Regional Conflict Insights


 

                                      ADR NEWS                                            Remembering the May 2017 Campaign.

The World Mediation Organization (WMO) has published a Code of Ethics 

The Following is the Preamble to the Code of Ethics

This Code of Ethics articulates a common set of values upon which mediators and conflict negotiators build their professional and scientific work. The Code is intended to provide both the general principles and the rules to cover professional situations encountered by mediators. It has as its primary goal the welfare and protection of the individuals and groups with whom mediators work. It is the individual responsibility of each mediator to aspire to the highest possible standards of conduct in research, teaching, practice, and service.

The development of a dynamic set of ethical standards for a mediator's work-related conduct requires a personal commitment to a lifelong effort to act ethically; to encourage ethical behavior by students, supervisors, supervisees, employers, employees, and colleagues; and to consult with others as needed concerning ethical problems. Each mediator supplements, but does not violate, the values and rules specified in the Code of Ethics based on guidance drawn from personal values, culture, and experience.

The following General Principles are aspirational and serve as a guide for mediators in determining ethical courses of action in various contexts. They exemplify the highest ideals of professional conduct.

Read more at:http://www.worldmediation.org/code-of-ethics.html

Consumer Disputes, a New Market for (Young) French Mediators?

At long last, on 20 August 2015, the French Government transposed a 2013 EU directive regulating mediation for consumer disputes. This new piece of legislation, which aims at increasing the use of mediation in sales and service consumer contracts, could create new business opportunities for mediators.

The big picture : the idea behind the Directive

The Directive on consumer ADR (Directive 2013/11/EU of 21 May 2013 on alternative dispute resolution for consumer disputes, to be more specific), laid out basic principles giving each member some leeway as to the practicalities of how to implement the Directive. One might wonder why the EU would want Member States to legislate and align their positions in consumer ADR. The big idea behind the Directive is pretty simple; if cheap, reliable and simple mechanisms are put in place to tackle consumer disputes in the EU; better access to justice will be provided to EU citizens, and consumers will be better protected. This in turn will create a climate in which consumers are encouraged to buy (more) goods and services within their own and other Member States, and facilitate the free movement of goods and services (which in itself is one of the central pillars of the EU).

Read more at:http://kluwermediationblog.com/2015/09/10/consumer-disputes-a-new-market-for-young-french-mediators/

Kluwer Mediation - Latest Entries

A Perspective On Mediation In The Middle East

Posted: 10 Jul 2015 12:56 AM PDT

by Rachelle Abi Lahoud 

Université Panthéon Assas (Paris II)
for Young Mediators Initiative (YMI)

I am a young Lebanese graduate in mediation and currently training to practice in Paris. I frequently get asked the following questions: What is the mediation situation in the Middle East? Is it because your country is a non-mediation country that you are training in Europe? What is the mediation situation in the Middle East? What are the Middle Eastern jurisdictions’ approaches to mediation? Are all Middle Eastern countries non-mediation countries? What are the advantages of mediation in these countries?

When I reflect on these questions, I ask myself: what is a “non-mediation country”? What makes a country a “mediation country”?

While browsing this blog, I came across an article entitled: What’s Your Country’s Mediation-Friendly Ranking? by Nadja Alexanders, that addresses the question of how to select a jurisdiction for the mediation of client matters. Nadja concludes her post by identifying a set of ten variables presented in a series of ten questions to help determine the “mediation-friendly ranking” of a given country.

I used these variables as a reference point and answered the questions for several countries in the Middle East – namely: Lebanon, Jordan, UAE, Qatar, Egypt, and Saudi-Arabia – in an attempt to shed more light on mediation in the Middle East.

Most of the above mentioned countries are commercially prosperous and have commercial litigations for over a billion dollar per year. However, the judicial system in most of these countries will not be able to support the big number of disputes as underlined by apublication of the Investment Climate Department of the World Bank Group about the Alternative dispute resolution program in the Middle East: Numerous studies and analysis by the World Bank and other donors consistently point to complex litigation procedures and inefficient judicial systems as a main impediment to private sector development in the region. Specifically, the costly and lengthy process of contract enforcement has been identified as a critical barrier for the private sector, especially due to lack of confidence in the court system, excessively high court fees and lengthy litigation processes.

One would expect them to have sophisticated legal and judicial infrastructure that ensures effective and fast dispute resolution techniques. However my answers to Nadja’s questions revealed low though different “mediation-friendly” ranking for these jurisdictions. It is important to note that Dubai and Qatar have two separate legal jurisdictions each: the State of Dubai and the Dubai International Financial Centre Courts (DIFC courts), the State of Qatar and the Qatar Financial Centre (QFC). The DIFC courts include mediation in certain procedures and their applicable Rules promote the advantages of the recourse to mediation and conciliation as alternative means of resolving disputes or particular issues. The QFC Civil and Commercial Courts Regulations and Procedural Rules encourage, and in some cases require the parties to resolve their dispute by resorting to mediation or other forms of alternative dispute resolution when appropriate.

DIFC and QFC courts have adopted mediation laws but the recourse to mediation in these jurisdictions is still gaining traction.

Despite the differences in the development of commercial mediation within the aforementioned countries, we can identify common actions that could be taken to render these jurisdictions more mediation-friendly. The first action would be to raise public awareness on the subject of mediation, through promotional campaigns targeted at both potential mediators and potential disputants and through trainings and support provided to lawyers, judges and practitioners.

The second action would need to be conducted on the legislative front, such as lobbying for the enactment of laws regulating domestic and cross-border mediation. It would be interesting, for example, to create a legal system where mediation would be a mandatory first step which does not prejudice the right of the parties to recourse to courts (bearing in mind that in any case mediation can never be mandatory stricto sensu as the Parties remain free not to cooperate or to disregard this first step without violating a party’s right to access to justice). The legislative front also includes public law action, involving the signature of treaties regulating mediation. On this front, it is also important to emphasize in the legislation the advantage of confidentiality guaranteed by this alternative mean of dispute resolution by adopting stringent laws on confidentiality. It is equally important to set up effective options for the enforceability of mediated settlement agreement, in addition to the means afforded by the law under the theory of contract.

The third action would need to be undertaken on the ground by putting in practice mediation through the inclusion of binding multi-tiered dispute resolution clauses, whose enforceability cannot be disputed.

The situation of mediation and the actions taken to improve this situation differ from one country to another. Hence, Jordan has the 2006 Mediation Act while other mentioned countries do not have dedicated legislation yet. The UAE Law does not include provisions related to mediation with the exception of the law no 16 of 2009 in Dubai legislation that establishes a Centre for Amicable Resolution of Disputes for limited types of disputes. In Qatar, Egypt, and Lebanon mediation is governed by contractual provision as there are no provisions regulating domestic or foreign mediation. In Saudi Courts, Shari’ah encourages mediation and Judges have an obligation to encourage the parties to settle but there is not any explicit law on mediation. These examples illustrate why we cannot describe the situation of Mediation in the Middle East as one.

I would like to choose one of the above mentioned countries, and give specific examples of the daily challenges young mediators and young mediation centres are facing, and share with you some of the actions we are taking to overcome these obstacles.

Being Lebanese, I would certainly pick Lebanon, but this is not the main reason why I would choose to describe the situation of mediation in Lebanon. I selected this country for the following reasons. First, the Lebanese banking sector is preeminent in the region. The sophistication of this sector and the associated large number of potential disputes make Banks prone to using mediation, should this alternative dispute resolution mechanism be introduced properly to them. It is clear that banks are interested in saving time and money and mediation can help them save both. Second, Lebanon is a political conflict zone, where mediation is used as a main peace-building tool. As a matter of fact several NGOs use this dispute resolution technique. For example, Mediators Beyond Borders International, whom I am a member of, and whose training institute I attended, focus on using mediation as a peace-building tool and on empowering women in mediation. It would be interesting if we can extend the use to commercial conflict. Third, Lebanon already has three established mediation centres, and another few centres being developed. These centres also give high-level trainings such as the Professional Mediation Centre (CPM) in Beirut and Tripoli. Fourth, family mediation is widely practiced in Lebanon. This might be surprising but it is worth noting that in Lebanon divorce is regulated by complex religious laws. Parties try to avoid divorce or at least go to mediation before going to divorce. Some religious laws require prior mediation before going to court. For instance, the Canonical Code article 1362 states: “Before accepting a case, and should there be a reasonable hope of reconciliation, the judge shall put in place all the means available to him in order for him to try to bring the couple to rejoin in marriage and restore their marital bonds.” People often prefer going to mediation because it helps them preserve their personal relationships.

