Mediation
Articles
Siblings Mediate Elder Care Issues
As part of the CBS series The Caregivers, CBS news correspondent Thalia Assuras examines the lives of the Burrows siblings, who were unable to agree on the proper care for their elderly parents. The siblings turned to a trained mediator from the Elder Decisions Agency of Boston to facilitate their discussions. Says Warren Burrows, "It got us moving; not that we weren't moving before, but it got us to focus."
Read the installment, "Mediators Save Caregivers' Relationships: Professionals Can Help Siblings Make The Tough Health Care Decisions For Aging Parents," on CBS News' website.
Trials Do Not Always Bring Closure to IP Disputes
In a recent symposium sponsored by the San Francisco Bar Association, intellectual property experts and ADR practioners advocated the use of mediation rather than litigation to resolve IP disputes.
"Panel Advises IP Litigators to Wake Up and Smell the Reversals," Jessie Seyfer's 01/22/07 Recorder piece featured on Law.com, quotes panelist U.S. District Judge Susan Illston as saying that even a trial verdict does not necessarily bring closure to an IP dispute, as "[t]he Federal Circuit reverses us well over half the time." Such reversals and appeals make litigation a risky endeavor for high-stakes IP disputes. Adds Illston, "It's a really good idea to do as much by ADR as you can."
As Settlement Talks Continue, Judge Orders Mediation for 83 More Katrina Lawsuits
On January 10, U.S. District Judge L.T. Senter Jr. ordered to mediation 83 lawsuits that concern Katrina-related insurance payouts. Included are lawsuits filed on behalf of Mississippi congressmen Trent Lott and Gene Taylor.
AP writer Garry Mitchell's January 10 article, "Judge Orders Mediation in Katrina Suits," appeared on the Houston Chronicle's website as part of its ongoing coverage of Katrina-related claims and dispute resolution. Mitchell's article also notes that State Farm Insurance, Mississippi Attorney General Jim Hood, and homeowners' attorneys are close to producing a mass settlement that would cover all State Farm policyholders in three coastal Mississippi counties, not just those policyholders engaged in litigation. For more detailed coverage of the negotiations, see Michael Kunzelman's January 9 AP article, "State Farm May Settle Katrina Cases."
Elder Mediation Gets Families Talking, Agreeing
Elder mediation is a growing specialty within the mediation field. Trained mediation professionals are helping families find solutions to one of life’s most difficult challenges: caring for elderly loved ones when they are no longer able to care for themselves.
Maggie Johnson, in her 12/3/06 Boston Globe piece “Mediators ease decisions on elders,” characterizes elder mediation as “an important tool for dealing with a new challenge: long-distance caregiving in a long-life-but-bureaucratic age.” She shares the successes of families who have chosen mediation to facilitate dialog and resolution. For example, Alessandra Nichols participated in a family mediation to determine how to best care for their recently windowed, 87 year-old mother. “People got to say what they wanted to say, people got to be heard,” said Nichols. “We were face to face saying these things together...”
Mediation in Stanislaus County: A Promising Alternative
A November 26 editorial in California’s Modesto Bee commends Stanislaus County’s mediation effort (“New dispute mediation program saves time and money for everyone”). Thanks in part to a $97,000 grant, the Stanislaus County Superior Court is cultivating a promising mediation program – 12 of the program’s first 16 mediations resulted in settlement, and 75 more cases are already in various stages of the resolution process.
The editorial notes that the mediation process has the potential to, among other things, “provide the opportunity for the individuals involved - not just their attorneys - to speak their minds and directly influence the outcome.” Hostilities are minimized; limited county resources are spared; and parties save considerable time and money while actively contributing to the resolution of their dispute.
Mediation Benefits IP Community
Published on Mondaq.com on November 7, 2006, “Mediation Of Intellectual Property Disputes” by Manisha Singh Nair provides an excellent overview of mediation’s benefit to the IP community. “Even when a settlement is not achieved,” writes Mrs. Singh Nair, “mediation never fails, as it causes the parties to define the facts and issues of the dispute, preparing the ground for subsequent arbitration or court proceedings.” Mrs. Singh Nair also lists several types of IP disputes well suited for mediation, including the licensing (and infringing) of IP rights. Registration required.
