Voices from the Outback

I live in New Zealand, just 3 hours plane ride from the buzz of global cities like Sydney and Melbourne or the golden sands of Queensland.

Yet many here know almost nothing about the Australian mediation scenery.

There are possibly two reasons for this.

First, our two countries do most of their talking on the sports field, with Australia speaking much louder of late, I'm afraid.

Second, reactive devaluation is in play here (and our Canadian cousins will know what I mean) - so if they suggest it; we'll ignore it.

But Australia has a lot to say about mediation, with a number of world class commentators increasingly being heard above the din.

These from the recent the 9th National Mediation Conference 2008 held in Perth this month:

1. Hilary Astor - Professor of Dispute Resolution, Faculty of Law, Sydney University;

Transforming the landscape of mediation (podcast 27 mins) - a journey from mediation's inception in Australia through to her personal vision of the landscape 10 years hence. She began by acknowledging contributions of the indigenous peoples and Australia's own elders of mediation.

Prof Astor's publications here

2. John Wade - Professor at the Faculty of Law, Bond University;

Persuasion in negotiation and mediation (podcast 38 mins) - offering a framework for patterns of behaviour and persuasion observed in high conflict negotiations in civil and family disputes.

Previous blahblah posts on John Wade.

More Australian voices from the conference here.

Mediators forced to work for free

Seems to me our Southern Californian cousins should be active on this issue:

L.A. bar opposes controversial resolution to pay mediators who work with local courts

Heads-Up: Master Mediator Institute

In a Q & A session today at The National Arbitration Forum blog - Bob Creo, CPR's Master Mediator, let the cat out of the bag and disclosed his plans for a Master Mediator Institute.

Bob says it's an idea that he's had rattling around in his head for a number of years.

The Master Mediator Institute is to be a think-tank focused on research and applied theories for mediators involved in facilitated decision making. The focus is on the advancement, not through training but through developing and applying theory of practice of commercial mediators at the highest level.

Bob also talks about the apprenticeship program he ran at his Pittsburgh ADR practice for two years.

ACR's 8th Annual Conference in Texas

This from Re:Solutions : Day 1 of the ACR National Conference.

I really hope we hear from other bloggers who are attending the ACR's 8th Annual Conference Aspirations, Possibilities, and Realities:Expanding Principles,Practice, and Research in a Changing World .

It starts today (Wednesday) and goes to Saturday in Austin, Texas.

I know Tammy Lenski is there and has a session (#7.03) on Saturday morning with Nancy Hudgins. And that would be a combination not to miss.

UK > London > Dispute resolution > Mediators

Stop Press: The UK Legal 500 is just out and has a section devoted to mediators.

Hot on the heels of my post about UK's mediation aristocracy comes the Coronation!

The Legal 500 ranks London mediators into 3 bands.

And of interest to the up and comers is a comment 'Demand continues to rise, and as some of mediation’s pioneers like Henry Brown and to a lesser extent Presiley Baxendale QC have retired, and others still (like David Shapiro) have scaled down their practices, the opportunity to spread work a little wider than an established few, appears, at last, to be a realistic prospect'.

Those in the top band are;

JANE ANDREWARTHA
DAVID CORNES
PHILLIP HOWELL-RICHARDSON
MICHEL KALLIPETIS QC
BILL MARSH
PHILIP NAUGHTON QC
NICHOLAS PRYOR
STEPHEN RUTTLE QC
DAVID SHAPIRO
TONY WILLIS
BILL WOOD QC

Here for bands 2 & 3

Names I recognise include;

Tony Willis of Brick Court Chambers 'continues to set the benchmark against which commercial mediators measure their practices, and few measure up. For big disputes and sophisticated clients, he is an obvious first choice. He brings integrity and intellectual rigour to each mediation, coupled with the kudos and client care focus of a former Clifford Chance managing partner. Nevertheless, his style is ‘ light’, ‘ self-deprecating’ and ‘ fastidious’'

