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A False ‘Prince Charming’ Keeps ‘Sleeping Beauty’ in a Coma: On Voluntary Mediation Being the True Oxymoron of Dispute Resolution Policy

The recent publication of a study conducted for the European Parliament on Mediation, “Rebooting the Mediation Directive,” has contributed to the ongoing debate about effective mediation policy. I am the coordinator of that Study, whose results were based on 816 questionnaires completed by respondents from the 28 member states of the EU.

The Study determined that mediation in the EU is still the “Sleeping Beauty” I first heard about when I decided to enter this field 20 years ago. Despite many decades of stagnation, renewed enthusiasm and repeated efforts to revive her, the consensus seems to be that our princess is more than just asleep. The Study concluded that unless “elements o [...]

An Asian Switzerland, Expectation and Regret

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Having last week returned to New Zealand from Singapore where I was honoured take part in the launch of the ICC Mediation Rules, I saw first hand the support for mediation in Singapore from powerful institutions like the Singapore Judiciary and the Ministry of Law.

Singapore, and my guess is Asia in general, is in the grip of a trade boom – from my hotel window it showed. I counted well over 100 large ships at anchor in the bay awaiting their turn to come along side the container  port.  This amazing country, lacking in land and natural resources of its own, unloads raw materials and later exports them after refining, value adding and reshaping them. In this way, Singapore has become th [...]

Mediation Roundup from the Polar Vortex

Greetings from the heart of the Polar Vortex!

Yes, it’s been a brutally cold and snowy winter here in Ontario, Canada, but now, in late February, the lengthening days and (relatively) warmer temperatures remind me of that point in a mediation when it seems that all hope of resolution has forever frozen over and yet, with mediator encouragement and persistence, small cracks appears in the ice, the parties’ attitudes slowly begin to thaw and one can discern the stirring buds of resolution, just below the surface, imbued with nature’s force, striving to burst forth into the sunlight. (Ed. note: enough, surely!)

Agreements to Mediate and Limitation Periods

Section 11 of the Limitations Act (Onta [...]

The Mediation Orchestra

Recently, one of the greatest maestros of our time passed away: Italian conductor Claudio Abbado. He led some of the most prestigious classical music institutions in the twentieth century. He served as music director of the La Scala opera house in Milan, principal conductor of the London Symphony Orchestra, and principal conductor of the Berlin Philharmonic orchestra.

Among several recordings that Abbado left us, we could highlight his amazing performances in the opera The Barber of Seville, Mahler´s Symphony No 3. and Ravel´s Piano Concerto.

Abbado usually conducted without looking at the score to show off his familiarity with the piece. He was also known for his undisguised perfectionism [...]

Socially Responsible Companies Create Value to their Shareholders

It is almost a consensus nowadays that large and small companies, regardless of their business activity or industry segment, must integrate in their corporate and operational strategies a variety of social, economical, and environmental elements in order to not only effectively satisfy all stakeholders, but also to remain sustainable and competitive in the long run.

This trend started a few years back when financial investors, in addition to looking into their traditional investment tools (ratios, financial analysis), decided to add a social element into their decision making process, creating sustainability ratios in order to measure and evaluate other dimensions which, until then, had been [...]

Solving Complex Problems Thinking out of the Box

As mentioned in a previous post, this month I will briefly talk about two high profile cases from the corporate sector which helped to improve mediation awareness in Brazil and, due to its widespread coverage, provided the general public clear examples of how it is possible to fix complex legal problems by not letting our pre-conceived perceptions and emotions interfere in our decision making process, keeping open all different problem solving possibilities.

The first case is a Dispute System Design (DSD) project created to provide an efficient and just system to compensate the victims of an airplane crash which occurred in Brazil in 2007 (TAM flight 3054), when 199 people lost their lives.

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Time Frames

“If only as much were known about the human passions as is known about the production of grain or the sales of soap, world maps could be drawn showing the regional distribution of attitudes and temperaments, fears and hopes, and where one finds the people who can laugh at the same joke.” Theodore Zeldin, The French, (Collins Harvill, 1983, 1997), 4

For those of you who like playing with words, think of the ways in which you can give different meaning to the two words of the title of this blog, depending on whether you’re looking at verbs or nouns.

Moving right along, what I want to do here is revisit a puzzle I explored a few years ago in an article in Negotiation Journal on culture, tim [...]

The culture of mediation: How can we create more impact?

In the past 20 years or so, we witnessed an intensification of the litigation rate as the world became more globalized and people saw lawsuits as the only real alternative to a negotiated agreement. That created high caseloads, extended periods of time until final judgments, discouraging high litigation costs, dissatisfaction with the outcomes and lack of trust in the judiciary in some countries.

In order to adapt to these new challenges, there were created new dispute resolution methods as alternatives (ADR) to the only known path – the lawsuit. The mediation activity is a form or ADR that is still in the process of identifying a world-wide accepted definition.

Although it exists today i [...]

Nortel Saga Continues

Faithful readers will recall my posts here and here mentioning the failed mediation relating to the international effort to reach an agreement on the distribution of some $9 Billion in assets remaining from the Nortel insolvency.

The Ontario Courts are now struggling with the fallout from that failed mediation. This week saw the release of a decision by the Ontario Court of Appeal refusing to overturn the earlier decision of Justice Morawetz of the Ontario Superior Court basically approving an “Allocation Protocol” setting out a proposed procedure for coming to a binding decision on how the $9 Billion is to be allocated.

Central to that proposed protocol is a joint hearing between the Ca [...]

Patience

“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 [...]