Businesses Benefit Using Mediation
A brief article in the Naperville Sun summarizes the potential benefits of mediating business disputes (“Mediation Cheaper Than Lawsuit,” 11/2/06). Using mediation, business disputes can not only be resolved in less time with fewer legal expenses, but they can also be heard by a legally-trained industry expert who can provide realistic counsel on the likelihood of success should the dispute proceed to trial. The Sun’s article also notes the differences between the two classic mediation techniques, evaluative mediation and facilitative mediation.
Report: Public Landowners Prefer Mediation
Mediation is the “preferred alternative to litigation” among a majority (58%) of public landowners, according to a new study commissioned by the national construction consulting firm, PinnacleOne.
PinnacleOne also reports that the vast majority (94%) of public owners deem their organization as either “competent” or “very competent” in managing and resolving complex construction disputes. “However,” said Executive Vice President Joseph Siebold, “Even as their ability to deal with conflict increases, owners should look to opportunities to take proactive steps to prevent disputes from starting.”
PinnacleOne’s news release dated 10/10/06 highlights the principle findings of the survey, “The 2006 PinnacleOne Pulse of U.S. Public Construction,” conducted by Market Measurement Inc. in August 2006.
The Merits of Mediation
Need further proof of mediation’s efficacy and growing popularity in the courthouse?
Mediation has been made a mandatory pre-trial requirement for small claims cases in Florida’s Leon County, where 985 cases out of 1187 were successfully resolved in 2005 by the county’s volunteer mediators. "It is probably one of the most successful programs that I am aware of in the judicial system," says County Judge Don Modesitt. “I'm not sure we would be able to complete the volume of cases without them."
Modesitt and others spoke with Chitra Subramanyam of the Tallahassee Democrat for her piece titled, “The merits of mediation: Mediators helping to reduce caseload on overloaded docket.”
Chief Judge Charles Francis – who was a mediator himself prior to becoming a judge – characterized mediation as “a more satisfying forum” for disputing parties; with the assistance of an impartial facilitator, they can “reach an agreement as opposed to having someone order a solution."
Businesses Like Mediation as Alternative to Costly Lawsuits
“It is now an exceptionally well-proven business process, and there should be no business executive anywhere in America who is not intimately familiar with the mediation process and its benefits.”
So says Terry Peppard, a Madison, Wisconsin attorney and author of Arbitration and Mediation of Business Disputes. Peppard and his colleagues in the Dane County Bar’s Case Mediation Program mediate 275-350 cases a year, approximately 1/3 of which are business disputes. Peppard continues, “You can't be a good executive if you don't know that this is out there and what it can do for you.”
In her piece, “Can't we all just get along? Businesses like mediation as an alternative to costly court fights,” Patricia Simms of the Wisconsin State Journal investigates the growing appeal of mediation and arbitration in Dane County, speaking with prominent attorneys, retired judges and corporate counsel about their experiences and successes.
Regional insurance giant American Family Insurance has found mediation to be a highly effective business dispute resolution tool. Assistant general counsel William Rasche notes, “[T]he track record for mediation has been highly successful for us throughout the years... It is a way of reaching final resolution in a fair and reasonable way.”
Police Officers Double as Mediators
Police Chief Ron Louie of Hillsboro, Oregon, realizes that mediating disputes isn't second-nature to many officers. “Most cops want to control people, control the scene. But we’re not necessarily problem-solvers.”
As Jill Smith of The Oregonian writes in her 8/24/06 article, "Hillsboro Police Require All Officers to Train as Mediators," Louie created the Hillsboro Mediation Program in 1996 out of his desire to resolve problems rather than just control behavior. Today, the 147 officers of the Hillsboro Police Department are all trained in mediation and have performed close to 70 on-site mediations in 2005-2006. “We kind of do mini-mediations,” says Sergeant Richard Goerling, noting that officers may spend around 20 to 40 minutes with disputing parties depending on the circumstances.
