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07/30/2014

Big Risks and Disadvantages of Arbitration vs. Litigation

Three recent high-profile arbitral awards highlight the risks of arbitration and demonstrate that, contrary to widespread belief, arbitration is often not cheaper, faster or more predictable than litigation. These three awards, as well as emerging trends in arbitral proceedings, call into question the common practice among corporations of including contractual provisions mandating arbitration in the event of any disputes.


“To See Ourselves as Others See Us”: The surprising potential of Online Dispute Resolution

Many of us have been hearing about Online Dispute Resolution (ODR) for years but haven’t quite got round to using it. It sounds like a nice idea when face-to-face mediation isn’t an option through distance and/or cost. And yet I suspect that for most mediators the ‘gold standard’ is being in the same room as our clients. We can see people, hear them, feel the emotional temperature; we can also speak, use our eyes, use our hands; even jump to our feet when things get stuck. A small screen, by contrast, seems flat, miniature and limited. However, if precedent is anything to go by, it would be foolish to bet against the forward march of technology.


Judge Orders Mediation for SpaceX, US Air Force

A federal judge has asked the U.S. Air Force and Space Exploration Technologies Corp. to try mediation to resolve a lawsuit over the service’s $11 billion order of rockets from SpaceX-rival United Launch Alliance. SpaceX filed the lawsuit April 28, asking the U.S. Court of Federal Claims to void a large portion of the deal, under which the Air Force ordered 36 rocket cores from ULA on a sole-source basis. The U.S. Department of Justice, representing the Air Force, has asked the court to dismiss the case. But Judge Susan Braden on July 24 directed the two sides to explore a third alternative: mediation. Braden asked SpaceX to provide, by Sept. 10, a list of proposed issues for mediation, potential mediators and a timetable. The Air Force will then have until Oct. 14 to determine whether SpaceX’s proposed terms for mediation are acceptable.


Five mediation secrets can change life

I’ve been a lawyer for almost 30 years and a mediator since 1990. I’ve learned how to help resolve people’s problems, getting them not only what they say they want, but what they really want and aren’t telling me. I have five secrets that have changed my life and those of the people I work and play with. I’ll let you in on these secrets. Use them wisely. They are powerful tools.

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"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.

Julian Ernesto Sccasso Losa
El Arte de la Negociación - en Espanol (6/06/14)
Julian Ernesto Sccasso Losa
La aplicabilidad de la negociación en la formación militar permitirá preparar al hombre de armas en los distintos mecanismos y habilidades para lograr resultados exitosos antes de llegar al conflicto. En ese sentido estoy haciendo esfuerzos para concientizar sobre la necesidad de formar al personal militar en el conocimiento y dominio de esta disciplina. Entre las actividades que he realizado al respecto está la publicación de algunos artículos en revistas especializadas (militares) que hacen referencia a la aplicación del los MARC en la actividad castrense.   1 Comment

Jay Folberg
Pioneer Series: Field Combined Law and Social Work - Video (6/05/14)
Jay Folberg
Jay Folberg describes early on in the field when he, as a lawyer, collaborated with psychologists and social workers and they learned from each other.

Robert Benjamin
The Art and Practice of Second-Guessing Negotiated Deals (6/03/14)
Robert Benjamin
The recent exchange of "the last POW " American soldier in the Afghanistan War for five Guantanomo prisoners, reported to have been mediated by Quatar between the Taliban and the United States, has drawn scathing criticism. Beyond the politics, it highlights the unique vulnerability of negotiated and mediated agreements to second-guessing. Ironically, the secrecy and informality that often make negotiative processes work also breeds skepticism and doubt. This re-published article remains timely and relevant to an understanding by all practitioners, that negotiation and mediation are risky businesses.

Don Philbin
Book Review: Short and Happy Guide to Mediation (6/03/14)
Don Philbin
Will Pryor's "Short and Happy Guide to Mediation" is both. You can read it in a sitting, and probably will. But it covers the waterfront too. Pryor teaches the latest negotiation theory, but the focus is decidedly on applying it in practice. The book not only helps neutrals, it helps parties and their advocates better utilize the process to maximize results.

Laura Kaster
Improve Your Judgment Like a Star Athlete Does (6/03/14)
Laura Kaster
Andre Agassi was admitted to the Tennis Hall of Fame in 2011. He still has something special to teach lawyers about improving our judgment.

