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The rapid growth of commercial arbitration has not been without drawbacks. As counsel have become more sophisticated in dispute process design, arbitrations now often incorporate many elements of a court trial. The inevitable consequence of these changes has been increased expense and delay. To preserve the benefits of arbitration, it is necessary to address this issue from several perspectives, starting with the arbitration clause. A thoughtful process usually should include a negotiation or mediation step, reasonable limits on the scope of discovery, overall time limits on the arbitration, and the designation of one rather than three arbitrators whenever possible.
Where there are people, there is conflict, and your office is no different. It doesn’t matter if there are just two employees or two hundred, there are going to be fights; there is going to be drama. Unfortunately, that makes life difficult for many of us. I don’t like drama. I’d rather just avoid getting involved and let it play out. But when you run a business, you can’t think that way. Too much office drama can make your business grind to a halt, and it’s up to you to help resolve sticky situations.
Did you make it through the festival season unscathed? Many artists find themselves self-producing in the summer and having to embark on sensitive relationships with directors and others. This unique workshop will offer techniques for communicating effectively and productively as you embark on sensitive artistic relationships, now and in the future, as well as offer guidance and clues about finding colleagues who will work collaboratively.
Late Saturday, the Atlanta Symphony Orchestra sent out a press release saying that the ASA management and its musicians had agreed to mediation to try to find consensus on a contract. The ASO management and the Atlanta Symphony Orchestra Players’ Association (ASOPA) agreed to restart collective bargaining agreement discussions using a federal mediator. The mediator is Allison Beck, deputy director of the Federal Mediation and Conciliation Service. She served as the mediator during the Metropolitan Opera Musicians’ labor dispute in August.
I'm fighting with my neighbor. It's gotten to the point where I want to sue her for leaving her garbage laying around and letting her dogs bark all day and night. Don't I have a right to a quiet, peaceful home? But my board wants me to try mediation. What is that? Is it worth it?
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Rare is the person who can weigh the faults of others without putting his thumb on the scales.
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) James 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) James 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.
Being Grateful for Whatever Comes (7/04/14) Katherine Triantafillou Most mediation training sessions in the United States usually end somberly with handshakes, the exchange of business cards and perhaps a last bite of the refreshments that have been laid out for snacks during the day. Not so with the energetic group of mediators and facilitators who completed the third and final leg of training of the Athens Migration Dialogue Project in Athens, Greece.
A Song of Loss for Divorce Mediators (6/30/14) Richard Barbieri I was recently asked to give a presentation in an advanced seminar on Mediating with Families in Transition. I thought at first of the many film scenes that I have previously utilized, from the opening of Wedding Crashers to The War of the Roses. I then realized that most of my artistic experience of lost love comes through music, rather than film, and so I prepared a new presentation based on favorite songs about the effects of divorce. 1 Comment
The Hopeless Case (6/30/14) Michael P. Carbone This article discusses the reason why many clients are adverse to mediation: "This is a hopeless case; we are too far apart." The common refrains about being too far apart explain why mediation is needed. If the two sides were close, they would probably settle the case on their own. The reason why they need a mediator is that they are polarized. 1 Comment
Pioneer Series: Early Views of Field - Video (6/27/14) Sid Lezak Sid Lezak talks about how he viewed the field when he first started out. It was like a 'religion' for him and any opposition or criticism made him even more dedicated to the practice and advocacy of mediation.
The Settlement Drift (6/21/14) Jeffrey Krivis The "drift" in our ability to go to war, as written about by Rachael Maddow, is similar to what has become of modern mediation in the litigation arena. Initially a product of the desire for more efficient and cost effective settlements, the mediation session was initially seen as the final play in the drama. Now, almost 25 years later, the mediation session has transformed itself into just one additional step in the litigation menu. The process has become strained to the point that the current approach is to schedule mediation without any sense of urgency. It is done to comply with a court order or simply as a matter of practice, now often with no expectation of finality. 1 Comment
Conflict Systems at Work in Startups (6/20/14) Mark Baril Behind most disputes is a system that perpetuates the problem. Uncovering the system will reveal why these negative conflict outcomes keep coming back, and, hopefully, how to fix them for good.
Does Mediation Make Us Better? (6/20/14) Heather Pincock The prevailing measures of success of mediation have largely examined settlement rates. I examine this among many other things in an empirical study that asks: Does Mediation Make Us Better? This article contains a video that summarizes the study, and a link to the entire article.
Three Distinct Embodied Languages (6/18/14) Jerry Green As a mediator, I am often in the middle of tense situations. Through Aikido, I have learned to be aware of how that tension affects me physically and to prevent it from spilling into the mediation room.
Competition, Collaboration and Integrity at the World Cup (6/15/14) James Melamed As a former soccer player and professional mediator, I now think about the World Cup and soccer in terms of how we interrelate as human beings, focusing on issues of competition, collaboration and integrity. There are many lessons to be learned and a very special opportunity at risk of being missed.
How to Encourage Perspective-Taking (6/13/14) Caryn Cridland When people get angry or upset, they have the tendency to forget to look at other possible circumstances or view points of the situation. They look at just the behaviour and not the possible intentions or causes of the behaviour. It is the mediator’s role to help the parties to see other view points. The article explores examples of situations where perspective-taking can be beneficial. It also explores strategies that encourage perspective-taking. These include telling stories where the participants have been pushed to a point, examining their own behaviour and looking at common values or goals.
Post-Divorce Blues: Unresolved Issues and New Problems Unsettle Divorced Spouses (6/13/14) Dr. Lynne C. Halem Months, even years, of haggling and anxiety were finally at an end. A new beginning was in the offering. Yet the initial relief, may be filled with sadness, and may well be short-lived. Divorced couples are often faced with agreements that do little to help them navigate an evolving, and even rocky, future. Mediation provides an agreement which is clear and specific as to beginning points and ends, as to the details of property, support, and the children, including education, death, and taxes, provides insurance for protecting couples from the surprises of tomorrow.
agreement which is clear and specific as to beginning points and ends, as to the details of property, support, and the children, including education, death, and taxes, provides insurance for protecting couples from the surprises of tomorrow.
Meditation Enhances Mediation: A Six Sigma Perspective (excerpt) (6/13/14) Tony Belak, Pradeep Deshpande The importance of including meditation in mediation efforts is explained. A considerable body of evidence in the scientific literature, as well as reputed media publications, are supportive of the hypothesis meditation will enhance workplace mediation programs. Together they will lead to less workplace discord and workforce conflict, as well as offer improvements in health, wellness, quality, productivity, and competitive position.
Collaborative Scotland (6/06/14) John Sturrock Scotland is having a referendum on its constitutional future. As I write this, it is only a few months until we vote. Whatever the outcome in September’s referendum about independence for Scotland, in this country we will all need to work hard to ensure that we can live well together after the referendum.
"Conflict - The Unexpected Gift" Book Review (6/06/14) Jack Hamilton, Elisabeth Seaman Conflict is a common aspect of life that is extremely difficult to avoid because each person is different from others and arrives at his or her own conclusions about the behavior of others and the events in a situation. Although conflicts may seem unavoidable, one can actually learn how to work through them and come out with a better relationship in the end. The book “Conflict—The Unexpected Gift: Making the Most of Disputes in Life and Work” presents a highly detailed and comprehensive approach to resolving interpersonal conflicts.