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Global Currents: Trends in Complex Cross-Border Disputes

In February 2014, the Litigation and Arbitration Practice of international law firm Hogan Lovells announced the findings of a survey they conducted among 146 senior lawyers and executives from among the world’s largest companies in 18 industries to assess how cross border disputes have affected the legal landscape. The survey’s findings reveal some interesting perspectives, and hint at the scale of opportunity for mediation.

Respondents to the survey indicated that 73% of international corporate contracts included a provision selecting arbitration as the dispute resolution mechanism – though only 29% said their cross-border disputes involved arbitration. This dichotomy is left unexplained in [...]

What Movie Do You Want To Make?

The arc of a litigated case has many narratives, particularly when it comes to settlement opportunities. While some cases fall into standard, often repeated formulas, others cannot be scripted. Yet, there are moments in the cycle of a case where some litigators simply react to events as they unfold rather than actively creating the settlement drama. The drama of a case is like storytelling in a trial, where events unfold in front of an audience of people who are in a position to evaluate and put a price on the story. Knowing what scripts are available in advance will assist in being less reactive and more resilient in achieving a better process and successful resolution.

To learn about creat [...]

A False ‘Prince Charming’ Keeps ‘Sleeping Beauty’ in a Coma: On Voluntary Mediation Being the True Oxymoron of Dispute Resolution Policy

The recent publication of a study conducted for the European Parliament on Mediation, “Rebooting the Mediation Directive,” has contributed to the ongoing debate about effective mediation policy. I am the coordinator of that Study, whose results were based on 816 questionnaires completed by respondents from the 28 member states of the EU.

The Study determined that mediation in the EU is still the “Sleeping Beauty” I first heard about when I decided to enter this field 20 years ago. Despite many decades of stagnation, renewed enthusiasm and repeated efforts to revive her, the consensus seems to be that our princess is more than just asleep. The Study concluded that unless “elements o [...]

‘Is that, like, a mediation fight?’ Catch 22 for Mediators

Chicago March 2014

Lots of talk about ADR competitions on this blog, so I’ll throw my hat in the ring. Last month I took a team of students to the INADR International Law Student Mediation Tournament in Chicago (http://www.inadr.org/tournaments/law-school-tournament). This was the 13th competition and it was truly international, with 52 teams representing 17 US institutions and 22 from the rest of the world: India, Sri Lanka, Russia, Ukraine, Lithuania, Germany, Australia, England, Ireland, Scotland, Northern Ireland and Canada. This competition’s distinctive feature is that students act as mediators as well as clients and advocates.

I need to be clear about one thing – Chicago is a gas. It’s a c [...]

In Youth We Trust

On the day when the finals of the world’s largest ADR student competition starts, I could not think of any better topic for my blog posting. I have been teaching and coaching students for the last eleven years, and it has become an important part of my life and a highly rewarding experience. Consequently, I have no doubt that there is no better way of promoting ADR than bringing it closer to people in the form of reality-based simulations, exercises and role-plays. Students enjoy learning by doing, and welcome their “moot” experience enthusiastically. The competition teaches them to how to think out of the box and work together as a team.

The Willem C Vis International Commercial Arb [...]

Roots Of Construction Project Disputes Flow From Biblical Past

Have you ever wondered why the construction industry is still saddled with its culture of adversity, contractual conflict and a “who’s to blame” attitude? Or what causes job disputes to quickly escalate into full-blown claims despite the well intentioned calming efforts of the site managers?

The seeds of construction disputes are planted during the formation of the project team within the terms and conditions of the construction contract as well as the tone and attitudes of the contracting parties.

Could it be that the fertile soil in which these seeds germinate and grow is rooted in the biblical past? The Book of Genesis in the Old Testament tells the story of the first large construction p [...]

Try A Workaround

This story is for you if:

  • one of the parties to your multi-party case is irrational and an obstacle to
  • settlement;
  • the irrational party is making the case fall apart;
  • walking away could result in a much worse deal for your client.

There are several strategies you can deploy to deal with the difficult and irrational adversary, particularly when there are multiple parties to the case and most of them are settlement friendly. A promising strategy is the workaround. This approach has its basis in game theory, and in particular, the well-known research project by Professor Robert Axelrod that resulted in the book “Evolution of Cooperation.” In that project, Professor Axelrod looked at what [...]

Mediation of Wage and Hour Matters

Mediation of wage and hour matters, particularly class action cases, has developed dramatically over the past 10-12 both on a process and legal basis. New cases seem to come out weekly dealing with class certification, and companies have had to adjust their workforce management to make sure they comply with the highly technical laws that are driving this movement. Recently I was asked to participate in a radio interview with two other sought after mediators, Mark Rudy and Peter Lichtman. The podcast of the radio show can be accessed here.

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New ADR Guidelines for Scottish Lawyers: a constructive step

Law Society of Scotland
I have written before in this blog about Scotland’s slow pace of change (http://kluwermediationblog.com/2012/05/12/mediation-in-scotland-some-practical-questions-and-a-nudge-in-the-right-direction/). A naturally cautious nation, our ‘old world’ response to new ideas has generally been ‘what’s wrong with the old ones?’ I was comforted by Constantin-Adi Gavrila’s recent post on this blog which underlined that Scotland is not the only European nation whose legal profession is lukewarm about mediation.
So it is pleasing to be able to report a small but important sign of progress from this jurisdiction. In November 2013, the Law Society of Scotland published new guidance (Dispute Resolution, [...]

What went wrong with mediation?

This article was prepared by Christian-Radu Chereji and Constantin-Adi Gavrilă.

Presenting recently the results of the study on ‘Rebooting’ the Mediation Directive, Giuseppe de Palo talked about the “European Union mediation paradox” – the existence of a “highly acclaimed, efficient, effective process that very few people use”, in his own words – and the need of “rebooting” the implementation of mediation process in the EU in the light of the limited effects of current legislation upon the number of civil cases mediated.

The same situation can be seen on the other side of the Atlantic, in the US, where a number of prominent experts have pointed to the fact that, after alm [...]