At this point I think you are wondering why commercial mediation is not a common mechanism in commercial disputes in a country described by the International Finance Corporation of the World Bank as having long judicial procedures? And, why mediation is used in cross-cultural, political, family disputes and not commercial disputes?

Lebanon does not have a mediation law, only a project of law. The Lebanese civil code contains provisions in article 1035 and following on conciliation: ‘’Settlement is a contract by which the parties make mutual concessions, in order to end a conflict or to prevent a conflict.’’ Lebanon did not adopt the Commercial Model Law on International Commercial Conciliation (UNCITRAL), and is not a signatory to any treaty relating to mediation. It has only ratified in 2003 the ICSID Convention, which makes provision for conciliation proceedings.

Furthermore, it seems like the public lacks awareness of the advantages of mediation in commercial litigations and that lawyers sometimes feel threatened by mediation.

In order to overcome these problems, different stakeholders are taking actions. The Beirut Bar Association, in collaboration with different private Lebanese mediation centres and the Lebanese Chamber of Commerce mediation centre, are promoting public understanding of the benefits of commercial mediation through conferences and related events. They have also recently added mediation training in the lawyers’ bar-school. Additionally, mediation is being widely promoted among judges. Finally and most importantly, many actions are being taken in order to enact the law on mediation in the parliament.

In summary, Lebanon is facing several challenges on its way to becoming a “mediation-friendly country”, but young motivated mediators and established centres are taking concrete actions to overcome these hurdles.

I hope this post gives you an idea about the general situation in the Middle East, and Lebanon in particular. As you can see, multiple opportunities exist to exchange experience and knowledge between Middle-eastern countries and more “mediation-friendly countries”, or countries where the practice of mediation is more developed.

                                                 Mediators discussing experiences with Justice Belle                                    

Mediators in Saint Lucia are hard at work buidling their organisation , the Mediators Forum. So far the Forum has sponsored a number of training sessions for trained mediators to improve their skills. The Forum has also met with various interest groups such as the Insurance Association to enocourage them to subscribe to a mediation programme for small claims.

All of the mediators involved have been previouslyy trained by the Court Connected Mediation Project in Saint Lucia. That project is headed by A Committte which is Chaired by Justice Francis Belle. On  Saturday 28th February, 2015  the mediators met at the High Court when Justice Belle answered various questions put to him by previous speakers about several issues, including ethical issues.

At a more recent meetingon 28th March  the mediators also heard from the Regional Coordinator of the Court Connected Mediation Project's Mr Francis Compton. So far the training sessions have focused on land and family disputes.

Caribbean News Now reports;

"Canada funds mediation programme in BarbadosPublished on April 6, 2015
BRIDGETOWN, Barbados -- The IMPACT Justice Project, which is funded by the government of Canada, starts its regional community mediation training programme in Barbados on Monday (presumably Monday 13th April, 2015) . The opening address will be delivered by Adriel Brathwaite QC, attorney general and minister of home affairs in Barbados."

The IMPACT Justice Project starts with a  training course which is  being held at the Cave Hill Campus of the University of the West Indies (UWI) and will be conducted on behalf of the IMPACT Justice Project by Ann Diaz of the Department of Behavioural Sciences, Faculty of Social Sciences, UWI, St Augustine Campus, Trinidad and Tobago, and Kumar Hathiramani of the ADR Association of Barbados.


                                                    PEACEBUILDING REBOOT

By:    Sheldon Himelfarb             

This script includes the birth of an industry -- the peacetech industry -- where democratized access to information and capital produce innovations that both save lives and create jobs. It's the story of a hacker space that's launched in Baghdad with a $30,000 Kickstarter crowdfunding campaign, giving young entrepreneurs a place to share ideas for solving Iraqi problems and plans for making money while doing it.

Yes, this information and capital access is too slow in coming to war torn countries, but it is coming nonetheless. Conflict zones that were once information and technology wastelands yield wondrous new information on human sentiment -- the DNA of conflict -- thanks to the penetration of social media, cell phones and other data sources. Extraordinary progress in machine learning and predictive analytics is revolutionizing conflict early warning, while local communities are pioneering creative response strategies to tackle age old drivers of conflict from religion to resources, from corruption to gender. PeaceTXT, IPaidABribe.com, Hollaback, LRA Tracker, Groundviews, YaLa, Exchange 2.0, UProxy, etc. The list of peacetech projects -- tech, media and data initiatives designed to inflect the causes of deadly violence -- is exploding.

Fueling the explosion is a new type of funder on the scene. The overwhelming majority of conflict resolution work done in the 1990s and 2000s was funded by governments. But today's peacetech projects are launched by digital humanitarians bootstrapping their own startups, often with some financial or in-kind support from technology companies and foundations created by technology titans and their spouses: Gates, Omidyar, Skoll, Bezos, and Case, to name just a few. We are also seeing a rethink of traditional non-profit models, with organizations like Ushahidi, Frontline SMS, and Development Seed creating for-profit entities designed to produce different in-kind revenue flows, but which are still true to their tech-for-social good roots.


http://www.huffingtonpost.com/sheldon-himelfarb/peacebuilding-reboot_b_6511016.html

                                   BEYOND RIGHT AND WRONG STORIES OF JUSTICE AND FORGIVENESS

                                                          Dealing With Difficult People


In his new book Good for You, Great for Me: Finding the Trading Zone and Winning at Win-Win Negotiation, Massachusetts Institute of Technology professor Lawrence Susskind offers the following steps for coping with difficult counterparts who seem irrational at the bargaining table:

1. Don’t respond to irrational behavior in kind, lest you make a bad situation even worse.
2. Don’t make unilateral concessions in an effort to win over the other party. Doing so will only encourage them to continue their bad behavior.
3. Don’t lose your cool out of frustration. Instead, take a break before you lose your temper.
4. Consider bringing others from your organization to the table, and encourage your counterpart to bring colleagues with him or her as well.
5. Put forth proposals that meet your interests very well and that seem to meet your counterpart’s interests at least reasonably well.
6. Prepare for each interaction carefully. Before sitting down to negotiate, talk with others in your organization and rehearse as often as possible.
7. After each meeting, summarize what transpired in writing and distribute copies to everyone involved. This will put your counterpart on notice that you are aware of his game.
8. If your counterpart refuses to respond to a set of reasonable proposals by a reasonable deadline, understand that it may be time to walk away and pursue other alternatives—then do it.

Download Mediation Secrets for Better Business Negotiations: Top Techniques from Mediation Training Experts and you will discover mediation techniques for selecting the right mediator, understand the mediation process and learn how to engage the mediator to ensure a good outcome.


Read more at:http://www.pon.harvard.edu/daily/mediation/when-dealing-with-difficult-people-focus-on-your-goals/

Watch European Parliament Study on Mediation Time and Costs Savings and Effective Mediation Policy

Denver police mediation program gets national spotlight

By Jordan Steffen
The Denver Post

POSTED:   03/25/2014 05:14:06 PM MDT | UPDATED:   9 DAYS AGO


A Denver program that puts in the same room police officers and community members who file complaints against them is serving as a national model as the independent police monitor heads to St. Louis to help the city create a program of its own.

On Monday, independent monitor Nicholas Mitchell will travel to St. Louis to meet with a team researching mediation programs in other cities.

Since its inception in 2006, the Office of the Independent Monitor's Mediation Program has completed more than 365 successful mediations. The program — a collaborative effort by the Denver Police Department, Denver Sheriff's Department and Community Mediation Concepts — allows a person who filed a complaint about an officer to sit down with that officer and a third-party mediator to discuss their complaint and the interaction that led to it.

The independent monitor refers very few complaints to mediation, and participation is completely voluntary for both the community member and the officer, Mitchell said.

"We do more than investigate. We are also proactively trying to improve the relationship between the department and the community, and mediation is a key element," Mitchell said.

