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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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?

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

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

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

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?

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

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

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

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

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 analogies -- 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!

Taking care of business: tips and resources for the mediator

For many mediators in private practice, it's not delivering services that poses a challenge. It's managing the business end of things that can be tricky. Here are some links that offer tips that may help:

For general, all-around ideas and support on running a home office, since many solo practitioners do, visit Home Office Warrior, where you can find among other things a Home Office Warrior Blog Carnival, with a list of resources for anyone who works from home, and a look at the "Cell Phone v. Landline" debate for those struggling with selecting a phone service that keeps them connected best with clients.

For those deciding whether to launch a business from home, Dumb Little Man lays out a plan for those who want to work successfully from home.

Although April 15 seems far away, it's never too early to organize your records for tax time. Web Worker Daily has ideas on "Tracking Business Expenses", with a link to our friend the IRS for more information. (Hint: save those receipts.)

Mediation Mensch points out the marketing lesson for mediators in a recent BusinessWeek article, "Education-Based Marketing Sells".

Mediator Tech has advice on expressing end-of-year appreciation to clients and referrers in a way that will make your thanks stand out from the rest.

Finally, for those of you seeking to keep costs down (or just in need of a good laugh), you may want to consider Word Perhect, a free online word processor. (A hat tip to Slaw.)

(Photo credit: Herman Brinkman.)

International Dispute Negotiation: new podcast with a global perspective added to World Directory of ADR Blogs

No sooner had the virtual ink dried on my post about a new ADR health care blog than I received a delightful message about a new dispute resolution podcast -- this one with a distinctly international flavor.

International Dispute Negotiation, presented by the International Institute for Conflict Prevention & Resolution (CPR), explores ways professionals from different countries and backgrounds approach dispute resolution. The podcast is intended to help listeners understand the risks of disputes and shed insight on optimal ways of accepting, mitigating, and managing those risks in the real world, whether through mediation, arbitration, or litigation that arises far from home.

International Dispute Negotiation is hosted by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas. Michael is based at his company's headquarters in Florence, Italy, and is a long-time member of the CPR Institute and its European Advisory Committee.

Michael tells me that the podcasts are mainly recorded when he's on the road in different countries, the editing is done in Florence, and the feed is through CPR's website in New York.

This podcast is the latest addition to the World Directory of ADR Blogs, which tracks and catalogues blogs covering dispute resolution and negotiation. If you publish or know of a blog that should be added to the World Directory, please let me know. It's a commercial-free site, and there is no cost to be listed. The Directory has information on submitting your blog and some simple submission guidelines.

Congratulations, Michael, and best wishes on the launch of this superb audioblog.

New health care ADR blog launches

Earlier this week Vickie Pynchon at Settle It Now Negotiation Blog heralded the arrival of a new ADR blog with a special focus: health care.

The Healthcare Neutral ADR Blog is the creation of attorney and neutral Richard J. Webb, who brings more than 25 years of experience in the health care field to the mediation table -- and to his blog's subscribers. Richard has this to say about both the business he founded and the unique focus of his brand-new blog:

Healthcare Neutral, LLC provides alternative dispute resolution (or "ADR") services exclusively for the healthcare industry. Richard J. Webb established this firm to address a growing, unmet need in the healthcare field for efficient and effective alternatives to the traditional litigation process. In this blogsite, you will learn about ADR, and how ADR can be used within the healthcare industry. You also will be introduced to useful links and topical discussions to help you better utilize ADR in your healthcare business.

I'd like to welcome Richard to the growing community of dispute resolution bloggers. Congratulations on what promises to be a great addition to the ADR blogosphere.

Mediation link round-up | November 7, 2007

This week's round-up of links and articles for mediators includes:

Jonathan Reitman, one of the New England mediation community's most beloved and respected figures, asks, "Is there mediation fatigue?" as he considers what happens to a mediator's ability to be compassionate when mediators are exposed on a regular basis to traumatic stories told by their clients. This is required reading for any mediator whose work routinely exposes him or her to suffering.

At MediationTools.com you'll find "Impasse is a Fallacy", an article by dispute resolution professional Lee Jay Berman with strategies for mediators to avoid stalemates and jump-start stalled negotiations.

Before I refer readers to online resources or tools, they must first meet a few criteria. It's got to be stuff that's readily available on the web (which usually means no registration or subscription required and preferably is either free or really, really cheap). I'm making an exception today for the Engaging Conflicts electronic newsletter (which is free but does require you to sign up with an email address to receive). Produced by Gini Nelson, this outstanding newsletter regularly features interviews with extraordinary individuals in the dispute resolution field. The most recent edition introduced newsletter subscribers to Emmy Irobi, a conflict resolution specialist now living in Poland, who once served as a child soldier in Biafra and has first-hand experience of the human tragedy that conflict and violence give rise to. Although I know that many readers want to reduce the influx of email, this is one newsletter that consistently delivers great content with information relevant to any dispute resolution professional.

In the "you've got to be kidding me" category is a story of an Illinois teenager punished with two detentions by her public elementary school for -- get this -- hugging two classmates. (For full appreciation of just how dumb this disciplinary action is, watch this interview with the girl and her parents.) (Thanks to QuizLaw for the link. A caution to those of you with delicate sensibilities -- QuizLaw in its post uses language that would land it a week's worth of detentions, so careful as you click.)

