Hard to say which is more annoying—reality television or spam. (Spam would probably get my vote, since there’s little I can do to prevent it from showing up in my inbox. Avoiding reality television is much easier—I just don’t have to watch any.)

Recently I got a double dose of annoyance in my email inbox: spam about reality television. The message came from someone claiming to be a representative for a casting company looking for contestants for Love Thy Neighbor, a new “comedy-reality series” debuting on TBS.

I hastened to the TBS web site, and learned that this is no urban legend. TBS does indeed have a new series in the works. This is what TBS has to say about Love Thy Neighbors:

Are you annoyed with your neighbors? Do their sprinklers flood your convertible? Does the menagerie of noisy animals in their backyard keep you up at night?

If your home, sweet home is turning sour thanks to your neighbors, we have the show for you!

I was hoping at this point that the next thing I would read would be something along these lines:

But no challenge is too great for our team of professional mediators, who are tough enough to help real-life Hatfields and McCoys kiss and make up.

Instead I read:

We’re looking for a set of neighbors willing to compete against each other in a new comedy reality series on TBS. If you’re fed up with the people next door or across the street, here’s your chance to even the score.

Revenge, not reconciliation, is evidently the focus of Love Thy Neighbor. I therefore figured that all this meant was that it would be a long time indeed before anyone gets around to making a TV show about mediation. (However, back in 2003 a casting call went out from “Cheri Sundae Productions”—no, I am not making that name up—for two divorcing couples willing to mediate their divorce while the camera rolls. The show, tentatively titled “Divorce Mediation” was supposed to begin filming in late 2003 and air last year on Discovery Health Channel, but no further word has been heard since. Which is probably a good thing. If you’d like to see the press release, go to http://www.mediation-works.org/pg204.cfm and scroll way down.)

It turns out I was wrong about mediation’s readiness for prime time. Britain’s Channel 4 is airing Families at War, a new reality TV program with a very different focus from Love Thy Neighbor. Here’s how Channel 4’s web site describes its new offering:

Would you like the chance to heal a family rift? Perhaps your family has fallen out over something big, or something small, and you don’t know how to resolve the problem.

RDF Media is producing a new series called Families at War for Channel 4 and are looking for feuding family members to come together under one roof in the hope of bringing about reconciliation. During the programme they will be helped by family peacemakers and a professional mediator. [Emphasis mine.]

(American readers may be interested to know that there are rumors that Families at War may soon be another British export to the U.S.)

Although I welcome the publicity Families at War will no doubt bring to the mediation field, I am concerned about how accurately the program will portray mediation. (Anyone who remembers the mediation scene from the Michael Douglas/Demi Moore flick Disclosure will know what I’m talking about: a stern-faced mediator, wearing a judge’s robes, conducts an adversarial process while a court stenographer seated in the background records the proceedings.)

Hopefully a program like Families at War will increase public understanding of mediation, not muddy the waters. We still haven’t been able to clear up the confusion between mediation and arbitration (or between mediation and meditation, for that matter). Despite the fact that mediation has become far more widespread of late, there remains perplexity in the public mind about what mediators actually do and how we do it.

While perhaps it’s true that there’s no such thing as bad publicity, let’s just hope that if mediation becomes reality television’s hot new topic, the media portray it positively, sensibly, and accurately so that the field—and the public—benefit.

And now for a word from our sponsor…

In a recent article entitled The Company We Keep: ADR, tort reform, and the erosion of justice, I took up cudgels in defense of litigation and attorneys.

It was not unreasonable of me then to hope for a little professional courtesy from my fellow attorneys who might perhaps return the favor by expressing as much support for mediation as I did for litigation.

My hopes were dashed at a program I attended recently on divorce law practice (the sponsoring organization and the location of this event shall remain nameless).

One of the topics on the agenda was the use of mediation by divorcing couples. There was no mistaking the fact that the program panelists, all of them attorneys, had strong opinions about mediation, none of them especially favorable:

“Mediators are not formally licensed by the state. All they need to have is 30 hours of training,” cautioned one panelist.

