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Mediation
Mediation, Arbitration and Negotiation
November 26, 2013
We compare three common dispute resolution processes - negotiation, mediation, and arbitration - in the framework of Crawford and Sobel (1982). Under negotiation, the two parties engage in (possibly arbitrarily long) face-to-face cheap talk. Under mediation, the parties communicate with a neutral third party who makes a non-binding recommendation. Under arbitration, the two parties commit to conform to the third party recommendation. We characterize and compare the optimal mediation and arbitration...
November 26, 2013
We compare three common dispute resolution processes - negotiation, mediation, and arbitration - in the framework of Crawford and Sobel (1982). Under negotiation, the two parties engage in (possibly arbitrarily long) face-to-face cheap talk. Under mediation, the parties communicate with a neutral third party who makes a non-binding recommendation. Under arbitration, the two parties commit to conform to the third party recommendation. We characterize and compare the optimal mediation and arbitration...
Lying and Mediation
November 4, 2013
Its interesting to me that when you Google “lying” and “mediation” you are redirected to “lying” (as in lying down) and “meditation”. Recently my attention was drawn back to the old issue of deception in mediation. It’s an issue that mediators, lawyers and parties engaged in mediation or negotiation do well to reflect on from time to time. Some time ago I conducted an employment-related mediation. The case did not settle on the day of the mediation and, as is usually my practice,...
November 4, 2013
Its interesting to me that when you Google “lying” and “mediation” you are redirected to “lying” (as in lying down) and “meditation”. Recently my attention was drawn back to the old issue of deception in mediation. It’s an issue that mediators, lawyers and parties engaged in mediation or negotiation do well to reflect on from time to time. Some time ago I conducted an employment-related mediation. The case did not settle on the day of the mediation and, as is usually my practice,...
How Not to Mediate
October 14, 2013
In the growing landscape of alternative dispute resolution, there is more leniency when it comes to evidentiary and civil procedures. But there are some soft skills that lawyers must learn before going into mediation. In a post on Maynard Cooper & Gale’s Employment Law Blog, Janell Ahnert outlines some key no-nos of mediation: MAKING AN AGGRESSIVE OPENING STATEMENT Ahnert suggests telling your client ahead of the mediation that he/she will have a better chance of success if you are not an overly...
October 14, 2013
In the growing landscape of alternative dispute resolution, there is more leniency when it comes to evidentiary and civil procedures. But there are some soft skills that lawyers must learn before going into mediation. In a post on Maynard Cooper & Gale’s Employment Law Blog, Janell Ahnert outlines some key no-nos of mediation: MAKING AN AGGRESSIVE OPENING STATEMENT Ahnert suggests telling your client ahead of the mediation that he/she will have a better chance of success if you are not an overly...
Press on Court-Connected Mediation and Minorities
September 27, 2013
Sharon Press (Hamline) has published Court-Connected Mediation and Minorities: Has Any Progress Been Made? in the Summer 2013 issue of the Dispute Resolution Magazine, available here. Press’s article provides a wonderful summary of concerns in mediation related to minority mediators and to minorities as parties in mediation. Regarding minority mediators, Press observes: [C]ommunity mediation began with a strong commitment to employing racially diverse personnel and volunteer mediators. The model...
September 27, 2013
Sharon Press (Hamline) has published Court-Connected Mediation and Minorities: Has Any Progress Been Made? in the Summer 2013 issue of the Dispute Resolution Magazine, available here. Press’s article provides a wonderful summary of concerns in mediation related to minority mediators and to minorities as parties in mediation. Regarding minority mediators, Press observes: [C]ommunity mediation began with a strong commitment to employing racially diverse personnel and volunteer mediators. The model...
