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.
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."
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.
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.
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.
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.”
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.
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.
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.
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Respect and Integrity in Response to Violence (10/25/13) Dian Killian I’ve been thinking about connections a lot in my recent PhD research, given recent events. At first glimpse, a school shooting in Georgia may unrelated to US military action in Syria. But if you scratch beneath the surface, they are intimately related—in how we see and respond to violence.
Tender the Lawsuit to the Insurer (10/25/13) David Laufer This article walks through what steps you should take if your client is sued for wrongful conduct. Is this an appropriate time to ask for a neutral? Is this an opportunity to mediate?
On Settling Employment Cases (10/25/13) Michael P. Carbone All too frequently the employment relationship leads to disputes that result in litigation. Mediators see a wide variety of claims, such as wrongful termination, harassment, discrimination, and violation of wage and hour rules.
Consistently Inconsistent: The Need for Predictability in Awards (10/25/13) Beth Graham In investment treaty arbitrations, the stakes are high. It is not uncommon for claims to be asserted for hundreds of millions of dollars, and for the costs to resolve such disputes to run into the millions of dollars. Despite the substantial sums involved in resolving such disputes, there exists no uniform practice on awarding costs and fees in investment treaty arbitrations.
Attribution Biases – How Do You See The World? (10/18/13) Caryn Cridland Often it is the little things that annoy people. People can jump to conclusions and attribute them to either a person or other circumstances. People have attribution biases, or their own way of seeing the world and this article helps readers understand what the common attributions are and how they can overcome them. These tips can help improve relationships in the workplace, in the community and family.
8 Top Mobile Apps for Mediators (10/18/13) Alexander Stuehr This article highlights some popular mobile apps that ADR practitioners can find useful. It also draws attention to the trends in mobile computing that many of their potential clients will already be using or familiar with.
ADR: Simple But Not Easy (10/18/13) Gary Harper Conflict resolution is, in theory, quite simple. Yet who among us hasn’t experienced times when our common sense flies out the window and even the most basic skills desert us. Those times demonstrate that conflict resolution may be simple, but is far from easy. Let’s see why.
Washington Could Use a Little More Mediation (10/18/13) Chris Poole Most of us were at least slightly frustrated by Washington’s inability to reach agreement over budget and debt limit issues in the past weeks and months. In fact this kind of dysfunction and brinksmanship has become more of a regular pattern than an aberration. Clearly the issues are complex as in any political debate and blame can be placed just about anywhere. 1 Comment
Attorneys and Negotiation Ethics: A Material Misunderstanding? (10/18/13) Art Hinshaw Our research suggests that a true norm of ethical negotiation behavior exists within the legal profession. This conclusion is tempered, however, with the knowledge that a large minority of our research respondents — at times approaching one-third of them — engaged in unethical and even fraudulent behavior.
Divorcing Parents: Avoid Bringing Your Battles to Court (10/15/13) Rosalind Sedacca You're getting divorced and you're angry, resentful, hurt, vindictive or any combination of other painful emotions. Hiring the most aggressive litigious divorce lawyer you can find seems like your smartest choice. If you're a divorcing parent who is thinking along those lines, you're making a choice you may long regret.
Negotiating With Fallible Memories: Buyer Beware (10/15/13) Phyllis Pollack When it comes to relying on our memories in negotiation, the cautionary tale is buyer beware! Once again, another study has been published demonstrating that our memories are quite fallible. They are simply not nearly as reliable as we think they are, and consequently, we should not rely on them in the courtroom (or in everyday life, for that matter.)
ACR Presidential Speech 2013 - Video (10/13/13)
2013-2014 President of the Association for Conflict Resolution (ACR) delivers her first address as President at the 2013 ACR Annual Conference on October 11, 2013 in Minneapolis, MN
Fretboard Logic: Learning From The Guitar How To Value Your Case (10/11/13) Jeffrey Krivis The Problem: You think that your client’s pain is so severe and different than the typical client that you value the case substantially higher than the other side will pay. The Solution: Understand what “category” your adversary has put your case in and either accept it or try and create a new category of value.
The Art and Practice of Second-Guessing Negotiated Deals (10/04/13) Robert Benjamin If you are going to negotiate or mediate, prepare to be second-guessed. While wars, litigation and arbitration have the allure of being final and determinative processes -- albeit often falsely so -- negotiation offers little of that elusive finality and is particularly vulnerable.
Is Mediation Ready for Primetime? (10/04/13) Debra Oliver Claudio Ruben and Charles Fox both took mediation training, a mediator and trainer of 23 years. Years later, they hooked up to create a one-hour television drama about a very robust full-service mediation firm located in colorful Santa Fe, New Mexico.
