Nearly all construction industry standard form contracts require mediation as part of their dispute resolution provisions. Often confused with arbitration, mediation is a negotiation facilitated by a neutral third party. Unlike arbitration — a proceeding like a trial — mediation does not result in a final binding decision. And the mediator typically does not have any decision-making authority in the context of the mediation.
Read moreLawsuit over Idaho water company sale to Suez is resolved. City of Eagle touts agreement
The sale of Eagle Water Company to Suez Water will move ahead after the resolution of a city of Eagle lawsuit filed in 2019. City officials announced in a news release Wednesday that the lawsuit was resolved through mediation and that the sale to Suez will proceed to a review conducted by the Idaho Public Utilities Commission. The PUC must approve the sale for it to become final.
Read moreAre there limits to what can be discussed “Without Prejudice”?
Without prejudice discussions between parties to a legal dispute are one of the most effective ways to avoid full-blown litigation and the associated risk and expense. The specialist shipping and commercial litigation lawyersat Bahamas law firm ParrisWhittaker regularly advise clients on ways to avoid court through constructive settlement negotiations.
Read moreHow Does Personal Injury Mediation Work?
If you’ve filed a personal injury lawsuit or hired an attorney to file one for you, odds are good you are eventually going to be presented with the option, or perhaps even the obligation, to go to mediation. Mediation sounds intimidating. And it can be. But knowing what all the parts look like can make it a lot less so.
Read moreMediation - The future for personal injury claims?
Concluding a personal injury or clinical negligence claim on behalf of a claimant is often a bittersweet victory. Even after achieving the best possible outcome for the claimant, ultimately, the claimant still has to live with the consequences of another individual's negligent act which caused them harm.
In my experience, there often remains resentment over why the accident occurred in the first place and why the claimant had to go through an often lengthy and stressful litigation process to succeed in recovering a fair level of compensation. Regardless of what that sum of money ultimately is, the fact remains that no amount of money can take away those negative emotions.
Read moreCharity disputes and ADR
The recent case of Hussain v Chowdhury [2020] EWHC 790 (Ch) makes clear that, before giving permission to commence charity proceedings, the courts expect the parties to actively engage with alternative dispute resolution (ADR) procedures in trying to resolve their dispute.
Read moreCanada: Mediator Selection: Skills Often More Important Than Expertise
As per Rule 24.1 of Ontario's Rules of Civil Procedure, certain court proceedings in Ontario are subject to mandatory mediation. Even if it is not mandatory in a particular proceeding, mediation is a form of alternate dispute resolution that parties may want to consider to avoid a full trial, reduce the costs of litigation, and hopefully arrive at a settlement that is agreeable to everyone involved. Whether or not a mediation is successful is, in large part, dependant on the choice of mediator.
Read moreLA Courts Offering Online Dispute Resolution Programs in Small Claims Cases
The Los Angeles Superior Court system will launch a free online dispute resolution program next week for litigants in small-claims cases in an effort to settle the disputes without traveling to a courthouse, the court’s presiding judge announced Thursday.
Read moreHow to Make Divorce Mediation Work For You
Your life was building with a marriage, career and growing family, but now it’s not. Divorce isn’t merely a thought. It’s what’s happening. You’re sad, angry, and resentful, but you don’t want to create more destruction before it officially ends. If you want to end your marriage amicably and you and your soon-to-be ex are on good terms, divorce mediation is often the best path forward.
Read moreDispute Resolution Trends in Asia for 2021
The Year of the Ox represents a fresh start and an opportunity to ‘turn things around’ (牛转乾坤) for the better.1 The question considered below is what will the ‘Niu’ (牛)2 Year hold for in-house counsel operating in Asia and tasked with resolving commercial disputes?
Naturally, there will be disputes relating to COVID-19 and efforts to contain its spread. These will often be resolved through negotiation, particularly if the relevant contract clearly allocates the risk between the parties of force majeure events. Some long-term contracts, however, may need to be renegotiated as a result of turbulence in the market. Any deadlock in the negotiations could potentially be resolved through arbitration, although that cannot be assumed and will depend on the precise terms of the contract. Other types of disputes that could feature over the coming months include environmental disputes relating to the decommissioning of oil and gas facilities, M&A transactions that have gone sour, and private equity deals that are being unwound. With that said, this is obviously not an exhaustive list, with commercial disputes being as varied as the contracts from which they spring.
Read moreDTCI: For better or worse, Zoom has changed the practice of law
In my last director’s column, published one year ago this week, I wrote about the importance of relationships. Less than a month later, we were forced to retreat into our homes and away from our colleagues, friends and extended family. How’s that for timing?
One of the more interesting side effects of COVID-19, apart from the loss of taste and smell, is how the pandemic has accelerated trends such as the rise in remote work and the shift toward a life lived increasingly online. COVID has been great for Amazon, Zoom and Netflix. Not so much for concert promoters and commercial real estate owners.
