Category Archives: Negotiation

Recent developments in ODR – Brāv attends conference in Liverpool, UK

ODR is certainly growing. There has been a review of the court system recently in the UK and Lord Justice Briggs has recommended reforms, which may promote the use of ODR. The proposals involve taking the court system online and so reducing the need for live hearings. It is proposed that there will be 3 stages. The first – a largely automated service for identifying issues; the second conciliation

and case management by case officers; the third – resolution by judges. Once the issues have been identified there will be a negotiation stage where attempts will be made to settle the dispute. Finally the matter, if unresolved, will proceed to be heard before a Judge but this will be done largely on the papers and it is unlikely there will be any need for the parties to physically attend Court. It may not even be necessary for the parties to be present at the same time. It is my understanding that at present the proposed new system will be limited to monetary claims up to £25,000. However, this limit may be moved upwards in time. Whilst the new system will not ban the involvement of lawyers part of the driving force behind the reforms is to avoid the necessity for lawyers thus providing access to justice for those who cannot afford to pay for legal representation. Accordingly, it is proposed that the new system will be straightforward so lay clients can navigate it without the assistance of lawyers and that there will be court staff available to explain the operation of the system. It may be that the early stages of the new system will allow for the use of ODR neutrals to try to settle the dispute.

We have recently seen the implementation of directives from the EU which will also no doubt provide new opportunities for ODR neutrals. The recent directives oblige businesses to provide consumers with the details of a mediation provider when a complaint is made. In addition, those businesses which trade online are obliged to put on their website the details of an ODR provider. It is my understanding that the UK government has approved certain specified mediation providers for this purpose. It remains to be seen whether many consumers will want to use this service but it is certainly hoped they will, although there is no obligation on businesses to agree to refer the matter to mediation as the obligation is only to provide the details of a suitable mediation provider (but not actually to use it).

These issues were discussed at a recent conference I attended on behalf of Brav in Liverpool, UK last month entitled “Online Dispute Resolution-Justice Re-imagined​”. Indeed, Lord Briggs addressed the conference being the keynote speaker. The EU Directive was mentioned although it was noted that use of the ODR remains limited, as it seems many businesses have failed to comply with the EU Directive. However, it is anticipated that the use of ODR by consumers will increase over time as more businesses become aware of the requirements of the EU Directive.

The conference drew speakers from all over the world covering a wide range of subjects. It is apparent that ODR is being implemented worldwide. Indeed, we even heard about how the Chinese are implementing ODR into their legal system. I can’t wait for the next conference…

Greg Rance

Brāv Online Mediator

Brāv & MEND!

Mend: Listen Now & Listen Good

 

 

 

 

#MendAtPunto #PuntoArts #PuntoSpace #Women #Theater #NYC #MothersDay

LET’S CELEBRATE WOMEN’S VOICES. WHILE WE’RE AT IT, LET’S MEND.

Mend: Listen Now & Listen Good is a one-time theater event taking place in celebration on Mother’s Day and artist autonomy on May 13, 5-7pm on PUNTO’s main stage.

A diverse group of multidisciplinary women in the arts, performers, and storytellers will take the stage on topics to include gender, age, culture, motherhood and being a woman.

The evening is sponsored by PUNTO Space, an event and performance raw space located in Midtown West (NYC) founded by theater and performing artists with social good in mind.

Mend: Listen Now & Listen Good is a celebration that amplifies artist autonomy, inclusion in the arts and collaboration.

Light refreshments will be served. Admittance is RSVP-only and complimentary for guests.

 

https://mendatpunto.splashthat.com/

 

Attributes of a Good Mediator

There is no formula for figuring out who the “best” mediators are – there is no governing body that determines minimal qualifications for a professional mediator. Even if there were, education and training don’t guarantee competence, because a “good” mediator also possesses certain internal attributes that aren’t necessarily learned in a classroom. They just simply can’t be learned in a classroom. They are internal traits which are either inherent or learnt from one’s own environment.
This article lists external and internal attributes that the most effective mediators possess.

External attributes

Mediators in the United States are not required to meet a uniform standard of education or training for beginning to practice mediation; each state has its own requirements, or, in many cases, none at all. It depends from situation to situation and place to place.
For this reason, it can be difficult to evaluate the qualifications of a potential mediator. We recommend paying particular attention to the following external attributes of mediators you are considering to hire:

Training/Education

How much training has the mediator received?

Was any of the training specific to a certain area of practice (e.g., family, landlord/tenant)?

How recently was the mediator trained? Do they attend refresher courses and keep up on current mediation techniques?

Where was the training conducted?

Does the mediator have a degree in dispute resolution or a related field? If so, from where (e.g. online, law school, university)?

These questions do held relevance, even though just a degree is not enough to know the competence of a mediator.

Certified or certificated? (If required in your state)

Is the mediator actually certified or certificated?

What organization issued the certificate?

What are the requirements of that certificate?

When was the certificate earned?

This will let you know the ‘value’ of you mediator, and will give you a fair abour his or her skills.

Experience

For how long has this mediator been in practice? Full-time or part-time?

How many mediations has this mediator conducted, and how many were similar to yours?

Does this mediator specialize in the area of your particular dispute?

This one is important. More the experience, more the tact. Experienced mediators often have higher success rates than the ones who are not that experienced.

Professional memberships

Does this mediator belong to an organization requiring adherence to certain standards?

Does this mediator serve on the board of any relevant organizations?

This again gives an idea about the standing and influence of a mediator.

