Keep Mediation and Arbitration Separate?
One topic which stimulated some forthright conversation recently was the use of hybrids whereby a mediator takes on the role of arbitrator if the matter does not resolve by mediation. In particular, we discussed the transition from mediator to arbitrator with the consent of the parties.
Some Valuable Learning Points From Recent Mediations
“What’s been going on in recent mediations”, asked a colleague. “Any highlights?” (The trouble with doing anything on a regular basis is that you can omit to reflect on the learning from each occasion.)
In An Interdependent World There Is No Them And Us, Only Us
The old certainties are gone. The disruption caused by the General Election result will inevitably cause instability - and opportunity. Now is the time for new thinking, a break from the old paradigms. You don't solve your problems by using the same thinking that got you into them, as Einstein would say.
Making Better Use of Mediation to Resolve Disputes and Manage Difficult Issues
Mediation encourages parties who have – or who anticipate having – differences, conflict or a dispute to sit down and talk, with a view to finding a mutually acceptable way forward. It is usually most appropriate when, for a number of reasons, people are unable to negotiate effectively for themselves or have reached some sort of impasse or deadlock. It recognises that direct negotiations can be difficult in many situations. It can also be effective to prevent awkward situations escalating.
Getting to Yes – With Yourself -- Book Review
“In the morning when I look at myself in the mirror, I like to remind myself that I am seeing the person who is probably going to give me the most trouble that day, the opponent who will be the biggest obstacle to me getting what I truly want.”
The Mediator's Log: A Mediation Story - Section 3
The Mediator's Log gives a step-by-step diary of a mediator's day as he moves through a complex negotiations. This is the final step of the mediator's negotiations.
Hope for The Future of Mediation Internationally
My own work has taken me into the legislatures of many of the assemblies and parliaments in the countries of the United Kingdom to train and coach members in “scrutiny skills”. I believe that many politicians do understand the real value of this training at an individual level. I believe that they wish to move away from the time-consuming, energy-depleting, morale-sapping and often futile game of positional politics. They sense that this change is what their constituents want too.
Mediator’s Proposals? A Story…
I have never been a great fan of mediator’s proposals. I took the view that the mediator’s job, done well, was to help the parties to come to a solution themselves. Party autonomy and all that. Achieving a satisfactory outcome, I thought, shouldn’t require a specific suggestion by the mediator.
The Mediator's Log: A Mediation Story - Section 2
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.
The Mediator's Log: A Mediation Story - Section 1
What happens when you are a mediator and you start another mediation day? We have printed below the details of a mediator's typical morning. The sequel will be printed shortly. Read on as the story unfolds....
Getting to Yes…or No?!
On Thursday 4 September, Collaborative Scotland hosts a Day of Dialogue which will focus on respect and reconciliation in the lead up to, and after, the independence referendum in Scotland on 18 September. It is not about Yes and No but how we will live and work together regardless of the outcome of the referendum.
Beware of Ultimatums When Negotiating
Good negotiation involves lots of client moves, client satisfaction, flexible negotiators, . . . and few ultimatums. Remember these tips in order to get the best agreement for your client.
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.
Legal ‘Gut Feelings’ Can Lead to Hiccups
Lawyers are as susceptible to errors in decision-making, and in giving advice to clients, as lay people… and this has a significant impact on the timing and quality of settlement of disputes. So we are told in a thought-provoking article in the Southern California Law Review, How Lawyers’ Intuitions Prolong Litigation.
There's Nothing Weak About an Apology
Breaking the cycle of blame needs someone to have the courage to accept responsibility. It can be hard in mediation, but it is powerful.
Scotland Can Provide Secure Forum for Global Disputes
This is a difficult time for the world as we face serious tensions in the Middle East. Thirty years ago, the situation was similar. On 1 September that year, fighter jets from the Soviet Union shot down a South Korean jumbo jet near Sakhalin Island, in the Sea of Japan, killing all 269 people on board. The Cold War was at a peak. Relations between East and West were at a low ebb.
