The problem: Many cases involve multiple claims and have limited resources to divide up. For example, if several people are injured and an insurance policy has been tendered, the injured victims have to come up with a method by which a fair division of the policy proceeds can be determined.
The solution: Use an old-fashioned ballot, just like in an election.
While there are numerous variations, here is one simple approach: each plaintiff or his counsel will fill out a ballot (prepared by the mediator) in which they provide a confidential percentage apportionment of the proceeds.
After receiving the ballots from everyone, the mediator “digests” the data and then presents the parties with [...]
Another new mediation venture in Scotland: last week saw the launch of University of Strathclyde Mediation Clinic (http://www.strath.ac.uk/humanities/lawschool/mediationclinic/ ). While by no means a new idea, it’s the first in this jurisdiction. The response took us by surprise. We were graced with the presence of the University’s Principal, a judge, lawyers, sponsors, advice agencies, academics and students. I even made a wee speech, of which more below.
It has set me thinking about a remark made by Peter Adler on a recent visit to Scotland. Talking about the state of mediation in the USA he spoke of ‘high need, high supply, low demand’. I’m sure the same phenomenon exists all over t [...]
In what I hope readers of this blog will consider a deft segue, I want to shift from the successful judicial mediation that I highlighted last month to one that didn’t proceed quite so smoothly.
Deals negotiated in mediation tend to hold or, at least, that’s been the conventional wisdom. The theory is that because of the consensual nature of the process parties tend to abide by the agreements they’ve struck in mediation.
In Ontario we’ve just had a rare high profile example of a situation where that wasn’t the case. A news summary of the decision in Kidd v. The Canada Life Assurance Co. can be read here and the full decision of Justice Perrel can be seen here. Both the article and th [...]
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Transaction bargaining is different than traditional bargaining, and provides more options to settle. Here’s why:
The Traditional Negotiation Approach
Traditional bargainers, in the typical dollar dispute where for instance the plaintiff is seeking $2m, typically the defense seeks a demand to settle which ends up being predictably outside the range of case value such as $12m. This is done to give the plaintiff some bargaining room. Naturally the defendant is offended by such a demand as they see the case somewhere in [...]
On 4 September 2010, Christchurch – gateway to New Zealand’s scenic South Island – suffered a major 7.1 earthquake and before it could recover a further 6.3 earthquake shook the city on 22 February 2011 killing 185 people and damaging well over one third of the buildings in the CBD and tens of thousands of residential homes in outlying areas. The worst affected areas have been designated “red zones” and much of this land will not be built on again. For 18 months Christchurch continued to be rocked by thousands of after-shocks, delaying rebuilding and repair decisions.
You can see a facinating animated time lapse map of all 11730 quakes starting with the 7.1 shock here (give it tim [...]
By Jeffrey Krivis and Mariam Zadeh
The X factor in mediation is the ability to influence the other side to pay more or take less. Finding the elusive X factor is the challenge for most mediators, and is often done in the face of uncertainty. This uncertainty takes many forms and can serve as a barrier if not acknowledged and addressed by the parties. Taking the uncertainty out of the negotiation requires the mediator to convey to each of the parties the ability to be strategic while at the same time presenting each negotiation move from a positive perspective.
If we offered you a tall glass of ice cold milk after you just finished eating a plate of freshly baked chocolate chip cook [...]
Last Sunday in Edinburgh I took part in a panel on the subject of Intractable Conflict. The principal speaker was Oliver Ramsbotham, Emeritus Professor of Conflict Resolution at the University of Bradford, and author of ‘Transforming Violent Conflict: Radical Disagreement, Dialogue and Survival’ (Abingdon, Oxon: Routledge, 2010). He described a familiar, if depressing, phenomenon in which the best efforts of all parties, including mediators, negotiators and politicians, appear to leave conflict untouched. Indeed, in the case of Israel/Palestinian it seems to get worse every year.
I make no claims to expertise regarding that conflict. However, listening to others with great passion and kn [...]
Mediator is New Premier in Ontario
Following my rant last month about the need for more mediators in public policy-making, the Liberal Party of Ontario has chosen a former mediator, Kathleen Wynne, as their new leader and, consequently, as the first woman Premier of Ontario. I had no idea this Blog had so much influence. See the full story here.
Unsurprisingly Premier Wynne began her tenure with a “conciliatory” Throne Speech (that’s the way we get the government rolling here in Ontario) appealing for “common ground” with opposition parties and others embroiled in disputes with her government.
Stay tuned to see how that works out.
P.S. – It seems that Premier Wynne is following in [...]
In a complex business dispute involving substantial and potentially unlimited exposure, a sophisticated defendant was not willing to pay the amount it determined it would actually take to settle, so they became primarily concerned about how to ‘cap’ their exposure on the case. Based on an excellent working relationship that developed between general counsel for the defendant and trial counsel for the plaintiffs, the parties negotiated a convoluted but efficient agreement. The terms of the agreement allowed for finality yet further mediation before submission to a binding award. Here are the skeleton terms:
Interesting ripples on the interweb about mediator ‘styles’ – (see the LinkedIn group ‘ADR, Conflict Resolution and Mediation Exchange’). One discussion thread was prompted by a nice ‘Emperor’s New Clothes’ question: can a mediator have any style or does the style vary from situation to situation?
The discussion has ranged from styles to models, with some fascinating contributions from practitioners, experienced and not. The topic must be in the zeitgeist, because two journals have also touched on it in recent issues. Kenneth Kressel and James Wall, two distinguished mediation researchers, edit a Special Issue on the subject in Negotiation and Conflict Management Research (2012, Vol.5, i [...]