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Zena Zumeta

Pioneer Series: Evaluative Approach - Video

(10/03/15)Zena Zumeta Zena Zumeta explains the difficulties she sees with using an evaluative approach. However, she sees how it can be useful in a dispute where there is a power imbalance.
Michael Lang

Pioneer Series: Demonstrating Reflective Practice - Video

(10/03/15)Michael Lang Michael Lang describes an account where he was teaching reflective practice, a practice that enables mediators to be more aware of their own methods and why they are using them.
Frank Fowlie

ODR and Ombudsmanship

(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).
Teresa Wakeen

Pioneer Series: Being Neutral is a Myth - Video

(10/01/15)Teresa Wakeen Terry Wakeen explains that she believes being neutral is a myth. She still upholds her ethical duty, however, to not force her opinions and judgments on the parties.
Joseph P. Folger

Pioneer Series: Transformative Mediation for all Cases? - Video

(10/01/15)Joseph P. Folger Joe Folger believes that the purpose of mediation is to give people voice and choice and moments of recognition are powerful and just as important as getting settlement.
Phyllis Pollack

Mediations are Supposed to be Confidential… But Are They Really?

(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.
Tammy Lenski

Do You Fall Prey to the Einstellung Effect in Problem Solving?

(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.
John Lande

What Makes Lawyers Happy? – And How Can You Help?

(9/25/15)John Lande "Money can’t buy me love." – Paul McCartney. As a corollary to psychologist McCartney’s insight, money can’t buy lawyers (much) happiness.
Sapna Jhangiani

Keep it Simple. Keep it Interesting.

(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.
Charlie Irvine

Legal Costs and ‘Mediation Receptivity’

(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.
Arthad Kurlekar

“Perversion of Law” in Chinese Criminal Law – An Indiscriminate Legal Weapon Against Arbitrators

(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).
Michael Jacobs

Facilitating Disagreement

(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.

Scientific Mediation

(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.
John Sturrock

Keep Mediation and Arbitration Separate?

(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.
John Lande

Tips for Lawyers Who Want to Get Good Results for Clients and Make Money

(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.

What if Jon Stewart and Stephen Colbert Reacted to Simon & Rhoades on Imperati on Bush and Folger!

(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 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!
Malcolm Sher

Unravelling Cultural Diversity in Mediation

(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.”
Sig Cohen

Mediation as a "Disruptive Innovation"

(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.
Phyllis Pollack

Update on Mediation Confidentiality

(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.
Ian MacDuff

Laying the Table

(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.
Gracious Timothy

The Downside of Arb-Med-Arb Procedures

(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.
Jeanne Cleary

On the Question of a Party's Capacity to Use Mediation

(8/21/15)Jeanne Cleary A mediator came to me for a consult with an intriguing situation while co-mediating a Harassment Prevention case in a local court. I analyze the situation in this article.

An Action Plan for Family Business Conflicts

(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. ZZZZZ

Melvin Alvin Max Rubin

(8/17/15) On August 12th, 2015, Mel Rubin passed away. All who knew him are deeply saddened by his loss. Also see
John Sturrock

Some Valuable Learning Points From Recent Mediations

(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.
Michael Toebe

Problem-solving Effectiveness of Sports Mediation

(8/05/15)Michael Toebe Sports is a highly-competitive culture and that same commitment and drive it takes to get results can also be a strength so strong, too strong in fact, that it becomes a weakness in minimizing or resolving very costly conflicts, whether that be relationally, performance wise or financially.
Malcolm Sher

Embracing "Cultural Diversity" in Mediation

(8/05/15)Malcolm Sher More than seventy percent of my mediations involve parties who were born, raised, educated or lived somewhere other than the U.S. or are younger generations of people who were. Their differing “cultures” often play a big part in “who” they are and how they may behave in the face of conflict.
Gracious Timothy

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.
Jennifer Winestone

Litigation vs. Mediation - “Child’s Play” for Understanding Your Options

(7/30/15)Jennifer Winestone This article applies the litigation and mediation processes to a common parenting scenario in order to illustrate the differences between the processes and the advantages of resolving family conflict through mediation.
Cecilia Iro-Cunningham

Comparing Arbitration and Mediation as ADR tool for Workplace Conflict

(7/29/15)Cecilia Iro-Cunningham Recently arbitration has been considered or mandated by many employers in response to increasing cost associated with employment litigation (Shea, 2015). Arbitration in workplace dispute is mostly used to determine bridge of collective agreement and grievances arising from terms and conditions of employment as contained in the collective agreement.
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