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Wanting It Too Much. When to Let the Babies Cry Themselves to Sleep

Imagine a marine layer floating over a coastal town. A family in this town is hopeful that the sun will burn the fog away so they can go to the beach and enjoy the great weather. The day seems to go on forever and the sun never comes out. The family ends up being stuck in their cabin, agitating each other while the parents are trying to figure out what to do with their children who are driving them crazy. The children are totally bored and expect their parents to figure out ways to keep them busy.

Consider the same scene in the mediation room. Lawyers are antsy because there is not enough movement in the negotiation. They refuse to take the mediator’s recommendations or respond in a meanin [...]

What Mediators Know (or Can’t Help Noticing Because of Their Unusual Job)

(This is the first of three parts of a keynote address to the YMCA Conference “From Reactions to Relations” in Burton on Trent on 20 November 2014)

Here’s an interesting phenomenon. When asked to play the part of an adversarial lawyer students have no difficulty. It’s as if the script for this activity is carved into our DNA and reinforced by years of TV dramas. Yet when invited to play the role of mediator they seem both daunted and stuck. A small minority might be termed ‘natural mediators’ but for most of us this is not a usual way of behaving. Our culture doesn’t provide us with a ready model.

I want to reflect on this counterintuitive activity. What, if anything, does [...]

Mediating In The Shower?

Global Legal Post recently carried an article intriguingly entitled “Lawyers find Eureka moments in the shower“. Sadly the article itself lacked the slightly salacious promise of its title. Instead, it focused on the results of a survey of London city lawyers, indicating that those surveyed did their most creative thinking in the shower or commuting (27% in each case). By contrast, only 10% attained their creative peak in the office.

Intuitively, this doesn’t surprise me. There is inevitably (and quite properly) a rigour and a structure to office life. Institutions usually function that way, particularly the larger ones. Perhaps they need to, to avoid chaos.

But everything has [...]

Mediator’s Proposals? A Story…

I have never been a great fan of mediator’s proposals. I took the view that the mediator’s job, done well, was to help the parties to come to a solution themselves. Party autonomy and all that. Achieving a satisfactory outcome, I thought, shouldn’t require a specific suggestion by the mediator.

I have changed my view. As usual, experience is a great teacher. As is improvisation. Here’s what happened. After several hours of to-ing and fro-ing, and with a still significant gap between them, the mediator brought the principals together to meet with him, without their legal advisers (and with the advisers’ permission and encouragement). They talked for a while about their respective claims and [...]

Empirical study on international commercial mediation and conciliation

In a previous post, I shared Professor Stacie Strong’s call for blog readers to respond to her survey on international commercial mediation practice. Thank you to everyone you did.

While the final results are still pending, Prof Strong has released some preliminary results from the study.

The study, which is entitled “Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation,” was written by Professor S.I. Strong of the University of Missouri and collected detailed data on 34 different questions from 221 respondents from all over the world. Surv [...]

7 Ways to Make Your Next Mediation Successful

On 24th September Kluwer and the International Academy of Mediators (IAM) hosted their inaugural mediation webinar – ‘7 Ways to Make Your Next Mediation Successful’. Attendees joined from all over the world. Don’t worry if you couldn’t attend on the day – we’ve posted the webinar on YouTube, and it can be viewed here.

 

1. PRE-QUALIFY CASE

a. Internal (client) v. External (counsel)

i. What does tomorrow look like if dispute resolved?

ii. Discuss client’s fantasies about case/outcome

iii. Justice?

iv. Rewrite the past?

v. Mourning process

b. Selection of mediator

c. Have mediator talk to other side

d. Identify who is attending from each side

e. What materials might be useful [...]

The Urgent Need for Data: Are the Needs of Users and the Dispute Resolution Market Misaligned?

and Michael Leathes

Seismic tremors emanating from London’s Guildhall on October 29th 2014 are set to send change-inducing shockwaves, around the international dispute resolution community. It is widely known that dispute resolution’s customers, the disputants, have different needs and interests from the supply side of the market such as external counsel, ADR providers, and educators. The shock comes from the initial data generated at this Convention, suggesting just how far out of alignment the supply side may be with the views and needs of the users. Additional data is needed on an international scale.

A high tech Convention on Shaping the Future of International Dispute Resolution hosted [...]

Scotland: The Final Word?

“The key to doing well lies not in overcoming others,
but in eliciting their co-operation.”
Robert Axelrod

“Although negotiation takes place every day, it is not easy to do well. Standard strategies for negotiation often leave people dissatisfied, worn out or alienated…..”
Roger Fisher and William Ury

For probably the final time, I am writing about the referendum which was recently held in Scotland. Now, a Commission has been set up to address the need for additional powers, which the “No” vote has prompted.

Collaborative Scotland and Core Solutions have submitted views. These may be of interest to all of those who are pondering how the future of politics and our mediation work may i [...]

Common Ground

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.

Got Milk?

If we offered you a tall glass of ice cold milk after you just finished eating a plate of freshly baked chocolate chip cookies, would you accept our offer? We [...]

The Singapore Mediation Lecture 2014

The Singapore Mediation Lecture 2014 was delivered on 26 September 2014 by Mr. Brad Berenson, the Vice President and Senior Counsel for Litigation and Legal Policy of General Electric. The third lecture in this series, the Singapore Mediation Lecture is a result of a partnership between the Singapore Mediation Centre, the Singapore Management University School of Law and Harry Elias Partnership. Previous speakers were the former president of Singapore, Mr. S R Nathan (2012) and Lord Woolf (2013).

The title of the lecture was “The Mediation Imperative: Why Successful Companies Embrace Mediation”. I do not propose to reproduce the speech here. The speech will be published in the Asian Jou [...]