A Dent in the Universe

As we approach the August 7th 2019 United Nations Convention and signing ceremony promoting international settlement agreements resulting from mediation, it is timely that we pause to reflect on the many and significant strides that have been made around the world toward promoting the use of mediation to resolve conflict. As Steve Jobs famously said, “We are here to put a dent in the universe. Otherwise why else be here?”

What have we learned from those mediators working tirelessly to promote the institutional and cultural changes necessary to implement mediation within their home countries? More specifically, what are the most profound successes and remaining challenges confronting those individuals who each day try to put a dent in their part of the universe?

It is often observed that our global community is ever shrinking, due to the free flow of information, advances in technology, and the urgent need to address cross border issues, such as mass migration and climate change. Against this backdrop, there exists a worldwide effort to promote and implement mediation in communities, institutions and governments. What was, until recently, a nascent effort to affect change through mediation, now shows signs of achieving a firm toehold in many countries around the world.

What are some of the noteworthy successes in implementing mediation?

Weinstein JAMS International Fellows

Since its inception in 2008, the Weinstein JAMS International Fellows program has provided skills development and collaboration for students who come to the United States for several months of mediation training. So far, students have originated from over seventy-five countries, and their backgrounds include: judges, government officials, attorneys and refugee camp workers. The International Fellows program now counts upwards of 120 graduates. Those graduates have returned to their home countries to draft legislation, reform courts, develop commercial mediation practices and in a variety of other ways, promote the implementation of mediation. Some of their more successful efforts include:

  1. Rwanda – International Fellows have drafted a new mediation law and assisted with training local judiciary and bar association members in an effort to implement mediation in the Rwandan civil and criminal justice systems.

  2. India – International Fellows have worked to relieve overcrowded court dockets by assisting with community mediation centers. One Fellow has established the first commercial mediation center in India, staffed by attorney mediators.

  3. Republic of Georgia – International Fellows have worked with the Prime Minister and the Minister of Justice to lay the groundwork for a multi-pronged approach to implementing mediation and establishing their country as a regional hub for business.

The Global Pound Conference

In 2016, the Global Pound Conference took place around the world in more than 25 regional venues. The Global Pound Conference, of which I co-hosted the San Francisco event, was an ambitious attempt to take a real-time snapshot of the Alternative Dispute Resolution community by using a series of similar questions, designed to measure regional differences. While I leave the substantive outcome of that effort to more scholarly publications, it was one of the first attempts to both recognize and calibrate a deeper understanding of the global mediation community. In their collective efforts, the program directors helped give legitimacy to that community, while helping to identify the common issues and challenges confronting us all.

United Nations Convention on International Settlement Agreements Resulting From Mediation

In late 2018, the United Nations General Assembly adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation. Individual mediators from Singapore and beyond spearheaded this effort, and on August 7, 2019 a signing ceremony will be held in Singapore to herald the adoption of the Convention. While the Convention will still require the signatures of multiple state stakeholders to become effective, it will address for the first time one of the major, often cited challenges to the use of mediation in cross border disputes: the lack of an efficient and harmonized enforcement mechanism. Perhaps as important as the Convention itself, the “Singapore Convention,” as it has become known, has elevated the profile of global mediation efforts in a manner not previously possible.

Technology and the rise of online dispute resolution

The promulgation of online dispute resolution has largely mirrored the advancement of technology in our broader society. Over the past several years, we have seen brick and mortar small claims courts replaced with online dispute resolution protocols in parts of England, Canada and the Netherlands. Emerging websites promoting ecommerce around the world now almost routinely offer access to online dispute resolution (ODR), when conflicts arise involving online transactions. What was once thought in the world of mediation to be the exclusive province of face-to-face intervention, ODR has expanded the idea of what’s possible. Perhaps, most importantly, ODR as a real time, cost effective approach to the resolution of high volume, low dollar disputes has introduced a new generation to the potential of mediation.

Technology has also allowed for the extended reach of quality education and mediation skills development. Online training and education platforms like Edwards Mediation Academy are making it possible for those who are interested in advancing their skills in mediation, mediation advocacy or career development to learn by accessing a computer. Whether the student is a Director of Human Relations from Saudi Arabia, a civil engineer from Pakistan or a judge from Rwanda, the ability of online training to provide valuable lessons in mediation can’t be underestimated.

What challenges remain?

Notwithstanding these and hundreds of other brilliant successes toward the advancement of mediation around the world, in the words of the famous poet, Robert Frost, we still “have miles to go before we sleep.” What are the most commonly recurring challenges, as reported by those at the tip of the spear? What do mediators in emerging markets report are the most daunting obstacles they confront in their home countries? Equally important, what advice can we offer each other to assist in overcoming these sources of resistance?

Institutional challenges

Time honored institutions, and the individuals who comprise them, are often resistant to change. Large institutions, career public servants and vested professionals typically have a strong interest, often financial, in preserving the status quo. While it is beyond the scope of this article to address the multi-faceted and nuanced approaches necessary to overcome deep-seated resistance to mediation, suffice it to say, it can be done. Any meaningful change begins with understanding the needs and interests of all the stakeholders and finding thoughtful ways of addressing those needs. Often, institutional resistance reflects a range of fear-based concerns: what will happen to my company, job, income, etc. Only by understanding and addressing these concerns can those hoping to implement a new culture of mediation obtain their highest trajectory.