In case you hadn't heard, Tammy Lenski of Mediator Tech is offering for download free copies of the first chapter of her soon-to-be-released book, Making Mediation Your Day Job. Tammy is known for her wise advice, generously dispensed to readers of her blog.

At the Chronicle of Higher Education, read about one university administrator's growing appreciation for the role of conflict resolution in addressing institutional disputes in "When Private Animosities Distort Professional Judgment".

Finally, I close with a titillatingly captioned mediation-related news story: "Mediation ordered for topless bar owner, landlord". Some mediators get all the fun cases.

Blawg Review #133 is up at Chicago IP Litigation Blog

R. David Donoghue hosts Blawg Review #133 at Chicago IP Litigation Blog. (Blawg Review, for you newcomers, is the weekly review of the best in legal blogging hosted each week by a different law blogger.)

Next week's host is Eric Turkewitz who publishes the New York Personal Injury Law Blog. He's invited legal bloggers to send along their submissions for consideration. And if personal injury law doesn't get your pulse racing, no fear, since it won't be Eric's theme for this edition of Blawg Review. In fact, "racing" may indeed be the operative word, if the hints Eric has dropped are anything to go by.

Another cool optical illusion

If you liked the right brain/left brain optical illusion I shared with readers last month, then you'll enjoy this one from the Brain Waves blog: "A Scary Illusion: Mr. Angry and Ms. Calm" which depicts two faces which switch positions with each other, depending upon how close you are to your computer screen as you're viewing them.

A reminder that things always look different depending on how we're looking at them.

(Thanks to Stephanie West Allen for the tip.)

Time for a change: Is mediation ready for reform?

While legal futurist Richard Susskind contemplates the future of the legal profession in an online debate over excerpts from his new book, The End of Lawyers?, two leaders in the alternative dispute resolution field take a hard look at the direction of mediation and think it's time for change.

Guerrilla negotiator Robert Benjamin offers both tribute and lament to the field of mediation in an essay honoring Mediate.com co-founder Jim Melamed, recent recipient of the ACR John Haynes Distinguished Mediator Award:

Now, as mediation has become institutionalized, too many of us seem content to merely send out brochures to referral sources or sign up for panels and wait for cases to be sent to our door. Too often we work as agents of the establishment and not as independent, innovative professionals.

The acceptance and legitimizing of mediation by courts and other organizations may be the best thing that has happened to mediation practice -- and perhaps also the worst. Haynes often warned that without very careful monitoring, mediation would become just another cog in the institutional machinery. He knew, as does Melamed, that unless mediators appreciate the necessity of being independent and effective practitioners, not beholden or reliant on anyone but the parties for their professional survival, the field may be in jeopardy.

Meanwhile, ADR expert James Alfini, president and dean of the South Texas College of Law, recently made the case that the mediation system in Texas needs reform, pointing to problems that other U.S. states are no stranger to. The big problem? Too many lawyers serving as mediators, according to an article this week in the Southeast Texas Record:

For "big stakes" cases, like civil litigations coming out of district courts, lawyers make up about 95 percent of the mediators, Alfini said. In small claims and family law disputes, the number is about 50 percent.

The law professor said that when lawyers become mediators, it can reduce the role of the actual disputing parties, as negotiations often take place among the lawyer-mediator and the counsel for the parties, not the parties themselves.

"This mutes the parties and returns it to a lawyer-centric, not party-centric system," Alfini said.

When lawyer-mediators take on an evaluative role - offering opinions on settlement options - the framework is narrowed and it invites attorney dominance to the process. By suggesting an amount or specific option for settlement, studies have shown that in the end the parties are less satisfied with the outcome of the mediation, feeling that the mediator was somehow partial to one of the sides.

Alfini said on the decline is the joint session in which the two parties and the neutral mediator sit down together at the conference table. Taking its place is a form of "shuttle diplomacy" - one party or its counsel in one room, the other party in another room and the mediator going back and forth between the two.

"This sacrifices effective justice for efficient deal brokering," he said.

Gone is the opportunity for the parties to tell their side of the story directly to the opposing party, Alfini said. Instead of give and take between the parties, which can lead to a settlement agreeable to both, the parties now rely on the lawyer-mediator to tell the story for them.

New Zealand mediator Geoff Sharp asks his American readers for help in making sense of Benjamin's criticisms of the state of the mediation field here in the U.S. In my view the problem lies not in a lack of innovation or entrepreneurship. But I do think that Benjamin is right that mediation's complicitness in the functioning of the institutional machinery yields the kind of failings that Dean Alfini points to.

And I continue to ask, as I have here before, does ADR further justice or does it thwart it? There is too much evidence to suggest that it often, however inadvertently, performs the latter and not for the former.

Maybe it's time for us to shake up the establishment. Mediators, what do you think? Is Robert Benjamin the Richard Susskind of our field? Or is he just lobbing bombs for the pleasure of seeing them explode?

Jim Melamed receives John Haynes Distinguished Mediator Award from ACR

Congratulations to Jim Melamed, influential mediation pioneer and co-founder of Mediate.com, who received the 2007 John Haynes Distinguished Mediator Award from the Association for Conflict Resolution at ACR's recent 2007 Conference in Phoenix, Arizona.

