Mediation can help individuals in conflict gain new perspective, bringing fresh insight and understanding of each other and the underlying conflict.

To enable disputants to see things differently, mediators utilize a technique called “reframing” to assist parties to redefine the way in which they understand or conceive of a problem. Bernie Mayer said it best: “The art of reframing is to maintain the conflict in all its richness but to help people look at it in a more open-minded and hopeful way.”

As it turns out, humans already possess a great capacity for seeing things in a more positive light. Those of you who are fascinated by the mysteries of human behavior will find much to ponder in two studies described in this article from the Wall Street Journal which xamined the human propensity to interpret negative outcomes in the most positive light possible.

Most of us would safely assume that we would recognize immediately when an outcome resulted which we did not intend, particularly when that outcome is not our desired one. But a study on decision-making, conducted by researchers at Lund University, challenged that assumption. Subjects were convinced that those less desirable outcomes were the ones they had actually intended, despite the evidence of their own senses.

In addition, research conducted by Professor David Gilbert of the Department of Psychology at Harvard University reveals that our brains “strive to provide the best view of things”. In tests performed using optical illusions in which an object can be perceived in any number of ways, when humans were rewarded for seeing one particular view of that object, they were no longer able to perceive the object’s other views. In other words, we are hard-wired to see things in the best and most rewarding light possible. For further details, read Professor Gilbert’s online article at Edge.org.

This ability to see the best view of events and objects obviously helps us as humans build resiliency and adapt to change, particularly when that change is difficult. It undoubtedly aids us when we are faced with conflict. Reframing comes naturally to us.

(This does raise some intriguing questions for mediation practice. Do we do good or harm when we assist parties in reframing their conflict? Should mediators be wary of exploiting the human susceptibility to see intention and choice in unintended outcomes, to see the positive in less than optimal results? Or does reframing innocuously and simply draw upon our natural propensity to seek the view that is most rewarding and ultimately lead people to optimal choices? And what do these studies suggest about choice and informed decision-making on the part of disputants at the table?)

Ethical questions for mediators aside, Professor Gilbert’s article on his studies includes a link to a brilliant animated version of Necker’s cube, a mind-boggling optical illusion, courtesy of Mark Newbold, which shows how many different ways there are of seeing something. While you’re on that page, be sure to follow the link to SandlotScience.com, a web site featuring one of the best collections of optical illusions I’ve ever seen.

(With thanks to Brad Spangler and his excellent article on reframing at BeyondIntractibility.org. For a different perspective on reframing, download David Hoffman’s article, “Mediation and the Meaning of Life” (alas, in PDF format only), originally published in the Summer 2005 edition of Dispute Resolution Magazine.)

Halloween is hands-down my favorite holiday. It lacks the stress of other annual celebrations. There’s no turkey to cook, no presents to wrap, no family arguments igniting at the supper table (resulting in what my son likes to describe as “dinner and a show”). Halloween is a guilt-free holiday devoted to fun. Besides, it’s an excuse to indulge my fondness for miniature Milky Ways.

Speaking of Halloween, probably one of the strangest questions I’ve ever fielded came from a psychic who phoned to find out if I’d be willing to conduct a mediation between an individual and a deceased family member. Since that’s a job for a medium, not a mediator, I had to decline. (Besides, even assuming that the logistical difficulties could be overcome, there’s always the issue of how to get the dearly departed to sign the Agreement to Mediate.)

The supernatural admittedly holds a certain fascination, particularly around this time of year. In keeping with the season, my local newspaper, the Boston Globe, ran an article the other day on “psychologically impacted houses”—houses which have been the scene of violent crimes or the site of purported paranormal activity.

Unsurprisingly, a house’s unsavory past or reputation for spookiness reduces significantly the marketability of a home, which means that psychologically impacted houses take 50% longer to sell and sell at a lower price than ordinary houses.

One question that often arises is what duty does a seller or landlord have to disclose to a prospective buyer or tenant information regarding a home’s dark past?

