Law Commons^™

Introducing The Negotiation Navigation Map, Nadja Alexander, Jill Howieson

Research Collection Yong Pung How School Of Law

In this article we reflect upon negotiation strategies and explore the utility of reconciling the dichotomy between interest-based and positional approaches to negotiation. Ultimately, we advocate for a ‘constructive model’ of negotiation and introduce the ‘negotiation navigation map’ that serves the negotiator well in preparing for this approach to negotiation.

You've Got Your Mother's Laugh: What Bankruptcy Mediation Can Learn From The Her/History Of Divorce And Child Custody Mediation, Nancy A. Welsh

Faculty Scholarship

Due to our current deep economic woes, growing bankruptcy filings, and apparent legislative unwillingness to expand the number of judges, bankruptcy courts are exploring the use of mediation to help resolve adversary proceedings, negotiate elements of reorganizations, and deal with claims that cannot be heard directly in bankruptcy proceedings. In addition, mediation advocates have been consistent in urging greater use of the process to reduce debtors’ and claimants’ costs, bridge the jurisdictional and standing challenges that bankruptcies can pose, and offer claimants the opportunity to be heard and determine their own resolution of claims. At this point, the relatively few …

The Next Generation: Creating New Peace Processes In The Middle East, Carrie Menkel-Meadow, Irena Nutenko

Georgetown Law Faculty Publications and Other Works

This essay describes how Israeli students in a course on mediation and consensus building taught in an Israeli university law department by and American law professor and an Israeli instructor analyzed and studied the conflict in the Middle East. It describes the suggestions they made for process design for the next stages of whatever peace process might emerge for the region. In light of the students' suggestions, the authors present some ideas as to how different approaches to reconciliation and peace might be used, managed, and coordinated.

Legislative Hearing On Ma Foreclosure Mediation Program Bills: Written Testimony To The Joint Committee On The Judiciary, Susan Jeghelian, Madhawa Palihapitiya

Massachusetts Office of Public Collaboration Publications

The inability of homeowners to communicate with holders of securitized mortgage obligations has been a significant barrier to completing affordable loan modifications that might prevent foreclosures or minimize losses and keep more homeowners in their homes. Increasingly, legislators and the courts are looking at mediation as a potential solution to the problem.

In a little over a year, from mid-2008 to mid-2009, more than 25 distinct foreclosure mediation programs were launched in fourteen different states. State legislatures, state supreme courts, and local courts played roles in creating these programs. Mediation is being favored over litigation due to concerns such as …

Review Of Staying With Conflict: A Strategic Approach To Ongoing Disputes, Carl E. Schneider

Reviews

Bernie is at it again! And we can be thankful for that. For the past three decades, he has consistently provided leadership in our field. A central part of his work has been his invitation for us to rethink just what our field is. Through his work, he has offered us an expanded definition of our role. This time, in Staying with Conflict, he wants us to consider how misleading and confining our tag line of “conflict resolution” is. So much of what we deal with cannot be resolved! If that is our self-concept, he argues, we will often …

Good Faith As The Absence Of Bad Faith: The Excluder Theory In Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Views vary as to the behaviour necessary to constitute good faith — or equivalent concepts such as genuine and reasonable attempts — in mediation and as to behaviour which falls below the standard.

Mediation And The Myth Of Universality, Nadja Alexander

Research Collection Yong Pung How School Of Law

In his essay entitled ‘Mediation: Pfade zum Frieden’, Professor Montada has made an important contribution to the mediation literature. He questions the universality of the standard mediation model that appears to be sweeping the world with enormous zeal and in doing so puts forward theories and principles to substantiate his view. To a large extent I agree with what the author has to say about the scope and potential for mediation. In particular I support his view that professional mediators need to be made aware of the cultural limitations of the model in which they are trained. As I write …

Unexcused Absence: A Review Of The Need, Costs, And (Lack Of) State Support For Peer Mediation Programs In U.S. Schools, Matthew D. Decker

Journal of Dispute Resolution

You might not have heard about peer mediation lately. You might not have heard about it at all. That's a problem. Peer mediation, though grossly underutilized, could be the potent and cost-effective answer to many of the problems facing U.S. schools.

State Legislative Update, Ashley Brittain, Sean Dolan, Alicia Hammond, Meghan Prideaux

Journal of Dispute Resolution

The purpose of this Bill is to provide notice to owners of residential real property owners that mediation with the mortgagee is an option at the onset of foreclosure proceedings. The Bill changes the mechanism by which borrowers are notified of foreclosures; instead of receiving a writ and summons, borrowers receive a notice of mediation, a foreclosure mediation certificate, and a blank appearance form. Borrowers still receive the writ, summons, and complaint, however. The lender must appear at the mediation with the authority to approve a proposed settlement in order to receive a remedy, and no attorney's fees will be …

Rehearsing In Poetry, But Practising In Prose - The Anatomy Of A Manly Mediation, Geoff Sharp

Geoff Sharp

As arranged, the cast gathered at 9.30am for yesterday's production in the sort of law offices where, if you want a coffee, you need to say whether it's a latte, macchiato, cappuccino or espresso with soy/trim/creamer...