“Mediation can make sense when there are parenting issues to be discussed,” said a second panelist, “but generally speaking mediation can be a big waste of time and money. There are just too many cases that aren’t appropriate for mediation.”

“Mediation makes no sense when one party has a domineering, overpowering style and is a far stronger negotiator than the other party,” said a third panelist.

“It’s a waste of time for me to review an agreement that a mediator has drafted,” complained another, referring to the small amount of billable hours involved, “and it’s frustrating that they didn’t come to me first before going to a mediator—I could have helped them prepare for mediation.”

It’s not as if these folks weren’t making some valid points. Yes, currently mediators are not licensed or certified by the state. Yes, mediation is not appropriate for every case. Yes, it can be a problem when the parties are not equal in terms of bargaining power. And, yes, it’s an issue when parties insist on making important decisions without consulting with attorneys or other professionals first.

It was the lack of balance and accuracy in what the panelists had to say about mediation that was so troubling. Therefore, I provide here the counterpoint that was missing from the panelists’ discussion:

First, while it is true that there is currently no formal licensing or credentialing of mediators, most of us, regardless of what kind of work we do, have substantially more than 30 hours of training under our belts. Many of us undergo many hours of advanced training and continuing education, are members of professional associations, and attend on a regular basis conferences, roundtable discussions, and other programs relevant to our practice to keep our skills and knowledge up-to-date.

There are numerous sources of ethical rules as well at both the national and local levels which guide our professional conduct. In addition, many of us bring to our work as mediators relevant experience and training from our professions of origin—law, social work, psychology, finance, education, and so on.

Secondly, while it is true that not every case is appropriate for mediation, no one knows that better than mediators themselves. We conduct thorough intake, carefully screen cases before accepting them, and spend substantial time educating prospective clients about the process long before the first session gets underway. We are always alert for signs of physical or emotional abuse, financial malfeasance, or a lack of good faith on the part of any of the parties. Our goal is to ensure that mediation is going to be a good fit for the clients and the dispute. Because mediation is voluntary for both the parties and the mediator, something we make sure that clients understand up front, a party can walk away from the table at any time, and a mediator can terminate the mediation if continuing the process would violate ethical rules or not be in the best interest of the disputants or of third parties not present at the mediation (children, for example).

Third, while parties at the negotiating table are not always equals in terms of bargaining power, sophistication, and knowledge, skilled mediators work hard to address power imbalances and make sure that all parties are able to negotiate effectively. We ask tough questions of all parties, making sure our clients examine both the short-term and long-term consequences of the choices they’re considering. And, if the disparity in power between the parties is so great that one party cannot participate meaningfully in the mediation process, then a mediator will end the mediation.

Finally, mediators are just as concerned as attorneys that parties make fully informed decisions. It’s one of the fundamental principles of mediation. Therefore, as part of the intake process in divorce mediation, mediators typically recommend that parties consult with attorneys at all phases of the mediation process—to speak with attorneys in preparation for the mediation, to seek legal advice before making decisions or commitments, and to have their attorneys review any memorandum of understanding or agreement that the mediator drafts before the parties sign it. In fact, mediators encourage parties to consult with other kinds of professionals as well, depending upon the advice and input that’s needed—this could include the involvement of accountants, financial planners, appraisers, therapists, and so on. And these professionals, attorneys included, may participate in the mediation, if the parties choose.

Being an attorney myself, I would prefer to think that this distrust of ADR that I witnessed at the program I attended was rooted in a lack of understanding of mediation, rather than a competitor’s concern that mediation could spirit business away from a thriving divorce law practice.

As a mediator, I believe that there is a place for all of us at the table.

Mediators can save a divorcing couple time and money, enabling them to identify their areas of agreement, narrow the issues for the attorneys to address, communicate better, and, in the case of families, help parents continue to be partners in raising children.

And attorneys can provide individuals going through divorce with the advice and guidance they need to make rational, informed choices that will make sense not just for today but for years to come.

The contributions that both attorneys and mediators bring can make the divorce process less stressful and painful, and more productive and positive, for the clients who go through it. That seems reason enough for us to recognize, not diminish, the value that each of us brings.

