Monthly Archives: July 2006

Online Guide to Mediation takes an August holiday and leaves readers with some links to explore

Posted on July 30, 2006 | 1 Comment

Online Guide to Mediation takes a vacationI’m taking some much-needed time off with my family and won’t resume my regular posting schedule until August 15. In the meantime, here are some mediation-related links that you may enjoy while I’m away:

Bill Warters, who always has the coolest links at Campus ADR Tech Blog, has posted an article about Standpoint and Standpedia, two web sites which provide visual mapping tools to better understand conflict and controversy.

For some of the funniest and most honest writing on the ADR web, visit Geoff Sharp’s Mediator Blah…Blah… I particularly liked Geoff’s recent meditation (that’s meditation, not mediation) on trust.

If you haven’t visited Negotiating Tip of the Week lately, tune in to Josh Weiss’s podcast describing tactics for dealing with a negotiator who wants to compete, not collaborate.

Those of you who support efforts to keep the courthouse doors open to all who seek justice will want to read this article from Law.com’s Inside Opinions on “Blacklisting Medical Malpractice Plaintiffs“, which discusses the implications of a web site that publicizes the names of plaintiffs involved in med-mal litigation.

One of my favorite new blogs is the Law & Society Blog, offering “notes from the intersection of law, society, technology, economics, and culture”. You’ll find intelligently written articles like “He Who Cast the First Stone Probably Didn’t” about human behavior and the escalation of conflict, and “Virtual Property and Voluntarism“, which explores the blurring of lines between real and virtual worlds. If you are interested in other blogs that cover similar ground–the crossroads of law, society, and technology–visit Slaw, a cooperative Canadian law blog, and Human Law, a law blog published by English solicitor Justin Patten, who is also a committed supporter of alternative dispute resolution.

For mediators interested in the serious games movement–games created to promote social change and awareness, including the advancement of conflict resolution and peace–Collision Detection has an article on “Saving the World, One Video Game at a Time“.

You should also take time to check out the new look of one of Tammy Lenski’s blogs, I Can’t Say That! – How to talk things out in the relationships that matter. Formerly known as “Strategic Conversations”, this blog has an inviting, warm, and user-friendly feel. (For smart marketing advice for mediators, visit Tammy’s other blog, Mediator Tech.)

Finally, one destination that I always recommend is the ADR-friendly Blawg Review, the weekly review of the best in law blogging, hosted each week at a different law blog. There are plenty of reasons why busy mediators and mediating attorneys should make it a regular stop on their Internet travels–you can discover why in “Too busy to read law blogs? Why attorneys and mediators should read Blawg Review“.

In the meantime, until I get back, feel free to explore Online Guide to Mediation‘s archives (over in the sidebar on the right). Or, visit my ongoing project, the World Directory of Alternative Dispute Resolution Blogs, for your passport to a whole world of ADR blogging.

Thanks as always for stopping by. I look forward to continuing our conversation when I return on August 15.

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Posted in Miscellaneous

Oasis of Peace, a community bringing Jews and Arabs together, offers optimism and hope

Posted on July 30, 2006 | Leave a comment

peaceRegardless of one’s political views or on which side one stands in the terrible conflicts that have riven the Middle East, many of us are horrified and saddened by the death and destruction that have engulfed that part of the world.

Some have turned to the Internet to chart the geographic scale of the Israeli-Lebanese conflict, or to convey the reality of death toll figures along the Israeli-Lebanese border and in Iraq.

These are tragic events that unfold before us. Just when it seems that achieving peace is impossible, particularly between groups with a lengthy history of mutual hostility, hope arrives in the form of one remarkable community that has succeeded in transcending conflict.

A unique village in Israel bears two names, in Hebrew Neve Shalom and in Arabic Wahat al-Salam. In English the name means “Oasis of Peace“. Oasis of Peace is inhabited by Jewish and Palestinian Arab citizens of Israel, who together “work for peace, equality and understanding between the two peoples”, according to its web site, exchanging culture, raising and educating their children, and co-governing.

More information about this remarkable community can be found on Neve Shalom ~ Wahat al-Salam’s page of frequently asked questions.

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Posted in Conflict Resolution, Global and Cultural Awareness

Getting in touch with the whole world through blogging: Part 2 of "Getting to Yes with ADR Blogs"

Posted on July 29, 2006 | Leave a comment

earth pointingWelcome to Part 2 of a series of essays on blogging for the conflict resolution community. The series began several weeks ago with “Getting to yes with alternative dispute resolution blogs: time for ADR practitioners to join the conversation“.

