Here’s a follow up to last week’s post about the American Bar Association ethics opinion distinguishing between “puffing” on the one hand and “false statements of material fact” on the other in caucused mediations, and which bestowed its blessing upon the former but not the latter.

This week’s edition of Blawg Review links to a post on the Psychology of Compliance & Due Diligence Law blog about a new book for the legal profession, Lawyers’ Poker : 52 Lessons that Lawyers Can Learn from Card Players.

Consider this from the book’s description on Amazon.com (and negotiators, be sure to note the zero-sum imagery):

Great poker players are master tacticians. Not only do they calculate odds with lightning speed and astonishing precision, but they also cunningly anticipate and manipulate the actions of their adversaries. In short, they boast skills that every lawyer can envy. This highly entertaining work might best be summed up as “better lawyering through poker.” Steven Lubet shows exactly how the tactics of the poker table can be adapted to litigation, negotiation, and virtually every aspect of law practice. In a series of engaging and informative lessons, Lubet describes concepts like “betting for value,” “slow playing,” and “reverse bluffing,” and explains how they can be used by lawyers to win their cases. The best card players, like the best lawyers, have a knack for getting their adversaries to react exactly as they want, and that talent separates the winners from the losers.

When I consider the preceding passage together with the recent ABA ethics opinion, some questions for lawyers, negotiators, and mediators come readily to mind.

Let me say first that as someone who enjoys a good card game (and in fact married my husband in Las Vegas), I have nothing against poker, cards, gambling, winning, losing, or even using those analogies in describing litigation tactics or outcomes. In fact, gambling metaphors lend themselves very nicely to depicting the risks inherent in litigation–it’s the leverage that mediators use when we urge parties to weigh their alternatives.

But should we attorneys and negotiators rejoice to hear these metaphors applied not only to litigation but “virtually every aspect of law practice” including “negotiation”? Are we truly supposed to believe that skill in “manipulating the actions of their adversaries” is a virtue that “every lawyer can envy”?

More to the point, do we really want to be comparing ourselves to card sharks and gamblers when public opinion of lawyers has never been so low? (Although, ironically, just ask anyone what qualities they would wish for in the attorney that represents them, and most people would answer emphatically that among those qualities would be the ability to “cunningly anticipate and manipulate the actions of their adversaries”. But that’s a post for another time.)

As for mediators, if mediation is, as we like to say, “assisted negotiation“, is this the kind of negotiation we want to be assisting? What does it do to public confidence in mediation if we allow parties to “puff”, bluff, and manipulate their way to settlement, even if it does have the ABA’s seal of approval? We still have a responsibility to the process, to our profession, and to ourselves.

Otherwise, in the end, everyone loses. And is that a gamble mediators should be willing to take?

Mediators everywhere (along with poultry farmers) will be relieved to know that one age-old conflict has at last been put to bed: a group of three experts agree that it was the egg, not the chicken that came first.

(Via the always surprising Infamy or Praise.)

Among the tools that mediators bring to the negotiating table the most powerful may be reframing. In the words of Bernie Mayer, “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.”

Reframing is also what gives successful entrepreneurs and business leaders the ability to see possibilities where others see problems. This model for problem solving is known as Appreciative Intelligence (AI), according to the two organizational design experts, Tojo Thatchenkery and Carol Metzker who describe and analyze its qualities and characteristics, along with methods for cultivating it, in a new book, Appreciative Intelligence: Seeing the Mighty Oak in the Acorn.

As this article from Ode Magazine explains,

Appreciative intelligence can be defined as the capability of perceiving the inherent generative potential within a situation at hand. Put simply, appreciative intelligence is the ability to see the mighty oak in the acorn. It is the capacity to see a strong trunk and countless leaves emerging from this small nut as time unfolds. It is a knack for seeing a breakthrough product, top talent or valuable solution for the future hidden in the present.

This should all sound very familiar to mediators.

Appreciative Intelligence grew out of Appreciative Inquiry, a method for engaging organizations and groups in developing and implementing positive change and achieving potential.

For more information on Appreciative Inquiry, you can visit the Appreciative Inquiry Commons web site.

