ODR Theory and Practice - Chapter 15: ODR and Ombudsmanship
This chapter focuses on the applicability of Online Dispute Resolution (ODR) for a specific
dispute resolution mechanism, the Ombudsman. The chapter is based on the experiences
and observations of Dr. Frank Fowlie, who served as the Inaugural Ombudsman for the
Internet Corporation for Assigned Names and Numbers (ICANN).
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.
Disputes: A Clash of Imperfect Ideas
It is common in the midst of conflict that we become more assertive about our perspective – especially when the other person is equally or more assertive about hers or his. One or both of us may push our viewpoints to the extent that things escalate and stronger feelings evolve – accompanied by even more push back. It is as though both of us are convinced and have to convince the other that our view is the perfect and correct one.
Online Dispute Resolution Theory & Practice - Chapter 9: ODR and Online Reputation Systems
Colin Rule, Harpreet Singh
The authors consider issues of ODR and online reputation systems. As with any complex system, especially one as enormous and complex as a global reputation system, inaccuracies and fraud can arise, and these issues can result in disagreements between users. Timely resolution of these disagreements is essential to the continued health and success of any reputation system.
Smiling Mediators and Other Results of this "Serious" Survey
For April Fool's Day, here are the results of a survey about mediators and smiling. The summary of the results are available here, and the entire article is available to download. The survey included mediators and attorneys in both a mediation and an arbitration.
ODR Theory and Practice - Chapter 7: ODR and E-Commerce
Aura Esther Vilalta
Cyberspace has become a realm of commerce and a market with various kinds of transactions using acronyms such as: C2C, B2C, B2B, C2B or M2B. It removes traditional barriers between “offerors” (producers, sellers, etc) and “offerees” (clients, users, consumers.). Time, geographical distance and language are no longer obstacles to trade and, consequently, cross border disputes have increased. Online Dispute Resolution (ODR) mechanisms have emerged as a natural response to the need for new dispute resolution systems.
Mediation Case Law Video: Handwritten Agreement
In Heaven & Earth, Inc. v. Wyman Properties Limited Partnership,
the appellate court enforced a handwritten mediated settlement of lease extension by night club against challenge that parties' failure to reach full agreement on limitations and notice requirements for sound checks was a missing essential element that precluded enforcement.
Mediation Gains Popularity in India (video)
This excellent news report from India shows the new Delhi Mediation Center. Unfortunately, it seems that the sign above the door inadvertently says "Meditation Room." Oops!
What Did You Just Say?
Barbara Brown discusses how to take charge of your negotiations to communicate what you really mean (and want). In negotiations that are often about money, she discusses how to add value based upon J. . Anderson Little’s Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes, published by the American Bar Association in 2007.
White Collar Crime and Mediation: A Discussion Document
This article presents a discussion about the potential for mediation to be utilized as a suitable option for cases of white collar crime. Punishment of white collar crime in the workplace has traditionally been dealt with by internal disciplinary procedures prior to the police and then the courts, but it has become apparent that not all cases may be suitable for the legal system. Naturally, criminal proceedings and custodial sentences are the only option in some cases, but, with prison numbers at record levels, penal servitude should no longer be seen as the only option when it comes to lesser crimes.
CIETAC Administered Arbitrations: Internal Conflicts Cause Uncertainty
Disputes between the China International Economic and Trade Arbitration Commission (“CIETAC”) and its sub-commissions in Shanghai (“CIETAC Shanghai”) and Shenzhen (“CIETAC South China”) currently cause significant legal uncertainty. These internal issues at CIETAC create risks for parties that have agreed arbitration proceedings with these local sub-commissions in their contracts, or are planning to do so.
Citizen Participation, Media Hype and… Dogs
A while ago, I facilitated a public meeting about dogs in the municipality of Zandvoort (Holland), a fishermans village that, over the years, has transformed itself into a tourist beach resort. It houses approximately 16.000 inhabitants and, with the seasons, has a flow of millions of tourists each year. There are hotels, cafes, clubs, a race-circuit, and of course, there’s the beach itself.
Mediation in Sports Disputes
The ease and flexibility of the mediation process, the unique qualities of trained mediators and the high success rate of mediation in the past proves that mediation is the perfect answer for resolving various disputes in sports.
Consumer Arbitration Roundtable Summary Report
This Summary Report and its attachments: 1) summarize the discussions at the Roundtable and the Planning Committee’s conclusions; 2) provide an overview of related empirical studies and the range of dispute resolution programs and processes available to resolve consumer disputes; and 3) include an annotated list of key resources. Several work groups have been formed to carry on the work of this National Roundtable.
ADR Considered an Active Practice in Federal Courts
A survey of courts’ local rules, general orders, internal operating procedures and other online and written sources shows that 34 of the 94 district courts authorize multiple and distinct forms of ADR, including mediation, arbitration or early neutral evaluation (ENE). Of these courts, 14 authorize three or more distinct forms of ADR. An additional 27 districts authorize mediation only, while 25 districts provide general authorization to use ADR, authorize settlement conferences or authorize both.
