Well, in addition to the more obvious fact-finding research required to be well prepared, there are also three essential questions that one needs to be asking before engaging in any negotiation:

1. What do I hope to achieve as a result of this encounter?
2. What can the other party realistically offer me?
3. What can I do to encourage the other party to give me what I want?

What do I hope to achieve?
Many people enter negotiations with a long list of grievances, complaints, and perceived injustices. They are ready to “prove a point”, but have not thought through to the point of what they can actually obtain as a tangible improvement to their current situation. As I’ve stated elsewhere in this blog, there is no way to get what you want if you have not even identified what exactly that is.

What can the other party realistically offer me?
The starting point may lie in identifying what you want to achieve, but that initial goal may be meaningless if it falls outside the ability of your negotiating partners to offer it. For example, in nearly every case of an employment termination there is not going to be an offer of re-employment. Even in unionized workplaces where an arbitrator can actually order re-employment, it is often not the best outcome for a grievor. How pleasant is work life likely to be when one returns to work with the same people that spent months trying to terminate your employment? Or, for a different class of example, think about the ability of a mining company to completely “undo” a mining operation that has been in full swing for several years.

It is impossible to go back in time. In order to be successful at the negotiation table one needs to have a good idea of what the other party can actually put on the table. In the first example, the employer could conceivably offer enough money to provide income security while the ex-employee retrains for a new position – and could also pay for and provide the training. In the second example, the mining company could provide environmental remediation, relocation assistance, compensation, or perhaps a more generous share of the wealth created as a result of the mine.

What can I do to encourage the other party to give me what I want?
Clearly identifying what it is that you would like, and then identifying what lies within the realm of possibility for the other party to provide, is a good start. But the real key to successful negotiating is in convincing the other party that it is in their best interests to provide that to you. There are only two ways that this can occur.

1. The alternative to helping you to achieve your goals, is sufficiently unpleasant that the other party believes that helping you is the best option.
2. You can provide them with something of sufficient value to them, that they perceive your offering as a fair exchange.

The second option is nearly always the preferred one, as people are far more likely to be positively engaged when seeking a win/win outcome. However, the first option needs to be considered as well, and perhaps held in reserve. And if neither option appears tenable… it’s probably time to go back to question number 1, and start again.

With this, disputes involving ownership and validity of Intellectual Property rights applied for in Singapore can be resolved through mediation under the WIPO Rules, administered by the WIPO Center Office in Singapore.

This may be especially advantageous for international parties seeking to settle related disputes in other jurisdictions.

Link to article ]]> http://www.thegoalfocusedway.com/international-ip-dispute-resolution-in-singapore/feed/ 0 http://www.thegoalfocusedway.com/to-what-extent-should-judges-be-involved-in-mediation/ http://www.thegoalfocusedway.com/to-what-extent-should-judges-be-involved-in-mediation/#comments Sun, 02 Oct 2011 16:07:48 +0000 Allan http://www.thegoalfocusedway.com/?p=291 Hon. Richard Scott, the Chief Justice of Manitoba, and chair of the Canadian Judicial Council’s Judicial Conduct Committee discusses the issue in an interview.

More resources about the issue, and some of the questions raised by the issue, are in this Blog by litigator, John O’Sullivan.

1. Mediation is confidential.    You can tell the mediator about all the important issues in your case, and he can’t tell the other side without your permission. And when your case settles, the terms will not be part of a permanent court record.
2. Mediation is without prejudice. Nothing said or offered during the mediation can be brought up later in Court.
3. You are in control.  The purpose of mediation is to reach a settlement, but you, along with your attorney, make all the decisions.  No judge will be imposing a settlement on you without your agreement.
4. If you reach a settlement, you will have certainty about your case.  Your case will be essentially over,  and you  not have to face unpleasant testimony by the other side and their witnesses. You can begin to get on with business again without a court case hanging over your head.
5. Solutions can be creative.  The parties can make decisions based on the specific circumstances of the dispute.  A Judge is limited to specific decisions based on case law, precedents, and “cut and dry” solutions.  Mediated settlements allow for as many creative solutions as can imagined.
6. The cost for mediation is much less than the cost of going to trial.  The longer a case drags on, the more it costs  in attorney fees and court costs – not to mention the business costs of prolonged uncertainty.

