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, [...]
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 [...]