A new California law now requires attorneys to provide written disclosures to and obtain consent from their clients regarding California’s mediation confidentiality restrictions. The new law, effective January 1, 2019, applies to all civil cases except class actions. Under the new law, as soon as reasonably possible before a client agrees to participate in mediation or pre-mediation consultation, attorneys must provide their client with a written disclosure that identifies the confidentiality restrictions related to mediation. These written disclosures must be in at least 12-point font and be printed in the preferred language of the client. Additionally, these disclosures must be a single page document that is not attached to any other document provided to the client and be signed by both the attorney and the client.Read More
“What if legal research was more human, more like a conversation, the kinds we have among ourselves?”
With that tantalizing query, Serena Wellen, senior director of research information at LexisNexis, revealed during a Legalweek media briefing that the legal research platform Lexis Advance will soon include chatbots to help guide users in their research.
“Our goal is to make legal research more guided in a more conversational experience,” Wellen said.Read More
My point I guess is that mediation is not all linear and purposeful as it might appear in the competition environment, with polite openings with the usual platitudes, logical issue identification, measured joint meetings, ordered caucusing and win/win agreements…. it’s… well… messier, I guess.
Any active mediator or mediation advocate will experience a huge range of mediations from corporate to personal, from cash and carry to multi party, multi-faceted, high conflict emotional situations. And for those who go on to represent clients in mediation and then perhaps become mediators, it will be a considerable surprise that the skills needed are not the ones that many teams will have spent most time on when preparing for this year’s competition.
Because, one of the several paradoxes of mediation is that in many cases, the more logical, the more persuasive the argument, the more contrary and extreme the response. And in fact, what is needed, is the ability of advocates, and more so mediators, to build trust and create rapport.Read More
In past blog posts, I have discussed implicit biases and how important it is to recognize their existence and to counteract them in our daily lives. Yet, there may be another and more positive way of looking at them. It is simply a question of “framing”. (See below!)
The first is anchoring which occurs when an individual “…rel[ies] too heavily on an initial piece of information offered (known as the ‘anchor’) when making decisions.” (Wikipedia ) .
The second bias that can be used to one’s advantage is the availability bias which is “…the tendency to rely on readily available information.” (Id.).
A third bias is framing “… in which people react to a particular choice in different ways depending on how it is presented; e.g. as a loss or as a gain.Read More
In a March 13, 2018 post, LiveScience.com contributor Jasmin Malik Chua published an article on the value of optical illusions. Entitled “What This Optical Illusion Reveals About the Human Brain”, Ms. Chua replicates a 19th century optical illusion which can be either a rabbit or a duck, but not both at the same time. She explains: “…First published in 1892 by a German humor magazine, the figure was made popular after the philosopher Ludwig Wittgenstein used it to illustrate two ways of seeing. “(Id.)
The author further notes that when two copies of the illusion are placed side by side, as above, the viewer is likely to see either two ducks or two rabbits, but not one of each. In fact, “… about half of the people can’t see a rabbit and a duck at first glance….” (Id.) To do this, one must give their brain more information to work with. “… [W]hen it comes to distinguishing between two ways of seeing identical images, context is vital. “(Id.)
The analogy to disputes is obvious. Each party will take the same set of facts and see something different…. And swear that their view is the ONLY correct view of the matter. Like the above, they do not realize that their view can be an optical illusion in which they see the head of a rabbit while the other party sees the head of a duck and both are correct. And, as the author notes… “context is vital” (Id.) to determine whether the picture is indeed the head of a duck, the head of a rabbit or perhaps both! So… always keep in mind that there is always more than one way to view and analyze a fact, a story or a party’s position on a matter.Read More
Arbitration is actually the ultimate Choose Your Own Adventure story. Each arbitral proceeding is potentially unique because the parties get to prescribe their procedures in their arbitration agreement. A well-designed arbitration clause can give the parties substantial control over procedures and costs, as well as over who decides which issues and when. All too often, however, parties make agreements that leave the decisions on most of their options to others or to chance.Read More
NLP approaches non-verbal behavior from a different perspective. Can you remember a time you were having a wonderful conversation with someone? The kind where time seems to fly? You may have noticed that at these times you and your companion might have been speaking at the same rate or sitting in the same way or making the same gestures or using the same phrases? Or perhaps you might be a people watcher at a restaurant or a café and have noticed that you can tell whether the groups were getting along by watching whether their non-verbals were synchronized or not.
In NLP terms, we describe this state of synchronization as being in rapport. It should not be surprising that people who get along will synchronize their behavior, both verbal and non-verbal. What might be more surprising to some is that, building on the idea that human interaction is systemic, the reverse is true. NLP suggests that one can build systemic rapport by pacing the other person’s non-verbal behaviours.