Political challenges

In all countries, the administration of justice lies at the foundation of government. How a government provides access to and administers justice will prove the ultimate measure of that government’s success. Therefore, it is imperative to learn to work with government leaders in a so called “top down” approach to implementing mediation in all aspects of government, including the administration of justice. Unfortunately, too many countries around the world are plagued by inefficiencies, longstanding corruption or lengthy court backlogs, which impact access to and the fair administration of justice. Introducing mediation in these environments requires a deft touch and a degree of patience that tests most people’s talents.

More often than not, overcoming political challenges to mediation begins with finding and convincing the right leaders of its value proposition. Learning to speak their language is essential and starts by addressing the most basic questions: why use mediation, what does it offer me politically, and how will it improve the lives of my constituents? In those countries where successful strides in mediation have been made, including: England, Canada, India and Rwanda, to name only a few, these questions have been sufficiently answered for those in leadership positions. Real change was able to take root only after first enlisting the support and collaboration of key government officials, such as Prime Ministers, Ministers of Justice and Justices of the Supreme Court.

Cultural challenges

While the language of conflict is universal, the value proposition of mediation is not. The message of mediation, including its many benefits, must be tailored to the unique cultural environment where the conflict occurs. One of the key cultural challenges to the introduction of mediation worldwide is the exportation of mediation as developed and defined in the United States. For example, our western based thinking and language defines mediation as “an interest based process” requiring the parties in conflict to focus on individual needs and interests. Yet this approach is anathema to collectivist cultures, where the needs of the individual pale in comparison to the needs of the many.

In many cultures that are based on interdependence, such as: India, Latin America and large parts of the Middle East, relationship issues can be as significant, if not more so, than substantive issues. Those who are committed to advancing the potential of mediation need to use language that better articulates and more broadly defines concepts like “interests” in order to overcome cultural resistance to mediation. Only when potential stakeholders come to recognize “interests” as including, if not prioritizing, the relational needs of the many, can we truly speak the language of our audience.

Additionally, how different cultures approach communication (high context versus low context), approach negotiation and view the need for written settlement outcomes, are but a few of the many nuanced differences that vary from culture to culture. Those differences can give rise to significant mediation challenges, if not properly considered in advance.

Conclusion

The past few years have given us reason to be proud in our collective efforts to promote the use of mediation in our global community. Just as the weary mountain climber gains strength by pausing along her journey to admire the view from whence she came, so too must we as a mediation community pause to reflect on our past achievements. From the hundreds of individuals working to implement mediation within their own countries, to the higher profile moments of the Global Pound Conference or the upcoming Singapore Convention, change is happening.

While at times change can be frustratingly slow, we should all take pride in our collective achievements, while redoubling our efforts to quicken the pace. In the words of former President Barack Obama, “Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we have been waiting for. We are the change that we seek.”

We have accomplished so much. So much more remains to be done.

Get Mediation Tips from Bruce Edwards

Bruce A. Edwards

Bruce A. Edwards is an ADR industry pioneer and former chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world

Bruce’s interview with mediate.com

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Bruce was interviewed by Clare Fowler of Mediate.com earlier this Spring.  

She asked him a variety of questions ranging from the state of mediation today to mediation & arbitration in India. We’ve segmented the video by topic for your convenience. If you’re on the go, you can click audio to listen.

Mediation, Where Are We Headed?

Bruce shares his insights on the commercial field of mediation, where we are today and where we are headed.  Can the practice of mediation stay true to the core concepts of interest based dialogue and the right of self determination, if co-opted by lawyers looking only to get a deal done?  How can we expand these lessons into broader society?

 

Neurobiological Approach to Conflict

Conflict and the language of conflict resolution is universal. In this video, Bruce shares his thinking about neurobiological development and how this allows him to develop thoughtful ways to address conflict.

 

The State of Mediation in India

 

In India, with over 60 million cases in the court system, access to justice is hard to achieve.  Bruce illustrates the power of mediation to help unclog the court system for all disputes throughout India.

 

Challenges to building a culture of commercial mediation in India

Bruce describes the challenges and the opportunities for building a culture of mediation in India.

 

Arbitration in cross border disputes (and the Singapore Convention)

While Bruce’s standard practice and vision is the empowerment and facilitation of decision making processes among parties, arbitration in many parts of the world is the standard, if not the preferred legal route. With the large number of cross border disputes going to arbitration, can mediation become the first stop on the stair step of dispute resolution forums?

 

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Heroes and Capes

On March 18, 1997, 3 years after the Rwandan genocide officially ended, the Interahamwe militia from the Democratic Republic of Congo entered the Nyange Secondary School in western Rwanda as part of their murderous rampage and ordered the students to separate, Tutsi on the left and Hutu on the right. The students replied that there were no Hutu or Tutsi, they were all Rwandans. The Interahamwe, angered by the response, left the building but not before killing six students and injuring many others. In refusing to separate by ethnic divisions, the students became iconic heroes and a symbol for future generations seeking a unified Rwanda.

On February 1st we were in Kigali, Rwanda, the Land of a Thousand Hills. The country was celebrating “Heroes’ Day,” an annual event that pays tribute to all those who exemplified the highest values of patriotism and sacrifice for the well-being of the country.
We were sponsored by the newly formed Weinstein International Foundation, a nonprofit organization dedicated in part to supporting the advancement of mediation throughout the world. It was our third teaching journey to Rwanda on behalf of Edwards Mediation Academy, as we continued our efforts to assist the Rwandan government in implementing mediation in their civil justice system.

