Monday, March 26, 2007

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

What's so funny about peace, love and understanding?Respected dispute resolution scholar and pioneer Carrie Menkel-Meadow recently posed an important question for our field in her essay "Why Hasn't the World Gotten to Yes? An Appreciation and Some Reflections" (downloadable in PDF).

In it Professor Menkel-Meadow pauses to consider the enduring legacy of Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher and William Ury's influential work which laid out a common-sense approach for effective negotiation that stresses satisfaction of interests, mutual gains, joint problem-solving, and the use of objective criteria to create fair deals.

The full title of the book should be noted: "Negotiating Agreement Without Giving In" (emphasis mine). In other words, this book does not stand for weak-willed capitulation. On the contrary. Principled negotiation is designed to prevent the exploitation of one side by the other. It encourages negotiators to keep their eyes wide open--to be trustworthy but not trusting--and prepares them to bargain from a position of strength.

Yet this model for negotiation remains widely misunderstood and even maligned, especially here in the U.S., where we are fond of asserting that "we don't negotiate with terrorists" and the word "collaboration" evokes not teamwork but the Vichy regime.

Consider for example what conservative commentator Michelle Malkin had to say a couple of years ago about peer mediation:
The left-wing Kumbaya crowd is quietly grooming a generation of pushovers in the public schools. At a time of war, when young Americans should be educated about this nation's resilience and steely resolve, educators are indoctrinating students with saccharine-sticky lessons on "non-violent conflict resolution" and "promoting constructive dialogues."
As irrational as these objections may sound to those of us who work in the dispute resolution field, we dismiss them at our peril. They are widely held.

To understand these objections more fully, listen to a story that aired this weekend on National Public Radio, "Peace Proposal Rattles Small Town". It describes the hell that broke loose when a women's club in a small Minnesota city persuaded the city council to pass a resolution endorsing a proposed congressional bill that would create a United States Department of Peace and promote the use of conflict resolution and negotiation. Public condemnation of the city council vote came swiftly, and, in the face of mounting opposition, the city council rescinded the resolution following a heated public hearing.

So why the objections? Quite a few viewed the bill (which many had apparently never bothered to read) as an attack on U.S. sovereignty, believing it would place the United States under the full control of the United Nations. Some condemned the Department of Peace as an instrument of communism. Others claimed that a Department of Peace would signal to our enemies that Americans are weaklings afraid to fight--"wusses" in the word of one citizen interviewed by the NPR reporter.

Peace, in other words, is for sissies.

That is the challenge that our profession faces. Until we can persuade the skeptics that principled negotiation and conflict resolution are smart, tough, strategic choices, we'll never get the world--or at least our neighbors right here at home--to yes.

Fifth International Forum on Online Dispute Resolution to be held April 19-20, 2007 in Liverpool

Fifth International Forum on ODRThe Fifth International Forum on Online Dispute Resolution will be held in Liverpool, England, April 19-20, 2007. According to its web site,

This meeting builds on prior meetings in Geneva (2001 and 2002), held under the auspices of the United Nations Economic Council for Europe (UNECE), in Melbourne (2004) under the auspices of the United Nations Economic and Social Commission for Asia and the Pacific, and in Cairo in 2006 in collaboration with the United Nations Economic and Social Commission for Asia and the Pacific and the Cairo Regional Centre for International Commercial Arbitration. Online dispute resolution is becoming a priority of governments desiring to promote ecommerce, economic growth and technological development. Online dispute resolution is necessary not only to resolve disputes that arise but to build trust in systems and reduce risk for persons and groups interested in investment and participation in online and cross-border activities. The Liverpool ODR Forum aims at providing an overview of the diverse ODR techniques, the prospects of ODR, as well as exploring and analyzing the necessity for developing and promoting ODR.
Graham Ross of TheClaimRoom.com, a chief organizer of this event, tells me that this two-day forum will include significant coverage of the use of technology in mediation.