As it turns out, maybe none, depending upon what state you happen to live in.

Approximately half of all states in the U.S. have statutes addressing the circumstances under which a house is said to be “psychologically impacted”. In most of those states brokers and sellers alike are protected from liability for failure to disclose the psychological impact.

In my own state, Massachusetts, the law, Chapter 93, Section 114, defines “psychologically impacted” to mean

an impact being the result of facts or suspicions including, but not limited to, the following:
(a) that an occupant of real property is now or has been suspected to be infected with the Human Immunodeficiency Virus or with Acquired Immune Deficiency Syndrome or any other disease which reasonable medical evidence suggests to be highly unlikely to be transmitted through the occupying of a dwelling;
(b) that the real property was the site of a felony, suicide or homicide; and
(c) that the real property has been the site of an alleged parapsychological or supernatural phenomenon.

Although the law does not impose an affirmative duty on sellers and brokers to disclose information of this nature to buyers up front, if a prospective buyer asks if a house is haunted, the seller or broker is required to tell.

There is at least one case on the books that deals with a poltergeist haunting and a buyer’s efforts to rescind the deal. In Stambovsky v. Ackley, 572 N.Y.S.2d 672 (1991), a case from New York, a buyer sought to rescind the contract of sale and to recover his down payment following his discovery that the house he intended to buy was the site of poltergeist disturbances.

Although I would have assumed that the buyer didn’t have the ghost of a chance, the court sided with the buyer, holding that “as a matter of law, the house is haunted” and allowed rescission of the contract of sale and recovery by the buyer of his down payment.

Since we’re on the subject of lawsuits involving the supernatural, a prisoner in Romania has purportedly sued God for failing to save him from the Devil’s influence and for breaching the contract the prisoner’s baptism constituted. Court officials have apparently said that they would have to dismiss the action because of service of process issues.

Which brings to mind a case I remember from law school days, U. S. ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D.Pa. 1971). The case, as reported, reads as follows:

Civil rights action against Satan and his servants who allegedly placed deliberate obstacles in plaintiff’s path and caused his downfall, wherein plaintiff prayed for leave to proceed in forma pauperis. The District Court, Weber, J., held that plaintiff would not be granted leave to proceed in forma pauperis who in view of questions of personal jurisdiction over defendant, propriety of class action, and plaintiff’s failure to include instructions for directions as to service of process. Prayer denied.

The devil, as they say, is in the details.

Happy Halloween, everybody.

Speaking of Mediation Week, educating the public about the benefits of mediation is probably not a bad idea in a country grappling with how best to deal with instances of anti-social or unneighborly behavior.

On the rise in the U.K. is the use of the anti-social behavior order (“asbo” for short), a court-issued injunction prohibiting an individual from acting, in the words of the applicable law, “in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself.” Violation of an asbo holds serious consequences and can result in arrest and jail time for transgressors.

Asbos have been used successfully in communities to address repeated patterns of violence, vandalism, intimidation, and racial harassment, according to the government’s Crime Reduction Website.

Despite their apparent success in curbing problem behavior and cleaning up troubled areas in urban neighborhoods, asbos are increasingly the subject of media attention and controversy, eliciting the criticism of groups or initiatives like AsboConcern and ASBOwatch, which are concerned with the overuse or misuse of asbos as a means of controlling behavior.

Reports abound of inappropriately issued asbos—against an 87-year-old man charged with making sarcastic comments about his neighbors, children with disabilities, and even a pet sheep accused of eating the flowers in a town cemetery.

Of course a mediator like me can’t help but wonder whether any of these cases may be better suited to mediation for resolution rather than court intervention, particularly those involving disputes between neighbors. It is therefore worth noting that web sites like the U.K.-based Community Legal Service Direct offer advice and tips on dealing with community and neighborhood disputes, dispensing information not only on asbos, but on mediation as well as a remedy.