Phyllis Pollack
Is There A Bad Faith Exception to Mediation Confidentiality? (6/03/14)
Phyllis Pollack
This articles analyzes an order of a federal court providing that mediation confidentiality would not apply to prevent an insurance company from using statements made during mediation to defend itself against claims of insurance bad faith.

Roger Fisher
Pioneer Series: Working with People Who Don't Want to Negotiate - Video (6/01/14)
Roger Fisher
Roger Fisher explains that when one party doesn't want to negotiate, talk to others around them to find out their motivations, interests, concerns, and worries. To have an intermediary to be the back-and-forth at first can provide a foundation for building up to a negotiation.


Imaginary Mediation: Snowden to Return, Face the Music! (5/29/14)
Anony Mous
I had a dream, surely stimulated by Brian Williams’ interview of Edward Snowden on NBC. My dream was that I had just mediated agreement between Snowden and the US Government for Snowden to come home and, in the words of Secretary of State Kerry, “face the music.”   5 Comments

Joseph Stulberg
Pioneer Series: Successful Mediation Techniques in Complex Disputes - Video (5/28/14)
Joseph Stulberg
Joe Stulberg shares how great mediators he's observed are very analytical and have a sense of pragmatic creativity.

Carrie J. Menkel-Meadow
Pioneer Series: Value-Based Mediation - Video (5/25/14)
Carrie J. Menkel-Meadow
Carrie Menkel-Meadow talks about her early experiences with Gary Friedman and their efforts to bring humanistic psychology to law. The value-based mediation process still informs her practice.

Gregg Relyea
ADR: A Day in the Real Life of a Practicing Civil Lawyer (5/24/14)
Gregg Relyea
This article dramatizes the central role played by ADR in the everyday life of a civil law practitioner. The article is set in the context of a "day-in-the-life" of a hypothetical civil litigator. The purpose of the article is to focus on the pervasive and critical role played by ADR in civil law practice.   1 Comment

Caryn Cridland
The Mediator, The Artist (5/23/14)
Caryn Cridland
Mediators can be compared to artists - they begin with a blank canvas with parties too angry to see the possibilities. They help people in conflict see the bigger picture. With each step of the process, a new view or perspective, a new colour, a new brush stroke or insight appears. At first it is only the mediator who can see the newly-formed, unique picture that has appeared through these new insights until through using their skills, those involved in the conflict begin to see the full picture too and move towards resolution.   2 Comments

Jacques Joubert
When an Apology Sets the Tone of a Dispute in Mediation (5/23/14)
Jacques Joubert
For commercial mediators it is obvious that commercial interests such as the need to make a profit are the most important incentives for the parties to settle, in the context of course of their legal rights. But in practice and in theory, attention to psychological or personal interests (e.g. reputation, autonomy, status or acknowledgement) is often key to resolve commercial disputes.   4 Comments

Joy Rosenthal
Mediating Your Divorce? Do You Still Need an Attorney? (5/23/14)
Joy Rosenthal
Reviewing or consulting attorneys are crucial to the divorce mediation process. This article explains why, and helps readers know how to find the right attorney for the job.   1 Comment

Zena Zumeta
Pioneer Series: Evaluative Approach - Video (5/22/14)
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.

Leonard Riskin
Pioneer Series: Narrow v. Broad Problem Definition - Video (5/22/14)
Leonard Riskin
Leonard Riskin explains narrow and broad problem definitions by a giving an example of settling a case where there was a breech of a business contract. A narrow problem definition sees a legal process whereas a broad problem definition allows more room for thinking about other causes of the conflict.

Michael Lewis
Pioneer Series: Asking Questions Instead of Giving Opinions - Video (5/21/14)
Michael Lewis
Michael Lewis talks about argument prevention by asking questions instead of giving opinions within a discussion.

Nina Meierding
Nina Meierding: Culture and Gender Trailer - Video (5/20/14)
Nina Meierding
Internationally prominent trainer Nina Meierding shares with her class how to be culturally sensitive during mediation with non-verbal cues.

Peter Adler
Pioneer Series: Mediation and Leadership with Philosophies - Video (5/20/14)
Peter Adler
Peter Adler discusses mediation as a form of leadership. He also talks about his philosophy of when circumstance meets person: one can be a leader or a follower depending on their capabilities and values within that circumstance.