Cpl. Robert Hart has been with the Denver Police Department for 16 years and has completed the mediation program twice.



Read more: Denver police mediation program gets national spotlight - The Denver Post http://www.denverpost.com/news/ci_25418794/denver-police-mediation-program-gets-national-spotlight#ixzz2xrYqk9b9 

 Chang Ai-Lien

SINGAPORE- More people here are turning to mediation in place of lawsuits to solve disputes, because it saves them time and hefty legal costs, and gives them a say in the outcome.

In eight years, mediation figures have jumped fourfold to about 200 cases this year at the Singapore Mediation Centre (SMC), which deals with many of the bigger cases.

"We have been intensifying our efforts to promote mediation to lawyers and companies, and persuading people to use mediation as a first resort," said the centre's executive director, Mr Loong Seng Onn.

During mediation, a neutral person works with the feuding parties to resolve their differences. The people involved make their own decisions, usually with the help of their lawyers, and cases are often resolved within a day.

Three in four of its cases are settled amicably this way, said the centre.

More lawyers too are coming round to the idea of mediation. In fact, added Mr Loong, most of the time, it is the lawyers who advise their clients to opt for mediation.

Lawyer Kuah Boon Theng, who specialises in medical cases, said that she often recommends it. "Medical cases can involve people with serious illnesses or those still struggling to deal with a bereavement, and they can be very emotional for the parties involved," she said.

"Sometimes, it is not about the money. What the patient or his family are looking for is an opportunity for the medical professional to listen and empathise.

"When you can get all the parties around the table to speak to each other, share how they feel and get things off their chest, the situation can often be resolved."

 Read more at: http://news.asiaone.com/news/singapore/more-choosing-mediation-over-court?page=0%2C0

                                                  BLUE MONDAY FACT OR FICTION?

While no actual scientific studies have ever backed up any claims about Blue Monday, statistics do show that many couples may see their relationship take a depressing turn this month, as January is the most popular month for divorce.

In fact, divorcedepot.co.uk – a do-it-yourself divorce service – says the first Monday of the new year is the most popular day to file for divorce.

"Through the holidays people want to celebrate one last time with their families intact and they don’t want to their kids to associate divorce with the holidays," divorce coach Deborah Moskovitch told CTV's Canada AM on Monday.

However, she said once the holidays are over, it’s normal for couples to do a little "soul searching."

"They decided this is it, I don't want to go through another year with my partner."



Read more: http://www.ctvnews.ca/health/blue-monday-the-most-depressing-day-of-the-year-comes-early-1.1619372#ixzz2poJYXPnu

 

Using Independent Mediators to Ripen Protracted Conflicts

Protracted conflicts are some of the most resistant to third-party interventions. These are conflicts that have withstood the test of time. The dehumanization of the “other” becomes part of the belligerents’ identity and parties lock their positions around solutions that are perceived to be incompatible.  Over time, leaders get hooked on resources and power which takes primacy over the root causes of the conflict.

Parasites, patrons, and external parties enmesh themselves in the conflict and embed the conflict in a regional network of self-reinforcing dynamics. Using the consensus-building skills of an independent mediator can help move protracted conflicts towards a resolution.

Ripeness is not just a state but a process that can requires human agency to achieve.

A readiness to engage in peace talks can emanate from different levels of society. Citizen initiatives can trigger a break from the status quo by harnessing the power of numbers to shift conflict dynamics. Mediators can be useful when trying to build public consensus around priority issues and to facilitate inter-group collaboration in a strategy that seeks to leverage the power of coalitions to affect change and create a willingness to negotiate at the track-I level.

Another area where a mediator can be useful is with the public’s perception of the “other.” By bringing opinion leaders from different sides of the fault lines together, a mediator can help parties deconstruct internalized images and help participants shift negative messages away from the person and back onto the problems.

 Follow Nathalie at : http://www.communitiesintransition.com/UsingIndependentMediatorstoRipenProtractedConflicts?goback=%2Egde_2539171_member_5822023502605086723#%21

               Negotiating the Kraft Foods  vs  Starbucks Dispute       


 A three-year dispute between Starbucks and Kraft Foods over distribution of Starbucks packaged coffee in grocery stores was resolved on November 12, when an arbitrator determined that Starbucks had breached its agreement with Kraft and ordered the coffeemaker to pay the food giant $2.75 billion, Stephanie Strom reported in The New York Times.

The dispute dates back to an agreement negotiated in 1998 when Kraft began selling Starbucks packaged coffee through grocery stores. In 2010, with sales of its ground whole bean coffee reaching $500 million annually, Starbucks offered Kraft $750 million to end their agreement.

Starbucks wanted greater flexibility to sell the single-serve coffee pods that were taking off in the market at the time. The company’s agreement with Kraft limited Starbucks to selling pods that worked in Kraft’s Tassimo machines. Starbucks was in danger of being left behind in a race for market share against Green Mountain Coffee’s Keurig system and K-Cup single serving packs.

Kraft objected to the deal termination, but Starbucks broke off the business relationship nonetheless and began selling K-Cup packs.

Since then, Starbucks’ share of the single-serving pod market has grown 18.4% according to Strom. And, no longer sharing profits with Kraft, Starbucks has seen its profits for its grocery store products (including bottled drinks) climb by 47% over the last two years, with $1.4 billion in revenues in fiscal 2013.

The parties’ disputes over Starbucks’ termination of their partnership moved to arbitration when the two sides were unable to settle on their own. The payment will be made to Mondelez, a snack and confectionary business that spun off Kraft in 2012.

Starbucks disagreed with the arbitrator’s decision. “We believe Kraft did not deliver on its responsibilities to our brand under the agreement,” the company said in a statement.

The business dispute illustrates how fluid the nature of marketplace trends can cause negotiated business agreements to become undesirable over time. In their original agreement, Kraft and Starbucks would have been wise to agree upon set times for renegotiation, during which they would have had leeway to revisit existing deal terms in the face of changed economic and industry conditions.

They could also have negotiated conditions for ending the agreement early, such as cancellation penalties and other forms of compensation.

In business negotiations, there is often little way of telling how an agreement will unfold over time. Smart negotiators anticipate this uncertainty – and the potential for a costly business dispute – and build mechanisms for coping with it into their deals.

Find out more at: pon@law.harvard.edu

 Reuters) - A group of Western and Arab envoys will visit jailed Muslim Brotherhood leader Khairat El-Shater as they seek to mediate an end to Egypt's crisis, Al Jazeera reported on Sunday.

The channel gave no further details on the meeting.

The envoys from the United States, the European Union, Qatar and the United Arab Emirates have been meeting allies of deposed Egyptian President Mohamed Mursi and the army-backed administration that replaced him in a bid to defuse the crisis.

Shater is deputy leader of the Brotherhood and its main political strategist.

(Reporting by Ali Abdelatti; Writing by Tom Perry; Editing by Doina Chiacu)

                                                                          Forgiveness

Forgiveness is a word that has a variety of definitions, meanings, and connotations. Depending on personal beliefs and values, forgiveness has different roles in peoples’ lives. Therefore, when someone tells you they forgive you, there are a multitude of meanings that may behind it. These varying views of forgiveness can best be seen by the plethora of ideas and motivations offered by the authors of our in-class texts.

Dr. Luskin, author of Forgive For Good believes that forgiveness is something positive mainly for the forgiver, leading to health and happiness. According to Luskin when someone has forgiven you the forgiver has taken back their power, taken responsibility for how they feel, taken control of their feelings, and made a powerful choice to do these things. However, Luskin makes clear that forgiving someone is not condoning unkindness, forgetting something painful, excusing poor behavior, a denial of hurt, or a reconciliation. Rather, it is a choice to improve one’s health and happiness and to live in the present, not the past. Thus, the forgiver is personally motivated.

In “The New Freedom of Forgiveness” the author explains that the definition of forgiveness that Luskin sets forth is typical in “western individualistic societies.” However, the article asserts that Luskin does not offer a definition of forgiveness at all, rather, that the phrases Luskin uses are a prerequisite to forgiveness. The author states that forgiveness is risking a return to conversation and a resumption of relationship. Thus, the author asserts that when someone says they forgive you there is reconciliation.

