Sunday, August 28, 2011

D.C. Mediation ?

This article comes a little late in the summer of discontent in Washington. Harvard Lecturer David Hoffman's term for the malaise affecting Congress is "PTID" or Post Traumatic Impasse Disorder.

He cites to an example of two siblings fighting over an orange in Fisher & Ury's classic negotiation book, Getting to Yes. Their mother solves the problem by cutting the orange in two-- but one of them wanted only the rind to bake a cake; the other wanted only the pulp to make juice. Both could have had the functional equivalent of the whole orange if they had communicated about their interests.

Hoffman references diplomat L. Michael Hager's proposal to create a politically neutral service for legislative mediation, akin to the nonpartisan Congressional Budget Office. Precedent exists for such an agency in the Federal Mediation and Conciliation Service, whose success in mediating major labor conflicts, he says, suggests that its mandate could be expanded to handle legislative impasses.

Even Fed Chairman, Ben Bernanke, weighed in this weekend on the dysfunctional Congress from a conference in Jackson Hole saying,"“The country would be well served by a better process for making fiscal decisions.”

Thursday, August 25, 2011

Why do cases often settle late in the afternoon? Hmm...

Decision fatigue is common to many fields, but I would posit that it is particularly found in complex or lengthy mediation negotiations. Breaks for food and respite are usually built into the day and prevent coercion and false imprisonment claims from arising in the context of a court-ordered conference.

Though skeptics point out that our brain’s overall use of energy remains the same regardless of what a person is doing, there can be no doubt that we experience depleted energy affecting willpower during the process of mediation. Does this in fact prevent self-determination in reaching settlements? Must there be an end other than adjournment or terminating the session which provides an ethical safety valve while preventing buyer's remorse?

The New York Times Magazine article below addressing this phenomenon is worth a read in general, but seems to provide pertinent insight to alternative dispute resolvers on why folks might do what they do when the hour is late...

Thursday, August 18, 2011

"It ain't over till it's over"

The NFL lockout lawsuit spawned a claim by retirees which wasn't quite resolved in the bigger deal between the league owners and players.

During a case management conference, Judge Nelson quickly suggested talks with Magistrate Judge Arthur Boylan, who brokered the original agreement that ended the lockout but did not settle the retirees' still-pending lawsuit.

Judge-directed settlement talks have been a theme of the recent negotiations in this litigation. In motivating the claimants to settle, she hinted that the case would be difficult likening it to "pushing a rock up a hill."

However, rather than ordering mediation, she told the three sides to sit down with Boylan for informal talks. Subsequently, lawyers for all sides said the discussions produced no agreement or date for additional mediation.

Perhaps a formal order of referral to mediation would have made them take things more seriously? The next scheduled hearing is not until September 15th.

See more at:

Sunday, August 7, 2011

America's Cup dispute is electronic not maritime

A mediation will be conducted this week in the dispute involving Team New Zealand arising out of the 34th America’s Cup protocol which mandates that teams’ content should be consolidated on the official website.

Team New Zealand’s position is that teams should be free to host its own internet sites, and that the present restriction on independent sites hinders commercial teams from raising funds. Allegations are that the rule could contribute to some teams not making it to San Francisco due to insufficient funding to mount an effective Cup challenge.

Team New Zealand is also sailing in the Volvo Ocean Race and the Extreme Sailing Series as well as the America’s Cup, and therefore, wants more than a Cup consolidated site.

See more here: