OM Services

Voice of a Pioneer: Recipes for Expanding the Pie (6/07/13)
Christine Chung
In 1925—two decades before “A Theory of Cooperation and Competition” (Deutsch, 1949) and five decades before “Getting to Yes” (Fisher & Ury, 1981)—Mary Parker Follett presented her model for conflict resolution in a paper called “Constructive Conflict”. In it, she introduced the concept of cooperative problem-solving between disputants that could lead to agreements that fully satisfied both parties, an approach which she called integration.

Arbitration and the Power Sector in Brazil (5/10/13)
Gilberto Giusti
One of the segments of the infrastructure sectors in Brazil that have lately triggered the greatest amount of disputes are the power generation, distribution and trading sectors. In effect, there’s little disagreement in Brazil nowadays that, just as with other sectors that could also be mentioned here (such as oil and gas, sanitation, ports, etc.), in the power sector in general the arbitrators and the lawyers defending the interests of the litigants must have expertise in or at least deeper technical knowledge of the matter in controversy, namely as a result of the complex regulations that followed the introduction of the new regulatory framework for the Brazilian power sector through Law No. 10,847 and Law No. 10,848 of 15 March 2004.

5 Effective Ways to Focus on What’s Important in Relationship Conflict (4/22/13)
Tammy Lenski
How do you decide how much of a relationship conflict’s flotsam is worth pursuing? How do you focus on the important matters in a relationship conflict and not get sidetracked by trivial ones?

Survey Shows How Mediation can be Successful (4/08/13)
Victoria Hall
Clarks Legal LLP recently undertook a survey on workplace mediation. The survey looked at the use of mediation and what barriers there might be to the use of mediation as well as success rates and what if any further information or support might be required.

Almost Everything I Thought I Knew About Mediation Was Wrong! (3/22/13)
Charles Hill
Many people mistakenly view mediators as good ole' boys--Kissinger diplomacy and strong-armed negotiation tactics. This mediator shares his surprise to learn what the mediation is actually like.

Conflict Competency in Healthcare Organizations (3/22/13)
Ann Begler
Ann Begler describes the interaction between mediators and healthcare organizations. She believes that both fields need each other and could be a benefit to the other field.

A New Scotland Can Be Built on Civil Discourse (3/22/13)
John Sturrock
Scotland is at a crossroads. As a nation, we face momentous choices. How we go about discussing them, and making them, may well determine how we work together in the future.

“Protect, Respect, Remedy”: What is the Lawyer’s Social Responsibility? (3/22/13)
F. Peter Phillips
The current issue of IBA Global Insight (Feb/March 2013) features an excellent article by Rebecca Lowe that, on first glance, studies the defenses to liability under the Alien Tort Claims Act as presented by the U.S. Supreme Court’s consideration of Kiobel v. Royal Dutch Petroleum.

A Call for Evidence Based Standards for Mediator Quality (3/15/13)
Gary Weiner
The use of Mediation as a primary means of resolving disputes, as practiced in the United States since the early 1970’s, has been thoroughly institutionalized as a part of civil litigation in many parts of the world. The basic thesis of this paper is that a rigorous and intellectually honest approach to understanding “how to mediate well” must be based on empirically verifiable information and not on untested assumptions or dogmatic beliefs about “what makes good mediation.”

Mediation Case Law Video: When Parties Settle Their Own Case (3/14/13)
James Coben
In Lee v. Lee, the appellate court considered what happens if an agreement is reached outside of the mediation room. Is it enforceable?

Making a Mountain Out of a Mole-Hill (12/27/12)
Cinnie Noble
When we begin to experience irritation about something happening with another person, our thoughts and feelings sometimes go to places that are not helpful for the situation and relationship with the other person. We may not always be aware of what is exacerbating things, but before we know it our initial responses have taken twists and turns that only serve to complicate matters. As things expand in our minds and hearts, we often find ourselves more and more conflicted, confused, and upset. As things get bigger they may not even be a reasonable facsimile of what they were in the beginning.

Negotiating Happiness: Managing Peoples’ Predictably Irrational “Focusing Illusions” - Part 1 (11/18/12)
Robert Benjamin
This is Part 1 of a two-part series. This first part discusses how most human beings concoct out of their 'messy' human brains, an emotional state, often labeled 'irrational,' which neuroscientists and psychologists identify as a focusing illusion of happiness. Most conflicts can be usefully understood as a collision between peoples' differing notions of happiness an often resistant to remediation by reasoned approaches. The forthcoming Part 2 will consider the 'rationally irrational' negotiation strategies and techniques necessary to manage focusing illusions.

