Examples of how access to justice is important in areas like planning can be seen when a major new development, like an incinerator or superstore, is proposed. This might concern a whole community. The local community will need proper information to participate in the decision making process. The community may have legitimate environmental concerns and may need access to a court or tribunal to challenge decisions made.

Source: http://www.ukela.org/rte.asp?id=96

On 25 August, 2009 the High Court Division of the Supreme Court of Bangladesh issued a landmark ruling on extra-judicial penalties in the name of arbitration. The Court ordered the government, law-enforcing agents and local governments to take immediate measures. These measures are against issuance or execution of extrajudicial penalties such as beating and caning in the name of arbitration, mediation or conciliation. A Division Bench, comprising Justice Syed Mahmud Hossain and Justice Quamrul Islam Siddique passed this ruling after hearing a public interest litigation writ petition filed by the human rights groups – Bangladesh Legal Aid Services Trust, Bangladesh Mahila Parishad, Ain O Salish Kendra, BRAC, and Nijera Kori.

The Court ordered the government to explain itself. Why would it not accept directions to frame and adopt guidelines and orders and disseminate them on the State’s mass media, for all the authorities concerned? These directives are concerned with reporting any information on present or future incidents of extrajudicial penalties, in the name of arbitration, mediation and conciliation. These incidents might be put forth by individuals, or bodies, including union councils or municipal representatives. It ordered the government, law enforcing agents, union councils and municipalities to take immediate measures to investigate promptly any report of issuance or execution of any extrajudicial punishment such as beating or caning. Furthermore, the Court ordered the Ministry of Local Government to inform all union councils and municipalities of the order.

The writ petition described several accounts where a woman and a man were caned 101 times and fined as well. The village leaders ordered these punishments in the presence of chairpersons of local government units from various jurisdictions in the country.

As a part of ordinary peoples’ lives in Bangladesh, there are incidents of public lashings, whippings, canings, beatings, stoning, and forced fines. These things are carried out under the direction of elected representatives of the local government, influential persons or Muslim religious leaders. In addition, the mediators isolate families of the victims from their neighbours and prevent other social exchanges. These brutal actions are abuses carried out mainly against women, the helpless and the poorest segments of society. Due to misinterpretations, Islamic values are often abused in the process of arbitration, mediation and conciliation. Social justice has disappeared because of the practice of biased arbitration, popularly known as “Shalish” and “Fotwa.” Ultimately, the law-enforcement agencies, the judicial and civil authorities have failed to uphold the law of the land.

The Asian Human Rights Commission (AHRC) welcomes the High Court’s rulings. It expects a comprehensive judgement to emerge at the end of the judicial process and that it will be enforced immediately. The AHRC observes that a number of wings of the government have been inactive and indifferent to their responsibilities. These agencies are the Ministries of Education, Religious Affairs, Home Affairs, Women and Children’s Affairs, Law, Justice and Parliamentary Affairs, Local Government, Rural Development and Co-operatives. They have failed utterly in performing their lawful duties in addressing the problems of mediation and atrocities. The authorities should identify the specific failures of the departments under these ministries. They should quickly initiate comprehensive, public educational programmes to stop the recurrence of such crimes, as well as to implement the directives of the High Court Division regarding extrajudicial punishments.

The issue of extrajudicial penalties is being dealt with at the Supreme Court level. But, the issue of extrajudicial killings is still being ignored.

The AHRC urges the civil society and the human rights groups of Bangladesh to file separate public interest litigation writs with the Supreme Court. Extrajudicial killings by law-enforcement agencies and security forces need to be eliminated in order to maintain the people’s right to life.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Posted on 2009-08-28
Back to [AHRC Statements 2009]

While there are pitfalls to such a development, not the least being that the extremists on both sides are going to claim that their birthrights and national identities are being sold off, there are obvious benefits as well. Afghanistan, with its long and largely irrelevant border with us, is a problem that is going to need careful management far into the future. Were we able to broker a foreign policy with the Indians relative to Afghanistan that was to our mutual benefit – trade, communications, power resources – and was created by ourselves independently, rather than at the behest of the Americans, then the knock-on effects across a range of current difficulties might be considerable. At the moment it could be said this is little more than musings of a group of intellectuals; but within it is the germ of an idea that bears nurture. Were it to grow and flower, it would mean that both Pakistan and India took back a little of their independence. (Http://www.thenews.com.pk)

Law No. 24/2003 regarding the Constitutional Court clearly states that the complainant in constitutional review cases must be an Indonesian citizen. If the rights of a foreign citizen living in Indonesia are violated by a prevailing law, he or she cannot request the Constitutional Court to declare the law unconstitutional and legally annulled.

This provision was strengthened by the Constitutional Court’s verdict in 2007, which ruled that three of five complainants on death row under the Narcotics Laws have no right to file a complaint before the Constitutional Court, based on the argument that the Constitution only provides protection to Indonesian citizens.