Keynote speakers are Sir Brian Neill, Kt, PC, QC, former Lord Justice of Appeal and past President of the Civil Mediation Council, and Professor Richard Susskind, IT Advisor to the Lord Chief Justice of England and Wales. Other participants include ODR notables such as Colin Rule, Ethan Katsh, and Sanjana Hattotuwo.

Registration, incidentally, is free. For further information on this Forum, please contact Graham Ross or Ethan Katsh.

New mediation blog brings total to 101 at World Directory of ADR Blogs

World Directory of ADR Blogs101 must be a lucky number for bloggers today.

My friend Diana Skaggs, author of Divorce Law Journal, hosts Blawg Review #101, as I mentioned earlier this morning.

And the World Directory of ADR Blogs added its 101st entry, Schau's Mediation Insights. This blog, launched just last month, is published by Jan Frankel Schau, a mediator in southern California who comes to the practice of mediation following two decades of experience as a litigator. Jan, who serves as President of the Southern California Mediation Association, will use her blog to muse and reflect on the opportunities and challenges of private mediation in the Los Angeles area. Best of luck to Jan in both her mediation practice and in blogging.

If you wish to add your blog or someone else's to the 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 submission guidelines.

Divorce Law Journal hosts a thoroughbred Blawg Review #101

Diana Skaggs hosts Blawg Review #101Diana Skaggs, the author of the excellent Divorce Law Journal, hosts Blawg Review #101. Diana, who lives, works, and blogs in the Bluegrass State, brings horse sense--and her usual smart, creative style--to this Derby-themed edition of Blawg Review, the weekly review of the best in law blogging hosted each week at a different legal blog. (As if that weren't enough incentive, I hear that mint juleps will be served all week.)

Congratulations to Diana on a thoroughbred presentation of Blawg Review.

Saturday, March 24, 2007

Cartoon depicts real-life story of bystander nonintervention

Bystander interventionYou are probably familiar with the phenomenon known as bystander nonintervention. It's a term in psychology which describes the failure of an individual to offer aid in emergencies when other individuals are present. The best known example is undoubtedly the case of Kitty Genovese, who in 1964 was chased by an attacker and stabbed to death on the street in Queens. Despite the fact that a dozen witnesses overheard some of the incident, no one responded to her cries for help.

Why do bystanders fail to intervene in situations like this? Studies suggest a number of reasons for this, including the fact that we take our visual cues from each other. We observe each other to help us ascertain how to behave or respond in a particular situation. If others around us do not behave as if help is required, we may assume that no help is needed and not offer it.

An episode from This American Life, a new television show based on the popular National Public Radio program, depicts a real-life twist on bystander nonintervention.

Through an animated cartoon, this episode explores what happens when a new craze takes hold at an elementary school: fifth and sixth grade kids create make-believe movie cameras out of found materials, which they begin to use to pretend to film events at school. Some even begin acting as TV news journalists "filming" and reporting on "live news stories" unfolding in front of them on the playground. These cameras ultimately transform the children from participants to bystanders, with unfortunate results.

It is possible, incidentally, to counteract the compelling propensity toward bystander nonintervention. Here are some ideas on how to be an active bystander in a workplace setting.

(Thanks to Boing Boing for the link to the video clip.)

Tuesday, March 20, 2007

Mistakes were made: understanding cognitive errors

Cognitive errors in decision-makingYesterday's Boston Globe carried a story captioned "The mistakes doctors make: Errors in thinking too often lead to wrong diagnoses". It described three cognitive errors that doctors make: attribution error, anchoring error, and confirmation bias.

Of course these errors are not only made by physicians but by just about anyone (yes, even mediators) who is attempting to diagnose and treat almost any kind of problem--especially the interpersonal kind.

Attribution errors occur when we attribute behavior or some other quality to a person's character or disposition rather than to situation or environment--in other words, stereotyping. Our assumptions can blind us to the real causes or triggers of behavior.

Anchoring errors occur when we make our final diagnosis based on the direction our original diagnosis steered us in, closing our minds to other possibilities--which means our final diagnosis may be wildly inaccurate.