The Key to Mediation is to Find the Real Issue: A Congress Case Study
Identifying all the possible ways forward and assessing these rationally is the hallmark of good mediation, says John Sturrock. The stalemate in the US Congress, now resolved temporarily, has attracted much comment from those interested in how disputes can be resolved. The US press had openly called for mediation to be used, leading to discussion about what mediation could achieve and how it actually works.
Building Better Business Cultures
A culture shift from conflict to collaboration
is taking place, leading mediators believe, in
handling difficult situations and disputes, not only
in business but in many aspects of public life –
a development which presents fresh challenges
to the legal profession.
Managing Business Risk
Managing business risk can be done through effective negotiation and conflict management. Mediators can help to manage that business risk by nipping things in the bud – and resolving difficult disputes.
A New Scotland Can Be Built on Civil Discourse
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.
Mutual respect and courtesy may be the key to success in finding consensus. It helps people to lower barriers and explore difficult topics.
Book Review: Lawyering with Planned Early Negotiation
Much has been written about how to be a more effective lawyer in the modern age. If one was to seek to sum up what most lawyers are seeking to achieve it might be this: how you can get good results for clients and make money? This is in fact the sub-title of a new book by Professor John Lande of the University of Missouri and it is more than a clever marketing ploy.
Mediation or Meditation?
Much has been written about the human brain in recent times. Eolene reminded us that the brain has two components, the limbic brain, which developed as homo sapiens dealt with primitive conditions and learned the importance of fight or flight. Later, the neo-cortex, the more rational part of the brain, was formed. But the two were – and are – not united. Our emotions could still override logic, especially under pressure. We are not Mr. Spock.
A Little More Conversation
The next two years present Scotland and the rest of the UK with a unique opportunity. How we conduct the discussion of the constitutional question (whether or not Scotland should become an independent nation) could be as important as the outcome.
Moving Towards Better Dialogue?
There is little doubt that the win-lose, black-white paradigm is costly, in money, time, opportunity and dignity. It denies the obvious fact that life is complex, that most people are trying their best in difficult circumstances and that creativity, imagination and compassion are more likely to achieve better outcomes than zero-sum games where there are often only losers.
Mediation Saves The UK An Annual £1.4bn While The Cost Of The Services That Help To Achieve It Is A Mere £15m
If the phrase “deficit reduction” characterised the early months of the new Westminster government, for many it has now been superseded by “preventative spending.” Investing wisely at an early stage to avoid spending far more later can save significant sums for the tightly-strung public purse – and one area of huge potential is mediation.
Leaders Need To Focus On The Big Picture And Stop Bickering
With renewed discussion about the Borders railway line in southern Scotland and the proposed new bridge to cross the Forth estuary north of Edinburgh, we see time and again the familiar tendency to draw a line in the sand, to set a bottom line or to proclaim that a certain position is non-negotiable. For those with different views or who sit on the other side of an issue, one of the challenges is how to deal with a situation where someone or some group has taken a stance and seems unwilling or unable to move from that.
The Role Of Mediation In A Modern Civil Justice System
As I stood in a hailstorm on a windswept road with a measuring tape in my hand, while two landowners sought to resolve a boundary dispute, I wondered about my change of career. But when, after two hours, they resolved a potentially long running and destructively expensive dispute where the only alternative seemed to be court proceedings, I was reminded of why it is a privilege to do what I do as a mediator.
We All Have A Part To Play In Coalition’s Success . . . Or Failure
We all know something really interesting happened in British politics with the agreement of
the Conservatives and Liberal Democrats to work in coalition. What is interesting is the reaction. People don't quite know how to deal with it. We are
accustomed to an adversarial approach in politics. So, the observations now tend to focus
on the differences and potential areas of disagreement – and where it might go wrong.
New Protocol For Resolving Devolution Conflicts Slips In Under Radar
During April, a month in which the news was dominated by disputes involving British Airways, the
railways and the Edinburgh tram works, there was less reporting of a significant agreement
reached between the UK government and the three devolved administrations.
An intriguing and unheralded intervention in the general election campaign in the UK came last week from the Centre for Effective Dispute Resolution in London. The Centre suggested that, with the prospect of a “hung” parliament, what we need is a Parliamentary Coalition Independent Mediator. Although a bit of a mouthful, the general proposition that there may be a role for an independent mediator or mediators to work with party leaders and civil servants in the event that no party gains an overall majority in seats is worth reflecting on.