It is often deemed that a state and its constitution can only provide protection to citizens, as they are party to the social contract. Although it is true that an ideal and modern constitution must guarantee protection of the rights of a state’s citizens, this does not mean that the constitution cannot also protect third parties of the social contract, such as foreign citizens who live within the territory of the state.

Many states in the world provide protection not only to their own citizens but also to foreigners under their constitutions. This can be either implicit, as in South Africa and Croatia, or explicit, as in many former Soviet states such as Georgia, the Czech Republic and Russia.

By using grammatical and historical interpretations, we can actually conclude that the amended Indonesian Constitution implicitly provides protection for foreign citizens. Instead of using “every citizen” as in article 28D paragraph (3) of the Constitution, regarding the right to take part in government, other human rights provisions in the Constitution use the term “everyone.”

Historically, intense and thorough discussions never took place as to who was actually protected under human rights provisions in the Constitution. During discussions on the amendment of the Constitution, however, some political parties proposed to use the phrase “every citizen” in all human rights provisions. This proposal was later dropped, and the Indonesian People’s Consultative Assembly deliberately chose to use “everyone” – which again shows that the Constitution was intended to protect the rights of every individual within Indonesia’s territory.

Given that the Constitution provides protection for the rights of foreign citizens, it is logical that the laws and regulations under the Constitution would provide legal avenues for them to pursue when their rights are violated. The article that restricts foreigners from filing complaints with the Constitutional Court therefore violates their right to be recognized as persons before the law.

Further, it also meets the criteria of “discrimination” as determined by the International Convention on the Elimination of All Forms of Racial Discrimination, since it excludes persons from filing a constitutional review solely on the basis of their nationality.

This issue brings up the question of a state’s sovereignty, and of whether persons should be allowed to challenge the policy of a state that is not theirs. This concern is understandable, as a decision by the Constitutional Court applies not only to the complainant but to everyone in Indonesia’s territory.

For this reason it is important to place some limitations if foreign citizens are permitted to file complaints with the Constitutional Court. First, they should be allowed to challenge a law only if they believe it has infringed on their rights guaranteed by the Constitution. Foreign citizens should not be allowed to contest a law that is irrelevant to their rights.

Second, complaints should be filed only by individuals, not legal entities, as human rights are inherent to human beings. Another important aspect that the Constitutional Court must bear in mind in examining a case filed by a foreign citizen is that the national interest should be prioritized. It is important to protect the rights of foreign citizens in the context of the universal value of human rights, but this should not be upheld if it harms the national interest, as the country’s citizens are first party to the social contract.

There are some possible ways Indonesia could accommodate foreigners’ right to file a complaint for constitutional review. The first is by revising the Constitutional Court Law. This may take a long period of time, however. While waiting for Parliament to revise the law, the Constitutional Court actually could set aside the relevant article of the law if a foreigner filed a complaint. The Constitutional Court could then decide whether it wants to declare the article unconstitutional, or conditionally unconstitutional.

One thing is sure: laws and regulations should never restrict a person’s human rights, as these rights apply to the worst of us as well as to the best.

—

(Answer C. Styannes is a research associate at the Community Legal Aid Institute (LBH Masyarakat) in Jakarta, Indonesia. She holds a law degree from the Faculty of Law at the University of Indonesia. Her work focuses on the issues of constitutional law, judicial and legislative reforms, labor laws, and civil and political rights.)
Source:http://www.upiasia.com/Human_Rights/2010/02/04/protecting_foreigners_rights_in_indonesia/7122/
Written by By Answer C. Styannes

According to the CBC, “The Security Council’s unanimous decision to appoint an ombudsman is aimed at ensuring that UN sanctions target the right people, companies and organizations for links to al-Qaeda and the Taliban.”

Creation of the Ombudsman Office was passed unanimously by the Council and the position will initially be created for 18 months to assist the sanctions committee to review the procedures regarding delisting individuals on the list.

Further information from the article explains how the Ombuds will be chosen, “The ombudsman will be appointed by the UN Secretary General, and will be someone who should be “an eminent individual of high moral character, impartiality and integrity with high qualifications and experience in relevant fields, such as legal, human rights, counter-terrorism and sanctions”, a UN release stated.”

The United Nations currently has an Ombudsman Office which serves the employees of the UN. You can read more about that office, and John Barkat, the current ombudsman, [here].

Note, their site is newly re-designed and you will notice the UN has created a new Mediation Division with the Ombudsman Office. The office was created in August 2009 as per the passing of General Assembly resolution A/RES/62/228. You can read more about the new Mediation Division and its services [here].

Read the full CBC article [here].
From Jeff Thompson’s Enjoy Mediation Blog

The CBO estimated that implementing a typical package of tort reform proposals nationwide would reduce total U.S. health care spending by about 0.5 percent (about $11 billion in 2009) or roughly $54 billion over the next 10 years. That figure is the sum of a direct reduction in spending of 0.2 percent from lower medical liability premiums and an additional indirect reduction of 0.3 percent from slightly less utilization of health care services. Those estimates take into account the fact that because many states have already implemented some of the changes in the package, a significant fraction of the potential cost savings has already been realized. (read more here)

In November, the AHRQ announced it will solicit applications for planning grants from States and health care systems for “patient safety and medical liability innovations that put patient safety first and work to reduce preventable injuries; foster better communication between doctors and nurses; ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits; and reduce liability premiums”. Grant proposals may be submitted beginning December 20 and are due by January 20, 2010. (read more here)

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

India must view such exertions calmly, and Pakistan must assess them realistically. We dwell on an island which is home to a global community whose links will only increase with time. People will talk if disputes fester anywhere; especially between two nuclear states.