(With thanks to Stephanie West Allen for introducing me to AI and for sharing many of these links. Stephanie is currently working on an interview with Carol Metzker for her blog, Idealawg, to be published soon.)

If you’re interested in the subject of diversity (and I don’t know anyone in the dispute resolution field who isn’t), visit Law Firm Diversity: A Rational Discussion, a new blog which launched earlier this month.

According to its author, Mister Thorne, Law Firm Diversity

…is intended to promote a rational discussion about what’s called the business case for diversity: the creativity and problem-solving ability of a group is a function of diversity.

Thorne asks, “Is there any rational justification for the claim, or is it hyperbole? And if it’s hype, why does most every Am Law 200 firm make the claim? Who’s in the audience for it?”

This blog, in addition to the usual “About This Blog” and “About Me” pages, also features an “About You” page which urges readers to join the conversation:

What I do know is this — in order for this blog to achieve the goal of being The Place for a rational discussion of law firm diversity, you need to participate. You need to share your thoughts and ideas. Go ahead and discuss a delicate topic of interest.And if you’re uncomfortable with the idea of being too closely associated with your own thoughts, feel free to post your comments anonymously.

Intrigued? You can participate here.

(Thanks to Robert Ambrogi’s LawSites for the link.)

Those of you who are on the alert for depictions of attorneys in popular culture should take a look at this pizza ad campaign for Donatos Pizza, which hilariously lampoons ambulance-chaser web sites.

(Via the Duct Tape Marketing Blog.)

Technorati tags: Culture and Society, Lawyers

Yesterday Americans observed Memorial Day, a federal holiday here in the U.S., originally established to honor Union soldiers who perished during the American Civil War, which now serves as a national day of remembrance for all Americans who died providing military service to their country.

This week the anonymous editor of Blawg Review hosts a moving special edition commemorating the wartime dead, which in the words of one law blogger, “literally made me weep this morning”.

Blawg Review #59 includes a link to The Memory Hole, a web site posting photos of flag-draped military coffins arriving at Dover Air Force Base containing the bodies of those killed in the Iraq and Afghanistan wars. The site’s publisher, Russ Kick, obtained the release of these photos from the U.S. government under the Freedom of Information Act despite a Pentagon directive forbidding the distribution of such images.

Blawg Review #59 also folds in this touching haiku from law blogger and poet David Giacalone:

vietnam memorial –
a tear in
the old protestor’s eye

This edition of Blawg Review ends with the following observation from 60 Minutes news correspondent Andy Rooney:

Remembering doesn’t do the remembered any good, of course. It’s for ourselves, the living. I wish we could dedicate Memorial Day, not to the memory of those who have died at war, but to the idea of saving the lives of the young people who are going to die in the future if we don’t find some new way — some new religion maybe — that takes war out of our lives. That would be a Memorial Day worth celebrating.

Mediators should be aware that the American Bar Association has apparently given its stamp of approval to the practice of “puffing” in negotiation, including caucused mediations:

Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a party may not make a false statement of material fact to a third person. However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing,” are ordinarily not considered “false statements of material fact” within the meaning of the Model Rules.

Frankly this is way too nuanced for me, and I don’t think the ABA has done mediators and lawyers any favors with this “clarification”. Puffing good, lying bad–you be the judge.

You can download “Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation” in PDF here.

(Thanks to Knight on Family Law for the link.)

Technorati tags: Lawyers, mediation, negotiation

National Institute for Advanced Conflict Resolution(NIACR) has announced the winners of its first Annual Mediation Blog Roundup, naming five as the top mediation blogs.

Winners are this blog, Online Guide to Mediation, ranked #1 and selected as Editor’s Choice, Geoff Sharp’s Mediator Blah…Blah…, Tammy Lenski’s Mediator Tech, Mediation Mindset by Anthony Cerminaro, and Florida Mediator by Perry Itkin. Congratulations to everyone. You can read all about it right here.