Confirmation bias, well known to mediators, is the very human tendency to seek out data that supports our assumptions and discount data that contradicts them. (For those of you who teach, a classroom exercise in confirmation bias can be found at the DevPsy.org web site).

Anyone can make mistakes--the hard part is not only owning up to our errors but making ourselves aware of how they occur in the first place.

Sunday, March 18, 2007

Since when is changing your mind a bad thing?

Changing your mind is a good thing"Change your thoughts and you change your world," said Norman Vincent Peale. But he was obviously not reckoning on today's political culture, which seems resistant to change--at least when it comes to minds.

Despite the results of the 2006 midterm elections here in the U.S., American politicians and pundits continue to laud the virtues of "staying the course" as sound strategy for political success--and not just when it comes to the Iraq war, but to all kinds of issues. Consistency, congruity, unswerving loyalty not just to people but chiefly to ideas and causes--these hold high value in American politics and culture.

There is no greater insult in America today than "flip-flopper", a label anyone with political ambitions is eager to avoid. It's as if the act of changing one's mind as the result of reasoned self-reflection is somehow as shameful, as, say, lying about sex with an intern, rather than a mark of maturity and character.

Certainly anyone who changes their views with the prevailing wind as a matter of political expediency deserves our condemnation, as do those who fail to keep their promises, both political and otherwise.

But as a mediator I have to ask, what's so great about consistency anyway? If you're going in the wrong direction, what's the problem with heading in a better one? When exactly did it get to be a bad thing to change your mind?

Maybe it's because mediators see people change their minds all the time. A mediator, nudging disputants toward understanding, may help them walk around a problem, lift it up, turn it over, and examine it from all sides. We witness individuals gather new data, test their assumptions against that data, and reach very different conclusions from the ones they initially arrived with. We see them admit or address mistakes and make necessary course corrections. And watch how these acts open the door to new possibilities and greater gains.

As Charles Kettering once said, "Where there is an open mind there will always be a frontier."

Totally off-topic but fun nonetheless: medieval tech support video

Medieval helpdeskIf you're confounded by 21st century digital technology, don't feel bad. Your ancestors probably had a tough time, too, with their own version of the desktop computer.

See what I mean by watching "Medieval Helpdesk", a clip on YouTube from "Øystein og jeg," a show that appeared on Norwegian Broadcasting (NRK) in 2001.

(Thanks to my brother for this one.)

World Directory of ADR Blogs reaches the 100 mark!

World Directory of ADR Blogs The World Directory of Alternative Dispute Resolution Blogs has just reached a milestone--with the addition of two new blogs today, it now lists 100 blogs.

The two additions are:

Lawlady's Divorce Blog. This blog is published by Stefani Quane, a Seattle, Washington based holistic divorce attorney, who dispenses advice and commentary on collaborative divorce, lawyer marketing, career development, and, according to Stefani, "whatever else strikes me as interesting". Stefani has this to say about her work--words which will resonate with many of my readers:

Over the years, I've learned to merge psychology, economics, business sense, and esoteric arts into a new type of lawyering called "holistic law." I'm not the only new breed of lawyer striving to bring heart and common decency back into the practice of law. We're an emerging force. We go by different names, such as collaborative lawyers, or renaissance attorneys.
Stefani wants to hear from her audience and encourages her readers to get in touch to share their ideas and comments. (I could use your help identifying more renaissance voices like Stefani's, so if you know of any, please let me know.)

Pronoia Mediation. Laura Noah, the author of this recently launched blog, emailed me to tell me about her blog, and sent me the following delightful description: "Laura L. Noah, owner of Noah Mediation Services in Oak Park, Illinois perceives conflict as an opportunity and mediators as the agents of this bizarre but creative potential. Part personal essay, part venting and spiritual exploration, and all about making connections, this blog turns daily experiences into a hotbed of discussion on the important role conflict plays in our lives and the rewards and challenges faced by mediators." Laura is new to blogging, so I invite my fellow ADR bloggers to roll out the red carpet, say hi, and make her welcome.

