February 6-12 2020
15th ICC International Commercial Mediation Competition,
March 3-7 2020
INADR International Law School Mediation Tournament
April 22-25, 2020
ABA Section of Dispute Resolution Spring Conference, New Orleans, LA
July 11-15, 2020
Click Here to read original article on Kluwer Mediation Blog
A few days ago my daughter asked me a question that challenged and inspired me, and that has me thinking still. Often, we say it is little children who catch us out with their questions. But my two adult children seem to manage to test my assumptions, ideas and actions more and more the older they get, and the more they go their own ways.
My daughter asked: "What good did you do in the world in 2019?" It was a friendly moment as we were standing in the kitchen. What a question. She did not ask: "What went well for you over the last year?" She did not ask: "What were your highlights?" She asked: "What good did you do?" I struggled for a good answer.
The work of mediators involves a toolbox of questions we ask, and it is often by asking the right questions that we can help clients gain different perspective, or draw on resources that might have been lost in the course of conflict.
Often conflicts within organisations persist over long periods, and facilitation processes take time. People become frustrated that little progress seems to be made and that their old disputes keep flaring up. New questions might be: "Looking back, what has changed for the better since you entered on this facilitated process? What have you achieved?" And instead of "threatening" and unattractive non-agreement alternatives, we might ask: "What are the benefits of continuing to work towards agreement?"
It is a matter of a shift of perspective. Three or four times a year, I go to my own coach to discuss my work and cases. One empowering question he helped me to formulate this year involved my place of work, where, as in most places of work, there sometimes are frustrating managerial decisions. Instead of focusing on what I cannot get done as a result, the question we asked was: "What have I changed for the better there?" The list of things small and not so small was a long one. It gave me confidence to go back and keep on.
Clients are sometimes apprehensive about asking other parties to attend mediation. Instead of working on the underlying reasons why they are concerned, which might be the intuitive (and learned) approach, we might instead consider a wording that they would feel comfortable with. Perhaps: "So as to work on improving our everyday work together, I would like to ask you to mediation." Not: so we can discuss grievances, settle disputes, or talk about how we feel, but "to make daily work better."
Would a resource and solutions focused approach help us in much bigger social and political issues too? I think so. The aim of this approach is not to gloss over problems and concerns, but to focus on ways forward. Much of the world is more polarized than I can remember since the end of the Cold War, and the liberal aspirations that came after 1989 are in retreat.
1) In 2019 we have seen Brexit decided, and whatever your political views on this, we might agree that it has divided a nation. We are seeing greater divisions in the USA. The UN Madrid Climate Change Conference failed to produce the resolutions needed, most experts agree. Politics around the world is too slow to face up to the challenges. We are for sure not living in "the best of all possible worlds.
2) So what can we do? We can talk to each other. We can listen to each other. We can focus on what works now and on what will work tomorrow. We can ask ourselves what unites us and not what divides us.
3) We can work on relationships, including the relationships in our families, places of work, and circles of friends and acquaintances.
My blog is regularly published on the 24th of each month, and so in December it coincides with Christmas Eve. Whether you celebrate Christmas or not, the message contains much that gives cause for optimism. A mediator might call it reframing, or empowering perspective shift. When Joseph discovers that Mary is expecting a child, he is very scared and wishes to walk away from her, but an angel appears to him in a dream: "Fear not to take unto thee Mary thy wife." "Fear not" was the message the angel brought to the frightened shepherds in the fields on the night of the nativity, put powerfully to music in Johann Sebastian Bach's Christmas Oratorio. "Fear not" does not mean ignore the challenges. On the contrary, it invites us to take them on.
I return to my daughter's question. It is essentially a resource-based question: if I can work out what good I have done in the world in 2019, then I might be better equipped to go into 2020 with a frame of mind that will help me to do some good in the future too.
From my reading of 2019, The Light that Failed: A Reckoning by Ivan Krastev and Stephen Holmes, a diagnosis of the decline of the liberal consensus, stands out.
Voltaire's Candide, as advised by Dr. Pangloss, drawing on the philosophy of Leibniz. I saw a stunning and timely production of Leonard Bernstein's opera of Candide at Berlin's Komische Oper in 2019.
In The Righteous Mind, Jonathan Haidt looks at the irrational source of many of our strongly held moral convictions. The purpose of these is to bind us together in communities, so to make that work we hold on to them dearly. The final chapter of this remarkable book is a plea for us to explore what binds us together in the complex societies we have evolved. Another of my reading "highlights" of 2019. See Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion, 2012.
