Wednesday, June 27, 2007

The Situationist blog sheds light on predicting and influencing human conduct

The Situationist gets into people's minds
As a mediator, I see people behave under extraordinary pressure and in the face of difficult circumstances. They come with carefully constructed narratives of the past which often must be dismantled and considered anew. Their understanding and reactions may influenced by unanticipated forces. I watch as they struggle to expand the boundaries of perception--and reshape their understanding of themselves and each other.

As a consequence of my work, the way people interpret the world around them fascinates me. I was therefore glad to be introduced to a blog that opens my eyes to the workings of the human mind. The Situationist

is a forum for scholars, students, lawyers, policymakers, and interested citizens to examine, discuss, and debate the effect of situational forces – that is, non-salient factors around and within us – on law, policy, politics, policy theory, and our social, political, and economic institutions.

What does a situationist do?

...[S]ituationists rely on the insights of scientific disciplines devoted to understanding how humans make sense of their world—including social psychology, social cognition, and related disciplines—and the practices of institutions devoted to understanding, predicting, and influencing people’s conduct...
A sampling of recent posts from The Situationist includes:

"Pervasive Developmental Disorders and the Formation of Stereotypes", which describes how stereotypes are so easy to learn that they can develop even in the presence of "damage to the 'social brain'".

"First Person or Third, How Would You Tell Your Story?", discussing the ways in which people express memory as narrative.

"Slips, Falls, and the Situation of Tort Reform(ers)", raising the possibility that tort reform advocate Robert Bork's slip-and-fall suit against the Yale Club of New York is the result of a phenomenon known as "actor/observer difference" in which we see our own actions as the result of situational factors while seeing the actions of others as a result of their dispositions.

(Thanks to Steve Hicks for the link.)

Tuesday, June 26, 2007

Three new blogs and a networking site for mediators and peacemakers

Surf the ADR blogosphere at the World Directory of ADR BlogsThe best part of being webmaster of the World Directory of ADR Blogs has got to be the emails I get from people around the world contacting me to tell me about their web sites and the work that they do.

Here are some of the sites that I've been introduced to within the last few days.

The Peace and Collaborative Development Networking site was created by Dr. Craig Zelizer, a Visiting Assistant Professor in the Masters in Conflict Resolution within the Department of Government at Georgetown University. Craig describes this site as "a free professional networking site to encourage interaction between individuals and organizations worldwide involved in development, ADR, conflict resolution and related fields. Members are encouraged to dialogue and share resources. The site has blogs, forums, resources and much more."

You'll find three new blogs at the World Directory of ADR Blogs--along with a newly added country--Switzerland. They are:

CKA Mediation and Arbitration Services Blog. Recovering litigator Christopher Annunziata opines about all aspects of alternative dispute resolution, mediation, arbitration and recent developments in Georgia law and beyond. Expect to find topics to enlighten the practicing attorney and non-lawyer alike, as well as the occasional humorous story. (I've told Chris in a recent email exchange how friendly the ADR blogosphere is, so please be sure to visit Chris and say hi.)

The Peacebuilding Blog. A Geneva, Switzerland based electronic resource to support the work of the UN Peacebuilding Commission, showcasing relevant research and policy materials, news, critical analysis, events and employment related to peacebuilding, conflict management and resolution, worldwide.

The Geneva Peacebuilding Platform Blog. According to its web site, the Geneva Peacebuilding Platform's "overarching objective is to contribute to international peace and security by building partnerships among and between governments, international organisations and NGOs on disarmament and arms control issues of common concern." Its web site includes this blog.

Do you have a blog you'd like to tell my readers about? 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 submission guidelines.

Blawg Review #114 celebrates summer with mediator Stephanie West Allen

Summer edition of Blawg ReviewGrab your sunscreen and head for the beach at the summer-themed Blawg Review #114, hosted by lawyer and mediator Stephanie West Allen collaborating with Julie Fleming-Brown, an executive coach for lawyers.

Stephanie publishes two blogs, Idealawg, sharing fresh discoveries about innovations and ideas to inspire the practice of law, and Brains on Purpose, which covers topics at the intersection of neuroscience and conflict resolution. Julie publishes the well respected Life at the Bar, helping lawyers find satisfying and meaningful careers. And Blawg Review is the weekly review of the best in legal blogging, hosted each week at a different blog.

Highlights of this edition of Blawg Review--the first one of the 2007 summer season-- include: George Lenard's 9 Tips to Beat the Heat and Look Professional: Women, Christopher Marston's Top 10 Reasons Why Professionals Don't "Get it" When it Comes to Pricing and Service!, and Dave Hoffman's Law, Foreign Norms and Social Order (Or, How I Survived A Naples Soccer Celebration).