A new generation of heroes

As we spent the week teaching mediation skills to attorneys and judges, we witnessed first hand the importance and meaning of Heroes’ Day. While nothing can compare to those who paid the ultimate sacrifice through heroic acts during the genocide, it was impossible on that day of celebration to not draw some comparisons with a new generation of “heroes” – individuals who are committed to making great personal sacrifices while taking on new challenges for the betterment of their country. Like most heroes, they would scoff at the designation, yet such humility does not cheapen their contribution, nor make their sacrifices any less noble.

We sat down on Heroes’ Day with Michel Muhirwa, who works in the refugee camps for Congolese nationals in Rwanda. He described his job of teaching dispute resolution skills to community mediators, who could then help resolve conflicts within the camps. He also shared an example of organizing and facilitating monthly meetings between the refugees and surrounding community leaders, focused on reducing conflict around sharing the scarce resources of fresh water and firewood. We concluded the conversation by discussing how to implement peer mediation training in the refugee schools to bring these important skills to the very young.

Rwandan Weinstein JAMS International Fellows

Our hosts for the week were three ADR-trained Weinstein JAMS International Fellows, Anastase Nabahire, Harrison Mutabazi and Bernadette Uwicyeza. These heroic individuals have become the center of the mediation universe within their country, working with the Ministry of Justice, the judiciary and the Rwandan Bar Association to promote public policy, increase awareness, and organize training around mediation skills. During our week in Rwanda, Bernadette, in collaboration with our American colleague, Emily Gould, a mediator and professor at Columbia Law School, undertook the ambitious task of drafting legislation seeking to implement mediation in both the Rwandan civil and criminal justice systems. If successful, this new law will draw on principles of restorative justice and a pre-colonial dispute resolution heritage that may set a model for all of Africa, if not beyond.

Mediation has changed the judicial system

A discussion of modern day heroes would not be complete without mentioning His Lordship, the Chief Justice of the Rwandan Supreme Court, Prof. Sam Rugege, a man whose exalted title stands in stark contrast to his humble demeanor and gentle spirit. If there is an example of the power of one person to effect change, it is Sam. His firm conviction that the role of mediation and its ability to preserve relationships while inspiring peaceful resolution of conflict, is central to the success of the Rwandan judicial system and has created a seismic shift in perspective. Lawyers who once viewed their role as confined to litigation are now being taught the value of “softer,” but equally important, dispute resolution skills.

Finally, not all of the heroes we came across were high profile judges or government officials. One afternoon we visited a local courthouse and shared mediation stories with court registrars. These civil servants are tasked with meeting potential litigants in austere court facilities. With little formal training, they steer litigants toward resolution rather than litigation, using equal parts common sense and mediation skills.

Changing peoples’ lives for the better

While few of us in life can ever compare ourselves to the students who lost their lives in the genocide or Rwanda’s new generation of heroes, their courageous acts should remind us that we each have within us the ability to change peoples’ lives for the better. Once, after going out of my way to assist one of my children’s friends in need, my son looked at me and said appreciatively, “Dad, not all superheroes wear capes.”
As mediators and trainers, we need to remind ourselves of that every day. Mediators have the unique opportunity to reduce suffering and help bring about profound changes in peoples’ lives. Whether these efforts occur in distant countries or local communities, it’s the same lesson: In our passionate pursuit of service to others, we can all be truly heroic.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Rebecca Westerfield, Making People Feel Comfortable

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Rebecca WesterfieldOne of our exceptional Edwards Mediation Academy instructors is Rebecca Westerfield. Rebecca has been mediating for over 22 years and has settled and arbitrated over 2,500 cases throughout the United States and internationally. One of the qualities I most admire about Rebecca is her wonderful way of making people feel comfortable and understood.

On becoming a mediator

Before becoming a mediator, Rebecca had been a sitting judge. What made Rebecca decide to become a mediator was her genuine desire to help people. Rebecca believes that our legal system sometimes creates obstacles and barricades to the exchange of interests and information that could create a much more satisfying resolution for everyone. Mediation helps cut through these barricades and enables the parties involved to determine their own outcome. What Rebecca brings to every mediation is her real desire to want to serve.

Slowing things down

Rebecca believes that hospitality is a very big part of mediation. She spends a lot of time trying to create relationships and connections, and that means slowing things down from the beginning. Rebecca wants people to become completely comfortable with her and the mediation process before delving into it. She creates a rapport and a personal connection with her clients that helps her to see them and their case in a unique way – not just another case, as usual, but their case.

One of the ways Rebecca approaches this “purposeful deceleration” is to, in the cadence of her voice, slow things down. She invites people to be engaged in conversation. She tries to find out things about them – who they are and what is important to them. She asks very open-ended questions and tries to find common points of interest. It might be travel, it might be a favorite book, it might be a movie they’ve seen, and she builds on that.

Rebecca understands that different people need different things to help them become comfortable with the mediation process. For example, she had a case involving a family member who was badly injured in a major catastrophe. She went to the family’s home on a Saturday morning to see them in their home environment, and to give them an opportunity to show her what their everyday life was like.

She took flowers, and they served her tea. They had a lovely conversation. She found that she was able to fully appreciate what they were living with, due to the injuries. The family realized that Rebecca understood what they were living with and respected what they were going through. They knew she understood their situation in a way that wasn’t artificial. As a result of that visit, Rebecca was able to be much more responsive to their real concerns and interests during the mediation process. 

