“They also serve, who only exchange offers.”

A recent mediation experience serves to reinforce the value of patience in mediation – for the parties and for the mediator. The tort mediation, involving a single plaintiff and two insurers started at 10 am and concluded 8 hours and 15 minutes later. The following is the sequence of proposals and counter-proposals.

Plaintiff (P) 1 – Sets out in detail how the full value of the claim, including general damages, med-rehab, house keeping, past and future income losses totals close to $1 million and then offers, for the purposes of mediation, to accept $693,713, plus prejudgement interest and costs (++).

Defenendant 1 (D1) and 2 (D2) send me back wi [...]

The problem: Many cases involve multiple claims and have limited resources to divide up. For example, if several people are injured and an insurance policy has been tendered, the injured victims have to come up with a method by which a fair division of the policy proceeds can be determined.

The solution: Use an old-fashioned ballot, just like in an election.

While there are numerous variations, here is one simple approach: each plaintiff or his counsel will fill out a ballot (prepared by the mediator) in which they provide a confidential percentage apportionment of the proceeds.

After receiving the ballots from everyone, the mediator “digests” the data and then presents the parties with [...]

[Author's Warning: This entry involves references to and discussions about the system of Cartesian Coordinates and how it might assist mediators in reality testing and reframing. Readers with a Math Phobia are advised to proceed with cautious abandonment.]

[Author’s postscript: As I finish writing this, it becomes increasingly clear to me that some readers may find the ideas in this entry, if not a bit bizarre, then certainly off the wall. I promise next month, I will write something a little more normal.]

In last month’s entry, I wrote about using the NLP Meta Model to overcome problems of perception. This month’s entry essentially follows on from that and looks at how the mathemati [...]

Another new mediation venture in Scotland: last week saw the launch of University of Strathclyde Mediation Clinic (http://www.strath.ac.uk/humanities/lawschool/mediationclinic/ ). While by no means a new idea, it’s the first in this jurisdiction. The response took us by surprise. We were graced with the presence of the University’s Principal, a judge, lawyers, sponsors, advice agencies, academics and students. I even made a wee speech, of which more below.

It has set me thinking about a remark made by Peter Adler on a recent visit to Scotland. Talking about the state of mediation in the USA he spoke of ‘high need, high supply, low demand’. I’m sure the same phenomenon exists all over t [...]

Just remember – you heard it here first: we are witnesses to the birth and education of a new species (or sub-species): “Homo Appiens”. The identifiable characteristics of this species is the tendency to require, or at least prefer, a mobile application – an App – to underpin the regular incidents of daily life – finding stuff, locating oneself, remembering things, gathering and sorting information, providing entertainment, taking photos, updating trivial information from friends, communicating with fellow Appiens, tracking one’s mood and wellbeing . . . What is intriguing is the speed with which the species and their devices have emerged from the evolutionary pool and the power that A [...]

Her Majesty’s Revenue & Customs (HMRC), a department of the UK Government responsible for the collection of taxes, published the results of its pilot ADR project evaluation. It has been testing a new way of resolving tax disputes, with the SMEs and individual taxpayers, since 2011.

The way the scheme works is that an official from HMRC, who has not been involved in the case already in any way and who has been specially trained to act as a mediator, works with the parties to the dispute to try to broker an agreement. Expected to remain neutral, the mediator sits down with a tax official familiar with the case and the taxpayer themselves, holding discussions to move towards a final agreement. [...]

As Ireland again, or still, struggles with its socio-political identity, its legal and moral values, and the role of the Catholic church in all of this, it seems like only yesterday the debate raged about the constitutional referendum which, in 1996, introduced divorce and, with it, the right to remarry into Irish law. In the almost 17 years which have passed since, Irish society has continued to change, as have the complexities of relationship breakdown and its aftermath. The people and issues I work with every day in my family mediation practice are, I imagine, different, at least in some ways, to those that my colleagues dealt with 20 or 30 years ago.

Reflecting on this led me to look th [...]

Most mediators I know graduated from the Facilitative School of Mediation – and we could spend much ink here debating exactly what that means but to my mind we were essentially taught to own the process and butt out of the outcome.

Recently there have been a number of calls for mediators to do more – more what is perhaps a little unclear, but certainly the market wants more something.

Just last month the IMI International Corporate Users ADR Survey polled 76 in-house dispute resolution Counsel from North America and Europe with over two thirds of the responders being from corporations with 10,000 plus employees.

Responding to the injunction that “Mediators should not be purely faci [...]

“If we listen attentively, we shall hear amid the uproar of empires and nations, the faint fluttering of wings, the gentle stirring of life and hope. Some say this hope lies in a nation, others,in a man. I believe, rather, that it is awakened, revived, nourished by millions of solitary individuals whose deeds and words every day negate frontiers and the crudest implications of history.” Albert Camus

I believe that the overall damages to the environment impacts not only on each one of us, but also on the systems and well established structures that have a direct and indirect impact on our lives, creating, thus, a “butterfly effect”.

Despite my relatively limited experience in enviro [...]

In what I hope readers of this blog will consider a deft segue, I want to shift from the successful judicial mediation that I highlighted last month to one that didn’t proceed quite so smoothly.

Deals negotiated in mediation tend to hold or, at least, that’s been the conventional wisdom. The theory is that because of the consensual nature of the process parties tend to abide by the agreements they’ve struck in mediation.

In Ontario we’ve just had a rare high profile example of a situation where that wasn’t the case. A news summary of the decision in Kidd v. The Canada Life Assurance Co. can be read here and the full decision of Justice Perrel can be seen here. Both the article and th [...]