Dignity & Respect in Mediation
September 26, 2013
My view, as I close in on 3,000 mediations conducted, is that nothing is more important to my work as a commercial mediator than the linked concepts of dignity and respect. Respect is what I do (or, sadly, sometimes don’t do) to others. Dignity is the sense of well-being that others have as a result of being treated with respect. In previous posts I have described how, for me, mediation is all about parties making “good decisions, all things considered”. In my experience, it is unrealistic...
September 26, 2013
My view, as I close in on 3,000 mediations conducted, is that nothing is more important to my work as a commercial mediator than the linked concepts of dignity and respect. Respect is what I do (or, sadly, sometimes don’t do) to others. Dignity is the sense of well-being that others have as a result of being treated with respect. In previous posts I have described how, for me, mediation is all about parties making “good decisions, all things considered”. In my experience, it is unrealistic...
Engineering Peace: Achieving the Promise of Mediation in the World’s Most Difficult Conflicts
August 30, 2013
This is the first of a series of four blog postings written by Nadja Alexander , Michael Leathes , Tina Monberg and Irena Vanenkova. Achieving the promise of mediation in conflicts that threaten the stability of societies and economies is one of the most important challenges of our time. Inspiring progress has been made in the past few years by the UN, and political leaders increasingly perceive mediation as vital for avoiding and resolving conflict at all levels in society, worldwide....
August 30, 2013
This is the first of a series of four blog postings written by Nadja Alexander , Michael Leathes , Tina Monberg and Irena Vanenkova. Achieving the promise of mediation in conflicts that threaten the stability of societies and economies is one of the most important challenges of our time. Inspiring progress has been made in the past few years by the UN, and political leaders increasingly perceive mediation as vital for avoiding and resolving conflict at all levels in society, worldwide....
Avoiding the Slow March to the Middle
August 20, 2013
The manner in which most mediations are conducted — the way most lawyers and their clients are conditioned to do it — is through a highly positional and distributive process by which the parties and counsel, through the cajoling and arm twisting of a neutral, begin at extreme and meaningless opposite ends of the spectrum and slowly and often painfully work their way through hard fought compromise, to terms that are somewhere in the middle. This long-standing tradition exists despite considerable...
August 20, 2013
The manner in which most mediations are conducted — the way most lawyers and their clients are conditioned to do it — is through a highly positional and distributive process by which the parties and counsel, through the cajoling and arm twisting of a neutral, begin at extreme and meaningless opposite ends of the spectrum and slowly and often painfully work their way through hard fought compromise, to terms that are somewhere in the middle. This long-standing tradition exists despite considerable...
Walk a Block in My Socks, Walk a Mile in Their Shoes…
July 17, 2013
Not so long ago I was a claiming party as part of a group of plaintiffs in the stead of my elderly parents in a multiparty,...
July 17, 2013
Not so long ago I was a claiming party as part of a group of plaintiffs in the stead of my elderly parents in a multiparty,...
What Insurers Want From Mediators
June 5, 2013
Steve Jobs famously surrounded himself and his colleagues at Apple with a “Reality Distortion Field.” From within the reality-free...
June 5, 2013
Steve Jobs famously surrounded himself and his colleagues at Apple with a “Reality Distortion Field.” From within the reality-free...
Refusal to Make Offer at Mediation Not Bad Faith
May 29, 2013
Plaintiffs sought sanctions against defendant for refusing to make any offer in mediation while its motion for summary judgment was pending, arguing that defendant should have provided notice that the mediation would be futile. The court denied sanctions, noting that defendant had sent an out-of-state representative to the mediation with full settlement authority, so there was no bad faith. Defendant was helped by the facts that plaintiffs were also mediating an underlying state case with another...
May 29, 2013
Plaintiffs sought sanctions against defendant for refusing to make any offer in mediation while its motion for summary judgment was pending, arguing that defendant should have provided notice that the mediation would be futile. The court denied sanctions, noting that defendant had sent an out-of-state representative to the mediation with full settlement authority, so there was no bad faith. Defendant was helped by the facts that plaintiffs were also mediating an underlying state case with another...