Mark Jackson-Stops of In Place of Strife 'is a polished performer, and a highly experienced mediator who stands out in the field for his ‘ impressive commercial mindset’. Clients find him ‘ able’, ‘ adept’ and possessed of a self-effacing streak which enables him to push hard without provoking resistance'

David Richbell 'is the undisputed doyen of mediation training. Highly experienced, clients describe him as ‘ relaxed but focused’: a ‘talented all-rounder who can deal with any subject’. Other mediators are in awe of his skills; he is the archetypal facilitator who ‘ brings to the mediation process his considerable negotiation experience gained over many years acting as a surveyor'

Hat tip: In Place of Strife

Good advice from Harvard's own agony aunt

[Click on Q or A to read more]

From the September edition of PON's Negotiation newsletter

UK mediation group aims is to create 'badge of seniority' analogous to Silk

In a sign of our maturing profession, a small group of UK's mediation aristocracy known as The Panel of Independent Mediators plan to create 'a badge of seniority in the mediation profession analogous to the QC kite mark enjoyed by senior barristers' according to the latest issue of The Mediator Magazine.

PIM, formed in the late '90's, is thought to handle a staggering one in five of all UK mediations from within its ranks. The collective has 18 veteran mediators on its books, all of whom have been mediating for more than 10 years.

From this day on the group formally known as PIM will henceforth be known as PIM Senior Mediators and aims to grow significantly, initially in the UK and later beyond [read more].

And yes, by all means ask - but don't wait by the phone - membership remains by invitation only.

P.S - this blog, in an effort to curry favour at the Royal Court, has featured many PIM mediators in the past, including;

Henry Brown
David Miles and David Richbell
Tony Willis (Chair of PIM)
David Shapiro
Andrew Paton, Jane Andrewartha and Michel Kallipetis QC

Free video: An introduction to managing conflict

Via Bill Waters' Campus ADR Tech Blog - a well produced video by Rick Olshak introducing conflict and styles of managing it.

Watch or download here.

Great for non commercial use by anyone teaching Mediation 101 (22 minutes).

Dunnett, Halsey and a guy called Milton

Stephen Cantle from Kennedys last week posted an interesting take on the UK line of cases that sees the court encouraging parties to mediate because of the threat of costs penalty if they decline - even where they eventually win at trial.

He concludes that when you look at what cases such as Dunnett – and the later Court of Appeal decision in Halsey v Milton Keynes NHS Trust 2004 – have actually achieved in practice, the answer is depressing.

'Recently, I was involved in mediation where the only benefit was to increase the costs. During the course of a frustrating day, it became clear that our opponents would only settle at maximum value. Although this was not a novel experience, I started thinking about the usefulness of judicial warnings of the consequences of a refusal to mediate.

Why do people agree to mediate if they have no intention of reaching a compromise? The short answer is they know that a refusal to mediate may well result in their being penalised in costs, even if they are subsequently successful at trial'[read more]

For context read; Dunnett lives on - first thoughts on Halsey v Milton Keynes NHS

Egg-graders are licensed - why aren't you?

How Mediators Can Obtain Professional Certification And Thereby Elevate Their Profession: A look at IMI's voluntary credentialing program by Judith Meyer, Co-Vice Chair of IMI's Independent Standards Commission, and Michael Leathes, executive director of IMI.

"In many U.S. states, egg-graders, well-diggers, farriers, plumbers, midwives, manicurists, barbers and hairdressers must be licensed. Notaries public, doctors, lawyers, ministers and accountants must be licensed in every state. Licensing requirements are generally imposed in order to ensure that the practitioners of the licensed professions meet a certain level of competence, making them less likely to harm the public. Mediation, however, is not one of the licensed professions...'[read more]

Defining “success” in dispute resolution training

Just out from John Wade at Bond University in sunny Queensland - a must read for anyone who dabbles in mediation training: Defining “success” in negotiation and other dispute resolution training.

