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|IAM Blog: Tom Stipanowich & Karinya Verghese|
Consider the following questions, all of which should be of importance to commercial mediators and those they serve:
Of particular interest to IAM members, the article exposes some fascinating regional differences in mediation practice that were discovered in the 2014 IAM/Straus Institute Survey on Mediator Practices and Perceptions. Notable areas of apparent regional divergence include the relative use or non-use of joint sessions; how mediators handle information received from the parties in caucus; and mediator evaluation and opinion giving. The article also employs IAM data in examining the evolving role and impact of attorneys, positive and negative, in mediation.
Yet another section examines the wide disparities in laws and practices in different cultures and legal systems. Special emphasis is placed on what is – and is not – happening in China, and in emerging economies like Brazil, which just passed a mediation act that is highly prescriptive and appears to infringe significantly on party autonomy.
Culture is also identified as a primary factor in approaches to the handling of med-arb, arb-med, consent awards, “guided choice,” and other kinds of interplay between settlement-oriented approaches and forms of adjudication.
Finally, the article encourages a broadened “upstream” focus for employing the skills and insights of mediators, suggesting that “embedded facilitators” may do much to maintain or improve long-term relationships.
The article is a revised and expanded version of lectures delivered by Tom as the New Zealand Law Foundation’s International Dispute Resolution Visiting Scholar. The full text of the article is at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712457.
Readers are encouraged to offer comments on the questions above, and respond to the observations and conclusions raised in the article.
Stay tuned for additional IAM Blog postings teasing out interesting information from the IAM/Straus Institute survey, including an upcoming post on the survey data regarding the use of joint sessions and caucuses.
* Thomas J. Stipanowich is the William H. Webster Chair in Dispute Resolution, Professor of Law, Pepperdine University School of Law and Academic Director, Straus Institute for Dispute Resolution. Karinya Verghese, LL.M. in Dispute Resolution (2014), is the Straus Institute Research Fellow (2015-2016) and an Independent Commercial Mediator and Conflict Resolution Consultant in Los Angeles.
© 2016 Tom Stipanowich & Karinya Verghese
Please note that each IAM Blog posting represents the view of its individual author, but not necessarily others associated with IAM. IAM Blog Editor Keith L. Seat may be contacted at firstname.lastname@example.org.