Popular Blogs
All Posts
SPEAKING FLUENTLY – EPISODE 3
COMMENT FOR THE DAY #69 MEDIATION + ARBITRATION People are interested in this topic. Speaking Confidently is a Big Assist. Many people fall short. They learn their Mediation + Arbitration skills. They do the courses. They take the exams. But no training in how to talk...
SPEAKING FLUENTLY
COMMENT FOR THE DAY #68 - EPISODE 2 MEDIATION Yesterday we began to address the problem of a stumbling mediator lacking verbal fluency. First things First - a mediator needs people to hear him + listen to her. Fail here + you are struggling to do your job. So work at...
SPEAKING WITHOUT HESITANCY
COMMENT FOR THE DAY #61 - EPISODE 1 MEDIATION The Mediator's opening statement is important. It sets the tone. Get it wrong + you are struggling. Is the Mediator up to the task? The Mediator can avoid problems if he/she does two things. First, the mediator has to be...
THE HEALTH OF THE MEDIATOR
COMMENT FOR THE DAY #66 - EPISODE 1 MEDIATION A mediation is about the parties, their dispute and possible solutions. But a topic that is always overlooked is the health+well-being of the mediator. It is a given. All is well. You work/eat. You think/act. You are...
“CHARACTER MATTERS. BIG TIME”
MEDIATION EPISODE 6 Why Character? Why not Organisation or Speaking Skills or - Meeting Management? It does not matter how much you have studied the Manual for Mediation + noted how to present the opening session or how to have separate meetings or how to move from...
OPTIONS FOR SETTLEMENT
COMMENT FOR THE DAY #64 MEDIATION Today I want to focus on an underestimated skill of the mediator – the ability to paint pictures of the alternatives going forward. Let’s be clear, the options are there – harmony or rupture. But can you give the right focus? Are you...
KEEPING COOL
COMMENT FOR THE DAY #63 - EPISODE 5 ARBITRATION AND ADVOCACY Advocacy is about pressure. Lots of pressure. You are a professional with responsibility. The client who is paying your fee is trusting you. The Tribunal will be watching you. Your opponent will be assessing...
KNOW STRENGTHS + WEAKNESSES OF YOUR CASE
COMMENT OF THE DAY #62 - EPISODE 4 ARBITRATION AND ADVOCACY This is an important part of preparation - know where you are strong but also know where you are weak. Be Prepared. Rarely is an arbitration 100% in favour of one party. Usually, it is a mix of arguments...
ALLOW THE ANGER TO COME OUT
COMMENT FOR THE DAY #61 - EPISODE 5 H+W mediations can be the tensest. Just have a read of Shakespeare + see how jealousy can distort normal thought processes. You have to sit + listen. Don't try to deflect or curtail. The aggrieved partner - and it can be H as well...
CONTROLLING YOUR HOURS
COMMENT FOR THE DAY #60 - EPISODE 3 ARBITRATION AND ADVOCACY You have been appointed to represent a party in an arbitration. There is to be an oral hearing. There are documents + zoom calls + witness statements + legal issues. It is a big undertaking. In the midst of...
OFFERS TO SETTLE AND COSTS
COMMENT OF THE DAY #59 - EPISODE 4 MEDIATION "A Bitter Past Gets In The Way Of A Constructive Future" Husband + Wife disputes have the most tension, confrontation + anger. They fight in the present about the past split and it affects the future. H offers a little...
ADVOCACY EPISODE 2
COMMENT FOR THE DAY #58 ARBITRATION Good advocacy requires skills. First, Be Organised. Prepare different schedules - a chronology of events from documents/bundles. Don't let anything slip through the net. You must have a clear understanding of the sequence of events...
DO I HAVE TO SETTLE?
COMMENT OF THE DAY #57 EPISODE 3 MEDIATION The Court instructs the parties to try to mediate a dispute. Suppose it's an H + W post-divorce maintenance/financial dispute. Suppose the W wants a lot + the H offers a little. The Judge says "Go Away + Mediate". The Judge...
ADVOCACY IS A CHALLENGE – EPISODE 1
COMMENT FOR THE DAY #56 ARBITRATION You can be an arbitrator or a party or the arbitration institution or an expert witness or just a witness. But you can also be an advocate - the person who presents the case + argues the case for one of the parties. If the parties...
DO YOU HAVE TO MEDIATE?
COMMENT OF THE DAY #55 - EPISODE 2 MEDIATION The court wants you to mediate because many disputes do not need to go down the path of confrontation. Some are made for mediation + some will never mediate. But the court requires you, at least, to try to meditate. So try!...
CLEARING YOUR HEAD
COMMENT OF THE DAY #54 ARBITRATION If being an arbitrator is your career, you will be mixing hearings with reading submissions +drafting awards/directions. In the course of a month, challenges arise that can throw you off course - a bereavement; an ailment; a relative...
IS IT AN OFFER TO SETTLE?
COMMENT FOR THE DAY #53 MEDIATION Party A makes an offer in a mediation. Party B thinks the offer is “derisory” + an “insult”. Party B threatens to walk out of the mediation + inform the court that Party A did not engage in the mediation “in good faith” (i.e. in...
ARBITRATORS – BE ALERT FROM START TO FINISH
COMMENT OF THE DAY #52 ARBITRATION This column has always stressed that arbitrators, + mediators, need stamina. You are doing a professional job. Be 100% professional from the moment you are appointed to the moment that the award is published. And it is so easy to...
DO YOU STEP IN AND DECIDE?
COMMENT FOR THE DAY #51 MEDIATION Yes - you step in and decide. You will be bringing the parties together. You will be doing what they want you to do. You will have brought about mediation of the dispute. The agreement has been reached. Job well done. Congratulations....
THE STANDARD OF PROOF
COMMENT OF THE DAY #50 ARBITRATION Sellers + Buyers entered into an acquisition agreement. The purchase price required ‘a working capital adjustment’ to be ascertained by expert determination which “will be final + binding in the absence of manifest error”. There was...
TO DECIDE OR NOT TO DECIDE
COMMENT OF THE DAY MEDIATION The parties have asked you to decide the one remaining issue in dispute between the parties. Do you agree to their request? THE NO ARGUMENT You are the mediator - not the arbitrator. You cannot decide on an issue. Your task is to bring the...
WHAT KIND OF AWARD?
COMMENT OF THE DAY #48 ARBITRATION Repeating - every award is a final award. There can be no interim award because that word suggests that the award is not a final award. There can be a final award on a preliminary matter - such as jurisdiction or which contract of...
CAN A MEDIATOR DECIDE A CASE?
COMMENT OF THE DAY #47 MEDIATION At the end of a long day + lengthy negotiations, the parties are unable to achieve a settlement. There is one sticking point + they ask you to decide the issue for them. - What do you do? Interesting. You are a mediator. Your job is to...
WHAT KIND OF AN AWARD
COMMENT OF THE DAY #45 ARBITRATION In post No 45 I focused on the different titles given to arbitrators' awards and considered an award on a preliminary issue. It is not a preliminary award - the award is final but it is on one aspect of the dispute between the...
THE FIRST PRIVATE SESSION
COMMENT FOR THE DAY #45 MEDIATION You are the mediator. You have had the opening session - introduced yourself; thanked everyone for coming; explained your role; explained the procedure. Now you go One-to-One with the first party. So important to get this right. The...
WHAT KIND OF AWARD?
COMMENT OF THE DAY #44 ARBITRATION Arbitrators often struggle with the difference between a Final Award, an Interim Award, a Preliminary Award and a Partial Award. All awards are final on the matters they address. It is the decision of the arbitrators + it stands. It...
THE ESTATE AGENT PARTNERSHIP DISPUTE FINAL EPISODE
COMMENT OF THE DAY #43 MEDIATION The story so far - 3 partners meet to mediate the departure of a fourth. As you proceed it becomes apparent that 2 of the partners and the 4th partner could consider reconciliation as the cost of separation becomes a factor. But the...
THE BUNDLE ARRIVES
COMMENT OF THE DAY #42 A bundle is delivered to you. What to Do? Three Steps;- 1. Do Nothing - just store them in the corner. Wrong. At the minimum, you have to acknowledge their arrival by emailing the sender. 2. Before acknowledging, look at the contents to make...
EPISODE 4 THE ESTATE AGENT PARTNERSHIP
COMMENT OF THE DAY #41 MEDIATION The situation is clearer. Two of the SP's and the one DP are thinking of reconciliation. The woman SP is spitting blood + wants the DP out because he cheated on his wife - a good friend of the SP You know the mediation needs you to see...
I Want To Be An Arbitrator
COMMENT OF THE DAY #40 No one grows up saying "I want to be an arbitrator". You start somewhere else + you gravitate toward arbitration +/or mediation as you experience dispute resolution in one form or another. It is a journey. You may find yourself involved in a...
Estate Agent Mediation – Part 3
COMMENT OF THE DAY #39 MEDIATION The story so far. 3 Staying Partners (SP) and 1 Departing Partner (DP) meet for a Mediation. Reconciliation is possible. Two SP's are interested + the 1 DP too. The obstacle is the one female SP who bears a grudge against the DP...
