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Skiing the Moguls in Mediation

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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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Contrasting mediations….richness awaits…..

I write here about two contrasting experiences which have, for me, underscored the richness of the mediation process.

In one mediation, involving business partners with an ongoing management issue, one of the protagonists (A) suggested bringing in another partner (D) who was not perceived to be a part of the present problem, simply to observe, be a resource to the participants and help balance numbers as A, a more junior partner, felt outnumbered by B and C who held senior positions.

D made clear at the outset that he did not wish to say much and that he did not wish to become embroiled. However, a private meeting with him elicited much information that seemed helpful going forward. Rather [...]

Supreme Court of Canada rules on mediation confidentiality following settlement

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Earlier this month the Supreme Court of Canada issued its unanimous decision in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35. The reasons of Mr. Justice Wagner deal with an unfortunate situation in which Bombardier, which had been suing Union Carbide for more than a decade seeking CAN$30 million  related to allegedly defective gas tanks on Sea-Doo personal watercraft, thought it had achieved a settlement following a mediation only to discover that Union Carbide had a much different idea regarding what, in fact, had been settled.

The issue was whether the provisions of a standard mediation agreement providing, “Nothing which transpires in the Mediation will be alleged, referred [...]

Mind the Gap: Mediation and Justice

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Intellectual life is beset by ‘gap’ problems. Philosophers wrestle with the ‘mind-body problem’: the gap between material and non-material aspects of human existence. All science can be construed as an attempt to bridge the gap between what is and what we can imagine: an inductive corrective to deductive supposition. Roger Cotterrell describes law’s gap problem in these terms: “What is the relationship between law and social reality?” (Roger Cotterrell, Living Law: Studies in Legal and Social Theory. Farnham: Ashgate, 2008, p.21)

The field of conflict resolution has its own gap problem: the alleged gap between mediation and justice.
“[Mediation] does not contribute to su [...]

Sorry is the hardest word…

The last few weeks have seen a failure to apologise result in a political crisis, a senior police official being forced to resign, and our Minister for Justice’s already wobbly pedestal threaten to give way entirely beneath him. The coming weeks and months will tell whether the “Minister for Borrowed Time” as he has become known, will survive this latest scandal, but the damage that, among other issues, the failure to issue an apology to two Whistleblowers, who have been vindicated and lauded as heroes by other members of Government, has done the reputation of the Minister enormous damage.

Why, then, do people find it so difficult to apologise? As mediators, we all know the power of an [...]

An Asian Switzerland, Expectation and Regret

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Having last week returned to New Zealand from Singapore where I was honoured take part in the launch of the ICC Mediation Rules, I saw first hand the support for mediation in Singapore from powerful institutions like the Singapore Judiciary and the Ministry of Law.

Singapore, and my guess is Asia in general, is in the grip of a trade boom – from my hotel window it showed. I counted well over 100 large ships at anchor in the bay awaiting their turn to come along side the container  port.  This amazing country, lacking in land and natural resources of its own, unloads raw materials and later exports them after refining, value adding and reshaping them. In this way, Singapore has become th [...]

A Steel Fist Inside A Velvet Glove

imagesIQN1T1YVRegular 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 [...]

Lessons From Geneva

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 [...]

Opening Offers in Mediation

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.

I urge readers to look a the Lawyers Weekly article as well as some of the other web resources on this topic including this posting by Matthew Rushton and this by the Hon. Jay C. Gandhi.

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 [...]

Solving Complex Problems Thinking out of the Box

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.

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