"Once upon a time in the far off kingdom of Learningland, three negotiation courses were held during the same week in the capital city Rarelyfail.Course A was held in the Hilton Hotel, with delicious food and three speakers. Two of the speakers were famous practitioner negotiators who regularly appeared in the popular media. Their fields of expertise were international trade with China, and hostage rescue. The third was an academic who writes popular books and who teaches on occasion at a high status US university... [read more]

Are mediators corrupting civil justice?

Vickie Pynchon posts two feisty pieces here and here in response to my original article, which even caught the eye of The Wall Street Journal.

And by doing so takes the 'are mediators corrupting civil justice?' debate far further than I would have dared.

Great stuff, but surely other ADR practitioners are moved to comment on what Harvard's Prof. Murray had to say about the integrity of our field?

East Meets West Today

East Meets West: An International Dialogue on Mediation and Med-Arb in the U.S. and China

2nd Videoconference between Beijing Arbitration Commission and Straus Institute

Wednesday, September 17, 6 pm - 8 pm
Mendenhall Appellate Courtroom

Pepperdine University School of Law

Get along there today - details here

View the BAC/Pepperdine first video conference in 2007 here

Settling is bad for business

News this week that a well respected San Francisco litigation shop is in trouble and may close.

The main reason being offered is that Heller Ehrman has settled too many of its cases and gave away 60% of the firm's revenue... highlighting once again the tightrope attorneys walk when weighing up the various tensions (client and firm) involved in deciding whether to negotiate or mediate.

'So what has happened to Heller, which has long ranked as one of the top firms in San Francisco and one of the top litigation shops in the country? For starters, the firm had many huge litigation matters settle in rapid succession last year, including its representation of Ernst & Young in securities fraud suits against AOL and Cendant. About one-fourth of its litigation business settled last year–a huge blow given that litigation makes up about 60% of the firm’s revenue, according to a Heller attorney. And that revenue has been hard to make up in a soft litigation market' [read more]

So, should a law firm's interests be part of the decision to mediate?

Those interests might be around future fees, especially if there is a contingency deal where the firm effectively has an equity stake in the asset (aka claim) they now share with the client.

Those interests might also be around getting partners into the courtroom on a strong case and being seen to win it, any number of competing interests...

The Privatizing of our Civil Justice System (and the insidious corruption of ADR)

When you are fully immersed in mediation every day, it's easy to underestimate how strongly some people feel about it - take for example Harvard Law School's Peter Murray and his acerbic piece, The Privatization of Civil Justice that was published in the summer edition of the American Judicature Society's Judicature magazine.

No free full text link but as best I can, and mindful of tripping that copyright wire, I want to give you the flavour of it;

First, Professor Murray traverses the usual vanishing trial complaint, after which he outlines his view of the consequences of less public litigation and quickly focuses in on arbitrators and mediators who rely on repeat players for their work.

He then builds a conspiracy theory that 'arbitrators and mediators can handle and decide cases more or less in their own economic interests without fear that their activities and decisions will be subject to effective judicial oversight'.

With headings such as 'Delegation of Public Power' and 'The Dark Side' Prof. Murray opines that mediators are under the same pressure as arbitrators 'to produce results that are acceptable to the repeat players. Mediators know that large repeat players such as insurance companies will not refer cases to mediators who fail to produce acceptable settlements... The problem with private ADR services is that they are private. Private actors will always act in maximise their well-being under whatever system they function'.

To highlight Murray's view that there is 'a kind of insidious corruption' undermining the integrity of our field, I quite unfairly pick out the money quotes from his piece;

'Resolutions embodied in agreements based on economic exhaustion, inability reasonably to predict or reach a judicial outcome, or risk aversion are not economically efficient and do not foster confidence in the norms or processes of law'

'Organizations of ADR professionals such as JAMS or Endispute in the United States offer panoplies of dispute resolution services to meet the needs of their customers. The field is crowded and the competition among mediators to obtain cases remains keen. The problem with this competitive private industry in dispute resolution services is that the pressure on the professionals to garner more cases inevitably leads to a kind of insidious corruption that undermines the integrity of private dispute resolution as an alternative to public justice. The fact that the employment of every ADR professional depends on a private party's choice to hire that professional or sponsoring organization logically means that every ADR professional is under direct economic pressure to do whatever he or she can to encourage parties to exercise their freedom of choice in his or her favor...