Jim, I can't think of anyone more deserving of such an honor. Thanks for your contributions to our field -- and your support of the ADR blogging community.

Mediators, so you think you're neutral? Bias hard to detect in ourselves, study shows

For mediators, impartiality is our stock-in-trade. The integrity and fairness of the process depend upon our ability to conduct ourselves as "neutrals", a term we often use to describe the role we serve.

Much ink, both real and virtual, has been spilled in exploring the meaning and significance of impartiality, together with its implications for mediation practice and the extent to which it defines the mediator's role and limits the possible interventions a mediator may deploy. (Consider, for example, this article that asks "Impartiality v. Substantive Neutrality: Is the Mediator Authorized to Provide Legal Advice?") In fact, googling together the words "mediator" and "impartiality" yields 617,000 hits, signaling that this is a topic of interest for both mediators and consumers of their services.

It's a preoccupation that of course I share. If you do as well, then consider the following articles on bias.

From The Situationist: "I'm Objective, You're Biased", which looks at "bias blind spots"--the extent to which many of us readily spot bias in others while remaining blind to our own.

And from ScientificAmerican.com,"Not-so-deliberate: The decisive power of what you don't know you know", which looks at the ways in which "even seemingly rational, straightforward, conscious decisions about arbitrary matters can easily be biased by inputs coming in below our radar of awareness."

If humans marry robots in 50 years, will divorce mediators be ready for the inevitable break-ups?

This one seemed appropriate for Halloween, which happens to be today.

Cognitive Daily recently asked readers, "Will humans marry robots in 50 years?"

Given the fact that people (or rather their avatars) are hooking up and even getting married in virtual worlds (sometimes to the hurt and disappointment of real-world spouses), this may not be too far-fetched a question to ask.

Trick or treat: Halloween links from Online Guide to Mediation

Halloween has always been one of my favorite holidays. It provides a great excuse to buy chocolate -- by the bag in fact. Plus no hours spent slaving over a hot stove, no need to shop for gifts (or wait in endless lines to return any), and no family feuds to mediate. What's not to like?

It's the one holiday that I unfailingly observe here at Online Guide to Mediation. So, in keeping with tradition, here are some Halloween-related links for your reading pleasure:

Start with my posts for Halloween 2005 and 2006, "Ghost of a chance: three ways mediators can celebrate Halloween" and "High spirits: legal issues can arise on sale of haunted houses".

Bone up on "Witchcraft and the Law" with this bibliography from the LSU Law Library.

Play "Halloween Party", a board game involving "crafty negotiation" and bluffing.

Or, get philosophical with "The Story of The Devil and Daniel Webster as a Post–modern Allegory to Individualism in Negotiation". (Requires a subscription to download in PDF but cunning Googlers can access an HTML version of the article.)

Just be sure to save some 3 Musketeers bars for me.

(Photo credit: Nicolas Raymond.)

Home Office Lawyer hosts Blawg Review #132

Kansas-based lawyer Grant Griffiths asks, "A Mac. A blog. A home office. What more does a lawyer need?"

You can count on him to show you all the reasons why at Home Office Lawyer, a blog with lots of great advice on "Keeping Your Earnings, Your Clients...Your Sanity". (There's plenty of good stuff for mediators, too, who run their businesses from their home--explore his categories, which cover everything from marketing to practice management.)

Grant is also the host of this week's Blawg Review #132, , with a special focus on solo practitioners and lawyers working in a home office. Blawg Review of course is the weekly review of the best in legal blogging.

Don't miss last week's edition of Blawg Review, hosted by David Maister, a forward-thinking business consultant and innovator, as well as publisher of the blog Passion, People and Principles.

And please show your support for Blawg Review by submitting your posts for next week's edition. On deck for hosting duties is the Chicago IP Litigation Blog.

Blawg Review #130

Welcome to Blawg Review #130 -- the Northern Hemisphere edition! This is Part 2 of a globe-trotting edition of Blawg Review, the weekly review of legal blogging hosted each week by a different law blog.

This week's Blawg Review has two hosts, both mediators, and one for each hemisphere. My co-host, Geoff Sharp, in Wellington, New Zealand, is covering the Southern Hemisphere in his own edition of Blawg Review. And I'm covering the other half of the globe from Boston.

Blawg Review #130 - The Southern Hemisphere Edition went live at 12:01 a.m. Wellington time -- 17 hours before this edition was published. As Geoff points out, New Zealand is among the first places in the world that greet the new day.

It seems fitting that this double edition of Blawg Review began with my co-host in the Southern Hemisphere. After all, traditional globes and world maps reflect a Eurocentric view of earth's geography and of sources of geopolitical power and economic influence. North America and Europe are typically depicted on top. Why not the reverse?

So, before plunging into this edition of Blawg Review, consider this upside down map that invites you to see the world anew.

A brief word about how this presentation of Blawg Review is organized. I'll begin with posts relating to International Conflict Resolution Day, celebrated this Thursday, October 18. Then I'll take a look at environmental issues -- after all, this is Blog Action Day which encourages bloggers to tackle issues relating to the environment. Then I'll wrap up with "the best of the rest" -- a week's worth of noteworthy posts from legal bloggers.