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Retired Supreme Court Justices Help Make Appellate Mediation Program a Success
Abraham Lincoln’s motto, “discourage litigation,” inspired Rhode Island Supreme Court Justice Frank J. Williams to create an appellate mediation program.
The program requires civil cases to go to an hour-and-a-half “discussion” before proceeding to an appeal. At the session, a retired Supreme Court justice listens to both parties and the parties can elect to continue the mediation where appropriate.
The expert legal opinions of the retired justices have helped the program resolve nearly 50% of the cases it has seen. In his Providence Business News article, "R.I. Supreme Court uses mediation to cut appeals," Justin Sayes interviews Lauren Jones, an attorney who has represented many clients in the Rhode Island mediation program. According to Jones, “[an] independent, judicial perspective can be very helpful in helping to resolve cases” because clients respect, and are often swayed by, a judge’s opinion.
Chief Justice Williams is pleased with the success of the mediation program. Aided by retired justices who know the advantages and disadvantages of appellate litigation, clients are saving themselves and the Court time and money by mediating their disputes.
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Survey Results Confirm ADR’s Popularity with ABA Members
Survey results of attorneys’ ADR preference and usage have just been published online at the American Bar Association General Practice, Solo and Small Firm Division (GPSolo) website.
In late 2005, the GPSolo Division and the National Arbitration Forum collaborated on a survey designed to discover members’ needs and preferences regarding negotiation, mediation, and other forms of ADR.
A decided majority (over 85%) of GPSolo respondents believe that their clients' interests are at least sometimes best served by offering ADR solutions. More than one in three ABA GPSolo respondents would value opportunities to learn more about the distinctions and implications of the rules and panels of national ADR providers. And most ABA GPSolo respondents want additional information about ADR, including empirical studies comparing litigation to ADR, effective contract drafting techniques, and education about the laws governing mediation and arbitration.
Survey Results: ADR Preference and Usage
More Partnership, Less Pit-Bull
In the Atlanta Business Chronicle’s article, “Profession’s ‘Pit-Bull’ mentality Losing Its Teeth,” contributing writer Lori Johnson explores the correlation between the rise of ADR and the decline of combative tactics in the legal profession. The renewed focus on professionalism and partnership is being encouraged by not only bar associations but state courts as well, as a Florida court recently ruled that a firm’s TV ads featuring an aggressive pit-bull were “demeaning to the legal profession.”
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Arkansas Mediation Yields 90% Success Rate
In “Mediation Provides Solution in Legal Matters,” reporter Pat Hambrick of Searcy, Arkansas’s Daily Citizen covers the benefits and advantages of White County’s mediation program. In addition to statistics demonstrating the effectiveness of the mediation program, Hambrick provides perspective from the local court administration as well as local attorneys and mediators. Glenda Kersh, deputy clerk over small claims and civil court, says, “People don’t have to sit all day in the courtroom waiting for their case to be tried. If they come to agreement during mediation, the judge goes over the decision and the case is closed.” Adds attorney and mediation director Jack Bell, “People know their situation better than anyone else and, given assistance, can come up with a solution that works for everybody. It takes away the fear of the unknown. In court, the agreement is done without their input, and what the judge decides may or may not be what they want.”
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The Mediation Train Has Left the Station
In the Daily News article “Nowadays, Mediation is to Law As Reality Shows are to Prime Time TV,” Jocelyn Dan Wurzburg of the Memphis-area practice Jocelyn Wurzburg Mediation recalls to author Andrew Ashby that in the 1980s, she was completely unable to persuade her fellow attorneys to practice mediation: “I kept trying to tell them that this train had left the station and we attorneys were either going to be the engine or we were going to be the caboose.” Ashby chronicles the subsequent task forces, commissions, studies and petitions that culminated in the state court’s adoption of its mediation program, whose panel has nearly doubled in the past five years to 900 court-qualified mediators.
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Small Claims Court Mediation Success
In this Quad City Times article, Dustin Lemmon reports on the Scott County Courthouse’s small claims mediation program. The program has maintained a high success rate since becoming mandatory, boasting a 77% settlement rate for the first quarter of 2006. Court Administrator Howard Thomas says, “The magistrates are pleased with it, and I think all of the judiciary is happy with it.”
