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Mediation: Justice for Whom?

“Mediation” in some Criminal Cases

Recently (24th June 2015) a Judge of the Madras High Court (India) while hearing a bail appeal of a man convicted of raping a young girl, agreed to the bail request on condition that the man try “mediation” with the victim.1 Mediation is aimed at marriage. “The case before us is a fit case for attempting compromise between the parties…he [the rapist] should be enabled to participate in the deliberations as a free man and vent his feelings, open his mind and moorings. Where there is a will, there is a way,” the judge has been quoted as saying. The logic behind this “reference to mediation” seems to be that an unwed mother and her child are “leper [...]

The Long Goodbye? Resistance to joint sessions is growing on both sides of the Atlantic. Is mediation evolving or regressing?

Market resistance to the use of joint sessions is best illustrated by data from a survey of JAMS neutrals conducted in April 2015. 76% of JAMS’s 300-plus neutrals responded, and the data show both a decline in the use of joint sessions, and a clear discrepancy between East and West Coasts. 80% of neutrals surveyed used joint sessions when they first started mediating – ranging from four to 20 years ago. In 2015, only 45% regularly use joint sessions. On the East Coast almost 70% continue to use joint sessions; in Southern California that figure is just 23%.

“So if you don’t want to have a joint session at the start of your mediation, or you want to get talked out of it, come to LA, [...]

Summer Mediation Game

Not that the ADR is a boring milieu, but given the time of the year and the number of official and unofficial holidays the dispute resolution practitioners are taking right now, I have decided to step out from the line when writing this blog post. With the end of the summer approaching, enjoy a bit of fun with Summer Mediation Game. Complete the three different puzzles in order to find out what the secret message describing the brand new project of three Kluwer Mediation bloggers is. Still not motivated? The winner will be rewarded…

Motivation by Red Italian Wine
In the following lines, I would like to briefly describe the motivation that led me to create this Summer Mediation Game. If y [...]

Justice, fairness and the law: another three-fold model

3 elements of justice

Regular readers of this blog will know that I am exercised by the question of justice in mediation. I test the concept on people I meet; responses range from “that’s an interesting idea” to “it has nothing whatever to do with it”. At a conference earlier this year a senior lawyer claimed he could count on the fingers of one hand how many clients had ever mentioned justice. Others thought people choose mediation precisely because they don’t want justice, but some other thing – compromise, perhaps, or a deal.

I’m not so sure. I have a hunch that matters of justice pervade our clients’ thinking. That leads to the question: what is justice? And the answer, of course, depends on who you ask [...]

More Reflections on Trust

It is the beginning of the school term at the Faculty of Law, National University of Singapore, where in this semester, I teach a Negotiation Workshop. In our first class yesterday, we played a pricing game based on the Prisoner’s Dilemma. There are many versions of this pricing game and it essentially introduces participants to a whole range of issues relating to conflict management and resolution including the building, breaking and re-building of trust.

I would like to spend this entry reflecting on trust. I had written an entry on “Trusting Thoughts” in August 2012 based on my experiences in Belfast. I would like to add to those thoughts in this entry in the hopes that it may help [...]

What happens in Vienna… DOES NOT stay in Vienna

The saying “What Happens in Vegas Stays in Vegas” is one of the most famous taglines in modern tourism, meaning ….. well, you probably know what it means, don’t you ? However, differently from the Vegas perspective, my recent experience in Vienna is one that I definitely want to share with you.

In a week of lots of sun, fun and personal enrichment, leading experts from all over the world gathered in Vienna and shared their valuable thoughts on several topics associated to Consensual Dispute Resolution. Despite the variety of relevant subjects, some that attracted the most attention were:

(i) CDRC Vienna (organized by IBA-VIAC-ELSA) premier competition;
(ii) The IMI’s Global Pound Conferenc [...]

You are not Alone: Role of Counsels in Mediation

In Buenos Aires, the city where I currently practice mediation, mediation is mandatory before suing the other party. Thanks to this system, I was able to start mediating my first cases right after I was certified. After a few cases, however, I began to realize just how overwhelming it can be when parties’ advocates are already focused on the lawsuit and are not convinced of the advantages of mediation. Many perceive mediation as a mere bureaucratic step. In contrast, others embrace the mediation principle. And this is exactly what I have found to be essential for the achievement of a successful mediation: that advocates give us mediators the sense that we are not alone when conducting the [...]

What Mediation and Marathon Running Have in Common


I like mediating. I also like running marathons. What this says about my sanity is a question for another day, but the more I do both the more similarities I identify between the two disciplines. A recent week of particularly arduous mediation brought these similarities to mind more than usual. Preparation, of course, is the key. Neither a marathon nor a mediation can be embarked upon without adequate training, a few good nights sleep in the bag and the right equipment, be that a hat to keep off the rain (this is Ireland after all) or a sturdy flipchart.
At the start line, the path ahead is unknown, particularly if running in an unfamiliar city or country. There is no certainty that you wil [...]

More Questions for Mediators

This week, I have had the genuine privilege of contributing one of the key note addresses at the Annual Conference of the Arbitrators and Mediators Institute of New Zealand (AMINZ) in Wellington. It has been a terrific conference, superbly organized by the indefatigable Deborah Hart. The standard of the many and diverse sessions has been very high, indeed outstandingly so. There is some terrific work being done in New Zealand.

In the context of the conference theme of New Horizons, I posed a number of questions in my key note address. I hope to pull together the whole piece for publication, but here are the questions.

• What if the way in which we have sought to resolve difficult dispute [...]

Multiculturalism in Practice

 Kua hinga te totara i te wao nui a Tane
I had expected that this blog would be a report on the annual conference of the Arbitrators’ and Mediators’ (AMINZ) held in Wellington last week. This would have been a great chance to catch up with colleagues from New Zealand and elsewhere (including this Kluwer blog’s own John Sturrock, who was a bit of a star turn on the schedule). However, the best laid plans of mice and men etc. As we (my wife, Suzanne, and I) were driving to Wellington we received a not-unexpected phone call to tell us of the passing of a dear member of the extended family. As Suzanne had been asked by the man himself to conduct his funeral, wearing her celebrant’s h [...]