Oregon Mediation Center, Inc.

Dispute Prevention As Cure: The Auction Form Of Negotiation (7/19/10)
Joseph Dean Klatt, Michael M. Forbes
The authors of “Deal Maker: Lessons From the Blind Master Negotiator” discuss auctions as negotiations.

Mediation As Problem-Solving (7/12/10)
Larry Susskind
The Organizational for Economic Cooperation and Development (OECD) is trying to hold multinational corporations to appropriately high standards of corporate social responsibility. OECD member states include thirty of the major economies of the world. Ten years ago, they adopted guidelines regarding human rights, environmental protection, the rights of workers and child protection. Now they are in the throes of a ten year review.

Court Approves Mediation Procedures in Lehman Brothers Chapter 11 Cases (7/12/10)
Keith Seat

The bankruptcy judge has approved mediation procedures for addressing contested claims involving Lehman Brothers Holdings Inc. and its affiliated debtors. The debtors have the option to select either mediation or merits hearings. If mediation is selected, sessions are to take place in New York at a location determined by the debtors, but parties may be able to participate by telephone. The parties are to agree on a mediator from a court-approved list. Mediation of claims must begin within 60 days after notice by the debtors and be completed within 120 days. The parties may seek to negotiate prior to the mediation; if the mediation is not fully successful, the parties may agree to resolve the remaining issues by binding arbitration, or else the court will hear the merits of the claim.

Mondaq (June 18, 2010) (Subscription Required)

Commercial Mediation Competition (7/12/10)
Keith Seat

The International Chamber of Commerce (ICC) is holding the 6th ICC International Commercial Mediation Competition from February 4-9, 2011 at its headquarters in Paris. The competition is expected to attract at least 50 universities, along with scores of professional mediators who conduct the mock mediations and judge the students’ performance. Applications are being accepted through November 30, 2010. ICC Competition

Mediation & Communication Lacking With Franchisees (6/07/10)
Jeff Thompson
A study by Griffith University into franchise conflict has revealed the need for better communication between franchisors and their franchisees. The study, which was funded by the Australian Competition and Consumer Commission and the Australian Research Council, examined the relationship between franchisees and franchisors and the causes of conflict between the two groups. 350 franchisees from Australia responded.

Emotional And Technical Challenges To Mediating Partition Actions (4/05/10)
Malcolm Sher
Partition actions come in many shapes and sizes. Although they often present significant challenges in the context of mediation, they can be successfully mediated if the emotional overlay that accompanies them is recognized and the numerous technical issues that permeate them are identified and addressed both before and during the mediation session. This article will explore not only some of the situations that give rise to partition actions, but also, how, if brought to an experienced mediator at the right time, they can be resolved without resorting to expensive litigation.

The Multi-Step Dispute Resolution Clause: A Few Reasons Why Clients Like Them (4/05/10)
John DeGroote
Last week we defined multi-step dispute resolution clauses and explored why a dispute resolution framework, negotiated before the contract is signed, can help businesses avoid litigation in many cases. This post will give you a few more reasons why your client might want a multi-step dispute resolution clause next time — even if a dispute seems unlikely.

Update on Home Foreclosure Mediation (3/28/10)
Keith Seat
Here is an update on home foreclosure mediation across the U.S. by Mediate.com News Editor, Keith Seat.

Multi-Step Dispute Resolution Clauses: 7 Reasons They Work (3/22/10)
John DeGroote
As we have discussed before, the best way to spend less on litigation is to have less litigation. Yes, sometimes it is better to litigate, and yes, settlement talks are hollow if you can’t walk away from the negotiation table, but most clients prefer to avoid litigation when they can. So how do you accomplish that? The multi-step dispute resolution clause is a good start.

New York Court Sanctions Party for Rigidity in Mediation (3/16/10)
Keith Seat

A bankruptcy court in New York imposed penalties for mediating in bad faith on a party the court found to be rigid and obstructionist during court-ordered mediation. The court recognized that of course parties cannot be forced to settle and may take a “no pay” position. But mere attendance without active participation is not sufficient for good faith. Sending representatives who would not consider the risks involved and who could only repeat a mantra that they would pay nothing renders mediation futile and forms the basis for penalties for obstruction of the mediation. Party representatives must have full authority to settle; having to telephone for additional authority is not sufficient. The offending party did ultimately make a settlement offer, but only after the threat of sanctions, and the offer was considered to be insincere by the mediator and other party. Under the mediation rules of the court, mediators are required to report incidents of bad faith mediation, and are permitted to provide information under the court’s confidentiality provisions.

In re A. T. Reynolds & Sons, Inc., No. 08-37739 (U.S. Bankr. S.D.N.Y. February 5, 2010)

Pink Floyd, EMI Need Creative Negotiation In Brawl Over Itunes Royalties (3/15/10)
Lee Jay Berman
Pink Floyd is suing its former record label EMI over how royalties are calculated on internet sales. Among other things, the band is contesting whether its 1999 contract allows sales of individual tracks, as EMI contends, or mandates only complete album sales, which is how Pink Floyd interprets the contract. “When Pink Floyd’s latest contract was crafted in 1999, iTunes didn’t even exist.”

