Wednesday, October 31, 2007

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

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

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

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

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

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

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

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

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

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

Tuesday, October 30, 2007

Trick or treat: Halloween links from Online Guide to Mediation

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

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

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

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

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

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

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

(Photo credit: Nicolas Raymond.)

Home Office Lawyer hosts Blawg Review #132

Home Office Lawyer hosts Blawg Review #132Kansas-based lawyer Grant Griffiths asks, "A Mac. A blog. A home office. What more does a lawyer need?"

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

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

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

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

Monday, October 15, 2007

Blawg Review #130

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

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

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

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

Upside down map shows southern hemisphere on topSo, before plunging into this edition of Blawg Review, consider this upside down map that invites you to see the world anew.

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

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

And now, let's get started.

Northern and Southern Hemisphere editions of Blawg Review1. Conflict Resolution Day: Mediation and Dispute Resolution Related Posts

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

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

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

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

Kristina Haymes declares death to the billable hour for mediators.

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

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

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

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

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

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

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

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

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

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

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

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

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

Blog Action Day calls attention to environmental issues
2. Blog Action Day and the Environment

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

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

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

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

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

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

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


Blawg Review #130 Northern Hemisphere edition
3. The Best of the Rest in Legal Blogging

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Sunday, October 14, 2007

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

world southern hemi 2Geoff Sharp and I are covering the globe by sharing co-hosting duties for a special Northern and Southern Hemisphere presentation of Blawg Review, the weekly review of the best in legal blogging. Geoff's edition of Blawg Review #130 went live at 12:01 a.m., Monday, October 15, Wellington time, so Blawg Review fans elsewhere in the world can get an early jump on their Blawg Review enjoyment.

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

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

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

Thursday, October 11, 2007

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

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

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

(Thanks to Kottke.org.)

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

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

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

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

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

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

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

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

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

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

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

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

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

Antisocial networking sites link you to your enemies

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

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

Tuesday, October 09, 2007

Collaborative law: attorneys who mediate and negotiate, not litigate

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

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

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

Monday, October 08, 2007

Apologies can improve the health of hospital-patient relations

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

What stands out is the reaction of one patient interviewed for the program whose doctors failed to make an early cancer diagnosis. Instead of denying responsibility for the error, the hospital's attorney arranged a meeting with the patient, the patient's husband and her attorney, and the two oncologists who treated her. The patient had this to say about the experience:
My husband and I both left that meeting feeling like a million bucks. I was heard that night. That's all I really wanted. I wanted them to know that this was not right, what happened to me.
The hospital's attorney, also interviewed for the story, emphasized how important these conversations are for everyone involved. Looking back on a case early in his career in which a jury returned a defense verdict for his client, he remembered,
After the jury was dismissed, the lady who sued my client leaned across the podium and said, 'If you had only told me everything I heard in this courtroom, I would never have sued you in the first place.' That really left a mark on me, and for 20 years I wondered why we never talk to each other.
The benefits of these programs are numerous. Not only does everyone save money on legal costs, and not only do both sides learn important information from each other during the course of the conversation, but this willingness to be open encourages medical staff to come forward to report errors, which means greater safety for patients.

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

(Photo credit: Wolf Friedmann.)

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

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

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

(Photo credit: Iwan Beijes.)

Sunday, October 07, 2007

Online Guide to Mediation News Roundup | October 7, 2007

Here is Mediation links for week of October 7, 2007Online Guide to Mediation's latest round-up of links for mediators:

From Bob Sutton is a link to a video by a professor of organizational behavior at Stanford who takes an honest look at "why we'd rather lie than be associated with failure".

George Lenard points to "Top Small Workplaces 2007", which reveals what successful small businesses do to motivate, develop, and retain their employees.

For conflict resolution trainers, mediation training videos from UK Mediation Ltd. depict the stages of a workplace dispute from initial flare-up to agreement, courtesy of Bill Warters.