- Hamilton Mabie

Idealism is a quality that many people who work for or volunteer with nonprofits possess in abundance. And nonprofits can always use the help and support of dedicated volunteers and staff.

This is certainly true in the conflict resolution field. Newly trained mediators and experienced practitioners look for opportunities to put their idealism and dedication to use, and nonprofit dispute resolution organizations and community mediation programs can benefit from the energy that new employees, interns, and volunteers can bring.

But sometimes people and nonprofits need help finding each other.

And that’s where a web site like Idealist.org comes in. Idealist.org helps match up individuals with nonprofit organizations.

According to its mission statement, Idealist.org

…connects people, organizations and resources to help build a world where all people can live free and dignified lives…Our work is guided by the common desire of our members and supporters to find practical solutions to social and environmental problems, in a spirit of generosity and mutual respect.

Individuals can sign up at no cost with “My Idealist” to receive emails about volunteer opportunities, job postings, internships, or upcoming events that match their interests. The web site is fully searchable, making it user-friendly for visitors to Idealist.org. I tested the search feature by entering the word “mediation” and turned up with a listing of 135 organizations, 23 volunteer opportunities, 19 job postings, and 5 internships.

Nonprofits and community organizations can sign up for free with Idealist.org to post information about upcoming programs, projects, events, initiatives, volunteer or internship opportunities. For a $50 fee, nonprofits can list a job posting on the web site as well.

Idealist.org also provides versions of its web site for speakers of French and Spanish.

Additional resources include Tools for Nonprofits to help nonprofits make the most of Idealist.org, and a special section for teachers interested in helping students initiate volunteer projects within their schools.

For more information or to register, visit Idealist.org.

There are those who say that conflict sells newspapers.

So it’s good news for mediators when the Fourth Estate promotes more collaborative means of resolving disputes.

An editorial in today’s Asheville Citizen Times put in a plug for mediation when it urged the Asheville City Council and the Buncombe County Board of Commissioners to work together to resolve an ongoing battle over water management issues. As the editor explained,

“Going to court would mean tens of thousands of taxpayer dollars spent to resolve the dispute. It would mean a judge, rather than the elected officials whose job it is, deciding how the water distribution system will work. The matter could take months or years to resolve as appeals wind their way through the courts. In the meantime, a water system desperately in need of repairs would continue to deteriorate…Going to court would also undoubtedly strain amicable feelings among local leaders—further damaging regional cooperation for decades.

In other words, resolving the matter in court is clearly not an acceptable alternative. Mediation, however, is. Time is running out. What’s needed is an impartial, well-trained mediator who can help all sides find common ground and reach an outcome that best serves all constituencies.

Given an effective process, people of goodwill can resolve seemingly irreconcilable differences.”

This is one journalist who understands that while conflict may sell newspapers, it does nothing to solve problems. Mediation, on the other hand, certainly can.

On May 19-21, 2005, Capital University Law School in Columbus, Ohio, is hosting the Second National Conference of Minority Professionals in Alternative Dispute Resolution: Promoting Opportunities for Minorities in ADR. Pre-conference trainings will be held on May 18, 2005, at the New Center for Professional Development at Capital University.

Keynote speakers are the Honorable Michael L. Douglas of the Supreme Court of Nevada, the first African-American to serve on Nevada’s highest court, and Donna A.M. Parchment, the Chief Executive Officer of the Dispute Resolution Foundation in Kingston, Jamaica, and a leader in the Commonwealth Caribbean ADR field.

Conference workshops include:

• Designing and Implementing ADR Programs in Corporate America: Opportunities for ADR Professionals
• Mediation in an International Multi-Cultural Environment: Lessons Learned from the World Bank Group
• Confronting Barriers in Operating a Minority ADR Firm
• African-American Scholars and Practitioners in the Field of Conflict Resolution/ADR: Preliminary Research Findings
• Wisdom From Our Elders: Oglala Lakota Perspective

For information or to register, visit http://www.law.capital.edu/adr.

AM, the Australian Broadcasting Corporation’s early morning current affairs program, reported this morning that Australian legislators and jurists may be contemplating a change to the Australian criminal justice system. Under consideration is the use of mediation in place of jury trials in criminal matters, a system already utilized in Canada. Judges would serve as mediators between the prosecution and defense counsel, although the victim and the accused would not be present for the negotiations.

