John R. Van Winkle: Mediation and the exchange of positions
An exchange of positions provides an opportunity for a meaningful risk analysis.
John R. Van Winkle
Articles
John R. Van Winkle: The world of mass arbitrations and Newton’s Third Law
The back-and-forth, tit-for-tat, “be-careful-what-you-wish-for” world of mandatory arbitration clauses continues, with companies on one side and employees and consumers on the other, and there is no indication that the dueling is over.
Van Winkle: Recent mediation articles discuss ‘first offers’
Two recent articles suggest that in certain circumstances, mediation may be advantageous to go against the conventional wisdom of the anchoring effect of making the first offer.
Van Winkle: ‘Indiana Pound Conference’: Reimagining mediation
The fact that the other four ADR methods have seldom — if ever — been used has led some stakeholders and commentators to suggest that the rules should be amended to eliminate the four other methods, leaving only mediation governed by the rules.
Van Winkle: Mediation process issues to watch
Attorneys participating in mediations in Indiana may want to follow the appellate course of two recent federal court orders.
Van Winkle: Mediation: Sidetracked, and how to get back on track
It is axiomatic that for mediation to meet its promise, for the process to provide the setting for mediators and lawyers to assist parties in finding mutually acceptable, interest-based solutions to complex disputes, those parties must be present.
Van Winkle: An unintended consequence of Zoom mediations
It is submitted that the current reluctance of parties to attend mediation sessions in person has had and will continue to have significant and long-lasting negative impacts on the efficacy of the mediation process.
Van Winkle: Mediation: When does it start and where does it end?
Mediation is a process, starting before and extending beyond the traditional meeting or “session.”
Van Winkle: Confidentiality: Elegance of the Uniform Mediation Act
There was universal consensus when mediation was introduced in the early 1990s that mediations should be “confidential.” The ADR rules adopted in Indiana and most other states, however, failed to set forth clear standards and guidelines for courts and mediation participants faced with issues of confidentiality of mediation communications.
Van Winkle: Mediation advocacy in the age of ‘meet and greet’ sessions
The recent trend toward only “meet and greet” joint sessions in mediation presents a serious challenge to lawyers in discharging one of their primary mediation functions: to advocate on behalf of their clients to get the best settlement option on the table.
Neutral Corner: The mediation process: 30 years later
Although mediation has been an integral part of the civil justice system for more than 30 years, there was not at its inception, nor is there today, a commonly accepted definition or agreement as to what constitutes the “process” of mediation.
Neutral Corner: Why did trials ‘vanish,’ and what is the lesson for mediation?
In his article, “The Disappearance of Civil Trial in the United States,” Yale Law School professor John H. Langbein explored the factors leading to civil trials having all but “vanished.” He concluded that the largest single cause of the decline in the number of jury trials was the robust and extensive fact discovery promoted, if not mandated, by the adoption of the Federal Rules of Civil Procedure.
Neutral Corner: “Factfulness” underscores importance of robust mediation
A recently published book chronicles the decades-long work of Hans Rosling, a social scientist and international professor of health. The book, “Factfulness,” published in the spring of 2018, reveals how human instincts and intuition lead the majority of people to see the world incorrectly.
Neutral Corner: Mediation 25 years later — what’s coming in the next 25?
In the 25 years since Ross Stoddard’s first program on mediation, he has conducted over 4,500 additional mediations. This highlights the growth of the mediation process in Indiana and in all other states.
Neutral Corner: What they said about mediation in 2017
Here is a quick look back at some interesting observations about mediation from journals and law review articles in 2017.
Van Winkle: Joint sessions in mediation facilitate settlement
As the mediation process has evolved, one of the most significant changes is the trend in many jurisdictions, and among many lawyers and mediators, to dispense with the initial joint session. Perhaps because most of today’s litigators did not have experience with the pre-mediation settlement process, some of the fundamental factors and dynamics that make the joint session important in the settlement process are not evident.
Neutral Corner: Trials may be vanishing but not the need for mediation
The phenomenon known as the “vanishing trial” has been a topic of serious discussion, and in some quarters, serious concern, since statistics showing a marked decline in the number of criminal and civil trials were first reported in 2004.
Neutral Corner: Experts advise to ‘think slow’ when handling mediations
The tendency for decision-makers to respond first with an intuitive (and often wrong) response has significant implications for both mediators and advocates.
Neutral Corner: lessons from golf for mediation
The preamble to the mediation rule could have easily provided, as do the rules of golf, that the mediation rules are guided by the historical principles of the legal profession and the importance that mediation be conducted with integrity and in accordance with these principles.
Neutral Corner: Indiana’s ADR Rules adopted 25 years ago
Although mediation became the main thrust of the ADR Rules, mediation as now known was not the central feature of the rules originally proposed.