Mediators know that large repeat players such as insurance companies will not refer cases to mediators who fail to produce acceptable settlements. By the same token, mediators who are able to convince individual claimants to reach agreements favorable to the repeat players can expect repeat business...

Private actors will always act to maximize their well-being under whatever system they function. The private ADR system under which decision makers are paid on a case-by-case basis inevitably tends to reward those who satisfy the repeat players to the detriment of objective merits...

The only parties who can monitor the performance of dispute resolution professionals, be they arbitrators or mediators, are those who are regularly involved in dispute resolution proceedings. It is the repeat players who are able to "keep score."

The susceptibility of private entrepreneurial dispute resolvers to influence by hope for future business is one of the primary justifications for systems of justice designed to insulate public decision makers from such influence...

...the form in which private justice is currently dispensed facilitates the kind of subtle corruption just mentioned and impedes review and discovery...

Arbitrators and mediators can handle and decide cases more or less in their own economic interests without fear that their activities and decisions will be subject to effective judicial oversight.

ADR gives private, profit-making enterprises a certain amount of public power that can be misused in their private interests, and then clothes their activities in secrecy and dispenses with oversight to maximize the practical possibility that such misuse might occur.

I mean, yes there is a vanishing trial discussion to be had to go along with the rise and rise of court alternatives but is the main debate really the neutrality, or worse the corrupting influence, of mediators?

It sounds to me Mr Murray that you have bagggage - care to share?

October Journal of Conflict Resolution out

The latest issue of the Journal of Conflict Resolution (October 2008) is out.

Full text PDF's cost but you can check the abstracts for free.

Contents;

Benjamin O. Fordham: Economic Interests and Congressional Voting on Security Issues [Abstract] [PDF]

Jaroslav Tir and Michael Jasinski: Domestic-Level Diversionary Theory of War: Targeting Ethnic Minorities [Abstract] [PDF]

Massimiliano Landi and Domenico Colucci: Rational and Boundedly Rational Behavior in a Binary Choice Sender–Receiver Game [Abstract] [PDF]

Jonathan W. Keller and Yi Edward Yang: Leadership Style, Decision Context, and the Poliheuristic Theory of Decision Making: An Experimental Analysis [Abstract] [PDF]

Eran Halperin: Group-based Hatred in Intractable Conflict in Israel [Abstract] [PDF]

Benjamin L. Read and Ethan Michelson: Mediating the Mediation Debate: Conflict Resolution and the Local State in China [Abstract] [PDF]

Using Videos at Mediation

If you are a lawyer in a personal injury jury jurisdiction yesterday's Using Videos at Mediation by Guy Kornblum is worth a read.

Simply brilliant: CEDR mediator speed dating today in London

Wednesday 10 September, 4pm @ Bird & Bird, 15 Fetter Lane, London.

Details here.

You may want to choose your own subjects to discuss but CEDR has come up with four questions which might make an interesting topics for the speed dates:
1) Why did you become a mediator?
2) What is the best way to work with lawyers in a mediation?
3) What classifies as a good result for a client in a mediation?
4) When is and when isn't mediation good value for money?

As with most speed dating events there will be score cards for participants to say who they would like to chat to again in more depth.

To book your place email jzoricich@cedr.com

The Law Office of Donald D. Vanarelli gets mediation

These guys are on to it.

'Trials, as a method of dispute resolution, have been trending downward for years. For example, the number of tort trials in the federal courts declined by 80% from 1985 to 2003. Of the 98,786 tort cases resolved in federal court in 2002 and 2003, only 1,647, or 1.7%, were decided by trial. The other 98.3% of the cases resolved in those years were either dismissed prior to trial, or settled. The situation is similar in the state courts. Nationwide, the number of tort trials decided in the state courts after a trial declined 23% from 1992 to 2001. Of the states reporting in 2004, the percentage of civil cases decided by trial in the state courts was ½ of 1%...

