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Why Tap Water May Be Mediation’s Biggest Competitor

When someone asks me to explain what mediation is, I often find it easier to tell them what it is not.

Sometimes I will start by asking them if they are familiar with litigation or arbitration, and use those modes of dispute resolution as a point of comparison. I often see workshops and seminars introduce mediation in this manner, often with a table that highlights points of similarities and differences.

I believe I am certainly not alone in adopting the above approach. However this may lead to a narrow view of the market for mediation. We end up defining the scope for mediation only with reference to litigation or arbitration. We risk missing out on aspects of mediation that cannot be com [...]

Court Involvement in Mediation

Many jurisdictions have grappled with the extent to which their courts should get themselves involved in the mediation of litigated cases.

Many different approaches have found favour around the globe, with diverse programs being implemented in courts from Hong Kong to Florida and places in between. Some courts are hands off while others are heavy handed – regulating every aspect and some even use judges to mediate.

Some programs are creatures of statute, others are mandated by procedural rules while others simply rely on a mediation friendly presiding judge. Some courts, I suspect, see mediation as a competitor – taking the best cases out of the system and contributing to the vanishing tr [...]

Old Man (a mediation parable)

oldman1From the documents I had been given beforehand, I knew he had substantial assets so I was suprised at his appearance when we met at the start of the day.

He was an old man – I guessed well into his 70′s, gaunt and gnarled. He looked to me like he had been on the land for many years – but I knew that he had not; my papers told me he had been successful in retail in Europe and only returned to New Zealand late in life. It had also been clear from the background that the family was not close.

No wife on the scene, perhaps dead – I didn’t enquire. Two daughters and a son, all three of whom were at the mediation, all in their 50′s. They treated him badly.

It took me by surprise. I was missing som [...]

Justice, fairness and the law: another three-fold model

3 elements of justice

Regular readers of this blog will know that I am exercised by the question of justice in mediation. I test the concept on people I meet; responses range from “that’s an interesting idea” to “it has nothing whatever to do with it”. At a conference earlier this year a senior lawyer claimed he could count on the fingers of one hand how many clients had ever mentioned justice. Others thought people choose mediation precisely because they don’t want justice, but some other thing – compromise, perhaps, or a deal.

I’m not so sure. I have a hunch that matters of justice pervade our clients’ thinking. That leads to the question: what is justice? And the answer, of course, depends on who you ask [...]

You are not Alone: Role of Counsels in Mediation

In Buenos Aires, the city where I currently practice mediation, mediation is mandatory before suing the other party. Thanks to this system, I was able to start mediating my first cases right after I was certified. After a few cases, however, I began to realize just how overwhelming it can be when parties’ advocates are already focused on the lawsuit and are not convinced of the advantages of mediation. Many perceive mediation as a mere bureaucratic step. In contrast, others embrace the mediation principle. And this is exactly what I have found to be essential for the achievement of a successful mediation: that advocates give us mediators the sense that we are not alone when conducting the [...]

A Perspective On Mediation In The Middle East

I am a young Lebanese graduate in mediation and currently training to practice in Paris. I frequently get asked the following questions: What is the mediation situation in the Middle East? Is it because your country is a non-mediation country that you are training in Europe? What is the mediation situation in the Middle East? What are the Middle Eastern jurisdictions’ approaches to mediation? Are all Middle Eastern countries non-mediation countries? What are the advantages of mediation in these countries?

When I reflect on these questions, I ask myself: what is a “non-mediation country”? What makes a country a “mediation country”?

While browsing this blog, I came across an article e [...]

Mediating Early And Late

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 [...]

Mediation Games

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 [...]

Reading for Mediators…..

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 [...]

What’s your country’s mediation-friendly ranking?

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 [...]