Online Guide to Mediation

Online Guide to Mediation has moved to its new home at MediationChannel.com!

2008-01-01T17:29:00.001-05:00

It's official -- Online Guide to Mediation has a new home and a new name -- at Mediation Channel.com.

After several months of technical difficulties with Blogger, the blog publishing platform I've relied on for the past three years, I decided it was high time to make the move to my own domain name.

I hope of course that you'll make the move right along with me. If you use a newsreader like Bloglines.com to subscribe, click here for the new feed for MediationChannel.com. And if you signed up for automatic email notifications through Feedblitz, I'll be taking care of the changes on this end by editing the Feedblitz settings, so there'll be nothing you'll have to do.

While I settle in at my new digs, posting will continue, beginning with my series for the first week of January, "New Year (Dispute) Resolutions", which starts on January 2.

Looking forward to seeing you all at the new address. And a very happy new year to everyone!

2007 highlights: the year's best from Online Guide to Mediation

2007-12-31T08:33:00.000-05:00

Year's end is a time for looking forward and also for looking back, as we take stock of where we've been, while we consider the journey ahead of us.

As part of that annual tradition, I've pulled together the posts from 2007 that have been the most frequently visited, the ones that drew the most comments and emails, or that are simply my favorites.

I hope you enjoy them.

From January:

"Is your negotiating style leaving value on the table?"

"Mediator certification and credentialing: getting accurate information on becoming a mediator"

"Bridging the divide between lawyers and mediators" - a three-part series

From February:

"Sunshine is the best disinfectant: Bob Sutton's "The No Asshole Rule" gets an age-old workplace problem out into the open"

Blawg Review #94 - The Getting to Yes Edition

From March:

"What's so funny 'bout peace, love and understanding? Thoughts on why we're not getting to yes"

"Since when is changing your mind a bad thing?"

"Seeing ourselves as others see us: the art of feedback"

From April:

"Why I will not be observing One Day Blog Silence"

"Chicken peacekeepers mediate bunny turf war"

"Are mediators hindering a civil right to counsel? One scholar says yes"

From May:

"In This Case: blog allows people to tell their personal stories about the law"

"Does ADR deliver justice?"

From June:

"Premature negotiation: how to get rid of performance anxiety at the mediation table"

"The ups and downs of conflict: a game theory analysis of the toilet seat issue"

From July:

"Nothing but the truth: Radical Honesty movement proposes a world without deception"

From August:

"Won't get fooled again: negotiating with liars"

"Mediator nominated for Congressional Order of Merit by National Republican Congressional Committee"

"Requiem for a friend"

From September:

"Art education may help prepare future lawyers (and mediators)"

"Free stuff online to help ADR professionals run their businesses"

From October:

Blawg Review #130 - the Double Hemisphere Edition co-hosted with fellow mediator Geoff Sharp

"(In)justice for all: the case against arbitration clauses in consumer contracts"

"Apologies can improve the health of hospital-patient relations"

From November:

"In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past"

"How to turn a simple misunderstanding into all-out war: a mediator's advice"

From December:

"In celebration of the ADR blogosphere: blogging transforms how we talk about dispute resolution"

"Out of the mouths of babes: a child's guide to the law"

"Optical illusions as a training tool for mastering negotiation and conflict resolution skills"

A happy 2008 to all of you! And thanks as always for stopping by to visit.

Incidentally, in just a few days, in time for my third anniversary of blogging, big changes are coming to this blog. I'm pulling up stakes here at Blogger.com -- Online Guide to Mediation will get both a new home (currently under construction) and a new name -- plus an easier-to-remember domain name, too.

Plus I'll be welcoming in the new year with a special series: I'll be posting "New Year (Dispute) Resolutions" during the first week in January.

Stay tuned!

A happy New Year message from Online Guide to Mediation

2007-12-31T00:13:00.000-05:00

Please click here to view a New Year's Eve message from me to you.

Best wishes to everyone!

New additions, New Year's updates for World Directory of ADR Blogs

2007-12-29T17:09:00.000-05:00

Change is good.

And change is coming to the World Directory of ADR Blogs, my online project tracking and cataloging blogs worldwide on mediation, negotiation, ADR, conflict resolution, negotiation, and people-focused innovations in the law.

Beginning on the first of the year, the World Directory of ADR Blogs will itself become a blog, with its own RSS feed so that visitors can subscribe easily for news and updates. This will make it easier for me to maintain and update the site as well. The site may be inaccessible during the conversion, which will be complete by January 1.

In the meantime, please check out the World Directory's latest acquisitions:

The Conflict Resolution Toolbox
Cool tools and fun sundries from professional mediator and conflict resolution coach Tammy Lenski.

A Mediator's Calling
An informal exploration of the process of becoming a mediator, consisting of one individual's reflections on a variety of topics pertaining to the art of mediation, with some practical advice. Published by Toronto mediator Ken Bole.

Singapore Law Blog
This blawg provides its readers with news, comments and insight on legal matters in Singapore, including arbitration and dispute resolution.

