Wednesday, January 31, 2007

Is your negotiating style leaving value on the table?

Leaving value on the negotiation tableThere's an exercise I use to get people to think about negotiating styles.

You mark a line down the middle of the floor with masking tape. Then you tell participants to find a partner and to stand facing each other on opposite sides of the line. You instruct them that they are about to play a game and that the object of the game is to get your partner to come over to your side of the line. You tell them that if they can do that, they'll win. And not only will they win, but you will pay the winner $1000. You then give them 60 seconds to play.

What happens next is predictable.

First of all, across all groups, people typically rely upon three approaches:

  1. Persuasion.

  2. Trickery.

  3. Force.
Persuasion: Most people will attempt to persuade their partner to come over to their side of the line. They try to offer compelling arguments why they deserve the money. Sometimes, too, one partner will persuade the other to postpone gratification and come over to the other side on the promise that if the game is played again it will be their turn to collect the $1000.

Trickery: In some cases, people will promise to split the money while secretly intending to renege. An unscrupulous few will trick their partners, reaching out to shake their hand as a sign of good faith and then suddenly pull their unsuspecting partner across the line.

Force: Some players will try to use intimidation or brute force to drag their partner across the masking tape line.

This isn't surprising. In real-world negotiations, people rely on these same approaches. Persuasion is very common--efforts to convince the other person that you’re right and they’re wrong, or to hand over something that we want. Trickery and force or intimidation remain perennial favorites--for some people, negotiation is a form of warfare. Unless there's blood on the sand, the negotiation's a failure.

These approaches often come up short. With persuasion, you often get nowhere--it becomes an endless round of "Yes, but". With trickery, you might get the monetary results you wanted, but you've also destroyed trust. Not only will that person never do business with you again, they'll tell others to stay away from you, too. And the problem with treating negotiations like a battle is, after all the time and energy you invest in the negotiation, you've made an enemy instead of someone who might be willing to do business with you again.

Back to the game I was telling you about.

When you stop the game and ask who won, the results are interesting. Typically, there are three outcomes:

In order of most frequently occurring to least frequent:

1) Neither partner wins anything, since both failed to get the other to step across the line (approach used: persuasion, trickery).

2) The partners split the $1000 if one agrees to cross the line to the other side (persuasion, trickery).

3) One partner wins, the other partner receives nothing (trickery, force).

There is, however, a rarely used fourth approach which yields an equally rare outcome. This approach enables both partners in a pair to each get $1000. A win-win, in fact.

Can you figure out how to do that? I'll give you a moment to ponder it. (You mediators sitting there in the back of the room, no fair giving away the answer.)

Okay, time's up.

Here’s the answer:

All the parties have to do is switch sides.

That's it.

The problem though is that people don’t usually think of doing that. When you tell them that the winner gets $1000, people figure in each pair only one can emerge a winner. It doesn’t occur to them that both could win. There’s nothing in the directions that forbids it. The directions are clear: If you get your partner to come to your side of the line, you win $1000. That’s it. But people hear the word "win" and they're already thinking about the other side of that coin: lose. It's what puts the "zero" in zero sum game.

What happens is, people compete. That competitiveness forecloses any other results but lose/lose, win/lose or a 50/50 split. People waste time figuring out how to divide the pie instead of inventing ways to expand it.

In your negotiations, how much value are you leaving on the table? Is your desire to keep that competitive edge blinding you to more profitable outcomes?

Think about it.

Tuesday, January 30, 2007

Online Guide to Mediation honored as Featured Blog at Mediate.com

Mediate.com Featured BlogsMediate.com, the world's most visited conflict resolution web site, has added something new: a list of Featured Blogs. Designated by Mediate.com as "the leading Blogs in the fields of mediation and dispute resolution", the blogs featured this month are:


Geoff Sharp's Mediator Blah...Blah... and Mediation vBlog Project
Gini Nelson's Engaging Conflicts
and this blog, Online Guide to Mediation

Thanks to Jim Melamed, co-founder of Mediate.com, for this distinct honor.

Monday, January 29, 2007

Advice for blogging mediators and lawyers: be a joiner (and join Blawg Review)

Last Friday I wrapped up the final day of teaching at a week-long mediation training. This was a basic training--the first training that these individuals would have in preparation for becoming a mediator. Typically at the end of a training, the last thing we cover is "What Now"--the next steps for them to take.

Our parting advice is simple: be a joiner.