It was launched with the hope of encouraging ADR practitioners everywhere to think about blogging’s power to share ideas, encourage inquiry, and to build connections among us.

Mediators and conflict resolvers know that ours is not solitary work. It is rooted deeply in the matrix of human interaction.At first blush blogging seems to be a poor fit for those whose work is so intimately bound up in interpersonal dynamics and the give and take of relationships and dialogue.

Yet blogging is not the solitary practice one might think it is. When you blog, you do so knowing that you are reaching out to share your message, that others, somewhere in the world, are listening. Readers reach back, reacting and responding through comments or emails.

When I first began blogging in January 2005, I had no expectations about where it would take me. I had no idea what kind of response this blog would even get.

Roughly 18 months and some 360+ posts later, this blog has attracted visitors from every continent but Antarctica (not known anyway as a hotbed of mediator activity) and from countries around the world.

Many of these visitors have taken the time to contact me and let me know what they’re thinking. Some have even written to me in languages other than English. Typically by email but on occasion even by phone, these readers have responded with positive feedback, with constructive criticism, with ideas they thought would be of interest to me and my readers. They have reached out to educate me, to share knowledge, and to pass along news, articles, links, information about upcoming events, and book recommendations. Some have asked for advice or help with their own blogs. Some have just wanted to say hello to a fellow mediator.

A number of these have turned into meaningful friendships–people whose work I admire, opinions I respect, and whose ongoing support and encouragement sustains me as a mediator, as a blogger, and as a fellow traveler on planet earth.

Those of us in the conflict resolution field appreciate the importance of relationships and communication. Blogging provides opportunity–plenty of it–for both.

Blogging has succeeded in putting me in touch with remarkable individuals I might never have met otherwise. It has, in effect, allowed me to network with the entire world.

It’s a trip I encourage every mediator to take.

Interested in learning more about blogging? Please visit the World Directory of Alternative Dispute Resolution Blogs for links to resources, advice, ideas, and ways to get started for beginning bloggers.

And by all means please get in touch to let me know that you’re blogging. Other ADR bloggers and blog readers can’t wait to find out.

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Posted in Blogs and Bloggers, Tech and Business Tips for Mediators, World Directory of ADR Blogs

Don't sell yourself short: why fair compensation should matter to mediators

Posted on July 29, 2006 | 2 Comments

Fair compensation for mediators“If you do it for money, then you’re cheapening something special and meaningful that should only be done for love, out of the caring in your heart.”

Does that statement refer to

1) Sex
2) Raising dairy cattle
3) Cultivating cymbidium orchids
4) None of the above

If you chose 4), None of the above, you’d be right.

Believe it or not, what that statement actually refers to is mediation.

It was precisely what a volunteer community mediator said to me one long ago day when I mentioned to them my plans to go forward with a full-time mediation practice. “How are you going to support yourself?” they asked. I was puzzled for a moment, and then I replied, “Well, I’m not providing mediation services for free. I’m charging for them.” This was greeted at first with an appalled silence, and then, moments later, by those words this post began with.

The work mediators do is undeniably valuable. Mediators boldly go where angels fear to tread–right into the very heart of conflict. And, like intrepid guides, we are able to lead disputants to level ground. We help people achieve resolution and overcome their differences, even in the face of seemingly intractable conflict. We give them tools to improve their critical relationships, be they personal or professional.

As incredible as it sounds, there are still those within the mediation community, as well as those outside it who benefit the most from mediation’s advantages, who devalue the work of mediators.

Two dispute resolution professionals have written passionately and eloquently on behalf of underpaid mediators everywhere. Begin with Charles Parselle‘s article from the most recent Mediate.com newsletter , “L.A.’s Policy Of Free Mediation Benefits Everybody But Mediator“. Then visit Mediation Mensch, published by ADR entrepreneur Dina Beach Lynch, who has written several articles exploring this issue: “Pay for Mediators Threatens Status Quo,” “Pro Bono NOT Volunteering,” and “Pro Bono Strategies for Mediators“.

We all need to ask ourselves: how do we value ourselves and the services we provide as mediators? Are we inadvertently devaluing our own worth? And what are we individually and collectively doing to increase or depreciate the value of the work we do? Mediators, you have nothing to lose but your chains.