However, neither of them will yield to external pressures where its national interests are at stake. India must realise that Pakistan, as the weaker power, will solicit mediation by others. On its part, Pakistan must realise that India will respond to external influences only up to a point and no further.

Presumptuous and silly are the only words one can use for the formulation of the Obama-Hu Jintao joint statement issued in Beijing on Nov 17. They first ‘welcomed all efforts conducive to peace, stability and development in South Asia’; next, expressed ‘support (to) the efforts of Afghanistan and Pakistan to fight terrorism’; and went on to ‘support’ [sic] the improvement of relations between India and Pakistan. All this is mother love and apple pie; unexceptionable but patronising.

The next formulation reads thus: ‘The two sides are ready to strengthen communication, dialogue and cooperation on issues related to South Asia and work together to promote peace, stability and development in the region.’

This smacks of joint oversight or monitoring. The US and China will strengthen cooperation on issues related to South Asia. More, they will ‘work together to promote peace in that region’.

The last time we heard of all this was in their joint statement on June 27, 1998, during Clinton’s visit to China shortly after the nuclear blasts by India and Pakistan.

They never repeated that pledge in all these 11 years. Their interests diverge, as do their respective relationships with each of the countries in South Asia, and in consequence, their perceptions also.

Reaction in the region was predictable. Pakistan was happy and India got angry. ‘A third country role cannot be envisaged’.

American and Chinese retractions followed swiftly. The very next day the US under secretary of state for political affairs, William J. Burns, said that it was for the two neighbours to decide on the ‘scope, content and pace’ of the peace process.

The assistant secretary of state for South and Central Asia Robert Blake echoed this on Nov 19. China’s foreign ministry spokesman Qin Gang spoke in a similar vein on the same day asserting besides that the boundary dispute with India should not ‘undermine our greater bilateral relations’.

Nothing will come out of the joint statement so far as South Asia is concerned. But even without it, the US and China would have chatted about this strife-torn region in confidence.

The record on mediation is instructive. Without it the Indus Waters Treaty (1950) would not have been signed nor the results of the war of 1965 arranged efficiently but for the Tashkent Accord. But the Simla Pact (1972) was a bilateral affair.

In 2002 the Vajpayee government leaned heavily on the US to pressurise Pakistan after the massing of the troops. The US responded for a while, extracting its gain in the process.

When the optimum point was reached, it washed its hands off the affair, and issued travel advisories to its citizens. India called off Operation Parakram.

On the other side of the coin, even after its military reversals in the war with China in October 1962, India did not yield to joint Anglo-American pressure on Kashmir. Howard B. Schaffer served as political counsellor in the American embassies in Pakistan (1974-77) and India (1977-79).

His excellently documented book on ‘America’s role in Kashmir’ sums up accurately in the title the conclusion of his study: The Limits of Influence. It covers the period 1947-2009. Fortunately neither side accepted the obscene Anglo-American proposal for partition of the Valley.

His advice to the Obama administration is to ‘work quietly’; that is, ‘if Washington does decide on making a stronger effort’. It is very unlikely that it will. The Great Powers step in only when there is a threat of war or in the aftermath of one.

But right now we are not doing badly by ourselves. President Musharraf revealed on May 18, 2007 that a broad outline of a solution to the Kashmir dispute had been worked out ‘but we have yet to reach a conclusion’.

Prime Minister Manmohan Singh said on May 2, 2009, ‘Gen Musharraf and I had nearly reached an agreement’. The then foreign minister of Pakistan Khurshid Mehmood Kasuri confirmed that.

One thing after another prevented a summit: the train blasts in Mumbai in July 2006, the crisis in Pakistan’s judiciary in March 2007 and the Mumbai attack on Nov 26, 2008.

The composite dialogue understanding has run its course. Foreign secretaries cannot tackle Kashmir, Siachen, Wullar Barrage and Sir Creek. On all four a broad framework for agreement exists.

They can be settled only at the highest level provided there is a political will and resolve to do so by stable governments uninhibited by predictable cries of a ‘sell-out’.

The rest of the matters are best left to the joint commission set up by an agreement signed on March 10, 1983 by foreign ministers Sahabzada Yaqub Khan and P.V. Narasimha Rao.

That process cannot begin unless and until the ‘battle of dossiers’ is brought to a swift, satisfactory and amicable conclusion. Mediators have no role to play. Discreet inquiries are the stuff of diplomacy, though.

The writer A.G. Noorani is a lawyer and an author.

