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 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 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 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 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.
Read moreDivorce During COVID – How We Have Adapted
Like almost everything else in life, the COVID-19 pandemic has greatly altered the practice of family law. With court closures and social distancing measures, the court system, attorneys, and clients have turned to technology to keep the legal process moving along. Family law matters such as divorce and paternity can be difficult and complex, so the idea of using a virtual meeting platform, like Zoom, for attorney-client consultations, mediations, and hearings was initially met with skepticism. As a client, you may wonder, as we once did, whether these meetings and proceedings can be effective if they are not handled in person. After all, divorce and paternity matters often involve highly sensitive issues such as parenting, time-sharing, child support, and alimony. A strong client-attorney bond built on human interaction and connection can provide you with much-needed support during such an emotional and challenging time.
Read moreDealing with VIP Privilege in Mediation
Working with egos and emotions is considered an obvious task for a Mediator and this responsibility is heightened when the parties involved are high profile individuals or global brands. I was recently appointed to mediate a contractual dispute between a celebrity and a multi-national brand. From the beginning, both made it clear (through their attorneys and power of attorneys) that they were “very important people” in their own rights, and therefore, will not be seeking to compromise on what they regard as righteous and reasonable.
Read moreMediation in a virtual world
The COVID-19 pandemic has brought new challenges to all manner of dispute resolution. Whether it is becoming accustomed to addressing a judge from your bedroom via Zoom, taking instruction from your client on WhatsApp, or trying to guess your opponent’s hobbies from their home office bookshelves, the new world of remote-working has brought new difficulties and forms of workplace and entertainment in equal measure. What has not changed, however, is the demand from parties to resolve their disputes expeditiously and efficiently, including through mediation. This begs the question: how do mediations and practitioners need to adapt in this brave new world? It is likely to be here to stay, so here are five top tips for surviving and getting the most from a virtual mediation.
Read moreMediation in arbitration: insights from the London chamber of arbitration and mediation/ Herbert Smith freehills survey
The Herbert Smith Freehills arbitration team has partnered with the London Chamber of Arbitration and Mediation to conduct a snapshot survey of more than 50 mediators, exploring their experience of mediation in arbitration in 2019 and 2020. The results of the survey shed light on current take-up of mediation in arbitration, the stages of the dispute at which these mediations are most likely to occur, claim values, and settlement rates. In this blog post we discuss and reflect on mediator responses to the survey, examining what the survey results reveal about the current trends in mediation in international arbitration. You can also watch a short video summarising the key findings of our research here.
Read moreCompromise - it’s not a dirty word
During mediation my heart sinks whenever I hear a party say they can’t give anymore without compromising their ethics or values. Why has compromise become a deal-breaker with such a negative association of giving up or giving in? It doesn’t have to be like that – and parties in mediation should be encouraged to embrace compromise as a worthy strategy.
Read moreThe Pandemic Shows Why Mandatory Mediation May Be the Future for Business Disputes
The coronavirus pandemic has been a stress test on the American legal system, shutting down courthouses, forcing judges to postpone long-standing trials and pushing lawyer-client meetings onto Zoom calls.
The results have been clear: traditional legal routes of resolving business disputes are simply too difficult and costly to continue during the pandemic.
Read moreMediate.com Instructor Discusses Implicit Bias: We All Have It
Every second, millions of bits of new information are trying to enter into your awareness. Imagine how overwhelming that must be for your brain. In response to this barrage of input, your brain has created an organizational system wherein it simply ignores some of the data (“inattentional blindness”) and sorts the rest into categories it has created.
Read moreIreland: New Code Of Practice Overhauls Workplace Bullying
It's time to review all "Dignity at Work" policies and introduce updated "Anti-Bullying" policies to comply with the recently published "Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work" ("the Code"). The Code repeals the previous Health and Safety Authority (HSA) and Workplace Relations Commission (WRC) Codes of Practice and introduces new procedures for the management of workplace bullying.
Don't Let Lies Infiltrate The Mediation Process
Mediation is quickly becoming an even more important form of adjudication as courts have been significantly impacted by the COVID-19 pandemic.
With the second surge in reported cases, courts across the nation have been forced to further postpone jury trials until at least March or April. Thus, mediation will be a more attractive option for parties looking to quickly resolve disputes and for courts to address overflowing dockets.
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