The author of “Healing Our Relationships” seems to take the middle ground and explains that forgiveness is relational in nature. It is either about restoring a relationship connection in the real world or restoring the connection that lives inside the self. Thus, forgiveness may have more than one meaning. As Luskin believed, forgiveness may be about restoring our connection to ourself, not our relationship with another person. Forgiveness under this approach is not necessarily reconciliation. However, the author indicates that forgiveness may also be about restoring a relationship connection with another person. Thus leaving the idea of reconciliation open. As is seen, this article takes the middle road in its approach to forgiveness.

After assessing these varying and contradicting views of what forgiveness is, I believe that when someone says they forgive you, it can mean three things. First of all, as Luskin describes, it may mean that they want to free themselves of the pain that you caused and move on with their life, which does not necessarily involve you. Secondly, it may also mean that the forgiver is allowing a conversation about the relationship to take place, where the two parties will ultimately reconcile and move on, together. Thirdly, forgivers may also forgive to free themself of pain and take back power, while at the same time considering, not automatically, reconciliation.

When someone says that they forgive you, I do not believe that there is one single way to describe what they mean. Rather, it is a fact-dependent statement that cannot be confined to one small definition. Although I believe that there are three possible meanings behind forgiveness, the varying definitions and theories presented by authors exemplify the endless possibilities of motivations and meanings of forgiveness. If a family member came to me and requested advice on how to talk herself into forgiving an unfaithful spouse, I would seek guidance from Luskin in Forgive for Good. In this book, Luskin offers advice about forgiveness and ways to forgive and live a happier life because of it. Thus, he would be a source of knowledge in this situation.

First of all, as Luskin explains, I would tell my family member that she cannot “talk herself” into forgiving her ex-husband. Rather, forgiveness is a choice. Luskin writes, “We will not forgive just because we think we should.” Therefore, I would encourage my family member to make forgiveness a choice, not something that she is talking herself into. Once this is explained, then I will describe Luskin’s three preconditions necessary to forgive. First, know what your feelings are about what happened. Second, be clear about the action that wronged you. Third, share your experience with at least one or two trusted people, myself included. As long as my family member has already satisfied these requirements, then we can proceed with the process of forgiveness.

After these initial steps I would help my family member understand what forgiveness is, as Luskin explains this is a major obstacle in forgiveness. I would tell her that there is no need to repair her relationship with the ex-husband just because she forgives him, nor does forgiveness mean that she must forget what happened. Rather, Luskin explains and I would re-iterate, that forgiveness is a feeling of peace that emerges as you take the hurt less personally, take responsibility for how you feel, and become a hero instead of a victim in the story you tell.

I would then discuss the benefits of forgiveness with my family member. One benefit of forgiveness that Luskin describes is that after forgiveness we can give more love and care to the important people in our lives. I feel that this is an important benefit to discuss with my family member because after three years of divorce, she deserves the opportunity to focus on special people in the present, not the past. I would explain that by forgiving she would be freeing herself of the past so that she can nurture the valuable, current, relationships in her life.

In addition, I would tell my family member that by forgiving she is not forgetting. In fact, it is important that she remember. By remembering what happened she will be able to ensure that infidelity does not happen to her again. In addition, it will allow her to praise herself for her forgiveness. By praising herself she will be able to acknowledge her courage and persistence that led to overcoming the wounds of the past.

Luskin also explains how one can bring themself to forgive, which I would share with my family member. First, I will tell her that she needs to focus her mind on beauty, love, and forgiveness. She must spend more time focusing on gratitude and love rather than grievances. By doing this she will be able to take responsibility for how she feels, an important step in forgiveness. As Luskin says, we alone control what we focus on. Secondly, I will ask her to challenge her unenforceable rules so that she can develop realistic hopes and wishes. She needs to know that no matter how good the rule is, there are always people to break it. Therefore, her rule that her spouse should not be unfaithful was a good rule, but there are always people to break the rule, such as her ex-husband. Her ex-husband already broke the rule; she can only hope that no one else does. Acknowledging this will likely help my family member to stop re-living the effect of the broken rule. I believe that by following the steps that Luskin has set forth, I will be able to encourage my family member to choose to forgive her ex-husband.

My personal view about how an attorney or mediator can appropriately explore and encourage forgiveness with a person who has unfairly suffered a serious injury is that they should play a passive role in the process. Specifically, I feel that attorneys and mediators should not expect or tell their clients to forgive. Rather, they should offer practical advice in a neutral manner about the positive aspects of forgiveness.

The first step in exploring and encouraging forgiveness with your client is to determine why they are upset and what their thoughts are on forgiveness. By determining the state of mind of a client before offering advice, an attorney or mediator will be able to tailor their comments to the client specifically. Furthermore, it gives the client an opportunity to discuss the injury with a trusted person; something that Luskin writes is a necessary prerequisite to forgiveness.

An example of tailoring comments to a client’s specific needs while still remaining neutral and passive is if the client is religious. An attorney or mediator in this situation might ask the client to share their religion’s thoughts on forgiveness. Thus, the client is reminded of their religious view of forgiveness without the attorney or mediator saying, “You are Christian so you really should forgive.” When the client is asked to analyze their own beliefs and apply them to the situation at hand, it forces them to take responsibility for their feelings. This responsibility is a necessary part of forgiveness according to Luskin. As seen in this example and countless others, it is important for the attorney or mediator to remember that forgiveness is a personal choice and not something that can be forced upon a client.

Although I believe the attorney or mediator should be a passive party to a client’s forgiveness, I do think there should be an open dialogue. An attorney or mediator may express what they believe to be the positive effects of forgiveness and how it could benefit the client. As Luskin writes, an apology can lead the client to a feeling of peace, to taking back their power, and taking responsibility for how they feel. Thus, an attorney or mediator may tell the client that they will likely feel better about the impending trial/mediation/outcome of the case if they are able to forgive. By forgiving the offending party, the client might find peace that would not be available solely through money. However, it is important that the attorney or mediator explain these positive outcomes without pressuring the client to forgive. There are two reasons for this, first if the client forgives only after pressure from an attorney then this is likely not a true forgiveness. Secondly, the client may feel as if the attorney or mediator is belittling their injury if they instantly tell the client to forgive.

In addition, it is important that an attorney or client explain what forgiveness is not. According to Luskin forgiveness is not forgetting that something painful happened, excusing poor behavior, minimalizing hurt, a reconciliation, or a giving up of all feelings. By explaining what forgiveness is not, the attorney or mediator will help the client see how personally beneficial forgiveness can be because forgiveness does not have to be given for the offending party. In addition, by explaining what forgiveness is not the client may feel relieved because they do not have to worry about sending the wrong message to the offender.

Personally, I believe that using the skills and ideas found in our class texts, an attorney or mediator should explore and encourage forgiveness in a neutral, passive manner. There should be an open communication, but this should be limited to encouragement for the client’s sake, there should not be any demands for forgiveness.

By Melissa Barcena

See:http://www.adrtimes.com/articles/2013/7/26/apology-forgiveness-and-reconciliation.html?utm_medium=email&utm_campaign=Weekly+ADR+Times++Articles++News+-++Weekly+Wrap&utm_content=Weekly+ADR+Times++Articles++News+-++Weekly+Wrap+CID_f5d2edaea498fc3b3d885bff16372191&utm_source=Campaign+Monitor

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Conflict Resolution Handouts for the Workplace

3rd December 2012 | Sebastian David Lees 




Below is our list of popular workplace Conflict Resolution handouts and worksheets for you to use for training purposes. These excellent handouts are best suited to corporate/ workplace mediation training sessions, but are flexible enough to be used in other sectors (healthcare, education or family mediation for example). Some are simple handouts that contain one exercise while others are complete training modules with scenarios, exercises and tests; so be sure to check that the material meets your needs before downloading.

Read more at http://www.conflictgateway.com/features/327-conflict-resolution-worksheets-for-the-workplace-.html


The landscape of ADR in the business world is changing.