Incidentally, this is by no means the first time that mediators have hosted Blawg Review. Past mediator hosts have included:

• Me, Blawg Review #43 and #94


• David Giacalone, f/k/a, Blawg Review #52


• Justin Patten, Human Law Mediation, #78


• Arnie Herz, Legal Sanity, Blawg Review #108


• Stephanie West Allen, Idealawg, Blawg Review #114


• David Harlow, Health Blawg, Blawg Review #129

And now, let's get started.

1. Conflict Resolution Day: Mediation and Dispute Resolution Related Posts

International Conflict Resolution Day is observed each year on the third Thursday of October. In recognition of this celebration, here are links to posts relating to mediation, negotiation, and dispute resolution or which are penned by mediators, both current and former.

Starting off in my own backyard, on Thursday, October 18, from noon to 2 p.m. ET, Robert Ambrogi will be hosting a panel on Online Dispute Resolution for the Massachusetts Bar Association. Having heard Bob, a vastly knowledgeable and engaging speaker, present on numerous occasions, I can assure you that this will be an event worth attending if you're lucky enough to be in the neighborhood.

Speaking of online dispute resolution, another event held this week is ODR Cyberweek 2007, a free online conference with real-time events, asynchronous discussions, and web-based demonstrations of ODR tools planned. These events include "Taking Peacemaking Public", a panel discussion organized by blogger and mediator Gini Nelson, held on Friday, October 19, 20.00 GMT, in which Victoria Pynchon and I will be among those participating. And on Wednesday, October 17, 19.00 GMT, Geoff Sharp will present an encore presentation of "40 ADR Sites in 40 Minutes" with a little help from some of his blogging friends -- including Robert Ambrogi, Gini Nelson, and me. All program information is available at the Cyberweek 2007 web site.

Phyllis Pollack at PGP Mediation Blog warns of the risks of overconfidence of parties preparing to negotiate at the mediation table in "Facing Danger Calmly".

Kristina Haymes declares death to the billable hour for mediators.

Stephanie West Allen, the brilliant mind behind Idealawg and the recently launched Brains on Purpose, lets her imagination roam in "Video teleconferencing, online dispute resolution, and even teleporting".

Attorney-mediator Arnie Herz, who inspires lawyers to transform their every day practice to achieve greater satisfaction and find meaning in their work at Legal Sanity, defines law firm leadership and thinks about what it takes to lead and inspire your workforce.

At the National Arbitration Forum Blog, "A Former Litigator Speaks Up" about the benefits of mediation for litigants.

Chris Annunziata, who blogs at CKA Mediation & Arbitration, has harsh words for the appropriation of the word "mediation" by a debt collection agency for the name of its business.

From the Tax Prof Blog, Jim Freund's Advice for Erwin Chemerinsky: Teach Students How To Resolve Disputes.

Here's a reminder from TechCrunch that "Being Stupid and Litigious Is No Way to Go Through Life". Amen to that.

Colin Rule , director of online dispute resolution at eBay and Paypal, links to news that disputes are growing in virtual worlds.

Indisputably, a new ADR blog, addresses fraud in mediated settlement agreements. And Diana Skaggs of Divorce Law Journal looks at "What family lawyers are really doing when they negotiate".

Negotiating by Mikkel Gudsøe, a Danish blog in both English and Danish, is sharing, in installments, a thesis on Third Party Intervention in International Conflicts.

Speaking of globe-trotting, two blogging attorney-mediators, Victoria Pynchon (U.S.) of Negotiation Law Blog and Justin Patten (England) of Human Law Mediation, were spotted having lunch together in London.

With respect to the environment, a topic I'm about to take up in just a few paragraphs, Tammy Lenski, who publishes Mediator Tech, has tips for Blog Action Day on greening your ADR practice. This is not the first time that Tammy has given this issue her attention: last spring she gave her readers a roundup of "green" ADR resources, and also pointed to contributions to the greening of ADR by mediators Victoria Pynchon, Dina Beach Lynch, and Geoff Sharp. (Geoff's own links on going green may not produce the desired effect to reduce greenhouse gases; Exhibit 1 is the recipe for "Mediator's Special Green Chili Enchilada".)

To wrap up my look at mediation blogs, I'd like to introduce you to my ongoing project, the World Directory of ADR Blogs, where I've been tracking and cataloging blogs that relate to conflict resolution, mediation, and innovations in the practice of law. Although many of the blogs listed there are in English, an increasing number reflect the diversity of the world and are published in a variety of languages. I am limited in discovering more by my own lack of fluency in the world's languages (knowing Russian, French, Latin, and a smattering of German, Spanish, and Attic Greek, not to mention some Yiddish curse words, will only get you so far) and am dependent upon my polyglot informers to stay abreast of the emergence of new mediation blogs.

I'd like, though, to introduce you to a few of these non-English-language blogs (in keeping with the scope of this edition of Blawg Review #130, those located in the Northern Hemisphere): Medieria from Romania; Associação de Mediadores de Conflitos and Conflito: uma oportunidade!, from Portugal; todomediacion.com and Blog Solomediacion.com, both from Spain; and a host of German mediation blogs, includingADR-Blog, DiaBlog, Institute Sikor Blog, Konfliktblog, and Master of Mediation. You can find them all, listed by country, with many others, at the World Directory of ADR Blogs web site.