Like other trial attorneys, I have literally spent weeks in trial preparation. But I have never spent anywhere near that long preparing for a mediation, settlement negotiation or other type of alternative dispute resolution session...' [read more]

Evaluative mediation a hot button

Some really interesting comments at mediate.com here in response to Jeff Kichaven's recent Evaluative Mediation Techniques Help Achieve Success article.


Hat tip to Deb Clapshaw

Commercial Mediation Survey: D.I.Y

I have had some offline correspondence around my mediation survey posted yesterday - yes, by all means feel free to use it.

I found it to be a great marketing exercise giving me a good excuse to contact my best repeat clients and those who I had not heard from in a while.

Some tips if you are thinking of doing your own survey;

1. Don't be tempted to send out a paper based form - make sure your survey is online. It's so much easier for respondents. I produced mine via my mediate.com dynamic website that allows me to easily produce such forms.

If you don't have a mediate.com website (and you should because you will go a long way to find such a cost effective online presence) you can use the free and easy to use surveymonkey.com to produce your own online form.

2. Before I sent the survey link by email I rang my target clients to ask for their assistance with the survey - again another excuse to make contact and I got a number of invitations for a coffee and even the promise of some new jobs!

3. Send respondents a paper copy of the summarised/sanitised results - why paper? Because you can include a personalised handwritten note thanking them for their time and highlighting a couple of interesting themes in the collective responses. I also included a chocolate fish.

4. My wonderful online buddies, Diane Levin and Tammy Lenski gave me valuable feedback on my draft questions and overall design of my survey before I took it on the road. These guys really know their oats.

Make sure someone apart from you test drives your survey or at the very least get some design tips from Survey Monkey's design video tutorial.

Commercial Mediation Survey

Over the last couple of months I have polled, in a fairly unscientific way, some busy commercial litigators who I know to integrate mediation into their practice rather than simply using it to fight fires in an ad hoc kind of way.

You may be interested in their answers to questions like these;

>Rank the relative significance of these factors when picking a mediator

>Rank the relative significance of these factors when picking a case for mediation

>How often do you use mediation to resolve cases as compared with direct negotiation

>Why would you elect a judicial settlement conference over a private mediation?

>Generally, how do you rate your experience of mediator performance?

>Do you think repeat use of a mediator diminishes impartiality? . If yes, what experiences have you had?

>Have you ever had concerns with mediators failing to observe confidentiality in private sessions - please explain

>What is your best experience with a mediator?

>What is your worst experience with a mediator?

>What are the major drawback in using mediation?

>If there is one issue you would like addressed by the mediation community - what is it?

If you are an attorney who integrates mediation into your dispute resolution practice you may like to take the survey yourself here.

So this is how a mediation blog dies...

Nice knowing you ZapaBlog coming to us from the good people at Zapacap Mediation

Two new mediate.com articles up today

Worth a read;

Evaluative Mediation Techniques Help Achieve Success by L.A's Jeff Kichaven

'A mediator's evaluations can take as many forms as there are stars in the heavens... the most common are:
1. Ask pointed questions that raise issues or imply answers.
2. Give an analysis of the case, including strengths and weaknesses.
3. Make predictions about likely court results.
Suggest possible resolutions or specific settlements.
4. Apply some pressure...' [read more]

Summarising by UK's Alan Sharland from Hillingdon Community Mediation

'Summarising is the second effective communication skill which forms part of the cyclical process of Listening - Summarising - Questioning that promotes Effective Communication and Effective Conflict Resolution...' [read more]

Securitization Litigation & The Debt Crisis: What's on the Horizon?

Here for a JAMS' piece on recent trends in mortgage and asset backed securities litigation and effective strategies for dealing with these cases, including how ADR can be used to successfully resolve complex securities disputes.