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New Partnership Produces FORUM Dispute Management in California
The National Arbitration Forum and Hart ADR, founded by Ross R. Hart, Esq., have recently joined together to better serve the dispute resolution needs of the California construction and real estate industries. This strategic partnership will allow parties with construction and/or real estate related disputes to access an experienced panel of arbitrators and mediators and will create a more efficient resolution process. The merged entity is now named FORUM Dispute Management.
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New Standards for Florida Mediators
On May 11, The Bradenton Herald posted Bill Kaczor’s AP article “Supreme Court Changes Rules to Diversify, Expand Mediator Pool.” According to the story, the Florida Dispute Resolution Center has revised its qualification standards for certified mediators. In addition to academic degrees, its point-based system now credits various training diplomas, licenses, and mediation experience as well.
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National Arbitration Forum Hires Former Vikings Exec
According to the Minneapolis/St. Paul Business Journal, the National Arbitration Forum recently named former Minnesota Vikings Executive Vice President Mike Kelly as its new chief operating officer and general counsel. Kelly will oversee the National Arbitration Forum's business operations and legal affairs.
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Litigation: The Unwelcome Houseguest
Allentown attorney and mediator Karolyn Vreeland Blume compares litigation to "an unwelcome houseguest that stays for two years." In this article, The Morning Call's Jeanne Bonner profiles Blume’s mediation practice, noting that between 70 percent to 80 percent of cases that choose mediation instead of a trial end in mutual agreement. “There are times when my head starts to spin and I think, ‘Why did I get into this line of work?’” says Blume. “But it always ends. I've never had a case where people leave as angry as they arrived.”
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Craig Higgs's 10 Essentials for the Mediation Advocate
In this San Diego Daily Transcript article, author Craig Higgs, a fellow of the American College of Civil Trial Mediators and International Academy of Mediators, reminds readers that in light of the high percentage of cases that settle before trial (approximately 95%), mediation advocacy skills are extremely valuable to attorneys. Higgs provides 10 essential recommendations to any attorney preparing for a mediation session, ranging from basic preparation advice to advanced settlement strategy.
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ASU Law School Wins National Mediation Competition
In his 4/14/06 Arizona Republic article titled, “ASU Law Students Win U.S. Mediation Title,” Eugene Scott reports on the national mediation title recently awarded to Arizona State University’s Sandra Day O’Connor College of Law. Students Mikel Steinfeld and Kristine Reich, accompanied by adjunct professor Bruce Meyerson (a National Arbitration Forum neutral), traveled to Atlanta where they were victorious in the final round of the ABA’s Representation in Mediation Competition. “The [ASU] advocacy programs have traditionally done well, “said Art Hinshaw, ASU professor and coach of the mediation team. “We have teams that always seem to be going to the national rounds of various competitions. It just solidifies our advocacy reputation."
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“Collaborative Law:” A New Approach to Divorce and Business
In his article, “Collaborative law on the rise, attorneys say,” John T. Falker of the South Florida Business Journal speaks with Robert Merlin and Christy Hertz of Merlin & Hertz, P.A. about “Collaborative Law,” a new approach to handling divorce settlements involving family-owned businesses. In collaborative law, family lawyers partner with accountants in order to expedite a financial settlement between divorcing parties. Financial matters are resolved in a manner that is swift, thoroughly researched, and mutually agreeable.
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The Charleston Gazette: Mediation Now the Norm, Judge Says
Writing for the Charleston Gazette, Andrew Clevenger reports on the positive effects the Kanawha Circuit Court’s Settlement Week Alternative Resolution by Mediation program has had on the local legal community. Nicknamed “SWARM,” the veteran program boasts an impressive settlement record and has encouraged both attorneys and judges to pursue mediation options on a regular basis. Circuit Judge Tod Kaufman says alternative dispute resolution “is indispensably intertwined in the litigation process because it saves time, expense and the emotionalism of a trial.”
