When Padraig O'Malley says we must talk to Islamic State, he's speaking from experience. A seasoned mediator, O'Malley brought together warring parties in Iraq at the height of the sectarian conflict in 2007 and 2008, resulting in an agreement that formed the basis for political reconciliation in Iraq and helped curb the violence. He did this with the aid of negotiators from South Africa, and from Northern Ireland, where he had been instrumental in organizing the 1998 Good Friday Agreement that ended 30 years of sectarian conflict.
The wheels are in motion for a resolution to the dispute over usage and the funding model for the shared city and San Mateo Union High School District pool at Burlingame High School, while some are speaking out about their dismay regarding the tumultuous relationship between the two entities. The district is backpedaling on a lawsuit it threatened last week that was in relation to the city of Burlingame not responding to the district’s request for additional space in the 50-meter Olympic size pool for its teams and more payments from the city for its usage. Now, the district and city are both expressing interest in finding common ground. Trustee Linda Lees Dwyer explained the board is forming a committee to analyze the city proposal to reach an amicable resolution by early 2015.
Long Beach city and school officials and other groups suing the city of Los Angeles over a controversial $500 million railyard project bordering West Long Beach will try to reach a settlement before the matter heads to trial next year. Three days of mediation is set to begin Wednesday in Santa Monica between the city of Los Angeles and the seven petitioners, which include the city of Long Beach, Long Beach Unified School District and the South Coast Air Quality Management District, said Michael Mais, assistant city attorney for Long Beach. The parties agreed to hire a judge with expertise in environmental matters found through a private alternative dispute resolution service that typically hires retired Supreme Court and federal court judges, Mais said.
Child & Family Services is launching a new mediation service aimed at veterans and their families. The program, operated by the agency's Center for Resolution and Justice, is funded by a $12,000 grant from the JAMS Foundation and the National Association for Community Mediation. It was among just six community mediation sites around the country funded through the program. Working with the five other centers, the organization will assess the need for mediation services for veterans and their families; build a pilot program; and provide leadership nationwide through training materials.
The custom of not make opening statements in certain parts of the country and in certain substantive case types has now led to not even having a joint session during some mediations. Except in the rare situation where there is the potential for violence, this is a mistake. The parties and their counsel should at least be willing to sit in the same room with one another for some period of time while the mediator explains the process and lays the groundwork for a productive day.
The Internal Revenue Service released a revenue procedure Friday providing rules for the nationwide rollout of post-appeals mediation for both Offer in Compromise and Trust Fund Recovery Penalty cases. The IRS Office of Appeals originally launched post-appeals mediation for both types of cases as a pilot program that was available in certain cities in December 2008 and is now expanding the program nationwide. Post-appeals mediation is available to help resolve disputes after unsuccessful negotiations with the IRS Office of Appeals and is available for both factual and legal issues. The mediator’s role is to help the parties reach their own agreement collaboratively, but the IRS noted that the mediator does not have settlement authority over any issue.
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Gender and Decision-Making (10/24/14) Maria Simpson Men and women are pretty much equally good decision-makers when under low stress levels, but “When stressed, men are more prone to taking risky bets with little payoff.”
The Mediator's Log: A Mediation Story - Section 2 (10/21/14) John Sturrock Part 1 discusses a typical mediator's morning, where all of the details of the case and the arguments are revealed. This section, Part 2, discusses a mediator's afternoon, where he uses all of his tools to help the parties understand each other.
Trade Secret Mediation: Negotiating Beyond the Distrust (10/21/14) Erica Bristol Trade secret litigation often involves deep levels of distrust, suspicion, and anger on the part of parties and counsel. To avoid trial, the plaintiff must negotiate with the thief, adding insult to injury. The defendant may express outrage at being accused of theft, and suspect the litigation is merely a “fishing expedition” to uncover the defendant’s own trade secrets. How then can the parties overcome these issues and reach agreement during mediation? This article provides counsel with information and suggestions for successfully mediating trade secret disputes.
Occupy Central: Resolving the Current Impasse (10/13/14) Jody Sin Occupy Central (“OC”) has been promoted as a peaceful civil disobedience movement in Hong Kong where the leaders of OC mobilize masses of protestors to blockade Central District to fight for what they consider as genuine universal suffrage. These skirmishes are becoming increasingly violent, and it is time to find a non-violent end to this conflict.
When You Might Need Mediation After Divorce (10/13/14) Cris Pastore When the divorce mediation process succeeds, spouses and their families often report a tremendous benefit from having chosen the option. However, there are still times when ex-spouses, even if they remain amicable after divorce, may need post-divorce mediation.
