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January 2018
Best Wishes for  a Peaceful and Productive 2018!
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I'm looking at a new year's card printed by my friend, Steve Harris, proprietor of Hands Press in Berkeley, that really expresses the values of our community.  

Let us hope that these values will be increasingly honored in the coming year.

Happy New Year

Wishing You a New Year Filled With  Old-Fashioned Values:
generosity of purse and spirit
protecting the vulnerable
ethical behavior
celebrating beauty

Peace and Love

*John Lande is the Isidor Loeb Professor Emeritus and former director of the LLM Program in Dispute Resolution at University of Missouri School of Law. This originally appeared in Indisputably, the Dispute Resolution Law Professors Blog which was developed by Lande to foster online conversations with colleagues in Dispute Resolution. You can find it here:  Indisputably
  by  Cinnie Noble

Here are some conflict resolutions for 2018. I have repeated some from last year because I haven't got them quite right, yet.

This year I will remember we are all in this together.
This year I will remain aware that I have a responsibility to do what is within my ability to make the world a more peaceful place.
This year I will be grateful for those who teach me important lessons by, for instance, letting me know when my actions and words do not align.
This year I will be kinder to myself and others, and be more careful with others' feelings.
This year I will cherish my friends and colleagues even more.
This year I will not judge.
This year I will approach conflicts with humility and grace and remain true to myself.
This year I will honour that others too strive to be true to themselves.
This year I will open my heart and mind wider and with more curiosity.
This year I will celebrate our differences and take heart in the knowledge that we all have lots of room in our hearts to love more and to love deeply.
What are your conflict resolutions for next year?

See original post here:  Cinergy
An Interview with Ken Cloke: There Is No Them. There Is Just Us

by  Awakin Call Editors, Nov 27, 2017

"Our lives are formed not just by the conflicts that we've experienced, but by the ones we've not resolved."

--Ken Cloke
Excerpt from the interview:

The example that I would like to give is an example that comes from mediation between kids that I did many years ago, when I was helping to create school mediation programs. This was one in which two girls who had been friends, were talking and one of them accused the other of having taken something that she had said in confidence, and shared it with other people. And I asked her how that felt to her and she said, "It was really upsetting and I was very angry." Well, inside of me I can feel very upsetting and very angry, but that wasn't 100% what it actually felt like. And so I find a place in me where I may have experienced something like that; I think of what words I would use to describe that and the one word that has emotional power is betrayed. So I asked her, "Did you feel betrayed?" and immediately there was a release of tension. That was the thing that turned the corner in the conversation. But I need to ask myself the question: why was it so difficult for her to come up with the word 'betrayed'. And the answer, of course, is that the word 'betrayed' betrays her, meaning the word betrayal consists both of disappointment and desire. And it's the desire piece, the place that is most tender and where she is most vulnerable to disappointment. The place where she wants the other girl to really like and keep her confidences, so that she can feel a sense of intimacy and connection with her, that's the place in trauma.

And so, what I began to realize is that it's always the most tender places inside of us that is the most hurt. That's the first thing that we do in conflict. To protect those places, to distance ourselves even from forms of conversation that will require us to become vulnerable in the presence of someone we no longer trust. And yet, there is at the same time, a desire for release from suffering, a desire for honesty, communication and connection.

And so that opens up the possibility of a very different conversation between these two girls. So I turned to the other girl and I said, "Was it your intention to betray her?" And she said no and started to say why not. I stopped her, and said, "Don't tell me. Tell her." And now that the two girls are talking to each other, they are both being openhearted, and honest with each other. She apologizes for what she did in a very sincere way. And recognizes the pain that her friend had experienced.

And so in a very similar type of way, in every conflict conversation, we are defending ourselves against the very thing that we want the most, against a heart-to-heart conversation with a person who has hurt us. And it's natural for us to want to avoid that conversation because they have in fact betrayed our trust somehow, because they haven't met our expectations, because we don't know any longer who they are, or believe that they don't know who we are. And therefore we don't show them who we actually are. We shut down internally inside and that creates a source of suffering, because it's a kind of attachment. And it's even worse because it's an attachment to something that is over, that we then keep with us in our lives. It becomes a source of personality, just as the flow of a river when it's blocked by a rock will be distorted. And in exactly that way, our lives are formed not just by the conflicts that we've experienced, but by the ones we've not resolved.

A whole day of mediation without a "joint meeting". The only time the lawyers met was to begin drafting the settlement agreement. The experts played no part. The day before, the principals had exchanged correspondence deprecating perceived personal insults directed at professional advisers which, it was felt, had damaged reputations. This was a long-running commercial dispute which was on its way to a lengthy arbitration and involved multiple claims on both sides. Very large sums and a lot of time had been expended so far in adversarial processes. At mediation, all matters were resolved in seven and a half hours.

What happened? Following initial private meetings with the parties, the mediator had sensed that the first step should be a clearing of the air meeting, facilitated by the mediator, between the two principals, who were senior business people. The mediator confirmed that they had full authority to negotiate. The principals agreed to that suggestion. The advisers were fully supportive and encouraging.

As it turned out, the meeting lasted until lunchtime. The two had a wide-ranging conversation about the contract, what had happened, the impact commercially and professionally on both parties and the realities of the present commercial situation. There was also recognition of the possibility of further contractual relationships in the future and, at the same time, of the damage done by antagonistic advocacy in previous procedures and in the summaries prepared in advance of the mediation. The directness and apparent honesty, encouraged by the mediator, meant that understanding was achieved in a way that had not been possible in all the months of adversarial engagement. "If you had only lifted the phone when....rather than....". A familiar refrain, reflected the mediator.

