Business Conflict Blog

NOTE:  The following text will appear as a chapter in a mediator skills volume to be published soon by the International Bar Association, edited by mediator Patricia Barclay of Bonaccord Ecosse Limited, in Edinburgh, Scotland. 

          Reality testing is the technique of inviting a party to adjust his perceptions of the claim.  A party may overestimate the likelihood of success on the merits, or the other side’s ability or willingness to pay.  He may have an unrealistic assessment of his alternatives to settlement.  The transaction costs of continuing the dispute in court may not have been accurately addressed.  He may not have confronted business, competitive, or psychological obstacles to a successfully negotiated conclusion of the dispute.  The purpose of reality testing is to help to eliminate those obstacles. Read more »

Tags: Mediation

While working for a company, a guy opens up a competing business and lures away customers.  He is sued by his employer for fraud and breach of fiduciary duty.  Prior to trial he participates in a mediation, that is unsuccessful.  At trial he loses and is found liable for $364,000 in damages and $51,000 in attorney fees.

What does he do?  What any red-blooded American would do — he sues his attorney in federal court for shoddy representation during the mediation. Read more »

Tags: Mediation

Two interesting conferences will take place in Virginia during the month of March — one focusing on investor-state dispute prevention and the other on a variety of challenges and opportunities faced by Virginia mediators. Read more »

Tags: ADR, Mediation, systems design

My class in International Commercial Dispute Resolution at New York Law School is now finished, and each student was required to prepare a paper on a related topic of their choice.  All were good, happily, and some students wrote on topics that readers of this blog may find useful.  With their permission, I will post a few of them here over the next few weeks.

This paper, by Michael Martuscello, surveys the current state of business arbitration and mediation in Italy.  Of the many curious aspects he discusses, it is noteworthy that the Italian legislature, not the courts or the business community, seems to be the main driver of ADR and the main advocate for encouraging its use by business.  It is particularly interesting that, in compliance with the EU Directive, the legislature is ramping up a series of requirements that should make a big impact on the way business disputes are handled in the future — resulting perhaps in mediation rather than arbitration being the most practical way to address problems in a deal involving an Italian counterparty.

The text of the paper follows.  Please note that the citations appear as Endnotes. Read more »

Tags: Arbitration, Mediation, Teaching