ODR - Online Dispute Resolution

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.

Steve Jobs unsuccessful before death in personal appeal to end Samsung litigation

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

NBA Tuesday - Perhaps these guys could just mediate?

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.

Low rate of success leaves foreclosure program future in doubt

In a piece by the Palm Beach Post this week, Florida's almost two year-old mandatory foreclosure mediation program is under scrutiny by the state courts administrator because of its limited success. According to results presented to members of the state House Civil Justice subcommittee, there is only a 25 percent success rate statewide. Homeowner advocates and some mediators reportedly complained that banks are sabotaging mediations, so the program will be deemed a failure and removed from the already lengthy judicial process. Attorneys, judges and banks apparently continue to disagree over what the numbers really mean... http://bit.ly/oZ3X5G Meanwhile, according to the Miami Herald, Governor Scott intends to remove the courts from the foreclosure process citing lack of court involvement in other states... http://goo.gl/cgzvD

Big enough guns with full authority?

In a pending patent infringement case between Oracle and Google, the judge recently ordered the parties to identify "top corporate executives" to participate in mediation. It seems the litigation is now focused on who those folks would be, with Oracle now complaining that none other than Google Android's very developer is not good enough! Google offered to send SVP Andy Rubin of mobile to meet Oracle President Safra Catz to resolve Oracle's patent lawsuit over Java code incorporated into Android. Oracle objects that Rubin is not senior enough to make the decisions needed for a successful mediation and claims he actually caused problem in the first place by infringing. In an unusual move involving the court in mediation participants before the conference, a letter was written to the judge, complaining of Google's corporate representative choice. It seems reminiscent though not a corollary of Apex-type deposition fights. Should a judge be in charge of what decision makers attend mediation or does that necessarily affect self-determination of the parties? Is a party's designated representative even subject to challenge in a seemingly premature manner, when the mediation has not even commenced and no issue on authority has been properly raised? See story: http://bit.ly/mPH2gN

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.”


http://www.alaskadispatch.com/article/it-time-mediation-washington?page=full

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...

http://nyti.ms/qMR2Ml