Trinity Industries, a maker of highway guardrails that are suspected of having a dangerous defect, and a whistle-blower have been ordered to enter mediation after the company lost a $175 million verdict for defrauding the United States government. On Tuesday, a federal judge said Trinity and Joshua Harman, who filed the lawsuit on behalf of the Federal Highway Administration under the False Claims Act, must mediate their dispute by the end of the year. Last week, the company was found liable for fraud because it did not report changes to its ET-Plus guardrail system to federal authorities for years. The judge, Rodney Gilstrap, said that the mediator could invite the Justice Department and the Federal Highway Administration, which did not participate in the lawsuit, to be involved.
For years, many proponents of arbitration have considered the cost and delays of discovery of electronically stored information (ESI) inconsistent with core principles of arbitration such as efficiency and cost-effectiveness. That view led many arbitral bodies and arbitrators to step only cautiously and slowly into the e-discovery realm. They were unsure of how to implement it until new rules were issued. Domestic arbitral bodies, beset with criticisms of arbitration generally, have made and continue to make changes with regard to ESI. Both JAMS and the American Arbitration Association (AAA) now have protocols for e-discovery, as do several of the international arbitration providers.
Whatever the trigger for a couple taking such a step, divorce is never an easy or pleasant experience. But there are approaches which can make it more straightforward and somewhat less personally taxing, particularly if there are children involved. Mediation and collaborative law are two possible approaches. Here is a quick introduction to the areas you'll need to think about when deciding what the right approach is for you:
New research is showing that previous attempts to slow down bullying in schools are failing. New recommendations from some of the nation’s experts are changing the way many perceive the importance of prevention of bullying, rather than treating it after it begins.
Laura and Saeed discuss conflict resolution in the Arab world as it relates to political and ideological disputes. The conversation is based on a new book, "Arab Approaches for Conflict Resolution: Mediation, Negotiation and Settlement of Political Disputes." Guests include the book's authors, Director of Wayne State University's Center for Peace and Conflict Studies Fred Pearson and Adjunct faculty member at Wayne State and expert in Middle East conflict and inter-cultural conflict management Nahla Hamdan.
Writing a persuasive brief is one of the most important things an attorney can do to prepare for mediation of a business dispute. A good brief provides the opposing side with information they need to consider. Perhaps even more important though is an excellent brief that can help the mediator assist with successful resolution. Here are six tips.
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Mediation and Mindfully Getting in the Middle (Redux) - Video (8/26/14) Brad Heckman In this insightful talk, Brad Heckman discusses mindfulness in conflict mediation. Using poignant humor and his own hand-drawn illustrations, Heckman effectively communicates the necessary balance of emotions, relief and reflection that mindfulness supports in the mediation process.
The Negotiation Campaign (8/25/14) Jeffrey Krivis Negotiations are like political campaigns. It is an organized effort to influence decision makers. Don’t just throw a case against the wall and hope the other side gets it. Mount a negotiation campaign that is strategic and considers who might be needed to vote for your side and what they will need to solidify their vote.
MED-ARB: The Best of Both Worlds or Just A Limited ADR Option? (Part Two) (8/22/14) Mark Baril Med-arb is the melding of two well-established processes for conflict resolution into one hybrid process. Mediation and Arbitration are used in conjunction with one another and, in the truest form of med-arb, the same third-party neutral plays the role of both mediator and arbitrator. In this paper, the term med-arb refers to this pure form that uses the same neutral, and is distinct from the common process where different neutrals are used in a mediation phase and an arbitration phase.
Conflict Resolution for Kids (8/22/14) Judy Ringer My good friend and colleague, Thomas Crum, taught me a lot of what I know about having hard conversations. A method he uses with children - the BLT - is so simple and easy to remember, I often use it and have found it to work very well with children and adults: Breathe, Learn, Talk.
The Good and Bad of Conflict (8/22/14) Ken Johnson As conflict professionals, we should strive to understand the subject of conflict in all its various forms. However, the large majority of the industry only desires to resolve conflict. Indeed, conflict can be beneficial (anabolic) or destructive (catabolic). Knowing the difference can give businesses and other organizations a catalystic edge to take them to the next level.
Time for a Mediator’s Hippocratic Oath? (8/19/14) Deborah Masucci, Michael Leathes It is one of the defining characteristics of professions whose stakeholders invest great trust in their practitioners. Doctors make the Hippocratic Oath. Accountants, lawyers, police officers, elected officials, social workers, veterinarians and others in a position of trust also make various forms of oaths. Yet mediators do not make an oath, even though mediators are invariably taken into parties’ trust. Should mediators make a Hippocratic-style oath?
“Talk To Me”: What It Takes To Be An NYPD Hostage Negotiator (8/18/14) Hugh M. McGowan, Ph.D., Jeff Thompson Crisis and hostage incidents are known for being stressful, unpredictable, tense, anxiety-filled, and emotionally driven. Add to this volatile concoction is that these incidents often can involve violence that has been threatened or having already occurred. Amidst these chaotic incidents New York City Police Department hostage negotiators emerge to provide the antidote to the ensuing turbulence.
