Earlier this month this blog reported that the St. Louis Symphony Orchestra, on strike for eight weeks over a salary dispute, had agreed to mediation between musicians and management.

Thanks to the help of a federal mediator, the symphony, one of the oldest in the U.S., has ended its strike and will resume its concert schedule.

We don’t accomplish anything in this world alone…and whatever happens is the result of the whole tapestry of one’s life and all the weavings of individual threads from one to another that creates something.

- Sandra Day O’Connor

For some years now here in the U.S. a debate has raged regarding depictions of violence and conflict in the media. Some would argue that the media glorify violence, positing it as the most effective and direct means of resolving conflict. And that in depictions of conflict by the media, conflict itself becomes the sole focus, with little meaningful analysis of the forces giving rise to conflict, no understanding of the underlying interests at its heart, and no chance to understand the different perspectives that exist among the parties to the conflict. Whether this is accurate or not I’ll leave for others to debate.

What I can say with certainty, however, is that while conflict no doubt sells newspapers and fills seats at the multiplex, conflict resolution just doesn’t seem to have the same panache. Let’s face it, no one makes movies about mediation. And no one has ever made an animated cartoon about mediation.

But that’s all changed, thanks to the Department of Veterans Affairs. The DVA has produced a cartoon short, The Three Little Pigs Go to Mediation. Don’t miss seeing the Three Little Pigs and the Big Bad Wolf work out their differences with the help of the Wise Old Owl, an experienced mediator who uses the facilitative model.

Two earlier posts discussed a controversial decision here in Massachusetts by a Superior Court judge in a case known as Massachusetts Port Authority v. Employers Insurance of Wausau, a Mutual Company (Civil Action No. 95-3079-A). In this case a judge held that a defendant’s failure to heed the advice of mediators could constitute evidence of bad faith refusal to settle. Because the decision seemingly disregards Massachusetts law which protects the confidentiality of communications made during the course of a mediation, this decision could have adverse impact on public confidence in the mediation process.

The text of the decision at the time of those postings was not available in an electronic format on the Internet. However, I have since been able to obtain a paper copy of the decision and put it into a PDF format. Click here to download it.

Just a few weeks ago on a chilly but gloriously sunlit January morning I attended the wedding of two dear friends at our local town hall. What made this particular wedding so unique is that the happy couple had been together for thirty-eight years before getting married. This was also the first marriage between two men to be performed in this small Massachusetts town.

The twenty of us who were present were deeply moved by this ceremony which honored almost forty years of devotion, commitment, and love between two life partners. Many other gay couples in Massachusetts have taken the same step since the Commonwealth legalized gay marriage: by conservative estimates, over 4,000 gay marriage certificates were issued in Massachusetts during 2004.

But just a few days ago I learned that another gay couple has regretfully chosen to end their months-old marriage. And others, too, have filed for divorce here in the Commonwealth.

These two very different cases illustrate what we know from experience: many marriages and relationships endure, but sadly they can also end in separation or divorce.

Divorce, a legal process, can easily become adversarial, and lead to increased stress and mental trauma. It doesn’t have to be that way. There are resources and options available for all couples, heterosexual and gay, for support throughout separation and divorce.

There are two processes in particular which can make a difference for couples going through a divorce: mediation and collaborative law.

Mediation provides a low-cost and confidential alternative to litigation. In mediation, a third party assists a divorcing couple have a constructive conversation about the issues they need to address as part of the process of obtaining a legal divorce. Those issues may include: division of assets and debts; spousal support; issues relating to children, including visitation and custody; and any issues that are unique to the relationship.

Mediation helps people talk through the issues that affect them and their families and reach agreements that are fair, workable, and make sense for them. Gay couples contemplating divorce may wish to think about working with a mediator who has experience with and is sensitive to issues affecting the gay community. The important thing is to find a mediator that you feel comfortable working with.

For information on mediation, visit Mediate.com or the web site for the Association for Conflict Resolution. Residents of Massachusetts may be interested in exploring the web site for the Massachusetts Council on Family Mediation.