"Joining" means to take part in the life of a community. Joining means to show up for professional development workshops, conferences, and roundtables. Joining means getting to know people who have something to teach you. Joining means passing that teaching on to someone else. Joining means to join professional associations, not just for the usual member benefits--the reduced fees at association events, listings on web sites or in print directories, or discounts on malpractice insurance--but the really important stuff: the networking, the schmoozing, the connecting. Joining is the exchange of knowledge, the debate of ideas, the joy of discovery. Joining is about contributing to the conversation, in big ways and small.

Today marked another last day: it was the final day of a four-week teleseminar series on blogging for alternative dispute resolution professionals that I taught with my friend Tammy Lenski.

In thinking about that it occurs to me that I can pass along to bloggers the same advice that I gave those new mediators last week.

Be a joiner.

And what's the best way a blogger can join in?

Introduce yourself to other bloggers. Link to them. Be helpful. Post constructive comments. Welcome new bloggers. Find a way to contribute.

And if you're a blogger who is fascinated by the law, you can do no better than to join in the community that is Blawg Review, the weekly review of the best in law blogging.

So, how can you join Blawg Review? Read it regularly, link to it, submit articles to it. You can even host it.

To see it for yourself, visit this week's edition of Blawg Review, hosted with flair by Kevin Thompson at Cyberlaw Central, which delivers conspiracy theory, subversion, and world domination, along with plenty of world-class blogging.

You can view the complete list of past hosts and upcoming ones at Blawg Review.

(Mediators mark your calendars: next week's edition of Blawg Review will be hosted right here at Online Guide to Mediation.)

Saturday, January 27, 2007

Bridging the divide between lawyers and mediators, Part 2: what mediators can do for lawyers

My series on "Bridging the divide between lawyers and mediators" continues with a look at the advantages that mediation offers attorneys.

*****

Alternative dispute resolution (ADR) is here to stay. Courts refer litigants to it or may even require it, more businesses include it in contractual agreements, and savvy clients demand it.

Mediation in particular has grown in popularity as a time-saving, cost-effective way to resolve disputes in mutually satisfying ways and get people back to work, back to business, or back to their lives.

Regardless of the stage of a dispute--whether it’s already in litigation or not there yet--mediation can make a difference. But what specifically does mediation offer the lawyer? Quite a lot, as it turns out:

1. A framework to negotiate.

Back in the day when I was in law school, we were taught trial skills. This was deeply ironic, since it quickly became apparent when I began work as a lawyer that the real focus of my practice wouldn't be trial at all. The real focus was negotiation--bargaining with the other side to reach settlement. The problem though is that most of us don't have any real training in negotiation, and consequently we don't always do it very well. We treat negotiation as a take-no-prisoners death match, or we come to the table expecting to give a little, get a little, and both walk away equally unhappy. The first of these approaches is notorious for damaging trust and destroying good will. And both these approaches leave value on the table and stifle creativity in designing settlement options.

Here's where a mediator can help. The best mediators are negotiation experts who understand how to turn the parties into more effective negotiators. Mediation is not about holding hands and singing "Kumbaya". It's about getting your interests met and maximizing your gain--yours and the other side's. If you don't want to leave value on the table, if satisfaction counts, hire a mediator who understands negotiation.

2. Focus and structure.

Good mediators are skilled facilitators who run a mediation like an efficient business meeting. They have the ability to cut through the sparring, posturing, and argumentativeness to help parties get down to business. They push parties to develop an agenda, identify key interests, and create a realistic action plan which both can commit to and implement.

3. Reality testing for clients.

One of the challenges attorneys can face is the client with unrealistic expectations about the value of their cases or the likelihood of success at trial. Mediation allows clients a first-hand glimpse into the strengths of the case of the opposing side or gives a preview of how sympathetic a plaintiff will be in court. The mediator brings to the negotiating table skill in reality testing along with the ability to guide parties through risk analysis--which can make settlement seem far more attractive than the alternatives away from the table.

4. Reality testing for the other side.

Mediators of course will be asking the hard questions of all sides in a dispute, not just the one you happen to be on.

5. Overcoming barriers to agreement.

Mediators will be proactive in seeking out and addressing issues that are preventing the parties from reaching resolution. It's part of our job description.

6. Negotiation skills you can use.

There's no reason you can't raid a mediator's toolbox. You can learn to become a more effective negotiator and problem-solver. Take a negotiation training or hire a dispute resolution professional to design an onsite negotiation training for your law firm. Take a mediation training yourself to gain an insider's view of the process and insights you can pass on to your clients to help them--and you--make the most of mediation.