Boing Boing reports on the latest customer relations snafu by a large corporation: AT&T punishes consumers for speaking out on the web.

At Not Exactly Rocket Science, learn how "Genes affect our likelihood to punish unfair play".

Thanks to Diana Skaggs, learn "What Price Does The Company Pay In An Executive's Divorce Or Custody Battle? Without Some Forethought, A Hefty One"--which I think could be used to support the argument that employee assistance programs should include mediation services among their offerings.

Vickie Pynchon urges readers to haggle when it comes to purchasing consumer goods, and points to No More Haggling, a company that seeks to capitalize on the American aversion to negotiating.

Finally, a project in Jerusalem uses the power of the stage to encourage Jewish and Arab audiences to hear the other side of the story.

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

The case against consumer arbitrationLast month our mail carrier delivered to our home a slim envelope from Comcast, our cable television service provider.

The envelope contained an "Arbitration Notice". Printed on glossy stock, the Notice was covered with oddly formatted text--entire paragraphs blazed across both sides in full caps, some in bold, others not, and all of it justified--enough to produce either a full-blown seizure or a blinding headache. (And no doubt calculated to discourage careful reading.)

This notice advised us about a new provision in our subscriber agreement, which we had 30 days to opt out of if we chose.

Here's the gist of the new provision, translated into English:

Any dispute that we happened to have with Comcast would now need to be resolved by an arbitrator instead of in court by a judge. We would only have one year in which to pursue a claim (without mentioning of course that in the absence of this provision, applicable state or federal law probably gives us a lot more time than that to file a claim in court). We would also have no right to gang up on poor Comcast by bringing a class action with other subscribers. Although the arbitration would be held in an unspecified location that promised to be "convenient" for us, and while Comcast would be responsible for advancing to us all arbitration filing fees and the arbitrator's costs and expenses (if we asked nicely in writing first), we would have to reimburse Comcast if we lost. (Comcast omitted telling us that in a court we would only have to pay a filing fee to the clerk, that taxpayers already cover the judge's salary, and, if we lost in court here in Massachusetts, we wouldn't have to reimburse Comcast a dime.)

Now I ask you, is that any way to treat a consumer?

We elected to opt out, but it made me wonder how many consumers would understand the consequences of opting in. And unfortunately mandatory arbitration clauses in consumer agreements are increasingly common.

For a well-written polemic on why this is a bad thing--not just for consumers but for the rule of law and our legal traditions--read "The Future of Consumer Law in the United States -- Hello Arbitration, Bye-bye Courts, So-long Consumer Protection" (for the abstract and the link to the PDF download).

Apart from the obvious arguments against mandatory arbitration provisions in consumer agreements -- questions about their fairness; their coercive, take-it-or-leave-it nature; the disparity in power between the consumer and company; the privatization of dispute resolution; the lack of judicial review; allegations that the system is weighted against the consumer; and the fact that the average consumer simply doesn't understand these provisions -- this article also warns of the implications such provisions hold for the American justice system and the further development of consumer law jurisprudence:

The common law is the system that America has adopted and developed over the centuries for ensuring the law stays current with rapidly changing social and economic conditions. As Justice Harlan F. Stone noted, “If one were to attempt to write a history of the law in the United States, it would largely be an account of the means by which the common-law system has been able to make progress through a period of rapid social and economic change.” The American judiciary is much more than just a check on the legislative and executive branches of government. It is an independent branch of government, often looking out for the rights of those who lack the power or influence to receive the attention of our elected representatives. The American common law tradition is an essential part of the development and continuation of consumer protection; arbitration destroys it.
While no doubt Big Business saves money with this end-run around the legal system, it fails to anticipate a different kind of loss: the impact on customer relations. It always seems to be the companies with the weakest track record for dependable customer service that insist on these one-sided arbitration provisions. Instead of paying their legal teams huge sums of money to craft these impenetrable clauses, they should work harder to improve services and products and train their customer service representatives to respond better to customer issues.