Source: www.dawn.com.pk November 28, 2009

Robin Jackson, CEO of ADR International, says signs of inflation have already started appearing with the prices of commodities including copper, steel and oil rebounding from earlier lows.

For procurement professionals, he says, it’s the end of a “golden decade” when the only way suppliers’ prices seemed to go was down.

In the latest eBulletin from ADR International, Jackson suggests a series of actions for procurement professionals including managing senior management expectations of the continuous cost reductions they have been used to.

He concludes: “One thing is for sure: the risk of doing nothing is high. Inflation indicators currently remain subdued but that doesn’t mean inflation will remain asleep. When it reappears in 12-18 months procurement will be at the sharp end of all that government help.”

Rebecca Howard, Director of ADR Learning, the training and development division of ADR International, points to a looming skills shortage, including in procurement, recently identified by the UK Commission for Employment and Skills.

The commission said training has remained consistent despite the downturn, but urgent action is needed to prevent the UK falling behind its competitors. It urges a “simpler and more agile training system”.

Howard says internet-based eLearning could meet the need: “In the procurement area, as in other functions, eLearning has developed fast in the last few years, becoming more tailored to individual or company needs and targeting specific skills areas such as cost analysis.

“In the age of the internet, such solutions seem to fit the bill for fast, responsive, easily adaptable and highly-targeted skills development.”

John McCleland describes a project to change the way a major municipality in South Africa is using its purchasing power to help bring about change.

McCleland, ADR International Managing Consultant for Australia and South Africa, says procurement is playing a key role in tackling the economic problems remaining from the apartheid era.

“Right at the start we identified that procurement was viewed by internal stakeholders as an obstacle to providing efficient service delivery, reflected in a large percentage of spend bypassing the competitive bidding process,” he says.

The ADR International project is strongly supported by staff at the municipality and is proving that procurement can make a difference. “Regular stakeholder communication is starting to change the way people see supply chain management,” says McCleland, “and how it can help drive South Africa’s transformation.”

Source: www.adr-international.com

Lord Justice Jackson says mediation is the key to curbing a potential explosion of construction litigation relating to the issue of costly legal fee. It has been dubbed the “cost of costs” – the extravagant amounts of cash being splashed on legal fees in recent UK court battles.

Some cases, such as the famed Wembley trial, end up really becoming a fight over principles rather than cash, with soaring costs nearing, or surpassing, the figures actually involved in the fight.

Now Lord Justice Jackson, the man who headed that very trial, has been charged with doing something about it.

In compiling a preliminary review of civil litigation costs, the former head of the Technology and Construction Court has called for reforms to curb the “explosion” of litigation about costs issues.

And the use of mediation to settle cases was a key feature in his overview of construction disputes.

He said a new study from the Centre of Construction Law and Dispute Resolution at King’s College, London, provided “a valuable insight” to how and when cases settle, and the significant part mediation can play in saving contractors big bucks.

The survey – of cases at the London, Birmingham and Bristol TCC’s between the summers of 2006 and 2008 – is the first ever to attempt to assess the effectiveness and cost savings associated with mediations in the construction industry.

It found 12 per cent of cases settled through mediation claimed to have saved between £200,000 and £300,000. A further 15 per cent said their savings came somewhere between £150,000 and £200,000 and 9 per cent said that figure climbed above £300,000.

Lord Justice Jackson said: “Mediation promotes earlier settlements and in a small number of cases (which may be regarded as on the cusp) actually precipitates settlements which would not otherwise be achieved.

“Mediation is a valuable and cost saving mechanism, when properly used.”

His other suggestions in reducing the costs of litigation – soon to become formal recommendations to the Master of the Rolls – include the introduction of fixed recoverable costs and also introducing cost sanctions on witness statements and pleadings.

“One of the banes of  TCC  litigation is duplication of documents,” he said.

Lord Justice Jackson was particularly scathing about the £1 million-plus photocopying bill and hundreds of bundles produced during that bitter Wembley battle.

Source:http://www.cnplus.co.uk/hot-topics/legal/mediation-is-key-to-saving-thousands/5202505.article

“Conflict happens. It is inevitable. It is going to happen whenever you have people with different expectations. This makes conflict management critical, whether avoiding arguments, disputes, lasting conflict or ultimately, litigation. Conflict can be avoided if steps are taken early in a discussion to diffuse anger and facilitate communication, and it can be resolved by applying a series of thoughtfully applied steps.

As a full-time mediator and trainer in the fields of negotiation and conflict resolution, I see conflict in its final stages – full blown litigation or on the verge of it in pre-litigation mode. What I have learned in seeing these disputes for 10 years is that most of them could have been resolved in the earliest stages if the people involved applied some of the skills that mediators use to resolve conflict. And wouldn’t it be great if companies could resolve these disputes before each side spent hundreds of thousands in litigation costs, before the employee was terminated or before the customer or working relationship was gone forever?

