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11/21/2014

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.

READ & SEARCH NEWS
The Master Agreement
"Mediate.com has modeled successful marketing of our field. Staffed with some of the most effective people in our field, it has provided a gathering place for dialogue and thought. Always thinking one step ahead, it has challenged us all to be our best selves. While organizations and administrations come and go in our field, Mediate.com has stayed the course and proven itself a source of creativity again and again."
Carl Schneider


More Testimonials
"Thank you for giving me permission to share the articles from mediate.com. The web site, mediate.com, is outstanding. I have used it extensively as a rich resource, and I often refer it to new mediators and people who are inquiring about using mediation to resolve disputes. Thank you abundantly for providing so much invaluable information in an easy to access format."
Jane Arnold


More Testimonials
Civilization is a method of living, an attitude of equal respect for all people.

New at Mediate.com

Richard Barbieri
Mediators, Transformed and Untransformed (9/12/14)
Richard Barbieri
The French have a wonderful term for a common phenomenon: déformation professionelle. Similar to the saying, “If your only tool is a hammer, you tend to see every problem as a nail,” this phrase suggests that people see the world through the lens of their work. This article addresses that concern, and helps mediators to remember their clients are people that cannot fit into a mold.

Keith Seat
Legal Mediation News – September 2014 (9/12/14)
Keith Seat
This is another in a series of updates on Legal Mediation News by Mediate.com News Editor, Keith Seat. See our related Newsletter Service for your clients and referral sources.

Phyllis Pollack
Duologue: Inattentive Conversing (9/12/14)
Phyllis Pollack
Daniel Simons and Christopher Chabris discuss the notion of Inattentional Blindness or how when we are looking at a scene, we may become so focused on one particular aspect of what we are viewing that we miss the other objects or stimuli that are in plain sight. "Inattentional Blindness occurs where attention to one thing causes us to miss what to others may seem to be blindingly obvious. We have a limited ability to focus and attention in one area can distract us from another area."

Rachel Ehrlich
Shhhh! The Big Risk Associated With Mediation Confidentiality Nobody Talks About (9/05/14)
Rachel Ehrlich
In complex civil disputes it is not uncommon for information to be provided through mediation and that information is often subject to mediation confidentiality. When related disputes (contractual indemnity, insurance carrier contribution, insurance coverage and bad faith, and reinsurance) arise, mediation confidentiality prohibits using the information relied upon as evidence in the related matter.

Cris Pastore
6 Major Mistakes to Avoid in a Do-It-Yourself Divorce (9/05/14)
Cris Pastore
Although spouses claim to have everything worked out, they almost always fail to consider some very important details. Read this article and learn the 6 common mistakes to avoid when attempting to resolve your own divorce.

Katherine Graham
What’s a ‘Successful’ Mediation? (9/05/14)
Katherine Graham
Mediation is commonly measured in terms of settlement rate (i.e. did the parties agree?) and you’ll see figures like ’80% settlement rate’ bandied about. In our view this is not the only measure of success. There are many more! Think about which measures matter to you – the parties, the mediators, and your organisation.

Keith Seat
International Mediation Updates - September 2014 (9/05/14)
Keith Seat
This is another in a series of updates on the development of mediation internationally by Mediate.com News Editor, Keith Seat.

Dale Ordas
Rethinking Negotiation Strategy (9/02/14)
Dale Ordas
Too frequently, negotiations are fruitless due to inadequate preparation. Rethinking Negotiation Strategy sets forth critical areas that should be part of the preparation for negotiation. In each segment there are references, which provide for a more in depth exploration of these indispensable tools for the successful negotiator.

Kim Lovegrove
Mediation-in-Depth Analysis - Video (9/02/14)
Kim Lovegrove
Prof. Kim Lovegrove and distinguished lawyers look at Mediation as a dispute resolution process, its advantages, and disadvantages.