Visa Offers Scholarships To Train Workers In Dispute Resolution
SAN FRANCISCO--(BUSINESS WIRE)--Dec. 5, 2019--
Visa Inc. (NYSE: V) today announced plans to launch a new certification program and fund up to 500 scholarships, available to qualified applicants, that can be used toward obtaining this new professional certification. Visa's new certification program is designed to train individuals as dispute resolution professionals, a role that is currently in high demand across the payments ecosystem.
With 75 percent of HR professionals in the U.S. reporting
1 a shortage of skills in candidates for job openings, there is an increased need to better align training to the types of positions that are currently available. Certificate programs offer an alternative to a traditional degree, giving candidates the opportunity to develop the skills and experiences needed for a particular job in a shorter period of time and for less cost. A
Georgetown University study
2 found that those who hold certificates receive a 20% wage premium over those who do not.
"Private industry has an important role to play in helping equip the workforce with the skills needed for in-demand jobs. We need employers to actively assess workforce needs, promote skills-based recruitment and hiring and commit to workers' lifelong skills development, which is critical to economic development," said Visa Chairman and CEO
, who serves on the
American Workforce Policy Advisory Board
to advise on ways the public sector, private industry and educational institutions can partner to tackle the ongoing skills crisis. "At Visa, we are working to help strengthen the pipeline of qualified workers. We want to help candidates adapt to a constantly changing environment."
This certification program builds on Visa's longstanding commitment to cultivating a ready and able workforce. Visa is one of more than 350 companies and organizations that signed the
White House Pledge to America's Workers
-a promise to expand programs that are designed to educate, train and reskill more than 14.3 million students and workers. Specifically, over the next five years, Visa has pledged to help create enhanced career opportunities for 14,500 individuals, including through increased apprenticeships and work-based learning programs, continuing education, on-the-job training and reskilling.
Visa's new dispute resolution professional certification program will include multiple days of training and several professional-level certification exams. Dispute resolution professionals manage payment card disputes, and they generally work for financial institutions, such as the bank that issues your credit card, or payment processors.
Training and certification programs of this type can typically cost thousands of dollars, and participants in a program of this nature are often sponsored by an employer. Visa's scholarship program for dispute resolution professional certification is meant to help support those who may not have the means through their employer. Details for how to apply for the scholarship are anticipated to be made available in early 2020.
"We are proud to offer this new certificate and provide a pathway to employment in the payments industry," said
Karie Willyerd, Visa's Chief Learning Officer. "This is yet another demonstration of Visa's commitment to provide today's workforce with 21
st century skills."
Notable Negotiation Books for 2020
8 Notable Negotiation Books to Read in 2020
- Kissinger the Negotiator: Lessons from Dealmaking at the Highest Level, by James K. Sebenius, R. Nicholas Burns, and Robert H. Mnookin. Offering the first comprehensive look at the former secretary of state's overall approach to negotiation, Kissinger the Negotiator, authored by three Harvard professors, describes political negotiation strategies that businesspeople can adapt to their own negotiations, such as how to manage multiparty deals through careful sequencing, coalition building, and handling of potential deal blockers.
- Negotiation and Conflict Resolution in the Age of Trump, edited by Joel Cutcher-Gershenfeld. In this special issue of the Program on Negotiation's Negotiation Journal, leading negotiation and conflict resolution scholars dissect U.S. president Donald Trump's transactional approach to negotiation and describe the shortcomings of his approach in international trade negotiations and other realms. The experts also predict the likely long-term ramifications of the Trump administration's negotiating strategy on the United States and the world.
- Leading with Dignity: How to Create a Culture that Brings out the Best in People, by Donna Hicks. Dignity violations are often found at the heart of interpersonal conflicts, according to Hicks, an associate at Harvard's Weatherhead Center for International Affairs. In Leading with Dignity, Hicks describes how we can begin to repair our most deep-seated conflicts through a better understanding of the concept of dignity.
- Rebel Talent: Why it Pays to Break the Rules at Work and in Life, by Francesca Gino. In Rebel Talent, Harvard Business School professor Gino argues that a healthy dose of rebellion can deepen our engagement at work and beyond, and help us meet our most important goals in life. Some of the core principles of rebel talent can improve our outcomes in negotiations with others, while also helping us negotiate more effectively with ourselves as we seek to meet deep-seated needs through more fulfilling work.
- Rule Makers, Rule Breakers: How Tight and Loose Cultures Wire Our World, by Michele Gelfand. When people from different cultures negotiate, the potential for misunderstandings is often high, and destructive conflict is too often the result. In Rule Makers, Rule Breakers, University of Maryland psychologist Michele Gelfand explains how a simple yet powerful new cultural framework-tightness-looseness theory-can help us make sense of our cross-cultural differences, break down cultural barriers, and achieve more at the bargaining table.