Envisioning the future

Rebecca invites her clients to envision the future they want, one that is beyond the anger or pain they may feel in the present moment. She will ask the parties to share with her what they want their life to look like a year from now. What do they want their business to be doing a year from now?  Do they want to make their business a lawsuit, or would they rather be producing widgets and marketing them. She finds that these types of discussions often help individuals move through their emotions to a satisfying resolution.

Susan Franson Edwards co-founded Edwards Mediation Academy with Bruce Edwards in 2014 in an effort to deliver the highest quality mediation training to a worldwide audience.

Making Peace Our Business

Making Peace Our Business

“It took me and my team four days of road travel, mostly off road through deserts and rocks, to reach this border entry point to receive refugees who arrive here after walking, sometimes for weeks, eating tree leaves, roots and wild fruits on the way, to survive. Most of them arrive in desperate physical and psychological condition; hungry, malnourished, sick, injured, separated from families – some don’t even make it. The South Sudan conflict entered its fifth year this week and has resulted in Africa’s largest displacement, with over two million people displaced, the majority under eighteen years of age.”

– Ihsanullah Khan, Weinstein JAMS International Fellow and mediator from Pakistan, working for the United Nations High Commissioner for Refugees in South Sudan

Thus began a small gathering of international mediators in Rome, Italy this past December to explore a fundamental question: How can we as uniquely qualified and successful commercial mediators find ways to apply our mediation skills to address broader societal conflicts? The two day conference, the first of several similar regional conferences to be held around the world, was organized by Judge Daniel Weinstein, Founder of the Weinstein JAMS International Fellowship Program with David Carden, former United States Ambassador to the Association of South East Asian Nations (ASEAN). The conference included mediators from Israel, Egypt, Lebanon, Jordon, Greece and Turkey. The focus of this conference was to explore the issue of mass migration and what role mediators could play in assisting those affected populations. The conversation quickly expanded, however, to the broader question of how we might be able to assist with other types of conflict.

In short, can we make peace our business?

Mr. Khan continued his report by saying that he was able to establish a community mediation center in the South Sudan refugee camp by applying mediation techniques and practices he learned from commercial mediators in the United States. He trained 85 mediators to assist their fellow refugees in resolving issues peacefully. The results speak for themselves: “In less than six months’ time, the camp reported a 70% decrease in clashes between disputing factions, and hundreds of matters were resolved peacefully.”

For those of us who are interested in pursuing conflict resolution in a variety of settings, what can we learn from Mr. Khan’s experience? What can we, as commercial mediators, do to extend conflict resolution beyond our traditional focus of dispute, so that we can have a more meaningful impact on the world?

Following are some practical ideas drawn from the conference:

  • Brand Mediation, and claim its value

As a profession, we must do a better job of educating our leaders, and the public at large, about the value proposition that mediation affords. In the US, you might read an occasional story about a mediator who was called in to help resolve a high-profile labor dispute. Yet, hundreds of other examples exist every year, under the radar, where mediation was instrumental in bringing about successful conflict resolution, but no one hears about it. Only by elevating the potential of the mediation process, and our role as skilled facilitators, can we hope to make a meaningful impact on societal conflicts.

  • Appreciate the critical importance of our mediator’s mind

As commercial mediators, we understand the critical importance of our “mediator’s mind,” the mental model that we bring to the mediation table. As we set out to identify and intervene in broader societal conflicts, it’s even more important to convey the sense of optimism and bold thinking that comes from sometimes being the only person in the room to believe that success is possible. That means we can’t be deterred by reports of historical failures or negative statements that “It’s just not possible.” Who better to truly appreciate the difference one person can make than someone who has seen hundreds of examples of “impossible conflicts” successfully resolved?

  • Practice the five steps of successful intervention:

Define your focus/be realistic – There are a multitude of local, regional and international issues and conflicts in desperate need of thoughtful intervention and mediation. Issues such as allocation of natural resources, climate change, return of “stolen” national artifacts, gender inequality, financial inequities, religious disputes, and mass migration are all issues that impact millions of lives. And, they are potentially ripe for intervention. As a skilled mediator, you can make a significant difference by identifying a conflict that is “big enough” to be worthy of your efforts, but not so large as to present an insurmountable challenge.

  • Identify and cultivate key relationships

If you have been involved in developing commercial mediation markets, you have probably sought access to and developed relationships with key decision makers. Now, seek out those who are tasked with finding a solution to challenging societal conflicts, and offer to assist their efforts with mediation. It was just this type of relationship that led to Judge Weinstein’s appointment as a Special Envoy by then President Bill Clinton to assess economic redevelopment opportunities in war torn Bosnia.

  • Understand the issues at hand

As commercial mediators, we appreciate that we don’t need to be subject matter experts in every dispute that we are called upon to assist. Yet, in seeking to intervene in broader societal conflicts, I believe it is imperative to possess a deeper knowledge of the issues in dispute. David Carden described this as “Understanding the forces beneath our feet that influence the conflict and its potential solution.”  Your greater understanding of the issues will help establish credibility with the parties, while allowing for more meaningful participation in the discussions that follow. There are a variety of information partners available to assist the pre-mediation education process, ranging from governmental officials, universities, Internet articles, and individual experts, such as economists. Only by developing this deeper knowledge can we hope to be welcomed to the table and best serve the parties involved.

  • Identify all potential stakeholders/avoid failure by exclusion

Any credible dispute resolution process begins by casting a wide net to identify all stakeholders who may have been impacted by a dispute. The gold standard in the United States for how to conduct this convening process is Convergence Center for Policy Resolution, a non-partisan organization dedicated to resolving issues of national importance across the political divide. Once an issue has been identified, such as health care, education reform, or improving relations with Pakistan, the organization seeks to identify every possible stakeholder whose participation will be essential to a meaningful discussion and credible outcome. In some instances, hundreds of interviews are conducted over many months, just to ensure that all appropriate stakeholders have been identified and invited to the table.