Collaborative law is another option available to divorcing couples, which can be used on its own or in conjunction with mediation.

According to the web site for the Massachusetts Collaborative Law Council, the goal of collaborative law is “to protect the privacy and dignity of all involved”:

We acknowledge that the essence of “Collaborative Law” is the shared belief by participants that it is in the best interests of parties and their families in typical Family Law matters to commit themselves to avoiding litigation.We therefore adopt this conflict resolution process, which does not rely on a Court-imposed resolution, but relies on an atmosphere of honesty, cooperation, integrity and professionalism, geared toward ensuring the future well-being of the family.

Our goal is to eliminate the negative economic, social, and emotional consequences of protracted litigation to the participants and their families.

It requires the free and open exchange of information, and envisions working together with other experts, including psychologists, financial experts, and others, and sharing the recommendations and work product of those experts.

For more information about collaborative law, you can also visit the web site for the International Academy for Collaborative Professionals.

Today in the U.S. we commemorate Presidents’ Day, a federal holiday honoring the two U.S. presidents born during this month–George Washington and Abraham Lincoln. The following quote is from Lincoln, who studied law and became a successful attorney long before he contemplated a run for the White House.

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man.

[Update: Unfortunately this online project has since folded. However, I leave the post as is, simply because it serves as an example of the suitability of the web as a tool for collaboration.]

Collaborative problem-solving is based on the notion that the collective wisdom of the group can yield ingeniously creative solutions to challenging dilemmas that individuals on their own have difficulty resolving. Mediation of course is one way to enable individuals and groups to team up together to solve problems. But there are other, equally creative ways to tap into that energy, and one web site seeks to do just that.

Gratitude.net offers people the opportunity to harness the power of collaborative problem-solving by creating a kind of reserve or pool of experience, wisdom, and insight. In the words of founder Tory Gattis, a social systems architect, the goal of Gratitude.net is to become “the ‘eBay’ of kindness, wisdom, and goodwill” by “matching people’s life challenges and advice offerings”. As Gattis explains, Gratitude.net is based on the following premise: What if the best solutions to life’s challenges could be drawn out of a large networked community and made available to all? Could that help accelerate people up the hierarchy and lead to a better world?

For further information on how to become a member of Gratitude.net, please visit the web site.

Since January 2003, NPR station KUNM, 89.9 FM in Albuquerque, New Mexico, has been airing the radio series Peace Talks, which “investigates how people can make peace and pursue non-violent solutions to conflict—within themselves, their families and communities, and the world.”

Peace Talks airs on the last Friday of each month at 8:00 a.m. (MT). Its next program, Martin Luther King Junior’s Path to Nonviolence, the second part of a two-part program, will be airing on February 25, 2005.

This series has addressed topics and issues ranging from “Seeking Civility in Political Discourse” to “Preventing Bullying in Our Schools” to “Mediating Conflict in the Workplace”. A national series is currently in the development and fund-raising stage.

For information on upcoming programs, and for Real Audio links to previously aired programs, visit the Peace Talks web site.

A spirited editorial captioned “The Importance of Keeping Mediators’ Statements Confidential” appears in the February 14, 2005, edition of Massachusetts Lawyers Weekly. Authored by Eric Green, Natasha Lisman, and Jeffrey Stern, well known figures in the Boston ADR community, and supported by other ADR practitioners including Jim McGuire and Paul Finn, the editorial expresses deep concern over Massachusetts Port Authority v. Employers Insurance of Wausau, the Massachusetts Superior Court decision discussed on this blog in a posting dated January 18, 2005. (In that case the judge cited statements made by mediators during the course of three separate mediations as evidence of a defendant’s bad faith refusal to settle for failing to heed the advice of mediators.)

The authors warn of the threat this decision poses “to the integrity and effectiveness of mediation as a method of dispute resolution” because of its potential impact on confidentiality, a defining principle of mediation practice.