Here are some tools for avoiding and resolving disputes in the early stages, before they become full-blown conflicts:

1. Stay Calm. Thomas Jefferson said, “Nothing gives one so much advantage over another as to remain always cool and unruffled under all circumstances.” The thing that leads to conflict is escalation. What starts people escalating is their anger. Most of us stop listening to understand as we get angry. Instead, we start listening in order to argue back. Remaining calm is essential for performing these tools. To remain calm, it helps to look at the big picture. If you think about it, most every dispute gets resolved eventually. So when conflict inevitably happens, it is helpful to stop and think that, chances are, it is going to be resolved eventually. As such, why not begin problem solving now?

Finally, it is a fact that in our busy lives with rush hour traffic, cell phones, PDAs, overfilled e-mail boxes, too many clients and not enough support, that we are all a little more stressed than we would like to be. When a conflict arises, one of the most beneficial things you can do is to ask yourself, “What might I be bringing to the dispute?” We can usually look at another person and figure that maybe he/she had a conflict at home or that he/she has been under tremendous pressure. However, we are not usually self-aware enough to ask ourselves what we might have going on. It is important in avoiding later embarrassment by checking in with our own personal boiling point before responding.

2. Listen to Understand. Now, picture a dispute in which you were recently involved. Maybe it was this morning leaving the house, with a co-worker or client or even with a family member. As you replay that experience, ask yourself how much listening was going on. My bet is that any listening was only being done to formulate an argument back to prove your point. When most of us get into a dispute, the first thing we do is stop listening.

The only way to settle a dispute or solve any kind of a problem is to listen carefully to what the other person is saying. Perhaps they will surprise you with reason, or their point is actually true. In the mediations that I do, I often learn what people’s underlying interests are by letting them go on and on telling their perspective of an issue until they give me the one thing that is standing in the way of them resolving it. They may start out by degrading the product and personalizing it by saying those of us who delivered it are all incompetent, but I find that this is little more than their anger speaking. What they really want is their product fixed, not to insult us personally.

Psychologists tell us that anger is a secondary emotion and that it is usually triggered as a defense mechanism to cover up hurt or fear. When someone is angry, there is usually some hurt or fear that he/she is embarrassed about, or perhaps even unaware of because the anger is so all consuming. In order to diffuse people’s anger, you must listen to them. Hear them out. Let them go until they have run out of gas. Let them vent as long as they can until they begin to calm down. You then will see a person start to slow down some, and begin to feel safe enough to finally tell you that what frustrated him or her so much was that the salesperson never returned any phone calls, and/or the customer service person kept trying to place blame elsewhere, rather than taking responsibility and apologizing for the product being unacceptable.

The best thing you can do to get people to the point where they are willing to show some vulnerability and trust you with some of the real reasons why they are upset is to engage in “Active Listening.” Active listening means giving them active physical and verbal signs that you are with them and understand what they are saying. Simple things like nodding and saying, “Uh huh” or “OK, go on” can make the speaker feel as if his/her story is welcomed by you and that you want to continue. On the phone, people hear dead silence and cannot read your reaction to their complaints and thoughts. Given that we all sometimes fear the worst, people tend to shut down and stop feeling it is safe to continue telling their story.

My friend and colleague Jim Melamed, a divorce mediator and trainer based in Eugene, Ore., said: “You cannot effectively move toward conflict resolution until each participant experiences him/herself to be fully heard with regard to their perspective – what they want and why.” That means, if someone says that the product he/she bought from you is unacceptable, and they are interrupted and asked what would be acceptable before they have finished telling all about the problem, that person gets the message that all you want to do is fix the problem. The impression is that you do not care about them or the problem you had with your product, and that can feel a little like being swept under the carpet. A good customer service person in a situation like this would let the client finish before asking if there were any other problems. This may seem counter-intuitive because it might bring on even more of the same, but this is what you want. People build trust as they are listened to. If they had another problem with the delivery timing or any other facet of the transaction, this is when you need to hear it – at the outset, not later once you feel as if you have met all of their original concerns. The only way to solve a problem is to get all of the broken pieces on the table at once before you begin trying to “glue it back together.”

The most useful phrases in this part of the process (what mediators call the “Opening Statement”) are questions such as, “Can I ask you – what about that bothered you so much?” or “What about that was so important to you?” These invite people to go deeper into the problem and tell you what the “real” problem is. Usually, this is where you hear that their boss is upset and they are afraid for their job or some underlying concern. This is a problem that might be handled with something as simple as a letter of apology, from you, the salesman or the president of your company, addressed to them with a copy to their boss, taking full responsibility and apologizing for the problem. Then, you will have a customer you might be able to keep.

3. Accentuate the Positive. It is important to find some commonalities, or create them, between you and the person on the other end. It is helpful and empathetic to say, “Oh boy, I know what you are going through. I’ve had a similar situation just recently. Let me see what I can do about this.” This serves to normalize the situation. It tells someone that he/she is not the only one who has gone through this and that his or her reaction to it is normal. That calms people right away.