As always, I depend upon you to let me know of blogs that you think might make a good addition to the World Directory of ADR Blogs project. If you wish to add your blog or someone else's to the 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 submission guidelines.

Marking a milestone: Blawg Review #100

Blawg Review #100Monday came early this week.

Blawg Review, the weekly review of the best in law blogging published each Monday by a different legal blogger, appears a day ahead of schedule in honor of its milestone 100th edition.

This week its anonymous editor, Ed., serves as host with a retrospective of 99 editions of Blawg Review.

Blawg Review is remarkable for many reasons. Not only does it offer links to bleeding edge news and ideas in the legal field--something it consistently achieves week after week under the guidance of a dedicated editor with the support of equally dedicated volunteers--but it also provides readers with a new and unique perspective on the law, refracted through the lens of each week's host. It also provides a way for bloggers to participate in and contribute to the legal community online. It thrives on the spirit of egalitarianism--legal luminaries and ordinary mortals mingle. Status matters little; quality of conversation counts. And readers of Blawg Review benefit from the wide range of voices and viewpoints.

Be sure to visit Blawg Review #100 to experience it for yourself.

(And don't forget that Diana Skaggs of Divorce Law Journal hosts Blawg Review #101 next week. I'm really looking forward to her presentation--knowing the quality of Diana's writing, it should be a good one.)

Friday, March 16, 2007

Six new additions to the World Directory of ADR Blogs

World Directory of ADR Blogs has 6 new additionsThe World Directory of Alternative Dispute Resolution Blogs nears the 100 mark as six new additions this week bring the catalogue's total to 98. These six are:

From the U.S.:

Collaborative Divorce Newsblog. This blog's motto is "Helping people make respectful, civilized, values-based transitions from couple to single". With a focus on collaborative law, it is published by Pauline Tesler, a California-based collaborative family lawyer, trainer, speaker, and writer, who also serves as consultant to collaborative divorce professionals and practice groups worldwide.

Nonviolence.org. A blog that provides news and commentary from a pacifist perspective.

PCR Project Blog - Prevention Conflict Analysis Reconstruction. According to the web site, "[t]he Post-Conflict Reconstruction (PCR) Project develops innovative strategies to speed, enhance, and strengthen international conflict response. Now in its seventh year, the PCR Project is seen as a leading global source for authoritative analysis, evaluation, and recommendations for fragile states and post-conflict reconstruction. The blog provides an interactive, online environment for the exchange of views and opinions on featured opinion pieces, readings, new digests, reports, and more."

From Sri Lanka:

InfoShare Research Unit. This blog shares research on peacebuilding, conflict transformation and everything related. According to the bloggers, "we understand both peacebuilding and conflict transformation as fields of study and practice that are extremely broad and cover a wide range of issues. Through this blog, we aim to bring to the attention of readers engaging resources and content, ranging from websites and multimedia to books and monographs, that will be useful in nourishing peace research in general and the peace process in Sri Lanka in particular."

From the U.K.:

Eldis Conflict and Security Blog. This blog seeks to stimulate debate on all areas of conflict and development. Eldis is one of a family of knowledge services from the Institute of Development Studies, Sussex.

From Estonia:

A Postcard for World Peace. According to its creator, "this blog is the result of a dream I had one January night. The idea is simple: Send us a postcard from your country/city (or any postcard you want) writing in the backside a message of peace to the World. All the postcards will be uploaded in the blog, and there will be a record of how many postcards per country we receive (including a map showing the coverage)."

* * * * *

New additions to the World Directory of ADR Blogs' growing catalogue are always welcome. If you wish to add your blog or someone else's to the 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 submission guidelines.

(With thanks to Bill Warters and Sanjana Hattotuwo.)

Thursday, March 15, 2007

Resistance is futile: a new look at ground rules in mediation

Go with the flowAs a mediator, when it comes to ground rules, what's your style? Are you a mediation cop who lays down and enforces rules for parties to follow? Or are you a Zen master who responds in the moment to enable parties to generate their own rules of engagement?