MORE ON ASSESSING THE WITNESS
“COMMENT OF THE DAY #38 ARBITRATION MORE ON ASSESSING THE WITNESS Today I am sticking to the issue of assessing witnesses + deciding how much importance you can attach to their evidence. Actually, it is a key part of our work as arbitrators. Does the witness impress?...
Estate Agent Partnership mediation
COMMENT OF THE DAY #37 You remember the conundrum re the Estate Agent Partnership mediation - see Saturday 20 March. There may be a chance of peace + reconciliation. 2 of the 3 partners are interested + also the departing partner. The problem is the third partner who...
ASSESSING A WITNESS
COMMENT OF THE DAY #37 Interesting one this. Is this a matter of training or "gut feel"? First, eliminate bias. Do you? or does it fester as a negative and get in the way of a balanced and objective judgment? Bias - can be gender (some men may take against women +...
WHAT WOULD YOU DO?
You are near the end of day 1 of an estate agent partnership dispute. 3 partners against 1. Is the only solution a split or is there a chance that the mediation can bring about a reconciliation? Amongst the 3, 2 prefer a "get-back-together". No 3 - who happens to be...
WHO PAYS FOR A S57 DECISION
ARTICLE #34 S 57 of the Arbitration Act 1996 permits a Tribunal to correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award. Let's assume you as Chair + 2 wingers have...
STRENGTHS + WEAKNESSES
ARTICLE #33 You are a family mediator. You are accredited + experienced + well organised. You have a track record + you get appointments. But something is wrong. Unresolved blockages have occurred. Solutions are not so easy to reach. You are in a corner. What to do?...
DEFINE THE ISSUES
COMMENT OF THE DAY #32 When the talking is done, the hearing is over and the drafting begins are you clear in your mind about the issues you have to address? Often the answer is "Yes". In many cases, the issues stand out + you know the sequence of matters you have to...
LOOKING AT THINGS FROM THE OTHER SIDE
COMMENT OF THE DAY POST#31 As a mediator, you know you are making progress if you can get a party to move away from inflexible consideration of their own case. Actually - it is one of the hardest initiatives to get underway. It is a "human thing". The parties focus on...
TIRED AND DULL
COMMENT OF THE DAY #30 It happens. Arbitrators become jaded. Work piles up. You are losing your sparkle. You are not on top. You are falling behind. You are not leading - just following. And you are no good to anyone. Mistakes will happen + you will be failing to...
PARTIES BEWARE OF INQUISITORIAL ARBITRATORS
POST #29 Arbitrators can require answers to awkward questions. Not in every situation but the parties need to know that they can come unstuck. In Post 27 I posed a question - can Arbitrators require parties to disclose documents they would prefer did not seek the...
THE BIG OPPORTUNITY
POST#28 You are a sole mediator negotiating a financial arrangement following the divorce of an husband + wife (with young children) still in strife mode. Things are not going well. Suddenly there is an explosion - a dispute over the house paintings - no money value...
PRODUCING UNHELPFUL DOCUMENTS
You are sole arbitrator. You have moved on to considering damages. You think that both parties might be holding back market evidence they have obtained which does not support their submissions. Do you have the authority to direct both parties to disclose all the...
SETTLEMENT DISCUSSIONS
You remember the problem? Party A authorises you to offer payment of £100,000 to settle a dispute. You then go to Party B but before you can convey the offer Party B informs you that they will accept £80,000. Ouch! You could go back to A and tell them that they can...
ARBITRATION – ADVERSARIAL OR INQUISITORIAL?
s 34 Arbitration Act 1996 "It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter... (2) Procedural and evidential matters include — --- (g) whether and to what extent the tribunal should...
Settlement Offers Can Create Problems
You are doing a commercial mediation. Things are going well. There is movement and open minds. In a private meeting, Party A authorises you to inform Party B that Party A will accept an immediate one-off payment of £80,000 from Party B in settlement of the dispute....
LIST THE ISSUES
As a Chair of five arbitrators on an Appeal Board, I always focused on listing the issues. It brings focus + clarity to your work. No list + issues can slip through the net. This is not just a fail safe tactic - it serves two specific purposes;- First, - if you get it...
MEDIATION CONUNDRUM
An employee is fired. The grounds are not strong. He agrees to mediation. Actually you have a subjective sympathy for him but you know that this cannot blur your judgement. You know you have to remain neutral but you do feel he has been manipulated. The firm is...
