Independent Decision Makers--What to Make of It?

As an Administrative Law Judge and arbitrator, I have felt pressures to conform to the needs or desires of the executive or other party employing me.  I have written about this before, in the context of reminding folks that the judiciary is not so special in this regard.  See A Pressured Judiciary--Fact of Life and Cause for Alarm?  Indeed, it is likely that the tendency to exert pressure--even if inadvertently and/or subtly--is far greater in the administrative or arbitration contexts, where the adjudicatory decision maker is more likely to work closely and regularly with party representatives.  

That is not to say there is something nefarious is going on.  It could be as simple as having a casual conversation about procedure that gently blends into due process questions,

"Insight Mediation"--Just a New Handle for Old School Skills?

The 2011 Winter issue of the ACR Conflict Resolution Quarterly, Vol. 29, No. 2, includes an article by Cheryl Picard and Marnie Jull describing "insight mediation" as a new and emergent method or style of mediation.  Learning Through Deepening Conversations:  A Key Strategy of Insight Mediation.  The authors attempt to distinguish it from other styles or theories of mediation, and includes some new terms and language, but

Revisiting Mediation Styles and Their Correlation to Results

Over a year ago, I reviewed an article in the ACR Conflict Resolution Quarterly, Fall- Vol 28, No. 1, by James A. Wall, Jr. and Suzanne Chan-Serafin, asking “Do Mediators Walk Their Talk in Civil Cases?”  Wall and Chan-Serafin, along with Timothy Dunne have now revisited the issue of mediator strategies (what I call "styles") to analyze the relative consistency and success rates of different mediation styles, as well as the settlement rates in particular types of cases.  Again, their data reveals some surprising and not so surprising trends. 

More Inconsistent NM Arbitration Law

As an arbitrator, I get frustrated by and critical of New Mexico case law from time to time.  Well, I guess it shows.  See Arbitration in NM not in Line with US Supreme Court Decisions, NM Arbitration--State Supreme Court Bucks National Trends; but see Arbitration Clauses in NM--Agreement at the Extreme End.  

As I've written elsewhere, and repeatedly, in Rent-a-Center, West, Inc. v. Jackson, 130 S.Ct. 2772 (2010), the U.S Supreme Court has

The Context and Framework of Conflict Coaching

As I have written previously, the alternative dispute resolution (ADR) field is a broad one, which includes among other things, mediation and conflict coaching.  While I have mediated for a number of years, I am new to the conflict coaching field and continue to

UNM Family Law Mediation Take Aways 2012

Last month I attended 40 hours of very excellent Family Law Mediation Training conducted by Judge Nan Nash, David Levin, and Laura Bassein, for the University of New Mexico.  Although I have been mediating for a number of years, including mediating family law matters for the past two years, I benefited greatly from the training.  In particularly, I was struck by the old adage that "you don't know what you don't know," and the notion that we as mediators need ongoing and comprehensive training, with its attendant role plays, to stay sharp and continue to grow as mediators.  

In that spirit I would like to share some "take aways" for my clients and other practitioners.

NM Arbitration--State Supreme Court Bucks National Trends

In July I wrote about a NM Court of Appeals case dealing with the enforceability of an arbitration clause, Felts v. CLK Management, 2011-NMCA-062, cert. granted.  I suggested the decision was not consistent with then-emergent SCOTUS precedent, or the subsequently issued AT&T Mobility LLC v. Concepcion, No. 09-893 (Apr. 27, 2011), because of its quickness to accord itself—rather than the arbitrator—the right to determine the arbitrability question.

 

Those employed or regularly engaged in the arbitration field know that this is no light question.  As I wrote in the earlier blog, “if an agreement to arbitrate includes