My friend Ericka Gray, a leader in the dispute resolution field who has been mediating for more years than she would like me to tell you, has written an article that may convince mediation cops to turn in their badges and try a more nuanced approach in "Resistance Is Futile: Going with the Flow", published at Mediate.com.

Ericka draws on Lao Tzu for inspiration, along with good old common sense and some real-life anecdotes. Ericka says,

In the spirit of T'ai Chi, meeting challenges with resistance leads only to some degree of injury to both sides. In mediation, this may take the shape of meeting positions with positions or establishing positions (ground rules) at the beginning of the process in order to try to exert some control by the mediator. Lao-Tzu’s prescription of meeting such hardness and force with softness, following the motion and redirecting, could easily have been written for mediation students.
Now stop resisting and go read the article, Grasshopper.

Avoiding culture clashes in mediation

Avoiding cultural clashes in mediationIn an excellent article that frames culture as "the software of the mind", attorneys Robert de By and George Mastoris explain "How to Avoid a Culture Clash in Business Mediations".

(Via the Stark County Law Library Blog.)

Collaborative law unethical, says Colorado Bar Association

Collaborative law unethical?Collaborative law, a process in which lawyers and their clients contractually agree to pursue non-adversarial means of resolving disputes and reaching agreement without going to court, has become an increasingly popular way to address divorce, family, and other matters. It is designed to utilize and foster mutual respect, joint problem solving, open communication, and interest-based negotiation. If the process fails and the client wishes to proceed to court, the lawyer must withdraw and the client must choose another lawyer.

So, what's not to like about a no-court alternative to litigation? Plenty, according to the Colorado Bar Association's Ethics Committee, which has issued an advisory opinion declaring collaborative law to be unethical per se--an opinion that has stirred swift reaction from ADR bloggers and others. Covering the story so far are Gini Nelson, John Crouch, Stephanie West Allen, Pauline Tesler, Alan Childress, Robert Ambrogi, and David Giacalone.

According to the Committee:

It is the opinion of this Committee that the practice of Collaborative Law violates Rule 1.7(b) of Colorado Rules of Professional Conduct insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event that the process is unsuccessful. The Committee further concludes that pursuant to Colo.RPC 1.7(c) the client’s consent to waive this conflict cannot be validly obtained.
Pauline Tesler, an expert in collaborative law, says there is little to fear from this opinion: "It is non-binding, even in Colorado, and prevents no lawyer or client even in Colorado from electing collaborative legal representation. The opinion stands alone in its obvious hostility to collaborative legal practice--and in its faulty reasoning. All other ethics opinions to date have supported the informed choice of collaborative law."

Nonetheless, this opinion should still trouble us, since it comes from a prominent voice in the legal community. And this is not the first time such arguments have been made. We should moreover consider the effect an opinion like this can have in discouraging creativity and innovation in the practice of law.

The authors of this opinion seem to have forgotten that the Rules of Professional Conduct actually encourage lawyers to be driving forces for positive change in the profession. Consider these words from the preamble to the Rules of Professional Conduct (Colorado's, but also those from the ABA's own Model Rules):

As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.
along with these (again, Colorado's, although not in the current version of the ABA Model Rules):

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government.
Which seems to me what collaborative law is all about: the dignity of the individual. We need more of that in the law, not less--despite what the Colorado Bar Association's Ethics Committee may think.

Tuesday, March 13, 2007

It's the thought that counts: Blog explores how humans use their brains

Cognitive Daily helps us understand how people think If you're fascinated by the way human beings think--and I don't know a mediator who isn't--you should pay a visit to Cognitive Daily. Each day this blog posts an article that explores some aspect of cognitive psychology--the study of internal mental processes such as problem solving, decision making, information processing, language, and memory.