Chinese Negotiation - Negotiating in China
Chinese Negotiation is a tool to assist international investors and managers enter the China market. Published by Andrew Hupert, a consultant based in Shanghai who has been working with the Greater China market since 1991. He specializes in helping new China entrants with sales management, marketing and negotiation.

Communication and Conflict Blog
The Communication and Conflict Blog discusses insights from the practice of mediation, including principles for effective communication based on the underlying philosophies of mediation. Author Alan Sharland shares observations and updates on communication and conflict in daily life.

Blawg Review Nominations

2007-12-29T15:41:00.000-05:00

Blawg Review, acknowledged recently by the American Bar Association as one of the top 100 law blogs, is unique among blogs. Hosted each week by a different legal blog, no better source exists for current trends, new ideas, highlights of top news stories, and stimulating repartee for the legal community. Serving as a central repository or hub, it provides opportunity for legal bloggers everywhere to participate, gain visibility, and speak out.

Blawg Review now seeks nominations for the best presentation of Blawg Review this year. Anyone who has hosted a presentation of Blawg Review (or is slated to host an upcoming one) can participate. The anonymous Editor made his own recommendations in a ceremony this week in Second Life -- suggestions you can view at Virtually Blind, a blog covering legal issues in virtual worlds.

As someone who has served as Blawg Review host three times now (two in 2007, #94 and #130 co-hosted with Geoff Sharp in a double-hemisphere edition, which I was honored to discover among the Editor's recommendations), I also know how much hard behind-the-scenes work goes into each presentation.

During the past year there were many excellent editions of Blawg Review (tough acts for any host to follow). A few, however, stand out. Well crafted, inventive, intelligently written, and informative, my nominations are:

Blawg Review #124, Labor Day Special Historical Edition. Hosted by the inimitable George Lenard, this presentation skillfully weaves together archival photographs and history with a week's worth of links to high-quality legal blogging. "Epic" is the word that comes to mind.

Blawg Review #137. Colin Samuel achieves another poetic masterpiece with his third Dante-themed presentation of Blawg Review. Bravissimo, Colin!

Blawg Review #101. Diana Skaggs of Divorce Law Journal evokes images of bluegrass, mint juleps, and the Run for the Roses in this Derby-themed edition.

Blawg Review #102 and its prequel. This special presentation was delivered by host George M. Wallace at his two blogs, the all-business Declarations and Exclusions, and his personal and cultural web journal, a fool in the forest. Both presentations were constructed around illustrations from Stultifera Navis, the 1497 Latin translation of Sebastian Brant's 1494 satirical German text, Das Narrenschiff, aka The Ship of Fools.

Blawg Review #134. Eric Turkewitz at New York Personal Injury Law Blog hosted this meticulously crafted marathon-themed presentation.

No matter who ultimately wins the title of best Blawg Review, Blawg Review makes a winner out of us all -- its hosts and its readers alike. Congratulations to all who served as host this past year, and best wishes to those who will serve in future.

Lawyers Appreciate... democracy

2007-12-29T14:55:00.000-05:00

Memes are ideas or units of cultural information transmitted, as viruses are, from one individual to the next. Blogs provide a rich medium for memes to flourish in, as bloggers invite (or incite) each other to comment on and disseminate them.

Stephanie West Allen, who publishes Idealawg, a blog that honors the creative spirit within the practice of law, and Julie Fleming Brown of Life at the Bar, have announced the second annual celebration of Lawyers Appreciate..., a legal meme in which bloggers are invited to express appreciation for the things that matter most to them about the practice of law in a 10-day countdown to the start of the new year.

Stephanie invited me, together with bloggers Vickie Pynchon and Gini Nelson, to add our thoughts. Both of them have already weighed in, the former to praise end-of-the-year appreciation memes, the latter to honor justice.

As for me? Of all the images from 2007, among the most enduring are those of lawyers protesting in the streets of Pakistan. As I contemplated those images in November, I asked, "Is it time for a Nobel Prize in law?"

What do I appreciate about the law? You can find my answer there.

In celebration of the ADR blogosphere: blogging transforms how we talk about dispute resolution

2007-12-11T18:43:00.000-05:00

In less than a month I'll be celebrating Online Guide to Mediation's third anniversary. Looking back, I marvel at how radically things have changed since my early days of blogging.

With all things web-related, change occurs rapidly and time accelerates. Last year is ancient history and yesterday is old news. Those three years have witnessed some radical change.

When I launched OGM, it was mighty lonely out here for anyone blogging about mediation or ADR. Although there were a handful of early adopters like Colin Rule, Bill Warters, Perry Itkin, and Tammy Lenski, blogging about mediation remained a solitary business. In comparison with the brawling and boisterous legal blogosphere, ADR blogging was awfully quiet then. There were just too few of us to make much noise.

Fast forward three years and now look at us. According to the latest head count, there are almost 120 of us, located all over the world in 22 countries, as you can see at the World Directory of ADR Blogs. And we cover the ADR spectrum -- arbitration blogs, mediation blogs, negotiation blogs, and more.