Robert Alm
Politics, Science and Collaboration (5/20/14)
Robert Alm
This article: “Politics, Science and Collaboration” by Robert Alm, Esq., President of the Collaborative Leader’s Network in Honolulu, Hawaii, is from Mr. Alm's keynote presentation at the first ever Joint Fact Finding Conference coordinated by Peter Adler on March 6, 2014.

Teresa Wakeen
Pioneer Series: Being Neutral is a Myth - Video (5/19/14)
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.

Juliana Birkhoff
Pioneer Series: Mediation is a Field - Video (5/19/14)
Juliana Birkhoff
Juliana Birkhoff explains how her dissertation demonstrates mediation is in fact a field and that what is uniting among experienced mediators is the concept of power.

Frank Sander
Pioneer Series: The Three Phases of Alternative Dispute Resolution - Video (5/17/14)
Frank Sander
Frank Sander speaks of three phases he's noticed in ADR: the Pound Conference followed by ten years of experimentation. The next ten years was the incorporation and practice in law schools and court systems as well as discovering the weaknesses of the practice. The last ten years have been the institutionalization of the field.

John Paul Lederach
Pioneer Series: Conflict Management in Other Countries - Video (5/16/14)
John Paul Lederach
John Paul Lederach continues to describe in detail how he observed partiality as a resource, not an obstacle in Latin America and the Middle East. Partiality meant being part of the network, being an insider, and someone to be trusted.

Shannon Rios Paulsen
Parenting, Mediation, and Divorce: Meeting the Needs of Our Children (5/16/14)
Shannon Rios Paulsen
Children are a huge source of love in our lives; they can say one sentence, bring a huge smile to our face, and remind us of the innocence of childhood. Children all deserve that time of play, laughter, and fun as they grow up. This article addresses what parents and other loved ones can do for children before, during and after a divorce. You can take this information and pass it along or decide to be mentor or positive role model for the children yourself.

Michael Jacobs
From Problems to People (5/16/14)
Michael Jacobs
My starting assumption for this article is that the work we do is largely defined by the problems we face. To put it crudely, there's a world of difference between the problems faced by a meteorologist responsible for forecasting the local weather and the problems confronting a surgeon who must decide the best place for an initial incision. And both of these are very different from the mediator sitting with a separating couple locked in conflict.   3 Comments

Dr. Lynne C. Halem
Do Women Shy Away From Mediation? (5/16/14)
Dr. Lynne C. Halem
Women believe that mediation is something like a venus fly trap. The appearance is beguiling, but the results are deadly. In mediation, couples look at the well-being of the family unit, what it will take to forge new lives. A mediator’s responsibility is to make sure that women and men have the knowledge and the know-how to make intelligent choices, that both parties understand their options and opportunities.

Donald T. Saposnek
Pioneer Series: Transcending Mediation Models - Video (5/15/14)
Donald T. Saposnek
Don Saposnek describes how the different mediation models seem to blend together for an experienced mediator.

Peter Adler
A User's Guide to Joint Fact Finding — "JFF" (5/13/14)
Peter Adler
Joint Fact Finding (JFF) is a public engagement strategy that creates a needed safe harbor for technical and scientific discussions between all sides.   1 Comment

Keith Seat
Update on Home Foreclosure Mediation (5/12/14)
Keith Seat
This is another in a series of articles by Mediate.com News Editor, Keith Seat, updating readers on the development of foreclosure mediation in the United States.

Margaret Shaw
Pioneer Series: Teaching to Mediate - Video (5/11/14)
Margaret Shaw
Margaret Shaw describes an effective way of teaching mediation. It involves classroom learning as well as shadowing experienced mediators to gain an understanding of the sense of process and flow.

Evan Ash
The Paradox of Creativity with Compassion in Mediation (5/10/14)
Evan Ash
Turn the other cheek, give more than is required, respond to the need of another person, all these when you may be faced with pain and loss. Do crazy things like love your enemy, pray for them? The great mystery is the power that comes from the paradoxes of life.

Dane County Bar Association
Elder Care and Mediation - Video (5/10/14)
Dane County Bar Association
The Dane County Bar Association's Case Mediation Program has produced videos to help the public understand and use mediation in the dispute resolution process.

