There is a lot of talk nowadays about the apparent failure of mediation to live up to its potential. Reports published on paper and online, presented before institutions or at various conferences, point to the relatively low number of mediation cases compared to the number of lawsuits filling the logs of the courts and then draw the inevitable conclusion that mediation has missed the opportunity of (be)coming mainstream. Future of mediation is bleak, say a lot of experts, at least as much as there will be no measures taken to mandate the use of mediation prior to filling a lawsuit. Constraining people to choose [...]
In his 1956 text, The Queen’s Courts, Sir Peter Archer suggested that the development of the Courts was more organic than by design, and – though he doesn’t say as much – more pragmatic than principled. He calls on Topsy’s response to Ophelia in Uncle Tom’s Cabin, to suggest that, like Topsy, they “just grow’d”. That, however, was more than half a century ago. Contemporary observers of most modern legal and judicial systems would see far more by way of design and conscious reform. In the world of non-judicial dispute resolution, particularly negotiation and mediation, there has also been a deliberate adoption of the idea of design, exemplified in the Ury, Brett & Goldberg book, [...]
Nowadays, more than ever, we live in a relationship-based environment, where networking, information and experience exchange form, among others, very important pillars of large and small organizations. These important concepts have been widely recognized by large corporations and successful small businesses but, unfortunately, there are still some skepticism from some small business segments, especially from self-made entrepreneurs, as some still tend not to trust or seek third party advice. The ability to remain competitive and ahead of competition is more than ever associated to the capacity to fully understand and interact with its nearby environment.
In an attempt to further spread the [...]
Global Legal Post recently carried an article intriguingly entitled “Lawyers find Eureka moments in the shower“. Sadly the article itself lacked the slightly salacious promise of its title. Instead, it focused on the results of a survey of London city lawyers, indicating that those surveyed did their most creative thinking in the shower or commuting (27% in each case). By contrast, only 10% attained their creative peak in the office.
Intuitively, this doesn’t surprise me. There is inevitably (and quite properly) a rigour and a structure to office life. Institutions usually function that way, particularly the larger ones. Perhaps they need to, to avoid chaos.
But everything has [...]
I have never been a great fan of mediator’s proposals. I took the view that the mediator’s job, done well, was to help the parties to come to a solution themselves. Party autonomy and all that. Achieving a satisfactory outcome, I thought, shouldn’t require a specific suggestion by the mediator.
I have changed my view. As usual, experience is a great teacher. As is improvisation. Here’s what happened. After several hours of to-ing and fro-ing, and with a still significant gap between them, the mediator brought the principals together to meet with him, without their legal advisers (and with the advisers’ permission and encouragement). They talked for a while about their respective claims and [...]
This article may be helpful particularly if you consider settling a case as a party or as an advisor.
There are many perspectives that one can consider when looking at mediation. One example is that our current mediation culture is still in development. Therefore, sometimes, parties ask me, the mediator, to invite the other party to mediation. Actually, this is happening more than I would prefer and it may be related to the society’s education, acceptance and respect towards mediation. In these cases I get to send a letter and communicate with the other party.
I was recently talking with a client’s lawyer about the possibility of mediating a commercial case and he respectfully denied th [...]
“The key to doing well lies not in overcoming others,
but in eliciting their co-operation.”
“Although negotiation takes place every day, it is not easy to do well. Standard strategies for negotiation often leave people dissatisfied, worn out or alienated…..”
Roger Fisher and William Ury
For probably the final time, I am writing about the referendum which was recently held in Scotland. Now, a Commission has been set up to address the need for additional powers, which the “No” vote has prompted.
Collaborative Scotland and Core Solutions have submitted views. These may be of interest to all of those who are pondering how the future of politics and our mediation work may i [...]
I believe that by now you all had enough of my comments on the 2014 FIFA World Cup. So let’s move on to other aspects of life.
Last month, IBA’s Mediation Committee organized a regional meeting in Brazil in order to discuss the latest trends in Commercial Mediation. The event was supported by Veirano Law Firm, one of the most prestigious Firms in Brazil, and was attended by several lawyers, in house counsels and members of the public sector, some of them hearing about mediation for the first time. In addition to being a great success, the event could be seen as another small step towards increasing the general awareness level of Commercial Mediation in the country.
Although I could pr [...]
It was not my intention to continue talking about the 2014 FIFA World Cup, as I am not a big football fan, and probably most of us have had enough of it over the last six weeks. However, Brazil’s 7 x 1 knockout defeat to Germany is still in every Brazilian’s mind. How this could happen, what went wrong and what the “football nation” can expect in the future are some of the questions still echoing in every corner of the country.
In my humble, not expert, football opinion, instead of asking ourselves “what went wrong”, we should in fact be asking how Germany managed to do it.
Losing to Brazil in the 2002 World Cup final game and being eliminated in their own territory at the quarter [...]
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 [...]