The digital world of ADR blogging pulses with light and sound. That buzz you hear is ADR bloggers using their sites to invite debate about issues important to our field -- subjects that range from ethical duties to the role of spirituality in dispute resolution to money offers at the mediation table to the laws that affect our work.

We're not only using blogs to get our message out, but we've also turned to podcasts and videoblogging, as Negotiating Tip of the Week and the Mediation vBlog Project prove.

Although our numbers remain too small to, say, merit a cover story in a major publication for a professional association as legal blogs have done, we have been fortunate to have earned the support of the world's premier online resource on dispute resolution, Mediate.com, which created a special section on its site to highlight selected posts from its Featured Blogs.

To give you a sense of the diversity of ADR blogging, in terms of subject matter and geography, consider these exemplars of the craft (and these are only the English-language ones):

Idealawg and Brains on Purpose. Published by Colorado-based attorney and mediator Stephanie West Allen, Idealawg unleashes the creative potential and artistry in the craft of law, while Brains on Purpose reflects its author's fascination with neuroscience as a tool for resolving and transforming conflict.

Mediator Blah...Blah... The creation of Wellington, New Zealand, mediator and barrister Geoffrey Sharp, this blog delivers wit, wisdom, and no-holds-barred truths straight from the mediation table, with plenty of comic relief when the going gets tough.

ICT4Peace. Published from Sri Lanka by innovative thinker Sanjana Hattotuwo, this bleeding-edge blog explores the use of information and communications technology for conflict transformation.

Florida Arbitration Law.com, a group endeavor, is a blog that focuses on law regarding the enforcement of arbitration and issues of vacating, confirming or correcting awards, primarily affecting Florida.

Indisputably.org, published by four prominent American ADR professors, provides a scholarly perspective on mediation, arbitration, dispute resolution, and negotiation.

Gini Nelson's Engaging Conflicts, based in New Mexico, discusses science, ethics, and spirit in a high conflict practice. It regularly features conversations with dispute resolution practitioners and provides thoughtful discussion of the rewards and challenges that our work produces.

CKA Mediation and Arbitration Blog is published by Georgia mediator and lawyer Chris "Tell Us What You Really Think" Annunziata. Chris pulls no punches as he tackles the issues that mediators face or that bedevil the legal profession (and don't get him started on ridiculous lawsuits). Don't be surprised to see sacred cows dispatched along the way -- with style and humor.

Settle It Now Negotiation Blog. Commercial mediator Victoria Pynchon dispenses her best advice on negotiation and dispute resolution, with insights into the psychology of negotiating, particularly cognitive errors and the risks they pose for dealmakers. Vickie's talent for writing is evident in her well-crafted posts, written with honesty and good common sense.

The Ombuds Blog, published by university ombuds Tom Kosakowski in California, is a dependable source for news and information for and about organizational ombuds.

Tammy Lenski's Mediator Tech. This Vermont-based blog offers "tips and tech for making mediation your day job". Tammy is skilled at demystifying technology and taking the fear out of marketing for mediators intimidated by both. Tammy made ADR blog history when she launched her first-of-its kind blog-to-book project, "Making Mediation Your Day Job".

And still more sites worth visiting include:

PGP Mediation Blog, published by California attorney and Mediator Phyllis Pollack, stands out for its consistently thoughtful posts on mediation practice.

Campus ADR Tech Tools, hands-down the best resource on the web for online tools, games, materials, and downloads for conflict resolution practitioners, students, and teachers.

Mediation Mensch, created by entrepreneur and ADR professional Dina Beach Lynch, is the world's first mediation marketing blog.

National Arbitration Forum Blog, which recently celebrated its third anniversary, lives up to its name and provides news across the nation on arbitration and ADR.

* * * * * *

In the ADR blogosphere today, ideas develop, mutate, and spread, transmitted virally through the medium of the web. The conversation grows, amplified as one blogger after another joins in. Limited no longer by physical geography, we can reach across the world and connect to each other.

The spirit of the community of ADR bloggers is summed up best in a quote that captures the ethos of blogging. Although it was written to evoke the spirit of a very different community of bloggers, it applies to the many bloggers I admire who write so honestly, so compellingly, about ADR:

We help each other. Many of us are stars but we like to pass the ball and create opportunities for others. Points don't matter. Assists do.

That's what it's all about. It's that simple. Creating opportunities for others. Helping each other. It's what we're doing out here, as we try ideas on for size and do our thinking out loud together -- in the best spirit of the collaborative nature of our work.

We'd love it if you joined us. In the frontier that is the web, there's plenty of room for all.

Come join the conversation.

Test your knowledge of world geography

2007-12-11T18:27:00.000-05:00

Maybe you consider yourself knowledgeable about foreign affairs. Or count yourself a seasoned traveler with the passport stamps to prove it. Or perhaps you pride yourself on your cultural awareness.

Put your internationally attuned wits to the test with the interactive Traveler IQ Challenge to see how well you know your world geography. (Watch where you're clicking -- I inadvertently slipped and missed accurately locating Fenway Park by 735 kilometers.)