Mediation services:

• Litigation Mediation
  I have more that 15 years experience as an IT professional. I understand where conflicts can arise in software, hardware, infrastructure, and web-based application projects.
• I also deal with disputes involving information-technology based intellectual property.
• While I specialize in IT/IP, my mediation practice is not limited to these areas. I would be happy to discuss mediation of any litigation related dispute.

Consulting Services:

• Negotiation Coaching
• Conflict Coaching

I was an expert in labour law in my previous life in private practice. At the beginning, I was amazed to see that people don’t know how to negotiate, not only to solve their problems, but in their life. We have to negotiate all the time, in our family, in our community. We have to undertake what I call a productive dialogue to solve problems and this is something that we should learn how to do. We cannot afford to have more war. I think we have know how to speak in an efficient way and how to undertake difficult conversations, because there are so many difficult conversations that we all avoid. “Oh it is going to be too much trouble.” No, no, no, no. Don’t avoid it, just learn how to express yourself in a productive way.”

Read more in the Montreal Gazette

Be sure to read the last paragraph of the Gazette article if you are a mediator…

Date: June 16, 2011
Hosted by: ADR Ontario

ADRIO 2011: The Art (and Science) of ADR
Metropolitan Hotel
(near corner of Armoury and University Ave)
108 Chestnut Street, Toronto, Ontario

9:00 ADR Institute of Ontario Annual General Meeting (all welcome)

9:45 Improving your Practice Through Introspection and Dialogue? You be the Judge!
This panel will discuss the issues that are uppermost in the minds of today’s mediators including:
What is your style as a mediator, and do you need more than one?
When, if ever, should you be evaluative and of what?
Does mediation always require a rational approach? What do you do with emotion?
How much does a mediator need to know about mental health?
How much expertise does a mediator need in the content of a conflict (as opposed to expertise in the process of mediation)?
So I’m doing mediation: what defines a mediation process, as compared to any other dispute resolution process?”
Is mediation a western cultural construct, and is this okay in a multicultural world?”

Moderator: Peter Bruer, BA, Conflict Resolution Service, St. Stephen’s Community House
Barbara Landau, LL.M., Ph.D., C. Med, Cert. F. Med., Cert. F. Arb., Cooperative Solutions
Roger Beaudry, C.Med., C.Arb, Aptus Conflict Solutions
Heather Swartz, C. Med, Agree Inc.

11:00 Coffee Break

11:15 The Art (& Science) of Arbitration
Our panellists will discuss the most important issues in arbitration including:
• Choosing effective ADR clauses for agreements
• Domestic and international perspectives
• Ad hoc or administered: the case for proactive case management in commercial arbitrations
• Adopting or adapting rules
• Three person panels
• Security for costs
• Jurisdictional issues
• Motions, production & discovery
• Motions for summary judgment and phased hearings
• Class action arbitrations
• Steps to reduce time and costs
• Use of experts: (single expert, expert
conferencing, expert for the tribunal)
• Compelling the attendance of witnesses
• Conducting the hearing
• Med/Arb
• Enforcement of awards/ limitation periods

Moderator: William G. Horton, C.Arb., FCIArb, WGH Dispute Resolution
Panellists: Thomas G. Bastedo, Q. C., Cert. F. Arb, Bastedo Stewart Smith
The Honourable James B. Chadwick, Q.C., Ottawa Dispute Resolution Group
J. Brian Casey, FCIArb, Baker & McKenzie

12:30 Lunch and Luncheon Speaker:  Elaine Newman, B.A., LL.B., LL.M., Newman Arbitrations Inc.

2:00 Conference Concludes

Download the brochure and registration form and Register Today!

Date: April 1, 2011
Hosted by: ADR Ontario

With stress, anxiety and depression rampant throughout society and present in every workplace, it is no wonder mediators and arbitrators have found themselves managing situations where they suspect one of the parties has a mental health condition. How does one deal with that?

Read More

Sign up Now!

by Diana Morokhovets

On August 30, 2010, the Court of Appeal unanimously decided in Keam v. Caddey, 2010 ONCA 565 to reprimand a litigating party for failure to participate in statutorily mandated mediation.

…the Court of Appeal rightfully directed its comments to the statutory duty to mediate stating that “[t]here can be no legitimate reason to refuse to participate because to elect not to participate constitutes a breach of the insurer’s statutory obligation. Accordingly, the Court concluded that despite a lack of malevolent conduct “a significant remedial penalty was required in all the circumstances.” To that effect, the Court ordered an increase of $40, 000 in the costs award. This brought the appellants’ recovery to $150, 000, up from $110, 000 representing partial indemnity costs ordered by the trial judge. This sum represents a middle ground between a partial indemnity award of $110,000 and the appellants’ substantial indemnity bill of $196, 145. This award allows the appellants to recover a significant amount of their costs and also reflects the court’s disapproval of the defendant’s actions without running the risk of opening the floodgates to a great increase in substantial indemnity claims.