To the best of my knowledge, this is the first time that any organization has recognized mediation blogs as a unique genre. I know that I am certainly grateful for the recognition and appreciate that NIACR took the initiative here in raising public awareness of the value that blogs can add to the Internet conversation, particularly with respect to a field that actively promotes dialogue and collaboration.

What has been tremendously exciting has been to see the growth in popularity of blogging among conflict resolution professionals just within the past 12 months. Today there exist 25 active blogs devoted to alternative dispute resolution with 13 additional blogs that regularly feature posts about ADR for a grand total of 38. It may not sound like much, but when I started doing this, you could count us all on one hand.

I hope to continue to add names to my Directory of Alternative Dispute Resolution Blogs in the coming months. In fact, I’m breaking ground on a new home for the Directory at www.adrblogs.com and hope to announce a housewarming party soon.

Technorati tags: alternative dispute resolution, blogging, mediation, mediation blogs

Anyone who has ever gotten married (or reads Dear Abby) knows only too well how many family feuds are sparked by wedding plans (which is probably why my husband and I eloped to Las Vegas). Battles can and do ensue over guest lists, menus, ceremonies, religious traditions, and who’s paying for what.

Stepping in to pour oil on troubled waters are wedding planning mediators who help couples and family members resolve thorny issues to prevent nuptial arguments from leading to divorce court.

(Thanks to my friend Bill Warters for kindly alerting me to this story.)

Technorati tags: conflict resolution, mediation

Stephanie West Allen, who publishes the blog Idealawg, sent me this article which attributes an increase in professional civility among lawyers to the use of mediation and arbitration to resolve disputes.

(Thanks, Stephanie, for the link.)

Blawg Review, for those who haven’t discovered this weekly review of the best in law blogging, is a worthwhile read for anyone interested in keeping abreast of the latest legal issues and news, and that includes us alternative dispute resolution professionals. It’s always informative, not to mention entertaining (as you’ll see from Blawg Review #56, which bears the spicy title, “Blawg Review #56: Sex, Virtual Weddings, and Baseball”).

Since the host changes each week, so does the perspective and the theme, and it’s not only attorneys who take turns hosting it but also poets, mediators (yours truly), dead presidents, goddesses, and law students. Blawg Review #58, this week’s edition, is hosted by blawgfather Kevin Heller, one of Blawg Review’s founders.

The anonymous and dedicated editors of Blawg Review are cooking up something special for Memorial Day, so if you’ve got some good stuff you’d like to submit, send it here.

Be a good listener. Your ears will never get you in trouble.

~ Frank Tyger

Technorati tags: mediation, mediation quotes

Earlier this year, I linked to a Times Online article by legal futurist Richard Susskind with his predictions about the future of legal practice and dispute resolution.

For those eager to learn more about what the future holds, via Slaw, the cooperative Canadian legal research and IT weblog, comes news that “The Next Ten Years“, Richard Susskind’s Society for Computers & Law 2006 Lecture, is available now both in podcast and in edited transcript form. Susskind sets forth his vision of the coming transformation in the nature of legal service, legal education, and dispute resolution that the future holds.

Not only lawyers but alternative dispute resolution professionals will want to pay close attention to Susskind’s views of technology’s influence on the evolution of the practice of law and the resolution of disputes, together with his prediction that client demand will shift focus from dispute resolution to dispute prevention.

And all of us will want to heed his reminder that “The best way to predict the future is to invent it”.

For more information on legal futurism, please see “The future is now: a strategic approach to dispute resolution and the law“, an article which appeared in November on this blog.

Technorati tags: alternative dispute resolution, Culture and Society, Law, Lawyers, legal futurism, mediation, ODR, online dispute resolution, technology

Last June the odr.info weblog linked without comment to an article by right-wing pundit Michelle Malkin on the threat which peer mediation allegedly poses to the American way of life:

The left-wing Kumbaya crowd is quietly grooming a generation of pushovers in the public schools. At a time of war, when young Americans should be educated about this nation’s resilience and steely resolve, educators are indoctrinating students with saccharine-sticky lessons on “non-violent conflict resolution” and “promoting constructive dialogues.”