7. Greater satisfaction for your client.

What's not to like about a process that can save your client time and money and enable them to walk away with a solution tailor-made to meet their interests? In addition, in a time when ADR will be increasingly available and not less, being conversant in ADR and negotiation can give you a competitive edge. It's one more benefit you can offer your clients.

And that's a win-win for everyone.

Sunday, January 21, 2007

Mediation certification and credentialing: getting accurate information on becoming a mediator

As a mediator and a trainer of mediators, a lot of announcements for mediation trainings cross my desk. Most recently one came my way that invited registration for a "certification training" for mediators. I've seen many like it over the years.

Most of them sadly have one thing in common: the "certification" that many of these trainings purport to provide is largely meaningless.

As public awareness of mediation’s benefits grows, so, too, does interest in mediation as a career. People naturally want to receive appropriate training and credentialing. Many of them believe that to enter the mediation field, they need to become certified as a mediator. As it turns out, that may or may not be right.

Confused? You’re in good company. And finding accurate information about mediator certification is a lot harder than it should be. I've therefore created this article in an effort to dispel some of the confusion.

1. How are mediators licensed?

At the time of this writing, mediation in the U.S. is an unlicensed profession. Unlike their counterparts in fields such as law, medicine, psychology, architecture, or social work, mediators in private practice are not licensed or regulated by states. In fact, anyone can hold themselves out as a mediator even if they have no training whatsoever.

There are reasons for the lack of licensing or state regulatory oversight. For one thing mediation as a field is relatively new and continues to define itself. Although forms of mediation and conflict resolution have existed for millennia, mediation as a professional service rose to prominence only in the latter half of the 20th century. Its widespread institutionalization in courts, schools, businesses, and governmental agencies, and its broad acceptance by the public are a fairly recent phenomenon.

In addition, credentialing remains a controversial subject among mediators. What makes credentialing a challenge is that mediators disagree among themselves as to what constitutes the practice of mediation. Different models of practice abound, and the differences among these models can be dramatic.

These models include facilitative mediation, an interest-based, problem-solving approach modeled upon the well known classic, Getting to Yes; evaluative mediation, in which the neutral provides an assessment of the strengths and weaknesses of a case and makes predictions regarding each party’s likely success at trial; and transformative mediation, which values the principles of empowerment and recognition--empowerment of parties to make their own decisions and the recognition by each party of the other’s point of view.

2. So does that mean mediation isn't a true profession?

Absolutely not. Do not mistake the lack of professional licensing for a lack of professionalism. During the past several decades the mediation field has produced rigorously tested theories of practice, an impressive body of scholarship, and numerous laws and judicial decisions regarding mediators, mediation, and the protection of confidentiality of mediation communications.

Most importantly, practitioners, educators, scholars, researchers, and others have developed and refined widely accepted standards of best practices, crafted ethical rules for practitioners, and carefully developed guidelines for the training and education of mediators. Specializations have emerged within the field with corresponding practice standards for those specialty areas. And professional associations for mediators abound that promote best practices and actively work to advance the field.

3. If mediators aren't licensed, then how can I qualify to be a mediator?

That depends upon the state you plan to live and practice in. In Massachusetts, to receive the benefit of the protection of a state law that protects the confidentiality of mediation communications, a mediator must have completed at least 30 hours of training and either have four years of professional experience as a mediator, be accountable to a dispute resolution organization which has been in existence for at least three years, or be appointed to mediate by a judicial or governmental body.

For mediators who serve in court-connected mediation programs, state courts may have their own qualification requirements.

For a list of the requirements for each of the 50 states, see "State Mediator Rosters and Qualifications" prepared by the Institute of Government, College of Professional Studies at the University of Arkansas at Little Rock.


4. Okay, so what is mediator certification then?

That depends. Let's take a look at the different contexts in which mediator certification appears.

State and federal certification

Only a very few state courts or state bodies in the U.S. certify certain classes of mediators. These include The New Hampshire Marital Mediator Certification Board; the Supreme Court of Florida, which certifies four different categories of mediators--county court, family, circuit court, and dependency—each of which must meet specific minimum qualifications; South Carolina Board of Arbitrator and Mediator Certification, working in conjunction with the South Carolina Supreme Court’s Commission on Dispute Resolution; the Judicial Council of Virginia; and North Carolina Court System’s Dispute Resolution Commission which certifies family financial mediators.

In addition, at the federal level, the U.S. Department of the Navy certifies mediators who have met the necessary requirements.