La Mediacion en Costa Rica y el Papel del Mediador (8/15/14) Rolando Perlaza Perez La mediación es un método de Resolución Alterna de Conflictos (RAC) de naturaleza auto-compositiva que busca solucionar las diferencias a través del dialogo. En ese sentido, es un método en el cual un tercero imparcial, llamado mediador, interviene en un conflicto entre dos o más personas a solicitud y con la anuencia de las mismas, con el fin de ayudarles en la búsqueda de soluciones pacíficas, cooperativas y mutuamente satisfactorias.
MED-ARB: The Best of Both Worlds or Just A Limited ADR Option? (Part One) (8/15/14) Mark Baril Med-arb is the melding of two well-established processes for conflict resolution into one hybrid process. Mediation and Arbitration are used in conjunction with one another and, in the truest form of med-arb, the same third-party neutral plays the role of both mediator and arbitrator. In this paper, the term med-arb refers to this pure form that uses the same neutral, and is distinct from the common process where different neutrals are used in a mediation phase and an arbitration phase.
Adding Verbal and Non-Verbal Communications Capacity in Virtual Contexts (8/11/14) Ben Ziegler Working virtually can put the squeeze on our full range of verbal and nonverbal communication skills. This is a given with it comes to nonverbal. When we’re in the same physical space together, the success of our communication effort is mightily influenced by our nonverbal, visual, actions. Where is body language, and tone of voice, in a tweet or Facebook post? Fortunately, there are virtual ways to add back some of our lost communications capacity, both verbal and nonverbal.
Shooting Yourself in the Foot (8/08/14) Don Cripe One of the earliest “learned professions” in the Western world is the law. A reading of ancient history from the earliest beginnings of Western civilization will reveal allusions to lawyers. Popes, kings and feudal governments in medieval Europe relied heavily upon lawyers to guide them. Yet, from early days and primarily because of the educational and status advantages lawyers held over most of society, the profession has suffered from poor public opinion and criticism; literature and in popular culture with the onset of the “lawyer joke.”
Observatorio del Conflicto Social - en Espanol (8/08/14) Alberto Elisavetsky En un contexto social de alta litigiosidad, bajo apego al cumplimiento de las normas que regulan la vida social, el incremento de la violencia como forma de intercambio interpersonal y el uso del poder como forma demasiado extendida de resolver diferendos, parece oportuna la creación de un Instituto del Conflicto, que profundice y articule actividades académicas y sociales, en el nuevo y vasto campo de la resolución de conflictos.
On What Level Are We Mediating? (8/08/14) Oran Kaufman How do you define success in mediation? The answer depends in part on who is asking the question? Success for the parties may be different than success for the mediator or success for the court. This article explores the question of how to define success in mediation from a variety of angles including what does success mean for the mediation profession?
The Myth of Mediation Neutrality - book excerpt (8/08/14) Kevin Boileau The traditional view is that a mediator is a neutral, third party who helps two or more conflicting parties cooperatively resolve their differences. Interestingly enough, this belief is analogous to the Cartesian-Newtonian epistemological position that holds that one can be an independent observer of an objective world, in science or in daily life. However, I am skeptical about this position, both epistemologically and clinically. What remains an open question is whether a mediator can actually ever be a “neutral third.”
Beware of Ultimatums When Negotiating (8/01/14) John Sturrock Good negotiation involves lots of client moves, client satisfaction, flexible negotiators, . . . and few ultimatums. Remember these tips in order to get the best agreement for your client.
Do Your Surrounding Systems Support Your Inner Self? (8/01/14) Ralph Kilmann Are your surrounding systems separate from your inner self? I would like to address the observation that we typically define our sense of self as being separate from our surrounding systems. So I ponder: What are the consequences of keeping our sense of self (some integration of ego, soul, and self-worth) separate from our surrounding systems?
What the Supreme Court of India Got Right and What it Got Wrong (8/01/14) Niyata Samir Ghandi The Kluwer Arbitration Blog published an outsider’s perspective on the decision of the Supreme Court of India which has been applauded by international practitioners around the world since it curbed the jurisdiction of Indian courts over an arbitration agreement supplementing the pro-arbitration jurisprudence coming from the SCI over the last two years. The writer has commented not only as an outsider but also and more particularly as a Civil Lawyer, proposing an excellent alterative to the court’s approach. However, it may be necessary to have an insider’s perspective on the judgment.
Book Review: The Variegated Landscape of Mediation (7/31/14) Michael Leathes Never before has an attempt been made to capture the distinctive qualities and differences that combine to make mediation eclectic and also truly comprehensible. Until now. The Variegated Landscape of Mediation (Eleven International Publishing, July 2014) is a collaboration of around 90 of mediation's thought leaders from around the world. It is the first work that explains on a global plane how mediation has cross-pollinated itself into such a kaleidoscopic display of both consistent and contradictory features.