One year later, guardians of “traditional family values” (whatever those may be) warn of a similar lurking danger that threatens the nuclear family, the sanctity of marriage, and, apparently, the foundations of civilization itself: tolerance towards homosexuals.

Via Objective Justice comes this report of an initiative launched by Concerned Women for America to involve parents in a nation-wide effort to audit their children’s schools for signs that they are promoting the “radical homosexual agenda”. Among the indicia of moral corruption that parents are asked to be alert for?

• anti-bullying policies that include sexual orientation as a protected category
• federal funding of “objectionable programs” such as peer mediation
• programs teaching tolerance and diversity

To see CWA’s “School Audit Form” for yourself, click here for the PDF download.

Technorati tags: conflict resolution, mediation, peer mediation

It’s not often that I get to announce in a single week the discovery of not just one but two new alternative dispute resolution blogs.

Earlier this week I introduced readers to the ADR Diversity Blog. Today I get to head you over to FloridaArbitrationLaw.com, a blog tracking law regarding the enforcement of arbitration and issues of vacating, confirming or correcting awards. As its name suggests, its primary geographic focus is Florida, but it also covers other states as well. FloridaArbitrationLaw.com is published by Christopher Hopkins, an attorney based in West Palm Beach, Florida.

Please stop by Christopher’s blog and join me in welcoming him. And if you blog about alternative dispute resolution or know of someone who does, let me know so I can add you to the Directory of Alternative Dispute Resolution Blogs.

Technorati tags: alternative dispute resolution, blogging, conflict resolution, arbitration, mediation blogs

Last summer I directed mediators seeking variety in their ho-hum routines to a course on Exopolitics 102: Citizen Diplomacy with Extraterrestrials, available through Exopolitics.org, a web site devoted to exploring “the political implications of the extraterrestrial presence”. (I swear I am not making this up.)

I was therefore vastly amused to learn through the dispute-res listserv (for subscription information, click here) that the instructor of this course, Dr. Michael Salla, has even bigger plans: a conference of international experts to discuss intergalactic diplomacy with extraterrestrial civilizations and its implications for world peace. You can read all about it here.

(By the way, for those of you who didn’t make the application deadline for last year’s course, Dr. Salla is offering “Exopolitics 102″ again. Class starts today.)

When I began blogging in January 2005 (practically the equivalent of a century in cyberspace), only three other regularly published alternative dispute resolution blogs existed (Perry Itkin’s Florida Mediator, Bill Warter’s Campus ADR Tech Tools, and the odr.info blog).

Although the ADR field hasn’t experienced the boom of blogging that the legal profession has enjoyed, the population of ADR bloggers is slowly but steadily increasing, as my ongoing web-based project, the Directory of Alternative Dispute Resolution Blogs, will attest.

It’s therefore always exciting when I get to announce the discovery of a new alternative dispute resolution blog. Regina Mullen, a Michigan-based attorney-mediator, has launched the ADR Diversity Blog, together with an ambitious online venture, ADR Diversity. Under construction at this time, the ADR Diversity site aims to bring together a multitude of voices and viewpoints across the spectrum of ADR practice.

Please join me in welcoming Regina to the ADR blogosphere and wishing her success in this project.

Technorati tags: alternative dispute resolution, blogging, conflict resolution, mediation, mediation blogs

My friend, Florida Mediator Perry Itkin, was kind enough to alert me to his recent post about important changes to the rules in Florida governing the certification of mediators providing services through the Florida court system.

The Florida Supreme Court last week adopted proposed amendments to Florida’s Rules for Certified and Court-Appointed Mediators. These amendments, which go into effect on August 1, replace the current mediator certification requirements with a new certification requirements “point system”.

All mediators seeking certification must meet the requirements of “good moral character” and the minimum age of 21 and then must obtain a total of 100 points in the areas of mediation training, education and mediation experience, mentorship, and miscellaneous activities, as outlined for each category of mediator.

According to the Florida Supreme Court’s opinion (in PDF), “the practical effect of this new point system is to remove the more formal mandatory education and profession-based requirements, for example, the current requirement for a family mediator of a masters, doctorate, medical, or law degree, or certified public accountant license, and to allow applicants to obtain certification in a variety of different ways more directly related to the actual skills and experience the Committee has determined to be necessary for service as an effective mediator.”