Thursday, June 21, 2007

Creative path to resolution: money not the only way to settle lawsuits

Money not the only path to settlementIt's been a tough month for the American legal system and American lawyers.

First an attorney with drug-resistant TB travels to Europe and back, potentially exposing his fellow air travelers to a dreaded illness. Then an administrative law judge goes to court to recover $54 million dollars from his former dry cleaner over a pair of lost trousers. Finally, a North Carolina district attorney is disbarred for violating numerous rules of professional conduct in his prosecution of a controversial rape case.

Events like this only seem to confirm the worst suspicions that the American public harbors toward its legal system and the legal profession. The images on the five o'clock news tell the story: greedy plaintiffs, overreaching lawyers, justice in chaos.

This month's issue of the American Association for Justice's Law Reporter paints another picture. In a print article, "Family of slain journalist agrees to nonmonetary settlement with city to improve emergency services, " it reports on the unexpected outcome of a lawsuit stemming from the death of a prominent journalist as the result of alleged deficiencies in the District of Columbia's emergency services.

According to the family's lawyer, their goals in litigation shifted from obtaining monetary compensation from the defendants to instead finding ways to ensure that other families would be spared a similar experience. In exchange for the family members dismissing their claims against the District, the District agreed to establish a task force to investigate the circumstances surrounding the response of the District's Fire and Emergency Medical Service and to issue a report of recommendations for improving the delivery of emergency medical services.

The family's attorney observed, "I hope that the example set by the Rosenbaum family will prompt other attorneys to consider creative resolutions to cases where the focus shift from an entirely monetary settlement to a resolution that has a broader impact than just on the litigants in the case."

Mediators of course will nod their heads in recognition--this is a story familiar to all of us. It's too bad it's not a story familiar to the public. Lawyers and mediators alike need to do a better job of telling these stories--stories which reveal the creativity and change that justice can produce.

More help for the conflict-averse: web site gives you an excuse to get off the phone

Sorrygottago.comThe internet abounds with web sites to fill every imaginable need--including those of the conflict-avoiding multitudes. provides a sure-fire way to get off the phone and avoid annoying callers. Simply select a setting (at work, at home, telemarketer), turn up the volume, click on a sound file (traffic jam, airport, other line ringing, etc.) and let the sound effects do the dirty work for you.

(Thanks to Jim Calloway's Law Practice Tips for the link.)

No-exception confidentiality laws bar evidence of legal malpractice occurring in mediation, according to California appeals court decision

California decision bars evidence of legal malpractice in underlying mediationCritics of alternative dispute resolution have claimed that it undermines the rule of law and subverts justice. A court decision this week from California may lend support to these criticisms.

In a case titled "Wimsatt v. Superior Court" (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.

California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:

Our Supreme Court has clearly and unequivocably stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts...

The stringent result we reach here means that when clients ... participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.
The judge called upon the Legislature to act in the best interests of justice and the public:

Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California's broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.
Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.

Mediators, still not ready to support public policy exceptions to confidentiality in mediation? Then consider the damage a case like this can do to public confidence in the mediation process. One blogger, law professor Shaun Martin, sums it up in a few harsh words:

Feel like committing malpractice? Selling out your client?

Do it in a mediation.

That's the lesson of the day. Justice Aldrich doesn't appear especially happy about the result, but he says that he's bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.

Remember that the next time you agree to participate in a mediation.
(With thanks to colleague David Hoffman for alerting me to this decision.)

Wednesday, June 20, 2007

Drawing the line: online redistricting game teaches political lessons

Online game teaches lessons on the dangers of gerrymanderingNothing is more divisive in America today than its politics.

But it's not the lines in the sand we should worry about. The Redistricting Game, an online game developed for the USC Annenberg Center for Communication, shows us that it's the lines that define congressional districts that should concern us. According to the web site,

The Redistricting Game is designed to educate, engage, and empower citizens around the issue of political redistricting. Currently, the political system in most states allows the state legislators themselves to draw the lines. This system is subject to a wide range of abuses and manipulations that encourage incumbents to draw districts which protect their seats rather than risk an open contest.

By exploring how the system works, as well as how open it is to abuse, The Redistricting Game allows players to experience the realities of one of the most important (yet least understood) aspects of our political system.

(With a hat tip to The Map Room for the link.)

