Tuesday, October 25, 2011
I listened to a live streaming broadcast on http://www.blogtalkradio.com regarding Understanding the Benefits of Online Dispute Resolution. This show was produced for Cyberweek 2011 - the annual virtual conference dedicated to the innovations and developments of ODR by the Werner Institute at Creighton University via ADRHub.com. This show broadly discussed how online dispute resolution processes are used to deal with disputes. Some examples were the voluminous complaints associated with eBay customers and vendors. Other elements of the discussion were geared toward using technology to communicate with mediation participants and even software for moving the positions of the parties. While this may work well in some contexts, I find that the parties' physical presence is integral to the process and must occur in certain types of disputes. Face to face meetings with the help of the facilitator can be crucial in cases involving personal injury and small business. The broadcast outlined various forms of ODR processes, and the benefits and challenges to using virtual communications, including email and Skype. The show, hosted by Texas mediator, Pattie Porter, contained highlights from ODR experts in the field Dan Rainey, Colin Rule, and Noam Ebner. It appears we are increasingly utilizing technology in ADR, but perhaps not yet on the verge of virtual mediation. Some longtime services like CyberSettle have found success in limited areas, such as a computer-assisted system for settling insurance claims. However, for thousands of years, the personal interaction of the neutral third-party mediator working directly with the parties has been essential to the process and will likely remain a part of modern dispute resolution.
Thursday, October 6, 2011
Samsung has been engaged in international patent wars with Apple over mobile devices, seeking injunctions in several countries regarding phones and tablets. Yesterday's death of Apple co-founder, Steve Jobs, may have ended any hope that CEOs (as the true decision makers in these disputes) could end them short of the courthouse. In fact, as Jobs lay dying, Samsung apparently filed two lawsuits in Europe to block the sale of the newly launched Apple iPhone 4S. While Jobs already personally tried to fix the situation by calling Samsung in an appeal to avoid a messy legal battle and to avoid a parts supply problem for Apple's iPad, he failed. This was not done under the formality of a confidential mediation which could have served to set parameters for negotiation and a process by which a facilitator could ease the tension between the parties, while working on achieving a creative solution that would benefit all in a post-PC and now post-Jobs era. Unfortunately, Jobs' death will eliminate at least one avenue to resolution that is utilized by mediators in their negotiation toolbox, which prevents the posturing of litigators and seeks direct dialogue between the head honchos-- face to face. Jobs' successor at Apple, Tim Cook, now might play a role in settling the ongoing technology dispute, but likely lacks the larger-than-life influence of Jobs. See story here: http://tinyurl.com/3gg9rzu
Tuesday, October 4, 2011
Today's NBA lockout negotiations are expected to decide whether games will be lost this season and just how many. The path to sports labor peace leads to the bargaining table, not to a courthouse. Rather than a protracted court battle between owners and the players' union, nasty internal strife, not to mention no professional basketball (e.g., here in a town with the star center in his last contract year, playing in a new arena that was promised hosting an all-star game), the parties should mediate, just as the NFL did. http://bit.ly/prn2JT Last month, NBA players' union members were worried enough about the possibility of agents pushing decertification that they had DeMaurice Smith of the NFL Players Association to speak to locked out basketballers about the pros and cons of dissolving a union, giving some background on what it was like with his players going through the lockout. http://goo.gl/ueY3p Through negotiations and judge-directed mediation sessions, footballers and owners bargained before the NFL players' union suffered any judicial setback in the Brady v. NFL antitrust case, or worse-- if they won the case. Such a loss would have crippled the union's decertification threat in the future. A union win could have prohibited teams from collaborating on contracts. http://tinyurl.com/3qn89ao Another incentive to settle the matter now is that public opinion of sports leagues has bordered on critical in recent years; though die-hard fans will endure. Avoiding the surely negative effect of these monetary disputes as early as possible (especially in this down economy) may stop harm to morale and can be achieved in a less public way though the mediation process.