The International Institute for Conflict Prevention & Resolution (CPR) recently announced its new “pledge” by Fortune 500 elites to commit to sustainable dispute resolution management systems to reduce costs and boost global competitive edge. Hon. William H. Webster, Chair, CPR Board of Directors says “The 21st Century Corporate ADR Pledge ushers in a new era for ADR and revolutionizes the culture of litigation that has hampered Corporate America.” He adds, “If the majority of our businesses and their leaders pledge to pursue the policies and practices we propose and adopt an integrated conflict resolution program, collectively, we can significantly reduce the time and financial burdens associated with litigation, more effectively bolster our position among the global business elite and, ultimately, evolve to become a culture of conflict prevention and resolution.”  

Read full article at: http://www.adrtimes.com/articles/2013/3/14/cutting-costs-in-court-will-mediation-adr-save-the-day.html?utm_medium=email&utm_campaign=Winter+2013+-+ADR+Times+Perspectives+-+Commercial+Mediation++Law&utm_content=Winter+2013+-+ADR+Times+Perspectives+-+Commercial+Mediation++Law+CID_6556a3912b464e7b84596bae4b1de707&utm_source=Campaign%20Monitor&utm_term=Streamline%20SettleCutting%20Costs%20in%20Court%20Will%20Mediation%20%20ADR%20Save%20the%20Day

                                                              Corporate Lawyers Using ADR ?

 A just-released study of dispute resolution practices in Fortune 1,000 corporations shows that many large companies are using binding arbitration — adjudication with private judges — less often and relying more on mediated negotiation and other approaches aimed at getting disputes settled more informally, quickly and inexpensively. The study, based on a 2011 survey of corporate counsel developed by researchers at Cornell and Pepperdine universities with input from the International Institute for Conflict Prevention & Resolution (CPR), indicates that although the approaches of large corporations vary widely, their decisions about how to manage conflict usually boil down to issues of control.

Three decades ago, leading corporate counsel were in the forefront of efforts to avoid the costs and risks of Rambo-style litigation — what some have called a "quiet revolution" in dispute resolution. They began using approaches like minitrial and negotiation with the help of mediators. Thanks in part to U.S. Supreme Court decisions promoting the enforcement of arbitration agreements, binding arbitration became even more important as a substitute for public trial. A 1997 Cornell survey of Fortune 1,000 corporate counsel chronicled these developments and suggested a bright future for mediation and arbitration. Corporate counsel expressed positive views of many perceived benefits of these options, including savings of time and cost and more satisfactory, durable results.

Read more at:http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202593174039&Businesses_and_conflict_Its_all_about_control&goback=%2Egde_1096187_member_225628686&slreturn=20130227202238

 

A Mediator’s Letter to Santa Claus

[Author's note: Christmas is just around the corner and as with last year, I thought I would indulge by writing something whimsical. For those readers who do not celebrate or like Christmas; or those who do not believe in Santa Claus; or those who generally don't like whimsy, please accept my apologies. I promise that my entry next month will return to the usual programming.]

Dear Santa,

It’s been a long time since I have written a letter to you and am a bit rusty. I hope you will forgive that.

How are you? I hope you are in good health despite what people have been saying about your weight gain and lack of exercise. I also hope that Mrs. Claus, the reindeers and the elves are doing well. Please give my warmest wishes to all of them.

I am writing to tell you of my Christmas wishes. My friends laughed at me when I told them I was going to write to you. They said I, as an adult, was too old! They even said that because I am a lawyer, I am on your naughty list.

Well, I am an adult but adults have dreams and wishes too and I hope that I am not disqualified from writing to you simply because I am a child stuck in an adult’s body.

As for being naughty, I must admit that I am a lawyer and that during this past year, I haven’t been all nice. But I have been more nice than naughty and I teach and help people to resolve conflicts amicably so I hope that counts for something.

When I was 8, I used to write to you to ask for presents I wanted for myself. I guess this letter is no different. I am asking to write for presents but this time not for myself.

In working with people in conflict, I can’t help but notice that there are a number of things that make conflict worse and make it harder for parties to resolve their problems and to move on.

The first thing I notice is that parties often have a “I am right” attitude. Of course this must mean that the other person is wrong. One of the things that I have to do is to get them to realise that there are many truths, and that their truth is not the only one and not necessarily the “real” or “correct” one. It would really help if you could give the world the gift of perspective and understanding. Then, they will be better able to put themselves in the other party’s shoes and see it from their point of view. And at least, even if they do not agree with the other party’s point of view, they can understand and appreciate it.

The second thing I notice is that parties in conflict often feel isolated and separate from the other party. They only focus on the conflict and the bad feelings between them and the other party and cannot or will not see the commonalities that they share. I have to help them see that they are better off working with one another than to act separately. It would help if you could give them the gift of empathy and connection. Then they will be able to reconnect as human beings to solve their mutual problem.

The final thing I notice is that parties find it hard to accept solutions that are good for their future because they are constantly looking backwards. It is a bit like driving a car while only looking in the rearview mirror. I have to help them let go of the past so that they can move on with their lives. It would help if you could give them the gift of forgiveness and healing.

I know some of my friends will ask me why I don’t just ask for world peace. I guess I could have, but I figure that if more people had the gifts above, we’re one step closer to creating world peace for ourselves.

I know you have lots of letters to read and much work to do before Christmas so I’ll end here.

Take care Santa and Merry Christmas!

Cheers

Joel

P.S. I’ll be putting out some milk and cookies for you as usual. I bought some of those cookies you like so much.
P.P.S. Please give Rudolph a pat from me. He’s my favourite!
P.P.P.S. I hope the elves aren’t fighting. If you need a mediator, you know where to find me!

 

Training: Transformative Dialogue: Principles and Practice, Nansen Center and the Institute for the Study of Conflict Transformation, Norway

 

for more information see visit http://www.transformativedialogue.com/index.html

January 28 - February 1, 2013 - Lillehammer, Norway

Organized by the Nansen Center for Peace and Dialogue and the Institute for the Study of Conflict Transformation.

Trainers: Erik Cleven, Vesna Matovic and Judith A. Saul.

Transformative Dialogue is an approach to conflict intervention in settings of ethnic and political conflict that focuses on interaction rather than problem-solving. Its goal is to change the quality of conflict interactions between members of a community, supporting an increase in positive and/or pro-social interaction. It values party decision-making above intervener goals.

This five-day training will focus on how interveners can practice this kind of party-driven dialogue and support communities as they wrestle with the challenges of post-conflict development. It is designed for people with in working with communities in conflict, including violent conflict.

Topics covered include:

The relational approach to conflict

The application of that approach interpersonally and in settings of ethno-political conflict

The components of Transformative Dialogue

The core skills of relational conflict intervention and their application

Understanding power and identity from a relational perspective

Relational approaches to monitoring and evaluation

Erik Cleven is currently a PhD candidate in the Department of Political Science at Purdue University, Indiana, and a member of the board of the Institute for the Study of Conflict Transformation. He has facilitated interethnic dialogue between Russians and Chechens and with numerous groups from the former Yugoslavia.

Vesna Matovic is Head of Training and Learning at International Alert. She holds a doctorate in psychology and has worked for many years as a consultant, trainer and facilitator on conflict issues.

Judith A. Saul has over two decades of experience in mediation, facilitation and training. She founded a community mediation center in Ithaca, NY and was its Executive Director for more than 25 years. She is a Fellow of the Institute for the Study of Conflict Transformation and has provided training throughout the U.S. and internationally.

The three trainers have extensive experience in conducting dialogues in Africa, the Balkans and the former Soviet Union and in training others in conflict interventions based on relational principles.

There is a maximum of 25 participants, whom will be admitted to the course in the order of their registrations.

The course fee is NOK 10.000 (EUR 1.350/USD 1.765), and includes accommodation, all meals, course material, and an excursion.

Payments will have to be received within a week after notification.

Participants have to cover their travel costs to and from Lillehammer in addition to the course fee.

Please contact post(at)peace.no to receive the application form.


for more information visit http://www.transformativedialogue.com/index.html

 

Is Arbitration Equal of Litigation?

That is the question asked by columnist and contributor to Jurist, online journal of University of Pittsburgh School of Law, Shafiq Jamoos.

Jamoos examined a number of factors such as (1) quality of decision making, (2) decision fairness, (3) the impartiality and independence by involved decision makers, (4) the time and cost of arbitration vis-à-vis litigation, (5) the flexibility of each forum in respecting special needs of parties and (6) the quality of enforcement.