There are many mistakes that can lead one to trip out of the starting block on the track toward resolution. Perhaps the easiest one to avoid is not to overlook an essential stakeholder.

  • Develop a roadmap to success

Strategic thinking and a specific action plan lie at the intersection of a good idea and its implementation. Once a “conflict target” or issue has been identified, the hard work begins. Developing a specific action plan to present to decision makers is essential for any credible offer of assistance. The plan must include details regarding who will serve as the individual or panel of mediation experts, what is the cost and time frame projected for the intervention, and who will participate in the process design. Demonstrating a detailed understanding of the process involved is an important first step in convincing others that you possess the mediation skillset essential for the task.

Looking toward the future

In 2014, I was invited to the annual meeting of the International Academy of Mediators conference to give the keynote address on the business of mediation. The assembled audience consisted of some of the most commercially successful and well-known mediators in the world. I concluded my remarks that day by suggesting that the innovation and thought leadership that defined many of us in the “first generation” of this profession was in danger of falling victim to our commercial success. Complacency was the enemy of progress.

I challenged everyone to think more broadly and consider ways in which we could expand our success in other, non-commercial environments. Four years later, that question is now gaining traction. The theme for this year’s International Academy of Mediators conference in Edinburgh, Scotland will be to consider ways to apply our mediation skills in a variety of disputes. Led by our IAM host and mediator colleague, John Sturrock, we will continue this important discussion.

Whether this conversation takes place in Rome, Edinburgh, or your local community, the challenge remains the same: How can we best use our collective mediation talents to develop a better future and a more peaceful world? For inspiration, I turn again to Mr. Khan and the wisdom he developed in the refugee camps of South Sudan.

“Peace can only be brought through dialogue and respect for everyone’s basic human rights, irrespective of race, religion, nationality, sexual orientation, political or social beliefs. My fellow mediators…You have a huge role to play.”

Wishing you all an inspired and peace-filled 2018.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Top Tier Professionals at Edwards Mediation Academy

Top Tier Professionals at Edwards Mediation Academy
Edwards Mediation Academy online courses are taught by acknowledged experts and pioneers in the commercial mediation field. Our students have the unique opportunity to learn from the world’s leading commercial mediators. There is no other way for aspiring mediators to gain the depth and breadth of knowledge provided by EMA courses. Our students come away with real world, practical understanding and techniques that will impact their work for the rest of their lives.

Meet some of our EMA expert mediation trainers:

Hon. Dan Weinstein

(Retired) is a former California Judge and a founder of JAMS, the World’s largest provider of mediation and arbitration services. He is recognized as one of the premier mediators of complex, multi-party, high-stake cases, both in the United States and abroad. In 2008 he started the Weinstein JAMS International Fellowship Program, which provides opportunities for qualified individuals from outside the United States to study dispute resolution processes and practices in the US.

Attorney Nina Meierding

has mediated over 4,000 disputes in her 30 years in the conflict resolution field. She has provided mediation skills training in negotiation, communication, mediation, and culture and gender issues. We invite you to watch this short videowhere Nina highlights some of the issues to consider in a mediation involving cross cultural and gender concerns. The video is included in our Advanced Mediation Course.

Attorney Sriram Panchu

is an acknowledged pioneer of mediation in India.  In law practice since 1976, he founded the Indian Centre for Mediation and Dispute Resolution and was instrumental in creating India’s first court-annexed mediation center, a model replicated by other Courts in the country.  He regularly speaks on issues regarding law, mediation, governance and public interest.

Attorney Dana Curtis

is a pioneer in the ADR field and is known for resolving disputes with challenging emotional dynamics.  She has been a teacher of mediation, negotiation and other conflict management programs throughout the U.S. and internationally for over 25 years.  She taught at Stanford Law School, Gould Negotiation and Mediation Program and currently teaches at the Harvard Law School Program on Negotiation.  Dana has published number articles and books on mediation, most recently Appellate Mediation:  A Guidebook for Mediators and Attorneys. 

Want to learn more about Edwards Mediation Academy online training?

Sample our courses here.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Bridging Cultures & Continents

Bridging Cultures & Continents

Istanbul has long been recognized as one of the world’s most vibrant cities. It literally represents the confluence of cultures as the continents of Asia and Europe meet at opposite sides of the Bosporus. Today, almost twenty million people inhabit this teeming metropolis, where the western influences of the European Union tug at the roots of the country’s more traditional past. A variety of political issues from recent presidential elections to the tide of Syrian refugees add a sense of urgency and importance to the topic of the day: conflict resolution.

It’s against this backdrop that with my new friend and colleague, John Sturrock, an accomplished mediator and trainer from Scotland, I enter the largest courthouse in the world to begin training attorney mediators and introducing judges to the benefits of mediation. (In 2014, Turkey passed a new mediation law, one of its main tenants being the requirement that mediators must be members of the bar, leaving no room for inclusion of non lawyers as this nascent industry begins to take shape.)

Accompanied by our host, attorney mediator Asiyan Suleymanoglu, we enter the courthouse through tight security, especially appreciated in the days following the Paris shootings. What stands out first, besides the immense size of the building itself, is that it more closely resembles a small, self-contained city replete with banks, bookstores and coffee shops than a single purpose courthouse. All around there is a frenetic pace set by the crush of attorneys hurrying from place to place, wearing the tradition black robes signaling their station as advocates.