4. State Your Case Tactfully. The key here is to help people understand your perspective on things without making them defensive. To the extent you can disarm them, they will be more able to hear what you are really saying. A couple of tips are to own what is yours – apologize for what you or your team did wrong and do it first. This enables them to hear what you have to say next. Also, try not to state issues of difference as fact. Leave a little benefit of the doubt. Rather than insisting something arrived on schedule, it is better to acknowledge any room for doubt by acknowledging, “My information shows them arriving on schedule. I’ll have to take a closer look into this.” While you may still be right, clearly you have to gather more information to convince them of that, and if you are not right, then you do not have to apologize for misstating things.

It also is helpful to state your position along with your interests. What that means is that instead of maintaining that there is nothing wrong with your product, which is purely argumentative and does not offer any support for your position, it is better to offer something helpful, such as providing another perspective by sending someone over to inspect the product in person. That way, the customer can show and describe exactly why the product is not working as necessary. Your position is the bottom line of what you are willing to do. Your interests are the reasons behind that decision. For example, it might be your position that you cannot take any product back or rescind the contract. However, your reason for that – your interest – may be that your bonus is tied directly to your returns, and that you have every incentive in the world to solve this problem another way. You may also offer what some of those things are, so that you are not just taking away something from them or denying their request, but offering positive alternatives in its place.

One way to do this is to use “I Messages.” An “I” message sounds like, “When you didn’t come home last night, your father and I got really worried. What we would like you to do next time is call if you’re going to be late, so that we know you’re OK because we love you and care about you.” That is how most of our parents were when we were teenagers, right? Seriously, can you imagine how we would have reacted if they had put it this way instead of the scenario we remember of being grounded for life while stomping off to bed? “I” messages are important because they describe the experience through the speaker’s eyes, rather than simply the position (in this case the punishment). That disarms the person you are speaking to, and it takes the fight out of their next statement back to you.

5. Attack the Problem, Not the Person. Your points will be heard more clearly if you can depersonalize your comments and point only at the issue. Rather than accusing people of “always messing things up,” it is better to say, “We’ll have to take a closer look at why this keeps happening.” In most statements that we make in a dispute, we are fighting with our own anger and are tempted to put a zinger into the point we are trying to get across. You will be heard better and improve your chances of resolving the issue the way you want if you can catch yourself and take the zinger out. Obviously, this is easier with e-mail and requires great concentration when in a face-to-face disagreement.

6. Avoid the Blame Game. Assigning blame is only helpful in one instance in problem solving – if you assign it to yourself. Generally speaking, figuring out whose fault something is does not do any good if the goal is to fix a problem. It is a diversion and sometimes a costly one because if a person feels blamed, he/she often checks out of a conversation. The trick to resolving clashes is to focus on problem solving, rather than pointing fingers. Focus on what you and the others can do to solve a problem and make it better, and it will be behind you before you know it.

7. Focus on the Future, Not the Past. In the past tense, we have the purchase order, the contract, the agreement and the deal as it was understood by all involved. The present and future tenses are where the solution ends. Rather than focusing on what went wrong or who should have done what, the secret to dispute resolution is to treat it like problem solving and focus on what can be done to resolve the problem. Once that is done, companies can look to the past tense to analyze what went wrong and how to improve quality control and efficiency. However, when there is a problem that has an angry customer or a disgruntled employee, the solution is all that anyone is interested in.

8. Ask the Right Kind of Questions. Questions such as “Why is that?” or “What did you think it would be?” make a person who you are talking to defensive. They inherently question the person’s judgment or opinion, as well as coming off as curt. More often that not, people ask these short, direct questions, the type that can sound like a police officer’s interrogation or a lawyer’s cross-examination. These questions are designed to get just what you want from someone, rather than to permit them to tell you what they want you to know about something.If you want someone to answer you with real information, rather than just arguing back, it is best to give them a little information first. For example, “Since I don’t have a copy of the P.O. in front of me, it would help me to investigate this if you could tell me more about how the colors on your order are described.” Telling them why you are asking, puts your intent first, so they don’t have to guess it. This questioning style tells a person that you are trying to do your job and to figure out some facts to get to reach a solution. By delivering your request in a poised and attentive tone, , it makes the person you are asking less defensive and gets you more of what you want.

The other type of question that is especially helpful when you are trying to gather information is an open-ended question. These are the opposite of directive questions, and they invite the other person to tell you what he or she thinks is important about the situation. “Can you tell me what happened from the beginning?” or “Sounds as if this was really frustrating for you” can give you information that you might later use to problem solve.

9. Pick Your Battles. It is also important when asking questions to remember to Pick Your Battles. Human nature makes us want to be right, even to the point of being defensive or arguing points that do not matter in the big picture. It is even fair game to ask the other person, “On a scale of one-to-10, how important is this issue to you?” If an issue is a five to you and a nine to the person you are talking to, it is best to give that point up and use the same scale when an item is really important to you. After all, business relations are, like my brother’s future father-in-law once told him about marriage, a “60-60 proposition.” Most people think it is supposed to be 50-50, but the truth is, when adjusted for each person’s perspective on how much they givevs. how much they receive, it really is a 60-60 proposition. Another marital proposition is also helpful here, do you want to be right, or do you want to be happy?

