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Common Ground

The X factor in mediation is the ability to influence the other side to pay more or take less. Finding the elusive X factor is the challenge for most mediators, and is often done in the face of uncertainty. This uncertainty takes many forms and can serve as a barrier if not acknowledged and addressed by the parties. Taking the uncertainty out of the negotiation requires the mediator to convey to each of the parties the ability to be strategic while at the same time presenting each negotiation move from a positive perspective.

Got Milk?

If we offered you a tall glass of ice cold milk after you just finished eating a plate of freshly baked chocolate chip cookies, would you accept our offer? We [...]

Ancient Wisdom for Modern Mediators

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On emerging from a rather taxing meeting a phrase popped into my mind which has done so regularly since I started mediating. It runs “a soft answer turns away wrath” and it is to be found in the biblical book of Proverbs. It will resonate with anyone faced with hostility: anger can be contained by refusing to respond in kind. It’s a commonplace for mediators to stay calm and steady while the temperature rises and discover that afterwards, when the dust has settled, the person who was angry has not only calmed down but is both apologetic and grateful. It struck me that, if this ancient wisdom tradition could so eloquently convey a universal truth, it may have more to offer.

The Wisdom [...]

The Singapore Mediation Lecture 2014

The Singapore Mediation Lecture 2014 was delivered on 26 September 2014 by Mr. Brad Berenson, the Vice President and Senior Counsel for Litigation and Legal Policy of General Electric. The third lecture in this series, the Singapore Mediation Lecture is a result of a partnership between the Singapore Mediation Centre, the Singapore Management University School of Law and Harry Elias Partnership. Previous speakers were the former president of Singapore, Mr. S R Nathan (2012) and Lord Woolf (2013).

The title of the lecture was “The Mediation Imperative: Why Successful Companies Embrace Mediation”. I do not propose to reproduce the speech here. The speech will be published in the Asian Jou [...]

SETTLEMENT – A Mediator’s Prayer

Hong Kong mediator, lawyer and poet, TK Iu, was introduced to readers by fellow blogger Joel Lee earlier this year. TK’s first published poetic piece on mediation was entitled, ‘A Mediator’s Prayer’, inspired by the Peace Prayer of St. Francis of Assisi. If you missed it, it’s well worth the read. In just a few lines, ‘A Mediator’s Prayer’ prompts mediators to reflect on why we do what we do – both in the mediation room and beyond.

TK’s most recent piece is entitled ‘SETTLEMENT’. I have taken the liberty to set it out here for readers. As I read its lines again, I can’t help thinking what a creative tool this would be for mediator training. There’s loads of studies that show the utility of [...]

Effective Strategies for Mediating Coverage Disputes

I. Introduction

The mediation of insurance and risk transfer disputes involves interpretation of contracts and insurance policies, challenging legal issues, and the interests of multiple stakeholders. Such mediations are not just a matter of exchanging numbers. For parties, how do you advocate your position while, at the same time, exploring settlement? For a mediator, how do you navigate through such specialized advocacy and find common ground? So, in third-party claims, for example, indemnity agreements are often at play. And the so-called “underlying” lawsuit often has coverage issues that pose a principal impediment to settlement. Those are “coverage disputes” too. The dynamics o [...]

There’s an app for that! The use of technology in developing parenting plans

Never one to turn down the opportunity to try out new technological developments, I was interested to come across software designed to assist in formulating parenting plans earlier this year. This may sound rather “out there” to many mediators, so bear with me while I try to set out how it works and how I have used it.

The programme I have been using is Custody X Change, written by Ben Coltrin at the ripe old age of 21 in 2003. Over the past 11 years, the software has been refined and updated to result in what is now a very efficient, user friendly and innovative product. In essence, the software assists parents, and professionals working with separating parents, in creating a parenting [...]

International Mediation – A Comparative Table of Institutional Mediation Rules

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In the world of international mediation, global providers such as ICC, WIPO and AAA/ICDR dominate the landscape together with various more regionally based institutions such as HKIAC, SMC and CEDR.

Of course, parties who choose to resolve cross-border disputes by way of mediation are free to develop their own bespoke rules of engagement as they might in their domestic mediations via a comprehensive mediation agreement (ad hoc mediation) – however, and although there are cost implications, parties to international mediations usually perceive real benefits in adopting a tried and true process administered by a respected and often global ADR provider (administered mediation).

Many parti [...]

On collaboration

In their article, “The Collaboration Imperative” [Harvard Business Review, April 2014, p. 77], authors Nidumolu, Ellison, Whalen and Billman note that “business collaboration is the great oxymoron of corporate sustainability. Countless efforts by companies to work together to tackle the most complex challenges facing our world today – including climate change, resource depletion, and ecosystem loss – have failed because of competitive self-interest, a lack of a fully shared purpose, and a shortage of trust.” Those same companies and their executives have embraced the imperative of sustainability, but it’s that step into a collaborative approach that still seems too hard.

Similarly, [...]

Mediation Magic

I believe that by now you all had enough of my comments on the 2014 FIFA World Cup. So let’s move on to other aspects of life.

Last month, IBA’s Mediation Committee organized a regional meeting in Brazil in order to discuss the latest trends in Commercial Mediation. The event was supported by Veirano Law Firm, one of the most prestigious Firms in Brazil, and was attended by several lawyers, in house counsels and members of the public sector, some of them hearing about mediation for the first time. In addition to being a great success, the event could be seen as another small step towards increasing the general awareness level of Commercial Mediation in the country.

Although I could pr [...]

Harvesting data to shape the future of international dispute resolution

Co-authored by Deborah Masucci and Michael Leathes, International Mediation Institute

Among the early words of wisdom expressed by Sherlock Holmes in the first of Sir Arthur Conan Doyle’s 56 novels, A Scandal in Bohemia in 1891, was this classic line:

I never guess. It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.

And so it is with dispute resolution. There is a paucity of reliable statistics out there to enable users of dispute resolution services, as well as advisers, providers, educators, adjudicators and policymakers, to understand how best to prepare and steer ourselves for the future. [...]