Most mediators I know graduated from the Facilitative School of Mediation – and we could spend much ink here debating exactly what that means but to my mind we were essentially taught to own the process and butt out of the outcome.

Recently there have been a number of calls for mediators to do more – more what is perhaps a little unclear, but certainly the market wants more something.

Just last month the IMI International Corporate Users ADR Survey polled 76 in-house dispute resolution Counsel from North America and Europe with over two thirds of the responders being from corporations with 10,000 plus employees.

Responding to the injunction that “Mediators should not be purely faci [...]

A recently reported decision of the Ontario Superior Court highlights the efficacy of the mediation process in resolving complex disputes particularly in circumstances where uncertainty of outcome reigns supreme.

 In Johnston v. The Shelia Morrison Schools, 2013 ONSC 1528 Justice Perell was asked to approve a settlement in an Action which had been certified under the Ontario Class Proceedings Act, 1992.

 The Action advanced abuse claims on behalf of students who had attended the Sheila Morrison School, a co-educational residential and day school for children between 10 – 18 years of age who suffered from learning disabilities and behaviour problems. The school operated from 1977 until 2009 [...]

It was with horror that I read Bill Marsh’s blog this week reporting on the shooting of parties to a mediation in Arizona – news of the event hadn’t crossed the Atlantic at that stage. One of my immediate reactions was to think – my God, the poor mediator. How do you deal with that? At a recent “Learning and Sharing” meeting (essentially a mediator’s peer supervision group) two mediators related stories about mediations in which they had been involved where in both cases one party had, not long after the mediation process was finished, taken their own lives. Discussion of these cases led a number of us to sign up for Applied Suicide Intervention Skills Training, a two day worksh [...]

Edinburgh is one of the world’s top tourist attractions. To quote its own website “Edinburgh is an multi-award-winning, world-class tourist destination. A must-see cultural capital. From stunning skylines to sandy beaches, festivals to fireworks – the city has something for everyone, day and night.” So, it can hardly have been good for business when, during 2009 and again in 2010, the city’s flagship tram project ground to a halt in the midst of construction thanks to ‘contractual disputes’ (for a detailed explanation, see http://en.wikipedia.org/wiki/Edinburgh_Trams). As a frequent visitor to the city I could see dozens of streets and kilometres of track lying untouched, week after week, [...]

To paraphrase Jane Austen, it is a truth universally acknowledged that mediation is confidential. Go on any training course, listen to any mediator’s opening speech, and the secrecy/privacy of the process will be affirmed and reaffirmed. In the commercial mediation arena, and these days most other practice areas, you will also sign a contractual undertaking about confidentiality. Article 7 of the 2008 EU Directive on Cross Border Mediation states that “mediation is intended to take place in a manner which respects confidentiality”. It is simply assumed that this is desirable, even essential, for mediation to take place. When mediation confidentiality is challenged, as it has been recentl [...]

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 [...]

Professions (and hence professionals) are both blessed and cursed with high expectations. The upside is clear: the public expects high standards, expertise and care, and in return is prepared to pay handsomely. The downside typically involves disciplinary sanctions against those not measuring up to those standards, although issues of probity rather than competence tend to make the headlines. Less often discussed is the impact of these high expectations on professionals’ self-image. We also have to see ourselves as supremely competent, or the compact with the public loses its validity.
It is therefore unsurprising that professionals rarely talk about failure, especially their own. It bec [...]

Often when I’m mediating a difficult case; the parties, running hot, miles apart and showing no sign of movement, an inner voice whispers softly to me, “it’s just not ripe for settlement.”

It’s an attractive concept because it lets me off the hook. Nothing to be done here until the case ripens. I might as well call it and move on to the next one.

This facile approach to ripeness in mediation can be a Siren song that mediators (including this one) must resist. As usual in mediation the way forward is with questions: Why isn’t this case ripe? What can be done now to ripen this case? If the case can’t be settled today what’s the right next step to move it towards resolution?

Med [...]

For students of South-East Asian political struggles (come on, you know you are out there!) last month marked an important landmark. The Government of the Republic of the Philippines and the Moro National Liberation Front signed an historic peace agreement intended to bring an end to 25 years of violent conflict.

Of course, this is welcome news. The end of violence almost always is. However, a study of the terms of agreement contains an interesting lesson for mediators. The agreement is in fact not a full peace agreement, but rather an agreement to continue negotiating within an express framework. The preamble states it to be an agreement to “the following principles, which shal [...]

He was a widower and a grandfather. He arrived at the mediation with his attorney and one of his adult daughters for moral support. The trial date loomed, and the judge had urged both sides to come to the table to settle this tort case.

After the accident, he could no longer babysit his grandchildren because he was not able to lift them. An amateur musician since boyhood, he was unable to sit at the piano for more than 10 minutes, which meant he could no longer practice the complex classical pieces that he had loved to play.

Before the mediation, the lawyers had swapped numbers but remained miles apart.

The defense attorney began the mediation by sincerely offering his sympathy and concern [...]