2. Blog Action Day and the Environment

Today is Blog Action Day which intends to invite global reflection on a topic that is growing, both literally and figuratively, hotter: the environment. Bloggers are encouraged to show their support by blogging about the environment or by donating their day's advertising earnings to an environmental charity. Over 14,000 blogs have already signed on.

Not everyone, however, has warm, fuzzy feelings for a web event like this: Peter Black of Freedom to Differ points to a commenter who is unimpressed with Blog Action Day and who concludes his comments with some colorful horticultural advice for bloggers. (I've heard of cherry trees and Japanese maple trees, but I have to admit, the species the commenter suggests planting is definitely not available at my local garden center.) (However, no fan of memes myself, I had a similar though more mediator-like reaction to "One Day Blog Silence".)

Whether you support Blog Action Day or not, what follows are some environmentally-themed posts:

Charon QC in England reports on the greening of the Law Society (the representative body for solicitors in England and Wales) and its plans to go carbon neutral. International man of mystery Dan Hull ponders "Climate change, nuclear power and the NRC". (Dan, incidentally, maintains a comprehensive list at What About Clients of law blogs throughout the world -- right there on the home page.)

A blogger who discusses both conflict resolution and the environment in a single post would be remiss not to mention one of the big news stories of the week -- the decision of the Nobel Committee to award the 2007 Nobel Peace prize to two recipients: Al Gore and the Intergovernmental Panel on on Climate Change.

The blogosphere has responded with its usual alacrity and wit. Kottke.org notes gleefully that Gore won for what is essentially a PowerPoint presentation. TaxProf Blog considers the "inconvenient truth" of the tax implications of winning the Nobel Peace Prize. Stephen Holzer at Environmental Legal Blogs has another "inconvenient truth for Al Gore - Judge orders corrections to climate-change film". And the Environmental Law Prof Blog considers "Reactions to the Nobel Prize Award".

Finally, Boing Boing reports that SimCity, the digital city-building game, will be adding global warming as a variable in its next installment.



3. The Best of the Rest in Legal Blogging

Matt Homann, who used to be a lawyer and mediator before he got into the breakthrough ideas business, offers "15 Thoughts for Law Students: A Mini-Manifesto". My favorite is #14:

There are plenty of things you don't know, and even more things you'll never know. Get used to it. Use your ignorance to your benefit. The most significant advantage you possess over those who've come before you is that you don't believe what they do.

Also showing support for law students is Evan Schaeffer's Legal Underground, posting Weekly Law School Roundup #91. And to round out this discussion of law students, Law Students Building a Better Legal Profession have gotten some media coverage from the American Bar Association in their efforts to produce cultural change in big law firms.

Make mine a double: IPKat, which covers intellectual property news and developments from a UK and European perspective, discusses measures that are being taken to ensure the integrity of scotch whiskey in "Whisky: counterfeiters scotched".

Ruthie's Law (another British law blog) asks a compelling question: "Who advises the advisors, who counsels the counsellors" when lawyers need support services.

The Atlantic Review, which comments on the United States and transatlantic relations and is edited by two German Fulbright Alumni, Jörg Wolf (Berlin) and Sonja Bonin (Shanghai), has some thoughts about America's cultural superiority, following a recent Pew Global Attitudes Survey (in PDF) .

Most people want to try to stay out of court -- which accounts in part for mediation's popularity. Sometimes though going to court may be a good thing. Eric Turkewitz reports that Public Citizen wants to get sued. Really. As part of an ongoing trend in which companies seek to curb public online commentary about their services or products, it seems that some lawyer sent Public Citizen a cease-and-desist letter on behalf of his client, which included the warning not to publish the letter or risk a copyright violation. In a defiant move, Public Citizen has taken the fight to the web and published the letter (in pdf).

Brett Trout at Blawg IT has advice on keeping your blog out of court. And he links to the playlist of the century following the verdict in the RIAA downloads trial.

Last week the Supreme Court heard oral arguments in Stoneridge Investment Partners v. Scientific-Atlanta, considered by many to be the most important securities law case before the Supreme Court in years. Analysis comes from SCOTUSBlog; and Stephen Bainbridge who considers decisionmaking heuristics and asks, "Why the SCOTUS Gets Securities Cases Wrong so Often" seeking the answer in 2002 article, " How do Judges Maximize? (The Same Way Everybody Else Does—Boundedly): Rules of Thumb in Securities Fraud Opinions". Meanwhile, Jonathan Adler offers a roundup.

Speaking of decisionmaking, Law Dawg Blawg's featured book of the week is Judges and Their Audiences: A Perspective on Judicial Behavior, which looks at the degree to which audiences influence a judge's choices.

In "Tell me lies, tell me sweet little lies", Supreme Dicta reports on the recent decision of the Washington Supreme Court to uphold a politician's First Amendment right to lie to voters, while Eugene Volokh and Frank Pasquale offer their own views on the decision.

The Bush administration is pushing for Congress to grant retroactive immunity under the Foreign Intelligence Surveillance Act for telecommunications companies that cooperated with the administration in its domestic surveillance programs. Jack Balkin discusses the reasons why in "It's the Secrecy, Stupid: Why the FISA Immunity Debate is Important".

