Alec Wisner's Blog (13)

Ken, Doug and Other Inspirational Mediators

I just returned from San Diego, where I spent most of last week at the annual convention of the Association for Dispute Resolution (ACR), a leading international group of arbitrators, mediators (commercial, family, community, etc), and peacemakers of all stripes. During the convention, I attended the Advanced Commercial Mediation Institute (ACMI), which was co-chaired by Jerome Allan Landau and Lee Jay Berman, two nationally renowned mediators who've…

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Added by Alec Wisner on November 11, 2011 at 12:38am — No Comments

Welcome to the Rest of My Life

As I enter September, I feel as though a series of enormous weights has finally been lifted from my back; I hope that I've come to the end of my annus horribilus.  

My sorry tale began in late January of this year when I developed my customary winter cough.  I say customary, since, being asthmatic, I seem to contract a bone shaking cough almost every winter.  Past experience had taught me that my doctor would, at best, give me an antibiotic, and, in truth, the cough would just…

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Added by Alec Wisner on November 11, 2011 at 12:36am — No Comments

Why I Mediate

{the First in an occasional series of articles)…

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Added by Alec Wisner on February 9, 2010 at 1:00am — No Comments

Uncertainty Drives Conflict Resolution

After many years of mediating litigated cases, I find that several threads continually recur. Among the most pervasive are the following:



· Attorneys believe that their analysis of the case is superior to that of their opponent

· Parties believe that the opposing party is insincere in his/her/its position

· Attorneys believe that the opposing witnesses will be surprised by certain evidence when directly confronted by…
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Added by Alec Wisner on January 8, 2010 at 3:30pm — No Comments

Mediating Commercial Relationships

In mediating commercial disputes, once all of the frills are striped away, the dispute is very typically about money. The money can evince itself in a number of ways: one side paying the other cash; one side paying the other in specific performance; one side paying the other by refraining from competing, and so foregoing potential income, and so on. But, when the dust clears, the outcome is generally that money either does or doesn't… Continue

Added by Alec Wisner on December 8, 2009 at 12:30am — No Comments

The Joys of Giving

At this time of year, everybody, myself included writes paeans to the gratitude we're supposed to feel during this holiday season, and opines that gratitude should not be a seasonal thing. All true, of course. But I want to remind all of us in the business of resolving conflict to be joyous in all that we give -- and not just during the holidays.



For me, mediation acts as a conduit for my spiritual self. I harness a higher…
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Added by Alec Wisner on December 3, 2009 at 7:00pm — No Comments

Moving the Goalposts 2: The Blowback

In my last blog post, I described, at length, my personal methodology in crafting a mediator's proposal. Today, I'm going to consider what I call the "blowback," which is the downside of the method itself. It's something that's always on my front burner whenever I'm actively involved in "moving the goalposts."



There's an important ideological divide between facilitative and evaluative mediation, and it's one that I'm not…
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Added by Alec Wisner on November 8, 2009 at 8:00pm — No Comments

Moving the Goalposts 1: How To Craft a Mediator's Proposal

As a professional mediator, some of my most challenging and, yes, enjoyable moments have come when I've been able to go "under the line." That is to say, I've been able to do things to increase the size of the pie that was presented to me when I first entered the room. Perhaps I was able to assist the parties in re-establishing a business relationship that had gone south and ended in litigation. Or maybe I was able to provide a safe… Continue

Added by Alec Wisner on October 27, 2009 at 9:00pm — No Comments

Exhilaration and Disappointment

This morning, driving toward the University of Southern California campus, a lot of memories passed through my mind. I recalled attending

the High School Debate Institute at USC, in the summer of 1965, prior to

my senior year, and, as an unknown, being named second speaker, behind Roy Shults. I remembered how the lessons learned their got me to the 1966 state finals in extemporaneous speaking, where I finished 3rd, behind Roy…
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Added by Alec Wisner on October 17, 2009 at 1:30am — No Comments

Original Intent v Consistency, and the Constitutional right to privacy

For many years, I've been a bit upset about the "original intent" faction of the bar, and, more specifically, the progeny of the Federalist Society, who, as a result of 5 out of 7 of the most recent Presidential terms worth of conservative Republican court nominations, have come to dominate the Federal judiciary. For one thing, I've always thought it fantastic that these scholars were so apt at reading the minds of those who lived in a… Continue

Added by Alec Wisner on October 14, 2009 at 11:00pm — No Comments

Making Settlements Last

A settlement is meaningless if it the parties don't respect it. Parties who don't respect settlements simply see breach as another cost of doing business, accepting further litigation if they see the overall result to be profitable. An all too common example may occur when a large small vendor is owed money by a large retailer. In a typical scenario, the

vendor needs prompt payment to remain healthy and a continuous flow of sales and…
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Added by Alec Wisner on October 6, 2009 at 1:00pm — No Comments

Another Day, Another Marvin

Today, I conducted a very contentious six hour mediation. The rubric of

the case was legal malpractice. The underlying case involved a suit by

the live-in girlfriend of a deceased celebrity, under Marvin, for

quasi-contractual recovery of as much as $2 million dollars. The

malpractice itself was, as I saw it, clear. The damages, though, as is

the usual case, were very slippery. The case was either going to be…
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Added by Alec Wisner on September 21, 2009 at 9:30pm — No Comments

Mediation Happens When You Least Expect It

Because many of you reading this newsletter are professionals in the ADR field, professionals who utilize ADR and/or people who have a personal interest in mediation, it becomes habitual to think of mediation as a process by which a trained professional sits down with two disputing parties, typically in the framework of litigation, a divorce, or some sort of legal-based conflict, and tries to move the two sides to resolution without… Continue

Added by Alec Wisner on September 10, 2009 at 9:00pm — No Comments

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