Resolving Logistics: An Online Negotiation (11/12/12)
Phyllis Pollack
Analogizing to employment litigation in which a terminated employee sues and is stuck in the past, dwelling on the old job and boss until she gets a new job and then starts putting the termination behind her, I decided that the best way to get over Argus was to get another dog. So, my husband and I went online to the English Springer Spaniel Rescue (ESRA) and started looking for dogs. We soon found “Cookie”- an adorable 2 year old female who is listed as being in Fort Collins, Colorado but is actually living in Rock Springs, Wyoming.

Ethical Intelligence in Conflict Engagement (11/12/12)
Holly Hayes
“If I Am Not for Myself, Who Will Be? Ethical Intelligence with Yourself” Dr. Weinstein talks about “Five Rules of Engagement” for dealing with anger using ethical intelligence.

Becoming an Excellent Mediator – When Facing Opposite Choices, It’s all a Question of Balance (11/06/12)
Heather Allen
The excellent mediator must answer the challenges posed throughout by the participants’ behaviours and the content of the mediation, and it is the extent to which balance is achieved at every moment through the exercise of good judgement that determines effectiveness. The mediator’s focus and approach must change frequently throughout the mediation – sometimes planned and sometimes intuitive.

Recognition of International Arbitration in Ukraine in Figures (10/26/12)
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” because of problematic enforcement of arbitral awards in Ukraine. However, in recent years the Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach.

UN Guide for Effective Mediation - Video (10/23/12)
United Nations
With armed conflicts trending upward again and proving increasingly complex, the challenges are also mounting for mediators working to resolve them through negotiations. Newly developed guidance from the United Nations can help them to succeed, providing practical advice for navigating mediation processes effectively. This video describes the 8 UN fundamental guidelines.

Changing of the Tides (10/09/12)
William Keller
This mediator wonders about changing his mediation practice to reflect the changes he sees in the economy. He discusses the upsides to his clients, the downsides for him, and invites feedback from other mediators who are considering the same options.

An Argument for the Establishment of Professional Standards and Increased Regulation of the Practice of Mediation (9/21/12)
James Grifo
This article offers an exploration into the risks and advantages of mandatory certification requirements, some of the arguments both for and against certification requirements, and the conclusion that there is a distinct need for increased regulation of mediators and the practice of mediation. The article draws from the author’s personal mediation experiences and also references the work of other distinguished practitioners.

Defrauding Clients OK If Done During a Mediation (9/21/12)
F. Peter Phillips
Every now and then this blog features judicial opinions that interpret mediation confidentiality in seemingly odd ways. The California Court of Appeals’ August 3, 2012, opinion in Hadley et al. v. The Cochran Firm deserves a place in the pantheon.

An Update To Proposed Mediation Regulation (9/11/12)
Phyllis Pollack
On August 3, 2012, I posted a blog about Resolution SR-05-01-2012 that was proposed to the California Conference of Bar Associations by Bay Area Lawyers For Individual Freedom. Jo Hoenninger, Esq. is its author. The proposed resolution, if passed by the Conference at California’s Annual State Bar Convention would not only change the definition of “mediator” in California but also implement mediator regulation by the State Bar of California.

The Natural History of Negotiation and Mediation: The Evolution of Negotiative Behaviors, Rituals and Approaches (updated) (9/06/12)
Robert Benjamin
Negotiative behavior, including negotiation and mediation, has been the primary means by which human being have survived and conducted affairs throughout history. As society has become more politically, socially and technologically complex, so too have negotiative behaviors adapted and evolved. The natural history of negotiation and mediation includes five discernible approaches and each continues to be observable and relevant in present day practice.

Striving for Independence, Competence, and Fairness: A Case Study of the Beijing Arbitration Commission - Part 2 (8/27/12)
Fuyong Chen
This second half of the article on the BAC (Beijing Arbitration Commission) reviews building effective mechanisms to maintain integrity. It examines fairness in arbitration and potential arbitration risks.

Performance-Enhanced Arbitration? The CAS Ad Hoc Division (8/27/12)
Elizabeth Kantor
For those of us in the arbitration world, the closing ceremony which took place on 12 August 2012 not only marked the end of the London Olympic Games. It also signalled the conclusion of the jurisdiction of the Court of Arbitration for Sport’s (‘CAS’) Ad hoc division (the ‘CAS AHD’) (as it will not be in operation during the Paralympics).

The Four Ways to Assure Mediator Quality (and why none of them work) - video and materials (8/10/12)
Michael Moffitt
What, if anything, reasonably provides mediation consumers with confidence about the quality of mediators’ services?