Mediation has long been used as a method of resolving disputes. Indeed, the practice of combining mediation and arbitration by the same neutral has been traced back to ancient Greece and Ptolemaic Egypt[1]. In his paper “Varieties of Dispute Processing”, presented to the 1976 Pound Conference, Harvard Professor Frank E.A. Sander proposed that, instead of…

While it is obvious that law is significant in legal disputes, how the law is used is not so obvious. This piece uses Oliver Wendell Holmes’s famous definition of the law as “prophecies of what the courts will do in fact,” rather than rules expressed in statutes, case law etc. It discusses two aspects of…

Are agreements to mediate enforceable? The short (and incomplete) answer is: yes, they may be provided they are drafted appropriately. In this post we review a recent English judgment which sets outs guidelines for the enforceability of agreements to mediate under English law. In August 2019, the Technology and Construction Court of the Queen’s Bench…

The Singapore Convention on Mediation makes clear that international mediated settlement agreements (iMSAs) may be used as a sword or invoked as a shield in judicial or arbitral proceedings (defence). In the post-Singapore Convention world, lawyers are looking closely at the extent to which courts may recognise settlement agreements, especially mediated settlement agreements, as a…

Is this yet another case in which New York is setting global trends? By the end of the year, the state courts in New York are due to have a system in place requiring that civil and commercial disputes be resolved through presumptive mediation. “Presumptive mediation” means an “automatic”, pre-trial, statewide program of court-sponsored ADR….

(This post is being republished due to technical issues when it was first published.) “I see contemporary patterns of disputing as an adaptive (but not necessarily optimal) response to a set of changing conditions. There have been great changes in the social production of injuries as a result of, among other things, the increased power…

Troubling trends observed as an Ontario commercial mediator compel me to once again take up my chiclet-keyed sabre. That the following are indeed trends in commercial mediation in Ontario is unsupported by any reliable data – because no one keeps track. No one records. It’s all anecdotal. Still, I’m now closing in on 30 years…

As Chip and Dan Heath describe in their book Switch: How to Change Things When Change is Hard, we are rational beings with a “Rider” that logically analyzes our surroundings. Our Rider tries to direct our emotional side, “the Elephant.” Although we like to think our Rider is in control at all times, in truth,…

While I am watching hailstones the size of peas fall in the West of Ireland, a good number of my colleagues are celebrating the culmination of the ICC’s Mediation Competition in Paris, where in excess of 60 teams of mediators and negotiators compete to resolve disputes through mediation. The relevance of this to today’s blog…

At the start of another year, it can be useful to conduct a bit of a personal stock-take. What holds us back from achieving all we could this year? How many of us suffer from silent self-doubt? How many of us would admit to feelings of inadequacy, anxiety and uncertainty about what we do? Far…