The quality of decision making in arbitration is enhanced by the manner of selection of decision makers who can have special knowledge in the subject matter under dispute such as architects, doctors and other professionals. This is not the case in litigation except where in some circumstances a party may appear, amicus curiae.

Jamoos thinks that the systems are both impartial but litigation may have the advantage because of the possibility of resolving issues on appeal. However there are provisions in some legal systems where arbitration awards may be subject to multiple appeals according to the manner in which the awards are being applied.

Jamoos prefers the certainty of the laws relating to impartiality and independence in litigation as compared to the relative vagueness of the rules in arbitration.

But arbitration wins the battle of costs when one considers the time taken to conclude arbitration proceedings. In many jurisdictions litigation still takes a long time and could last as long as ten years or more in some instances.

There is no doubt that arbitration is more flexible. Arbitration permits such catering to the special circumstances of a case. However litigation operates on a one size fits all  basis.

Jamoos opines that while the enforcement of litigation and arbitration decisions depends on the application of certain treaties and conventions, enforcement arrangements of arbitration decisions tend to have a broader scope of application internationally.

Arbitration and litigation are kindred fruit Jamoos concludes- with each operating better in specific contexts. This serves to reinforce their individual usefulness. Yet we are left to wonder whether arbitration is simply the equal of litigation.

Regionalconflictinsights contributor.

 

Source:Shafiq Jamoos, Is Arbitration the Equal of Litigation?, JURIST - Forum, August 6, 2012, http://jurist.org/sidebar/2012/08/shafeek-jamous-arbitration-justice.

 

 

William R. McKay writes:

You may be penalized for failing to mediate.

The drive to encourage “out of court” settlements through alternative dispute resolution (ADR) and specifically mediation has really gained pace in the UK since the “Woolf reforms.” These were fairly fundamental changes to the litigation process based on recommendations made by Lord Woolf, a senior British judge, in his report on how to make dispute resolution more efficient. This led to the Civil Procedure Rules (CPR), requiring the parties and their lawyers to pro-actively liaise and take practical steps to settle disputes before trial. This approach of “front-loading’ cases to enable early settlement inherently involves alternative dispute resolution (ADR) and particularly mediation. As a result, civil and commercial mediation has gained pace in the UK in the decade or so following the Woolf reforms.

Correspondingly, there is increasing judicial support for mediation in British courts, as shown by judgments in which parties winning at trial have nevertheless been penalized in legal costs for having unreasonably refused to mediate before trial. The typical sanction for this is being ordered to pay the loser’s legal costs despite being the winning party in court. (In the UK the loser in court typically pays the winner’s costs). A prominent example of a court imposing such costs consequences for unreasonably refusing to mediate is the case of Dunnet v Railtrack (a Court of Appeal case). According to the recent fifth mediation audit by the UK based Centre for Effective Dispute Resolution (CEDR), the British civil and commercial mediation market consisted of around eight thousand relatively high value mediations last year (up from around six thousand in 2010). 

See: hhtp://www.adrtimes.com/articles 2007/7/2.

 

 

Judge Is A Master Craftsman Of Courtroom Settlements

Holzberg Skillfully Mediated Complex St. Francis And Kleen Energy Cases

Superior Court Judge Robert L. Holzberg has mediated the St. Francis/Reardon… (MICHAEL McANDREWS, Hartford…)

April 28, 2012|

Early in his legal career, one of the acknowledged masters of courtroom mediation in Connecticut spent time working with the criminally insane.

No one says that is what makes Judge Robert L. Holzberg good at what he does, which is refereeing fights over money between insurance companies and victims of often tragic events. 

As a mediator, Holzberg occupies the neutral ground between enemy camps. There are bottom-line-oriented insurers, trying to blunt the claims of victims and transfer liability to someone else. Lawyers for victims fight for as much as they can get from the insurers — for their clients and themselves. The government, through disability insurance programs, waits to snatch back whatever it distributed previously in payments.

Holzberg, a Superior Court judge for 22 years, solidified his position as one of the state's most sought-after mediators when he found himself in just such circumstances twice in recent months and managed to craft settlements that satisfied widely divergent interests in notorious Connecticut cases.

One involved the serial sexual abuse of hundreds of children at St. Francis Hospitaland Medical Centerby endocrinologist George Reardon. The other was the powerful natural gas explosion that killed six and injured dozens more at the Kleen Energy electricity generation plant in Middletown.

"Those are big," said Hartford lawyer Hubert J. Santos. "He's got the touch, and not a lot of guys have it. He gets the parties to come to where he wants them to come to. And he knows how to let both sides know that he is empathetic with their positions."

In St. Francis, 150 adults sued for abuse they experienced decades earlier as children. The first suits were filed in 2007 after the discovery of tens of thousands of obscene photographs Reardon took of children he molested. In Kleen Energy, the intentional venting of natural gas in February 2010 caused an explosion that blew apart the Middletown plant, where construction crews were working around the clock. The first Kleen Energy suits were filed within weeks.

Negligence claims in both cases threatened to stretch into costly, time-consuming trials because of wide disagreement over what the injuries were worth in damages. Trials in such complex cases strain the resources of the state court system, making mediation a judicial priority.

Holzberg, 60, the administrative judge in Middletown, plunged into both cases in late October. By mid-November, he had settlements in five of the six Kleen Energy deaths. Last week he had settled the 60 or so St. Francis cases he inherited. With the exception of four suits, the Reardon abuse is a closed matter.

Gentle Yet Firm Prodding

Holzberg's "touch," according to lawyers who line up for his mediations, is his personality. It is what the lawyers say enables him to gently yet firmly prod widely separated parties toward common ground.

He is described as self-effacing and patient. He is a listener who believes every party before him has something to say, even those for whom he may not particularly care. He is said to be a nice guy. When the Connecticut Bar Association made Holzberg the state's judge of the year in 2011, he attributed his success to his wife, to his college classmates — to almost anyone but himself.

Perhaps most important, the lawyers who mediate with Holzberg say he can be trusted.

"There are three things you need to have to be a good mediator," said Hartford lawyer Richard Kenny, whose firm represented about 40 victims in the St. Francis case. "You need humility. You have to have an ability to talk to both the little guy in the street and the vice president of The Travelers Cos. And you have to be able to get both of those people to trust you."

Austin J. McGuigan, whose firm represented one ofSt. Francis Hospital's three insurers, said Holzberg also has an ability to appear to stay in the background of mediations while quietly yet firmly directing them toward what he has determined to be an equitable agreement.

McGuigan called him "a bright guy, really a brilliant lawyer," who can move lawyers by exposing weaknesses in their cases. Holzberg also is willing to pitch settlements directly to clients.

"It's one thing to disabuse a lawyer of unrealistic expectations," McGuigan said. "It is another to try to explain to the client why a case in which they or a family member has been injured isn't worth quite as much as they think it is. That is a skill.

"He is a genuinely nice guy who can get exasperated now and then when positions get hardened and he sees that those positions are not reasonable."

With $50 million or more in settlements at stake in the St. Francis suits, no one was trying to be reasonable.

By EDMUND H. MAHONY, emahony@courant.com, The Hartford Courant

Also reported at : Mediate.com

 

 

Peacemaking

Practice PDR, Not ADR

Douglas E. Noll

Home Page

October, 1999


One of the modern trends in legal procedure is Alternative Dispute Resolution, which generally refers to some form of mediation or arbitration. Mediation and arbitration have been touted as less expensive, faster ways of resolving legal disputes. The label Alternative Dispute Resolution implies that the primary dispute resolution mechanism is litigation. Litigation is glorified as the great mano a mano battle of the late 20th century in films, books, and the media. In fact, lawsuits ought to be a sign of failure, not the first choice for resolving disputes. Hence, ADR's value for peacemaking has been greatly diminished. Most ADR is invoked only after a lawsuit has been filed, not before.

Consider the concept of Primary Dispute Resolution. As I see it, PDR is the first step in an important conflict. PDR recognizes the legitimacy of conflict. It acknowledges that parties have different stories to tell. PDR is also based on the premise that conflicting parties may have radically different perspectives. It requires no demands or threats, however. Its premise is based on the idea that people can agree how to manage their conflicts if they have an opportunity to exchange viewpoints and perspectives. Litigation forestalls this opportunity.

