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.[...]
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, [...]
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 [...]
The annual ICC Commercial Mediation Competition is about to kick off in Paris, France on 7 February 2014 and as I write this 500 students from over 40 countries will be making their way to The City of Light by trains, planes and bus.
Teams are drawn from law and business schools across the globe and 120 of the world’s leading commercial mediators and corporate representatives will play their part as judges and mediators.
Over 6 days in the dead of a Paris winter there will be 200+ mock mediation sessions with numerous training programmes and social events - all held in the smartest of Paris law firms like Clifford Chance, Linklaters, Eversheds and McDermott Will & Emery.
So, to the stud [...]
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Litigators are constantly faced with the decision of what stylistic methods to use in settlement negotiations to maximize value for the client and achieve overall objectives. Usually a strict black and white approach to each case will miss out on the shades of grey that are needed to navigate the settlement waters. Litigators must operate in a world of uncertainty, wher [...]
Recently, talking to a very experienced mediator, we started to describe a particular practice of an attorney-mediator during one of his cases. At the end, we asked: was that mediation? Our friend told us that no, it wasn’t mediation. We asked why and a long silence fell over our table. Then he confessed that it cannot tell exactly why, but somehow he felt uncomfortable with the practices we described and certainly he would not attempt to use them during his own cases. But he also agreed that, in extremis, those kinds of practices can be considered as being part of the mediation process and there were a lot of [...]
This is where I did my best work in Christmas week – in the twilight zone between the joint session room to the right of the water cooler and the private caucus room off to the left by the green bins.
Corridors can be furtive and risky spaces on mediation days – ‘don’t ask me to cross the centre line, but I’m quite close to it’ kinds of places, ideal for short line ups of lawyers or parties.
My technique has evolved quite differently in each of these three spaces: caucus, joint and corridor– so differently I wish someone would legitimise the humble corridor encounter by giving it a fancy name and teaching a course on it.
My take on corridor encounters is that they are very diff [...]
It is almost a consensus nowadays that large and small companies, regardless of their business activity or industry segment, must integrate in their corporate and operational strategies a variety of social, economical, and environmental elements in order to not only effectively satisfy all stakeholders, but also to remain sustainable and competitive in the long run.
This trend started a few years back when financial investors, in addition to looking into their traditional investment tools (ratios, financial analysis), decided to add a social element into their decision making process, creating sustainability ratios in order to measure and evaluate other dimensions which, until then, had been [...]
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Litigators tend to divide themselves into groups who have common motives, a well accepted division of roles, established social rank, accepted norms and values and appropriate punishment if their values are violated. These groups are naturally pitted against other groups or organizations with differing or opposite views and values. Like a tribal unit, our views tend to follow a narrow path that leads us in a very specific direction whose goal is to achie [...]
There are times in mediation when emotions are so powerful that it’s impossible to think of anything else. This week I witnessed, at the very least, despair, fear, anger, hurt, sadness, care, love and relief. They can be fleeting – a flicker of amusement, a nod of recognition, a disdainful glance. Or they can be worn on the sleeve from start to finish, manifest as tears, a raised voice or over-anxious babbling.
Last month I listened as two senior employees rehearsed the same complaints against each other for a second meeting. One attacked; the other defended; the other attacked back, the first defended; and so on. But throughout the exchange my inner voice was saying: “Look at [...]