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 [...]
The first mediation course is a special moment that each of us holds in our hearts and it represents the foundation of every mediator. The transformational process that we all go through during our training as mediators is materialized by the change in our attitude towards conflict and how to solve them.
When we go through our first training course we look for the perfect recipe based on ultimate rules and after we think we have found it, the reality proves that in fact diversity covers all the dimensions and almost anything is possible.
There are some controversial topics in the mediation field that invariably appear during the initial or advanced training courses, too. Some examples would [...]
Lack of flexibility is probably one of the most difficult obstacles to resolve any dispute. The absence of flexibility, limits the ability to reach agreements and ultimately makes the courts the only place where the dispute can find any kind of resolution.
It is weird, therefore, that countries like Brazil have, in their legal systems, at this day and age, mechanisms that limit the parties’ capacity to negotiate and settle disputes. Incredibly, this limitation exists in the labour law.
Brazilian Constitution and the labour laws (CLT- Consolidação das Leis Trabalhistas) prescribes a series of norms that challenge the worldwide trend to resolve labour disputes though direct parties’ neg [...]
Looking beyond the short term, the fun, and the parties, large international sports events are an opportunity for the host country to improve the life of its citizens on a permanent basis.
Large sport events may serve as a catalyst for political support around the solution of issues that otherwise might be unaddressed and, therefore, remain unsolved. The investment legacy of each event is perhaps the most attractive reason to promote a large event.
In the Brazilian case, for the first time, a country will have the opportunity to host the two largest sports events, separated only by a two-year period: FIFA World Cup 2014 and Summer Olympic Games 2016. It is an opportunity that transcends the [...]
Once appointed, many jurisdictions around the world then ask their judges to suspend their adjudication skills in favour of mediating controversies coming before the court, often in an effort to reduce backlogs.
And it seems the issue is gathering steam – just take a look at Rick Weiler’s excellent piece at this blog on the evolution of mediation a couple of days ago… “Ontario Chief Justice Warren Winkler is mediating the distribution of Nortel assets in an effort to avoid full blown litigation… The controversy here, as some see it, relates to the appropriatenes [...]
One of the advantages of using mediation to achieve negotiated solutions is Parties’ possibility to separately communicate with the mediator within what it is called separate sessions or caucus.
The differences of perception, the emotions and feelings determined by the ego, the stubbornness or the personality of Parties involved in a conflict are examples of factors that can cause the failure of a negotiation. These factors are many of them and very different as well, but what they do have in common is the capacity of blocking/stopping communication between Parties which is this kind of situations can be safely taken over by a mediator, who is the third neutral party.
Separate sessions re [...]