Happy birthday to Victoria Pynchon's Settle It Now Negotiation Blog

Settle It Now Turns OneOne of the brightest stars in the ADR blog firmament is celebrating an important milestone. Settle It Now Negotiation Blog, the result of the creative genius of Renaissance woman, lawyer, and mediator Victoria Pynchon, celebrates its first anniversary of blogging.

Congratulations, Vickie--best wishes to a fellow mediator, a respected colleague, and a cherished friend.

Danish negotiation blog and English conflict resolution blog latest additions to the World Directory of ADR Blogs

World Directory of ADR BlogsThe World Directory of ADR Blogs has added two new blogs to its growing catalogue: its first Danish blog and an English blog.

They are:

Negotiating by Mikkel Gudsøe. Published by a multilingual Danish attorney and ADR professional, this blog discusses negotiation and negotiation tactics in both the Danish and English languages. (With thanks to my friend Christoph Stroyer, a German attorney and mediator who is kind enough to keep me updated on the state of European ADR blogging.)

From England comes Embracing Conflict, published by collaborative family solicitor Neil Denny. Neil describes his blog as a "space to explore conflict and how it impacts on our relationships, businesses and society. Designed in part as support to workshops, presentations and seminars presented and as a space in which to develop ideas and answer queries. Please feel free to contribute with comments regarding conflict theory, conflict resolution or dispute resolution."

If you publish or know of a blog that should be added, please let me know. It's a commercial-free site, and there is no cost to be listed. I am especially interested in leads on ADR blogs outside the U.S. and Canada. If you know of any, please get in touch.

The Directory has information on submitting your blog and submission guidelines.

Tuesday, June 12, 2007

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

get rid of performance anxiety at the mediation tableIn my line of work, I help people do it all the time. And they all do it differently.

Some of them boast that they're good at it--but in fact know only one way to do it. Some will stick with the position they're comfortable with. Some lack confidence. They worry they won't measure up. Others lack experience.

But in the end, with the right motivation, I can often help them do it better. And do it until everyone's satisfied.

I'm talking about negotiation.

Hey, what else did you think I was talking about?

If you want to reduce performance anxiety at the mediation table, consider the following things you can do to make the earth move--or at least to be a more effective negotiator at the mediation table and elsewhere.

1. Preparation.

It's been said that for every hour of negotiation, a skilled negotiator puts in four hours of preparation. One of the biggest strategic mistakes I see people make is coming to the table too soon--when they haven't done the necessary preparation in advance. Besides just crunching the numbers, you should give thought in advance to:

Your interests. What are your needs? What goal do you want to achieve and why? Why does settlement make sense? If you're at the table representing a client, you need to spend time in advance making sure you understand fully your client's interests--something every advocate should do whether they're headed to mediation or not.

Consider the other side's interests as well. If you know what they need, you may be able to meet their interests in a way that will be more cost-effective to you.

Your alternatives. What happens if you don't reach negotiation? How good are your alternatives? What can you do to improve upon them so you can negotiate from a position of strength? Consider the other side' alternatives as well--how do their alternatives stack up against what you might be able to offer?

Options. Think of as many different options that you can. What will meet your needs? What will appeal to the other side? Is there a way to meet your interests and theirs as well? Come prepared to be creative.

Objective criteria. How will you know that any deal you reach is fair? What about your demands? What objective criteria are they based on? How can you convince the other side that those demands are fair?

Your relationship with the other side. What kind of relationship do you want to have with them when the negotiations are over?

Communication. What do you want to say and how are you going to say it? If communication has proved troublesome in the past, what can you do to improve it?

2. Be receptive to new ideas.

Chances are you need no help to bargain the old-fashioned way. You know, the kind where one side begins with an outrageous demand and the other side responds with an equally outrageous counteroffer, followed by incremental steps toward each other until you both find yourself agreeing to a dollar amount neither one of you likes. A mediator can help you try something different that may help you create more value than traditional bargaining can produce. It's all about expanding, not dividing the pie.

3. Become self-aware.

As Gustave Flaubert observed, "There is no truth. There is only perception." And our perception is distorted by the cognitive biases that all of us who are human beings are prone to. What might you be missing? Here's a shopping list of cognitive biases for negotiators to watch out for.

4. Listen more, talk less.

The more you listen, the more you'll learn--and the less chance of saying something that you may regret later. Listen to educate yourself about their interests. And talk to educate them about yours.

5. Learn to negotiate.

If you're likely to be a repeat player at the mediation table, then it makes sense to learn mediation from the inside out. Take a mediation training to learn about the theory and the techniques of a process that is designed to help people negotiate.

