Monthly Archives: April 2006

In a move that has stunned members of the closely-knit alternative dispute resolution community here in Massachusetts, the Boston Bar Association (BBA) has announced that it has drafted a proposed amendment to the Massachusetts statute protecting mediation confidentiality and will hold a meeting on May 9 to provide stakeholders with an opportunity to submit their comments.

Together with the text of the proposed draft, the BBA has also released a Statement of Purpose explaining its reasons for developing this draft.

The statute as currently written applies only to mediators who enter into a written agreement with the parties and meet certain threshold requirements, including the completion of 30 hours of mediation training.

The BBA’s proposed draft, which would amend the confidentiality statute to codify certain public policy exceptions to confidentiality, omits entirely the training requirement for mediators and does not require a written agreement between the mediator and the parties. The proposed amendment defines a mediator merely as “an individual who conducts a mediation”.

These omissions would allow anyone at all, even those who have had no mediation training whatsoever, to be treated as mediators for purposes of the confidentiality statute. Theoretically then virtually anyone could assert this privilege and claim to be a mediator or a party to a mediation, creating an evidentiary nightmare for courts.

Reaction from mediators has been overwhelmingly negative. Many believe, as I do, that, if enacted, the BBA’s proposed amendment with its omission of training requirements for mediators would undo years of effort by many in the ADR field to improve the quality and integrity of mediation services and build public confidence in the profession. These efforts more recently included the 2003 addition of Rule 8, “Qualifications Standards for Neutrals“, to the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution. (Rule 8 sets forth training requirements for neutrals receiving court referrals and specify a minimum of 30 hours of training for mediators, together with a court orientation.)

Mediators I have spoken with are deeply troubled that the BBA did not obtain input from the broader ADR community in preparing this draft, an omission many view as inexplicable in light of the emphasis mediators place on collaborative efforts and transparency. Sentiment runs strong that any changes to Massachusetts law concerning the practice of mediation should occur only with full and public participation by and input from all stakeholders across the Commonwealth.

What the fate of the proposed amendment may be remains unseen, although given the reaction of mediators so far, it’s unlikely that this version will ever become law. Stay tuned.

Those who monitor treatments of negotiation and conflict resolution in popular culture (and who have strong stomachs) may want to tune in to Unan1mous, a U.S. reality television show now in its third week at Fox Broadcasting, and which the Washington Post has amusingly dubbed a “Zero Fun Game“.

(By the way, that’s not a typo you’re seeing—like the CBS series “Numb3rs” or the cheesy Brad Pitt flick, “Se7en”, “Unan1mous” follows the entertainment world trend to replace perfectly good letters with numbers in film and television titles–as much of an annoyance to type as they are to read).

The basic premise is this: nine individuals, sealed inside a windowless underground bunker, must make a single decision–to unanimously select one of themselves to receive $1.5 million.

Although the voiceover on the first episode melodramatically describes this as “a social experiment that will spiral completely out of control,” it is at bottom nothing more than a badly played negotiation game.

Contestants include a truck driver, a minister who runs an e-commerce business when she’s not preaching, a professional poker player, a human resources professional, a choreographer, a self-described “soccer mom”, a handbag designer, a real estate sales rep, and a “42 year old Temp Worker” (evidently a TV synonym for “loser”).

Each of these players must try to convince all the others that he or she should receive the prize money. Once the group reaches a unanimous decision, all the contestants are free to leave their captivity. If any of them leaves before a unanimous decision is reached, the prize money is instantly reduced by half.

We see the contestants use time-honored (and ineffective) strategies straight out of traditional, distributive bargaining–argument, persuasion, deception, appeals to sympathy, cultivation or subversion of alliances, and intimidation (this marks the first time I’ve heard eternal damnation invoked as a threat in a negotiation).

Tempers of course flare, and contestants begin behaving badly in predictable ways. Out of earshot of the others, some of them begin to reveal their true selves to the camera. On episode one, we hear the following confidences:

“My entire life is a game–but I play to win!” (the professional poker player)

“$1.5 million dollars is enough to make people lie, backstab, do whatever it takes. I know it is for me.” (the H.R. professional)

“What I tell the other people, what I don’t tell them, is very important. It’s like meeting a girl. You feed her a bunch of B.S. so you can bring her home [diabolical laughter].” (the real estate sales rep)

At the end of their first day of negotiations, the contestants not surprisingly fail to reach a unanimous decision. Consequences of course ensue, and the clock begins to run on the $1.5 million prize money, reducing it by a dollar for each second that passes until the contestants reach a unanimous decision at last. As of last night’s episode, the prize money had been reduced by more than half already, leaving just over $700,000.

Despite the utter ineffectiveness of the negotiation strategies they pursue, contestants are determinedly staying the course. An eternal optimist, I keep hoping that one of them will at some point turn to the others in a moment of inspiration and say, “Look, is there any way that all of us working together can beat the system and walk out of here with the prize money before it all disappears?” Surely cockroaches can’t be smarter than humans when it comes to problem solving.

However, at this point I’ve lost both interest and optimism–not to mention control over my family’s TV remote control device. You’ll just have to let me know how it all turns out.

Whatever my faults may be as a blogger, irregular posting is not among them. Readers will have to forgive me for nine days of unexplained silence here at Online Guide to Mediation.

Apart from the usual demands of work, I’ve unfortunately had a nasty malware infection to deal with on not just one, but two, computers. And this despite doing everything right–firewalls, updated virus definitions, and three (yup, that’s right, three) different anti-spyware programs on each laptop. (If you aren’t using it already, download Webroot’s Spy Sweeper–it saved my digital butt. It’s not free, but it performs its job with lethal accuracy, and, at $29.95 for a year’s subscription, it’s affordable.)

Now that my computers have been restored to health, it seemed somehow poetic to post about, well, bugs.

As I learned from this recent post at Collision Detection, Belgian researchers have demonstrated that cockroaches are able to make decisions as groups. They (cockroaches, that is, not Belgian researchers) approach problem solving in a democratic way, consulting with each other before making decisions. As one researcher told Discovery News,

Cockroaches are gregarious insects (that) benefit from living in groups. It increases their reproductive opportunities, (promotes) sharing of resources like shelter or food, prevents desiccation by aggregating more in dry environments, etc.

Let us hope that this news motivates us humans to work a little harder at collaboration. Otherwise, as Collision Detection author Clive Thompson says, cockroaches will definitely be inheriting the earth.

Sleep, as Shakespeare once observed and insomniacs know, possesses great restorative powers:

(In the interests of full disclosure, only one of the following quotes has anything to do with the themes typically associated with “Mediation Quote of the Week”.)

Today is Opening Day–New Year’s Day for baseball fans. In celebration, here are three of my favorite baseball quotes:

It breaks your heart. It is designed to break your heart. The game begins in spring, when everything else begins again, and it blossoms in the summer, filling the afternoons and evenings, and then as soon as the chill rains come, it stops and leaves you to face the fall alone.

~A. Bartlett Giamatti

That’s the true harbinger of spring, not crocuses or swallows returning to Capistrano, but the sound of a bat on the ball.

~Bill Veeck

Let the games begin.