Five Things You Didn’t Know about Mediation

Mediators are always learning about what helps – and what doesn’t – when it comes to resolving disputes. This is what makes them effective at finding common ground between parties. There is always something new to learn about how people interact, what motivates them, and what will bring them together to agree on a settlement. Following are five points to consider about mediation from members of the JAMS panel.

1. Mediation is an opportunity for your client to tell their side of the story

“Most parties participating in mediation want to tell their story,” says Jeff Grubman, a JAMS mediator, based in Florida. “In many ways, mediation is their day in court.”

2. Some clients want to tell that story without their counsel present

“Most, but certainly not all, clients can satisfy their desire to tell their story by speaking with the mediator in caucus,” says Grubman. “However, some clients, particularly successful business people, want to speak directly with their adversary.”

Grubman notes that these clients might feel more inhibited if attorneys from both sides are present. In that case, often several hours into the mediation, a session with just the parties and the mediator can be very effective, says Grubman.

“I have participated in numerous mediations where cases have settled in the course of a relatively brief meeting with the parties without their counsel present,” he says.

Grubman notes that even attorneys who have instructed their clients not to speak during opening statements will often readily agree to a meeting without counsel present. It is particularly the case when the attorneys trust the mediator.

3. Others prefer less dialogue and rely on the mediator

“You don’t have to meet with or confront the opposing party or counsel,” says Bruce A. Friedman, Esq., a mediator with JAMS in Southern California. “Clients can leave the negotiating to the mediator, who can be trusted not to divulge confidential information, such as settlement ranges. Negotiations also do not need to proceed on a distributive bargaining or back-and-forth basis.

4. Mediations can be emotional

Managing emotions is a big component of keeping mediation on track towards a mutually agreeable resolution.

“The better we use our understanding of both our own emotions and those of others, the more successful the mediation will be,” says Judge Jamie Jacobs-May (Ret.), a mediator with JAMS in San Jose. “Good moods enhance collaboration and creativity.  By contrast, the presence of strong negative emotions can interfere with good decision-making.”

Judge Jacobs-May says parties can take steps to keep emotions positive.

“My top tip for eliciting positive emotions is to spend time establishing rapport with your opponent.  Get to know him or her.”

5. Be aware of and avoid emotional triggers

We all know that words can provoke strong emotions, and this is something to keep in mind, especially in stressful situations such as a dispute.

“To prevent the escalation of negative emotions, avoid words and phrases that serve as emotional triggers,” says Judge Jacobs-May.

She advises avoiding words that fall into categories known as “The Big Six,” a concept from Holly Schroth, who teaches negotiation skills at the University of California, Berkeley.

They are:

  1. Name-calling (“You are a liar”; “Don’t be stupid”)
  2. Bossing (“You need to. . .”; “You can’t. . .”)
  3. Superiority (“This is how we’ve always done it; “I don’t think you understand. . .”)
  4. Dismissive (“With all due respect. . .”; “It’s simple. . .”)
  5. Self-righteousness (“I’m being reasonable”; “I’ve treated you fairly”)
  6. Threats (“I can ruin you. . .”)

There is still much we can learn about the mediation process. Hopefully these five insights provide a start.

JAMS Ireland Opens in Dublin and Belfast

JAMS IrelandJAMS is proud to announce the addition of JAMS Ireland as the newest member of JAMS International. JAMS Ireland offers parties from different jurisdictions mediation and arbitration services in Dublin and Belfast.

JAMS Ireland is the latest addition to the growing international network of high quality commercial ADR providers that JAMS established in 2011. Other members include ADR Center in Italy and Results ADR in the Netherlands.

ADR in Ireland is on an upward trajectory, based on the economic realities and legislation encouraging consensual resolution of disputes. We are pleased to have quality partners who are working with us to take advantage of the growing need for commercial ADR in Ireland and to further expand our global network.

JAMS Ireland will be spearheaded by two very experienced lawyers, Paul Tweed and Gavin Bonnar, who between them have represented high-profile, international clients for more than 50 years.

“JAMS Ireland will offer a neutral and convenient geographical location as well as a world-class panel of experts with unique experience and a strong pedigree in mediating the most problematic cross-border and general commercial disputes,” said Mr. Tweed. “We have established this service with a view to providing efficient and cost-effective dispute resolution alternatives in both Irish jurisdictions, supported by the world-class expertise of JAMS in order to provide resolutions to the often sensitive issues arising from cross-border disputes.”

In addition to Mr. Tweed and Mr. Bonnar, the JAMS Ireland panel includes Lord Mawhinney, Aaro Suonio, Tom Kelly, Brian Speers, Paul O’Higgins, Michael Kealey and Fintan Drury, along with the talented JAMS panel of retired judges and attorneys.

JAMS Foundation presents the Sixth Annual Warren Knight Award to Mediators Beyond Borders International

Warren Knight Award

Warren Knight Award

The JAMS Foundation’s Sixth Annual Warren Knight Award has been presented to Mediators Beyond Borders International, along with a $25,000 grant. The award recognizes MBB’s work with grassroots collaborations and local leaders around the world to promote mediation and develop programs with lasting impact. The organization received the award at the ABA Dispute Resolution Conference in Miami.