See Refusal to Mediate Attracts a Remedial Penalty in Keam v. Caddey

What is the Meaning of Life?

The meaning of life is simply life itself. There is no meaning beyond our existence and our life experience. There is no greater meaning to it all that can somehow transcend our world. This is it.

So now what?

The all too unfortunate side of this realization is the potential for nihilism or hedonism. Nihilism is the idea that because there is no greater meaning to it all, we should live with the attitude that life is hopeless and pointless. The nihilist would spend life sitting around, moping, and waiting for the inevitable end.

The opposite of the nihilist is the hedonist. The hedonist believes that since there is no greater meaning to it all, he is free to do as he pleases, when he pleases, without any regard for others, and with the only goal of seeking maximum personal pleasure. The hedonist would spend life committing crimes, doing drugs to excess, and walking over others for his or her own benefit.

There is nothing intrinsically wrong with either of these attitudes. There is nothing universal that would preclude someone from living a life as such and feeling perfectly content. However, most people would probably be more content not living with either of these attitudes. We do live in a real world with real consequences, and living without regards to others will subject a person to the consequences that individuals in our society have created to deter such attitudes (i.e. laws, social isolation, etc.).

These are not the only options available for living a life in a godless world. There is a “light at the end of the tunnel” for the rational person, and it’s not in the form of a supernatural being.

Purpose

The amazing thing about there being no greater meaning to life beyond life itself is that we have the power to create meaning. Everyone has a blank slate to work with to craft a story that will please himself or herself. We craft a meaning by choosing a purpose. We have the power to decide our purpose, or even several purposes that we will work to fulfill. By fulfilling a purpose, and working to do so, we can live our lives in such a way as to become content with our own existence and the world around us. After one purpose has been fulfilled, we can choose a new one. The meaning of life can be to find and fulfill life purposes.

A purpose can really be anything. It can be to do works of art, start a business, help the poor, enforce the law, help the sick, or create scientific developments. It can even be to start a family, travel, or to spend time with friends or a significant other. Whatever makes us content with our lives. Although this paradigm is very simple, it is also very empowering. Life is ours for the taking. We are in control of our own destiny.

One of my purposes is to create a legacy that will live on after my death. Why would this matter if I don’t believe that I will have the ability to experience that legacy? It is for the same reason that someone would send a check to a charity to help a group of people that he will never see or never meet. Or, from a more selfish perspective, why a celebrity would want to be considered famous to a person that he will never encounter. We as humans share the common experience of life, regardless of the time or place we live in. If there is one way we can transcend our own existence, it is through the life of another. Although their life experiences may have ended long ago, historical figures constantly remind future generations of the experience they had by cementing their names in the history books.

The hedonist or the nihilist lives a life without purpose, and will likely never find spiritual fulfillment. The hedonist could say that his purpose is to do whatever he feels like. If he can truly find meaning in fulfilling that purpose, then perhaps that will create content. But there are very few people who would find such a meaning.

The Religious Paradigm

Under most religions, the meaning of life is simply that each individual life amounts to some minor part of a greater plan by some invisible being or beings. Many questions remain unanswered. What is the meaning of the greater plan? What is my meaning within the greater plan? Why would such a greater plan include suffering? What is the meaning of the creator, and where did he come form? These questions create more confusion and despair than the theories pacify.

The purpose of life in most religions is to follow a list of rules (many of which are ridiculous and inconsistent with contemporary life) that an invisible being wants us to follow in order to gain access to a better afterlife. What is the purpose of the afterlife? What is the purpose of each particular rule? What if the purpose I would like to fulfill conflicts with one of the rules?

The religious paradigm is incomplete. It simply makes up a story and calls it a meaning. An existentialist paradigm may not be as fantastic or magical, but it is rational and complete. The meaning of your life is whatever you want it to be.

Morality

An obvious argument against the concept of choosing your own purpose in life is that someone could choose the purpose of hurting or killing other people. What would make this purpose wrong if it made that person content? Would there not be something universally wrong with hurting others?