(Hat tip to Kottke.org.)

Out of the mouths of babes: a child's guide to the law

2007-12-10T17:32:00.000-05:00

I have a confession. The obituaries are perhaps the part of the newspaper I enjoy reading most.

Why? I can think of many reasons. Obituaries celebrate a life well lived. They return history to a human scale, reminding us that history is not shaped by emperors, generals, or queens alone, but also by ordinary people against the backdrop of large-scale events. Most importantly, for me, obituaries tell stories -- stories of human experience, of triumphs over personal tragedy, of love.

Sometimes they offer lessons, too. I was charmed by this one on the law from the Boston Globe obituary for legal scholar and authority on comparative legal history Harold J. Berman. He described himself as a law student from an early age "like all children", since children instinctively grasp the basic principles of law:

"A child says, 'It's my toy.' That's property law," he said. "A child says, 'You promised me.' That's contract law. A child says, 'He hit me first.' That's criminal law. A child says, 'Daddy said I could.' That's constitutional law."

(To which I would add, a child says, "Let's take turns." That's dispute resolution.)

Blawg Review #138 honors Human Rights Day

2007-12-10T17:17:00.000-05:00

De Novo hosts Blawg Review #138, this week's edition of Blawg Review, the weekly review of the best in legal blogging.

This presentation of Blawg Review celebrates Human Rights Day, December 10, which commemorates the adoption of The Universal Declaration of Human Rights by the United Nations General Assembly:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood...

Click here to read the full text of the Universal Declaration of Human Rights.

Online Guide to Mediation Link Round-up | December 7, 2007

2007-12-07T06:26:00.000-05:00

Here's the latest round-up of conflict resolution and negotiation links for mediators:

The Telegraph discusses the benefits of negotiation training in "The art of being a winning negotiator". Lessons learned include "Don't squander trust" and "build relationships with the other party".

In a story from NPR's Weekend America, an Iraqi artist living in the U.S. uses art to convey what life is like when it's lived under the gun.

The Britannica Blog bravely calls for "Negotiation, Not War: How to Deal with Iran".

Meanwhile, at a time when American political leaders insist that "we don't negotiate with terrorists", our field faces a tough sell in convincing Americans that there's value in talking it out, as I've discussed here before. We've definitely got our work cut out for us -- if wearing peace shirts at a Florida high school can trigger this kind of harassment.

As Shakespeare writes in Julius Caesar, "Words before blows...Good words are better than bad strokes, Octavius." Consider that sentiment and visit Walking the Berkshires, which describes through old family letters "Old School Conflict Resolution" -- when duels were fought with swords not words.

From Slashdot is news of a report that finds that the "Brain Changes When Viewing Violent Media".

Gini Nelson welcomes guest blogger Thomas Kosakowski, who'll be dispensing advice on the "10 Things Lawyers Should Know About Ombuds".

Perry Itkin at Florida Mediator reports with an exclamation point that "Florida Supreme Court Removes Bar Membership Requirement for Circuit Court Mediators!" Amen to that.

At Boing Boing, a flowchart that depicts how to determine whether a statement made on the internet is factual.

It's not often that you see the words "nude" and "settlement conference" used in the same sentence. Things may be different now, if the following headline is a sign of the changing times: "Ms. Cordero Will be Happy to Attend a Televised Nude Settlement Conference".

My husband's British, I'm American. That means we often argue over the pronunciation of words in the English language. Resolve your own pronunciation disputes with howjsay.com, a free online pronunciation dictionary. It includes both American and British spellings with pronunciation in Standard British English. (Naughty words are excluded, so it's safe for kids and the workplace.)

That's it for this time. Have a great weekend, folks.

"The Point": web site leverages the power of numbers to solve problems

2007-12-06T13:45:00.000-05:00

They say that there's strength in numbers. And that's the premise of a new web site, The Point, which bills itself as "a social platform for people to solve problems they can't solve alone."

Visitors to the site can register and create campaigns to encourage others to join their cause. Videos on the landing page of the site demonstrate the kind of individuals who can launch campaigns to instigate change: the Frustrated Consumer, the Unappreciated Employee, the Loving Parent, and the Concerned Citizen -- archetypes that any of us can identify with.

The values on which The Point are based are straightforward:

The Point changes the way we participate in activities, removing the primary cause of inaction – not knowing if we will make a difference. The Point is a natural adaptation of collective action to the Web, and the most effective model for channeling frustration into coordinated, decisive action...

People want a way to make a difference, but many problems are so large that we feel powerless to solve them. People are not apathetic – most of us will help if we feel like we can make a difference.

By bringing people together in numbers sufficient to create change, The Point aims to "to empower people with an easy way to make the world the one they want."

For those who say you can't fight city hall, The Point may offer some hope.

(Hat tip to Bill Warters.)

Premier ADR web site Mediate.com adds new feature with global focus

2007-12-06T13:33:00.000-05:00

Mediate.com, the world's leading online resource for news, information, and bleeding-edge thinking in the field of ADR, has added a new feature.