10. Link Offers. Car salesmen do this all the time. They ask you what you want your monthly payment to be and then set the price of the car and the interest rate on the loan or lease so that they can match your monthly payment. Essentially, it’s a way of saying, “I can either do this or that, which would be better for you?” It really is just sales skills – giving people the choice between two positives, so that they feel as if you are trying to help.

11. Be Creative. Brainstorm. Remember that everything is negotiable. Feel free to think outside of the box in order to expand the pie. Make it so that no idea is too far fetched. Being creative with resolutions takes longer, but can yield a true win-win solution. The best solution to a dispute is to get more business out of it. As such, one common problem-solving technique is to propose that instead of a cash refund, giving clients a deep discount on future orders in order to show what a good job you are capable of doing for them. Many of the lawsuits I settle come away with win-win solutions, where instead of just compromising, we actually collaborate to reach a solution that benefits everyone. This requires listening when asking the open-ended questions and gathering morsels of good information that you will later use to formulate proposals that meet their interests. For example, you might learn about particulars that affected an order. From here, you can propose creative solutions that replace things such as broken items, or instead of using the money to re-do the entire order, you can use less money to ship a few dozen shirts with their logo on them so that your counterpart can look like a hero in front of the boss. These kinds of fixes make clients look good and keep them loyal to you, even after an initial dispute.

12. Be Confident. You can do this! Many people are afraid of confrontation and shy away from it. I have taught everyone, from housewives and high school grads to named senior partners in law firms and CEOs, how to do these simple steps. The process works. All you have to do is follow the steps.

Furthermore, you must do this. Now that you have these tools, it is imperative that you do something about it. You owe it to your customers and your co-workers.

13. Celebrate Agreement! This kind of negotiation is a hard process. It requires two people to remain in an uncomfortable, potentially confrontational position for a long time to rebuild trust and be creative while trying to figure out the best, rather than the fastest, solution. Once it is accomplished, both you and the person you are talking to deserve a good pat on the back. There is nothing wrong with going to lunch or dinner to celebrate the resolution of a dispute that could have been destructive, but that ended with a win-win solution where everyone was satisfied. This is an important process for avoiding more serious disputes such as lawsuits and losing hard-earned customers. Congratulate yourself and your partner in this solution.

After all, nothing is more important than your company and its survival. Nothing is better for your company’s survival than learning to make peace and resolve the inevitable disputes that will arise. Learn to cultivate peace with customers, suppliers, employees, labor and management.

Utilizing these tools takes patience and generally requires changing old behaviors. However, if people on the front lines, in human resources, customer service and client relations, use simple tools such as these, they would resolve most disputes at that level, keeping them out of the legal department and out of the mediator’s office.”

Published in Brilliant Results Magazine
By Lee Jay Berman Source    http://www.americaninstituteofmediation.com/pg69.cfm

“No,” I replied. “I hadn’t heard a word. What happened?”

“He just decided to leave. I am so mad at him I could kill him. I’ll never forgive him!”

Clearly, my student was not in a forgiving mood, which is a common condition when people are in conflict. The conversation got me thinking about forgiveness in the context of neuropsychology.

The perception of injury to our self, which is injustice, has several parts:

(1) a sense of self;

(2) an ability to evaluate the behavior of others as being injurious or beneficial; and

(3) memory of the event to link that injury to the offending person.

Our sense of self originates in the abstractive cognitive operator located in the inferior parietal lobule of the brain. The inferior parietal lobule is richly connected to the limbic system. The limbic system is the part of the brain primarily involved in creating, expressing, and controlling emotion.

We tend to perceive ourselves in a grander manner than we perceive others because, out of self-protection, we must perceive, analyze, and evaluate all experiences regarding self. Thus, we are highly sensitive to others’ perceptions and our own perceptions about our self. From an evolutionary perspective, without this sensitivity, we would be less interested in protecting our self and thus not as likely to survive in difficult, challenging environments.

The second part of injustice is the notion of conspecific congruence. Basically, we expect to be treated fairly and equally by those who we perceive as our equals (our conspecifics). Along with hierarchical ordering, conspecific congruence is one of the more powerful psychosocial forces creating the structure, relationships, and roles within social groups. Hierarchical ordering is vertical, while conspecific congruence is horizontal. Both always seem to be present to some degree in all stable human social groups.

Conspecific congruence probably developed out of the structures in the brain that underlie the ability to form classes of groups with perceived similarities. This would be a combination of the reductionistic, quantifying, and binary cognitive operators.

Conspecific congruence is asserted when all members behave to maintain social balance within a group. In other words, we are always monitoring the group environment to be sure we are being treated and are treating others fairly and respectfully. We also utilize conspecific congruence to evaluate the behaviors of others. A positive change in conspecific congruence occurs with kindness or a favor, with the consequent obligation to return it to balance the incongruence. A negative change in congruence is perceived as an attack on self. A desire for revenge is generated to restore the congruence.