As we entered the ultra modern lecture hall and were “mic’d up” by our translation team, I surveyed the room and wondered again, what I was doing half a world away from home, trying to help influence a paradigm shift in a legal culture so foreign to my own. John and I walked into the crowd to introduce ourselves and settle into the task at hand.

Over the next eight hours we took turns explaining the mediation process, demonstrating mediation techniques, and discussing a variety of practical issues impacting members of the bar and judiciary.

One of the many benefits of sharing your learning with others is what comes back in return. The audience was surprisingly sophisticated in their questions and we learned much about the new mediation law itself including its prohibition against “directing” mediation participants. A lively conversation ensued, through translators primarily, over the semantic differences between what it means to influence versus direct participants in mediation. We also spoke openly with representatives of the Ministry of Justice about the advisability of potential amendments to the law, including making mediation mandatory in certain types of cases. While generally not a fan of mandatory mediation, I had to be careful not to overlay my American ideals on a legal system struggling with very real access to justice issues. Like so many countries in which I teach, there can be a practical advantage to a judicial jumpstart to mediation occasioned by some degree of mandatory process.

By the end of the day, I believe John and I had opened their eyes to a world of new possibilities. Most important, for those who had completed the requisite 48 hours of training necessary to become a “certified mediator”, our hope was that we had provided a glimpse of what they still need to learn as they anticipate the half million cases that await mediation.

As with any international training, the goal is to share the best practices developed over the last twenty-five years in the U.S. along with the lessons we’ve learned from our mistakes. The invitation then is for them to take the best of what we have to offer, filter it through the unique backdrop of their culture and laws, and accelerate the advancement of mediation in their community. I look forward to returning to Istanbul to revisit new friends and assess the impact of our efforts.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Expanding the Vision of ADR

Balancing Balls Newtons Cradle

While hard to imagine, it was less than 25 years ago that alternative dispute resolution and specifically mediation, was still a nascent concept, unknown to most in the mainstream legal community. Yet, through the energy, vision and entrepreneurship of many, ADR has brought about a paradigm shift in our legal profession. Today, mediation and its common sense approach to dispute resolution have reshaped how we approach conflict. Law schools have developed broad curriculum around ADR, including mediation, where none existed before. Courts, at all levels, have embraced mediation, while creating a variety of court-annexed programs. Most impactful, commercial mediation firms and individual mediators have broadened the vision of a generation of lawyers, focused for too long on litigation as a one-size-fits-all answer to conflict. Yet, as the industry pauses to admire its collective impact on our legal system, we need to turn an eye to the future and ask ourselves: “What is the future of dispute resolution and who will be the next generation of thought leaders to guide us there?”

In May 2014, I was invited to give the keynote address to the International Academy of Mediators annual convention. My topic: The Business of ADR. As the then chairman of the board of JAMS, the largest private provider of dispute resolution services in the U.S., I was uniquely qualified to recount over two decades of experience, at times painful, forging new business models, building brand identity and supporting individual arbitration and mediation practices in pursuit of revenue growth. But it wasn’t my experience in corporate governance that motivated me to address the assembled audience, including many of the world’s most successful commercial mediators. Rather, it was the opportunity to challenge my peers to think about the future of ADR.

Specifically, I told the audience that the irony of today’s conversation is that success brings contentment. And contentment is the kryptonite that robs us all of the vision and the passion needed to bring two-dozen years of collective learning to the next generation of mediators. I continued by emphasizing the point that if our past success is to be more than a footnote in the annuals of American jurisprudence, then we need to leverage that past in pursuit of future gains.

Too often, any discussion of the future of ADR starts and stops with a micro view of how an individual or organization seeks to increase its share of the legal services pie. So-called “broader thinking” often includes peer mediation in schools, expanding community mediation programs and further advances towards institutionalizing ADR in our court system or government. While these are surely laudable goals, those founding fathers, and mothers, of the ADR movement should not be content with incremental change. The conversation shouldn’t be framed by the question, “How does any specific ADR firm hire more mediators, open new offices, or mirror the advancements in revenue of the American Journal Top 200 law firms?” Rather, we should be asking ourselves, “What lessons have we learned that will help shape the future of dispute resolution around the world while improving access to justice?” In short, we need the same revolutionary thinking and broad vision that has brought us this far.

What are examples of encouraging trends in this direction; trends that reflect the vision and commitment of motivated members of our community? What inspiration can we draw collectively from these individual efforts as we look for ways to scale our learning and leave even larger footprints for the next generation of mediators?