Recognition of International Arbitration in Ukraine in Figures (10/13/14) Konstantin Pilikov Arbitration practitioners often put Ukraine below the average ranking of countries in terms of recognition of arbitration. Ukraine’s image of a not entirely arbitration-friendly jurisdiction is “promoted” with common thought about problematicenforcement of arbitral awards in Ukraine. However, in recent years Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach. That progress had been measured during the study resulted in the research paper “Ukraine. Arbitration-friendly jurisdiction: statistical report, 2011-2012”
Seal It With a Kiss (10/13/14) Michael P. Carbone Justice Antonin Scalia was in the Bay Area recently, speaking to students at the University of San Francisco School of Law. On the subject of trial advocacy he told them that they should learn how to take a complex case and make it sound simple.
Compassion for Your Clients (10/13/14) Sarah Peyton One surprising way to think about trauma is not by measuring the magnitude of the horrific event, but rather by measuring the extent to which the person who experiences the tragedy is left alone with it. This article provides a useful reminder that we can never understand the pain that our clients have encountered, and that we might be providing one of the only safe places in their life for them to discuss what they are going through.
Creating A Foundation for Cohabitation (10/03/14) Halee Burg You are in a committed relationship. You and your significant other desire to live together but are not ready for or interested in marriage. You decide to rent or purchase a property together, or to move into a place one of you currently rents or owns. You are in good company, joining over eight million cohabiting couples in the United States.
Conflict in Start-ups (10/03/14) Jeanette Bicknell From one perspective, conflict in a start-up should not be different from conflict in any other similarly sized organization. And to be sure, some of the same factors that cause conflict in any organization – whether it is a family business or a partnership or a non-profit – can contribute to conflict in a start-up. Yet start-ups also have some unique challenges, and I’ve seen some rather bad advice targeted to them.
Conflict Resolution Day is October 16, 2014 (10/01/14) Donald Lloyd ACR's original intention was for Conflict Resolution Day to be promoted by community centers around the country. The belief is that if the public has a better understanding and awareness of mediation, they will be more likely to hire a mediator. And the more mediators that are hired, the better for all of us!
Defining Mediation: Voluntary Assisted Negotiation (9/26/14) Randy Drew Mediators have historically resisted defining mediation, because mediation can be necessarily amorphic and definitions can be dangerous. However, the world is defining mediation with or without us. Therefore, it is time for us to weigh in on the question: What is mediation?
Experts Predict ADR Will Help Resolve ACA Claims (9/26/14) Chris Poole The use of ADR to resolve healthcare-related claims will increase with the implementation of the Patient Protection and Affordable Care Act (ACA). Experts predict the increase will stem from the need to reduce costs as well as the healthcare groups that will bring new disputes for resolution.
Harvesting Data to Shape the Future of International Dispute Resolution (9/22/14) Deborah Masucci, Michael Leathes Among the early words of wisdom expressed by Sherlock Holmes was this classic line: "I never guess. It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts." And so it is with dispute resolution. There is a paucity of reliable statistics out there to enable users of dispute resolution services, as well as advisers, providers, educators, adjudicators and policymakers, to understand how best to prepare and steer ourselves for the future.
Models for Use of Mediation in e-Discovery (9/19/14) Steven Bennett Many commentators and courts suggest that cooperative approaches to e-discovery planning hold the key to lower-cost, higher-quality e-discovery processes. Yet, admonitions to cooperate hardly suffice to motivate self-interested parties. Some system to foster cooperation, beyond the parties themselves, appears essential. One system proposed as a means to promote e-discovery cooperation involves use of mediation. This article outlines an array of mediation techniques that could be used for that purpose.
Great Workplaces (9/19/14) Maria Simpson Fortune magazine publishes an annual list of great places to work, and this year, as in many others, Goldman Sachs took first prize. Many people are surprised by that considering the hours and workload, but there are other elements to consider besides hours.
Game-Playing in Negotiation and Mediation: Machiavelli’s Place At the Table (9/13/14) Robert Benjamin While often dismissed as irrational, disingenuous, unethical or “Machiavellian,” game playing strategies and devices are a natural and necessary part of the negotiation and mediation of difficult issues and controversies. If acknowledged and monitored thoughtfully, gaming behavior allows participants a measure of self-protection and provides a lubricant for the constructive, creative and ethical management of complex issues.
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.
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."
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.
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.
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.
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.
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.