In Buenos Aires, the city where I currently practice mediation, mediation is mandatory before suing the other party. Thanks to this system, I was able to start mediating my first cases right after I was certified. After a few cases, however, I began to realize just how overwhelming it can be when parties’ advocates are already focused on the lawsuit and are not convinced of the advantages of mediation. Many perceive mediation as a mere bureaucratic step. In contrast, others embrace the mediation principle. And this is exactly what I have found to be essential for the achievement of a successful mediation: that advocates give us mediators the sense that we are not alone when conducting the [...]
We have just reached the end of the annual marking season (grading for North Americans). The verbal joust of examinations is almost over. Students get their blows in first; teachers’ strike back with marks and comments. It’s a familiar ritual with its own rhythm and reasoning. It can be viewed as arduous by both sides but markers get a certain satisfaction from novel insights and perspectives; and a salutary reminder of what people actually remember.
For a mediator teaching in a law school there is an additional challenge. Students are being inducted into the great tradition of legal reasoning which sifts ‘irrelevant’ from ‘relevant’ matters in the march towards court. Ideas [...]
Within this blog, we would like to familiarise you with the procedure of drafting and creating a complex mediation curriculum both from the inside and outside. Martin Svatos is one of the founders of this curriculum at the Charles University in Prague, and Sabine Walsh has accepted the invitation to give the final speech within this curriculum and to appraise the outcome of the effort.
It all started with LinkedIn discussion couple month ago when I posted a question: What is your favourite mediation book and why? Well, at the time, I did not aim to gain the participants preferences and opinions about the best mediation books that should be used in the mediation training. The purpose [...]
This year in the UK we are celebrating the 800th anniversary of the Magna Carta, or “Great Charter”. Signed in 1215, it remains one of the most famous documents in the world, and central to the British constitution. In mediator parlance, it is a “settlement agreement”. It came into being as a compromise between King John of England and the Barons who challenged his authority, and it established for the first time that everyone, including the king, was subject to the law*.
Interestingly, and less well-known, this deal was mediated. Archbishop Stephen Langton stepped into the role, holding separate talks with each side to hear their grievances, and ultimately bringing them together [...]
As mediation seeks to claim a larger slice of the international dispute resolution pie, an increasingly important question for lawyers is: where and according to which law would I choose to have the mediation of my clients matter conducted?
Say your client is a multinational corporation doing business with numerous organizations around the globe. Your advice is to insert a dispute resolution clause with mediation as a central component. Typically we select jurisdictions with which we are familiar to do business with. Smits explains the research that backs this up. This is sometimes referred to as the status quo bias. It might be our own jurisdiction or it might be another internationally we [...]
It was a boat building case and the detail was overwhelming. Too many gudgeons, pintles and bulwarks and by the time we got to a 3 day hearing, it had become the most toxic professional relationship with a counterpart lawyer of my young career.
A day and a half into the trial, partly because of the mindless detail, partly because the judge had bigger fish to fry, counsel were told to go away and settle. I looked blankly at the Judge, avoided the stare of my counterpart, and packed up my papers spread across the Bar table. Since opposite counsel was from out of town, we made our way separately to my firm’s boardroom five minutes up the roa [...]
I was all set to write about climate change and, more particularly, to reflect on some excellent writing on that subject which addresses so-called climate change sceptics or deniers. It seems to me that there is much to be learned about the motivations and psychology which affect such people and which can easily be read across to help us understand the resistance that is still so prevalent to mediation.
However, I can keep that blog for next time as the best thing I can do now is to commend a truly excellent new book entitled How to Master Commercial Mediation, authored by David Richbell, one of the real father figures of mediation in Europe, together with 85 other contributors. I confess th [...]
A couple of years ago in January I wrote a post on likely developments in Ireland in the New Year which, if I recall correctly, had the expression “High Hopes” in the title. Those hopes related primarily to the publication of a new, comprehensive piece of legislation on mediation and the impact it might have upon the practice and profession of mediation. Two years down the road, Ireland’s mediators can be forgiven for feeling nothing but disappointment and frustration.
The General Scheme of the Mediation Bill was indeed published in 2012 and, pursuant to a changed legislative process, a consultation period and public hearing at the Joint Committee on Justice, Equality and Defence took [...]
Something is in the air at the moment. And it goes to the heart of what we mediators do.
On the one hand, noted mediation thinkers such as Robert Bush and Joseph Folger write an empassioned challenge to the profession “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination”, arguing that mediation has shifted radically away from the party self-determination which is its essence. They maintain that the context in which many mediations take place – the court system – has over-influenced the behaviour of mediators themselves, noting that:
“We were drawn in by the culture of helping, the drug-like “high” of reachin [...]
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 [...]