Recent posts include "Casual Fridays: Test your knowledge of world accents!", "We can judge the emotional content of pictures in as little as 13 milliseconds" and "Amazing demo of what we remember visually and why".

You'll also find links to articles like "Waiting For The Pay Off: Psychologists Show That 'Money Changes Everything" which explores weaknesses in decision-making when it comes to the choices people make.

If you'd like to find out what makes your clients (and your colleagues) tick, pay a visit to Cognitive Daily.

Ten web sites to help mediators run their practices

Ten web sites for mediatorsAs a mediator in a solo private practice, I'm always on the lookout for ways to run my business better with the help of digital technology. Which explains why I'm a regular reader of Law.com's Legal Technology blog. Case in point: this post on "Ten Must-Have Web Sites for Solo Practitioners". You don't have to be a lawyer to find stuff here you can use.

(Pssst. This post recommends eFax for internet faxing service. I use GoDaddy.com's Fax Thru Email for the increasingly rare faxes that I need to send or receive. It's less expensive and works great.)

Seeing ourselves as others see us: the art of feedback

Giving feedbackAccording to studies in social psychology, many of us unwittingly overestimate our own abilities, blind to our own deficiencies.

These studies demonstrate, however, that accurate feedback powerfully counteracts these tendencies.

The problem though is that in many settings--workplaces for example--mechanisms for providing accurate feedback are often inadequate or even absent. Which explains why poor performance is so often seemingly rewarded by wage increases or even promotion.

Part of the problem of course is that we're reluctant to deliver bad news. "If you can't say something nice, don't say anything" is drilled into us from childhood. Many of us may also feel totally unprepared to give feedback. The trouble though is that people won't get better on their own. Without feedback to hold a mirror to our faces, we have no idea what's not working and what needs to be changed.

Not sure how to give feedback? Consider the following suggestions:

1. Think about your goal. I remember a boss from one of my first jobs after college who seemed to enjoy publicly humiliating his employees. He would yell at his staff, berating them at a high decibel level. Needless to say, the turnover rate at this workplace was enormous. This guy lost sight of the purpose of feedback--an opportunity to build a relationship and trust with someone else, not demean them. The objective is to:

a. Help people understand the goals to be met
b. Explain what they're doing and not doing to meet those goals--be honest
c. Provide a realistic blueprint for improvement

2. Provide privacy. Giving and receiving feedback can be hard. It can be more comfortable for everyone involved if it's done privately--and allow for face-saving.

3. Give specifics. People need to understand exactly what isn't working well. If you're giving feedback, come prepared with specific examples. Document, document, document. In addition, provide specific details of steps that need to be taken. Be direct and clear.

4. Stop being an avoider. Delay doesn't make problems go away--they will only get worse and be harder to deal with. The sooner a problem is addressed, the easier it is for everyone to remedy. When behavior is allowed to go on for years and no one ever says anything, it's going to be much harder to address.

5. Set out a clear action plan. People need to know what comes next. Make sure that the goals are clear and that the other person understands them. If possible, chunk the action plan down into manageable, realistic steps. Do people need support or training to help them meet goals? Make sure that it's going to be available. It's also important that people understand the consequences of failing or refusing to make changes in response to feedback. And be consistent in enforcing consequences.

6. Give positive feedback too. If possible, don't just dwell on negatives. Let people know what they're doing that's great. It gives people hope and incentive to continue to do those things well. Besides, we can all do with a pat on the back.

7. Follow up. It can be a great idea to establish a feedback checkup--a follow-up session or sessions to see if goals are being met or any fine-tuning needs to be done.

Got ideas of your own that work for you? Share them here--comments are welcome.

Blawg Review #99 goes to the dogs!

Blawg Review goes to the dogs!The 99th edition of Blawg Review, the weekly review of the best in law blogging, is hosted this week by self-styled reformed lawyer (and dog lover) Matt Barr, who blogs at Begging to Differ. Matt gets some help from Libby the dog, who was apparently found guilty last week of perjury and obstruction of justice charges.

Show your support and free Libby by visiting this edition of Blawg Review.