Revenge is related to self-preservation. It requires a sense of self and the internal drive to equalize incongruence between others. Thus, when a person is hurt, he or she experiences a strong impulse to return the hurt and bring the incongruence into balance. Revenge behavior also requires long-term memory. One has to be able to hold an offense in memory to carry out a future action to balance the incongruence.

The revenge-complex is based on a number of brain structures related to each other in complex neural networks. For example, the evolution of long-term memory arose from the development of the hippocampal-amygdalar memory system. Revenge behavior is poorly controlled by the brain because it originates in ancient subcortical structures not controlled by rational thinking. Thus, revenge can easily lapse into an excessive mutual retaliation owing to an excessive evaluation of self, with the consequent miscalculation of what is needed to restore equilibrium.

Serious and intractable conflicts arise when, out of an exalted sense of self injury, the victim seeks excessive revenge. The offender, whose exalted sense of self feels attacked, retaliates with even more zeal. Such a neuropsychological system, if unchecked, could lead to social chaos. Forgiveness therefore evolved as a means of checking uncontrolled escalation by eliminating bellicosity in one’s opponent. In addition, forgiveness has the unique effect of generating warm feelings for the victim from observers not involved in the conflict. This can have remarkably profound social consequences. To the extent that observers sincerely support the victim’s forgiveness, attachment mechanisms in the victim’s brain are activated to reduce the desire for revenge.

In peacemaking, finding appropriate justice can be challenging. However, more often than not, when given the opportunity, people demonstrate an amazing capacity for compassion and forgiveness. In these moments, the beauty of the human spirit is revealed to all.

by Douglas Noll Source www.mediate.com

“The first part of the workshop on mediator accreditation at 7th National Mediation Conference, Darwin 2 July 2004 involved a facilitated discussion on the question of

‘who says you’re a mediator?’ Matters to arise out of the discussion included:

· There are many accrediting authorities and panels;

· The parties say who is a mediator, as the mediator keeps getting work;

· A training course does not make a person a mediator;

· It is hard to say at what point one ‘becomes a mediator’, but it is possibly after

· hundreds of hours of experience;

· Sometimes practitioners feel like ‘mediators’, other times not; and yet people

continue to see themselves as lawyers, psychologists, etc;

· A good mediator may well be ‘invisible’ as the parties own the outcome.

What are you doing when you mediate?

Client outcomes

· Assist clients achieve their stated aims;

· Assist people to work together with respect;

· In practice, try and help people find their own answers and keep them out of court,

if possible;

· Help people communicate better;

· Make a happy and healthy person;

· Help people talk and, more importantly, listen

· Assisting couples to [reach] agreement around family issues;

· Clients achieve outcomes they can live with and feel they own and can implement.

Orientation to the parties

· Support;

· Stay non-judgemental;

· Be humble and keep a sense of humour;

· Meet the clients where they are at;

· Be reflective and responsive to clients’ needs;

· Be respectful;

· Help people;

· Remain impartial;

· We hang in there;

· Enjoy talking to people, enjoyment of rich tapestry.

How do you know you have done it well?

Feedback from clients – informal/immediate

· Direct and indirect client feedback at stages of the mediation;

· When the clients tell me I’ve done it well;

· [or say] ‘it was so calming’;

· Strong, positive client feedback;

· Post-mediation party said, ‘Boy, you’re good’;

· A kiss on the cheek;

· A bag of avocados;

· Thank you from client.

Feedback from clients– formal/follow up

· Client satisfaction;

· Parties feel positive, three months on;

· Feedback evaluation sheets;

· Client feedback forms;

· Testimonials;

· Client surveys (including online);

· Ask/elicit clients for feedback [and] use feedback received for training and

· improving processes;

Abstracts from “Who says you’re a mediator? Report on NADRAC workshop on mediator accreditation at 7th National Mediation Conference, Darwin 2 July 2004”

The main objectives of ADR systems are to make the parties come together and settle the dispute voluntarily.  These systems, conciliation, negotiation, mediation, arbitration, Judge Conciliator, court ordered and court annexed mediation, judicial settlement, conference, neutral expert fact finding are now becoming integral part of society and culture for access to justice.

The objective of this research is to find the different shapes of ADR systems in each developing country, its success, issues in enforcement of awards and general awareness in public, role of public bodies in help to ‘access to justice’.

The independence, accountability and transparency of the judicial system have yet to be established and have to save it from political influence in many developing countries.  The success of ADR systems relates to fairness and voluntary acceptance, the principles that forms the foundation of an ADR   system and a path to ‘access to justice’.

Some jurists believe that if ADR systems are patronised by the governments in proper and legal way and enforcement of awards be made compulsory by legal system, burden of cases in courts will definitely be less and the path to ‘access to justice’ will smooth the lives of poor people.

a research paper on this topic is under going and I will request the concernd persons, related org’s and organizations to co-operate with the webmaster. See our page “About”.

There are so many topic to discuss in Law especially in developing countries

where politicians claim the LAW on priority but d,nt bother it when their own

personality is affected. What are the weaknesses in the sytems, express you

feelings freely.