Certification by professional associations for mediators

Some professional associations for mediators have established certification for certain classes of its members who have met qualifications specified by the association, which may include training, experience, and educational requirements. In this case certification is private and is not connected with any state authority or provided under state oversight.

Certification by private training companies

Some private training companies offer mediator certification training which will enable participants to meet the training requirements established by a particular state court or body for certification as a mediator. Such trainings will most likely be clearly identified as such.

However, some private training companies offer what they describe as "certification training" for mediators, which simply means that participants will receive a certificate of attendance upon completion of the training and not that the training will satisfy the certification requirements of a particular state court or agency. In my opinion--one which is widely shared by many respected trainers and educators in the ADR field--this practice can be misleading, whatever the intention of the trainers. For the layperson unfamiliar with the field, it creates a likelihood of confusion. In this case "certification training" can easily raise the expectation that the training confers formal accreditation or a professionally recognized credential, when in fact it does nothing of the kind.

If you plan to register for a mediation training which advertises itself as “certification training”, be sure to find out specifically what certification means in this case and what it will qualify you for.

Online mediator certification training

Online certification training for mediators warrants a special caveat. I have said this before and it is worth repeating: online mediation training which purports to prepare students for face-to-face mediation is not worth your time and money. As I said in an earlier post,

If you're thinking about getting training in mediation, please be aware that great mediation training is highly experiential and interactive, reinforcing the notions of collaboration and teamwork. Acquisition of learning is achieved through interpersonal interaction--through class discussions, multi-party exercises, and role-playing. It's a very much hands-on experience to get students in touch with the deeply interpersonal dynamics of mediation itself.

I would therefore caution you about mediation trainings offered as correspondence or distance learning courses which students complete online and at their own pace with no interaction with other students. A mediation correspondence course which affords no opportunity for face-to-face and group interaction with coaches and fellow students is simply no substitute for the real thing.

5. Conclusion

As you can see, mediation certification and credentialing is a complex topic. It pays for you to be thorough in doing your homework. For up-to-date information in your state on mediation training, certification, or mediator qualifications, please contact your local chapter of the Association for Conflict Resolution. To learn more about mediation training and careers, please explore the following posts:

"How to become a mediator: five frequently asked questions about training and careers in mediation."

"Getting it straight: understanding mediator certification."

"What to look for in a basic mediation training."
Best of luck to you as you pursue a career in mediation.

Saturday, January 20, 2007

Bridging the divide between lawyers and mediators, Part 1: valuing the rule of law

I begin my series on "Bridging the divide between lawyers and mediators" in contemplation of the rule of law--what has been described as "the bulwark of our democracy". Law after all stands at the center of our political and civic lives. It is the backbone of our political systems, provides certainty to our commercial transactions, reduces arbitrariness, offers recourse to the wronged, and ensures equality and individual liberties.

For any of us to appreciate the work that lawyers do, we need to begin by appreciating the law itself.

* * * * *

Earlier this week the U.S. observed Martin Luther King Day, when virtually the whole nation pays homage to key elements of the rule of law--the importance of justice and the value of civil liberties in a democratic society--or at least pays lip service to those things. The problem though with holidays like this is that for one day the words "liberty" and "justice" are on everyone's lips. But, like the words "peace" and "good will" at Christmas, on the following day they seem conveniently forgotten.

Here in post-9/11 America, the rule of law has really taken it on the chin.

Political leaders have threatened or taken steps to strip courts of jurisdiction to hear certain kinds of cases. Most notoriously, last year federal courts lost the authority to hear challenges by foreign nationals to challenge their detentions as terror suspects.

As anger at "activist judges" spreads, death threats against judges for controversial decisions are on the rise. Attacks on judicial independence are increasingly common--consider for example South Dakota's Amendment E which would have stripped judges of their immunity to allow lawsuits against them by dissatisfied litigants. Meanwhile, just about everyone these days hates lawyers.

That's the state of the rule of law in the 21st century.

For just a moment, let's wind back the clock to a time almost half a century earlier when the rule of law actually earned its own special day of recognition: Law Day, May 1, a day proclaimed by President Dwight Eisenhower in 1958 to recognize and honor the rule of law.

I invite you to read the text of the 1958 radio broadcast by then American Bar Association president Charles Rhyne announcing the enactment of Law Day. At the time Rhyne spoke these words, Communism was the political threat du jour. Therefore as you read the text of the broadcast replace the words "Communism" and "Communist" with their 21st century analogues. And as you do so, try very hard if you can to imagine the current White House administration, members of Congress, and state and local politicians throughout the U.S. affirming Rhyne’s words. Be sure to watch out for the following language:
In America law reigns supreme. No man in our Country is above law, not even the President of the United States...