Philosophy and approach

What philosophy does this mediator apply to their work? Do they describe their work as facilitative, transformative, and/or evaluative? Take note of how the mediator describes their process, then consider what that would look like when applied to your case.

What kind of interaction with disputants does the mediator like to have?

Fees

Are fees charged by the session, by the hour, by the case?

What is included in these fees?

This one is also  important and should be decided beforehand so there are no disputes about it afterwards.

Internal attributes

What about the things that can’t be listed on a profile page? There are five ways to know about the competency skills which cannot be presented on the paper:

Investigative

Effective mediators are able to quickly identify relevant information. They ask questions to gain an understanding of both the facts of the case and of parties’ underlying interests and motivations. This investigation helps them in understanding and resolving the case.

Empathetic

Mediators should handle the knowledge of parties’ underlying interests with empathy and consideration. They are willing to ask emotionally difficult questions and do so in an unbiased and respectful manner. A non empathic mediator has lower success rates.

Inventive and problem-solving

Effective mediators help disputants discover common ground and guide them toward mutual understanding from there; they are willing to be inventive with unusual situations. This will help you reach faster to a resolution.

Effective presenter

Verbal expressions, gestures, and eye contact are consistently and effectively used by good mediators to structure an environment in which disputants are willing to re-examine their positions. They maintain a safe and relatively calm atmosphere with confidence and communicative body language.

Capably manages interactions

Mediators should keep the parties on track and working toward the issues they have identified as central to their conflict, and call for breaks or private caucuses when needed. A good mediator knows when allowing tension to rise will be productive and when to effectively defuse tension. These tactics must demonstrate sensitivity to the disputants’ needs (e.g., emotional, cultural) and remain neutral.

After the mediation

After you select your mediator – and hopefully, settle your case – it’s time to help others consider this mediator for their own cases. A testimonial and/or recommendation of your mediator provides vital information for other people in conflict, particularly about the mediator’s internal attributes that can’t be seen on a profile page.
Additionally, a testimonial helps to spread the word that mediation is a quick, confidential, and cost-effective way to settle disputes out of court. A mediator should be selected very carefully and in no haste.

Buddy’s Point to Ponder

Knowledge is the one acquisition that can never be stolen or destroyed. However, it can become irrelevant or obsolete. The truest value of acquiring knowledge, therefore, is not the knowledge itself but acquiring an understanding of how to evolve through an ever-present pursuit of relevance when one attains new knowledge.

Mediation/Arbitration: An Alternative to Litigation: “Workplace Sexual Harassment, #MeToo & Finding A Resolution Process”

#METOO Trends and Highlights

Cyber Bullying Abusement Harassment Trolling

IN the past few months social media and every industry has been a flooded with allegations of sexual harassment. The silence has been broken, and the once considered “too powerful” and untouchable are being “handled” and striped of their positions/power. Sexual harassment is not industry specific, it is not new and the skeletons in the Walmart-size closets are busting out. Here are some statistics from the U.S. Equal Employment Opportunity Commission and news polls:

  • 75% of all workplace harassment goes unreported.
  • 30% of individuals who were harassed spoke immediately to their supervisor, unionrepresentative, managers or the Human Resource department.
  • “…sexual harassment training is easily mocked – and often brushed off…”
  • According to the Washington Post “between 1997 and 2014 the US Treasury” paid 235awards and settlements worth approximately $15.2 million for workplace violations on Capitol Hill.No industry is safe from sexual predatory behavior. And the behavior has been allowed to permeate the business/entertainment/ culture. Even the EEOC states that yearly training is not enough and is usually only focused on avoiding legal liability. After doing many EEOC mediations which lead to reviewing thousands of employment manual pages, state and federal rules, regulations, and policies, I am comfortable to say that there remains to be A LOT of work done if we wish to change the sexual harassment culture.Finding a Resolution Process

    We know that victims are ignored and paid off; and litigation and hefty settlements have not prevented predatory behavior. So what is the answer, and what should be considered when seeking arbitration and mediation as alternatives? Honesty, I am not sure, but I am confident that the Victim-shaming, fear, and the industry-cultural norms that allowed sexual harassment to go unchecked and underreported need deeper and broader systemic solutions.

    The following are brief points when considering other resolution options:

    Arbitration, Akin to Litigation –

  • Engaged as per employment contract provision(s), due process paranoia is a challenge.
  • Awards are usually confidential.
  • Victims often relive the incident like at a trial.
  • No appeals process.Mediation – Pros & Cons (limited and not exhaustive)
    • Pro- Empowerment- Many victims want an opportunity to face their abuser and ask “Why?”
    • Pro: Confidentiality- Victims are often ashamed and do not want, to have to relive the event multiple times.
    • Pro: Time – Much faster than litigation and arbitration.
    • Con: Confidentiality – Mediation and the possible agreement, are confidential. Theabuser often gets a chance to silence the incident/victim and is not truly held accountable.
    • Con: To Settle – Should a victim compromise and settle with the abuser?Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and has a private mediation and ADR consulting company. He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.

Buddy’s Point to Ponder

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What is an Anchor?

In normal usage, an anchor can be the stable rock supporting an effort or keeping an object in one place. Good or bad? When used to keep a boat or ship in place during normal use, it means you can always find what is anchored. During a bad storm, it can mean finding it at the bottom of the ocean, with the anchor doing more harm than good, unless the anchor line has enough flexibility to reduce risk at the same time.

In human terms, an anchor should have the action potential to be both the foundation and the best person to plan around when seeking a change. The flexibility to be both the voice of reason and the spirit of motivation. Always strive to be an effective anchor while being flexible enough to meet all needs. Be the anchor!