  • Jeremy Lack (Geneva, Switzerland), along with others in the International Mediation Institute, is launching the 2016-2017 Global Pound Conference Series to create a modern conversation about what needs to be done to improve access to justice, and the quality of justice around the world by engaging stakeholders in the dispute prevention and resolution fields worldwide (IMI).
  • Robert Fersh (Washington D.C.) founded a nonprofit called Convergence Center for Policy Resolution, whose mission is to bring together large groups of shareholders representing diverse perspectives on important social issues, such as healthcare, nutrition, education and international relations, and create a dialogue to address these issue (Convergence Center for Policy Resolution).
  • Hon. Danny Weinstein, Ret. (San Francisco, CA) established the Weinstein International Fellowship program, which brings together about a dozen ”students” from around the globe each September for mediation training and mentoring before returning home, inspired to find ways to implement these new lessons in their community (Weinstein JAMS International Fellowship).
  • Victor Schachter (Woodside, CA) created a non-profit organization, the Foundation for Sustainable Rule of Law Initiatives. Vic travels the world supporting the development of sustainable dispute resolution programs in developing countries (Foundation for Sustainable Rule of Law).
  • Dr. Mario Patera and Ulrike Gamm (Vienna, Austria). While many mediators focus on the legal equivalent of delivering emergency care to those in desperate need, Dr. Patera and Ms. Gamm focus on preventative medicine. Through their trainings within organizations, they teach mediation competencies to business managers and others to improve the quality of personal and business place interactions (Konflikt Kultur).
  • Ms. Laila Ollapally (Bangalore, India), a respected attorney mediator, first worked with the Indian courts to develop a community mediation center to service the needs of the population largely without access to justice. More recently, she began her own commercial mediation company CAMP, to introduce the mediation process to those with a variety of commercial disputes. Ms. Ollapally has become part of a broader movement to expand mediation throughout the world’s most populous country (Centre for Advanced Mediation Practice).

These are but a few stories of what industry thought leaders are pursuing to help define the future of ADR. As I travel around the globe, teaching mediation in Europe, Asia and Africa, I return from these experiences energized by the reception of so many “students” to the mediation process and by their commitment to explore ways to adopt that process to fit the unique needs of their community. Clearly, the lessons developed in commercial mediation these past 25 years are too important not to be shared with others.

To address the limitations of teaching mediation skills to a global audience in a face-to-face environment, we have developed an Internet-based approach to mediation training, drawing upon a wellspring of 25 years of shared learning. This online training, Edwards Mediation Academy, seeks to make available to the next-generation important practical mediation skills.

Whatever the path or project, as we look to the future, our challenge is clear. It’s not enough to claim victory or feel that our task is somehow complete. Those whose initial vision and entrepreneurism gained them a front row seat to witness a sea change in how our legal system approaches conflict resolution have an even greater responsibility. Its imperative that we think beyond continued commercial success, however defined, and refocus on leveraging our collective experience for the benefit of a broader audience in a world in desperate need of dispute resolution skills. The future of ADR remains ours to define.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Effective Client Representation in Mediation

Effective Client Representation in Mediation

Many attorneys ask the question, “What does it mean to effectively represent a client in a mediation?” During the mediation process, a client’s attorney may need to fill the roles of process designer, client counsel and traditional advocate. This post examines these multiple roles and offers practical advice on how the client’s attorney can most effectively use the mediation process to create a “win, win” for their client.

When should mediation be initiated?

There is no single, best answer to this question. More and more, courts are adopting mandatory requirements for mediation. In cases where mediation remains discretionary, most parties initiate mediation at one of the following critical junctures in a case: At the outset following a demand letter or service of the complaint, just after a dispositive motion has been filed and is pending, after the completion of limited but critical discovery, or on the eve of trial following the completion of expert discovery. The experienced attorney, in consultation with his or her client, usually opts for mediation at the earliest possible stage that makes strategic sense.

What should the mediation process look like?

Fundamentally, mediation is a voluntary, nonbinding process using a neutral third-party to guide the parties toward a mutually beneficial resolution of their dispute. But no two mediation processes are quite the same.

In smaller, more straightforward cases, the parties may proceed directly to mediation with little, if any, advance contact with the mediator. The mediation will usually begin with a joint session attended by all participants, followed by private confidential caucuses between the mediator and each side.

In larger, more complex cases, the mediator or the client’s attorney should initiate a conference call or meeting with all parties to establish the framework for the mediation process. Central questions to be discussed include: logistics, use of experts, and the mediators role. Then, a mediation process can be designed that meets the needs of the parties, with the approval of all participants.

How to select the most appropriate mediator?

Perhaps nothing is more critical to the outcome of the case than selecting the right mediator. Most attorneys would agree that shopping for the right mediator involves a search for someone who exhibits the following traits:

  • Provides impartiality and fairness while creating a safe environment for dialogue.
  • Demonstrates the ability to quickly analyze complex problems, while getting to the case’s core issues and the parties’ true interests.
  • Aids the communication process by critically listening, offering feedback, and negotiating in a manner that preserves trust and confidence.

The client’s attorney should seek a mediator who possesses the right mix of process and substantive expertise as well as someone who has historically displayed the appropriate temperament to deal with the unique blend of parties and issues presented in the case. There are mediators who may or may not use private caucuses, offer evaluative opinions, or employ a variety of other negotiation techniques. As a result, the client’s attorney must seek out information about potential mediators from anecdotal experience, peer reviews, and even direct interviews before making a recommendation.

How do I get the other parties to the table?

Studies have shown that mediators are significantly more successful at getting parties to the mediation table than an individual attorney. By having the mediation firm contact the other parties, the initiating party can avoid the appearance of weakness sometimes thought to be associated with suggesting a settlement. The experienced attorney understands that getting everyone to the table is a valuable service offered by the mediation firm, and leaves the process of case convening to the mediator.

Who pays for mediation?

Like most professions, mediators represent a full range of quality and price. Who pays the mediation fee is often the first negotiation between the parties. Mediators either charge by the hour or a flat fee for an unlimited day’s work. Occasionally, a mediator may base his or her fee on the successful outcome of the mediation. Any specialty fee arrangement, where the mediator has a stake in the outcome, presents obvious ethical concerns and should be avoided.

How do I prepare my client and my team for mediation?