In other words, why not insist on customer-centered business practices and work harder to drastically reduce the underlying causes of litigation in the first place?

Indisputably: new blog by ADR law professors launches

Indisputably, a new law blog, launchesA new blog has joined the impressive and continuously growing stable of blogs at the Law Professors Blogs Network: Indisputably, which will focus on negotiation, mediation, arbitration, and dispute resolution.

Written by four eminent ADR scholars, Andrea Schneider, Nancy Welsh, Michael Moffitt, and Sarah Rudolph Cole, Indisputably offers its readers what is at once challenge and invitation:

The four of us differ in our backgrounds and ADR focus, and we hope to showcase those differences with running commentary on the latest work in arbitration, mediation, negotiation, and other dispute resolution processes. At the same time, we are similar in our desire to engage in dialogue that is both scholarly and practical, to dig into the empirical work that is relevant to ADR, and to reflect on the reality of ADR in action, for better and for worse. We will be posting on a regular basis, and we hope that you will add to the richness of this blog by sharing your reactions and comments. Point us to great articles, interesting cases or programs, new reseach, or even something funny. We also expect this blog to serve as a home for the numerous other resources available in ADR. The links we provide will highlight law school programs, conferences, research sites, and teaching resources available through many other productive colleagues. And so, we look forward to the adventure of blogging and invite you to join us on this journey.
Please stop by this newest member of the ADR blogosphere and join me in welcoming them. Congratulations to Indisputably's team of blogging scholars, and best of luck in the launch of what promises to be a stimulating addition to the growing conversation about dispute resolution here on the web.

Three new additions for World Directory of ADR Blogs, including its first Romanian language site

World Directory of ADR Blogs The World Directory of Alternative Dispute Resolution Blogs, which tracks and catalogues dispute resolution and negotiation blogs around the globe, has added three new sites to its inventory, which now lists 112 blogs from 22 countries:

eMediacion by AcuerdoJusto®. This blog is published by AcuerdoJusto, an interdisciplinary, international team of professionals based in Argentina, Spain, and Chile who share a common interest--to facilitate the resolution of disputes. It will focus on providing conflict resolution content, aimed at the Spanish-speaking public, with the goal of promoting social awareness of the benefits of conflict resolution.

Medierea. This Romanian weblog and online discussion forum provides news and information about the benefits of mediation as an effective alternative to resolving disputes. It is the first Romanian language blog to be added to the World Directory.

Indisputably. A member of the Law Professors Blog Network, Indisputably, a team blog published by four ADR scholars, focuses on negotiation, mediation, arbitration, and dispute resolution. It aims to engage in dialogue that looks at ADR from scholarly and practical perspectives.

If you publish or know of a blog that should be added to the World Directory, please let me know. It's a commercial-free site, and there is no cost to be listed. The Directory has information on submitting your blog and some simple submission guidelines.

Monday, October 01, 2007

Bursting the bubble: cultivating dissent in the workplace

Cultivating dissentAccording to a recent BusinessWeek poll, 90% of executives and middle managers believe that they perform in the top 10%. (This effect, known as positive illusion bias, is not confined to managers alone: it can be found among drivers confident that their reflexes are superior to those of others on the road, trial attorneys certain that they have the stronger case, and negotiators with an overinflated sense of their own prowess at the table.)

Given how widespread this phenomenon is, and how fallible then our judgment can be about the utility of our ideas and the strength of our abilities, many of us are undoubtedly in need of a little healthy perspective-taking when it comes to the decisions we make.

Just in time comes the latest edition of the Harvard Business School's Working Knowledge newsletter with an article on the importance of "Encouraging Dissent in Decision-Making".