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UK Patent Office Reports New Mediation Initiative
The UK Patent Office is providing parties with IP disputes another new dispute resolution option: mediation. ag-IP-news reports that the UK Patent Office, which in late 2005 introduced a “non-binding patent opinions service,” will now offer a mediation service as well, designed to provide IP disputants with another inexpensive alternative to litigation. Ron Marchant, Chief Executive of the Patent Office, said, "The mediation service is another step forward as the Office evolves its services to comprehensively meet customer needs now and into the future by providing choice and flexibility."
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The Miami Herald: Mediation and Arbitration - It's Old-Fashioned Civility
Mikki Canton, Miami office chair of Gunster, Yoakley & Stewart, P.A., extols alternative dispute resolution in this “My View” column, primarily for its ability to amiably resolve personal and business conflicts and preserve relationships. “[M]ediation and arbitration are highly effective in the early and less painful resolution of conflicts,” she writes. “Forward-thinking and creative solutions are available through the competent and delicate practice of conflict management by intermediaries.”
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Des Moines Business Record Online: Mediation, Arbitration Saving Businesses Time and Money
Businesses are increasingly turning to out-of-court solutions to resolve their disputes, reports Erin Morian of the Business Record. Scott Long, an attorney with Brown, Winick, Graves, Gross, Baskerville and Schoenebaum P.L.C., says, “They want to know what the resolution is quicker and they want to do it as efficiently and economically as possible.” Morian’s interviews with attorneys, mediators and professors reveal that ADR’s growing popularity is not only freeing up court dockets and saving both would-be plaintiffs and defendants time and money, but it is also creating a greater demand for qualified, trained mediators and prompting law schools to establish ADR curriculums.
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The Boston Globe: Mediation, Arbitration Effective Alternatives to Resolving Disputes
In response to an inquiry about an employer’s grievance process, The Boston Globe’s “Job Doc” Linda Lerner provides a great explanation of mediation and arbitration, complete with the benefits and advantages of these two ADR options and how they are becoming increasingly popular in employment and labor contracts.
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Sify.com: Patent Experts Favour Arbitration Over Litigation
A Mumbai reporter for India’s Sify.com examines the role of ADR in India’s patent disputes, and considers how “litigious countries” such as the United States and Israel have implemented arbitration and mediation programs to resolve similar disputes.
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Mandatory Mediation & Good-Faith Mediation: Not Synonymous
A recent posting on Mediate.com by Steve Sovern of Cedar Rapids, Iowa, clarifies a Mediate.com article that does little to distinguish between court-ordered mediation programs requiring “good faith” participation and those that do not. As Sovern - an Iowa mediator himself for over nine years - describes, participation in court-ordered mediation is voluntary in his district. The parties are only required to attend a brief fact-finding session with a mediator, during which they are asked if they would like to proceed with the mediation process. They may still proceed directly with litigation if they would rather do so, although in his experience less than 1% have been unwilling to attempt mediation first.
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Miss. Commissioner to Unveil Mediation Program Based on “Florida's Model”
A December 21, 2005 article in the online Insurance Journal reports that Mississippi Insurance Commissioner George Dale intends to implement a mediation program similar to that of Florida to settle hurricane-related insurance disputes.
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Quad City Times: Mediation Helps Clear Small Claims Docket
As of January 4, 2006, all small claims cases ($5,000 or less) filed in Iowa’s Scott County will be referred to mediation prior to going to trial, reports Dustin Lemmon of Davenport’s Quad City Times. Scott County’s mediation program, which has enjoyed a success rate of 85%, aims to alleviate a heavy docket of approximately 7,000 cases filed annually.
The new initiative is being praised by judges and lawyers alike. Chief Judge David Schoenthaler said, “Usually or often when cases are mediated out, the people are somewhat happier with the resolution.” Scott County Bar Association president Justin Teitle added, “It’s a good way to resolve their disputes without going in front of a judge. Certainly we’re in favor of a resource that conserves judicial resources.”