Read moreThe road less travelled for dispute resolution - the benefits of ENE in patent litigation
It is an all too common scenario – a patent infringement complaint has been filed and the parties agree to resolve the dispute prior to service of the complaint. Yet they are unable to reach an agreement and the lawsuit moves forward. The next off-ramp settlement on the litigation highway is often thought to be mediation or arbitration. However, these processes are typically not pursued until later in the litigation, after claim construction has occurred and discovery is well underway. All this time the fee meter keeps running. Indeed, a substantial number of cases make it all the way to the proverbial ‘courthouse steps’ before settling.
Read moreMediation Underway to Avert Possible Strike That Could Affect Norwegian Offshore Fields
Mediation is starting Monday on the wage deal between the oil workers' union SAFE and the Norwegian Oil and Gas Association in a bid to avert a potential strike that could shut down production from several offshore oil fields in Norway.
"This can potentially lead to a strike which could affect activity at the terminal at Mongstad. The tariff agreement in scope for mediation is the Oil Agreement - Oljeoverenskomsten 224. The agreement is between YS/Safe, Negotia, and Norwegian Oil and Gas Association/Norsk Industri," Equinor said Sunday evening.
Read moreWhy are Lawyers Good Mediators?
In court, a lawyer’s role may be likened that of the client’s champion, and in most cases they represent their clients with great focus and passion. But lawyers, especially those who are regularly involved in litigation before the courts, are also accustomed to working with stringent laws, highly technical rules of evidence and within well-defined parameters of operation. Those of us who have seen lawyers in action before a court may therefore find it difficult to believe that these tough litigators can also display the ‘softer’ skills required for mediation. Fortunately for the parties involved in a mediation case, lawyers can indeed remove the cloak of litigator and turn into effective mediators. This is just the first of several good reasons that lawyers achieve great success in mediation.
Read moreNew code on preventing and addressing workplace bullying
Effective from 23 December 2020, the new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (S.I. No. 674/2020 “the code”) provides employers with fresh legal direction on what constitutes workplace bullying and what employers are expected to do when presented with allegations of bullying.
Read moreInnovative Ways to Use Mediation (other than Dispute Resolution)
The mediation process is inherently flexible. Traditionally, it is used as a dispute resolution tool where parties can come together, call a timeout and reach a mutually acceptable solution. But in the time of a pandemic or even otherwise, there are several uses of the mediation process. Different situations and circumstances can bring out several issues that one might face especially when working in a group or dealing with other people in general. Principles or even the process of mediation can help figure out a plan or a strategy for the developments and help tackle any issue faced by the parties.
Read moreThe Ten or Twelve Top Reasons (More or Less) for Not Mediating a Dispute - Revisited
At the beginning of a new year, it seems a good time to look back on some of the common excuses, sorry, reasons, for refusing to mediate that occasionally continue to circulate especially in litigated cases.
Quite a few of these nuggets have been around in one form or another since the mid-1990s, so you have likely heard them before, but still, let us look at them again from the perspective of mediating at any time, and especially during the time of the COVID crisis.
Read moreResolving COVID related insurance claims - how can mediators help?
We have all followed the high profile test case, brought by the FCA, to clarify how Business Interruption policies should respond to pandemic related claims. The Supreme Court judgment in The Financial Conduct Authority v Arch and Others has provided much needed guidance on the law is this area. Not least, it has overturned the egregious decision in the Orient Express Hotels case which left a hotel policyholder without cover from the impact of Hurricane Katrina. The court had decided in the now discredited case that a policy holder can’t claim for a BI loss if the event which caused it damage also led to wider area damage which would have affected its business even if it had suffered no direct loss!
Read moreAddressing the IP Dispute Resolution Paradox: Combining Mediation with Arbitration and Litigation
Clients and lawyers often consider negotiation or litigation to be their only options for resolving intellectual property (IP) disputes. While IP arbitration is on the rise, there is still a tendency to view these processes as alternatives to one another. A much broader range of processes can and should be considered to resolve IP disputes in most situations. While seasoned IP practitioners tend to focus on adjudicative processes (e.g., litigation and arbitration), non-adjudicative processes can help reduce the time and cost to outcome, improve settlement rates, preserve business relationships and provide higher satisfaction ratings. These non-adjudicative processes may be non-evaluative (e.g., mediation) or evaluative (e.g., conciliation or expert determinations). The inclusion of non-adjudicative processes (particularly mediation) in conjunction with adjudicative processes is likely to lead to significantly faster, cheaper and better outcomes, with higher compliance and satisfaction ratings in over 90 per cent of IP disputes, both in domestic and international matters. It should be considered in all IP disputes.
Read moreTiming is Everything Again
They say that in real estate the key is “location, location, location.” It could certainly be argued that in mediation the parallel is “Timing, timing, timing.” I have fallen into the trap of having a couple come to me for mediation and agree to start the process but then not following up with them about the issue of timing. That is, were they prepared to start the mediation process? Were they ready to divorce? And, were they ready to have difficult conversations? I simply assumed that they were both ready to “proceed.” You know what they say about assumptions. I have come to learn and believe that in every case, whether it seems obvious or not, we should inquire about the issue of the parties’ readiness and the timing/pace of the mediation and maybe even go so far as to get an informal agreement from the parties about the pace at which they want to proceed. This may be easy and straightforward or it may be the first difficult issue the parties address. Sweeping it under the carpet will only come back to bite you and your clients.
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