For links to the transcript, or to the story in Real Audio and Windows Media formats, click here.

Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.

- Margaret Mead

From April 4 through 8, 2005, the Center for Information Technology and Dispute Resolution (CITDR) will be holding Cyberweek 2005, its seventh annual online conference.

According to the announcement released by Ethan Katsh, Director of CITDR, the events and programs planned for Cyberweek include:

• Release of the new ODR library and database
• Discussions with leading practitioners and theorists about the present and future of ODR
• Report on the UN Forum on ODR 2004
• The 2005 International Competition on Online Dispute Resolution (presently ongoing)
• Seminar on the challenges in planning and implementing ODR efforts - examples from Sri Lanka, the Phillipines and Great Britain
• Panel discussion on teaching ODR
• Seminar on public sector ODR - the University of Massachusetts/National Mediation Board/National Science Foundation project
• Demonstration of teaching and collaborating in groups with Moodle
• Simulated dispute resolution processes
• Demonstrations involving ConflictLab.com, SmartSettle.com, Info-Share.org and others

Registration is free, and online dispute resolution practitioners, as well as anyone interested in learning more about the online dispute resolution field, are welcome to attend.

As discussed in an earlier posting, the confidentiality of the mediation process enables disputants to engage in candid discussions without the risk that the information shared and options considered could later be used against either party in court later on. Confidentiality, while important to maintain the trust of parties in the mediation process, is a two-edged sword and can become an issue when the mediation addresses matters of great concern to the public, which is the situation in Corvallis, Oregon.

In a story reported this morning, the Corvallis School District and the Corvallis Education Association recently negotiated a new teachers’ contract with the assistance of a mediator, whose responsibilities included the preparation and submission of a fact-finding report. The parties had agreed that the report would remain confidential unless they were unsuccessful in reaching an agreement. Oregon law apparently permits governmental officials to withhold such documents from the public. But some, including at least one parent, are requesting the School District to make the report public to shed light on the financial issues that Corvallis schools are facing. Oregon law does not prohibit the disclosure of such reports, but whether school officials and the teachers’ union will agree to release the report remains to be seen.

Inclusive Security: Women Waging Peace is a program aimed at promoting the involvement of women in addressing conflict around the world. Its primary goals include:

“building a network of women peacemakers;

“making the case that women make vital contributions to conflict prevention, peace negotiations, and post-conflict reconstruction efforts; and

“shaping public policy by generating support from policymakers for women’s agency in promoting security.”

Because women“are adept at bridging ethnic, religious, political, and cultural divides,” Women Waging Peace aspires to empower women throughout the world to play an instrumental role in addressing and resolving conflict wherever it occurs.

For more information about the ongoing efforts of Women Waging Peace, please visit their web site.

Balancing the demands of faith and work has increasingly become an issue for American businesses.

Such was the case at Dell Inc., in Nashville, Tennessee, when thirty Muslim employees walked off their jobs in February to protest Dell’s refusal to allow them to stop work for sunset prayers. According to an Associated Press release issued today, the workers have elected to take this issue to mediation, which is being handled through Nashville’s Human Relations Commission. Under federal law, employers must accommodate employees’ religious beliefs or practices so long as doing so would not constitute an undue hardship.

Religion in the workplace can lead to other tensions as well. As more businesses welcome spirituality into the workplace, complaints by employees have surfaced alleging that non-believers are subjected to hostile work environments by proselytizing co-workers.

Workplace mediators and ADR specialists will want to follow these trends closely as expressions of spirituality and faith continue to become more commonplace in business settings.

The aim of argument, or of discussion, should not be
victory, but progress.

Joseph Joubert

The central tenet of Judaism is contained within the exhortation, Hear, O Israel, the Lord Our God, the Lord is One. It is a call to listen closely, to heed the voice of God.

The importance of listening is emphasized in Christianity as well. Benedictine monks, for example, practice silence as a way to listen more attentively to God: “He who has ears to hear, let him hear”, Matt. 11:15.

