A potpourri of mediation-related reflections as the holiday break fades from memory.
Hockey Mediation - With last Saturday’s puck drops in 13 cities the National Hockey League has commenced its lockout-shortened season. Full arenas around the league confirm the strength of the game’s drawing power if not the forgive-and-forget sentiments of long-suffering fans.
Readers of this Blog will know that mediation played an important role in bringing the lock-out to an end. This article shines much-deserved light on the mediator and his role is achieving the settlement.
Although this was an American mediator working with primarily American negotiators in New York City I continue to consider this fi [...]
Mediating complex employment cases is like rehearsing for a concerto. The conductor spends a substantial amount of time reviewing the score, while the musicians practice the piece both individually and collectively. Hours and hours of practice result in one concert. Malcolm Gladwell, in his recent book ‘Outliers,’ describes the phenomenon of hugely successful people and how they achieved their success through planning and preparation. For example, the Beatles rehearsed and played their music for at least 10,000 hours before they were ready for the Ed Sullivan Show. That’s not to say it’s necessary to spend that much time preparing for an employment mediation, but the potential for su [...]
I would like to focus this blog entry on a recent development of Singapore relating to agreements to agree/negotiate in good faith and some of the practical consequences that can arise from this case.
In the English common law, the traditional position has been that an agreement to agree or an agreement to negotiate was unenforceable. As the risk of simplification, the thinking behind this position was that such agreements were too uncertain to be enforceable. While the writer can and has gone into the reasons elsewhere why agreements to negotiate should be treated differently from agreements to agree and that a case can be made for the former types of agreement to be enforceable, the write [...]
In this posting I want to reflect on how, as a mediator, I’ve learnt much from the related but independent conflict management process, called conflict coaching. Before I get ahead of myself, however, let me start by offering an explanation of conflict coaching.
Conflict coaching is a service provided by a conflict specialist to a person who is, or may in the future be, involved in conflict. According to the REAL Conflict Coaching model, coaches assist clients to develop the 5 Cs:
CLARITY: Gain clarity about the conflict situation;
COMPREHENSION: Understand their own, and the other person’s, needs and goals;
CHOICES: Identify and evaluate their choices for moving forward;
Singapore was the location of an ADR conference over 4-5 October 2012. The conference was entitled “The 5Cs of ADR: Collaboration-Communication-Consensus-Cooperation-Conclusion” and was jointly organized by the Subordinate Courts of Singapore, the Singapore Mediation Centre, the Law Society of Singapore, the Supreme Court of Singapore, the Singapore Academy of Law, the Ministry of Law and the Community Mediation Centres. The conference saw a gathering of academics, practitioners and service providers from, inter alia, Singapore, Malaysia, Indonesia, Thailand, Australia, the United States, the United Kingdom, the Maldives and Fiji to share developments about ADR and to discuss ways to move th [...]
The following was written by my colleague and friend, Mariam Zadeh, following her transition as a 9/11 survivor to becoming a private mediator in Los Angeles:
One who refuses to seek the advice of others will eventually be led to a path of ruin. A mentor helps you to perceive your own weaknesses and confront them with courage. The bond between mentor and protégé enables us to stay true to our chosen path until the very end. [Buddhist Philosopher Daisaku Ikeda]
On September 11, 2001, the lives of many in New York were forever changed, including mine. If I had been asked then, what I would be doing now, I would never have imagined it would be this.
I was riding the Staten Island Ferry on my [...]
饮水思源 – Chinese proverb meaning “When you drink water, remember its source”
Many will remember 25 August 2012 as the day Neil Armstrong passed away. Neil Armstrong was a hero and an inspiration to many. He was of course the first man to walk on the moon and his achievement was symbolic to many of being able to do what was till that point not possible.
Perhaps, lesser known is that 25 August 2012 was also the day Roger Fisher passed away. He was 90.
Roger Fisher was a Professor at Harvard Law School. Many mediators will know Roger Fisher for the 1981 best seller “Getting to Yes: Negotiating Agreement Without Giving In” which he co-authored with William Ury and in a later edition [...]
Mediators often talk about the power of framing their own language and reframing the language of parties and others in mediation settings. For example, mediators may frame their comments in neutral, constructive and future-focused language. They may reframe party statements to detoxify offensive or destructive language or to create a shift from the negative to the positive, from the past to the future, from interests to positions, and so on.
In this blog I want to offer three examples of the power of (re)framing from the perspective of negotiators in a mediation setting, that is parties and their professional advisers. While my comments are equally as relevant to (re)framing by mediators, I [...]
The Problem with Conventional Wisdom in Negotiation
Conventional wisdom in negotiation provides specific responses to stimuli that are categorized as competitive or cooperative behavior. Depending on the identity of the behavior, the negotiator is taught to distribute a set value through a series of moves and concessions, or create value through ideas and transformative behavior. Historically, negotiation theorists remarked that competitive mindsets are based on ‘positional’ bargaining – something is gained only if something is given up. These theorists encourage concentrating on the ‘interests’ or needs of the parties, with the hope that the solution will somehow rise to the sur [...]
How many times have you confronted the mediator before the session begins with this question: “You’re not going to do a joint session are you? I don’t l think it will be productive.” The conventional wisdom in such a request is to avoid a moot court debate in which counsel are forced to advocate strong positions that tend to push their adversaries to do the same, and don’t give rise to productive settlement talks. While there is some truth in that supposition, research into the human brain has now confirmed that when smart people feel intimidated in social settings, this can actually lead to a drop in their IQ level. It’s like a dumbing down syndrome and forces them to follow the [...]