As the authors point out,

…as lawyers, judges, legislatures, scholars and parties acknowledge, confidentiality of mediation is essential for its success. Settlement requires that the parties and the mediator be free to engage in candid, unbridled discussions about the case without fear that something they say in mediation can later be used in a subsequent proceeding.

To permit such subsequent use, as was done in the MassPort case, will cast a deadly chill and severely impair the mediation process and all its important benefits…The admission and use of the three mediators’ statements in the MassPort case are likewise inimical to [the Massachusetts mediator confidentiality statute] and its underlying policy and, if permitted to stand unchallenged and uncorrected, could lead to long-lasting damage to a vital instrument of policy and justice—the unhampered and confident use of private means of dispute resolution such as mediation.

Clearly there is much at stake in this case for the mediation field. The threat posed by this decision to public confidence in mediation and other forms of dispute resolution should not be underestimated. Massachusetts courts should be in the business of promoting, not undermining, the important public policy considerations that underpin the Massachusetts confidentiality statute.

Given that this case has attracted the attention of such luminaries as Eric Green and Jim McGuire, an appeal resulting from the MassPort case will undoubtedly result in a flurry of amicus curiae briefs from leaders in the ADR field protesting the MassPort decision. The ADR community is not going to take this one lying down.

In an earlier posting I had lamented the confusion in the public mind between “mediation” and “meditation”. There is, however, a potentially valuable connection between these two distinctly different practices insofar as a technique used in one can increase a practitioner’s effectiveness in the other.

With this understanding in mind, the University of Missouri-Columbia School of Law launched a program called the Initiative on Mindfulness in Law and Dispute Resolution, under the direction of renowned mediator and law school professor Leonard L. Riskin. According to the law school’s web site, the Initiative “is devoted to exploring the potential benefits and risks of mindfulness (and to some extent related contemplative practices, including yoga and other forms of meditation) to members of the legal and dispute resolution professions and those who use or are affected by those professions.”

Some objections, however, have been raised to the teaching of mindfulness at a public university, including concerns that doing so may constitute a constitutionally impermissible endorsement of religious beliefs.

In the best spirit of dispute resolution, however, a public debate concerning mindfulness will be held this Thursday at the law school, with the aim of promoting dialogue and providing an opportunity for all perspectives on this issue to be heard.

This week’s quote comes from Lynn Johnston, creator of one of my all-time favorite comic strips, For Better or For Worse, which recounts the day-to-day joys and challenges of life in an extended Canadian family. (This is one of those rare comics which unfold in real time and in which children actually grow up and adults age.)

An apology is the superglue of life. It can repair just about anything.

Yesterday’s posting concerned Jobvent.com, a web site designed to give employees a chance to anonymously rate and post comments about the companies they work for. For those of you who didn’t catch last night’s World News Tonight on ABC, the Internet may not be the safe and anonymous place everyone seems to think it is—as some bloggers have learned the hard way.

Blogging has swept the globe—by some estimates there may be as many as five million blogs out there, and that number grows daily. And any number of bloggers write about their jobs—recounting tales of workplace woes, insufferable bosses, and annoying co-workers.

Unfortunately in some cases bloggers have been “dooced”—fired over the content of their blogs.

Personally I’m not convinced that firing bloggers for writing about their jobs online is necessarily the right approach. Blogging may be symptomatic of a widespread internal problem that companies need to take seriously—a kind of corporate malaise that needs to be diagnosed and treated.

There are some tough questions companies should be asking themselves. Why do employees feel the need to vent online? Are there no mechanisms in place for employees to raise and address issues? If there are mechanisms, why were they not used in this case? How adequate are they? Does the company encourage or discourage open and honest communication between management and employees? What does the company do to promote dialogue and joint problem-solving?

Firing bloggers doesn’t eliminate the issues that prompted the blogging in the first place. Instead, it leaves them unresolved.

Wouldn’t surprise me if blogging doesn’t become the hot new topic in workplace mediation…

Like music, mediation hath charms to soothe a savage breast, to paraphrase English dramatist William Congreve.