Mediation Today highlights the importance of mediation, posting stories from around the globe that demonstrate the many ways in which men and women confront and address disputes -- and the continuing relevance of the work that the conflict resolution field is engaged in.

Optical illusions as a training tool for mastering negotiation and conflict resolution skills

2007-12-04T09:04:00.000-05:00

As a trainer of negotiation and conflict resolution skills, I love using optical illusions to demonstrate the fallibility of our perception. They alert us that our senses can be unreliable and susceptible to influence. And they remind us that it is always possible to see things differently. The ability to be alert to errors in thinking and judgment that any of us are prone to is of course essential to anyone who is negotiating or resolving a dispute.

Here are two optical illusions I was recently introduced to that I've incorporated into my training. Both of us these can be found at Michael Bach's web site, 75 Optical Illusions & Visual Phenomena.

The first is Shepard's "Terror Subterra", a cool interactive illusion that demonstrates how perspective can bias us.

The second is Shepard's "Turning the Tables", an interactive illusion with tables that appear to be of different dimensions but are in fact identical, with the ability to test the visual effect for yourself. It's extraordinary how knowing the truth doesn't necessarily prevent us from making mistakes in our thinking.

Divinely inspired Blawg Review #137

2007-12-04T08:34:00.000-05:00

This week's Blawg Review, the weekly review of the best in legal blogging, is hosted by Colin Samuels at Infamy or Praise. Blawg Review #137 draws poetic inspiration from The Divine Comedy's third cantica, Paradiso.

This edition of Blawg Review is Colin's third. Each time the works of the immortal Dante have served as Colin's muse, resulting in an Inferno-inspired Blawg Review #35 and a Purgatorio-themed Blawg Review #86.

Congratulations, by the way, to Blawg Review for earning its rightful place among the American Bar Association's list of top 100 law blogs. Blawg Review stands apart for its ability to present unique voices in the legal community.

Consider, for example, these two recent hosts of Blawg Review:

Peter Black's Freedom to Differ, providing an Australian perspective on legal and policy issues concerning the media and internet

Dr. Jillian Todd Weiss at Transgender Workplace Diversity, covering law, politics, and policy affecting gender identity

Each weekly host presents a refreshingly different perspective on the law and legal issues -- the issues that affect all of us, whether we practice or study law, or simply care about it. And if you love both law and literature, don't miss Blawg Review #137.

In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past

2007-11-27T12:13:00.000-05:00

In April 2006, I reported that the Boston Bar Association proposed an amendment to the Massachusetts mediation confidentiality statute, Mass. Gen. Law. ch. 233, s. 23C. That statute protects from disclosure in a judicial or administrative proceeding "[a]ny communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person."

The BBA's proposal sparked an immediate backlash within the mediation community. What was radical about the BBA's proposed amendment was its change to the statutory definition of mediator. The current statute defines a mediator as "a person not a party to a dispute" who:

enters into a written agreement with the parties to assist them in resolving their disputes has completed at least thirty hours of training in mediation and either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years

The BBA's proposed amendment would eliminate these requirements and define a mediator simply as "an individual who conducts a mediation". At the time I condemned this proposal and argued for preserving the current definition.

As it turns out, the Boston Bar Association was right. And I was wrong.

And why that matters now is that today the mediation community in Massachusetts may be poised to make the same kind of mistake I did.

Let me explain why.

Some background first. A small group of mediators in Massachusetts, designating itself the MassUMA Working Group, has been meeting for the past year to consider whether to enact the Uniform Mediation Act ("UMA") here in the Commonwealth.

The UMA defines mediation as "a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute". It defines a mediator as "an individual who conducts a mediation" -- as did the Boston Bar Association's proposed language.

But a number of Massachusetts mediators who support the UMA want to replace its definition with the one currently in effect in the Commonwealth, along with some additional language.

A subcommittee of the Working Group supports the following definition:

A "mediator" shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator after such training or is accountable, after such training, to a dispute resolution organization which has been in existence for at least three years.
The phrase "dispute resolution organization" means a program with which neutrals are affiliated, through membership on a roster or a similar relationship, which administers, provides and monitors dispute resolution services. A program may be operated by a court employee or by an organization independent of the court, including a corporation or a government agency. A program operated by a court employee may include one or more court employees or non-employees or a combination of court employees and non- employees on its roster.

As I said, adopting this language would be a big mistake. To see why, let's walk through each provision of the proposed language.

The written agreement requirement.

There is no doubt that good practice and common sense (not to mention the terms of at least one professional mediator liability insurance policy that I know of) dictate that mediators enter into a written agreement with their clients. Such agreements typically define the mediation process and the mediator's role, spell out exceptions to confidentiality, and describe the respective duties and obligations of the parties to the agreement. A mediator would be foolhardy not to enter into such an agreement

However, such a definition ignores the realities of practice. For example, what about the many solo mediators who conduct their own intake or speak with parties prior to meeting them to prepare them for the mediation or to answer questions about mediation and the mediator's role? Often parties reveal confidential information to mediators in those off-line, one-on-one conversations as a necessary part of intake and screening or the convening process. And sometimes those parties then elect to use a different neutral or even choose not to mediate their dispute at all -- which means that there is no written agreement between those parties and the mediator.

