Mediation Lawyering

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Mediation has long been used as a method of resolving disputes. Indeed, the practice of combining mediation and arbitration by the same neutral has been traced back to ancient Greece and Ptolemaic Egypt[1]. In his paper “Varieties of Dispute Processing”, presented to the 1976 Pound Conference, Harvard Professor Frank E.A. Sander proposed that, instead of…

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(Strategic Resolution) and (University of New South Wales)/ /1 Comment

                                                        In the beginning … Back in the 1976 Pound Conference called “Proceedings of the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice”, Harvard…

Commercial Mediation, Community Mediation, Developing the Field, Dispute Resolution, Family Mediation, Lawyers, lawyers in mediation, Mediation Lawyering, Mediation Practice, mediation traditions, Mindset, Negotiation, Stages of mediation, The role of the mediator, Uncategorized, Understanding mediation

(University of Strathclyde)/ /14 Comments
Lawyer making opening statement in mediation

“The world is made, not found.” (W Barnet Pearce) I had been a mediator for about 10 years before I heard parties’ initial words described as their “opening statement.” This may surprise some readers, though probably not if they began, like me, in family mediation, nor community or workplace. Other descriptions are available, as our…

Costs in Mediation, Decision making, Interests, Lawyers, lawyers in mediation, Legal Issues, Legal Practice, Mediation Lawyering, Negotiation, Tactics, Trial Value

(University of Missouri Center for the Study of Dispute Resolution)/ /Leave a comment

While it is obvious that law is significant in legal disputes, how the law is used is not so obvious. This piece uses Oliver Wendell Holmes’s famous definition of the law as “prophecies of what the courts will do in fact,” rather than rules expressed in statutes, case law etc. It discusses two aspects of…

lawyers in mediation, Mediation Lawyering, Mediation Reforms (Legislation, etc.), Reform, Regulation, Set Aside a Mediated Agreement, Settlement Agreements, United States

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Good Faith is part of the Mediator’s mantra. Our opening addresses are full of it and it is something we regularly remind parties and their lawyers is an important element in rebuilding fractured relationships and achieving durable resolution. But sometimes it becomes obvious that Good Faith is missing in action. A very useful new article…

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(Bill Marsh Mediator)/ /1 Comment

I am not really one for elevator pitches. But I did hear one the other day about creating impact in a very short space of time, and I was struck by its relevance to mediation. Essentially, the message was that the people we meet make up their minds about us based on two key criteria,…

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(Bill Marsh Mediator)/ /8 Comments

Mediation can be an intense experience for parties and their advisers. Often there is a lot on the line. In the substance there may be money, control, reputation, pride. In the process, there are challenges such as influencing other parties, getting the best deal possible, making well-informed judgment calls about risk, developing effective offers, and…

Argument, Below the line, Clients, Commercial Mediation, Dialogue, Experts, Fear, General, Joint Sessions, Lawyers, lawyers in mediation, Legal Issues, Litigation, Mediation Lawyering, mediation process, Preparation, Tactics

(Bill Marsh Mediator)/ /4 Comments

This is the first in a short series of how parties and advisers can best deploy the “assets” at their disposal in a mediation. Naturally, it is written from my perspective as a mediator, and so I recognise that it may look different when you are representing one side in a mediation, rather than in…

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  Court cases are an important source of guidance for mediators, disputants and their lawyers. They remind us that the law casts a long shadow even when a mediation appears to have resolved successfully. They can rescue us – helping us identify and avoid previously unforeseen difficulties. Here’s an example Mr. and Mrs. Studer moved…

Costs in Mediation, Mediation Lawyering, Mediation Schemes (In Courts, etc.), Regulation, Uncategorized

(Weiler ADR Inc.)/ /Leave a comment

The recent cost decision of Justice Graeme Mew in Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288 (CanLII) provides an instructive review of the principles the Court will consider when weighing the cost consequences to an unsuccessful party of unreasonably refusing to participate in a mediation. The case involved whether an automobile race track was…