Elegant Solutions: Lessons from the Farmer-Lender Mediations of the 1980s (3/12/10)
Stephen Erickson
In the case of mortgage foreclosure, laws that allow the lender to collect the debt by foreclosing on the security pledged are a workable and predictable system of conflict resolution. However, when unforeseen and cataclysmic events occur that cannot be controlled or predicted by either side to the original contract, application of the usual legal remedies may prove unworkable. In the case of the lender/homeowner relationship, that may extend over a 30-year period, there may be occasions where it is necessary to change the terms of that contractual relationship. This was true in the case of farmers and bankers in 1985, and it is true of homeowners and their lenders today.

Preparation: The Key To Mediation Success (3/08/10)
Bennett G. Picker
This article offers a list of key issues and concerns to address, in advance of commercial mediation, in order to enhance the likelihood of successful outcomes.

International Commercial Mediation: Only Lip Service? (2/22/10)
Victoria VanBuren
Karl came across this interesting comment by Jose Antonio Garcia Alvaro, posted at the ADR Resources Dispute Resolution and Mediation LinkedIn Group.

Congress May Require Auto Makers to Mediate with Rejected Dealers (1/26/10)
Keith Seat

Several bills have been introduced relating to the economic rights of automobile dealers rejected by auto makers in which the federal government has an ownership interest. Negotiations over the federal legislation has included the issue of whether arbitration or mediation might be a useful process for dealers who lost franchises. Chrysler and GM reportedly agreed to offer an arbitration process to affected dealers, but dealers have sought mediation instead.

WSJ Online (December 10, 2009)

Dispute Prevention: It's A Good Idea, Right? (1/18/10)
Larry Susskind
My own take on this is that "clients" of all kinds must demand that legal service providers emphasize dispute prevention before the idea will spread as rapidly as it should.

Update on Home Foreclosure Mediation (1/13/10)
Keith Seat
Here is an additional update on Foreclosure Mediation across the United States by Mediation News Editor Keith Seat.

Mediation For Small Business Disputes (1/11/10)
Erica Becks
Frequently, a SBO (Small Business Owner) approaches me with a question about a debt collection or contract dispute. In cases where there is significant financial and/or legal considerations, I refer them to attorneys. However, many of these small business owners and entrepreneurs simply do not have the capital to retain an attorney. So what are their other options?

Business Divorce Mediation (1/04/10)
Richard Lutringer
This article addresses how mediators can assist ordinary business owners and their counsel to resolve split-up issues more efficiently and fairly than litigation or arbitration.

Insurance Coverage: 4 Rules And 10 Tips For Policyholders (12/21/09)
John DeGroote
When the big case comes in, will you be ready for it? As you work to better understand your story, lock down your documents, and brace for the PR impact, what else do you need to worry about? Unfortunately insurance coverage is often way down the list — a mistake most don’t realize until it’s too late.

Mediating Commercial Relationships (12/14/09)
Alec Wisner
In mediating commercial disputes, once all of the frills are stripped away, the dispute is very typically about money. The money can evince itself in a number of ways: one side paying the other cash; one side paying the other in specific performance; one side paying the other by refraining from competing, and so foregoing potential income, and so on. But, when the dust clears, the outcome is generally that money either does or doesn't change hands.

Mediating Family Property and Estate Conflicts: Keeping the Peace and Preserving Family Wealth (12/08/09)
Jay Folberg
Of all of the cases I have mediated over the past 30 years, the most challenging and rewarding disputes have been those between family members over family property, estates, trusts and businesses.

Resolving Complaints About Irresponsible Corporations (12/07/09)
Larry Susskind
Corporations are supposed to pay attention to environmental, health, safety, labor, tax, consumer protection, information disclosure, and human rights laws wherever they set up shop. But, we've all seen and heard stories about multinationals guilty of violations in far-away places. They have been charged with allowing unsafe working conditions, blocking legitimate unionization efforts; ignoring environmental and health standards, bribing officials, and turning a blind eye to human rights violations.

Mediations Yield Benefits in Sunwest Management Investment Scandal (12/01/09)
Keith Seat

Mediation is assisting investors who sunk upwards of $400 million in Sunwest Management’s senior housing operations before things unraveled. The law firm of Davis Wright Tremaine agreed to pay $30 million to resolve securities fraud and malpractice claims against it after five days of mediation. In addition, a federal judge has been overseeing complex mediation since last winter which seeks to restructure Sunwest into a viable entity to provide value for investors, which resulted in a $270 million offer in September. Mediation is also expected in litigation against two other law firms who did work for Sunwest affiliates.

Oregonlive.com (October 22, 2009)

Update on Home Foreclosure Mediation (11/17/09)
Keith Seat
Here is an additional update on Foreclosure Mediation across the U.S. by Mediation News Editor Keith Seat.