The rule of law has been the bulwark of our democracy. It has afforded protection to the weak, the oppressed, the minorities, the unpopular; it has made it possible to achieve responsiveness of the government to the will of people. It stands as the very antithesis of Communism and dictatorship...

The lawyer is the technician in man’s relationship to man. There exists a worldwide challenge to our profession to develop law to replace weapons before the dreadful holocaust of nuclear war overtake our people...

In our country ignorance of the value of law in international relations and what it could do for the people of the world is appalling. A major purpose of "Law Day-U.S.A." is therefore to demonstrate to our people that the need for law in the world community is the greatest gap in the growing structure of civilization...
Say it loud: I'm a lawyer and I'm proud.

Coming up next in this series: "What mediators can do for lawyers".

Tuesday, January 16, 2007

Advanced ADR Marketing: January 30 workshop takes dispute resolution professionals beyond the static web site

NE-ACROn January 30, 2007, from 2:00 – 4:30 p.m., you’re all invited to a special event hosted by the Association for Conflict Resolution's New England Chapter: "Advanced ADR Marketing: Online Strategies for Building Business". This workshop will show dispute resolution professionals how to move beyond the static web site to leverage the power of the internet to build thriving practices.

Moderated by Tammy Lenski, author of the blogs I Can't Say That and Mediation Marketing from Mediator Tech, this workshop will explore three different web-based marketing tools, blogs, podcasts, and e-newsletters. Panelists include Robert Ambrogi, who co-hosts the legal affairs talk show and podcast Coast to Coast and who blogs at his eponymous Lawsites, Christine Pinney, who has been creating and publishing monthly e-newsletters and marketing materials for her clients for almost a decade, and me.

This program will be held at Suffolk University Law School in downtown Boston (Suffolk Law students are admitted for free with a valid ID).

To register or for more information, visit the NE-ACR web site.

See you there!

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Mediator among law school deans signing letter condemning Pentagon call for lawyer boycott

Law deans condemn call for boycott of lawyersThe Boston Globe reports today that the deans of the major law schools in Massachusetts joined some 100 law school deans as signatories to a letter protesting the controversial call by a Pentagon official to boycott law firms representing Guantanamo detainees.

Among the law deans joining the protest is Robert H. Smith, dean of Suffolk University Law School, my alma mater, and a respected mediator.

The text of the letter is as follows:
We, the law deans undersigned below, are appalled by the January 11, 2007 statement of Deputy Assistant Secretary of Defense Charles "Cully" Stimson, criticizing law firms for their pro bono representation of suspected terrorist detainees and encouraging corporate executives to force these law firms to choose between their pro bono and paying clients.

As law deans and professors, we find Secretary Stimson’s statement to be contrary to basic tenets of American law. We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation. Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers. At this moment in time, when our courts have endorsed the right of the Guantanamo detainees to be heard in courts of law, it is critical that qualified lawyers provide effective representation to these individuals. By doing so, these lawyers protect not only the rights of the detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.

We urge the Administration promptly and unequivocally to repudiate Secretary Stimson's remarks.
Let freedom ring.

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Martin Luther King Day observed at special edition of Blawg Review

MLKAs Nobel peace prize winner Dr. Martin Luther King once observed,

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.
These powerful words, echoing down the years, are summoned up for visitors to the 91st edition of Blawg Review, hosted by the blog Public Defender Stuff. This special edition of Blawg Review serves as a tribute to the life and life-work of Dr. King, invoking the principles of liberty and justice and honoring those who fight for them.

This is one edition of Blawg Review that no mediator should miss.

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Friday, January 12, 2007

Bridging the divide between lawyers and mediators

Bridging the lawyer-mediator divideAs an attorney and as a mediator I straddle two worlds. People have often asked me if reconciling these two professional selves is difficult, expecting that the gravitational pull that each exerts must draw me in opposite directions. It does not.

Although one field goes so far as to frame itself as an alternative to the other, there is in fact much overlap and common ground between these two seemingly different fields.

There is much that each can learn from the other. Knowledge of one provides a deeper appreciation for the traditions and qualities of the other.

The problem though is that all too often attorneys and mediators view each other as rivals, not partners, in dispute resolution. There's plenty of mutual distrust and even open hostility to go around. What's interesting is that because I've got credentials in both worlds, each side trusts me enough to tell me what they think about the other.