Under the UMA, which does not require a written agreement, such communications in these circumstances would be privileged as they should be. Under current Massachusetts law -- and the version of the UMA which some members of the Working Group support -- they are not. Asking parties to sign an agreement prior to having a preliminary conversation with the mediator -- even to gather information about the mediation process and its suitability for their own dispute-- is both unrealistic and burdensome to all involved. I can see no rational basis for excluding from the protection of the statute these communications.

Training hours requirement.

Don't get me wrong. I believe that all mediators should be adequately trained to serve as neutrals in the mediation of disputes. But a requirement of 30 hours of training in mediation is problematic for many reasons.

First, there is the problem of definition -- what exactly do we mean when we say "training in mediation" when so many competing models of mediation practice abound -- evaluative, facilitative, transformative, narrative, the list goes on? Each is normatively distinct and describes very differently the role and responsibilities of the mediator and the disputants. Some scholars and practitioners, in fact, have argued that evaluative mediation may not be mediation at all.

So if 30 hours of training is required, the question is, 30 hours of training in what kind of mediation? (To learn why this is not just a difference of semantics, read this excerpt from an article by ADR scholar and professor Michael Moffitt.)

The problem, too, lies with the number itself -- whether 30 hours or 40, is that sufficient preparation pedagogically speaking? Plenty of academics would say not, that immersion in a comprehensive curriculum in a formal university setting is necessary to master conflict dynamics and understand negotiation theory.

The training requirement is premised on the notion that training prepares people to be more effective mediators. But in an unlicensed and unregulated field not only are the mediators themselves unregulated but so too are the mediation trainers. Institutions of higher learning must meet recognized accreditation standards. But in the U.S. mediation trainings and trainers are accountable to no one. So while someone may have 30 hours of mediation training under her belt, it doesn't mean that she has had the right kind of training.

Importantly, too, the 30-hour requirement inhibits party choice of mediators -- ironic when self-determination by parties is a core tenet of mediation. Such a requirement also reflects an unfortunate provincialism. It could deprive neutrals who have arrived in Massachusetts from other states or indeed from other countries of the benefits of this statute, discouraging professional and cultural diversity, as well as innovation, in what is still a young and evolving field.

Four years of professional experience.

There are so many problems with this requirement, I'm not sure where to begin. First of all, why four, a wholly arbitrary number? What is the four years based on? Why not three? Or two? Or none? Why should parties be denied the benefit of this statute solely because they selected a neutral possessed of three years, eleven months, and nine days of professional experience? Or even one day of experience, if this is the neutral the parties have selected and trust? And what about individuals who have a real aptitude for mediation? I meet a number of them each year in the trainings I conduct -- people who demonstrate true talent and skill. Why should someone like that be arbitrarily excluded from the statutory meaning of "mediator" simply because they don't have the requisite four years?

Also, what exactly is "four years"? Does that mean 40 hours each week spent mediating for 50 weeks out of every year? Does that mean one case a day? Or one case each week? Or something else?

And what constitutes "professional experience"? According to my dictionary, "professional" means "following an occupation as a means of livelihood or for gain". What does that mean for the many volunteer community mediators who provide pro bono (or low bono) services in small claims or neighborhood settings? Don't they count? Are they amateurs, not professionals? And maybe "four years of professional experience" doesn't mean mediation experience at all. For example, I'm not just a mediator -- I coach and train people in conflict resolution and negotiation skills. Does that work count as "professional experience"? After all, I'm using my skills and knowledge developed as a mediator to deliver those services.

Besides, if the goal is to assure public confidence in mediators, since when is length of years of experience any guarantee that a neutral is any good? A requirement like this does nothing to address or weed out incompetence.

Accountability to a dispute resolution organization which has been in existence for at least three years.

This requirement suffers from the same issues of arbitrariness that the preceding one did. Why three years? I just founded a dispute resolution firm with four partners; together we have over 75 years of experience. One of our members is a pioneering leader in the field and my other partners are no slouches themselves. But because our company is only a few months old, it doesn't count for purposes of this statute.

Again, if public confidence in mediators is the goal, what does the length of existence of a particular organization have to do with it? The length of time in which an organization has been in existence is no guarantee of anything, including its commitment to excellence and best practices.

The problem too is one of language. What did the drafters mean by "accountable to a dispute resolution organization"? What precisely does it mean to be "accountable"? And what about "dispute resolution organization"? Conceivably this could mean an organization that provides arbitration services only but no mediation -- which makes little sense if the objective is to ensure proper supervision of mediators.

This leads me to a final point. This requirement does not recognize alternative methods to build skills and develop the capacity to mediate -- supervision by an experienced and qualified mentor in solo practice, for example, but one who is not part of a "dispute resolution organization".

