There is a lot of talk nowadays about the apparent failure of mediation to live up to its potential. Reports published on paper and online, presented before institutions or at various conferences, point to the relatively low number of mediation cases compared to the number of lawsuits filling the logs of the courts and then draw the inevitable conclusion that mediation has missed the opportunity of (be)coming mainstream. Future of mediation is bleak, say a lot of experts, at least as much as there will be no measures taken to mandate the use of mediation prior to filling a lawsuit. Constraining people to choose [...]
It was a boat building case and the detail was overwhelming. Too many gudgeons, pintles and bulwarks and by the time we got to a 3 day hearing, it had become the most toxic professional relationship with a counterpart lawyer of my young career.
A day and a half into the trial, partly because of the mindless detail, partly because the judge had bigger fish to fry, counsel were told to go away and settle. I looked blankly at the Judge, avoided the stare of my counterpart, and packed up my papers spread across the Bar table. Since opposite counsel was from out of town, we made our way separately to my firm’s boardroom five minutes up the roa [...]
A recent survey at a conference in London pointed to very significant differences between users (generally favourable to mediation) and their advisers (whether in house or lawyers in firms, who appeared far more resistant to using mediation). The reasons are no doubt complex and the article published in the Southern California Law Review, How Lawyers’ Intuitions Prolong Litigation, offers some explanations. I have commented on that in the past….http://www.core-solutions.com/blog/cognitive-illusions-hamper-litigation-choices/
In a parallel setting, I have been reading Naomi Klein’s expansive work This Changes Everything: Capitalism v The Climate. She explains that climate change deniers [...]
In his 1956 text, The Queen’s Courts, Sir Peter Archer suggested that the development of the Courts was more organic than by design, and – though he doesn’t say as much – more pragmatic than principled. He calls on Topsy’s response to Ophelia in Uncle Tom’s Cabin, to suggest that, like Topsy, they “just grow’d”. That, however, was more than half a century ago. Contemporary observers of most modern legal and judicial systems would see far more by way of design and conscious reform. In the world of non-judicial dispute resolution, particularly negotiation and mediation, there has also been a deliberate adoption of the idea of design, exemplified in the Ury, Brett & Goldberg book, [...]
I have a confession to make. I am a Trekkie. For those who are unfamiliar with the term, that means I am a fan of the television series and movies relating to Star Trek. To be geekily more specific, a fan of the television series and movies relating to Star Trek: The Old Series (with William Shatner as Captain Kirk, Leonard Nimoy as Vulcan First Office Spock and Deforest Kelley as Dr. Leonard (Bones) McCoy). And since 2015 is the 50th anniversary of Star Trek, I thought I would devote this month’s entry to Star Trek and Mediation.
Star Trek was ground breaking when it was first created. Its creator Gene Roddenberry had a vision of an utopian reality. Earth was at peace. It was (or, since [...]
As the world of business develops at an unprecedented pace, we all are constantly facing new challenging situations which we must rapidly understand, find new solutions to and, in some cases, adapt ourselves to. A global net of co-operations, business opportunities, market resources and novel technologies has inevitable spanned across our world of business.
Along with any innovation and development comes a new challenge and with that a new method to deal with it. Unsurprisingly, the segment of dispute resolution is no different from the others and also needs to rapidly adapt to the fast paced developments in the world of international commerce. Globalized, multicultural and highly complex t [...]
“Crikey it’s like herding cats!” a student said to me recently during a multi-party mediation role-play. It struck me as a fairly accurate description of mediation alright; the parties, the other stakeholders, the multitude of issues, apparent and covert, the emotions and the changes in pace and direction. And that is only in the mediation room itself. Outside that one has the lack of, or inconsistencies in, regulation of the profession, the difficulty in getting regular (and paid!) work, and the endless explanation of what we actually do and that, no, it is not meditation. Why on earth would anyone want to become a mediator?
My teutonic roots would generally not warm to chaos and unpr [...]
This is a blog I have shied away from writing. Several times. Even now, as I do so, I am wary of it. But here goes. I’ll come right out with it.
Very few women feature on the lists of “top” commercial mediators.
This year’s Who Who Legal World’s Top Ten features precisely….none. Seriously? Come off it.
Perhaps it was a mistake? Nope. Check out this year’s UK Legal 500. Three of the top twenty are women. This year’s UK Chambers Directory? Four of the top nineteen (though with a big shout for Frances Maynard who tops the list).
Now, I am no student of gender politics or history. And I don’t think of myself as a feminist, or a misogynist, or any other r [...]
whereby F=The Future, T=Trust, Q=Quality and I=Information
The Future of mediation hangs on several factors. Probably the most important is Trust.
If mediation is not widely trusted by users, it has a mediocre future. This is simply because mediation depends on the parties, who usually do not trust each other, fully trusting the mediator and the mediation process. Unfortunately, mediation appears to stand some way down the trust stakes.
Low trust can be traced to the belief that mediation is considered a legal process dominated by lawyers who are advocates and mediators. Sadly, there is strong empirical evidence that, worldwide, lawyers are not highly trusted. Mediators and the media [...]
Last year I posted 10 tips for participants, one of the most important being that mediation remains an oral sport, and the most effective counsel and parties in real life are those who have the confidence to come to mediation with little documentation but with a deep knowledge of both the dispute and their preferred pathway to resolution – so, not only have they prepped the legal case, they have also (and primarily) prepared for settlement.
This year, I would like to add just a couple more, but perhaps go into a little greater detail this time;