Mediation Impasse
You are the sole mediator. There is an impasse. Nothing is moving. You are beginning to feel the pressure. And you do wonder if you are doing things right. This is where your skills come into play – Are you thinking creatively? Have you an open mind or are you, like...
Arbitrators need to be organised!
They have to be ahead of the game + not trailing in its wake. Fall behind + you never catch up. Once Behind Always Behind. This is back to bad habits - one of the hardest things to do in life is to boot out a bad habit. A habit is a habit - like putting one foot in...
Are You A Competent Mediator?
First Moments Matter. Be yourself - don't be a phoney or artificial. Some mediators act like that because the moment gets to them. Sometimes you have to fight to be natural. A contradiction in terms but not really. Think about it. You are the centre of attention....
What Am I Trying To Achieve?
In a phrase - discussion and debate. That is what I am after. I want to encourage arbitrators and mediators to express an attitude, to contribute a point of view, to help advance knowledge and understanding of the day to day issues that arise in the course of...
What my websites are about.
I have two websites. One of Arbitration/Mediation and one on China. With China I draw on my accumulated experience following my first 8 week visit to China in 1965 and my 120+ visits. There are no experts on China as such. Many do posture and give vent to a prejudice...
The purpose of my website!
I want to make it a Forum for views and opinions on arbitration and mediation and, remember, I focus on practice - on what we do as mediators and arbitrators. I was an active football referee and used to attend monthly meetings of referees. The best part of the...
Change a Bad Habit!
Some may think this is just stating the obvious - after all as an arbitrator you are handling documents, submissions, draft awards, draft directions and exchanges with fellow arbitrators. If you start messy and untidy, you never change. You just get by. Nothing bad...
Is a Face to Face Meeting Essential
There is no set procedure for the conduct of the mediation. It depends on what is agreed by the mediator + the parties. The mediator does not have a veto + the parties can, therefore, impose a procedure on the mediator. But the point today is whether all mediators...
Do you need to have a personality for an arbitrator?
You have to have Character but do you also need to have Personality? Temperament, charm, likeability - these are the words associated with Personality as distinct from Character which is knowing the difference between right and wrong. Personality is not being "Jack...
Mediation – Positions and Interests
You are mediating a dispute. You have asked the parties to set out their positions but things are not going well. There is no movement. Heels are being dug in. Now is the time to start thinking about anti-logjam. How to get some activity? How to move matters to a new...
Can You Teach Discretion?
An interesting contradiction exists between the exercise of discretion on the one hand AND the need for Tribunal consistency on the other hand. Discretion means you are free to make up your own mind. There are constraints. You need to be fair + reasonable + objective...
Unconscious Bias
Unconscious bias is a big issue. How do Mediators and Arbitrators deal with this problem? The difficulty is that the bias is not always recognised or detected and that is because the bias is nearly always unconscious. Our problem has been that we could only deal with...
Episode
- AN ANXIOUS NEW ARBITRATOR
- AN ARBITRATOR STUMBLES
- ANGER MANAGEMENT
- ARBITRATION – FEES OF ARBITRATORS
- ARBITRATOR/MEDIATOR
- ARBITRATORS FEES AGAIN
- AWKWARD QUESTIONS
- BACK TO BASICS – A MATRIMONIAL MEDIATION
- DETERMINED NEUTRALITY
- DISCRETION
- DISPUTE RESOLUTION
- FAMILY TENSIONS
- FATHER’S LATE WILL
- FRAUDULENT DOCUMENTS
- GENDER ISSUES AT SCHOOL
- HOUSING AFGHANISTAN REFUGEES
- LATE APPLICATION TO SUBMIT NEW EVIDENCE
- LENGTHY ORAL SUBMISSIONS
- MEDIATION - ANGER MANAGEMENT
- MEDIATION – DENTISTS DISAGREE
- NEIGHBOUR DISPUTES + SECOND HOMES
- NEW WORLD – NEW WORDS
- POST HEARING EVALUATION
- THE ARBITRATOR BECOMES A MEDIATOR
- THE BACKGROUND
- THE BIGGEST SOURCE OF MEDIATION
- THE CORE QUALITY
- THE DOMINATING SOLICITOR
- THE EXPERT WITNESS
- THE FAMILY PROPERTY DISPUTE
- THE FLEXIBILITY OF MEDIATION
- THE MEDIATORS’ SKILLS
- THE OVER-ACTIVE PARTY LAWYER
- THE STORY SO FAR
- TO INTERVENE OR NOT TO INTERVENE
- TRADE ARBITRATORS + LAWYER ARBITRATORS
- UKRAINIAN REFUGEES
- WORDS MATTER
- WRITERS’ BLOCK