Making The Best Of Mediation: From Breakfast To Bedrooms And Beyond
I find that it is often helpful to set the scene in mediation by bringing together the participants over breakfast: this gives an opportunity for people to mingle informally and for me to say some words about what we are here to do – and how.
Copenhagen Deal Will Require More Than A Little Give And Take
Last week, I found myself in the Bella Centre in Copenhagen, the location for the negotiations on climate change. It is a vast cavern, with scores of rooms serving as the location for talks, presentations, media activity and lobbying. I was struck by the sheer mass of people, with laptops, leaflets, cameras and TV screens, milling around in the hope of influencing discussions. That image has stayed with me as we hear daily of the difficulties facing negotiations.
Mediation And Climate Change
Climate change and its effects are no respecters of national borders. We are told that we face unprecedented alterations to weather patterns across the globe. Disruption of this sort may pose potentially serious security risks for many countries as competition for scarce resources grows and the pace of change outstrips our ability to adapt. Mass migration is one such threat. This could bring about dangerous conflicts within and between states. We will need to find ways to address these.
How President Obama Gets To Yes
President Barack Obama's willingness to acknowledge that he had chosen his words
badly in his response to the incident involving Harvard professor Henry Gates and a
Massachusetts police sergeant – and his suggestion that all three of them meet up at the
White House for a "beer summit" – marks him out yet again as a man who is able to act in a way which is different to that which we often expect of politicians.
The Growth Of Mediation In Practice: A Scottish Perspective
The founder of Scotland's pre-eminent provider of commercial mediation services discusses growth of mediation in practice in light of the current economic climate.
Mediation Grows As Firms See The Benefit Of Finding Common Ground
In a mediation a few months back, those involved - some lay people, a growing business and a professional adviser - revealed they had previously spent more than three years in dispute and incurred legal and other costs running well into six figures, an amount that may have significantly outweighed what was at issue between them.
Why Getting To Yes Is the Most Vital Journey We Face
GETTING to Yes is the seminal work on negotiation by Fisher and Ury. First published in 1983, it has been read by millions of business people, diplomats, lawyers and others around the world and is standard fare in universities in the United States and elsewhere. Recently, General Sumbeiywo, the man at the centre of the Southern Sudanese peace agreement, was asked what one book he would recommend to negotiators. Getting to Yes was his swift reply.
Why World May Be Ready For A New Edinburgh Conversation
In the early eighties, Edinburgh was the discreet venue for a series of meetings which arguably played a significant role in the ending of the Cold War. Known as The Edinburgh Conversations, the meetings were chaired by the then Principal of Edinburgh University, Sir John Burnett, and were the brainchild of the head of the University’s Centre for Defence Studies, Professor John Erickson. John Erickson was a leading world authority on the Soviet military, admired and welcomed in the Kremlin and the Pentagon.
From John Sturrock
From afar in Scotland, we find Mediate.com to be an indispensable
resource for keeping up to date with what is happening in the US and
elsewhere. Our own use of mediation is developing and that is greatly
assisted by the extensive network that Mediate.com promotes.
Scotland And The UK Negotiate A New Arrangement?
“In a joint statement issued yesterday by the Leader of the House of Commons at Westminster and the Presiding Officer of the Scottish Parliament it was announced that negotiations had been successfully completed between the two parliaments on the new constitutional arrangement between Scotland and the rest of the United Kingdom. The statement recorded that the guiding principles of co-operation and reciprocity which underscored the historic agreement heralded a new era of prosperity and recognition of mutual interests from which all would benefit.”
Mediation Takes Hold in Scotland
Scotland is famous for its innovation and willingness to try to address the
challenges of modern life through creative thinking. Despite this, in the past few
years in Scotland, there has been a cautious approach to mediation and other forms of
consensual dispute resolution. However, mediation in Scotland, once closely
associated with only family disputes, is now increasingly being chosen by those in
civil and commercial disputes as their preferred option for dispute resolution.