- The Art of Gathering: How We Meet and Why It Matters, by Priya Parker. In The Art of Gathering, Thrive Labs founder Priya Parker, a professional facilitator with a background in conflict resolution, argues that most of us tend to just go through the motions when planning events, whether a dinner party, a conference, or a negotiation. The result, too often, is a dull, forgettable experience. Parker offers novel advice on how we can make our negotiations and other group events more meaningful, memorable, and rewarding.
- The Person You Mean to Be: How Good People Fight Bias, by Dolly Chugh. For The Person You Mean to Be, New York University social psychologist Dolly Chugh drew on her research on unconscious bias to write the quintessential guide to standing up for our beliefs. In particular, the book offers useful tips on how to respond effectively when a counterpart says or does something biased during a negotiation.
Click Here for Link to PON website
Since the signing of the
Singapore Convention on Mediation
in August this year, there has been an increased interest on the enforceability of settlement agreements, particularly those arising from mediation. The case of
Law Chau Loon v Alphire Group Pte Ltd
 SGHC 275 from the Singapore High Court provides us with some general legal principles to consider when a settlement agreement is drafted. Although mediation did not take place between the parties in dispute, the principles stated by the High Court here remain relevant to the drafting of binding mediated settlement agreements (MSAs). This case is essential reading for mediators and lawyers involved in mediations in which Singapore law may be applicable in relation to enforcement.
Law, who was the applicant in this case, concluded a settlement agreement with some Investors from Alphire Group Pte Ltd ('Alphire') over the satisfaction of a court judgment debt, which indebted the former to the latter. Consequently, there were plans by Alphire to file a bankruptcy petition against Law.
The timeline went something like this: Law met with one of the Alphire Investors who proposed a compromise over the judgment debt to the sum of S$1 million. Subsequently, on 2 February 2019, Law and the Investors met at the lobby of a local hotel. Law attended the meeting with S$1 million in cash at hand. Negotiations were held between the parties, and at the conclusion of the meeting, they agreed to a full and final settlement of the judgment debt, which involved payment of sums of money in addition to the S$1 million cash, a share transfer and disclosure of relevant information.
One of the Investors recorded the terms of the settlement agreement in a WhatsApp text message, which was sent to Law. The message contained the following text:
"We agree that if [Law] pays us S$1m (received on 2 February 2019) plus S$400,000 in 4 installments (sic) of S$100,000 each commencing 1st June 2019 (with cheques issued in advance) and provides all necessary information and contact particulars regarding the debtors owing amounts to Alphire and transfers his shares free of charge in the company to Alicia and confirms he has no claims against Alphire we will agree to the settlement and withdraw our bankruptcy petition."
Subsequently, Alphire disclaimed the terms of the agreement between the parties. It argued that the terms of the agreement were subject to contract, and that there was no binding settlement agreement concluded between the parties. In addition it claimed that the Investors had no authority to conclude the settlement agreement with Law on its behalf. Law then proceeded to the High Court of Singapore seeking an order to enforce the settlement agreement.
Decision of the High Court
The High Court granted an order to enforce the settlement agreement. First, Judicial Commissioner Vincent Hoong found that the Investors had the implied actual authority to conclude the settlement agreement with Law on behalf of Alphire. The Court found that the directors of Alphire were actually subservient to the Investors, who exercised direct influence over the management and operation of the company. There was evidence that the directors had answered and/or reported on matters in respect to the management, operations and profitability of Alphire to the Investors. Further, the Court specifically found that the Investors' substantial involvement with the company's financial affairs led to the irresistible inference that they had an implied actual authority to conclude a settlement agreement over an outstanding judgment debt in favour of Alphire.
Secondly, the Court examined the context under which the settlement agreement was concluded. It was reiterated, "For there to be a valid settlement agreement, there must be 'an identifiable agreement that is complete and certain, consideration, as well as an intention to create legal relations' (Gay Choon Ing v Loh Sze Ti Terence Peter and another appeal  2 SLR(R) 332 ... at )." The fact that the settlement agreement was recorded on a timestamped WhatsApp text message was a weighty consideration; the Court found that there was a complete and uncontradicted coincidence in the agreement recorded by the text message with the outcomes of the negotiation at the hotel lobby between the parties. The Court also took some post-contractual evidence into consideration: Alphire's solicitors, in a correspondence with Law's solicitors on 15 February 2019, had acknowledged that there was a full and final settlement reached between the parties on 2 February 2019.
