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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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Inputs and Outputs

simple inputs and outputs

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 [...]

Patience

“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 [...]

Don’t Just Sit There – Do Something!

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 moremore 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 [...]

Ontario Court Approves Mediated Settlement of Complex Class Action

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 [...]