Dissent asks the hard questions, anticipates problems, and prevents mistakes--mistakes which can otherwise prove costly:


Consider the costs to organizations, large and small, when dissent does not or cannot surface: Abjuring rigorous debate about its merits, a youthful president John F. Kennedy essentially rubber-stamped a 1961 plan to invade Cuba at the Bay of Pigs, resulting in one of the biggest U.S. foreign policy fiascoes in decades. During a 1996 commercial expedition to the summit of Mt. Everest, several climbers, including two of the world's most experienced professionals, died in part because junior team members didn't speak up when their expert leaders ignored their own core operating principles surrounding safety. In 2003, NASA engineers were reluctant to challenge long-held beliefs that foam strikes incurred during the launch of the space shuttle Columbia posed no risk to its fuselage.
Consider that the next time someone disagrees with you.

(Thanks to Thoughts from a Management Lawyer for the poll results.)

(Photo credit: Javier Taboada.)

(Don't) rage against the machine: two articles demystify online dispute resolution

Demystifying ODRFor some mediators, whose work depends upon face-to-face conversations, the world of online dispute resolution (ODR) can seem coldly impersonal.

I have heard some argue that our work in fact requires the heat that flesh and blood alone can generate -- the warmth of compassion, anger's fire. And that we inhabit the real world, grapple with real-world disputes which demand solutions that only the real world can hold. Others, not mediators only, have argued that technology has depleted our social capital, fraying the connections between us.

If you're not sure how ODR fits into your understanding of mediation or the resolution of disputes, then consider these two articles which make the case in different ways for ODR--not as a panacea, but as a legitimate and powerful avenue for justice or problem solving:

"A new face for small claims", an op-ed piece in the Boston Globe by Ethan Katsh and Jeffrey Aresty, which envisions a world in which time and location constitute no barrier to those who seek access to justice in small claims courts, and

"Settling It On the Web", an article from the ABA Journal, which provides one of the best and most thorough explanations of ODR--with an honest acknowledgment of its limitations--that I have yet read.

10th Annual ODR Cyberweek held October 15-19, 2007

10th annual Cyberweek National Center for Technology and Dispute Resolution together with InternetBar.org is hosting the 10th Annual ODR Cyberweek, an all-online conference exploring the application of technology to dispute resolution and beyond.
Registration is free for the synchronous and asynchronous events which anyone with a computer and an internet connection can participate in. The program is still under development but further details will be available soon.

Technophobes, have no fear: Cyberweek events are attended by friendly, knowledgeable people from all over the world who are always glad to answer questions. (Good rule of thumb: the only dumb question is the one you don't ask.)

If you're at all curious to explore the crossroads of digital technology and human interaction, and want to discover innovative ways to resolve disputes and build better access to justice, then by all means join in.

Best of all, you can catch a glimpse of familiar faces in the crowd: watch out for Vickie Pynchon, Gini Nelson, Geoff Sharp, Colin Rule, Robert Ambrogi, and me, just to name a few.

Blawg Review #128 hosted from Trinity College Dublin

This week's Blawg Review, the review of the best in legal blogging hosted each week at a different blog, marks an important milestone: it is the first Blawg Review hosted in Ireland.

Host Daithí Mac Síthigh is a graduate student at the School of Law, Trinity College Dublin, and publishes the blog Lex Ferenda, where he explores his interests--and demonstrates his considerable knowledge-- in cyberlaw, media, and intellectual property.

Curious about the meaning of the name of Daithí's blog? The wise and anonymous editor of Blawg Review tells us that

Lex ferenda (also called de lege ferenda) is a Latin expression that means "what the law ought to be" (as opposed to lex lata, "the law as it exists").
(But those of you who still remember your high school Latin or have your old law school dictionary handy probably knew that already.)

Click here to enjoy Blawg Review #128--and pay a visit to Dublin. (And don't miss the link to Banned Book Week.)

(By the way, in two weeks, Geoff Sharp and I will be sharing the hosting honors to commemorate the week in which Conflict Resolution Day is observed. Hope to see you there.)