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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 [...]

Sorry is the hardest word…

The last few weeks have seen a failure to apologise result in a political crisis, a senior police official being forced to resign, and our Minister for Justice’s already wobbly pedestal threaten to give way entirely beneath him. The coming weeks and months will tell whether the “Minister for Borrowed Time” as he has become known, will survive this latest scandal, but the damage that, among other issues, the failure to issue an apology to two Whistleblowers, who have been vindicated and lauded as heroes by other members of Government, has done the reputation of the Minister enormous damage.

Why, then, do people find it so difficult to apologise? As mediators, we all know the power of an [...]

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 [...]

A Steel Fist Inside A Velvet Glove

imagesIQN1T1YVRegular readers of this blog may recall my 10 tips for participants who took part in the recent ICC Commercial Mediation Competition held in Paris – a wonderful time was had by all but that’s for another post.

One of those tips was about keeping it real and suggesting a ‘steel fist inside a velvet glove’ posture when protecting important interests (aka things that are fundamentally important to you) at the mediation table. 

Judging from the feedback at and after the competition that phrase struck a chord – like  law student and soon to be lawyer, Lamice Nasr of the Saint Joseph University in Beirut, Lebanon who wrote saying the “steel hand in a velvet glove theory is now a funda [...]

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 [...]

New ADR Guidelines for Scottish Lawyers: a constructive step

Law Society of Scotland
I have written before in this blog about Scotland’s slow pace of change (http://kluwermediationblog.com/2012/05/12/mediation-in-scotland-some-practical-questions-and-a-nudge-in-the-right-direction/). A naturally cautious nation, our ‘old world’ response to new ideas has generally been ‘what’s wrong with the old ones?’ I was comforted by Constantin-Adi Gavrila’s recent post on this blog which underlined that Scotland is not the only European nation whose legal profession is lukewarm about mediation.
So it is pleasing to be able to report a small but important sign of progress from this jurisdiction. In November 2013, the Law Society of Scotland published new guidance (Dispute Resolution, [...]

The Third Mediation Space; the humble corridor encounter

HallThis is where I did my best work in Christmas week – in the twilight zone between the joint session room to the right of the water cooler and the private caucus room off to the left by the green bins.

Corridors can be furtive and risky spaces on mediation days – ‘don’t ask me to cross the centre line, but I’m quite close to it’ kinds of places, ideal for short line ups of lawyers or parties.

My technique has evolved quite differently in each of these three spaces: caucus, joint and corridor– so differently I wish someone would legitimise the humble corridor encounter by giving it a fancy name and teaching a course on it.

My take on corridor encounters is that they are very diff [...]

Recommendations to develop International Commercial Mediation in Singapore

So, dear Readers,
This time last year I was telling you about new mediation initiatives in Hong Kong. Well, this year I hope to send you into the festive season with some very exciting news from Singapore.

On 3 December 2013, Singapore’s Ministry of Law unveiled key initiatives to transform and develop its international commercial mediation sector. Based on recommendations of a Working Group established in April 2013 by Singapore’s Chief Justice and the Ministry, the recommendations include the establishment of two new independent mediation entities: a new professional mediation body (the “Singapore International Mediation Institute”), and a new international mediation service provi [...]

Giving Lawyers an Insider’s View

A lot has been said about how to spread the mediation culture in Brazil. Undoubtedly, it is critical to improve the awareness of mediation as a useful tool in dispute resolution, targeting potential users and clients especially. These are the people who will select and recommend mediation to solve disputes and lawyers are probably the key players among these potential users.

Lawyers are trained in skills and strategies that are most effective in the courtroom. Mediation, on the other hand, requires a change in mindset from adversarial proceedings because the objective is different. To take advantage of the benefits of mediation, litigators must acquire a new set of “mediation advocacy” s [...]

Engaging Lawyers as Partners in Mediation

I wrote in a previous entry about Encouraging Mediation – Recent Developments in Singapore. Those developments referred to court-based initiatives that made it necessary for lawyers to bring to their clients’ attention the possibility of turning to ADR to resolve their matter as well as the courts taking into account the parties’ conduct in relation to mediation when awarding costs.

Of course, these court-based initiatives work as a “stick” and cannot by themselves be the whole picture. Sometimes, even without this stick, lawyers are interested in considering mediation but sometimes do not know how to go about functioning in that context. Put another way, they “want to” but they [...]