In USA PATRIOT Act Violates Fourth Amendment, Emphemerallaw discusses the significance of the Mayfield v. US decision, in which a federal district judge has ruled that two provisions of the USA Patriot Act are unconstitutional because they allow surveillance without probable cause, a victory (although perhaps a short-lived one depending upon what happens on appeal) for privacy advocates.

While we're on the subject of privacy, the Canadian Privacy Law Blog (which I discovered thanks to a blog I read regularly, Thoughts from a Management Lawyer, published by Canadian attorney Michael Fitzgibbon) reports that the Society for Worldwide Interbank Financial Telecommunication ("SWIFT") is moving its data centre to Switzerland to avoid long arm of the US law.

And Simple Justice laments the "End of Redress: State Secrets Doctrine" on the heels of the Supreme Court's failure to muster sufficient votes to grant review in the Khaled el-Masri case in which an innocent German citizen was renditioned, detained, and tortured as the result of Bush administration anti-terrorism efforts.

In the aftermath of the Romney-Giuliani smackdown, Mad Kane ponders the GOP's revolving policy on lawyers.

Ilya Somin writing for the Volokh Conspiracy entertains a healthy skepticism about a new study which concludes that academia is more politically moderate than is widely assumed. Somin suggests that the self-reported politics of those "moderates" is moderate only as compared to other academics, which are more left-wing than the population generally

Legal Scoop - Law Students' Perspectives on the Law discusses how social networking is spreading into the legal profession and includes a graphic description of how tasers work (in case you were wondering).

Professor Howard Wasserman at Sports Law Blog takes aim at a pet peeve: the confusion that the media generate in their coverage of trials over the difference between direct and circumstantial evidence in "It's all a bunch of circumstantial evidence" -- Actually, no it isn't". This is a post that should be required reading for every journalist who covers the judicial system.

Jillian Weiss at Transgender Workplace Diversity takes the gloves off and convincingly weighs in on both the Employment Non-Discrimination Act, a bill that would protect Americans from workplace discrimination based on sexual orientation and gender identity, together with another version of the bill which would strike gender identity from the proposed law's reach, in the eloquently argued "SPLENDA: Representative Frank and Professor Carpenter and Lewis Carroll".

BeldarBlog explains "What the public needs to know in forming an opinion on whether U.S. District Judge Sam Kent ought to be impeached". (You've got to love a blog that is willing to tell the world right in the masthead that it's the "online journal of a crusty, longwinded trial attorney".)

According to the Drug and Device Law Blog, drug companies' sales representatives have increasingly been named as defendants in product liability cases in an effort by plaintiffs' counsel to defeat diversity jurisdiction. In "Promoting Diversity" Mark Herrmann and Jim Beck propose one way that drug companies could organize their sales practices to reduce this type of gamesmanship.

Professor Doug Berman at Sentencing Law and Policy has issued readers a challenge: "help me "come off the fence" concerning the death penalty!"

Adam Smith Esq. tells us why we should pay attention to networks at the office in "Social Networks and Partners' Desks".

In a look at poorly drafted statutory language (and confusion at the news desk), Language Log asks, "Who is stupider, an Arkansas legislator or an AP reporter?" in "Not Pregnant - a case of overnegation?"

Deliberations delivers a message from Erin -- a blogger who reminds the bar loud and clear that if you strike every young person with an internet presence off a jury, you'll have nobody left in the jury pool -- and also reflects on the secrets that jurors never tell.

In "Highlights from the 2007 Aspen Health Forum" SharpBrains makes the case that legal professionals need to follow health and science trends closely, now that a growing number of companies are taking over health and wellness issues.

With so many law professors blogging these days, it's not surprise that tenure comes up for discussion. Peter Lattman as the Wall Street Journal Law Blog asks, "Should Law Schools Abolish Tenure?" Brian Tamanaha at Balkinization says, "The Tenure Issue: How You View it Depends Upon Where You Sit". And Lawrence Solum at Legal Theory Blog rounds up advice offered new UC-Irvine law school dean Erwin Chemerinsky at the TaxProf Blog.

Speaking of professors, Professor James Maule gives us Reason #2939 I Want to Teach Property Law: a recent legal dispute over a human leg found stored in a barbecue smoker. (Hey, I volunteer to mediate that one!)

Although this blog post comes a few weeks late for "Talk Like a Pirate Day", SoxFirst discusses the shortcomings of Sarbanes-Oxley Act (a U.S. law enacted to restore public confidence in business reporting and accounting practices) as effective deterrent in "Buried treasure, corporate pirates and Sarbanes-Oxley".

For those of you who prefer your patent law dark-roasted, the Patent Baristas brew "Patent Wars Episode II: GSK Strikes Back".

AdamsDrafting has thoughtful advice on "how not to incorporate virtual documents" when it comes to drafting agreements. While we're on the subject of contracts, Dave Hoffman (not to be confused with collaborative lawyer and mediator David Hoffman) has suggestions on "Drafting a Group Blog Operating Agreement".

