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In: Access To Justice

I’ve been working my way through research notes for my upcoming book and today came across these excerpts on the mediator’s job from Winslade and Monk’s 2000 classic, Narrative Mediation. If you’re a mediator and you haven’t read it, you ought to. They have several worthy sequels, too. “If mediation is about creating new meanings in a dispute where existing meanings have become stale or stuck, then deconstructive listening and deconstructive questioning are useful tools in this creative task…The mediator’s task is to unpack the suitcase and take out the pieces and hold them up for view by the parties. This unpacking involving adopting aRead More →

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Editorial Note: Mediate.com has published a series of peer reviewed articles and videos under the collective title Seven Keys to Unlock Mediation’s Golden Age. The objective of the Seven Keys is to encourage discussion among all stakeholders on navigating mediation’s best future. Here is the Table of Contents. The Seven Keys are: Leadership, Data, Education, Profession, Technology, Government and Usage, each with supportive articles and videos, contributed by some 40 leading authors around the world. The Seven Keys articles recognize mediation’s extraordinary versatility: a) resolving disputes, b) deal making, c) managing interpersonal disputes in families and communities, e) designing systems for schools and the workplace, f) peace-making between groups, g) and nationalRead More →

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For those disputants who have found that there is no pertinent binding or legal remedy to their problems or where direct negotiations have failed when a party wants to punish another, they may feel that they are at an impasse with no direction.  Some parties may even desire to send a message to the public, an industry or individual. Where a legal injunction is required to prevent an ongoing or future harm, they may want to seek something quicker than litigation, thereby decreasing pressure on the both parties.  They can have options.  They can choose the system that suits their needs; after all, it’s aboutRead More →

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There has been a great deal of discussion lately about nondisclosure agreements (NDAs) in arbitration. The problem is that the discussion often includes misperceptions regarding the “secrecy” of arbitration. In fact, all arbitration is not secret. Instead, arbitration is private, but not necessarily confidential. I wrote about this “privacy paradox” in 2005. Nonetheless, some parties do include confidentiality clauses and/or NDAs in their arbitration agreements, especially when they are concerned with guarding sensitive information or preventing unwanted publicity. This is especially the case in the context of sophisticated businesses, involving parties who are cognizant of distinctions between privacy and confidentiality in arbitration. For example, parties areRead More →

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During past eight months, due to the coronavirus pandemic, mediators, lawyers and clients have experienced something once inconceivable: Almost all mediations have been conducted remotely. What have we learned from this experience so far, and how can we improve it? What have we gained? First and foremost, during this pandemic, JAMS neutrals have settled thousands of cases on-line. Mediators, myself included, who were skeptical about our ability to connect with parties on a screen have been proved wrong. Using speaker view on a videoconferencing platform can bring us even closer to parties than when they are seated across a conference room table. Some individual participantsRead More →

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In: Access To Justice, Articles, Technology

Seven months after the outbreak of the COVID-19 pandemic, many mediations have been conducted online. While some mediators have been mediating online since before the pandemic, many mediators have only begun their online practice in the past few months. Now that online mediation has become normalized, how have mediators handled the shift? How does in-person mediation differ from online mediation, and what have mediators done to capitalize on those differences to excel in virtual mediations? What is the future of online dispute resolution (ODR) and virtual mediation? This series of articles seeks to answer those questions and more through the results of a series ofRead More →

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In: Access To Justice, Articles

One of the most important things a mediator must do- if not the most important- is to build trust and rapport with the parties. In pre-Covid days, this was a bit easier; the mediator could sit face to face with each party and schmooze. Now, we are reduced to being a square highlighted in yellow/green on a computer screen. So, how do we build trust and rapport remotely? A recent blog post on Harvard’s PONS (April 5, 2021) by Katie Shonk entitled “Methods of Dispute Resolution: Building Trust in Online Mediation” discusses a chapter in a forthcoming book by Creighton University Professor Noam Ebner onRead More →

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Steve Jobs famously wore the same black turtleneck, blue jeans and New Balance sneakers every day. Do you know why (bonus points if you can name the designer of his turtleneck without Googling it. Hint: it wasn’t off the rack from Gap. Answer below)? It was to minimize his number of daily decisions, especially early in the day. Choices are wonderful, right? We demand choices because we want a wide variety of them – or so we think. Many successful individuals like Steve Jobs, Mark Zuckerberg, and Albert Einstein understood that less time spent on making minor decisions meant more brainpower and time for everythingRead More →

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In: Access To Justice, Articles, Technology

This paper is based on a keynote speech delivered to the Nebraska Mediation Association on August 6, 2020. Nearly 18 months ago, as the pandemic brought improbable yet real terror, mediation practice faced a transitional moment. Like other professional practices—ours was gripped by uncertainty, confusion, and even panic. In the space of a few days, and in order to continue our practices, we were driven to recast our work, reshape our approach, learn new technology, educate our clients, and reconsider our techniques and strategies. Those who did not have a Zoom account quickly subscribed. Conventional face-to face sessions were transformed in an instant to onlineRead More →

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In: Access To Justice, Articles, Business

In his recent book, Online Courts and The Future of Justice, author Richard Susskind posits, “…litigants do not really want courts, judges, lawyers, rules of procedure, and the rest. More likely, they want not to have a problem at all. Or to have their disputes resolved fairly and with finality. Or they might want vindication. Or someone to listen to and empathize with their grievances. Or an apology. Many lawyers and professionals baulk [sic] at this line of outcome-thinking. They insist that what a client surely needs, and will always need, is a trusted adviser—an empathetic and expert human counsellor. But this is to confuseRead More →