Regular 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 [...]
Like many of us, I listened with rapt attention to the reporting from Geneva of the Syrian peace talks last week. So much is at stake. And so much of it feels very familiar to me as a mediator.
One particularly interesting item was a radio interview last Saturday with a Syrian media officer who appeared to have been very present and involved in the talks, though I don’t recall in what capacity. The interview was followed by coverage of a press conference with Lakhdar Brahimi, the UN-appointed mediator. From what the two of them had to say, I was reminded of a number of things central to what we do as mediators:
1. The humanising effects of talking, or even just being in the same ro [...]
An article by Donalee Moulton in the January 24th issue of The Lawyers Weekly entitled, “Opening offers can make or break a deal” caught my attention and caused me to reflect on my own experience from approximately 3,000 mediations conducted over the past 22 years.
Much of the advice boils down to, “don’t be afraid to make the first offer in mediation, so long as it’s a reasonable offer, because by so doing you are anchoring the negotiation that follows and research shows that this “anchoring eff [...]
As mentioned in a previous post, this month I will briefly talk about two high profile cases from the corporate sector which helped to improve mediation awareness in Brazil and, due to its widespread coverage, provided the general public clear examples of how it is possible to fix complex legal problems by not letting our pre-conceived perceptions and emotions interfere in our decision making process, keeping open all different problem solving possibilities.
The first case is a Dispute System Design (DSD) project created to provide an efficient and just system to compensate the victims of an airplane crash which occurred in Brazil in 2007 (TAM flight 3054), when 199 people lost their lives.[...]
A human resources manager recently asked me for a general list of reasons why a mediation might not settle. While part of me wanted to question the idea of settlement as the goal of mediation (see Alan Gross’s excellent piece ‘Agreement Not the Gold Standard for Mediation – http://www.mediate.com/articles/GrossA3.cfm ) most of me thought this was an interesting request. Why shouldn’t the client ask for a précis of risks before making a purchase? These days no self-respecting surgeon would have a patient under the scalpel without setting out the risks.
So I gave it a go. Here is my first attempt.
“In no particular order:
· one or other party thinks they can do better in court (or the [...]
“They also serve, who only exchange offers.”
A recent mediation experience serves to reinforce the value of patience in mediation – for the parties and for the mediator. The tort mediation, involving a single plaintiff and two insurers started at 10 am and concluded 8 hours and 15 minutes later. The following is the sequence of proposals and counter-proposals.
Plaintiff (P) 1 – Sets out in detail how the full value of the claim, including general damages, med-rehab, house keeping, past and future income losses totals close to $1 million and then offers, for the purposes of mediation, to accept $693,713, plus prejudgement interest and costs (++).
Defenendant 1 (D1) and 2 (D2) send me back wi [...]
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, [...]