Listening, as mediators know, is also the cornerstone of mediation practice. Mediators listen closely to the perspectives of parties in conflict. And through mediation disputants are able to listen to each other.

In light of this parallel it is perhaps not surprising that approaches to mediation have emerged that are deeply rooted in religious traditions and values. Faith-based mediation services have sprung up tailored to the special needs of disputants who are members of a particular denomination or faith.

The Jewish perspective

Jewish mediation practice is inspired by the spiritual mandate of tikkun olam , the obligation to repair and bring healing to a broken world. It includes the promotion of justice and peace through social action. Tikkun olam offers inspiration for the work of a number of Jewish mediators.

One program whose work gives expressions to these goals is the Jewish Community Justice Project in West Los Angeles which “brings together victim, offender and volunteer mediator in a voluntary conflict resolution process guided by Jewish values and tradition.”

Besides addressing community and neighborhood issues, mediation services incorporating Jewish values also focus on divorce and family concerns. This could include helping parents continue to work together collaboratively to raise children during and after divorce, or assisting a divorcing couple to obtain a religious divorce and a Get, or written decree of divorce under Jewish law.

Mediation in the Christian context

Christianity’s sacred texts place great value on peacemaking: “If it is possible, as far as it depends on you, live at peace with everyone,” Romans 12:18. The word “peace” itself appears numerous times throughout the New Testament.

A number of organizations provide mediation services built upon Christian teachings. For example, the U.K.-based Resolve: Christian Mediation and Arbitration Service, an affiliate of the International Christian Chamber of Commerce, “exists to encourage and assist Christians to respond to conflict in a biblical manner. Its primary purpose is to provide an advice and mediation service to help resolve disputes whether arising in business, church or family and to reconcile the parties involved.” Another organization, Peacemaker Ministries, a non-profit based in Montana, has a more far-reaching objective: it “trains and assists Christian adults and children to resolve personal, church, business, and legal conflict through biblical peacemaking, negotiation, forgiveness, reconciliation, mediation, and arbitration.”

Beyond the provision of mediation services, there are of course faith-based organizations actively involved in peacemaking efforts generally on local and global levels. For a list of some of these organizations, click here.

Over the years alternative dispute resolution (ADR) in all its forms has proliferated, increasing in popularity and accessibility. Mediation and arbitration are widely perceived as affordable, time-saving, private means for resolving disputes, presenting an appealing alternative to the expense, delay, and uncertainty that can characterize litigation.

Mediation and other forms of ADR can certainly spare people the emotional toll and financial costs that adversarial processes like litigation can produce. A friend of mine who mediates workplace and family disputes recently worked with a divorcing couple who came to mediation after spending thousands of dollars on attorneys’ fees. They had realized that they were wasting both time and money battling over issues that they could work out far more cheaply, efficiently and painlessly with the help of a mediator. And what is true in divorce cases is equally true of other kinds of disputes.

My first exposure to ADR came through my initial training by and subsequent volunteer work with grassroots community mediation programs, where mediation is used to bridge differences and empower individuals to become themselves the architects of positive change. Programs like these, which are founded upon idealism, optimism, and an abiding faith in humankind, undoubtedly do much good.

ADR’s success extends well beyond the grassroots level. ADR exists on both micro and macro levels, and today ADR is equally at home in the private and public sector, in schools, in neighborhoods, in federal agencies, in workplaces, in the military, in local, national and international conflicts, and even of course on the Internet.

But the Force, as any Star Wars fan can tell you, has a dark side.

The advantages that ADR offers over litigation have not gone unnoticed by corporate America. Litigation is an expensive proposition for corporations, and the public nature of trial and the evidence that discovery produces can result in embarrassing public revelations regarding corporate policy. Mediation and arbitration, on the other hand, conducted in private and shielded by confidentiality, produce speedy resolutions without public disclosure. ADR has become increasingly attractive to corporations who want to find ways to limit their liability and reduce exposure. Private remedies like arbitration and mediation shield corporate acts from public scrutiny and can result in the concealment of patterns of corporate misconduct.