Build yourself a negotiation library. Some must-read books for negotiators include:

3-D Negotiation: Powerful Tools to Change the Game in Your Most Important Deals, by David Lax and James Sebenius

Bargaining for Advantage: Negotiation Strategies for Reasonable People, by G. Richard Shell

Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury

The Negotiator's Fieldbook, edited by Andrea Kupfer Schneider and Christopher Honeyman

Influence: The Psychology of Persuasion, by Robert Cialdini

So be prepared for your next negotiation--or your next mediation session. Do your homework, get some training, read up on negotiation techniques.

The earth will be moving for you in no time.

Questioning authority: teaching new mediators the value of open-ended questions

Teaching the use of questions in mediation trainingThere's a story I tell when I teach mediation students how to ask effective questions:

A guy walks into a bar. He strolls up to the bartender and asks for a glass of water. The bartender looks at him--then flies into a rage, pulls out a gun from under the counter, and aims it straight at the guy's head. The guy thanks the bartender and leaves the bar.
I instruct my students to figure out the ending of the story using only yes/no questions.

People start asking, "Did the bartender know the guy?" "Was the bartender out of water?" "Was the gun loaded?" "Was the guy a robber?" "Was the guy sleeping with the bartender's wife?" "Was it a water gun?"

A dozen or so questions later, they've given up. All the yes/no questions in the world can't solve the puzzle for them. So I tell them that I'll give them one more chance. This time they can ask me an open-ended question to figure out the ending of the story. Someone will then ask, "Okay, so why did the guy thank the bartender for pulling a gun on him?"

Then I say,
Funny you should ask. The guy walked into the bar and asked for a glass of water because he had the hiccups. The bartender saw immediately what the problem was but knew that the best cure for the hiccups is to scare the pants off someone. So he pulled out the gun and aimed it at the guy's head. That cured his hiccups, so the guy thanked the bartender and left the bar.
What usually follows is the sound of loud groans, laughter, and palms smacking foreheads.

The point of course is that you can waste time and work hard asking closed questions and never come close to understanding what's really going on. On the other hand open-ended questions give mediators plenty of traction to draw out interests, elicit solutions, and address roadblocks. They get parties thinking--which is exactly what they're designed to do.

(Unfortunately I cannot take credit for this story--which is really a lateral thinking puzzle. One of my mediator friends--and I can no longer remember which one since it was quite a few years ago--taught it to me. Now I pass it along to you in the spirit in which I shared a negotiation style game earlier this year. Fellow mediation trainers, please free to use it.)

Findlaw and Justia founder Tim Stanley hosts Blawg Review #112

Tim Stanley, a leading figure in legal cyberspace, and a really terrific guy, hosts this week's excellent edition of Blawg Review, the weekly review of the best in law blogging. Tim is the founder of the well known legal web sites Findlaw and Justia.

(Dog lovers, take note: Tim, who writes at Justia's Legal SEO & Marketing Blog, also publishes the photoblog, Little Sheba the Hug Pug. It's the blog that makes you go "Awww!")

Monday, June 11, 2007 of the crowds: web site seeks to build dialogue through yes/no questions of the crowdsThe Boston Globe reports today on the launch of, one more in a long line of social networking web sites. (tagline: "Question everything") describes itself as "an online community where you ask questions to the crowd and get back useful answers. It is for people who are looking for something more meaningful than they get from 'popularity' based social networks. It's a place to engage around asking, sharing, growing and learning."

And that's the premise behind Members are invited to post questions intended to "Get answers. Inspire a discussion. Raise a debate."

Which sounds fine in principle until you realize that members can only pose questions that can be answered by either yes or no.

Here's my question: In a complex world filled with complex problems, are yes/no questions the kind of question we really want to be asking?

If the idea is to inspire a discussion, it's not clear how far "yes" or "no" will get you. There's no room for explanation, for nuance, for subtlety, for all the many shades of gray that life's questions call for.

"Yes" or "no" produces no understanding. It's the "Yes because..." or the "No, but..." that is so much more compelling.

Sunday, June 10, 2007

Easy tech tools to manage and market your ADR practice: a handbook for mediators and conflict resolvers

Easy tech tools to manage and market your mediation practice by Tammy Lenski and Diane LevinRecently I had the great pleasure of teaming up with friend and colleague Tammy Lenski to deliver a workshop at the Annual Conference for the Association for Conflict Resolution's New England Chapter.

Our workshop was designed to introduce mediators, arbitrators, and others in the conflict resolution field to digital tools for managing, marketing, and delivering services in an ADR practice.

