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Leaving disputants to their own devices

The title of this blog is not as harsh and heartless as it might seem at first sight. True, mediation proceeds largely on assumptions of disputant autonomy and participation; and the expectation is that the outcomes will be those designed by, and with the commitment of, the participants. This comment, however, picks up on two threads: first, the previous entry by Charlie Irvine on his experience of online dispute resolution [http://kluwermediationblog.com/2014/07/12/to-see-ourselves-as-others-see-us-the-surprising-potential-of-online-dispute-resolution/] as well as earlier discussions on this blog site and in the burgeoning literature on ODR; and second, more specific commentaries on the pot [...]

Mediation Prey

I’ve got to admit that the John Sandford “Prey” crime novels, featuring the complex detective Lucas Davenport, are a guilty pleasure of mine, both in text and particularly audiobook formats. I can usually get through an unabridged audiobook during one of my frequent return car trips between Ottawa, where I live, and Toronto, where I now mediate about 80% of my cases.

The concept of “prey” (in the sense of “take advantage of; exploit or injure; cause constant trouble or distress to”) comes to mind as I read and re-read two recent thought-provoking posts on this blog: Jeff Krivis’ June 16th post, “Settlement Drift” and Michael Landrum’s post, exactly a month later, “Top Ten Miscellaneous Obser [...]

Top Ten Miscellaneous Observations Regarding the Decline of the Joint Session in Mediation

1. Lawyers have become so familiar with the process that no novelty or mystery remains. Like Benedict Cumberbatch’s Sherlock Holmes, some are BORRRRRED before they arrive! Accordingly, they have little interest in truly working through the pros and cons of a case or exploring underlying interests to discover a solution acceptable to their clients which they (the lawyers) never anticipated. They feel they know what to expect, and – forgetting that the case is about their clients, not them – prefer to simply “cut the chase” in the least amount of time possible.

2. Lawyers want to be “in control.” Some may misinterpret the mediator’s management of the process as an effort to [...]

“A Mediator’s Prayer”

I would like to use this month’s entry introduce readers to something referred to as “A Mediator’s Prayer”. It goes something like this.

A Mediator’s Prayer

Disputants, make me the instrument of your negotiation,
Where there is conflict, let me mediate;
Where there is difference, mediate;
Where there is contradiction, mediate;
Where there is discord, mediate;
Where there is litigation, mediate;

As a mediator, I assist to reframe rather than to repeat,
To communicate rather than to adjudicate,
To facilitate rather than to evaluate,
To summarize rather than to advise,
To generate options rather than to provide solutions,
To reality-test rather than to protest.

It is in letting go tha [...]

The Race towards a New York Convention for Cross-border Mediated Settlement Agreements: the Fable of the Tortoise and the Hare Revisited?

Tortoise-Hare-new-version

In his recent posting for the Kluwer Arbitration Blog, Michael McIlwrath picks up on what I affectionately refer to as the NYC4M (New York Convention for Mediation) theme, that is the debate about whether an international convention for the enforcement and recognition of cross-border mediated settlement agreements would assist the development of, and promote the use of, cross-border mediation. It’s a theme that Geoff Sharp of this Blog has also pursued. Moreover, the International Mediation Institute and the International Bar Association have recently announced a joint Taskforce to pursue an NYC4M.

While the idea seems at first glance like a no-brainer, an obviously attractive proposal t [...]

“To See Ourselves as Others See Us”: the surprising potential of Online Dispute Resolution

Many of us have been hearing about Online Dispute Resolution (ODR) for years but haven’t quite got round to using it. It sounds like a nice idea when face-to-face mediation isn’t an option through distance and/or cost. And yet I suspect that for most mediators the ‘gold standard’ is being in the same room as our clients. We can see people, hear them, feel the emotional temperature; we can also speak, use our eyes, use our hands; even jump to our feet when things get stuck. A small screen, by contrast, seems flat, miniature and limited.

However, if precedent is anything to go by, it would be foolish to bet against the forward march of technology. The first PCs were large, expensi [...]

20 Questions every corporate General Counsel or Head of Litigation might very well ask

Being responsible for resolving a large number of disputes for any organization is a stressful occupation. It involves risk, cost and resources and navigating between leadership and management, success and failure as well as blame and experimentation. Although there is no magic bullet, the task can be aided considerably by harvesting the answers to the following twenty questions, and devising an action plan where weaknesses are exposed.

Many of these questions are inspired by, or directly drawn from, the responses to a survey of companies around the world run last year by the International Mediation Institute, to which 76 companies responded (the results are available here) and a 2011 survey [...]

When mediation isn’t mediation at all…

At the risk of being accused of being too much of a purist, I just have to have a little grumble about the latest misappropriation of the term mediation. All involved in promoting and encouraging the use of mediation know how one of the largest barriers to people availing of this process is the lack of understanding of its key principles and how it really works. The fallout from Garth Brooks’ plans to rock Dublin over five consecutive nights this month has, very publicly, confused the issue once again.
Mr. Brooks, in fairness, was not at fault here, merely deciding to bow to the begging of his fans and put on five shows in a row. These shows are (were) to be held in Dublin’s largest stad [...]

Mama Boko Haram – A Lesson In Trust

Mama Boko Haram
Last month, Al Jazeera carried a piece called “‘Mama Boko Haram’ grasps for peace in Nigeria”. It detailed the activities of Aisha Wakil (pictured above), a Nigerian lawyer who has become a de facto mediator between Boco Haram and the Nigerian government – often at considerable risk to herself.

“Mama Boko Haram”, as she has been dubbed, is now on the government-initiated Committee on Dialogue and Peaceful Resolution of Security Challenges in the North. She represents a powerful model of mediators who emerge from the community in which the conflict is located, rather than “outsiders”. For example, this is how she first developed her relationship with the then leader [...]

The Rise and Fall of Tension

Tension Raising Behaviours;

100% statements

Labelling

Put downs and excitable statements

Threats

Interpreting/analysing/patronising/matronising

Collecting allies

Non-verbal behaviours

Preparing an attack

Sarcasm

Defensiveness/self justifying

Over detailing

Tension Reducing Behaviours;

Acknowledging probable legitimate concerns

Put in perspective

Be specific

Own the interpretation

Own the personal response

Invite feedback

Invite response

[...]