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Wanting It Too Much. When to Let the Babies Cry Themselves to Sleep

Imagine a marine layer floating over a coastal town. A family in this town is hopeful that the sun will burn the fog away so they can go to the beach and enjoy the great weather. The day seems to go on forever and the sun never comes out. The family ends up being stuck in their cabin, agitating each other while the parents are trying to figure out what to do with their children who are driving them crazy. The children are totally bored and expect their parents to figure out ways to keep them busy.

Consider the same scene in the mediation room. Lawyers are antsy because there is not enough movement in the negotiation. They refuse to take the mediator’s recommendations or respond in a meanin [...]

(My) Books of the Year 2014

At this time of annual reflection, I always feel it is worth looking back and picking out some of the better readings and materials I have come across over the past number of months. My father recently said he wished he had been in possession of a wheel barrow when visiting Harvard University’s bookstore, and I would have to express a similar sentiment when it comes to recent books related to conflict, mediation and the general area in which we work. So here are some of my highlights:
The Dance of Opposites: Explorations in Mediation, Dialogue and Conflict Resolution Systems Design by Kenneth Cloke
I must confess that while I loved this book when I first read it, I am now thoroughly inspir [...]

Reflections on Peace

I recently watched a Sainsbury advertisement on YouTube that made me reflect on peace. Readers can view this video at Christmas Truce video. It’s under 4mins. You might wish to do that before reading on.

Now that you have watched the video (or not), let me make two preliminary points.

First, no. I am not promoting Sainsbury. Neither I nor the Kluwer Mediation Blog nor its editors receive any kind of benefit from talking about this advertisement. Just saying. And Sainsbury has come under fire from various quarters for capitalizing on the sacrifices made in World War 1 for commercial purposes. I don’t think this is fair. Yes, at some level Sainsbury’s purpose in making this advertisement is [...]

What Mediators Know (or Can’t Help Noticing Because of Their Unusual Job)

(This is the first of three parts of a keynote address to the YMCA Conference “From Reactions to Relations” in Burton on Trent on 20 November 2014)

Here’s an interesting phenomenon. When asked to play the part of an adversarial lawyer students have no difficulty. It’s as if the script for this activity is carved into our DNA and reinforced by years of TV dramas. Yet when invited to play the role of mediator they seem both daunted and stuck. A small minority might be termed ‘natural mediators’ but for most of us this is not a usual way of behaving. Our culture doesn’t provide us with a ready model.

I want to reflect on this counterintuitive activity. What, if anything, does [...]

The Californication of Mediation

Wallpaper_Californication_S07a

This post is unlikely to win me friends on America’s West Coast and it may even see my US mediation teaching visa withdrawn, however when the issue even has its own Facebook group called Save the Mediation Joint Session and Promote Party Participation with over 50 of the world’s top mediators signed up, then the patient is more critical than I thought.

The rise and rise of the mediator’s proposal [1] and other evaluative interventions by many of our number, along with the relentless demise of the joint session, are all part of a larger lurch to the right for mediation practice.

And if we look for ground zero, inevitably all roads lead to Southern California where we are told the j [...]

Mediating In The Shower?

Global Legal Post recently carried an article intriguingly entitled “Lawyers find Eureka moments in the shower“. Sadly the article itself lacked the slightly salacious promise of its title. Instead, it focused on the results of a survey of London city lawyers, indicating that those surveyed did their most creative thinking in the shower or commuting (27% in each case). By contrast, only 10% attained their creative peak in the office.

Intuitively, this doesn’t surprise me. There is inevitably (and quite properly) a rigour and a structure to office life. Institutions usually function that way, particularly the larger ones. Perhaps they need to, to avoid chaos.

But everything has [...]

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.

I have changed my view. As usual, experience is a great teacher. As is improvisation. Here’s what happened. After several hours of to-ing and fro-ing, and with a still significant gap between them, the mediator brought the principals together to meet with him, without their legal advisers (and with the advisers’ permission and encouragement). They talked for a while about their respective claims and [...]

Empirical study on international commercial mediation and conciliation

In a previous post, I shared Professor Stacie Strong’s call for blog readers to respond to her survey on international commercial mediation practice. Thank you to everyone you did.

While the final results are still pending, Prof Strong has released some preliminary results from the study.

The study, which is entitled “Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation,” was written by Professor S.I. Strong of the University of Missouri and collected detailed data on 34 different questions from 221 respondents from all over the world. Surv [...]

Working on Water

Some 20 years ago, as part of a nostalgia trip (for me) and introductory trip (for my wife) to my childhood haunts in Malaysia, we visited the coastal town of Lumut and the offshore island, Pangkor. This was probably a bad idea. I’d last visited those place as a child, with my family, in the 1950s, when the sum total of Lumut – now a naval base – was two houses and Malay kampong, and on Pangkor there was nothing but jungle. Now Pangkor is a resort island. But, the world moves on, and memories aren’t in the place but in our perceptions of them. What was important at the time was to get back into the limpid waters of the bay near our resort: that was the second bad idea. As I waded out, l [...]

7 Ways to Make Your Next Mediation Successful

On 24th September Kluwer and the International Academy of Mediators (IAM) hosted their inaugural mediation webinar – ‘7 Ways to Make Your Next Mediation Successful’. Attendees joined from all over the world. Don’t worry if you couldn’t attend on the day – we’ve posted the webinar on YouTube, and it can be viewed here.

 

1. PRE-QUALIFY CASE

a. Internal (client) v. External (counsel)

i. What does tomorrow look like if dispute resolved?

ii. Discuss client’s fantasies about case/outcome

iii. Justice?

iv. Rewrite the past?

v. Mourning process

b. Selection of mediator

c. Have mediator talk to other side

d. Identify who is attending from each side

e. What materials might be useful [...]