La Mediación en Costa Rica (7/25/14) Rosa Abdelnour A mediados de la década de los noventa se realizó en Costa Rica, por parte del Poder Judicial, una consulta ciudadana para evaluar la percepción acerca del sistema judicial. Los resultados mostraron descontento entre la población por el formalismo para acceder al sistema y la mora o duración de los procesos que se consideraba excesiva.
Understanding Each Party’s Power in Family Mediation-Arbitration: Why it is Critical (7/25/14) Hilary Linton A recent Ontario Superior Court of Justice decision illustrates the need for clearer guidelines for “screening for power imbalances and domestic violence”, a mandatory component of Ontario family arbitration. It also demonstrates the benefits for parties, lawyers and arbitrators in understanding that some methods of screening are more effective than others; and in ensuring that screening is done in accordance with the best practices before the mediation in a mediation-arbitration.
Mind the Gap: Mediation and Justice (7/25/14) Charlie Irvine This article examines the alleged gap between mediation and justice. It considers ideas of both substantive and procedural justice and examines persistent critiques of mediation as falling short of the supposed gold standard of litigation. It goes on to propose an alternative reading of mediation as a site where parties are empowered to negotiate not only the outcome of their dispute but the criteria by which that outcome is judged. This can be read as providing more rather then less justice, particularly in diverse societies where legal and social norms are contested.
Incremental Progress in Mediation: Baby Steps, Strategic Mediation & Less is More (7/22/14) Jim Melamed Taken from Jim Melamed's training manual, these introductory excerpts suggest that progress in mediation is necessarily incremental; that the mediator should in fact strategically focus on baby steps of progress that can be made; and that, in effectively mediating, the mediator should seek to "only do so much as is necessary" to stimulate available progress so as to not over-direct the process and allow participants to claim progress as their own.
Mediating Inheritance Disputes (7/18/14) Jeffrey Fink Inheritance disputes can be difficult to resolve. They are tied up in a lifetime of emotions toward the deceased and every other claimant under the will, as well as personal and spousal expectations of monetary gain. Here are 10 tips and tricks that have helped with this kind of dispute.
Mediation: A Way Out or Hard Work? (7/18/14) Don Cripe After I closed my law practice in favor of providing full-time ADR services, I bumped into an old-time mediator whom I had known for many years. When I told him of the change in my career he commented, “So, you don’t want to work so hard anymore.” This article is my reflection on his observations. 1 Comment
Insecurity in Nigeria : Focus on Social Protection (7/16/14) Mary Aderibigbe The spate of insecurity has become alarming. There have been calls for stringency of laws to bring culprits to justice. Security operatives go after the perpetrators and turn over those apprehended to the courts -- yet the conditions that breed revolt are worsening. This spells real danger!
Dance of Opposites - Book Review (7/11/14) Ron Supancic The Dance of Opposites, a new book by Dr. Kenneth Cloke, will change your life. You will never view conflict the same way again. If you only read one more book on the theory & practice of Conflict Resolution, make it this one.
Perception and Parts in Mediation (7/10/14) Jim Melamed Seeking to be an effective mediator is a both challenging and fascinating endeavor. Essentially, the mediator is asked to assist participants who have some measure of disagreement, or at least lack of agreement, to reach sufficient agreement so as to be willing to call the situation "resolved." In this sense, the mediator seeks to move participants from "the circle of disagreement" to the "circle of agreement."
Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations (7/09/14) J. Ryan Lamare, Tom Stipanowich As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including a further shift in corporate orientation away from litigation and toward alternative dispute resolution (ADR).
Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play (7/09/14) Zachary Ulrich, Tom Stipanowich The Straus Institute recently conducted two major surveys of dispute resolution professionals: a survey of experienced arbitrators with the cooperation of the College of Commercial Arbitrators, and a survey of experienced mediators with the cooperation of the International Academy of Mediators. These studies produced a wide array of new information on arbitrator and mediator practices and perspectives that we hope will contribute to debate and discussion on many current professional issues. We are presently writing these up. The first fruit of these studies is the just-completed article Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play, which leads off the new Yearbook on Arbitration and Mediation.
Pioneer Series: Concerns and Optimism for Future - Video (7/07/14) Frank Sander Frank Sander reflects on his concerns within the field, which include the tension of quality vs. quantity of the practice, the lack of studies of cost effectiveness, disappointments with the court system fees, and the difficulty of getting more young people/apprentices into the field. However, he's optimistic about the future of mediation.
GPS and Divorce Mediation (7/07/14) Bruce Provda GPS systems are starting to make their way into divorce proceedings. When infidelity is suspected, being able to produce digital confirmation of an spouse’s movements can provide powerful ammunition and lay a strong foundation for the remainder of the mediation process.