(10/06/15)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.
(10/06/15)Lorraine Segal I confess that I have had a love-hate relationship with feedback. In my teaching and coaching, I am passionately committed to improving and growing. And, I always want to be a good spouse, friend, and colleague as well.
(10/04/15)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.
(10/03/15)Frank Fowlie This chapter focuses on the applicability of Online Dispute Resolution (ODR) for a specific
dispute resolution mechanism, the Ombudsman. The chapter is based on the experiences
and observations of Dr. Frank Fowlie, who served as the Inaugural Ombudsman for the
Internet Corporation for Assigned Names and Numbers (ICANN).
(9/25/15)Phyllis Pollack Either as a participant in a mediation or as the mediator, we have all learned the cardinal rule that mediations are confidential both in terms of the statements and other communications made during the mediation and the information the mediator keeps to herself, not sharing it with the other parties. Many times a mediator has analogized mediation confidentiality to the television ad, “What happens in Vegas, stays in Vegas” to explain the sacrosanct nature of mediation confidentiality.
(9/25/15)Tammy Lenski The Einstellung effect is a type of cognitive trap that prevents us from seeing better solutions to problems we want to solve and conflicts we want to resolve. Here's how it traps us and ways to mitigate its effects.
(9/18/15)Sapna Jhangiani In an age of ever-increasing complexity, where your watch can open your garage and answer your phone (yes, the Apple watch can really do that), many of us in the international arbitration community have lost sight of the most powerful weapon in the advocate’s toolbox: simplicity.
(9/18/15)Charlie Irvine In 2006 Frank Sander produced his ‘Mediation Receptivity Index’(22 Ohio State Journal on Dispute Resolution, 599-618). The MRI would be a way of discerning the extent of ‘mainstreaming’ or ‘institutionalization’ of mediation in different US states. It doesn’t seem to have caught on, but we discuss Sanders work here.
(9/12/15)Arthad Kurlekar Article 399A included in the Criminal Law of People’s Republic of China, provides for criminal liability to arbitrators for “perversion of law” (Wangfa Zhongcai Zui). The provision has been a Part of the Criminal Law since 2006. However, on 24 June 2015, the Supreme People’s Court (‘SPC’) and the Supreme People’s Procuratorate (SPP) of China have undertaken the task of interpreting Article 399A (Further information about the process may be found here).
(9/11/15)Michael Jacobs After twenty years practice and at the point of retirement, one of my mediator colleagues reflected on her experience of working with people in dispute. What struck her most forcefully was how rare it was for people to be able to disagree constructively. Disagreement inevitably ended up as conflict. At which point, people no longer had different points of view, they had a fight.
(9/11/15)Todd Jarvis, Curtis Moore, Andrew Wentworth Scientific mediators attempt to tread the path between “Merchants of Doom” and “Merchants of Doubt” as “Merchants of Discourse” using multiple working hypotheses and multiple ways of knowing as their moral compass.
(9/04/15)John Sturrock One topic which stimulated some forthright conversation recently was the use of hybrids whereby a mediator takes on the role of arbitrator if the matter does not resolve by mediation. In particular, we discussed the transition from mediator to arbitrator with the consent of the parties.
(9/04/15)John Lande Recently, I was asked to write an article with advice for law students and lawyers, My Last Lecture: More Unsolicited Advice for Future and Current Lawyers. Here are some highlights from that article.
(9/01/15)Joseph Callahan, Sam Imperati This article rebuts “Bush and Folger on Reclaiming Mediation’s Future” written by Dan Simon, Dusty Rhoades, and Vicky Rhoades for Mediate.com in 2015. Their article attempts to rebut my 2015 article, “Ironically, Bush and Folger are Evaluative,” which was itself a rebuttal to the 2014 Bush and Folger article, “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination.” There’s a whole lot of rebutting going on!
(8/28/15)Malcolm Sher What is “culture” anyway? Webster defines culture as the “customary beliefs, social forms and material traits of a racial, religious or social group.” Dutch psychologist Geert Hofstede, defines culture more generally as “the collective programming of the mind that distinguishes the members of one group or category of people from another.”
(8/28/15)Sig Cohen Borrowing from Harvard Prof. Clayton Christensen’s 1997 classic The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail, this article examines how mediation can replace litigation to become the standard practice for resolving disputes in the U.S. While most consider mediation an ‘alternative’ to litigation, I argue it’s only a matter of time before mediation reaches ‘cornerstone status’ in our legal system. Among other things, the article focuses on how law firms and legal education may have to adapt to achieve this goal. However, the outcome can only result in a less expensive, time consuming and emotionally draining process.
(8/28/15)Phyllis Pollack As originally drafted and introduced into the California State Assembly, it provided that mediation confidentiality would not preclude the introduction of “… communications between a client and his or her attorney during mediation… in an action for legal malpractice or breach of fiduciary duty or both, and in a State Bar disciplinary action, if the attorneys’ professional negligence or misconduct forms the basis of the client’s allegations against the attorney.” In short, mediation confidentiality would not provide a shield to an attorney in a legal malpractice action, State Bar proceeding or disciplinary action where his alleged misfeasance or malfeasance arose during mediation.
(8/28/15)Ian MacDuff In both practice and training, we’ve long operated on some assumed attributes of mediation – confidentiality, neutrality – and a loose consensus on at least the key elements of what mediation looks like, though without offending our other cherished values of pluralism, diversity, mediator autonomy, and context-sensitive design.
(8/21/15)Gracious Timothy The AMA procedure is not the end of the line. Enforcement of settlement agreements is cited as a crucial aspect and the AMA procedure is not completely geared up for it looking at its many downsides. It would be more desirable and feasible to prepare a uniform model provision on enforcement of mediated settlement agreements that would be universally acceptable.
(8/19/15)Kathy Goodman, Karen LaRose Hurtful relationship remarks can be understood as expressions of unmet needs for respect, appreciation, autonomy and acknowledgement. Unfortunately, even mild expressions of frustrations felt in family businesses, if left unattended, have consequences. Family business disputes are especially emotional, and repeated hurts and miscommunications accumulate into grudges, damaging silence, and feelings of injustice. They can, and often do, result in costly legal actions among family members. Relationships can become difficult or impossible to heal after such ordeals.
(8/13/15)John Sturrock “What’s been going on in recent mediations”, asked a colleague. “Any highlights?” A trouble with doing anything on a regular basis is that we can omit to sufficiently reflect on the learning from each occasion. I hope to accomplish a bit of that here.