The Court, however, will unfortunately (in my own view) continue to require that certified circuit court mediators be members of the Florida Bar or a retired trial judge from any U.S. jurisdiction, unless input from the Florida Bar at some future point suggests otherwise.

Let us hope that Florida gives this final issue the serious reflection it deserves, with input from not only the Bar but from other members of the ADR community; after all, many of us believe strongly that mediators bring the greatest value not so much through subject matter expertise but rather through their skill and experience as process experts. And no profession has a monopoly on the ability to provide that.

(If this is your first visit to this blog, please click here for further information on mediator certification and credentialing.)

Technorati tags: mediation, mediation training, mediator certification

Gustave Flaubert once wisely observed, “There is no truth. There is only perception.”

Dispute resolution professionals know only too well how much perception contributes to conflict. We see what we want to see and tune out the rest, or become so focused that we lose sight of what lies in our peripheral vision. Our senses can mislead or fool us, while our assumptions lead us to see what was never there at all or blind us to what is right before our eyes.

Over the years numerous studies have been done of perception and its implications for human behavior and cognition. For example, recent studies demonstrate that we have a propensity to see only the good in outcomes.

One of my favorite studies, hands down, is this one described here in this article from the Daily Telegraph, which reveals just how much we utterly fail to see. Researchers showed subjects a video of two teams of people playing basketball, one in white shirts and the other in black, and instructed the subjects to count the number of times the team wearing white t-shirts bounces the ball. A person in a gorilla costume walks through the players, stops in front of the camera to thump its chest, and then walks off.

Incredibly, half of all subjects failed to see the gorilla, so intent were they on following the movement of the ball.

(Incidentally, I recently worked with a colleague who showed this video to a class she and I were teaching together. In a group of about 60 people, only 20 of them saw the gorilla. When we went back and replayed the video to prove to them that the gorilla in fact was there, no one could believe their eyes.)

To test your own powers of observation, visit this link for a whole range of video demonstrations. Or, to see the gorilla yourself, click here. (The gorilla video takes time to load, so you may not want to attempt this with a dial-up connection.)

Trainers and educators can order online “Surprising Studies of Visual Awareness“, a DVD that collects the videos used in this study.

Technorati tags: Culture and Society, conflict resolution, mediation

“Hacking” is a word tainted by controversy. While it often evokes images of teenaged malcontents exploiting security vulnerabilities in computer networks, it possesses other more affirmative meanings.

Hacking also means “the intellectual challenge of creatively overcoming or circumventing limitations“. It stands for an ingenious way of solving intractable problems or providing new functionality to an object different from its intended purpose.

Anything can be hacked. Software applications and Department of Defense databases–that goes without saying. But also video games, consumer goods, religion, and, well, life.

And, would you believe, even urban and industrial landscapes. Consider parkour, an urban sport that combines physical and intellectual agility. In parkour, the only direction is forward as participants creatively maneuver and strategize their way past obstacles in their physical environment. It’s as much about quick reflexes as it is about quick thinking. Participants in a sense must grasp the solution at the moment they perceive the challenge. It’s about reframing the material world by transforming barriers into passageways.

Fortunately mediation doesn’t require physical strength (or we’d all be in big trouble). But it does depend upon the skill of the mediator to help disputants limber up brain cells and keep minds open to possibility and potential.

Mediators, who mediate between the past and the present, experience and hope, uncertainty and optimism, can draw inspiration from metaphors like these.

Although conflict and impasse are age-old, we can use the language of today to revolutionize the way we think about our practice as mediators to see our craft in a new light. We aid disputants in hacking the narratives of their own conflicts. We push them to alter the code of the past to pareto optimize their way beyond the limits of their own ingenuity. And we can use technology to revolutionize the resolution of disputes and to transform dialogue itself.

Welcome to Mediation 2.0.

Technorati tags: conflict resolution, mediation, online dispute resolution, technology