More…

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