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Providence Business News Reports Mediation Required for Medical Malpractice Suits
As of Monday, October 22, all medical malpractice cases in the state of Rhode Island will first be submitted to mediation before they proceed to trial, according to staff writer Marion Davis of the Providence Business News.
The order comes from Rhode Island Superior Court Presiding Justice Joseph F. Rodgers Jr. in response to the burgeoning number of lengthy medical malpractice trials, “which are currently some of the longest in the country,” claims Philip R. Hinderberger, senior vice president and general counsel for the state’s largest medical malpractice insurance carrier, NORCAL Mutual Insurance Co. Trial lawyers as well as insurance companies are eagerly awaiting the program’s implementation; Marion writes that, regarding mediation, “support for the practice is near-universal....”
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From the Minnesota Bar Association: Mediation Advice for New Lawyers
“Practical Tips for Mediation Success,” written by NAF staff attorney Darin Allen and law clerk Jeff Homuth and published in the Minnesota Bar Association New Lawyers Section's quarterly “Hearsay,” provides an overview of the mediation process as well as advice for new attorneys on bargaining posture, information sharing with clients, and other topics helpful to those who are new to the practice of ADR.
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In Kentucky, Mediation Used to Resolve Criminal Cases
Mediation is now being used to settle criminal cases in Boone County, Kentucky, writes Paul A. Long in the Kentucky Post. On September 26, eighteen criminal cases ranging anywhere from minor drug and property crimes to assault will be heard by three retired circuit judges acting as mediators. Circuit Judge Tony Frolich says, "I'm hoping to do it twice a year with the criminal docket, which really gets backed up."
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Settling disputes via mediation, not court, can save time, money
Bill Vogrin highlights an actual Widefield neighborhood dispute in this Colorado Springs Gazette article, and commentary by Ken Jaray, personal injury attorney and mediator, reinforces how this unfortunate small-claims court case is a perfect candidate for mediation: “This is a perfect conflict for restorative justice if people understand there’s a benefit to them.”
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Surprise, AZ, Offers Mediation as an Alternative to Court
David Madrid reports in The Arizona Republic that businesses and residents of Surprise, Arizona, can now avail themselves of mediation services through a new program offered by the Surprise Community Initiatives Department. Says project coordinator Ruby Sitea, “The key is that the parties come up with their own solutions….”
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Spokane Journal of Business: Alternative Dispute Resolution Continues to Grow
Reporter Linn Parish of the Spokane Journal of Business talks with Spokane-area attorneys and judges about the growing use of ADR, and narrows her focus to the benefits of mediation, including its high success rate, the likelihood of a positive continuing relationship between parties, and its speed – most mediated settlements are reached in one day.
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Singapore Establishes Financial Industry Dispute Resolution Centre
Writing for Channel NewsAsia, Anjana Menon reports that Singapore has created a new institution to benefit consumers and the financial services industry. In an effort to “raise professional standards” and provide consumers with a forum in which to settle disputes involving the financial industry, members of Singapore’s financial sector recently opened the Financial Industry Dispute Resolution Centre (FIDReC). FIDReC boasts over 400 member financial institutions, all of which have agreed to abide by FIDReC’s decisions.
Interestingly, Menon reports that although the decisions rendered by FIDReC's panelists are binding to the financial institution, consumers may opt to reject them and “pursue their claims through other avenues.”
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State Courts Offer More Help for People without Lawyers
Katherine Webster reports on New Hampshire’s new online "Self-Help Center," which is being hailed as “a great step forward” by New Hampshire’s Challenge to Justice task force members. The Self-Help Center not only provides information, rules and forms for courtroom proceedings, but also offers suggestions on obtaining reduced-cost legal advice and encourages parties to pursue alternative dispute resolution (ADR).
After Labor Day, the Self-Help Center will also promote New Hampshire’s free mediation services for small claims disputes. The clerk of Sullivan County Superior Court and ADR coordinator for the state court system, Peter Wolfe, said, “You get happier clients, you reduce the backlog of cases and you get much better communication among families.” He continued, "Courts disempower people. We take decision-making away from them ... so they don't learn to make decisions about their own life. Mediation empowers them to make decisions about their own life."
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