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Keep Mediation and Arbitration Separate?

My wife and I recently spent a very convivial evening at the beautiful home in Sydney of leading Australian mediator Alan Limbury and his wife, Dr. Rosemary Howell, who coaches a team from the University of New South Wales in the annual ICC mediation competition.

One topic which stimulated some forthright conversation was the use of hybrids whereby a mediator takes on the role of arbitrator if the matter does not resolve by mediation. In particular, we discussed the transition from mediator to arbitrator with the consent of the parties. It’s a topic on which I recently addressed a group in Dublin too and, contrary to my regular pontification about the value of ambiguity and the need to avo [...]

Justice, fairness and the law: another three-fold model

3 elements of justice

Regular readers of this blog will know that I am exercised by the question of justice in mediation. I test the concept on people I meet; responses range from “that’s an interesting idea” to “it has nothing whatever to do with it”. At a conference earlier this year a senior lawyer claimed he could count on the fingers of one hand how many clients had ever mentioned justice. Others thought people choose mediation precisely because they don’t want justice, but some other thing – compromise, perhaps, or a deal.

I’m not so sure. I have a hunch that matters of justice pervade our clients’ thinking. That leads to the question: what is justice? And the answer, of course, depends on who you ask [...]

More Questions for Mediators

This week, I have had the genuine privilege of contributing one of the key note addresses at the Annual Conference of the Arbitrators and Mediators Institute of New Zealand (AMINZ) in Wellington. It has been a terrific conference, superbly organized by the indefatigable Deborah Hart. The standard of the many and diverse sessions has been very high, indeed outstandingly so. There is some terrific work being done in New Zealand.

In the context of the conference theme of New Horizons, I posed a number of questions in my key note address. I hope to pull together the whole piece for publication, but here are the questions.

• What if the way in which we have sought to resolve difficult dispute [...]

Gratitude For The Law

Magna_charta_cum_statutis_angliae_p1This 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 [...]

Mediation Mastery

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 [...]

Reflecting on mediation as a new year beckons…..

As 2014 comes to an end, it is good to reflect. How privileged many of us are. I often remark to others that my “job” is better than “real work”. What do I mean when I say that?

As mediators, we have an extraordinary window through which we view life, other people and what happens in times of difficulty or distress. It is a vantage point which we need to cherish and respect.

In a period of ten days recently, I worked as a mediator in a number of diverse situations. These, anonymised here, have included an evening with townspeople explaining to a quarry operator their distress about the effects on a community of nearby blasting. I have sought to help a national sports body handle a very sensi [...]

The Californication of Mediation

Wallpaper_Californication_S07a

This post is unlikely to win me friends on America’s West Coast and it may even see my US mediation teaching visa withdrawn, however when the issue even has its own Facebook group called Save the Mediation Joint Session and Promote Party Participation with over 50 of the world’s top mediators signed up, then the patient is more critical than I thought.

The rise and rise of the mediator’s proposal [1] and other evaluative interventions by many of our number, along with the relentless demise of the joint session, are all part of a larger lurch to the right for mediation practice.

And if we look for ground zero, inevitably all roads lead to Southern California where we are told the j [...]

Have your say on international commercial mediation

STOP PRESS

For one more week only you have the chance to have your say on the enforcement of cross-border mediated settlement agreements. I encourage each and every one of you to offer your input.

Two surveys will be gathering input from dispute resolution professionals and others on the challenge of enforcing settlement agreements across borders.

The surveys are intended to provide empirical data to aid the decision making process for the proposed UNCITRAL settlement convention on the international enforcement of settlements reached in mediation.

IMI Survey of Corporate Needs

The first survey is just four questions, and is from the International Mediation Institute. It is focused on the l [...]

Deal or no deal in high profile hockey case?

Hockey is a deeply ingrained part of the Canadian identity so it’s not surprising that the Country has been abuzz this week around the question: “Has a high profile 10-year old case been settled through mediation or not?”

The case, Moore v. Bertuzzi et al,  arose from events that occurred during a National Hockey League (NHL) match in March 0f 2004. The incident has its own Wikipedia page which can be viewed here. The ending of Steve Moore’s career spawned a decade long law suit which was coming to trial next month. The trial would have generated considerable interest as it would have involved a full expose of the so-called “fight culture” of the NHL (see here for example); not something th [...]

Skiing the Moguls in Mediation

moguls1

 

Many years ago I was an avid downhill skier. Nothing took my mind off the pressures of practice like a sun-filled cobalt blue morning sky and a virgin white blanket of new fallen snow to carve my way through. Moguls – those mini-mountains of snow that form on some runs – never failed to induce fear in me. Perched at the top of a triple-diamond mogul run my mind swung between terror and anticipation and I learned over time that the only way to avoid a spill was to let go of the fear and with it the stiffness and the tension in my body. I learned not to focus on each individual mogul but rather to accept the contours of the run as a whole and simply believe all would be well. Mostly it was.

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