This is a busy week for globe-trotting mediators. Not only does today mark the official opening of Cyberweek, the Center for Information Technology and Dispute Resolution’s annual online conference attended by dispute resolution professionals, attorneys, and others from around the world, but tomorrow kicks off Mediation Week in the U.K., an event aimed at raising awareness of the benefits of mediation as an appealing and effective alternative to litigation.

Sponsored by Britain’s Department for Constitutional Affairs and Her Majesty’s Courts Service, Mediation Week is actually a bit of a misnomer, since this observance extends over an 11-day period from October 24 through November 4.

Events for the public have been scheduled at county courts throughout England and Wales to provide information and answer questions regarding mediation. (See the events page as well for a list of useful ADR links and resources in the U.K.)

Survey responses to the September 2005 Question of the Month have been posted to the web site for the American Bar Association’s Section of Litigation.

September’s question, as you may recall from an earlier post, asked attorneys, “Are you using alternative dispute resolution more often in your practice than in the past?”

An incredible 87% answered “yes”, with some positive reactions about ADR’s benefits (cost effectiveness, more choice for clients), along with some minuses.

This month’s question concerns a topic I have explored here before—public perception of lawyers. October 2005’s question asks, “Lawyers make for good press. From Boston Legal to the evening news, does the media portrayal of lawyers affect the public’s perception of the profession?”

Click here to offer your own two cents.

As you ponder that question, you may like to drop by Picturing Justice: The Online Journal of Law and Popular Culture, the University of San Francisco School of Law’s web-based project examining film and television depictions of law and lawyers.

And visit the Law in Popular Culture Collection at the University of Texas School of Law Tarlton Law Library, where you can find law review articles like “Bad Lawyers in the Movies”, which explore the law through the lens of popular culture.

I just received a newsletter from Stewart Levine of Resolution Works reminding his subscribers that the Association for Conflict Resolution has declared this Thursday, October 20, to be “Conflict Resolution Day”. (Readers may remember last month’s post on Stewart and ResolutionWorks Online, the web-based conflict resolution training tool he pioneered.)

ACR’s web site includes a list of events (note that the state of Florida has outdone everyone else by declaring this entire week to be “Conflict Resolution Week”), a link to a Conflict Resolution Day wiki, and suggestions on how to observe Conflict Resolution Day in style.

For further information, drop by the ACR web site.

The Washington Post reported earlier yesterday that donations are slowing as more disasters strike here in the U.S. and around the world. Meanwhile, the death toll continues to mount in the aftermath of the October 8 earthquake that rocked South Asia, and assistance for survivors is urgently needed.

Among the sites accepting donations are:

The International Red Cross and Red Crescent Movement

UNICEF

Doctors Without Borders

Islamic Relief Worldwide

Save the Children

As numerous news sources reported today, two game theorists—one an economist, the other a mathematician, were awarded the Nobel Prize in economics yesterday. According to its press release, The Royal Swedish Academy of Sciences “award[ed] the Bank of Sweden Prize in Economic Sciences in Memory of Alfred Nobel, 2005, jointly to Robert J. Aumann, Center for Rationality, Hebrew University of Jerusalem, Israel, and Thomas C. Schelling, Department of Economics and School of Public Policy, University of Maryland, College Park, MD, USA, ‘for having enhanced our understanding of conflict and cooperation through game-theory analysis’.”

By the way, a great online resource on game theory for educators, students, professionals, and “geeks” (at least that’s what the web site says) can be found at GameTheory.net.

There’s plenty of interactive materials and games available for game theory enthusiasts, and even links to references to game theory in popular culture.

From October 23 through 28, 2005, the Center for Information Technology and Dispute Resolution (CITDR) will be holding its eighth Cyberweek, an annual online conference which attracts visitors from all over the world. This year CITDR partners with the InternetBar to explore online dispute resolution, eLawyering, and ethics at the intersection of law, technology and cyberspace.

Registration is absolutely free (how great is that?). Anyone who is interested in the brave new world of ODR and the law in the 21st century should definitely attend (and that includes all you blawgers out there).

Hope to see you at Cyberweek. Click here for more details or here to see what’s in store.