ARTICLES

Here’s a selection of posts and articles that I hope will be of interest to you

Eat Toast In Bed – Go to Sleep With Crumbs
Sometimes in mediation, I ever so gently broach the subject of responsibility….

In Defence of (Defensive) Mediators
Ask most mediators of a certain stripe and they will be only too willing to tell you the story of long ago when they left their law firm or maybe even chambers to become a mediator….

A New Seat at the Mediation Table?
The Impact of Third-Party Funding on the Mediation Process (1)
The Impact of Third-Party Funding on the Mediation Process (2)
In a two-part article, Geoff looks at the development of third-party funding of mediation and compares notes with UK mediator, Bill Marsh, on how funding impacts the mediation process…

The Californication of Mediation
The rise and rise of the mediator’s proposal and other evaluative interventions by many of our number, along with the relentless demise of the joint session, are all part of a larger lurch to the right for mediation practice…

Effective Paperwork in Mediation
As mediators, we spend much of our time contrasting mediation with, and distancing ourselves from, litigation. Before your eyes glaze over, that is not for this post. Instead, this post draws out one of the many similarities between mediation and litigation…

The Rise of Co Mediation in Mega Mediations
With the rise of the mega case – often funded class actions – a unique challenge for mediation is emerging…

Desert Island Questions for Mediators
My very first article from way back in 2001… 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. Then I became a mediator…

 

 

 

Old Man (a mediation parable)
From the documents I had been given beforehand, I knew he had substantial assets so I was surprised at his appearance when we met at the start of the day. He was an old man – I guessed well into his 70’s, gaunt and gnarled…

Dispute Resolution Clauses in Commercial Contracts : The Case for Later Settlement
I don’t mean to argue against the undeniable wisdom of inserting a dispute resolution clause in a commercial contract at the drafting stage. Conventional wisdom says settle your disputes as early as possible…

Killer Position Papers
On a review of the last 20 or so mediation position papers I have received, a large percentage of them start with the words “This case involves…”

Mediation 101 – Three Essential Concepts
This week I spoke to a group of young legal practitioners here in New Zealand. I aimed low and went back to source. I suspect I got more of a kick out of it than anyone at the session.

The Art of Mediation of Insurance Disputes
A sophisticated primer for those preparing to mediate – ranging from picking your mediator and your team, what documentation to give the mediator and more.

Bracketing the “Zone”: Getting to the range in which bargaining succeeds
… the term “bracketing” has emerged to summarize the mediation process of negotiating the high and low of the bargaining zone.

The Top Ten Barriers To Dispute Resolution
When negotiators are determined to be effective and collaborative, recognition of these barriers will enable them to move the mediation process forward in a positive way. This knowledge will also help the thoughtful and determined negotiator to break impasse…

  1. Inadequate Planning and Preparation
  2. False First Impressions and Perceptions
  3. Grief
  4. Systemic Distrust
  5. Failure to Communicate and Listen
  6. Insufficient Focus on Underlying Interests
  7. Partisan Perception/Judgmental Overconfidence/Wrong Baselines
  8. Reactive Devaluation
  9. Misunderstanding the Loss/Risk Analysis
  10. Failure to Give Opponents Face, Respect, and Dignity
    [read more]