The prevailing view in Washington is that litigation and jury trials have been bad for corporate America and that reform is urgently needed. Powerful business interests have been lobbying hard to limit access to courts, place caps on the amount of damages a jury can award, and place restrictions on class action lawsuits. (For example, Congress recently approved legislation aimed at restricting the power of state courts to hear class action lawsuits, requiring many of these suits to be filed in federal court instead where class action plaintiffs are less likely to enjoy a sympathetic reception. Good for business, very bad for consumers, patients, employees and others affected by negligent, unethical or illegal corporate practices.) Those sounding the drumbeat for litigation reform have been successful in influencing public opinion of trial attorneys and plaintiffs.

ADR unfortunately has become a piece of this overall pattern, increasingly utilized by the powerful to limit access to the courts by those less powerful. Mandatory arbitration, for example, has become a common feature of many consumer agreements, including everything from health care coverage to the purchase of an automobile. If you have a credit card or motor vehicle insurance, read the fine print—your agreement with either your credit card company or your insurer may well require you to arbitrate any disputes that arise—and most likely in a forum convenient for the company, not for you. And many large corporations—not surprisingly, Halliburton, friend of the current White House, is among these—have instituted mandatory ADR programs to address workplace disputes.

This trend is an alarming one. Those of us who are ADR practitioners need to be very careful of the company we keep and the uses to which ADR is put in our name.

ADR was conceived as a way to do much good, to provide a cost-effective process in which all parties participate on a level playing field, resolution can be achieved quickly, and which produces outcomes capable of creating winners out of everyone. We need to ensure that the affirming principles on which ADR was founded do not become distorted or manipulated for harmful ends.

We should resist the lawyer-bashing that seems to characterize much of the public conversation about litigation today. And let us stop spreading the notion that all litigation is bad—a view I have heard even well-meaning mediators advance in a misguided effort to promote the ADR field.

Litigation and ADR each have their place. There is much that each can offer, depending upon the parties, the case, and the issues at stake.

Mediation can result in what litigation by its nature does not typically allow for: dialogue, reconciliation, and closure. Arbitration avoids the delays of trial, bringing speedy resolution in an informal and private setting. And litigation can be the surest path to uncover truth, right wrongs, and achieve justice.

We need to ensure that all these avenues remain open and be cautious in our enthusiasm to promote the ADR field that we do not risk closing any of them.

May the Force be with you.

Difficulties are meant to rouse, not discourage. The human spirit is to grow strong by conflict.

- William Ellery Channing

Earlier I had reported on Jobvent.com, a web site allowing employees to post anonymous ratings and comments about the companies they work for.

But another web site, Anonymous Employee, has taken this concept many leagues further by offering employees a confidential online dispute resolution mechanism for raising and addressing workplace concerns. As the web site explains:

AnonymousEmployee.com provides employees with the opportunity to express anonymous problems and concerns in the workplace. Employees can inform their employer of the issues they face in the workplace, without needing to reveal their identity. As an employee, you can recommend solutions to problems so that your employer can better understand your needs…The entire process can take place within the privacy of your own home, library, or friend’s house…

If your issue is serious enough, we can contact your company on your behalf so that they are doubly aware of the problem. If your issue has escalated beyond the point where communication can solve the problem, then Anonymous Employee also offers you the ability to request assistance such as professional mediation or legal advice. Issues such as corporate fraud, harassment, workplace bullying, pay inequities, unjust termination, workplace safety and more should be resolved in a positive, constructive setting where you can speak out without jeopardizing your job.

Thanks to Colin Rule and the Center for Information Technology and Dispute Resolution for reporting on Anonymous Employee in CITDR’s ODR News Blog.

In a remarkable demonstration of support for mediation at the highest levels of government, U.K. Civil Justice Minister David Lammy has announced the launch of a National Mediation Helpline aimed at providing people with personal injury, small claims, business or consumer disputes information on using mediation as a way to resolve these matters without the expense and delay of going to court.

This one-year pilot program is the creation of the Department for Constitutional Affairs and the Civil Mediation Council. It was envisioned as a way to raise public awareness throughout the U.K. of the benefits that mediation offers.