(Incidentally, coming up soon, my friend Diana Skaggs of Divorce Law Journal will be hosting Blawg Review #101. Just one more reason why mediators should tune into Blawg Review for all the latest legal news.)

Monday, March 12, 2007

Bridging the divide between lawyers and mediators, Part 3: what lawyers can do for mediators

Bridging the divide between lawyers and mediatorsMy series on "Bridging the divide between lawyers and mediators" continues with an appreciation for the value lawyers contribute to the mediation table.

*****

In the many conversations I have had with mediators over the years about the role of lawyers at the mediation table, one thing has sadly stood out: the extent to which many mediators distrust attorneys and misconstrue their motives. They see attorneys as sources not healers of conflict and view them as obstacles to resolution.

As a mediator who is also an attorney, I have to say that this is unfortunate and short-sighted. My observations tell me that these stereotypes are often based on misunderstanding of lawyers' roles, of the ethical duties that constrain or define their conduct, and of the culture of the legal system itself.

I know that what I have just written may provoke protests from mediators who insist that their criticism of attorneys is warranted. No doubt many of you have war stories that prove it. However, I am not claiming that lawyers--or anyone else for that matter--are always team players at the mediation table or that they never get aggressive, play dirty, or try to exploit or sabotage the mediation process.

What I am saying however is something quite different. War stories aside, it's important not to assume how someone may behave at the mediation table solely because they happen to have a bar card.

I am asking all of my colleagues who are mediators to think of attorneys in another light: to recognize them as valuable assets at the mediation table.

Here's why.

To begin with, although some lawyers continue to rely on distributive bargaining, more lawyers these days are familiar with more sophisticated negotiation techniques, including integrative, interest-based negotiation. Many are trained in mediation themselves, were exposed to mediation in law school, or have undergone training in mediation advocacy. The legal profession is changing as well, and lawyers are breaking new ground through movements like collaborative law, restorative justice, and legal futurism. Even lawyers who are old-school hard bargainers can still be assets at the table when mediators take time to prepare all parties to make the most of the mediation process before the mediation even begins.

That's the big picture. Here now are specific ways in which lawyers can make a positive difference to what happens at the mediation table.

Preparedness for mediation. More and more attorneys these days understand and appreciate mediation. Attorneys like this can transmit this understanding to their clients, preparing and coaching them to take full advantage of what mediation offers.

Informed decisions. As mediators know well, one of the foundational principles of mediation is informed decision-making by parties. In fact, mediations can easily stall out when parties lack critical information. To participate meaningfully in the process, parties should understand fully the mediation process itself, the issues involved, options for settlement, and the alternatives that await the parties in the event that no agreement is reached. Attorneys at the table can provide their clients with the advice and information they need to make the most of mediation.

Helping clients participate. A good attorney will know and understand their client's interests and can help their client communicate those interests clearly.

Creative problem-solving. This works two ways. First, lawyers can be skilled problem solvers--it's a part of their job. Secondly, there's the "two heads are better than one" phenomenon--an attorney and their client can work together to brainstorm solutions, bouncing ideas off each other and fine-tuning options with the mediator's help.

Offset power imbalances. Power imbalances can easily throw a mediation off course. The presence of attorneys at the mediation table can act as a safeguard to ensure that each party is able to make decisions free from intimidation, influence, or pressure by the other.

Size up the no-agreement alternative. Attorneys can help their clients strategically assess their BATNA--their best alternative to a negotiated agreement. "Best" of course may not mean "good". If the BATNA is trial, attorneys know from experience the probability of success in court and how much time trial--with the possibility of appeal--may realistically take.

Make decisions. Attorneys can assist their clients evaluate options on the table and weigh the merits of settlement proposals.

Look for the devil in the details. After all the hard work that goes in to a mediation, no one wants a mediated agreement to fall apart later. A critical role that lawyers can and do play is to make sure that no details in an agreement have been left to chance and double-check that contingencies get addressed and ambiguities cleared up.