40 Sites In 40 Minutes, Geoff Sharp

Geoff Sharp

The best of free mediation resources on the world wide web

I Know It's Not My Problem... But It Happened On My Watch, Geoff Sharp

Geoff Sharp

It is at some risk that I set out to promote my expertise in the area of what to do when mediation ends in disagreement.

Nevertheless, I dread those times when the smell of napalm hangs in the air as the parties depart the room with their final exchanges of the ‘see you in court’ variety ringing in my ears.

To assist my investigation of what we do as mediators when destination Yes eludes us, I polled a number of experienced commercial mediators. I am indebted to my friends from Bond University in Queensland, Australia and colleagues from the International …

Desert Island Questions For Mediators, Geoff Sharp

Geoff Sharp

When I was a wee lad, I drove others nuts by asking questions. They were, I am told, good open ones usually starting ".... but, why?"

As time passed, I grew into a know-it-all teen and forgot about asking questions, more intent on doing the telling. Now at age 40 and in my role as a commercial mediator, I seem to have come full circle and once again appreciate the value of the well-timed, well-constructed question aimed at the essence of a discussion.

So what are my all-time favourites? What questions do I ask that make people sit back in …

The Legal Scholarship Of Blogs, Geoff Sharp

Geoff Sharp

If you’ve ever felt the need to share your opinions with the world, then blogs just may provide you with the global audience you’ve been longing for. Geoff Sharp surfs the wave of the future and finds out the skinny on blawging.

Where Angels Fear To Tread, Geoff Sharp

Geoff Sharp

The Tricky Matter of How a Commercial Mediator Shows Respect for the Attorney/Client Relationship...

Those of us who were lawyers in a previous life and are now mediators, or those of us who dabble in both worlds, will know that there is a sensitivity surrounding the whole question of the mediator and the attorney / client relationship. This tension is largely unspoken but it is nevertheless an anxiety for most attorneys as they head into a mediation session.

In Praise Of Joint Sessions, Geoff Sharp

Geoff Sharp

This paper deals with the increasing trend amongst mediators to do away with a joint session (where the parties meet face-to-face) at mediation in favour of meeting with the parties privately and adopting a shuttle mediation model.

This is an especially topical debate amongst mediators with some advocating that a purely private session or caucus model of mediation where the parties never meet saves time and is what the market now requires. This compares with other mediators resisting the demise of the joint session, saying it is at the heart of what mediators do and of what mediation is.

For …

Sticks, Stones, And School Yard Bullies: Restorative Justice, Mediation And A New Approach To Conflict Resolution In Our Schools, Leah M. Christensen

Nevada Law Journal

No abstract provided.

Making Peace And Making Money: Economic Analysis Of The Market For Mediators In Private Practice, Urska Velikonja

Faculty Scholarship

Mediation has grown tremendously in the last three decades, yet only a small number of mediators have been able to benefit financially from its growth. The supply of willing mediators by far exceeds the demand for their services. Mediator trainee overoptimism and the lack of formal barriers to entry result in excess entry in the market for mediators. However, the lack of a formal barrier, but the existence of de facto barriers to entry, such as mediator selection practices and specialization, combined with excessive individual optimism, creates inefficiently high levels of entry. This is socially suboptimal: many aspirant mediators spend …

Promise Of Confidentiality In Mediation: Practitioners' Perceptions, The, T. Noble Foster, Selden Prentice

Journal of Dispute Resolution

In response to these articles, we sought to determine the perceptions of mediation practitioners in our own region, the Seattle/King County area, regarding mediation confidentiality and privilege. This paper presents our finding and addresses the following: (1) the scope of confidentiality and privilege under Washington law; (2) recent Washington case law addressing evidence of mediation communications; (3) a review of Florida's recent legislation - significantly different from Washington law, and unique among state mediation statutes - which provides for sanctions in the event confidentiality is breached; and (4) the perceptions of mediators, attorneys, and judges from the greater Seattle area …

Mediating Commitments, Ian Macduff

Research Collection Yong Pung How School Of Law

This paper explores the implications of one aspect of intercultural theory –the dimension of power distance– in order to comment on the nature of commitments in the mediation process. The familiar model of Western ediation assumes that parties can identify core interests and negotiate around those, through prioritising, trading and balancing. At the heart of our thinking about commitments are our ideas about agency, autonomy, and accountability. However, a core implication of empirical work on power distance suggests that expectations of deference may lead some participants to avoid direct decision-making responsibility and, rather than work towards commitments, to act on …

Future Of Mediation: A Sociological Perspective, The, Brian Jarrett

Journal of Dispute Resolution

Arguably, these sociological pressures are central to the future direction of the mediation field and, in the aggregate, provide a useful building block in the development of an emerging sociology of mediation-a development that could fill the theory-to-practice gap which currently bedevils the mediation field. Understanding sociological forces reminds us of the constraints within which mediators, as social actors, must work. More importantly, an awareness of these pressures is, conceivably, essential to the development of an autonomous and discernible profession that remains capable of welcoming a diversity of practitioners and their respective approaches. I summarize each of these pressures below …