The Court was satisfied that the terms of the settlement agreement were complete, certain and binding: this was bolstered by the fact that there was clear consideration (i.e., Law's obligation to pay S$1.4m to Alphire on agreed terms, in exchange for the settlement of the judgment debt) stated in the agreement. The Court also found that there was intention between the parties to create legal relations with each other, on the basis that the WhatsApp text message was couched in legalistic terms, and clearly reflected a quid pro quo negotiated between Law and the Investors.
Learning Points for mediators and lawyers representing clients in mediation
1) Mediators must confirm the credentials of parties representing corporate entities at a mediation. In this instance, Law was fortunate that the law was in his favour because he negotiated and concluded his settlement agreement with Investors who were so heavily involved in Alphire that they were legally deemed to possess implied actual authority to bind the company to a settlement agreement, even though they were not company directors. Mediators should prioritise dealing with company directors, or the relevant associates and executives who hold letters of authority signed on a company letterhead. It is also the practice of some mediators to included clauses in the Mediation Agreemetn (also known as Agreement to Mediate) that the parties warrant that they possess authority to settle. While such a clause may not prevent unauthorised representatives participating in mediation, it will certainly minimise the risk of this occurring. Lack of authority or capacity to settle on behalf of a corporate entity would certainly fall within the grounds of refusal to enforce settlement agreements including those resulting from mediation - and this has been recognised in Article 5(1) of the Singapore Convention on Mediation. Although the Convention was not relevant to this case, it is an indicator of international approaches to issues of MSA enforcement in international settings.
2) Clear drafting of terms is crucial to an enforceable MSA. For example, where sums of money are agreed to be paid, the date of payment (or dates for payment of clearly-defined installment sums) should be expressly stated in the settlement agreement.
3) Settlement agreements may be concluded and recorded through text messaging and other timestamped online mediums or communication devices. Here the court implicitly recognised the increasing use of online negotiation and mediation and the growing field of online dispute resolution (ODR). Interestingly and indicative of international developments in mediation, the Singapore Convention on Mediation also recognises the ODR trend. It expressly provides that MSAs may be concluded using online technology: see section 2 on definition of "in writing" and section 4(2) in relation to evidence of an MSA.
4) Post-settlement correspondence (such as that between the lawyers in this case) may be administered in Court to prove that a (mediated) settlement agreement was indeed final and binding between parties.
Mediation 2019: Roundtable
By: Kate Jackson & Alan L Limbury & Mercedes Tarrazón
Read Full Article on Who's Who Legal
Which industries have been particularly busy for mediation over the past 12 months?
All the general commercial sectors remain strong, with an increasing recognition that mediation is usually appropriate for businesses in any sector. One key growth area has been a rise in mediations of technology and IT-related disputes. These have included disputes relating to the development and distribution of computer games and disputes in the online gambling sector. As technology becomes more widespread (and complicated) it is likely this growth will continue.
Otherwise, insurance and professional negligence disputes remain a staple of the practice. We have seen fewer banking disputes in recent months as the mortgage lending and mis-selling claims have become less frequent.
Mediation has two faces in Australia: mediation in the shadow of the law and mediation where there is no cause of action or where there will never be litigation. The latter is quite difficult to track but workplace disputes and neighbourhood disputes are reportedly very busy, as are all the tribunals which handle consumer conflicts through mandatory mediation. The former is thriving in Australia, whether court-ordered or voluntary, but it is hard to say which industries or areas have the most traffic. Probably a more significant figure is that, despite the high volume of mediation, there are still more trained mediators available than there are disputes to be mediated. Some say that is the hallmark of a profession!
In my experience, and probably because I most often mediate cases in jurisdictions where mediation is not yet that common, it is not the industry but the type of conflict that makes the difference.
In a context of parties and counsel with little if any experience in mediation, it is easier to have mediation accepted when the personal element is of the essence in the conflict, as is the case of disputes among small-scale enterprises' or joint ventures' partners or claims for professional negligence where the alleged aggrieved party is ready to participate. Parties enter the process because they acknowledge that the adversarial process they are familiar with would not allow them to discuss the real issues that are at stake.
Also when the contract performance is prolonged in time, eg, IT services, or the technical complexity is high, eg, IP issues, mediation tends to be more easily accepted even if it is not a mechanism commonly used in that jurisdiction. The definite argument is to be found in the lack of specific local courts for those matters.
In an effort to recognize the specialization in the ADR community, we are creating 3 separate newsletters broadly covering these areas: Mediation - Arbitration - International ADR.
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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.
Thomas P. Valenti
350 W. Hubbard St., Suite 630
Chicago, IL 60654