Canada has decided against forcing banks to use the Ombudsman for Banking Services and Investments (OBSI) and will provide new regulations permitting them to hire private mediators to resolve client disputes. OBSI was created in 1996 to handle complaints against banks and since 2002 has also been responsible for resolving investment complaints; investment dealers are still required to use OBSI. The issue arose after Canada’s two largest banks, the Royal Bank of Canada and Toronto-Dominion Bank, withdrew from OBSI in favor of private mediation and other banks were expected to follow. However, some consumer advocate groups and regulators are concerned that if banks hire private mediators the independence of the mediators could be compromised.
Financial Post (April 30, 2012)
A World Bank paper discusses the effectiveness of alternative dispute resolution, looking at the empirical benefits of mediation and other forms of ADR and noting the need for additional studies outside the U.S. The short paper, by the Investment Climate Impact Project, focuses on measurable issues of cost savings and timing. It also discusses less measurable impacts, such as improving business relationships and problem-solving skills, reducing pressure on courts, and improving investors’ perceptions about the safety of business investments in emerging markets.
Settling Out of Court, Note No. 329 (2011); The World Bank Group’s Viewpoint Policy Journal
Effective Use of Civil and Commercial Mediation in Poland: Part 2
Poland was one of the first EU Member States to enact a detailed and complete legislation on mediation in civil and commercial matters (“Polish Mediation Law”). The Law entered into force on December 10, 2005. This article discusses Polish mediation in civil matters.
International Mediation Updates
Here is another update on international mediation developments written by Mediate.com News Editor, Keith Seat.
International Mediation Updates
Here is another in a series of updates on international mediation developments from Mediate.com News Editor, Keith Seat.
The world’s first international conflict resolution group for disputes over derivatives and other complex financial instruments has been established as a non-profit under Dutch law and is based in the Hague. The group is the Panel of Recognized International Market Experts in Finance (P.R.I.M.E. Finance). While a panel of experts is already on its newly-launched website, the group will begin offering mediation and arbitration services in January 2012. The organization states that it benefits from various subsidies, so may be less expensive than other alternatives.
Commodity Focus.com (June 28, 2011); P.R.I.M.E. Finance
The High Court in Hong Kong refused to enforce an arbitral award from China because one of the party-appointed arbitrators acted as a mediator and met with a person connected with one of the parties to propose a settlement. Although the court found that lack of transparency and other concerns tainted the arbitral award, the court made clear that it was not rejecting the concept of med-arb, which is expressly permitted in Hong Kong and common in Asia.
International Law Office (June 7, 2011); Gao Haiyan v. Keeneye Holdings Ltd., HKEC 514 (April 12, 2011)
Mediation in Sports
Mediate.com News Editor, Keith Seat, summarizes the recent application of mediation to resolve a number of high value commercial sports disputes.
eBay Resolution Center Up for Dutch Innovating Justice Awards - Needs Your Vote!
The largest Online Dispute Resolution platform in the world, the eBay and PayPal Resolution Center, is up for an award from the Dutch Innovating Justice competition. The final three candidates will be selected by online popular vote, so If you've got time, please visit the program site and vote for “Modria: The eBay/PayPal Dispute Resolution Center.”
The World Intellectual Property Organization’s (WIPO) Arbitration and Mediation Center will provide mediation services for Creative Barcode members; Creative Barcode is a new mechanism for facilitating safe disclosure of creative concepts and ideas in business deals and proposals by using barcoded files. In more traditional endeavors, some 2,700 cybersquatting cases were filed with the WIPO Center in 2010, setting a new record. The cases were handled by over 300 panelists in 49 countries in 13 languages. The WIPO Center also continues to handle significant numbers of intellectual property disputes.
Dexigner (March 22, 2011); Ag-Ip-News.com (March 31, 2011)
In a twist on mini-trials, “jury mediation” brings together typical jurors to receive a short presentation from the parties, including key documents and even witness testimony, after which the “jury” deliberates and provides its conclusions and reactions in conversation with a mediator and trial consultant. The goal is to decrease uncertainty and increase the information on which parties can make informed settlement decisions in mediation.
New Orleans City Business (March 25, 2011)
While recognizing that the parties’ franchise agreement provided that disputes must go through mediation prior to litigation, the federal court entertained plaintiff’s effort to maintain the status quo during mediation by seeking a preliminary injunction. However, the court denied plaintiff’s request after analyzing the factors required for a preliminary injunction.
Edelman v. Certified Restoration Dry Cleaning Network, No. 11-10781 (U.S.D.C. E.D. Mich., March 11, 2011)
Mediate Your Way to a Sale
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Sometimes trying to close a business deal feels more like a conflict than it does a negotiation. Rather than go head to head with a potential customer, consider using a few mediation skills instead