Jim Melamed
Reported Complaints About Mediation.com (9/01/14)
Jim Melamed
This article includes reported complaints and email correspondence with and regarding Mediation.com and their selling practices.

Rolando Perlaza Perez
Resolucion Alterna de Conflictos en Costa Rica y la Apertura Hacia Nuevas Formas de Gestionar el Conflicto (9/01/14)
Rolando Perlaza Perez
Hace 17 años en Costa Rica se promulgó la Ley Sobre Resolución Alterna de Conflictos y Promoción de la Paz Social ley número 7727 (Ley RAC) y se iniciaron campañas de formación y concientización de la ciudadanía sobre las ventajas y bondades de la solución pacífica, dialogada y colaborativa del conflicto. Desde entonces, Costa Rica ha avanzado en el desarrollo y fortalecimiento de los métodos tradicionales de RAC (Resolución Alterna de Conflictos), entiéndase Arbitraje, Mediación/conciliación, Negociación y en los últimos años los Círculos de Paz. Incluso en el año 2011 se promulgó la Ley Sobre Arbitraje Comercial internacional Ley 8937, que sienta las bases para que Costa Rica sirva de Sede para arbitrajes internacionales de naturaleza comercial.

Keith Seat
Update on Home Foreclosure Mediation - September 2014 (9/01/14)
Keith Seat
This is another in a series up updates on the development of home foreclosure mediation in the United States by Mediate.com News Editor, Keith Seat.

Brad Heckman
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.

Jeffrey Krivis
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.

Mark Baril
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.

Judy Ringer
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.

Ken Johnson
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.

Cris Pastore
Using the 17 Factors of Alimony in PA in Divorce Mediation (8/15/14)
Cris Pastore
Curious about how alimony is determined in Pennsylvania? Read this comprehensive article and learn about alimony and about the 17 factors the court considers in determining it.

Rolando Perlaza Perez
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.

Mark Baril
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.

Ben Ziegler
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.

Don Cripe
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.”

Alberto Elisavetsky
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.

Oran Kaufman
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?

Kevin Boileau
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.”

John Sturrock
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.

Ralph Kilmann
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?

Maria Eugenia Sole
Mediación Comunitaria, Redes Sociales, y Javier Mascherano - en Espanol (8/01/14)
Maria Eugenia Sole
Mediación comunitaria, redes sociales y Javier Mascherano en nuestra mesa De la “hombría” a la “caballerosidad”. En las últimas horas las redes sociales se vieron inundadas de referencias a Javier Mascherano, capitán “sin cinta” de la selección de futbol argentina, exaltando su hombría de bien, su temple, perseverancia y espíritu de equipo.


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.

Michael Leathes
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.

Keith Seat
Legal Mediation News - July 2014 (7/29/14)
Keith Seat
This is another in a series of updates on Legal Mediation News from Mediate.com News Editor, Keith Seat. See our related Newsletter Service for your clients and referral sources.

Rosa Abdelnour
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.

Hilary Linton
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.

Charlie Irvine
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.

Keith Seat
International Mediation Updates (7/23/14)
Keith Seat
This is another in a series of updates on International Mediation Developments from Keith Seat, Mediate.com News Editor.

Jim Melamed
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.

Jeffrey Fink
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.

Don Cripe
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

Mary Aderibigbe
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!

Ron Supancic
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.

L. Randolph Lowry
Pioneer Series: Negotiation is Replacing Litigation - Video (7/10/14)
L. Randolph Lowry
Randy Lowry discusses how some have been resistant to mediation education, but how it has been successful in changing legal processes and preventing litigation.

Richard Salem
Complete Interview with Richard Salem (7/10/14)
Richard Salem
This is the complete interview by Robert Benjamin with Richard Salem, a pioneer in the field of mediation and dispute resolution, filmed as part of Mediate.com's "The Mediators: Views from the Eye of the Storm" Series.

Jim Melamed
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."

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