Let me be clear. I share the goal of building public confidence in the mediation field that motivates those who support this definition. And I agree that establishing threshold requirements for training and credentialing mediators is critical to achieving that goal. But training and credentialing are topics so important that they warrant an independent inquiry, separate from consideration of a statute that concerns evidentiary privilege -- and one that answers, not ignores, the questions I raise here.

I respect those who first wrestled with the question of how to define a mediator when the Massachusetts confidentiality statute was enacted in 1985. And I salute those striving today who wrestle anew with this issue. But we can't shy away from asking hard questions now just because it may be politically expedient to do so or because we fear that raising those questions might show disrespect to the pioneers who came before us.

We owe it to those who will follow us.

Lawyers, Pakistan and democracy: is it time for a Nobel Prize in law?

2007-11-16T16:26:00.000-05:00

I remain haunted by last week's images of lawyers protesting in the streets of Lahore. Their defiant response to Musharraf's declaration of martial law reminds us of how integral the rule of law is to a functioning democracy.

How might we honor law's place in delivering justice and safeguarding human rights? How can we recognize the importance of law and its institutions?

Garrett Epps, writing for The Nation, proposes that "We Need a Nobel Prize in Law".

I, for one, agree.

For a stirring reminder of why the rule of law matters, read the text of the 1958 radio address by then American Bar Association president Charles Rhyne announcing the enactment of Law Day, a "day of national dedication to the principle of government under law". May 1, 2008, incidentally, marks Law Day's 50th anniversary.

Online Guide to Mediation Link Round-up | November 16, 2007

2007-11-16T14:30:00.000-05:00

Some good stuff on the web to round out the week:

Language Log posts a cartoon on communication by omission about all the unspoken messages family members convey to each during the stress of the holidays (particularly mothers and their adult children), as well as a meditation on the use of diplomatic language to settle disputes in "The moral of losing your pants, your suit, and your job".

Thinking Ethics links to a great resource on the BBC web site on the ethics of lying.

At the Harvard Gazette Online is an article on "Buddhism and the art of negotiation: Mindfulness, 'unattachment' — and getting what you want".

The Wall Street Journal Law Blog asks, "Is arbitration the new litigation?" and provokes a lively debate in the comments section.

In "Navy Showers, Low Flow Showerheads and Other Water Conservation Ideas", Chris Annunziata at CKA Mediation and Arbitration Blog describes how one mediator gets his whole family to go green and conserve water.

Finally, if you're in need of some inspiration at the end of a tough week, then treat yourself to this uplifting video of a cellphone salesman achieving a lifelong dream to sing opera. (Thanks to my pal Geoff Sharp for sending the link my way.)

Latest podcast from Harvard PON covers negotiation lessons from baseball's free agents

2007-11-15T17:58:00.000-05:00

Red Sox fans like myself, while still basking in the afterglow of our team's recent World Series triumph, are grieving that baseball season has at last come to an end.

But I can take comfort in the latest edition of PONCAST, which brings together two of my favorite topics, negotiation and baseball, in its latest podcast, "Negotiation Lessons from Baseball's Free Agents".

(Photo credit: Rodolfo Clix.)

Don't neglect emotions in negotiation and mediation

2007-11-15T17:07:00.000-05:00

I often hear critics of mediation dismiss it as "touchy-feely".

Yet as the results of one recent poll conclude, half of commercial disputes "get personal" as hearts win out over minds in business-related conflict. This suggests that it may be neither possible nor prudent to ignore the emotions that conflict triggers when it comes to successfully resolving disputes.

In "Emotions and Problem Definition in Mediation", Professor Nancy Welsh, blogging at Indisputably.org, discusses the value of offering parties in mediation the choice of addressing emotional concerns, explored more fully in a soon-to-be-published law review article she has co-authored with influential ADR scholar Len Riskin. Welsh observes about parties,

They may want the emotional impact of their disputes to be a legitimate part of their mediation session. And, of course, one of the great promises of mediation is its potential to incorporate and deal productively with emotions.

As Welsh points out, the question is how:

Len and I decided to adopt the concept of "core concerns" introduced in Beyond Reason by Roger Fisher and Daniel Shapiro. Fisher and Shapiro observe -- pretty convincingly, I think -- that it can be quite complicated to deal directly with emotions in negotiation... Meanwhile, there’s lots of research showing that we lawyers are not too keen on dealing with emotions and personal impacts. So, Fisher and Shapiro propose that negotiators focus on five core concerns that are the source of many of the emotions expressed in negotiations. These core concerns are: appreciation (the desire for our thoughts, feelings and actions to be valued); affiliation (the desire for connection or positive relationships); autonomy (the desire for respect of our freedom to make important decisions); status (the desire for recognition of our standing); and role (the desire for a role and activities that are fulfilling). If negotiators attend to these core concerns, they can trigger positive emotions and respond to negative ones.

Beyond Reason is a text that I use when I teach and is one that I recommend often to clients. It explores a topic that other negotiation texts have neglected or paid scant attention to: how to deal constructively with emotions in negotiation -- both your own and the other person's. It provides numerous examples from both business and family life, making the techniques relevant and meaningful to anyone who negotiates -- or who assists others in negotiating -- to produce real-world results.