Among the concerns that attorneys have about mediators are:


  • Mediators will take clients and business away from lawyers.

  • Mediators who aren’t lawyers aren’t competent to mediate disputes involving legal issues.

  • Mediators who are lawyers want to play judge and make lawyers look bad in front of their clients.

  • Mediators are a waste of time and money--all they want to do is get everyone to get in touch with their feelings, hold hands, and sing kumbaya.

  • Mediation is the handmaiden of tort reform.
Among the concerns that mediators have about attorneys are:


  • Lawyers want to put mediators--especially mediators who aren’t lawyers--out of business.

  • All lawyers care about is billable hours instead of helping clients achieve the best outcome possible in the client’s interest, not the lawyer’s.

  • Because lawyers are adversarial, lawyers will make any bad dispute worse, destroying relationships and dissipating client assets.

  • Lawyers lack vision: the only outcomes they can see are binary--win/lose, black/white, good/bad.

  • Litigation is an (un)necessary evil.
Beginning next week I will begin a series of articles examining these concerns. My goal is threefold: to help each field better understand and appreciate the other, challenge and debunk some urban legends, and to rehabilitate lawyers and mediators in each other's eyes.

I propose, in effect, to mediate between mediation and the law.

* * * * *
Update: As the series unfolds, the links to each article will be posted below.

Part 1: Valuing the rule of law
Part 2: What mediators can do for lawyers
Part 3: What lawyers can do for mediators

Online Guide to Mediation celebrates two years of blogging

Online Guide to Mediation celebrates two yearsThis month I'm marking several milestones:

I began 2007 with 450 blog posts under my belt.

Last Friday I celebrated a birthday.

And today marks my second anniversary as a blogger.

Apart from being a good excuse to throw yourself a party, milestones traditionally serve as occasion for looking back and looking ahead.

In looking back over two years of blogging, I'm struck by one thing: how many amazing people I’ve met (and I mean "met" in both the real-world and digital senses of the word) because of it.

You know who you are. Thanks to every one of you--readers, fellow bloggers, friends, colleagues, who found your way to me, either through this blog or the World Directory of ADR Blogs project.

Although I hesitate to do this, since I hate the thought that I might overlook someone, there are folks I'd like to thank by name.

I'll start with the folks that I actually know in the real world and have had the pleasure to work with: Tammy Lenski, Dina Lynch, Colin Rule, and Bob Ambrogi. When Geoff Sharp was here in Boston for a conference last April, I got to meet him, too, and his wife Susan over a memorable dinner (great food, excellent wine, and non-stop laughing). When I was in England in December, Justin Patten warmly welcomed me and my husband to London, where we joined him for a tour of the Law Society, the regulatory and representative body for solicitors in England and Wales. We asked questions about each other's legal systems and talked shop about ADR over lunch at Leith's, the Law Society's restaurant and bar.

Thanks to all of them for being such good friends.

I owe special acknowledgment to the friends I have not yet met in person--to folks like Stephanie West Allen, Victoria Pynchon, David Giacalone, George Lenard, Christoph Stroyer, Perry Itkin, Bill Warters, Lisiane Lindenmeyer Kalil, and of course the inimitable Dan Hull.

My gratitude as well to Monica Bay, Ian Best, Blawg Review's anonymous editor, Michael Fitzgibbon, Diana Skaggs, and Ethan Katsh, as well as to the bloggers at the National Arbitration Forum, Joel Schoenmeyer, Tim Stanley, Josh Weiss, and Robert Williamson.

Bloggers of course need to keep it real by hanging out with people who don't blog. I need to thank folks like that, too, for their support with this blog as well as with the World Directory of ADR Blogs. In no particular order, they include: Moshe Cohen, Ericka Gray, Steve Hicks, Tim Linnehan, Roni Lipton, John Levin, Bill Logue, Melinda Gehris, Ashok Panikkar, and J.J. Johnston and the National Institute for Advanced Conflict Resolution.

If I accidentally left you off the list, let me know, and I'll be sure to add you. Don't be shy. I want to give credit where credit is due.

Cheers.

Wednesday, January 10, 2007

Dead right: new web service allows users to have last word from beyond the grave

DeathswitchFor just $19.95 a year, Deathswitch, a new web service promising to "bridge mortality", allows users to communicate important information after death with surviving family members, colleagues, and others.

Among the uses Deathswitch advertises that it is suitable for are expressing final wishes, disclosing "unspeakable secrets", and, not surprisingly, having the "last word in an argument".