Tammy and I selected our favorite tools and put them together in a handbook for workshop participants. We had three criteria for selecting the tools that made it into this handbook: 1) ease of use; 2) no special tech skills or knowledge required; and 3) free or affordable.

We realized though that this stuff was too good to keep to ourselves and the people who came to our workshop--so we decided to share it with the web-surfing world. In PDF format for you to download is ADR in the 21st Century: Easy Tech Tools to Market and Manage Your Practice.

Tammy and I hope that you find it useful. And if you have your own favorite digital tools that make your life as a mediator easier, please let me know.

And now for something completely different: Tarheel Mediator latest addition toWorld Directory of ADR Blogs

The latest addition to the World Directory of ADR Blogs is Tar Heel Mediator, published by North Carolina attorney William B. Wallace. I'm going to let Will introduce himself and his blog:

Tar Heel Mediator is a blog devoted to mediation and other forms of ADR from the perspective of a reforming litigation attorney in Charlotte, North Carolina. The blog will touch on developments in ADR specific to North Carolina and beyond, hopefully in an entertaining fashion. I also hope to provide a lay person who visits the site with some guidance as to how ADR works, and why it can work for them.
Check out Will's most recent post, "Lobbing missiles at mediation", which not only invites mediators to share their strategies for handling posturing parties at the negotiation table but also irresistibly invokes Monty Python's The Holy Grail.

(Speaking of Monty Python, in my opinion the haggling scene from Life of Brian may be one of the funniest cinematic depictions of negotiation ever. If any of you have a favorite negotiation scene from either television or film, tell us all in a comment to this post.)

Congratulations on the launch of your new blog, Will!

Tuesday, June 05, 2007

World Directory of ADR Blogs celebrates its first anniversary

World Directory of ADR BlogsToday marks the first anniversary of the World Directory of Alternative Dispute Resolution Blogs, a directory that tracks and catalogues ADR blogs world-wide. It grew out of a project that I began during my first year of blogging in 2005, when I conducted my first census of ADR blogs and learned that there were only a few of us blogging about mediation, negotiation, or conflict resolution.

Today the World Directory lists 104 blogs from 17 different countries.

I continue to look for ways to add to my inventory. If you publish or know of a blog that should be added, please let me know. It's a commercial-free site, and there is no cost to be listed.

I am especially interested in leads on ADR blogs outside the U.S. and Canada. If you know of any, I hope you'll get in touch. The Directory has information on submitting your blog and submission guidelines.

Many thanks to the bloggers who got in touch with me from all over the world to tell me about their blogs and their work in the legal or ADR fields. And my gratitude to the friends who have supported this project, whose names are listed at the World Directory's web site.

Two creative legal minds, two new conflict resolution blogs

Creative ideas from two legal bloggersTwo blogging attorneys, both inventive, smart, and insightful, have each announced the launch of new blogs:

Stephanie West Allen, best known for her work on Idealawg, a blog that reveals the artistry within the practice of law, has devised a new outlet for her creativity--Brains on Purpose, which will traverse the intersection between neuroscience and conflict resolution. She will be joined by research psychiatrist Jeffrey M. Schwartz, M.D. Knowing the thought-provoking content of Idealawg, I will look forward to discovering the fresh ideas that Stephanie and Jeffrey will be bringing their readers.

Meanwhile, Victoria Pynchon, who publishes Settle It Now Negotiation Blog, announces both a new blog and a new focus to her work as an ADR professional. She has joined forces with patent and antitrust arbitrator and mediator Les Weinstein; IP litigator and mediator, Michael Young; and international commercial and IP arbitrator and mediator, Eric Van Ginkel, to launch the IP ADR Blog, an intellectual property blog that examines the cutting edge of technological, commercial, and legal issues, from the perspective of seasoned dispute resolution professionals. This is a blog that likewise I will be following closely.

My best wishes to my friends Stephanie and Vickie--congratulations to you both!

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

The toilet conflict has its ups and downsAs a way to announce my return to blogging following a brief hiatus, I begin with a post that concerns one of the world's most intractable conflicts (at least since the invention of indoor plumbing): the battle over the positioning of the toilet seat--up or down.

Now comes the study that all you gender-conscious game theorists have long been awaiting. From The Science Creative Quarterly is a paper addressing "The Social Norm of Leaving the Toilet Seat Down: A Game Theoretic Analysis", which models the game as a non-cooperative one of conflict (which anyone in a multi-gender household can tell you is a fully accurate representation).

We can all hope that researchers may next examine another vexing problem: which way to hang the toilet paper--over or under.

(Thanks to Boing Boing.)