Engaging in PDR requires some patience. Here's how it might work. A client calls her lawyer with a problem concerning a roofing defect in her plant expansion. They discuss the problem, and the lawyer suggests PDR. The lawyer contacts the corporate counsel for the roof manufacturer. The conversation goes like this:

"My client would like a meeting with your principals to discuss problems she sees with her roof," the PDR lawyer says.

"We have no liability for the problem. The corrosion was caused by some environmental factor. Its not our responsibility," replies corporate counsel.

"I'm not saying it's your responsbility or my client's responsibility. I'm simply inviting a meeting so that both sides can share their stories and perceptions. Maybe we can resolve the problem, maybe not. At least we can jointly decide how we want to manage the conflict-through further discussions or through litigation."

"We've investigated the problem and have determined that the materials and installation were fine. My company simply does not have any liability for your client's roof."

"But the roof is corroded. If we have to determine fault, then maybe a jury will decide the issue. But that's not what I'm calling about. I think that the parties need to be in the same room and talk about this problem. Perhaps if they hear each other out, a common, collaborative solution can be found. I'm not promising anything, but am trying to avoid escalation of the problem. If I have to file suit, you'll have to retain California counsel. The case will take at least two years to resolve and the bitterness and expenses will far exceed the current scope of problem. I'm not making any demand or request other than to meet."

"OK, I understand. Let me talk to my management and get back to you."

Eventually, this lawyer convinced the corporate counsel to meet. Most lawyers would have given up and filed suit. The principals met for half a day with counsel present. The case resolved itself with discussions between the principals.

Most of my work today is as a third party peacemaker. My peacemaking assignments more and more involve pre-litigation problems where people need the help of a third person to provide productive and frank discussions. This role is quite different than mediation in that everyone is trying to understand the problem before deciding the best process to follow. Managing these conflicts goes far beyond the usual coercive, evaluative techniques common to mediation and judicial settlement conferences. As a peacemaker, I broaden the conflict issues rather than narrow them. All viewpoints are explored, all injustices are uncovered, and all interests are identified. Then we see what satisfactory solutions are possible. The point is that Primary Dispute Resolution works. Engaging in non-adversarial processes and discussions, even though emotions are high and anger is prevalent, makes more sense. Getting on the telephone and informing the other side that dissatisfaction exists, without making demands, or "naming, blaming, and claiming," minimizes defensive reactions. This is different than the usual lawyer demand letter. Once that nasty demand letter goes out, the drawbridges are pulled up, the arrows are sharpened, and the oil is put on the fire in anticipation of forced invasion. Constructive communication dies, and litigation becomes the primary tool for resolving conflict.

As I said, Primary Dispute Resolution requires some patience. Obviously, if a statute of limitations problem exists, it must be dealt with. But if a client comes to a lawyer on the eve of the expiration of the statute of limitations, the lawyer will have to question how serious the client has treated the conflict to begin with. Having patience is recognizing that most lawyers and clients, steeped in the belief that litigation is the only process for resolving disputes, will, upon hint of a problem, move into a defensive position, deny all liability, and stonewall.

The key strategy in Primary Dispute Resolution is to defuse this natural defensiveness by not making a demand, but by simply requesting a meeting to exchange views and perspectives. Initial rejection of the idea is common, but persistence and patience will almost always turn parties towards Primary Dispute Resolution. After all, no one wants a lawsuit. And when the sincerity of the request to simply examine each other's perspectives is recognized, the defensive barriers drop enough for the process to start.

I am not suggesting that all disputes can be resolved by Primary Dispute Resolution. I think that about 40 to 50 percent of important disputes have to be filed as lawsuits. These are cases where substantial and important legal rights are at stake, where parties simply will not acknowledge the existence of a dispute, or where the legal system is reasonably efficient at resolving the dispute. An example of the latter might be personal injury cases, where the insurance companies have based their actuarial losses on the predictability of the legal system for handling claims. Even with personal injury cases, I can see PDR as a process involving the injured party, the defendant, their counsel, and the claims adjuster assisted in appropriate cases by a peacemaker.

In the rest of the cases, Primary Dispute Resolution should be a cultural norm. We should consider litigation a sign of failure. The social cost should be high enough to motivate people to decide jointly how to manage their conflicts.

The Way of the Peacemaker: Engage in Primary Dispute Resolution as the first choice of conflict management.

Douglas E. Noll, Esq. is a lawyer specializing in peacemaking and mediation of difficult and intractable conflicts throughout California. His firm, Douglas E. Noll and Associates is based in Central California. He may be reached through his website www.nollassociates.com and email at doug@nollassociates.com

© 1999, Douglas E. Noll

 

 What is a ZOPA and Why Does it Matter?

A "Zone of Possible Agreement" (ZOPA) exists if there is a potential agreement that would benefit both sides more than their alternative options do. For example, if Fred wants to buy a used car for $5,000 or less, and Mary wants to sell one for $4,500, those two have a ZOPA. But if Mary will not go below $7,000 and Fred will not go above $5,000, they do not have a zone of possible agreement.

The ZOPA is critical to the successful outcome of negotiation, but it may take some time to determine whether a ZOPA exists. It may only become known once the parties explore their various interests and options. If the disputants can identify the ZOPA, there is a good chance that they will come to an agreement.

 Foundations of ZOPA: BATNAs

In order for disputing parties to identify the ZOPA, they must first know their alternatives, and thus their "bottom line" or "walk away position."

•Alternatives: Parties must determine what alternatives they have to any agreement. Roger Fisher and William Ury introduced the concept of "BATNA" (Best Alternative To a Negotiated Agreement). This is the best course of action that a party can pursue if no agreement is reached.[1]

For example, Mary might have two potential buyers. Georgio is willing to pay $6,950. Mary is now negotiating with Fred. If he will pay more than Georgio (Mary's BATNA), she'll sell to him. If he won't pay that much, she'll sell to Georgio. Likewise, if Fred has found another car he likes for $5,500, then he won't pay more for Mary's car than that...maybe even a bit less.  Fred's BATNA is $5,500.

•Bottom Lines or Walk-Away Positions: BATNAs determine each side's bottom lines. If you have an alternative car available for $5,000, $5,000 is your bottom line. If you can sell your car for $7,000, that is your bottom line. If you don't do better than that in the negotiation, you'll walk away.

So, a zone of possible agreement exists if there is an overlap between these walk away positions. If there is not, negotiation is very unlikely to succeed. In fact, it will only succeed if one party either realizes that his or her BATNA is not as good as he or she thought, or she decides for some other reason to accept the agreement, even though an alternative option might have yielded better results. (This often happens when parties do not explore or understand their BATNAs well enough.)

 Identifying the ZOPA

If both sides know their BATNAs and walk away positions, the parties should be able to communicate, assess proposed agreements, and eventually identify the ZOPA. However, parties often do not know their own BATNAs, and are even less likely to know the other side's BATNA. Often parties may pretend they have a better alternative than they really do, as good alternatives usually translate into more power in the negotiations. This is explained more in the essay on BATNAs. The result of such deception, however, might be the apparent absence of a ZOPA, when one actually did exist. Shared uncertainties may also affect the parties' abilities to assess potential agreements because the parties may be unrealistically optimistic or pessimistic about the possibility of agreement or the value of alternative options.[2]

 ZOPAs in Distributive and Integrative Negotiations

The nature of the ZOPA depends on the type of negotiation.[3]  In a distributive negotiation, in which the participants are trying to divide a "fixed pie," it is more difficult to find mutually acceptable solutions as both sides want to claim as much of the pie as possible. Distributive negotiations over a single issue tend to be zero-sum -- there is a winner and a loser. There is no overlap of interests between the parties; therefore, no mutually beneficial agreement is possible.

For example, two people may be competing for one job. In the simplest case, there is no ZOPA because both people want the full-time job and are not willing to divide the job responsibilities and salary. One person must "win" and the other must "lose."

