Thanksgiving Week Thoughts

Another year is rapidly coming to a close. While we’ve seen “Change” (whether we can believe in it or not) and global financial unrest, there are still plenty of things for which to be thankful.  The nightly news seemingly wants you to focus only on the negatives, but during this time of year it is best to look upon the positives. They are there, you just need to know where to look:

• Dell Computer’s revenues are up, as is it’s stock price (and this is only one example of a business doing well).
• Money Magazine believes that recovery is 6-9 months away.  It will be slow, but we will crawl out of this.
• Consumer confidence ratings are up in November.
• Gas prices have returned to a “normal” range of $1.75 to $2.00 per gallon.
• Homes sales saw their biggest gain since 2003.
• Causalities in the Iraq conflict have been decreasing over the past few months.

If you can’t find positive national or local news stories, then look closer to home – your family, your health, your job.  I’m sure you could find something of which to be proud and for which to be thankful.

I’m no Pollyanna.  In fact, I’m a cynical bastard.  I know it is tough out there.  But Thanksgiving allows us to stop, take a breath, and try to focus on the good in our lives.

Have a great Thanksgiving everyone.

Jeff Krivis’ Excellent New(ish) Blog.

I recently found Mediator Jeff Krivis’s new(ish) blog [Not to be confused with a Jewish blog].   Jeff has been a mediator in Southern California for almost 20 years and is a recognized leader in the field of mediation and negoiation.  I look forward to some great posts on negotiation, mediation and other ADR news.

Does how write betray our gender (biases)?

Apparently so, says GenderAnalyzer.com.  Just plug in your blog’s URL and their “artificial intelligence” will determine whether your blog was written by a man or a woman.  According to them, there is a 63% chance that my blog is written by a man.  Quite amazing actually, since I do shave my legs*, which make up about 34% of my body….

Plug in your favorite dispute resolution blog.  You may be surprised by some of the results.

Read more after the jump.

UK Litigation “Boom” is a Dud?

UK-based website The Lawyer reports that

The number of cases being launched in the High Court has reached a six-year high, but the much-­anticipated litigation boom has yet to take off.

Fiona Walkinshaw, a litigation partner of a London based firm suggests that ADR is the reason.  She states,

Many financial ­institutions will want to stay out of the public arena and opt for alternative means to settle claims.

Ms. Walkinshaw further stated that “it would be difficult to gauge litigation activity with so many ­corporates looking for alternative means of settlement.”

The Importance of Having the “Decider” at Mediation.

No, I’m not actually talking about the decider, George W. Bush, but the ultimate decision maker.

While there is no authoritative definition of “mediation,” I think most would agree that a key to successful mediation is the meaningful participation of the parties.  All too often, I am asked to mediate cases involving businesses or insurers who send only their counsel to mediation.  And all too often, these cases don’t settle.

An adjuster, EVP or C-level officer “available by phone” doesn’t truly engage the other side.  They are not forced to participate in candid discussions about the strengths (and possibly more importantly) the weaknesses of their case.  They cannot look the other side in their eye and assess their credibility or whether they would make a sympathetic witness.  There are an infinite number of things that can occur in a mediation that change a party’s assessment of a case, few of which can be communicated “over the phone.”  Failing to send the ultimate decision maker also sends the not-too-subtle message that “your case really is not that important to us.”

To their credit, most of the attorneys I see in such mediations lament the absence of their corporate representative and do an admirable job without the person with final settlement authority; but it is very difficult to get the decision maker to move from an entrenched position unless they directly and fully participate.

Are We a Society of Procrastinators?

Abraham Lincoln once wrote “Leave nothing for tomorrow which can be done today.” But it seems like most of the people with whom I deal follow Mark Twain’s aphorism,”Never put off until tomorrow what you can do the day after tomorrow.”  This applies to both professional and pro se alike.

Despite the fact that the mediation coordinators of the various court-referred programs send out the Order scheduling mediation with a minimum of three weeks notice, I don’t know how many phone calls I get from parties seeking to reschedule or cancel court-referred cases the day/night before the mediation.    That is, if I get a call at all.

The only explanation I can think of is…………………

Eh, I’ll finish this later.

Pay Tribute to Our Veterans

I know this post is a bit late in the day, but there is still time to pay tribute to our veterans.  I did not have the privilege of serving, but know several who have, including an uncle who served during the Viet Nam conflict, and several great-uncles who served in Korea and WWII.  My great-uncle Frank watched the surrender of the Japanese from the USS Missouri.

I am humbled and honored by all those who have and currently serve in our Armed Forces.  Their dedication and sacrifice protect and guarantee our liberty and freedom.  Thank you.

Also, a belated Happy 233rd Birthday to the United States Marine Corps – which, if you do the math, makes the Corps older than the United States…

Irritating Mediation Phrases

Over at DIALOGIC Mediation, Arnold Zeman has posted the 10 most irritating phrases/expressions/idioms as compiled by an Oxford University study.  At the end of the day, I personally agree with most of them.  There are also a few that I’d add.  Eh, it is what it is.

It got me thinking, though, about overused phrases, gimmicks and crutches that some mediators use when they can’t think of anything productive to say.

I’d love to hear from you.  If you are a mediator, what phrase, idiom or expression causes you to cringe when you hear a party say it?  If you are a lawyer or repeat user of mediation,  what phrase, idiom or expression makes you sigh deeply in disbelief when you hear the mediator say it?

I’ll get the ball rolling.   I have to stifle my impulse to roll my eyes when a party says, “It’s a matter of principle.”

One last thought – is it really irritating a) if your client has never heard it and b) it WORKS!?

No respect, I tell ya. NO respect.

We are a TV household.  My wife works in television and we both enjoy a wide variety of shows, including 30 Rock, the Emmy-winning TV show about the behind-the-scene action of a fake TV show.

Last night’s episode revolved around dispute resolution, in a roundabout sort of way.  I say that because much like Seinfeld, there is less of a plot than there is a “theme” to each episode.   Jenna , the co-star of the show within the show, was feuding with her co-star Tracy because Tracy refused to pay Jenna for her voice-over work on his pornographic video game.  Yes.  You read that correctly.  The Executive Producer, played by Sarah Palin Tina Fey, orders the stars to mediation.

Of course, the mediator was made out to be spineless, ineffective, poorly dressed, and transgender.

In the end, the dispute was resolved by an irritatingly peppy 12-year old whom Tina Fey believed to be Oprah because she was hopped up on “Comanapracil,” a prescription sleep mediation which warns of side effects like “dizziness, sexual nightmares and sleep crime.”

So, to recap, mediators are ineffective tools in short sleeved dress shirts and any dispute can be resolved be a peppy 12 year-old whose only qualification was middle school Vice President.

No respect, I tell ya.

Law Students to Compete in Arbitration Competition

This coming weekend, the National Arbitration Forum and the American Bar Association Law Student Division will be co-sponsoring an Arbitration Competition for nearly 200 law students from around the country. The participants will simulate an arbitration hearing involving a dispute concerning election campaign law.  Regional winners will advance to the National Finals in San Antonio in January 2009.

If you live near one of the regional sites, I would wholeheartedly suggest attending or seeing if they still require volunteer judges.  I enjoyed judged the regional ABA Negotiation Competition last year.