There is nothing universally wrong with hurting others. But, a world in which people hurt others would be worse than a world in which people did not. Although there is no ultimate arbiter of right and wrong, or universal moral code that we should adhere to, the fact remains that there are several independent beings in the world whose interests will inevitably collide. Morality is simply a set of rules that we create to organize human interactions. There is no hard and fast set of rules, but we as a species have been very successful at crafting rules that provide all individuals with the opportunity to fulfill their purposes.

If there is one thing I learned in law school, it’s that there is a solution in law to almost any possible problem resulting from human interaction. The law is constantly evolving as new problems are solved, and old solutions are replaced with better ones. Of course, laws can be bad. For example, a law permitting the killing of someone for having the wrong religious belief. Why would we say that such a law is immoral? It is because such a law is a bad solution to a problem, and there are better solutions that will create more opportunity for happiness.

Many philosophers have searched for a unifying theory of morality. For example, the utilitarian theory states that morality is simply the solution that provides the greatest good for the greatest number of people. The theory attempts to measure levels of good and compare them. This theory fails when you start trying to measure levels of good. Is the value of a great scientist’s life more important than a bum’s? How about two bums? What of a law that provides a huge benefit to a large group, but a serious detriment to one or two people? The world is simply too complex to determine values for every possible interest and measure those values against the values of others.

Another theory is Kant’s categorical imperative, which basically states that an action taken by an individual in any situation should be such an action that should be Universally taken by any person in such a situation. If I see another person’s house, it should be a Universal maxim that I should not break in and steal that person’s TV. The problem with this theory is that it only works for simple human problems. What if there are several competing good things to do. Should I take a good job in a far away city, or stay home to help my ailing mother? There is no universal maxim to solve this problem. A similar situation arises if there are two bad choices.

We as a society have made rules to guide people to make better choices, and to punish choices that we think are bad. We create morality to try and shape the best possible world, but there is no perfect world.

Of course politics is an inevitable factor in discussing morality. Is the United States moral code the best for regulating human interactions? Or is a more socialist European nation like Sweden’s better? Who should determine what is the best moral code for the people of all nations? There is no easy way to make such determinations. Settling who has the best moral code and what it should be is a great goal of humanity that will involve inevitable conflicts in opinion.

However, there is no room for moral relativism in this theory. That is to say, there are certain moral codes that are vastly inferior and should not be considered acceptable forms of organizing a society simply because they are accepted by the individuals in that society. For example a society that permits ritual human sacrifice would be vastly inferior to one that did not. It may be for the good of humanity for a more powerful society to enforce its superior moral code on the society committing ritual sacrifice in order to provide a better life for the individuals in that society.

In any discussion of morality and atheism, Hitler and Stalin will inevitably be discussed as examples of what happens when atheists are given the power to enforce their moral views. These individuals led their nations based on what they believed were moral principles. Under skewed forms of utilitarianism, both believed that they were acting for the greater good by killing political dissidents, the mentally ill, Jews and other ethnic minorities. These dictators had inferior moral codes by which they organized their societies. It was not their atheism that led to their horrible deeds, but rather their skewed versions of morality. We have realized that these moral codes were absolutely abhorrent, and should never be allowed to exist again.

These examples of immoral atheists should also be compared with the hundreds of immoral actions by dictators and societies acting around religious foundations of morality. The problem with religious morality is that religions set a moral code based on the prevailing views of morality at the time and in the society that the writers of the religion were living. The Jewish moral code is based on the sections of law in the of the old testament, which were written approximately 2600 years ago (read up on the documentary hypothesis for more information on the origins of the old testament). The Christian moral code is based around morality from 2000 years ago. Islam 1500 years ago. Of course religions generally have their own case law, or religious scholarly writings, interpreting the primary sources and allowing some change. However, these writings are bound by rigid books written by ancient people. The books cannot be amended or changed to reflect changes in prevailing views of what is right or wrong.

Contrast with the US constitution. The US constitution provides a moral code from approximately 250 years ago. However, the constitution permits amendments, meaning that the primary source of law can change as morals change. This flexibility permits change and evolution.

Conclusion

Realizing that there is no god and that our existence is simply a great fluke may be a scary experience, but it does not mean that life cannot persist without spiritual enlightenment. There is opportunity to find meaning in life, fulfill a purpose, and act in a moral way. We have the power to shape our world and our own destiny. We must take control of the power while we are here, for it will not last forever.

http://www.danrevich.com