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Considering its effectiveness, mediation remains grossly underutilized. The reason is not that people have not heard enough about mediation to think of it as an option. The reason is more basic: many find the alternative attractive. For them, litigation carries with it immense psychic and other perceived benefits. Mediation comes not as a welcome resource, but as a deprivation. In general parties tend to stay in the court system to satisfy one or more of three needs they sense are more readily satisfied there than in mediation. John McCauley describes the three needs and suggests strategies to overcome the resistance to mediation.
This article will explore the need for mediators to become more self-aware in order to mediate successfully. We believe that mediators need a certain detached yet compassionate strength of self that can only be derived through self-exploration of our own needs, values, and assumptions. Uncovering and reflecting over these ideas, as well as our triggers or “hot spots”, our own response to conflict, and our developing emotional intelligence takes us down the path to success as professional mediators and facilitators, and perhaps as human beings.
Certain barriers to resolution occur with some frequency. The purpose of this article is to identify these barriers and to explore the ways in which a skilled and experienced mediator can overcome them.
Consider the simple problem of tardiness. How many times have we heard people attribute other people’s tardiness to internal characteristics (she’s just inconsiderate!) and yet blame their own lateness on external factors (the traffic jam was impossible!). This is what author Melissa Janis calls fundamental attribution error, one of two major perceptual errors that she discusses in this article. Using her own experience in mediating employment cases, Janis shows how these perceptual errors are often at the core of a conflict. She offers practical mediation techniques in managing perceptual errors and turning a win-lose situation into a win-win scenario in mediation.
You and your clients have just gone through a lengthy mediation. After hours of hard bargaining, a settlement finally is reached. How should you memorialize your agreement to assure that its terms will be enforced? Can you be confident that the settlement will not unravel because one or more of the parties has had a change of heart? These are questions that frequently concern parties who are thinking of using mediation. Fortunately, I have found as a mediator that it is not difficult to create and enforce a binding agreement if you follow a few simple rules.
Effective representation of clients in mediation requires the same level of preparation, diligence and assertiveness as is required in presenting a jury trial. The outcome of a mediation session depends, to a large degree, on the performance of counsel.
Mediators around the country find themselves uncomfortable with what is being called mediation in their own and other areas. Accusations are made that one or another approach to mediation is not “real” mediation or are not what clients wanted. In addition, many clients and attorneys are confused about what mediation is and is not, and are not sure what they will get if they go to mediation.
Among the more hotly debated issues concerning appropriate qualifications for mediators is the question as to whether it is preferable for mediators to also be lawyers.
This article emphasizes the importance of skillful questioning by mediators and offers a selection of questions that a mediator might ask in the mediation of a commercial dispute that is on its way to trial.
The following article is a call to arms against the threat of the "lawerization" and "parochialization" of ADR practices. Giving detailed examples, John Cooley shows ADR professionals how to defend themselves against the mounting attack on the ADR "profession" by those who would resist the new paradigm of ADR: that is, new sets of rules that offer "more successful solutions to problems than those acheivable by the prevailing rules."
Maximization is a mediative philosophy and approach that seeks to assist participants to obtain best possible results, as opposed to barely sufficient solutions. Participants may be assisted to be at their personal best; to most capably problem-solve; and to obtain the greatest possible substantive satisfaction. Maximization is a mediative commitment to assisting all participants to be at their best. Maximization may be mediation at its best and is consistent with a mediator's duty to be impartial. The opportunity for maximization distinguishes mediation.
The use of teams represents an important change in the way we work. The theory is that through the interdependency of the parts greater productivity is achieved by the whole. Experience has been less kind. One reason that teams fail to meet performance expectations is their paralysis through unresolved conflict. This article focuses on the impact of culture on the prevention and resolution of conflict in teams.
In public dispute resolution processes, professional mediators and facilitators must be impartial toward all parties. Their reputations, and their ability to effectively help the disputants, depend on such impartiality. So for a facilitator, being accused of partisanship - of favoring one party over the others or of "taking sides" - can be especially distressing. How should one respond to such an accusation?
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There are two eternal truths about litigated cases: 1) There is a tremendous likelihood the case will be settled without trial; 2) The settlement could occur any time from the moment the case is filed until the eve of trial. That vacuum of time provides many favorable and unfavorable opportunities to negotiate a resolution to a case that is satisfactory to your client. It's how you use the time that counts.
Professional guidelines charge mediators with the responsibility to act in a neutral manner. A mediator's personal worldview influences the role s/he plays as a mediator, i.e., underlying assumptions shape how a mediator relates, reacts, and forms decisions during the process. This article addresses the need for mediator attention to developing self-reflective techniques. Unexamined, emotion-laden assumptions fuel worldviews. Taking a proactive stance in discovering what those assumptions are can greatly increase a mediator's ability to improve his or her practice.
As mediators, we seem to be drawn to the word "neutral" as a descriptive term for what we do and as a conceptual frame for our professional role. Beyond the theoretical discussion, however, there are some very practical risks for mediators to consider in continuing to describe themselves as neutrals.
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