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If you were a conservative investor who was looking for a modest return on your dollar, would you invest in unusual penny stocks with no track record?
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Advocacy in ADR is very different from advocacy in other settings.Parties experienced with trial adjudication are accustomed to attacking their opponents in open court, so they adopt a similar aggressive style in ADR.
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At its core, culture is little more than “the way we do things around here.”
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It is obvious to all who work in the alternative dispute resolution (ADR) field that the most important federal statute—the Federal Arbitration Act (FAA)—does not define its key term: “arbitration.”
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Businesses always want to control their own destiny. However, external forces may drastically alter a company’s preconceived plan.
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By taking some or all of these steps, the parties, their advocates, and the mediator can make the mediation more likely to succeed.
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When I was recently asked to speak to a group of law school students on what it takes to establish a mediation practice, I focused on those things that lawyers should keep in mind during the struggle to begin a new profession.
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“Conflicts” concern attorneys who mediate and the firms that employ them. Attorneys worry that their mediation work might cause their firms to be “conflicted out” of some future representations.
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Initially drafted in 1994, the American Bar Association, the American Arbitration Association, and them Association for Conflict Resolution adopted the current revised Model Standards of Conduct for Mediators in 2005.
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Imagine being the mediator who convenes a mediation with the objective of settling a dispute between Party A and Party B only to learn when the participants gather that no one present for Party A is authorized to reach an agreement.
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Experts have traditionally been regarded as credentialed spokespersons who endorse their client’s position.
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Mediators need to be able to encourage the parties to participate more fully in mediation and educate them about the process and do it in a way that the parties can immediately use.
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When a commercial dispute is settled in mediation, the parties usually extol the virtues of the process. When a settlement is not achieved, they may criticize the process, seeing it as a strategic mistake in the quest for a non-litigated resolution.
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Thus, there are no barriers to becoming a private mediator, either in terms of education or training requirements.
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Lawyers are there to solve problems.
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If you think successful businesspeople “wing it” when it comes to negotiation, think again.
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A sine qua non of alternative dispute resolution (ADR) is the parties’ right to self-determination, which in mediation involves the ability to select the mediator and decide whether to agree to a settlement of all or some of the disputed issues.
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At several recent construction mediation conferences, Mr. Bates and Mr. Holt facilitated a program entitled What You Can’t Not Know.
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The teaching of alternative dispute resolution as a discipline is flourishing in law schools.
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Anger. Sadness. Fear. Disgust. Shame. As you well know, disputes are often full of powerful, negative emotions on both sides.
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Positive analyses of mediation have been found in numerous studies of divorce mediation, community mediation, school mediation, parent-child mediation and organizational/labor mediation.
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Mediation is becoming the dispute-resolution method of choice for businesses, organizations, and individuals in the United States.
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There is supposed to be a trend toward including mediation as the first step in the dispute resolution provision of contracts. I find this is not the case.
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As a seasoned litigator, I am rarely at a loss for words...Yet there I was, facing my opponents in mediation—a far less pressured setting—unsure of what to say.
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The debate over “evaluative” versus “facilitative” mediation is now largely between attorney-mediators and mediators who are not attorneys.
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In many ways, a dispute is a dispute whether it is with your mother, a tow truck driver, or the federal government.
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The inspiration for this paper was a conversation between the author and consumer advocate RalphNader at a legislative committee meeting on tort reform.
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Most mediation advocates and party representatives, when preparing
for mediation, primarily focus on one relationship that significantly
impacts resolution—the relationship between plaintiff and defendant.
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Negotiator styles significantly affect bargaining interactions. This chapter looks at different negotiator styles and the impact of these styles on bargaining encounters.
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Although arbitration as an alternative dispute resolution mechanism has existed for centuries, within the last several hundred years it has become ingrained into the dispute resolution conscience of several industries, such as labor and construction.
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One of the main criticisms leveled against mediation as a dispute resolution mechanism is the claim that it cannot lead to “fair” outcomes when there are considerable power imbalances between the parties.
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This chapter discusses the use of risk analysis as a tool for mediators.
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The well-dressed corporate officials looked anxiously across the long mahogany table as the plaintiff’s counsel described his client’s age discrimination claim against their company.
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The mediation process is indisputably different from other dispute resolution processes.
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If a client is involved in a dispute, the chances are good that it could be settled without going to court with the help of a neutral, independent mediator.
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Lawyers are people who deal with disputes and hopefully resolve them.
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Given the crowded dockets most courts must contend with, the use of alternative dispute resolution methods, such as mediation, is only likely to increase in the future.
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In its broadest sense, “reframing”--a term of art in dispute resolution circles--is a realignment of “a frame of reference.”
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A typical impasse in a business mediation usually occurs when one party is demanding too much money, and the other is offering too little— or none at all.
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Respect is a universal need. Unfortunately, its opposite, disrespect, can be found in many places of employment, from corporate board rooms to assembly lines.
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Mediation is a powerful tool that is deeply integrated into the civil justice system.
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Any meaningful discussion of advocacy in mediation should begin by recognizing the fundamental tension between the two concepts.
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The parties’ commitment to resolve a dispute and maintain control over the settlement is a cornerstone of a successful mediation.
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Virtually all construction disputes are ultimately about money.
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The point is, no one who participates in a mediation should feel like a failure because the mediation did not conclude with a signed agreement.
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Mastering basic mediation skills can take your practice to the next level. Philosophically, litigation and mediation seem worlds apart.
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A supplement to the American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) on the role of a lawyer as a neutral...
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