On the other hand, integrative negotiations involve creating value or "enlarging the pie." This is possible when parties have shared interests or are dealing with multiple issues. In an integrative negotiation, the parties can combine their interests to create joint value. To achieve integration, negotiators can deal with multiple issues at the same time and make trades between them. This is so that I might get more of something that I value while you get more of something that you value. That way both parties can "win," even though neither gets all that they originally thought they wanted. In the example above, if rewriting the job description could create an additional job then the distributive negotiation would change into an integrative negotiation between the employer and the two potential employees. If both applicants are qualified, now they may both get jobs. The ZOPA, in this case, exists when two jobs are created and each applicant prefers a different one of the two.

--------------------------------------------------------------------------------

[1] Roger Fisher and William Ury, Getting to Yes  (New York: Penguin Books, 1983).

 

[2] Michael Watkins and Susan Rosegrant, Breakthrough International Negotiation: How Great Negotiators Transformed the World's Toughest Post-Cold War Conflicts  (San Francisco: Jossey-Bass Publishers, 2001), 26-28.

[3] Ibid, 29.

 

 

THE POWER OF AN APOLOGY

Compliments of ADR Times by Phyllis Pollack 22.2 12

It is often said that the smaller the amount in dispute, the harder it is to settle the matter. I agree. . . having just experienced such a mediation.

The matter was on appeal. The parties wanted to mediate before the opening brief was due in the hopes of settling early and before much time and expense had been invested.

The issue was simple: when does post judgment interest begin to accrue on an award of attorneys’ fees? From the date that the underlying judgment was entered? Or, from the date that the attorneys’ fees are awarded (which could be several months after the entry of judgment on the underlying matter?) That is, is such post judgment interest retroactive?

In the case to be mediated, plaintiff won an underlying judgment in September 2010 and was awarded attorneys’ fees in April 2011. In response to a motion made before the trial court in August 2011, the court calculated the amount of principal and interest still owing to plaintiff, assessing interest on the attorneys’ fees award from April 2011 rather than September 2010. Defendant duly paid this amount.

Plaintiff appealed, contending that interest on the attorneys’ fees award should have been calculated retroactively to the September 2010 underlying judgment. Consequently, plaintiff contended that approximately $5,000 more was owed by defendant (plus accruing interest!)

So, here I am – mediating an appellate matter involving $5,000 – by telephone no less -since the parties were located in different parts of the state.

Anyone with a little bit of experience will soon surmise– that this dispute is not about the money – it is about something else – the relationship, ego, et cetera. And, she would be right!

With a little bit of questioning, I soon learned that the relationship between opposing counsel had not been so cordial in the months leading up to trial and during the trial. In the underlying case, plaintiff’s counsel had demanded that the defendant repurchase the vehicle; at trial, the jury awarded only a minimal amount of money to plaintiff. Arguably, plaintiff’s counsel was upset at this result.

During the initial rounds of the telephone mediation, plaintiff’s counsel made demands, and defense counsel countered with only minimal sums, contending that the trial court had not erred in its calculations.

After two or three rounds of seemingly getting nowhere, I discussed the relationship issue both with plaintiff’s counsel and in more detail with defense counsel. Then, in a subsequent round in which the parties were still far apart, defense counsel – on her own accord and unsolicited by me – asked me if I thought an apology to plaintiff’s counsel would help the negotiations? I said “yes” as plaintiff’s counsel was clearly upset about the lack of cordiality. So, I set up the conference call, and defense counsel apologized with sincerity. It was short but sincere! The apology conference call lasted less than a minute! But, the apology worked wonders making all the difference in the world! The demeanor of plaintiff’s counsel was far different afterwards than it had been prior to the apology! (It was much softer!) She was much more amenable to settling and for a far lesser amount.

One or two more rounds later, the matter settled! And, at an amount far less than plaintiff’s counsel initial demand. Plaintiff’s counsel’s upset had been recognized, acknowledged and appropriately addressed! Plaintiff’s counsel was once again accorded the respect and status she believed she deserved.

So. . .it is not always about the money! More often than not – it is about the relationship. and an apology goes a very long way to repairing that!

. . .Just something to think about.

Read Top Ten Mistakes Attorneys Make In Mediation Below:

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                               'One process of mediation' key in Syria

                  From China Daily.com.cn 

United Nations - Kofi Annan, the United Nations and Arab League joint special envoy for Syria, said on Wednesday that the "one mediation process" accepted by all parties concerned is crucial to ending the crisis in Syria.

"If we are going to succeed, it is extremely important that we all accept that there should be one process of mediation," Annan told reporters at the end of his first meeting with UN Secretary-General Ban Ki-moon at the UN Headquarters.

"When you have more than one, and people take their own initiatives, the parties play with mediators," he said. "(We need) one single unity process and it is one that the international community speaks with one voice."     "I would expect to get to Syria fairly soon," he added. "I would plead with (Syrian President Bashar al-Assad) that he should engage, not only with me, but with the process we are launching."

Annan, the former UN secretary-general, is expected to hold a series of consultations with UN member states through Friday in New York.nnan "will need the support of all those inside and outside Syria," Ban said. "I call on all parties to do their utmost."

Russian Foreign Minister Sergei Lavrov and his Chinese counterpart Yang Jiechi called for continued close contact on the Syrian issue, and further coordination of positions at the UN and other international forums, the Russian Foreign Ministry reported on its website.

They gave a favorable assessment of the referendum on a new constitution held in Syria on Feb 26, the ministry said in a statement after two ministers spoke by telephone on Wednesday.

"Moscow and Beijing have consistently advocated that all interested external parties should facilitate a peaceful settlement in Syria by providing conditions for the start of a broad inclusive dialogue between the Syrian authorities and all opposition groups," the ministry added.

Lavrov was scheduled to meet his counterparts from Gulf countries in the Saudi capital in Riyadh to discuss developments in Syria, Kuwait Foreign Minister Sheikh Sabah Khaled al-Sabah said on Thursday.

The UN's top human rights body voted on Thursday to condemn Syria for the widespread violence in the country, as UK is closing its embassy in Syria on the same day amid a worsening security situation in the country.

Syria's seat in the room remained empty during the vote, after the country's UN envoy stormed out of the council on Tuesday having accused the body of supporting terrorism and prolonging the crisis in Syria.

Members of the UN Human Rights Council approved a resolution proposed by Turkey with 37 votes in favor and three - Russia, China and Cuba - voting against. Three members of the 47-nation body abstained and four didn't vote.

On Thursday, Syria's main opposition group, the Syrian National Council, formed a military council to organize and unify all armed resistance to Assad's government as the conflict veered ever closer to civil war. 

 

Mediation needs men.

Posted on August 26, 2011   On The Hecklist

I’ve blogged before about the diversity of professions and personalities amongst New York Peace Institute mediators.  I don’t think I mentioned that our mediator pool is predominantly female.  My mediation center comrades at home and abroad report that same is true with them.

Explanations for this phenomenon have included: women (by nature or nurture) are better listeners; tend to gravitate toward helping professions; are disproportionately more represented in volunteer work in general; and are just more inclined toward peacebuilding than menfolk.  (The righteous men who are on board with us defy these stereotypes.)

On the national and international stage, menfolk have gotten their share of limelight in the peacebuilding biz, — e.g. Carter, Holbrooke, Gandhi, MLK, and so on.  And there’s no shortage of maleness among our thought leaders — Fisher, Ury, Kloke, Noll, Mayer, Bush, etc.  But this male presence doesn’t fully flow over to the community practice level.

There are indeed great organizations out there that aim to redefine what “masculinity” is all about.  A Call to Men (www.acalltomen.com) and Men Can Stop Rape (www.mencanstoprape.org) are two non-profits I really admire, in their missions to mobilize men to take responsibility for preventing gender-based violence.  Let’s get more men mediating on the ground.  CeaseFire Chicago  (www.ceasefirechicago.org) seems to have figured this out, as we see in the fabulous film The Interrupters  (Interrupters.kartemquin.com).

Having never participated in many stereotypically male activities (sports, fraternities, listening to Rush), I’m somewhat bereft of creative ways of getting dudes on board.  Suggestions welcome, as I haven’t had much success with catchphrases such as  Mediation: Like a cage match — without the cage, or Mediators Beyond Thunderdome. 

A little help here, fellas?