This means that when a person sits a certain way, one can subtly sit in a similar if not exactly the same way. When a person uses a particular gesture when speaking, one can subtly match that gesture when speaking. If a person speaks at a particular speed, one can speak at the same speed.Read More
As Chip and Dan Heath describe in their book Switch: How to Change Things When Change is Hard, we are rational beings with a “Rider” that logically analyzes our surroundings. Our Rider tries to direct our emotional side, “the Elephant.” Although we like to think our Rider is in control at all times, in truth, the Elephant is in charge much of the time. Data concerning the benefits of early case assessment and planned early dispute resolution may be appealing to the Rider, but if the Elephant is afraid of an unfamiliar process that might lead to bad outcomes, it will not move.Read More
On Jan. 16, 2016, with time expiring in the fourth quarter of a playoff game between the Green Bay Packers and the Arizona Cardinals, the Packers quarterback Aaron Rodgers completed an improbable Hail Mary touchdown pass to bring the Packers within 1 point of the Cardinals.
The Packers then had a choice to make. They could kick an extra point, which would send the game into overtime. Or they could go for a 2-point conversion, which though more difficult would win the game.
Ultimately, the Packers chose to tie the game with an extra point. Then their fans watched in dismay as the Cardinals promptly scored a touchdown in overtime and won the game.Read More
You’re probably getting ready to make a few New Year’s resolutions, solemn promises to yourself to behave better in 2018. You might have pondered how you’re going to accomplish those goals, who could help you and why you need to change.
But if you’re like most people—and social science suggests that you and I are like most people—you’ve neglected a question that could help you actually stick to those resolutions: “When?”
We all know that timing matters. But most of our decisions on this front are intuitive and haphazard. Timing, we believe, is an art.Read More
No one is perfect. We all get upset. But some of us get upset more often than others. If that person is the client or the person you’re dealing with “EAR Statements” may help, according to an article by Bill Eddy.Read More
The goals of re-creation are still sound: mediators still need to show that they “get it”. Once a mediator “gets” something, it no longer has to be discussed or repeated with the mediator. But until the mediator gets it (whatever “it” is), the need for discussion remains. So for conversations with mediators to progress, mediators still need to show that they get it. Mediators also still need to help the sides hear each other without reactive devaluation. That’s the only way people can evaluate where they really stand and make the smart, calm decisions which lead to settlements. The mediator who takes zero notes does a better job of helping people reach these important goals. Here’s how.Read More
This article discusses the neurobiology of what is perhaps the most common problem in mediation: people take the conflict personally and the outcome of the mediation as a reflection of who they are. Learning to let go of this identification to the self with outcome - with "face" or "ego" issues- has psychological and spiritual dimensions.Read More
WASHINGTON — In its first argument of the new term, the Supreme Court on Monday considered whether to give employers a powerful tool to bar class actions over workplace issues.
The court’s decision on the matter could affect some 25 million employment contracts. A ruling in favor of employers, Justice Stephen G. Breyer said, could cut out “the entire heart of the New Deal” and undo an understanding of labor relations with roots in the administration of President Franklin D. Roosevelt.
The case is the court’s latest attempt to determine how far companies can go in insisting that disputes be resolved in individual arbitrations rather than in court.Read More
The inability of Americans to cope with gaps of silence makes it a powerful tool. As the article explains, the silence that occurs after one has finished speaking often causes the listener to feel uncomfortable. Rather than using the silence to reflect on what was said and to focus inward, the listener will feel quite awkward and an overpowering need to fill in the gap. In doing so, the listener will often make concessions or offer a compromise or make statements detrimental to her position. Thus, the speaker “wins” by remaining silent. Or, as Katie Donovan quoted in the BBC article notes, “He who speaks first, loses.” (Id.)Read More
Empathy is critical to being a good negotiator. You must address the other person’s needs and wants in order to reach an agreement. Being emotionally cut off from others is not a recipe for negotiation success. On the other hand being too tuned in to others’ emotions can weigh you down and overwhelm you. An article in Lifehacker has some suggestions on how to keep a balance.Read More
In a 2-1 decision, the United States Court of Appeals for the Fifth Circuit has overturned a National Labor Relations Board (“NLRB”) ruling stating an employer may not require job applicants to sign a class-action waiver that is not included in an arbitration agreement because such a requirement violates the National Labor Relations Act (“NLRA”). In Convergys Corp. v. NLRB, No. 15-60860 (5th Cir., August 7, 2017), an Ohio-based company, Convergys, required all prospective employees to sign a waiver stating the individuals would not engage in collective action against the company. Unlike many other NLRB decisions involving class-action waivers, the Convergys waiver was not included in an arbitration agreement.Read More
Read more for six of the hottest issues in arbitration law so far this year.Read More
On the face of it clarity and certainty would always appear to be preferable to ambiguity, in order that people know where they stand and can plan and act accordingly. However, in a recent article Fintan O’Toole reflected on the position of Northern Ireland in the Brexit negotiations and concluded:
“…stopping the violence meant creating an ambiguous space that is neither quite one thing nor the other: neither simply Irish nor simply British. What the EU and Britain both need to recognise when the negotiations begin is that this ambiguity is not just a possibility. It is a necessity.”Read More