In Missouri the St. Louis Symphony Orchestra has announced that management and musicians will sit down with a mediator in an effort to resolve a pay dispute that led to a strike by symphony employees. Concerts have been cancelled for several weeks as a result of the work stoppage.

Let us hope that mediation will help orchestra management and musicians transform cacophony into harmony.

Anyone who’s ever earned a paycheck has stories to tell of their worst job or boss ever. (I certainly have a few of those myself. ) And a few lucky souls are able to boast about jobs they love and colleagues they enjoy working with. Job satisfaction is important to many of us, but it can certainly be elusive.

Jobvent.com gives employees a forum for letting it all hang out and sharing their reviews of the companies they work for. This web site allows visitors to search for companies by name or click on the list of top 10 best and worst companies to find out what people have to say about bosses, benefits, pay, working conditions, and other concerns.

A brief glance at the gripes posted about the 10 Worst Companies is most instructive for anyone who is interested in conflict as a phenomenon in the workplace. Poor communication and lack of respect are evident, and result in low employee morale, decreased productivity, absenteeism, and attrition. Many of these reviews are imbued with an embittered sense of “us versus them”.

Companies could learn some lessons here—a kind of “How Not To Succeed In Business”. Being proactive never hurts either—implementing conflict management systems, as well as providing training for h.r., managers and employees can make a difference.

Employers take note. (Especially my old manager Bob, who always stuck me on the closing shift on Saturday night.)

Some of us just can’t stop thinking about football–after all, the next Super Bowl is only 363 days away. (Especially here in Boston, where fans are jubilantly celebrating the New England Patriot’s third Super Bowl victory in four years.)

And those of us mediator types who also happen to be football junkies sit up and take notice when a news story combines our two passions. Seems that the Cincinnati Bengals and the National Football League have just agreed to mediate a federal anti-trust suit filed by Hamilton County, Ohio. They’re working on selecting the mediators right now.

Stay tuned, sports fans.

To continue with the topic from February 5’s posting concerning the power of the apology in reducing litigation over medical errors, today’s Boston Globe carries a story unnervingly captioned “The horror of awakening during surgery“. (Yikes.)

The advice to anesthesiologists in the event this befalls a patient on the operating table? ”If a mistake was made, the doctor should apologize.”

Moral of the story: Never mind malpractice reform.

Just say you’re sorry.

Bertrand Russell, the influential philosopher, mathematician, political activist, and prolific writer, was a tireless advocate for peace and social justice. His words, such as those that follow, continue to hold relevance and meaning.

For love of domination we must substitute equality; for love of victory we must substitute justice; for brutality we must substitute intelligence; for competition we must substitute cooperation. We must learn to think of the human race as one family.

The Sri Lankan Daily News reports that the Legal Aid Commission in Sri Lanka has requested that a special mediation law be extended to cover all tsunami-related disputes that will inevitably rise in the aftermath of December’s disaster. The goal here is to ensure that indigent victims would have a speedy and affordable means of obtaining redress for their losses. Mediation is certainly an effective way to accomplish such a goal, particularly in light of the fact that there will undoubtedly be numerous claims and disputes resulting from the resettlement and reconstruction process.

While litigation can help plaintiffs recover damages or obtain injunctive relief, there is one type of relief that a judge cannot order one party to bestow upon another: a sincere apology. Mediation, on the other hand, promotes dialogue and helps parties engage in perspective taking. This often leads to recognition of impact of one’s actions on others, acceptance of responsibility, expressions of regret, and even the long-sought-for apology.

As a mediator, I cannot tell you how many times I have heard plaintiffs say, “Listen, the only reason I went to court is that they never even said they were sorry. If they’d told me they felt bad about what happened, we wouldn’t be here now.” Evidently, the power of those three magic words—“I am sorry”—cannot be underestimated.

University of Michigan hospitals put this premise to the test in a two-year study and concluded that apologies may be the best medicine for reducing medical malpractice suits by patients against doctors.

Click here for the full story from National Public Radio.

[Update: For a follow up to this story, please read "PHYSICIAN, HEAL THYSELF: Apologies found to reduce medical malpractice litigation".]