Following a recall of tainted meat, George Lenard feels sick to his stomach -- it's not something he ate, it's his reaction to the lawyers who claimed credit for driving out of business a meat packer which had operated largely without incident for 67 years, as George explains in "Attorneys Brag of Shutting Down Company". And, since the subject of food poisoning has come up, check out "Nasty Nosh Niche" from the Canadian legal research weblog, Slaw, which starts with thoughts on a niche law firm that specializes in food poisoning cases, and ends with a link to the unappetizingly titled Slate.com article, "Eat crap: why Americans should ingest more excrement", which provides, ahem, food for thought by arguing that one of civilization's greatest triumphs -- indoor plumbing -- may have weakened our immune systems.

It's one of the strangest cases to come along since a Nebraska state senator sued God. Lowering the Bar reports on a "Surprising Court Loss for Woman Who Challenged State's Authority to Require Driver's License". The woman and her partner are evidently members of a group called the "Freedom Flag Fellowship," which claim that "the federal government has no valid authority but is instead a foreign corporation that has invaded America."

Lawsagna, published by lawyer and linguist Anastasia Pryanikova, has posted Step 13 in an ongoing series, "21 Steps to Becoming a Better Learner". Her advice includes the reminder to "Develop a curious mind."

Finally, do you have a favorite law blog? Blawg Review's diligent editor tells you where to go to nominate your choice for the category of "Best Law Blog" in the 2007 Weblog Awards. Or, instead, you can join the meme that the editor of Blawg Review began and name your top ten law blogs.

I'd like to end by a link to one more mediator, now retired -- our profession's loss but blogging's gain. Among those named as a Blawg Review best is the blog f/k/a, written by David Giacalone, who has been described by Carolyn Elefant as "the conscience of the blogosphere". Bob Ambrogi said it best: "Some bloggers shoot from the hip, but never David Giacalone -- his posts are always thoughtful and, like the poet he is, he finds universal truths in daily events." Indeed. For evidence of David's craft, read "internment camp haikuist remembered" or "EQ quickie: email and emoticons".

Next week's Blawg Review host is David Maister, so please be sure to submit your best posts for his consideration.

Which brings us to the end of this edition of Blawg Review. My gratitude to those of you who have taken the time to visit and to those of you who contributed. And my thanks to Blawg Review's anonymous editor (who, I was relieved to learn, is not me) for trusting Blawg Review to my co-host and me, to the Blawg Review sherpas who guided our steps along the way, and especially to my co-host and friend Geoff Sharp, who reminds me that there is always a place for humor in this world.


Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Southern hemisphere edition of Blawg Review now up at Mediator Blah Blah!

Geoff Sharp and I are covering the globe by sharing co-hosting duties for a special Northern and Southern Hemisphere presentation of Blawg Review, the weekly review of the best in legal blogging. Geoff's edition of Blawg Review #130 went live at 12:01 a.m., Monday, October 15, Wellington time, so Blawg Review fans elsewhere in the world can get an early jump on their Blawg Review enjoyment.

These twin editions of Blawg Review (hosted not just by one but two mediators) honor International Conflict Resolution Day and Blog Action Day, in which bloggers around the world unite to raise global awareness of an issue that concerns all of planet earth's inhabitants--the environment. And, as usual, we'll be presenting the best of the week in legal blogging as well.

Visit Blawg Review #130, the Southern Hemisphere edition. (Nice work, Geoff!)

[Update: You can view the Northern Hemisphere Edition of Blawg Review #130 now.]

Optical illusion shows whether your right brain or left brain is dominant

Here's a cool optical illusion that purportedly determines whether your left brain or right brain is dominant.

For more optical illusion fun, visit this post from the Online Guide to Mediation archives, "When seeing isn't believing: optical illusions offer insight into conflict and perception".

(Thanks to Kottke.org.)

Mediation's identity crisis: it's time to regulate the profession

Mediation has been struggling with an identity crisis for years now. It's been confused with meditation. It's often mistaken for arbitration. And more recently an Illinois governor characterized a state-funded gang mediation program as "pork" to be trimmed from an overbloated budget. Wrong, wrong, wrong.

In the grand scheme of things, these are harmless errors that should prod professional mediators to do a better job at marketing and packaging their services and educating the public about mediation's advantages. Of far greater concern though to the field is the questionable use by a debt collection agency of the words "legal mediation" as part of the name of its business, reported today by Chris Annunziata at CKA Mediation & Arbitration Blog.

Chris observes, "As a libertarian, I am loathe to advocate governmental intervention, but shouldn't the bar in these states regulate the use of the term 'legal' and 'mediation'?"

While I agree with Chris that state bars should monitor the use of the word "legal" by businesses to describe their services, I am not sure that it's any business of the bar to regulate the use of the word "mediation" -- not when so many professional mediators are not attorneys and there is no requirement that mediators in private practice must also be members of the bar. Moreover, while it is true that a very few state courts do certify certain classes of mediators in court-connected programs, no U.S. state currently possesses the power to license mediators or to regulate the private practice of mediation.

This instance illustrates how urgent the need is for the mediation field here in the U.S. to move now to develop a formal system to qualify mediators and regulate the profession. The future of the field depends upon it; public confidence demands it. We can no longer argue that regulation will thwart innovation in a still developing field, that it is unnecessary or will be too costly, that it will discourage otherwise qualified individuals from entering the field, or that mediation itself resists definition.

We should act now, before others define mediation for us. It is, at last, time.