What is Mediation and How Can it Help Me? (10/04/13) Joanna Wares When business or personal disputes and arguments reach a point where communication stops or becomes adversarial, it’s difficult to know what to do next. Many turn to litigation but there is an alternative. Mediation, as a practice is extremely effective in helping parties find solutions. So successful that statistics of 75% to over 80% success rates have been published in voluntary mediation.
The Future of Financial Services Arbitration (10/04/13) Emily Blanshard Arbitration practitioners in Asia have long been used to seeing arbitration clauses as the prevalent form of dispute resolution in cross-border finance transactions. As other emerging markets (such as those in Africa) continue their rise, this trend looks set to spread to other regions. Within the EMEA (Europe, Middle East and Africa) region typically used as a business division within the financial services sector, it is only for intra-EU transactions where the old orthodoxy of court jurisdiction continues to hold strong.
Ten Ways To Be Successful in Mediation (10/03/13) David Peterson It’s no secret that insurance carriers have altered their practices in the past several years. Authority and independent judgment previously possessed has been removed from adjusters, managers and supervisors as executives in the companies strive for uniformity in claims handling and ironclad control over settlement decisions. Rarely at mediation is there a person present from an insurance carrier with genuine ability to be flexible and exercise individual judgment beyond parameters established in advance.
Building Better Business Cultures (10/03/13) John Sturrock A culture shift from conflict to collaboration
is taking place, leading mediators believe, in
handling difficult situations and disputes, not only
in business but in many aspects of public life –
a development which presents fresh challenges
to the legal profession.
Mediation Monster Mash-up (9/30/13) Brad Heckman To quote Frankenstein’s monster, FIRE BAD. Mediators take a different view. We fearlessly go toward the heat in conflict, giving our clients a safe space for tough conversations…no matter how scary. Here’s a round-up of my Halloween tweets quoting mediators working with monstrous, er, misunderstood, clients.
The Solution-Focused ‘Language Game’ in Mediation (9/27/13) Fredrike P. Bannink Without clear, concise ways to know whether mediation has either failed or succeeded, mediation can go on endlessly. Therefore, early in their conversations, mediators and clients address the question: “How do we know when to stop meeting like this?” This article helps to define solution-focused mediation. 1 Comment
Mediate.com to Require Video As Part of Certification Program (9/24/13) Mediate.com Mediate.com will soon be requiring a mediator introductory video as part of Mediate.com's "full disclosure and transparency" certification process. Just as "a picture tells a thousand words," Mediate.com CEO Jim Melamed says that a short video provides referral sources and potential clients with "millions of words." The Mediate.com Board believes that a short video provides consumers with unique qualitative information as to whether a particular mediator selection is a good match.
Globalization of Family Mediation Rooted in Children’s Rights (9/20/13) Maureen Dabbagh Mediation now includes standards and guidelines for international family mediation. Unlike traditional family mediation rooted in state family law codes, international family mediation has developed within the context of international rights of children. The Hague Conference on Private International Law (HccH) used the principles found in the United Nations Convention on the Rights of the Child (UNCRC) in framing international family mediation. The first standards for cross border family mediators was presented in December 2012. 3 Comments
Love, Eros, and Negotiation (9/19/13) Robert Benjamin Even linking the notions of love with negotiation rubs some people the wrong way. Love, after all, should be pure and not subject to vicissitudes of business. And, negotiation, being business, many believe should never be personal. In most relationships, however, personal and business, love and negotiation are inseparable and he denial of that reality frequently and unnecessarily contribute to the end of many relationships. 1 Comment
Accusations, Mediation, and Closure (9/19/13) Roxie Hollingsworth This article uses a case study to examine whether mediation is a sign of guilt and what the Bible says about resolving disputes. Biblical Based Mediation can help churches prevent embarrassment, devastating notoriety, church splits, and possibly legal actions that do permanent damage to one or both parties.
The “Too Attractive” Bias (9/18/13) Phyllis Pollack A 10-year employed dental assistant in Fort Dodge, Iowa was terminated because she was “too attractive.” Initially, the Iowa Supreme Court affirmed the decision of the trial judge. The dental assistant petitioned for rehearing and, for only the fifth time in a decade, the court granted it. Their decision and the implications of it show us how important it is to be aware of our biases and the actions around them.
Why Perspective Take - Part 1 (9/13/13) Caryn Cridland Perspective-taking can be defined as viewing the world from outside ourselves. With this definition, perspective-taking can be used not only to resolve conflicts with others, but also in decision-making and problem solving. Unfortunately, while we all have the capacity for perspective-taking, some people choose to utilize uni-directional thinking. 2 Comments
Mediation Marketing (9/13/13) Randy Drew Someone said, perfection is the enemy of good and great. What I don’t like about perfection is that it can hold-up progress when it comes to mediation marketing. How many times have you asked a client to look inside and find the best person they can be? Perhaps it is time to do the same with your mediation marketing. 1 Comment