Law Commons^™

Negotiation Lessons From The Book (Not The Film) Of Exodus, John Wade

John Wade

Extract: The recent film “Exodus: Gods and Kings” has sparked some renewed interest in the actual written record of those events. It did so for me. I was astounded as a lawyer and mediator to read slowly the detailed accounts of the negotiations in the book of Exodus chapters 1-14. Had I missed these dynamics which have been so much a part of my professional and academic life? So I share some of the themes which have emerged belatedly for me in this case study extraordinaire. One of the indicators from research of an “expert” modern day negotiator is someone …

Judicial Mediation And Competition For Clients And Government Funding Among Dispute Resolution Providers, John Wade

John Wade

Extract: The aim of this paper is to describe “judicial mediation”—what is it?; describe the general competition for clients and government funding between dispute resolution services – including to some extent, judicial mediation; set out the possible advantages and disadvantages of judicial mediation for both disputants and society—either as a diagnostic or competitive guide; and, despite lurking or actual competition, tentatively confirm a role for judicial mediation.

'Judicial' Decision-Making In Australia: Critique And Redemption, John Wade

John Wade

Extract: In Australia, as in most countries, the landscape of judges is vast. Judicial activity can be categorised in many ways. For example, first there is a tiny minority of judges with ’lifelong’ appointments (ie, to the age of 70 or 72 years); who are appointed by the government in power; who work in offices which look like traditional ’courtrooms’; and whose decision-making processes are usually publicised by observers and the publication of decisions and reasoning; and who, importantly, are constitutionally protected from political interference.

Mediation Workshop: Basic Course Materials, Laurence Boulle, John Wade

John Wade

No abstract provided.

Preparing For Mediation And Negotiation In Succession Disputes, John Wade

John Wade

This paper argues that a major task for lawyers in succession disputes, negotiations and mediations is to assist clients make wise decisions in the face of uncertainty. This requires preparation. A short preparation model of five humble hypotheses is set out. Normally, these should be discussed with any mediator well before a mediation takes place. Example precedent preparation forms are attached.

Matching Disputes And Responses: How To Diagnose Causes Of Conflict, And To Respond With Appropriate Interventions And/Or Referrals, John Wade

John Wade

This short paper will address three broad topics from an Australian perspective. Parts of this paper will be relevant to Canada and to other countries. First, where is the pressure coming from for dispute resolution professionals to improve the diagnosis of causes of conflict; and to improve the choice of intervention and/or referral to other skilled helpers? Secondly, what diagnostic dispute resolution services (problem defining) are currently “available”? What methods are used to make an initial diagnosis of causes of a conflict, and appropriate possible “interventions”? Thirdly, what dispute resolution assistance (problem solving) is “available” in each area of conflict? …

What Do Clients Of Mediators "Want"?, John Wade

John Wade

Extract: This title reflects a familiar marketing and ethical question for all service providers – what do clients of plumbers/doctors/psychologists/builders/lawyers etc want? Predictably, the answers given by anecdote, “theory” and more systematic research are complicated and conflicting. There is a simple answer to every complex question, and it is wrong. There are three elements in the question – what do the (1) clients of (2) mediators (3) want?

"Judicial" Decision-Making In Australia – Critique And Redemption, John Wade

John Wade

Extract:

This paper has four parts, namely a description of:

A. The Context ▪ Australia (the place) ▪ The vast landscape of “judicial” or quasi-judicial decision makers

B. The Commentary ▪ Repetitive critiques of judicial decision-making ▪ Redemption of judicial decision making

Plus an Appendix on Court Structures with details and diagrams.

Duelling Experts In Mediation And Negotiation: How To Respond When Eager Expensive Entrenched Expert Egos Escalate Enmity, John Wade

John Wade

Having dueling experts is a predictable problem for negotiators and mediators. A routine process in response is set out: normalizing, reframing, and turning the barrier into a standard problem-solving question. Twelve standard responses (each with inevitable advantages and disadvantages) are systematized for mediators and negotiators to learn and possibly add value to any negotiation.