This proves yet again the extremes to which people will go to avoid difficult conversations. We mediators evidently need to improve our marketing strategy.

Five things you didn't know about me

Darn. I guess I can't avoid it. I've been tagged by not just one but two bloggers, Justin Patten and Colin Rule, to participate in the current game of memetag. (A memetag is the blogosphere's equivalent of a chain letter. It requires an act on the recipient's part--in this case to recount five things you don’t know about me--and then the recipient must "tag" others to pass it along. Fortunately nothing bad happens if you break the chain.)

Okay, here goes.

1. You probably know that I was a litigator before I became a mediator. What you probably don’t know, however, is that I really, really, really liked being a litigator. I was highly competitive, liked winning, and loved the performance art theatre that was the courtroom. Not only did I have fun writing briefs, but I especially adored oral argument. And you know what? I still miss it. Shhhh. Just don’t tell the other mediators.

2. When my husband Steve and I got married, we ran away to Las Vegas to do it. And no, we were not married by a parachuting Elvis Presley impersonator.

3. I'm a great cook who has entered numerous recipe contests and won cash prizes. My husband's got the cholesterol level to prove it.

4. There's a commonly held assumption (and, like most assumptions, wrong) that all American mediators are registered Democrats. I'm not. I'm an independent. (However, I'm still a card-carrying member of the ACLU.)

5. On a dare, I once walked across a 20-foot-long bed of live coals.

I tag Geoff Sharp, Victoria Pynchon, Perry Itkin, Stephanie West Allen, and Christoph Stroyer (just to send this game into the German-speaking part of the blogosphere). No pressure, folks!

World Directory of ADR Blogs adds two more to its catalog

Two new blogs at World Directory of ADR BlogsIt's nice to start the new year with two additions to the World Directory of ADR Blogs. They are:

Resolución Electrónica de Disputas. This Spanish language weblog is published by an internationally known authority on negotiation and online dispute resolution, Alberto Elisavetsky, based in Buenos Aires, Argentina. From the web site: "La idea de comezar a desarrollar este Blog, es a efectos que podamos generar un proyecto Latinoamericano de (RED) Resolucion Electronica de Disputas, que tenga en cuenta nuestras lenguas, y nuestras particularidades regionales.Por ello invito a todos los amigos Latinoamericanos, a participar de este foro, a efectos de intercambiar experiencias y/u opinions."

Mediators Without Borders. "Working for a Sustainable Peace" is the motto of the newly launched blog of Mediators Without Borders, a non-profit provider of pro bono conflict resolution capacity building within post-conflict communities. Victoria Pynchon, an attorney and mediator who has proven time and again her commitment to the field of alternative dispute resolution, and publisher of several blogs including the deservedly well respected Settle It Now Negotiation Blog, serves as editor.

This brings the current head count at the World Directory to 94.

If you wish to add your blog or someone else's to the World Directory of ADR Blogs, 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 submission guidelines.

Change of address for some ADR bloggers

Change of addressThe arrival of 2007 finds several alternative dispute resolution bloggers boasting brand-new web addresses. If you haven't done so already, please make sure that you've updated your RSS feeds, subscription information or bookmarks for the following blogs:

Victoria Pynchon's Settle It Now Negotiation Blog (now at http://www.negotiationlawblog.com/)

Gini Nelson's Engaging Conflicts (now at http://engagingconflicts.com/)

Christoph Stroyer's Master of Mediation (now at http://masterofmediation.wordpress.com/)

Colin Rule's eponymous blog (now at http://cyberlaw.stanford.edu/blog/colin-rule)

Best wishes to these four bloggers on their new locations.

Saturday, January 06, 2007

Complaints Choirs: complaining brings people together in harmony

Complaints Choir brings harmony out of conflictLong lines at the bank. Broken parking meters. Expanding prices, shrinking paychecks. Loud cell phone conversations in the movie theatre. No toilet paper in public restrooms.

There's nothing like the small, daily indignities of human existence that can make comrades of us all.

At least that’s the premise behind Complaints Choirs Worldwide. The inspiration of two Finnish artists who recognized that kvetching is a universal phenomenon, Complaints Choirs Worldwide was created to provide people with a musical outlet for complaining and to bring them together to sing about it.

You can listen to the Helsinki Complaints Choir online (with English subtitles).

Work/life balance in the new year: putting your thumb on the life side of the scales

Finding work/life balanceTremendous lip service is paid to the importance of achieving life/work balance. Plenty of ink both real and virtual gets spilled for this topic. (Go ahead and Google the phrase "work/life balance" to see what I mean.)

