When someone asks me to explain what mediation is, I often find it easier to tell them what it is not.
Sometimes I will start by asking them if they are familiar with litigation or arbitration, and use those modes of dispute resolution as a point of comparison. I often see workshops and seminars introduce mediation in this manner, often with a table that highlights points of similarities and differences.
I believe I am certainly not alone in adopting the above approach. However this may lead to a narrow view of the market for mediation. We end up defining the scope for mediation only with reference to litigation or arbitration. We risk missing out on aspects of mediation that cannot be com [...]
Mediation Awareness Week in Ireland!
19th -23rd October 2015
In most jurisdictions, when people find themselves dispute, they think “I’ll phone my lawyer”. This is certainly the case in Ireland. When faced with marriage breakdown, a breach of contract, an employment issue, the default port of call is still legal proceedings, and people make an appointments with their lawyers before considering other options. The planned mediation legislation, if it ever moves off the bottom of the secondary list on which it has been languishing for three years now, attempts to address this by imposing requirements on lawyers, and offering mechanisms for judges to divert cases into alternative processes [...]
Many jurisdictions have grappled with the extent to which their courts should get themselves involved in the mediation of litigated cases.
Many different approaches have found favour around the globe, with diverse programs being implemented in courts from Hong Kong to Florida and places in between. Some courts are hands off while others are heavy handed – regulating every aspect and some even use judges to mediate.
Some programs are creatures of statute, others are mandated by procedural rules while others simply rely on a mediation friendly presiding judge. Some courts, I suspect, see mediation as a competitor – taking the best cases out of the system and contributing to the vanishing tr [...]
In recent weeks, I have had the privilege of mediating and facilitating in different matters with representatives of four governments . On one occasion they were on the same “side”; on another, notionally on different sides. A common theme to emerge was the needs and behaviours of political masters who were not present.
The representatives themselves were very aware of the need to try and build good relationships with their opposite numbers. That required a degree of honesty about the political realities. I could sense that frankness was helpful as it built confidence. It also allowed reflection on what could and couldn’t be done. Critically, the conversations were possible because of the f [...]
This question emerges from a recent three-way Skype conversation with a couple of mediation colleagues, in anticipation of a US-sponsored conference on ADR, to be held in Brazil later this year. As it transpired, the predominant interest of the conference was and is on arbitration rather than mediation, so that conversation has taken a longer term turn, with a view to seeing what might be done to foster mediation in Brazil and in Latin America generally (knowing that it is already flourishing in some jurisdictions, and that its alphabetical sibling, ODR, has strong support in, for example, Argentina).
The reason I raised that question is because those closely involved with mediation may some [...]
In 2006 Frank Sander produced his ‘Mediation Receptivity Index’(22 Ohio State Journal on Dispute Resolution, 599-618). The MRI would be a way of discerning the extent of ‘mainstreaming’ or ‘institutionalization’ of mediation in different US states. It doesn’t seem to have caught on, but among the questions Sander lists are:
- number of professional mediators
- number of mediation firms
- extent of court programmes and numbers referred
- total public funds devoted to mediation
- number of professional schools teaching mediation, numbers of students, academic journals
- presence of ‘potential movers and shakers on behalf of mediation’
- mediation legislation
Catching up on a few episodes of Game of Thrones recently, I was enjoying the string-pulling, manipulation and orchestration being engaged in by almost everyone in the fictional world of Westeros. None of the rulers really make their own decisions, all are influenced and steered by others who all have their own agendas. Some do this so subtly those they are manipulating don’t even know it. Others just use big fire breathing dragons.
With the exception possibly of the dragons, these shenanigans, as we say in Ireland, are by no means confined to King’s Landing or Winterfell. Every day in mediation we tell our clients (and ourselves) that only they can make the decisions and that they are [...]
At long last, on 20 August 2015, the French Government transposed a 2013 EU directive regulating mediation for consumer disputes. This new piece of legislation, which aims at increasing the use of mediation in sales and service consumer contracts, could create new business opportunities for mediators.
The big picture : the idea behind the Directive
The Directive on consumer ADR (Directive 2013/11/EU of 21 May 2013 on alternative dispute resolution for consumer disputes, to be more specific), laid out basic principles giving each member some leeway as to the practicalities of how to implement the Directive. One might wonder why the EU would want Member States to legislate and align their po [...]
The Proposal in New York
In July 2014, during a session of UNCITRAL that took place in New York, a Proposal to undertake work on the preparation of a convention on the enforceability of international commercial settlement agreements reached through mediation/conciliation was put forward to UNCITRAL by the government of the United States of America. Accordingly, Working Group II (“WGII”) – which is one of the six working groups established by UNCITRAL to perform the substantive preparatory work on topics within the commission’s programme of work and which specifically relates to arbitration and conciliation – was requested to consider the Proposal, during its following meeting, and re [...]
He was an old man – I guessed well into his 70′s, gaunt and gnarled. He looked to me like he had been on the land for many years – but I knew that he had not; my papers told me he had been successful in retail in Europe and only returned to New Zealand late in life. It had also been clear from the background that the family was not close.
No wife on the scene, perhaps dead – I didn’t enquire. Two daughters and a son, all three of whom were at the mediation, all in their 50′s. They treated him badly.
It took me by surprise. I was missing som [...]