With further information being exchanged between the principals, and reassurances sought about the validity of certain information, the meeting continued into the afternoon. Pauses were taken occasionally. At other times, each sought private counsel from the mediator. He guided them and acted as a sounding board but never advised, encouraging the principals to return to their rooms if they needed to check their approach with colleagues and advisers, while emphasising the need for them to retain control of decision-making. At one point, the mediator was able to adopt a more customary role working between the principals to navigate resolution of a difficult point when direct negotiation was difficult.

The settlement reached was easily and quickly memorialised by the lawyers in a Resolution Agreement. More than that, the principals had restored a working relationship. They reflected with the mediator on what they had learned from what had gone wrong and what they would do differently on a future occasion. Other meetings, held as the agreement was being drawn up, helped rebuild confidence with professional advisers who had felt personally attacked. Strictly speaking these were unnecessary to the agreement itself but they meant that, the next time they had to work together, the difficult conversation had already been had.

Why is all this important? For me, it gets to the core of what mediation can be about. The opportunity which mediation provides is restoration of decision-making to the clients themselves. Perhaps more than that, it gives them autonomy to make informed choices, albeit within a structure. Self-determination when, so often, others make the decisions. It is profoundly not about the mediator. Paradoxically, the powerlessness of the mediator is an enormous strength. Properly utilised, this provides a unique forum for facilitating conversations, creating opportunities and providing context for the key players to take responsibility. As mediators, this, it seems to me, is our true calling.

 Click Here for Complete Article on Kluwer Mediation Blog

Billion-Dollar Technology Dispute Resolved with 'Gig Judiciary'

by  Amanda G. Ciccatelli* 

FedArb, a Silicon Valley-based alternative dispute resolution firm, was recently involved in helping bring to resolution a $1 billion-plus cathode ray tubes antitrust tech dispute that expanded to over 50 parties and United States international jurisdictions. The lawsuit was filed in 2007, and pursuing the typical litigation path proved challenging: one judge fell ill, another retired. And nearly 10 years later, it was finally resolved using a "gig judiciary."

In 2013, the court designated a retired federal judge as a special master and discovery disputes were fast-tracked, a calendar system designed for complex arbitrations was deployed, and FedArb was engaged to support the special master by administering all aspects of the case, which by then included some 150 lawyers in the U.S., Europe and Asia, and more than 100 different motions. Once the discovery process was completed, the parties considered going to trial but ended up choosing mediation, and a dozen separate mediations followed, including one in which a settlement totaling over half a billion dollars was reached.

Kennen Hagen, president and CEO of FedArb, and Jay Weil, COO and co-founder of FedArb, sat down with Inside Counsel to discuss the case. According to Hagen, the appointment of a special master is becoming more common in complex civil matters, though it is far from being the norm. A prominent example of this in the Northern District of California is the Uber/Waymo litigation where U.S. District Court Judge William Alsup appointed John Cooper, a partner at Farella Braun + Martel, to oversee all discovery matters.

"FedArb's work with the special master was somewhat unique, with the decision largely driven by the stature and experience of Judge Walker.  FedArb's logistical expertise and back office services kept the parties on a tight timetable and enabled the litigants to focus on important legal issues," he explained.

The two most significant challenges FedArb faced in handling this matter, per Weil, included: First, with respect to the discovery issues, the problem was one of massive logistics given the number of parties involved; and second, with respect to the settlement/mediation, the issue was successfully conducted over a dozen separate settlement talks.

"On the defendants' side, the biggest risk of taking the case to trial was a runaway jury with the potential for punitive damages. On the plaintiffs' side, the biggest risk was a jury verdict of minimal damages or, even if there were substantial damages, another decade of appellate procedures before they got paid," said Hagen.

So, what kind of complex civil disputes are most appropriate for being resolved through mediation?

According to Hagen, the most appropriate complex civil disputes that lend themselves to mediation are those where the parties are ready to entertain mediation discussions, and this often means that big issues have already been resolved through discovery or preliminary motion practice.

* Amanda G. Ciccatelli is a Freelance Journalist for Corporate Counsel and InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more.

New hotline to help streamline special education mediation in Michigan

"Parents seeking mediation for their special education students now have a new hotline to get help. 

The Michigan Special Education Mediation Program  set up a new phone number to intake mediation requests: (833) 543-7178.
Parents may seek mediation if they disagree with a school about the type of education or methods of care their child is receiving. For example, if a student with special needs takes longer to complete assignments on a computer, but the school declined to give him extra computer time, a parent may seek mediation. 

The change is intended to smooth out inefficiencies in the already existing mediation system. 

"The new 1-833-KIDS1ST number is part of a statewide effort to improve services undertaken by the MSEMP program and the MDE's Office of Special Education," Michigan Department of Education spokesman Bill DiSessa wrote in an email. 

"Focusing intake in the MSEMP's Lansing office like this helps the program provide timely, consistent dispute-resolution information to all callers."

Read Full Article  

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Thank you for reading my newsletter, and as always, if you have any questions on any of the articles listed, do not hesitate to contact me.




Tom Valenti
Thomas P. Valenti, P.C.

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