Liability Of Mediators For Pressure, Drafting And Advice, John Wade

John Wade

Complex tensions that can occur during negotiations and decision-making are illustrated in the Supreme Court of Victoria decision in the case of Taphoohi v Lewenberg. Cases such as this place judges in the position of making decisions about 'proper mediator behaviour' and of making major policy decisions about professional diversity and standards.

False Dichotomies And Asking The Right Questions, John Wade

John Wade

This is a comment on a recent article entitled Enacting and Reproducing Social and Individual Identity Through Mediation by Ho-Beng Chia, Chee-Leong Chong, Joo-Eng Lee-Partridge, Chantel Chu Shi Hwee, and Sharon Francesca Koh Wei-Fei, in Conflict Resolution Quarterly, 2000, 19(1).

Mediation – Seven Fundamental Questions, John Wade

John Wade

In parts of many countries, mediation is a commonly used process for managing and resolving conflict. In many other places, mediation is virtually unknown in both practice and theory. People confuse mediation with meditation or medication. Why do these interesting anthropological variations exist? Why are the various forms of mediation relatively uncommon in Sweden?

A vast and growing literature is available on conflict management and mediation. This short comment will outline seven fundamental and recurring questions about mediation. Similar questions can be asked helpfully about every profession, including lawyering, plumbing and judging. Every lawyer should be able to answer these …

“Don’T Waste My Time On Negotiation And Mediation, This Dispute Needs A Judge.” Which Conflicts Need Judges? Which Conflicts Need Filing?, John Wade

John Wade

This article contains two parts. First, there is a framework aimed at encouraging lawyers and other conflict managers to be overtly analytical when deciding which interventions may or may not be helpful in a particular conflict. Second, to illustrate this analytical framework, there are two lists of factors or diagnostic indicators that suggest that certain conflicts probably need the decision of an umpire or judge and that certain other conflicts probably need written claims to be filed in a court or tribunal. This article does not attempt to create lists of factors that indicate the suitability of many other processes, …

Current Trends And Models In Dispute Resolution, Part 2, John Wade

John Wade

This article provides a helicopter view of some trends in dispute resolution in Australia, with random references to other jurisdictions. Thereby policy planners and practitioners who are dealing with conflict in the area of residential tenancies (or anywhere else) may be able to: locate their organisation and personal lives on the global map; feel normal; discover colleagues and fellow travellers who are attempting to manage conflict, proactively or reactively; anticipate future challenges; and develop options for responding to those future challenges. Part 1 of this article, published in Volume 9, Issue 1, highlights the pressures on managers and practitioners to …

Current Trends And Models In Dispute Resolution, Part 1, John Wade

John Wade

This article provides a helicopter view of some trends in dispute resolution in Australia, with random references to other jurisdictions. Thereby policy planners and practitioners who are dealing with conflict in the area of residential tenancies (or anywhere else) may be able to: locate their organisation and personal lives on the global map; feel normal; discover colleagues and fellow travellers who are attempting to manage conflict, proactively or reactively; anticipate future challenges; and develop options for responding to those future challenges. Part 1 of this article highlights the pressures on managers and practitioners to deliver effective services. It examines the …

The Last Gap In Negotiations - Why Is It Important? How Can It Be Crossed?, John Wade

John Wade

This paper discusses some basic principles concerning negotiation, including preparation for negotiation, negotiation styles, opening offers, the stages of negotiation and strategies and ethics. The last gap in negotiation is the step necessary to reach an agreement between the negotiating parties. This paper also addresses the importance of the last gap, whether the last gap be avoided, how to cross the last gap in negotiations, and available options for crossing the last gap in negotiations.

Lawyers And Mediators: What Each Needs To Learn From And About The Other, John Wade

John Wade

The mediation movement has been given publicity, funds of taxpayers, and support by propagating simplistic notions of the “adversary” system and of what lawyers do on a daily basis. Conversely, lawyers have often attempted to neutralise this rival profession by (as major doorkeepers to serious family disputes) wilful ignorance of their own behaviour, ignorant criticism of mediator behaviour, anecdotal warfare and attempts to co-opt mediation under their own monopolistic umbrella.

This paper reflects upon the behaviour of both family lawyers and family mediators with the aim of assisting each group understand the other. Both groups have much to learn from …