Ken Johnson
Workplace Violence - Part 2 (5/09/14)
Ken Johnson
From 9/11/2001 to 9/11/2013, approximately the same number of Americans died in the workplace due to violence as did American soldiers overseas fighting terrorists. Bullying, stress, domestic disputes, and other considerations account for this. Some researchers have suggested a new mental condition, similar to PSTD, called PTED, which workers may exhibit. Out of control catabolic (harmful) conflict poses a serious problem for both businesses and workers. This two-part series looks into this issue and suggests how ADR practitioners can work to better help businesses make the workplace safer and more productive.

Larry Gaughan
Roles of Religious Culture in Peaceful Settlements (5/09/14)
Larry Gaughan
The area that is now occupied by the United States has always been a place of multiculturalism and religious diversity. This was the case many generations before the arrival of the first undocumented immigrants coming from Spain, England, the Netherlands, and France. Those immigrants had long been preceded by hundreds of different native tribes of somewhat diverse ethnicity, often with different languages and religious practices.

Mary Aderibigbe
5 Steps for Resolving Conflict Within Your Marriage (5/07/14)
Mary Aderibigbe
Couples can resolve their grievances themselves through discussion. No marriage relationship is devoid of conflict, but if these challenges are properly managed, the marriage is strengthened. Couples should therefore show commitment to their relationships by working together to resolve problems.   1 Comment

Keith Seat
Legal Mediation News - May 2014 (5/07/14)
Keith Seat
This is another in a series of updates on legal mediation news in the United States by long-time Mediate.com News Editor, Keith Seat.

Linda Singer
Pioneer Series: Skills of Successful Mediators - Video (5/06/14)
Linda Singer
Linda Singer talks about how senior mediators achieve success: listening skills, gaining trust, discovering peoples' interests, spending the time with people, building relationships.


The Limelight Hypothesis, Part 2 (5/05/14)
Peter Adler, David Matz, Doug Thompson
Being an essay of opinions and observations on sundry issues related to the practice of negotiation; politics and electioneering; dickering over debt in the nation’s capital; Otto von Bismarck’s admonition about watching laws and sausages being made; a budding theory on the effect of constant attention-mongering from MSNBC, FOX News, and other bloggers, pundits, and blabbermouths; the creation of statutes, ordinances, rules, policies, regulations, and standards; and the making of hot dogs, chorizos, kielbasas, and bratwursts.

Laura Pearlman
State of Maine 2014 Report on Foreclosure Mediation Program (5/04/14)
Laura Pearlman
In 2009 the Maine Legislature established the Foreclosure Diversion Program (“FDP”) in the Maine Judicial Branch. It affords a valuable opportunity for homeowners and lenders to consider mutually beneficial alternatives to foreclosure. The FDP continues to see a high level of activity. In 2013, the FDP conducted 2,518 mediation sessions in 1,697 foreclosure cases. A total of 4,756 foreclosure cases were filed in Maine in 2013, an increase from the 4,339 cases filed in 2012.

Ken Johnson
Workplace Violence (5/02/14)
Ken Johnson
From 9/11/2001 to 9/11/2013, approximately the same amount of Americans died in the workplace due to violence as did American soldiers overseas fighting terrorists. Bullying, stress, domestic disputes, and other considerations account for this. Some researchers have suggested a new mental condition, similar to PSTD, called PTED which workers may exhibit. Out of control catabolic (harmful) conflict poses a serious problem for both businesses and workers. This two-part series looks into this issue and suggests how ADR practitioners can work with other various professionals to better help businesses make the workplace safer and more productive.

Michael Toebe
Mediated Prenuptial Agreements Benefit Couples and Mediators (5/02/14)
Michael Toebe
The romance might be lacking in the thought and decision making but there might be relational wisdom in pursuing mediated prenuptial agreements and valuable marketing awareness as a byproduct for mediators. Couples often spend significant time planning a wedding, buying a house and cars, financial planning and how to best raise children, so a question that begs asking is why don't most marrying partners plan for better outcomes in the event a marriage eventually dissolves?   1 Comment

Andres Vazquez
Parlamento Europeo - en Espanol (5/01/14)
Andres Vazquez
La mediación civil y mercantil todavía se utiliza en menos del 1% de los casos en la Unión Europea.

Keith Seat
International Mediation Developments - May 2014 (5/01/14)
Keith Seat
This is another in a series of articles on international mediation developments by long-time Mediate.com News Editor, Keith Seat.

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