No reason: emotional appeals and decision-making

We mediators spend a lot of time helping people make decisions.

And not just any decisions--informed decisions. This is particularly important when you're dealing, as mediators often do, with people whose decision-making ability may be impaired by the strong emotional response that conflict can produce. The desire to punish an opponent, exact revenge, or teach someone a lesson can override reason and trump common sense. Sometimes you have to spend time getting people to consider whether a decision they want to make today in the heat of the moment will be one they regret ten years down the road.

Mediators then may be interested to see this video of Penn and Teller's recent experiment revealing how appeals to emotion over reason can sway people to commit themselves before they have all the facts--in this case to sign a petition banning "dihydrogen monoxide"--water.

(Via Boing Boing.)

Sunday, March 04, 2007

The cost of conflict: what happens when we frame divorce as combat

Framing divorce as combatMary Whisner at shlep, the legal self-help blog, points to an article on "The Many Costs of Conflict" by dispute resolution consultant Stewart Levine, which describes the heavy financial, emotional, and other tolls that conflict exacts.

According to Levine, these include:

  • Direct Cost: Fees of lawyers and other professionals

  • Productivity Cost: Value of lost time. The opportunity cost of what those involved would otherwise be producing.

  • Continuity Cost: Loss of ongoing relationships including the "community" they embody

  • Emotional Cost: The pain of focusing on and being held hostage by your emotions
It made me wonder what shlep and Levine would make of a new book on divorce for women by attorney Sherri Donovan: Hit Him Where It Hurts: The Take-No-Prisoners Guide to Divorce--Alimony, Custody, Child Support, and More.

The pugilistic theme doesn't end with the title: the book jacket is adorned with a photo of a blood-red boxing glove. Chapters include "Are You Ready to Rumble?", "Divorce Ain't for Sissies", "Sizing Up Your Opponent", "Conditioning for the Fight of Your Life", and "Psyching Up for the Fight".

It should leave us all asking what kind of casualties result when divorce is framed as either prizefight or combat.

Call for workshop proposals: ACR's New England Chapter seeks submissions for May 2007 Annual Conference

NE-ACR Annual ConferenceThe New England Chapter of the Association for Conflict Resolution (NE-ACR) is seeking workshop proposals for its 2007 Annual Conference to be held on Thursday, May 31, 2007, at the Boston University Corporate Education Center in Tyngsboro, Massachusetts.

This year's theme is Justice: Conversations for the ADR Community. Leading that conversation is internationally known dispute resolution scholar and practitioner, Lela Love, professor of law and director of the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law. Professor Love will also be leading a full-day Advanced Training on Friday, June 1, 2007.

NE-ACR's annual conference attracts dispute resolution practitioners from throughout New England and beyond. It's an ideal opportunity to network, make new friends, and meet old ones.
ADR practitioners--mediators, arbitrators, facilitators, educators, trainers, ombuds, negotiators, and anyone else whose work involves conflict resolution--are invited to submit their proposals for consideration.

The Call for Presentations Form is available for downloading here in two formats:

- Word format
- PDF format

Proposals are due by Friday, March 23, 2007, by 5:00 p.m. EST. If you have any questions at all, please email Kelly Thompson, NE-ACR board member and conference organizer, at kthompson@cmcri.org.

(And of course please feel free to pass this on!)

Untangling conflict's roots: understanding the Shi'ite and Sunni divide

Understanding conflict's rootsConflict, as history tells us, can put down very deep roots. Long-lived, it can consume great quantities of time--weeks, months, years--and even centuries.

One such conflict is the long-standing rift between Shi'ite and Sunni Muslims, which has generated so many headlines and claimed the attention of the international community.

For those who wish to understood the origins of the rancorous division between Sunni and Shi'ite, Time Magazine has done an excellent job of untangling its roots in "Behind the Sunni-Shi'ite Divide".

Meanwhile, at Maps of War, you can view the "Imperial History of the Middle East"--5000 years of shifting control depicted in a 90-second animation.