It’s not always easy to spot trends. But one that I have noticed over the last year or two is an increase in the number of cases I am being asked to mediate in which litigation or arbitration proceedings have not yet been issued.
This produces different challenges. On the upside:
• The parties have not had years in which to entrench themselves in the unerring rightness of their cause, nor the irredeemable evil of their opponents. We have all seen the effect that many years of commitment to a particular position can have. Trying to encourage any other perspective after so long can be hard.
• The parties are generally less heavily invested in the case after a shorter time. Thi [...]
John Nash died this week, in a tragic car accident. John Nash was the Nobel-prize winning mathematician whose theory of non-cooperative games published in 1950 has been described as one of the top ten ideas in economics in the 20th century.
His theory introduced and explored the concept of what is known as Nash equilibrium. According to the New York Times obituary, Nash equilibrium provides a conceptually simple but powerful mathematical tool for analysing a wide range of competitive situations, from corporate rivalries to legislative decision-making. It builds on the notion that, in most real world interactions, there is potential for more than a zero-sum game. Players’ interests are not [...]
It’s funny how one thing leads to another. Regular Kluwer blogger Ian Macduff posted a great blog earlier this week on the importance of asking questions. That reminded me that I had intended to get hold of a book by Edgar Schein entitled “Humble Inquiry: The Gentle Art of Asking Instead of Telling”. So, I downloaded it last night and found that I could skim read it fairly quickly (These days I find that, if I read the introduction, the references at the back and then from the back of the book to the front, I can get through the significant parts more quickly – and the highlighter on the Kindle function is ideal for emphasising key points). Schein’s is a well-written book. For man [...]
As mediation seeks to claim a larger slice of the international dispute resolution pie, an increasingly important question for lawyers is: where and according to which law would I choose to have the mediation of my clients matter conducted?
Say your client is a multinational corporation doing business with numerous organizations around the globe. Your advice is to insert a dispute resolution clause with mediation as a central component. Typically we select jurisdictions with which we are familiar to do business with. Smits explains the research that backs this up. This is sometimes referred to as the status quo bias. It might be our own jurisdiction or it might be another internationally we [...]
As the world of business develops at an unprecedented pace, we all are constantly facing new challenging situations which we must rapidly understand, find new solutions to and, in some cases, adapt ourselves to. A global net of co-operations, business opportunities, market resources and novel technologies has inevitable spanned across our world of business.
Along with any innovation and development comes a new challenge and with that a new method to deal with it. Unsurprisingly, the segment of dispute resolution is no different from the others and also needs to rapidly adapt to the fast paced developments in the world of international commerce. Globalized, multicultural and highly complex t [...]
This is a blog I have shied away from writing. Several times. Even now, as I do so, I am wary of it. But here goes. I’ll come right out with it.
Very few women feature on the lists of “top” commercial mediators.
This year’s Who Who Legal World’s Top Ten features precisely….none. Seriously? Come off it.
Perhaps it was a mistake? Nope. Check out this year’s UK Legal 500. Three of the top twenty are women. This year’s UK Chambers Directory? Four of the top nineteen (though with a big shout for Frances Maynard who tops the list).
Now, I am no student of gender politics or history. And I don’t think of myself as a feminist, or a misogynist, or any other r [...]
Last year I posted 10 tips for participants, one of the most important being that mediation remains an oral sport, and the most effective counsel and parties in real life are those who have the confidence to come to mediation with little documentation but with a deep knowledge of both the dispute and their preferred pathway to resolution – so, not only have they prepped the legal case, they have also (and primarily) prepared for settlement.
This year, I would like to add just a couple more, but perhaps go into a little greater detail this time;
I was all set to write about climate change and, more particularly, to reflect on some excellent writing on that subject which addresses so-called climate change sceptics or deniers. It seems to me that there is much to be learned about the motivations and psychology which affect such people and which can easily be read across to help us understand the resistance that is still so prevalent to mediation.
However, I can keep that blog for next time as the best thing I can do now is to commend a truly excellent new book entitled How to Master Commercial Mediation, authored by David Richbell, one of the real father figures of mediation in Europe, together with 85 other contributors. I confess th [...]
Something is in the air at the moment. And it goes to the heart of what we mediators do.
On the one hand, noted mediation thinkers such as Robert Bush and Joseph Folger write an empassioned challenge to the profession “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination”, arguing that mediation has shifted radically away from the party self-determination which is its essence. They maintain that the context in which many mediations take place – the court system – has over-influenced the behaviour of mediators themselves, noting that:
“We were drawn in by the culture of helping, the drug-like “high” of reachin [...]
As 2014 comes to an end, it is good to reflect. How privileged many of us are. I often remark to others that my “job” is better than “real work”. What do I mean when I say that?
As mediators, we have an extraordinary window through which we view life, other people and what happens in times of difficulty or distress. It is a vantage point which we need to cherish and respect.
In a period of ten days recently, I worked as a mediator in a number of diverse situations. These, anonymised here, have included an evening with townspeople explaining to a quarry operator their distress about the effects on a community of nearby blasting. I have sought to help a national sports body handle a very sensi [...]