Effective representation of a client at mediation starts long before the parties are gathered around the table to discuss settlement. Once the parties have agreed to attend the mediation and the date has been set, a client meeting should be scheduled to identify potential barriers to settlement, establish realistic but effective settlement goals, and map a tentative strategy for accomplishing those goals. The client’s attorney should prepare a checklist of arguments specific to each party that will motivate settlement. These arguments will later assist the mediator in working with the parties to encourage movement toward settlement.

A decision should be made whether the client should participate in the mediation process. The value of direct client participation at mediation, if properly handled, cannot be over emphasized. A sympathetic plaintiff speaking directly to the defendants or a corporate representative making a heartfelt apology to an injured party can sometimes do more to soften a stubborn adversary than the most persuasive legal document.

Mediation briefs

The mediation briefs are a central tool for the mediator to use in understanding the factual, legal and practical issues affecting settlement. An experienced attorney understands that a short, concise statement of material facts, applicable law, damages and settlement expectations, wrapped in a historical overview of the case, will significantly advance their client’s prospects for settlement. Mediation briefs may be accompanied by documentary evidence, transcripts, videotapes or a variety of other exhibits.

Joint meetings in the mediation process

Mediation in a complex case typically begins with all parties, their attorneys and occasionally experts assembled for a joint meeting to present the facts and legal arguments to the other parties, attorneys and to the mediator. The magic of the mediation process evolves from this opportunity to address all participants to the lawsuit to explain the client’s position without interruption or evidentiary constraint. It is critical that the client’s attorney take full advantage of this opportunity.

The attorney’s opening statement, although addressed to the mediator, is really directed to opposing parties and counsel. Sensitivity to emotional “hot buttons,” coupled with an effort to balance a forceful statement of the client’s position, with the willingness to admit real risks, helps establish credibility and develop momentum toward settlement. Individual parties may be given an opportunity to participate in the opening statement or simply respond to questions by the mediator. While the client’s attorney may believe that the client’s participation should be limited, it is important to consider the mediators role in making the party feel safe and thereby comfortable in participating. No doubt, mediations that focus on the parties’ self-determination have a greater chance of success.

Private caucuses

Following the joint meeting, particularly in a commercial mediation, the mediator will typically separate the parties and began meeting with them in a series of private, confidential meetings, or “caucuses.” In the caucuses, the mediator works with each side to discuss the strengths and weaknesses of the case and explore settlement opportunities. The client’s attorney can use these private caucuses to convince the mediator that he or she has a clearer view of the issues than his or her adversary. Developing credibility with the mediator is fundamental toward achieving their client’s objectives.

A key role of the client’s attorney in the private caucus is to arm the mediator with sufficient ammunition, in the form of legal arguments and factual information, to obtain movement from the other parties. A skilled mediator will scrupulously preserve confidence throughout this information exchange and only disclose information that he or she is authorized to share with others.

Practical considerations during continued caucusing

In many instances, a mediator will conduct dozens of private caucuses in order to orchestrate a settlement. Experienced attorneys will make a realistic assessment of the time needed to work through the legal, financial and emotional issues involved in the case and will prepare themselves and their clients accordingly. Patience and persistence should be the goal of every participant in the mediation.

In many mediations, there comes a time when the parties realize that they cannot obtain a settlement consistent with their premeditation expectations and that further compromise is necessary. Experienced attorneys are prepared for this dynamic and will assist their client to stay on course and work through this difficult stage.

Closing the mediation

The goal of mediation is to obtain a durable settlement agreement acceptable to all parties. Experienced attorneys live by the cardinal rule: never leave the mediation without a signed, binding agreement. At minimum, this requires knowledge of local laws governing the enforcement of the settlement agreements reached at mediation.

In the event that no settlement is achieved, be prepared for the mediator to push the parties to reconvene to continue settlement efforts. The client’s attorney will need to assess, with input from the mediator, whether additional mediation efforts will be productive.

Conclusion

Attorneys must evolve beyond a set of skills honed through years of advocacy in the traditional court setting. To effectively represent their clients in mediation, attorneys must become fluent in the roles of process designer, negotiator, and mediation advocate. Only by developing and perfecting these skills, can the attorney hope to assist his or her client to win in mediation.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Taking Dispute Resolution to all Corners of the World

Blog

Just wrapped up the 7th annual Weinstein Fellowship training in San Francisco, CA. For those that aren’t familiar, this program was started by a generous grant by JAMS panelist Dan Weinstein to find individuals in distant parts of the world that are motivated to change their community’s approach to conflict and dispute resolution. It is hoped that with formal & information instruction, they will return to their local communities ready to impart the lessons of dispute resolution. Whether they take those lessons to develop court annexed programs, community based mediation centers, establish commercial mediation practices, or resolve to use those skills to mediate disputes in refugee camps, each fellow returns home inspired and motivated to pursue change in their community.

During their stay they gain formal instruction in mediation through educational institutions such as Pepperdine’s Straus Institute for Dispute Resolution, Hastings College of the Law, Fordham University or Stanford. They also shadow JAMS mediators, observing real commercial disputes, while participating in a variety of less structured cultural exchanges and social events.

This year’s class included students from Vietnam, Poland, Japan, Rwanda, Greece, Lebanon, Nigeria, Bangladesh, China, Austria and Japan. Through the Weinstein JAMS International Fellowship program, approximately 70 alumni have successfully completed the training and are now participating members of a supportive network of mediators throughout the world.

For more information on this one-of-a-kind program, visit Weinstein JAMS Fellowship.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.