MBB was founded in 2006 by a group of visionary mediators seeking to foster international peace and justice through initiatives emphasizing mediation advocacy, service and capacity-building. Working in partnership with local leaders, communities, universities, professional associations and nonprofit organizations around the world, often in areas adversely affected by war, civil conflict or natural disaster, MBB’s teams of experienced mediators and trainers donate their time, energy and resources to support programs that positively impact the culture of conflict prevention and resolution worldwide.

MBB currently has active projects regarding climate change as well as in-country conflict prevention and resolution programs in Columbia, Ecuador, Israel, Kenya, Liberia, Nepal and Sierra Leone.

“We thank the JAMS Foundation for its recognition and very generous contribution to MBB,” said Prabha Sankaranarayan, Incoming President and CEO and Founding Member. “This grant will allow us to promote mediation, dialogue and other conflict resolution processes in areas and among groups that might otherwise not have access to these processes. We are grateful for the support and partnership from JAMS to build a peaceable world.”

“MBB’s work is perfectly aligned with the mission of the JAMS Foundation and we are proud to partner with them to increase mediation advocacy, awareness and training in much needed areas,” said David Brandon, managing director of the JAMS Foundation. “We are thrilled to support their efforts and are confident that it will help further the development of mediation internationally.”

Hon. H. Warren Knight (Ret.) was the founder of JAMS, which he created in January 1979. Judge Knight was considered a pioneer in the ADR and legal communities and was instrumental in introducing and furthering ADR, including mediation and arbitration, within the legal community in California and throughout the United States.

Five Things You Didn’t Know about Arbitration

By Chris Poole

Arbitration is by no means a new option for resolving disputes. Yet, parties and their counsel may not be aware of everything that this method of alternative dispute resolution brings to the table. Here are five things you may not know about arbitration from members of the JAMS arbitration panel.

1. A successful arbitration begins with the initial contract

Parties must set the stage for a successful arbitration while they are working on contractual terms and everyone is getting along.

“If you want to have an efficient, speedy and economical arbitration, start talking when the underlying contracts are being negotiated,” says Judge Fern M. Smith (Ret.), a San Francisco-based JAMS arbitrator. “Arbitrators are controlled in great part by the wording of the arbitration clause in the underlying contract between the disputing parties.”

This wording, says Judge Smith, can cover a variety of issues such as choice of law and venue, the amount of discovery and the procedural or administrative rules that will apply to the arbitration.

“Although the arbitration clause may be modified by stipulation, that’s much harder to accomplish once a dispute has dissolved into a demand,” says Judge Smith.

2. You have options

While it’s preferable to have a good arbitration clause set into the initial contract, parties are not without options if they want to make certain changes after a dispute arises.

“Because arbitration is purely a contractual process, parties can change their pre-dispute arbitration agreement after a dispute arises,” says Richard Chernick, Esq., vice president and managing director of the JAMS Arbitration Practice.

Chernick says parties can:

  • Change the institution that will administer the arbitration
  • Change the number of arbitrators (from 1 to 3 or from 3 to 1)
  • Change the way the arbitrators are appointed (e.g., from strike list to the appointment of a particular person, or from strike list to party appointment of two arbitrators who then appoint the chair)
  • Define the scope of discovery or information exchange
  • Add or delete a fee-shifting provision

3. All evidence is not equal

Judge Richard A. Levie (Ret.), a JAMS arbitrator based in Washington, D.C., says the “I’ll admit it and decide how much weight to give the evidence” approach favored by some lawyers and probably used by many arbitrators can be a disservice to both the parties and the arbitrator.

The reality is that “Arbitrators generally react to quality of evidence, rather than just quantity,” says Judge Levie.

“While lawyers and parties have the right to expect that arbitrators will read and listen to all evidence, counsel should assess carefully which witnesses and documents are most important and necessary to their case,” says Levie. “Identify and focus on that evidence first and foremost. This approach signals to the Arbitrator the importance of such evidence. Do not hesitate to identify secondary evidence, such as authentication evidence or back-up documentation, as secondary evidence and invite the Arbitrator to treat such evidence ‘for the record’ but not essential to determination of the key claims at issue.”

4. Choose Neutrality When Selecting Arbitrators

Selection of the arbitrator may be the single most important consideration in the arbitration process, and it’s best to select someone who is familiar with the law and has a track record of fairness.

“In a three-arbitrator case, avoid selecting as your choice an arbitrator that you believe will be a strong advocate for your case,” says Judge Smith.  “It may seem like a great idea, but often such a person will simply annoy not only the other party-selected arbitrator, but also the Chair, who generally is neutral. The result may well be that your position will be seen only in a dissent.”

5. You have an option to appeal

Perhaps one of the biggest myths about arbitration is that there is no avenue to appeal an arbitrator’s ruling. This is not the case, and hasn’t been for many years. Many ADR providers offer an appeals process and JAMS created its appellate procedures more than 10 years ago. Keep in mind that not every arbitration is well-suited to an appeal, but incorporation of an appellate process can lessen the risks and provide some peace of mind.

Hopefully these five facts have helped clear up any misconceptions or even provided new insights into how arbitration can be used to resolve disputes.