New dispute resolution firm OptionBridge LLC launches; based in New England, aims for the globe

I'm pleased to share with you news about a new dispute resolution business I've launched with four colleagues. Here's the official announcement that went out today:

Building on more than 75 combined years of experience in the field, five dispute resolution professionals - Moshe Cohen, Melinda Gehris, Ericka Gray, Bill Logue, and Diane Levin - have formally joined forces as OptionBridge LLC.

OptionBridge is a one-stop, full-service conflict management firm helping companies, organizations, and individuals prevent, manage, and recover from conflict. The conflict management experts at OptionBridge provide a broad range of services, including conflict audit and assessment, neutral investigation, dispute resolution system design, mediation, arbitration, training, consulting, coaching and more, in order to minimize the likelihood of destructive conflict, intervene swiftly and effectively when it does occur, and help restore relationships and build healthier organizations in its aftermath. OptionBridge also provides training, coaching, and consulting services to ADR professionals to help them build their businesses and take their skills to the next level.

From its headquarters in Concord, Hew Hampshire, and satellite offices in Connecticut and Massachusetts OptionBridge delivers services throughout the region, as well as nationally, internationally, and on the web. In addition to working together, the members of OptionBridge continue to maintain their own independent practices.

Please visit OptionBridge on the web at www.optionbridge.com or call us at 800-987-9078.

Antisocial networking sites link you to your enemies

As an antidote to the superficiality of social networking sites, a new trend has emerged: the rise of antisocial utilities that lets users connect to the people they can't stand. Based on the premise that "you keep your friends close but your enemies closer", sites like Enemybook and Snubster allow users to name their nemeses and list their offenses.

You can read more about it in this article from today's Boston Globe, "New apps put the hate in online networking."

Collaborative law: attorneys who mediate and negotiate, not litigate

As family lawyer Diana Skaggs recently alerted readers, the nation's leading divorce lawyers are finding more cases settled before trial. This trend in favor of negotiation over litigation in divorce may in part be attributable to the growing popularity of alternatives such as mediation and collaborative law which emphasize mutual gains, joint problem solving, and better communication between disputants.

In "Lawyers who mediate, not litigate: Collaborative law doesn't have to be an oxymoron", a column in today's Christian Science Monitor, Boston-based collaborative lawyer David Hoffman traces the roots of collaborative law, describes its benefits, and assesses its risks. Its benefits are two-fold: for the clients themselves, who can achieve creative resolutions, as well as for the legal profession itself, since Hoffman sees collaborative law as a way to regain ebbing public confidence. Hoffman does so in the context of the ethics opinion recently issued by the American Bar Association upholding the use of collaborative law agreements by lawyers--an opinion which put to rest concerns among collaborative lawyers raised by a controversial advisory opinion by the Colorado Bar Association which declared collaborative law unethical per se earlier this year.

Although collaborative law -- and other nonadversarial processes like mediation -- may not be for everyone, many divorcing couples are electing these as a way to avoid the costs -- monetary and otherwise -- that litigation can produce.

Apologies can improve the health of hospital-patient relations

All Things Considered, a National Public Radio news magazine, recently aired a program on the benefits for both patients and the medical profession when hospitals find better ways to respond to medical errors and unsatisfactory patient outcomes in "Practice of Hospital Apologies Is Gaining Ground".

What stands out is the reaction of one patient interviewed for the program whose doctors failed to make an early cancer diagnosis. Instead of denying responsibility for the error, the hospital's attorney arranged a meeting with the patient, the patient's husband and her attorney, and the two oncologists who treated her. The patient had this to say about the experience:

My husband and I both left that meeting feeling like a million bucks. I was heard that night. That's all I really wanted. I wanted them to know that this was not right, what happened to me.

The hospital's attorney, also interviewed for the story, emphasized how important these conversations are for everyone involved. Looking back on a case early in his career in which a jury returned a defense verdict for his client, he remembered,

After the jury was dismissed, the lady who sued my client leaned across the podium and said, 'If you had only told me everything I heard in this courtroom, I would never have sued you in the first place.' That really left a mark on me, and for 20 years I wondered why we never talk to each other.

The benefits of these programs are numerous. Not only does everyone save money on legal costs, and not only do both sides learn important information from each other during the course of the conversation, but this willingness to be open encourages medical staff to come forward to report errors, which means greater safety for patients.

Listen to the story here--it's well worth the six minutes it takes to hear those involved describe just how invaluable talking to each other can be.

(Photo credit: Wolf Friedmann.)

Health care lawyer, mediator, and arbitrator hosts Columbus Day Blawg Review

Blawg Review #129 is hosted this week by David Harlow, a health care lawyer and consultant who also serves as a neutral in health care mediation and arbitration and assists clients in developing and implementing alternative dispute resolution processes. David, who is based in Newton, Massachusetts (practically right around the corner from Marblehead, Massachusetts, where I sit typing this), publishes HealthBlawg.

Blawg Review is the weekly review of the best in law blogging, hosted each week by a different legal blogger. Blawg Review of course isn't just for lawyers--there are some good reasons why mediators should read it, too. (Especially next week when New Zealand mediator Geoff Sharp and I are hosting Blawg Review #130--Blawg Review's first double-hemisphere edition which will honor Conflict Resolution Day. The sun never sets on the Blawg Review empire...)

(Photo credit: Iwan Beijes.)