Yet despite our best intentions, it's easy to make excuses for the late nights and endless hours. We push ourselves to work harder and longer. We tell ourselves that next time we'll make it up to our spouses, our kids, our family, our friends. Yet too often there's never time for "next time".

And then something happens. Which is what happened for me. Note that I did not say "happened to me". The stuff that happened, happened to others.

But it got my attention.

During December bad news came about two people I love a lot. My brother seriously injured his back, so severely that paralysis remains a real fear. We are all on hold, no one more than he is, as he waits for test results, for doctors to issue their prognoses, for therapies to work. Meanwhile a beloved friend was diagnosed with a terrifying kind of cancer--the kind that demands radical surgery and aggressive treatment and that most of us pray we'll never have to face. Her plans for a new career, reinventing herself in her early 60’s, have been suspended for the time being. But, as one of her other friends observed, "Cancer picked the wrong woman to mess with this time", a truth that gives us all hope.

So, as the new year begins, I hope you'll take time to remember how important are the people we share our lives with. Don't wait for something to happen to them or to you.

Resolve to make time for the people you love. And don't just resolve to do it, do it. Now.

Resolve not to fight less but to fight better and fairer.

And resolve to tell people you love that you love them. You can't say that stuff enough.

A woman's place is in the driver's seat: thoughts on negotiation and gender in the car dealer's showroom

Negotiation and gender in the car dealershipDuring my first year of blogging I wrote one of my favorite posts: "More than we bargained for: does gender matter in negotiation?"

A meditation on gender, negotiation, and social behavior, this post began with a description of a Kia commercial depicting a husband and wife shopping for a new car, portraying the wife as bystander while the husband negotiates.

As it turns out, truth bears a striking resemblance to fiction. Here's my story:

During the worst time possible--i.e., just one day before I was leaving for a long trip to the U.K.--my car expired. It did so in the most spectacular way possible--ignition, clutch, radiator, and exhaust system imploded simultaneously.

So the waning days of 2006 found me in the overflow lots of local car dealers hunting for end-of-year specials.

(For those of you who have not bought a car lately, recall that the negotiation begins the moment a member of the so-called "sales team" approaches you as you stand there peering hungrily into the window of a 2007 Mazda RX-8. This is the moment when the sales person attempts to gain your good will, earn your trust, and induce you to buy.)

On the first day my husband tagged along to keep me company. Even though I took the lead in the discussions and we both made it clear that the car was for me, sales staff (every one of them men) addressed most of their remarks and questions to my husband as if I'd been invisible. (I can only surmise that they they must have missed the memo that coverture is no longer the law in the U.S.)

I also noticed that they would point out certain features to him but not to me (the engine or the location of the spare tire and jack) or point out features to me but not to him (lighted vanity mirrors, cup holders in the backseat). This happened even when I made it clear that I wasn't interested in backseat cup holders, it was engine performance, road handling, and fuel efficiency that I cared about. (Surely I can't be the only woman who wants to see what's under the hood.) This happened consistently from one dealership to the next.

The next day I decided to continue my search without my husband in tow. I figured it would be a lot less aggravating, and I was tired of being invisible.

The first day had been for looking only. I decided to devote this next day to test driving.

For me, manual transmission is a must. I've driven a stick since I got my license and enjoy the control it gives me over the car and the road. At every dealership I visited but one, car salesmen were amazed that a woman could actually handle a stick shift. At the conclusion of test drives, some even behaved as if they’d just seen a trained monkey perform a particularly good trick. Needless to say, this did not win any bonus points with me. One of them even commented, "Good girl!" (Lucky for him he did not try to pat me on the head. I would have beaned him with a cup holder.)

What was so deeply discouraging about this experience is how universally and openly held these beliefs about women’s competence seemed to be (at least at car dealerships in southern New England). Stereotypes die hard, even in the 21st century.

The behavior I observed was overt and obvious. It was impossible to miss or mistake.

Which led me to wonder about the extent of its covert manifestations.

If this is the tip of the iceberg that is visible, what lies below the water line?

If this is what it's like at car dealerships, what's happening in board rooms, on factory floors, in classrooms, in town halls and state houses--even, perish the thought, at mediation tables?

To what extent might any of us be complicit in perpetuating these archaic notions? What stereotypes do each of us still cling to?

America may have elected its first woman Speaker of the House, but it looks like it still can't imagine a woman in the driver's seat.