And there's nothing touchy-feely about that.

Myth or fact: Are attorneys the best divorce mediators?

2007-11-15T16:01:00.000-05:00

While checking my daily Google alerts, I came across a press release from the PRWeb Newswire captioned, "Divorce Mediation: Myths & Facts, Internet Radio Talk Show, audience grows more than 221% in first 10 months and receives endorsement by the Association of Attorney-Mediators".

The press release contains the following quote:

For any couple considering divorce, Divorce Mediation: Myths & Facts clarifies the many advantages of mediation over litigation and explains the importance of using a professional attorney-mediator qualified to handle the most challenging issues of divorce.

(Emphasis mine.)

Now wait just a minute, folks. Since when does admission to the bar automatically make someone a better mediator? I had thought we had long ago rejected the notion that a law degree constitutes a prerequisite to mediation practice. The mediator's role is to aid the parties to identify interests, communicate and share information, make informed decisions, and ultimately reach resolution, and not to provide legal advice. As the American Bar Association Section of Dispute Resolution observed in its February 2002 Resolution on Mediation and the Unauthorized Practice of Law (PDF)

Mediation is a process in which an impartial individual assists the parties in reaching a voluntary settlement. Such assistance does not constitute the practice of law. The parties to the mediation are not represented by the mediator.

Implying that the services of so-called "attorney-mediators" are somehow preferable to those of mediators from other professions of origin does an injustice to the many excellent family mediators currently in practice who are not attorneys. This does no favors to the public as well which needs more facts and far fewer myths.

11/16 update: For a powerfully worded essay on why the mediation profession needs to rethink these labels, please read Tammy Lenski's "Let's Change Our Limiting Self-Labeling Practices" posted at Mediate.com.

Marathon edition of Blawg Review a winner

2007-11-15T15:31:00.000-05:00

Runners and running have inspired poetry and literature, art and film.

This week it serves as the inspiration for the magnificently marathon-themed Blawg Review #134, hosted by Eric Turkewitz at New York Personal Injury Law Blog.

Blawg Review is the weekly review of the best in legal blogging hosted each week by a different blogger. Next week's Blawg Review will be a double presentation, hosted by the Rainbow Law Center and Transgender Workplace Diversity in commemoration of Equal Opportunity Day and Transgender Day of Remembrance.

Against All Odds: online game builds awareness of refugees' plight

2007-11-11T08:25:00.000-05:00

Conflict and persecution produce tragedy unimaginable to those of us who reside far from lands where gunfire sounds or where human rights are threatened.

To raise awareness of the plight of the world's refugees -- the thousands who have fled their homes to seek asylum -- the Office of the United Nations High Commissioner for Refugees (UNHCR) has created Against All Odds, an online game that seeks to build understanding of the grim realities that face the 1 out of every 300 people world-wide who are refugees today.

The Against All Odds web site includes a teacher's guide and a fact sheet.

This is of course not the only use of online games to teach social messages. You can read more at the following posts: "War games: digital technology provides medium for educating and influencing" and "USC students develop virtual game to bring real-world attention to Darfur crisis".

Thanks to Thinking Ethics for the link.

11 November 2007

2007-11-11T08:19:00.000-05:00

How to turn a simple misunderstanding into all-out war: a mediator's advice

2007-11-11T06:21:00.000-05:00

If public opinion is anything to go by, conflict resolution is for sissies. If that's the case, then maybe it's time to give the public what it really wants: advice on how to escalate conflict.

I therefore offer 5 steps guaranteed to transform any molehill into a mountain:

1. Ignore facts. Disregard or suppress all evidence that undermines your position. In fact, facts can be trouble -- they might raise doubt among your supporters, or, even worse, persuade them or even you that your opponent just might have a point. Take precautions by surrounding yourself with servile bootlickers who will tell you only what you want to hear.

2. Make stuff up. If you can't find facts to support your position, just invent some. Rumor and innuendo are your friends. Remember, appeals to emotion, with no basis in reason, work best.

3. Make assumptions -- lots of them. This is important. Assume first that you're right and they're wrong. Assume you need no further information (see Step #1 above). In addition, assume you know what they're thinking. Attribute malicious motives to your opponent especially if there is no evidence to support that assumption. It's fun to make them have to prove a negative.

4. Exaggerate the harm. Draw false analogie s -- the more improbable and exaggerated the better. Even if the issue concerns something minor (and admittedly most interpersonal problems are), compare your opponents to Nazis and the impact of their actions on you to the Holocaust. Accuracy isn't important here -- conveying your sense of injustice and wounded pride is the effect you're going for.

5. Get personal. Attack your opponent's character or physical appearance, not his or her arguments. Seek out every opportunity to impugn their credibility, their intelligence, their grasp of facts, their patriotism, or all four for extra bonus points. If possible, insult their parents, spouses, children, or pets, along with their social status, religion, and dietary habits.

These proven methods get results with family, co-workers, neighbors, bloggers, political opponents, or anyone you can't stand. Try them today and you'll be "getting to no" in no time!