benefits of mediation readily propose and eagerly participate in it. However, should you encounter any resistance, how can it be addressed?
The Future of Mediation (6/09/15) John Ford A coach once asked me to predict which way a drop of water would go around a rock up ahead. Of course there is no way of knowing: the water drop may not make it due to evaporation to the atmosphere, absorption by the river bank, and then if it does make it to the rock, whether it goes left or right, over or below. However, even if the future is uncertain, we can still comment on where the drop of water is at the moment. Even its relationship to our imagined future. And of course about its past.
Musings of a Long Time Arbitrator (6/05/15) Brian Jerome Musings of a Long Time Arbitrator reflects on the positive and challenging aspects of serving as a neutral, in a manner both realistic and humorous. Similar practitioners will be able to immediately relate, and those that seek or utilize the services of ADR providers will get a direct look at the implications of a neutral’s daily reality.
Beyond “Divorce American Style": The Search for a More Responsive Process (6/05/15) Larry Gaughan Marriage is a high risk undertaking. Consider the statistics. In recent years the number of marriages each year is just over twice the number of divorces in the same year. So when two adults in their late 20’s – let’s call them Justin and Lisa - decide to get married and have an expensive wedding with all the trimmings, there is a good chance that they will also get divorced. And when they do, it wouldn’t be unusual for their divorce to cost as much as (or more than) their wedding and honeymoon.
Presenting Your Presentation: A Few Words (6/05/15) Richard Barbieri The passing of William Zinsser leads me to offer some suggestions on writing well in a specific context: applying to present at a professional conference, or seeking to attract participants to a workshop, based on over forty years of both writing and reviewing proposals.
Settle Your Personal Injury Claim Before A Lawsuit Is Filed (6/01/15) Don Cripe As a retired lawyer who handled many personal injury cases (both as a defense lawyer and for plaintiffs), an Arbitrator and Mediator who has handled many, many more, some things become ever more obvious as the years pass. Resolving most personal injury cases before a lawsuit is filed (or at least before the defense files an answer) accomplishes most of the objectives of the parties more quickly and efficiently than after.
The Family Mediator's New Tool (6/01/15) Charlie Mulvey After setting forth the nexus that alcohol abuse and dependence has with both domestic abuse and violence, but also with high conflict parties, then briefly discussing the evolution and technological advances of alcohol detection devices, the Author recommends that every family mediator should be carrying one, both to ensure the safety and security of the mediator and parties, but also as a tool in negotiating child visitation and possession when alcohol abuse or dependence is alleged.
Managing the Cost of Conflict (5/22/15) Alessandra Sgubini Roxanne De La Roche Conflict is a common occurrence in society. It arises everywhere, among different types of parties, in different parts of the world, and for different reasons. If conflict is not addressed properly it can escalate and degenerate leaving serious consequences in its wake. This article explores the true costs of conflict, methods to address conflict, and how to prevent conflicts from escalating in the first place.
The Good Divorce (5/22/15) Dr. Lynne C. Halem “What is a good divorce?” you ask. “After all, divorce is not a good or a happy event.” Correct you are. Divorce cannot be logically characterized as “good,” if we are referring to the event itself. Divorce is a time of sadness, even regret; it symbolizes the end to dreams once held. “ So,” you ask again,” how can a divorce be good?”
Bush and Folger on Reclaiming Mediation’s Future (5/22/15) Dusty and Vicky Rhoades, Dan Simon One of the many things that Baruch Bush and Joe Folger have contributed to the mediation community is the stimulus to engage in difficult conversation about how we support participants in conflict. What informs our practice? What does it mean when I say that I’m committed to participant self-determination? Baruch and Joe’s recent article on Reclaiming Mediation’s Future and their challenge to return to “an original vision of the mediation field” has certainly stimulated conversation and strong reaction.
Advocacy in Mediation (5/21/15) Uma Ramanathan Advocacy is recommendation of a cause. Advocacy presupposes a difference of opinion or a conflict and the need to clarify the ‘knot’, get to understand the root cause and then acknowledge consequences. Mediation advocacy pre-supposes support by the mediator for resolution and projection of a cause by the counsel/ party.
We Are The Future of Mediation (5/18/15) Michael Aurit How will the future of mediation matter if a new generation of young mediators is not encouraged and carefully shepherded into our profession? Here’s to a future where we all may learn from one another, unite to overcome our profession’s greatest obstacles, and create the future that we imagine.
The 2016 Global Pound Conference Series! (5/17/15) Deborah Masucci, Michael Mcilwrath In April 1976, an event now known as the Pound Conference ignited modern ADR in the USA, launching discussion of what might be the “greatest reform in the history of the country’s judicial system “. Forty years later, all stakeholders in the dispute prevention and resolution fields around the world are being invited to participate in a series of unique thought leadership events around the globe under the auspices of a Global Pound Conference (“GPC”) series. The GPC has a remarkable goal: to shape the future of dispute resolution and access to justice in the 21st Century.
What Is A Humanistic Approach to Mediation? An Overview (5/15/15) Mark S. Umbreit, Ted Lewis A humanistic approach to mediation developed in parallel to the transformative approach to mediation in the 1990's. While fully harmonizing with transformative mediation, a humanistic approach brings several additional emphases that can deepen the work of mediators in both dispute resolution and restorative justice work. The 'human-element' is highlighted by giving greater attention to several humanizing capacities in mediation.
More Online Mediation Needed Before We Can Measure Effectiveness (5/15/15) Charles Hill The author suggests that a larger number of cases must be mediated online before determining the effectiveness of any online methodology. The author draws similarities between the advantages and disadvantages often cited for online education and online mediation and contends that what we’ve learned in education can readily carry over to mediation.
Unbroken Circles for Schools - Book Review (5/15/15) Ken Johnson, Barb Caffrey "Unbroken Circles for Schools" is an excellent nonfiction read about conflict, social justice, and restorative justice. Mr. Johnson's premise is that our criminal justice system is doing juvenile offenders a grave disservice. Rather than sending juvenile offenders into the prison system (where they mostly learn only to re-offend), we need to teach the principles of restorative justice instead -- and where else should these principles be taught but in the schools?