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.[...]
“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 [...]
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 [...]
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 [...]
“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 [...]
If I look back 10 years ago I can notice that mediation has had an evolution which at that time, we could but hope for. From the random pilot projects and the search “laboratories” of this activity, in the year 2013, mediation has become a freestanding profession and even a social and professional phenomenon.
Mediation is a conflicts resolution method and humanity has begun to become more and more aware of its efficiency. This process has determined remarkable progress at the legislative, institutional, and professional construction level. We can notice that mediation has been integrated by Governs, corporations or by people in their own conflicts resolution policies.
Pursuant to artic [...]
Many of you will have read of the tragedy this week in Arizona, where a mediation ended in the death of one party, and the serious wounding of their lawyer. Details are still sketchy, but it seems that a mediation of a commercial dispute was taking place in an office in downtown Phoenix, between a call centre and Mr Harmon, a furniture manufacturer. The dispute was apparently intense and bitter. Evidently, Mr Harmon left the mediation saying that he had to go to his car. The other party and their lawyer assumed he had left the mediation completely, and so took the lift down to the exit to leave. It is alleged that Mr Harmon was waiting for them there with his gun, shot and killed the ca [...]
A potpourri of mediation-related reflections as the holiday break fades from memory.
Hockey Mediation - With last Saturday’s puck drops in 13 cities the National Hockey League has commenced its lockout-shortened season. Full arenas around the league confirm the strength of the game’s drawing power if not the forgive-and-forget sentiments of long-suffering fans.
Readers of this Blog will know that mediation played an important role in bringing the lock-out to an end. This article shines much-deserved light on the mediator and his role is achieving the settlement.
Although this was an American mediator working with primarily American negotiators in New York City I continue to consider this fi [...]
Down here in New Zealand it’s high summer and most of the country will spend until the end of January at the beach.
I remember, when I was still at my law firm 10 years ago, the feeling of brief respite at this time of year before having to put on my boots again and trudge back up that mountain they called Budget.
That image has long disappeared for me, but ever since Rick Weiler was brave enough to reflect on his three failed mediations and Jeff Krivis was prepared to post on the death of mediation in California, I have been circling this piece on mediator fatigue knowing that these kinds of topics are risky demons to raise.
But as we start a new year, the time feels right.
It’s not as if [...]
Many have tried but all have failed to implement a definitive single enforcement mechanism for cross-border mediated settlement agreements.
This lack of any coherent method of enforcement is widely seen as a major impediment to further globalisation of mediation, the argument being how can we expect parties involved in large international commercial disputes to embrace mediation if there is a risk that any outcome might be, to all intents and purposes, unenforceable. Why would international parties not simply default to arbitration where the New York Convention of 1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards with its 146 member states ensures the enf [...]