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Posted in Mediation

Inviting multivocality: Online Guide to Mediation shares its new comment guidelines with its readers

Posted on July 29, 2006 | Leave a comment

Online Guide to Mediation announces new commenting policyBlogs by their very nature are a form of conversation. Most blogs, this one included, allow for reader commenting and encourage the exchange of opinions and ideas. The interaction of bloggers and blog-readers gives rise to what one blogger, writing for the E-mediators blog, has dubbed “multivocality”, which

[...r]efers to the multitude of voices participating in the creation of a weblog. By way of hyperlinking, commenting and trackbacks weblog readers in effect become secondary authors, this is the progression that induce multivocality. Multivocality, apart from depicting “many voices” is therefore the process that complicates the distinction between author and reader – blogs and blogging. As author and reader is constantly changing roles, they are in effect adding to an ongoing process – the weblog.

Shortly after I began blogging over a year and a half ago, readers have posted their comments. Not with the frequency I had hoped–most readers seem to prefer the privacy of email–but still often enough to keep things interesting. Through their comments they have let me know when I get it right and when they think I’m wrong. They have shared ideas and their own expertise. Their contributions have meant a lot.

I haven’t bothered with a comment policy. I didn’t think I needed one. I did begin using Blogger.com’s comment moderation feature last fall when I noticed that spammers were posting as comments unsolicited advertisements for products and services. It became a frequent annoyance, and I was wasting far too much time deleting these spam comments from my blog. Now readers must choose a user name and password and complete word verification to submit a comment. An additional hoop to jump through, I know, and while I certainly hope that it doesn’t inconvenience readers too much, I also hope all of you understand why I needed to enable comment moderation. I don’t want to read Viagra ads on a mediation blog and neither do you.

Apart from the Viagra ads, I saw no need to censor comments and continued to think that I didn’t need a comment policy.

That changed a few weeks ago. Someone posted a comment that was nothing more than a personal attack on my character. Although I’ve certainly had readers disagree with me strongly, they have always done so in a well reasoned and respectful way. Clashes of ideas are highly stimulating, and I’ve welcomed these differences of opinion.

This, however, was very different. Instead of attacking my viewpoint, this reader went after me personally. Since I had comment moderation enabled, I was faced with the decision of whether to publish or reject this comment. After consulting with several of my blogging colleagues, I decided to publish the comment, together with my response. After all, this comment said way more about the person who wrote it than it did about me. But my colleagues and I agreed that perhaps it was time for all of us to think about implementing a comment policy to anticipate the unanticipated.

What follows is the comment guidelines I have since developed for this blog. It tries to do honor to the principles that mediators endeavor to abide by. (And, since I wouldn’t ask you to do something that I wouldn’t ask of myself, this is the policy that guides me when I post comments on other blogs.)

Of course, since your comments matter to me, please feel to comment on this new policy. Your feedback is welcome.

1. I love to hear from my readers. Comments are encouraged.

That’s my starting point. Therefore, this policy is intended to be as unrestrictive as possible to encourage you to join the conversation.

2. Sticks and stones.

I may be a mediator, but I’m not mediating here. I’m blogging. I have strong opinions and express them. That’s part of the fun of blogging. If you disagree with me, that’s great. Tell me why. Disagree with me on the merits. Reveal the flaws in my reasoning. I welcome that. I’ll learn something.

What I ask in return is for no comments that

  • Are potentially libelous
  • Promote violence, discrimination, or hate crimes
  • Are personal attacks or contain threatening language
  • Provide false or misleading information
  • Contain plagiarized or unattributed material

3. Taking the scenic route.

Mediation, negotiation, law, and conflict resolution offer plenty to talk about. So, I reserve the right to publish only comments that are related to the subject matter of this blog. Comments on weasel herding, as fascinating as they may be, are better suited for blogs on weasel herding.

4. And now for a message from our sponsor (not).

By all means share your comments, particularly if you have subject matter expertise. All of us, my readers and I, will benefit from your knowledge.

However, this blog is a commercial-free zone. Comments should not be mistaken for free advertising. Please, no comments that promote your business or commercial goods or services.

If you have written a book or offer a service or product you think my readers would be interested in, email me and tell me about it. I may decide to post about it. I can’t commit to passing the information along, but let me make the final decision.

Some exceptions: I reserve the right to promote events sponsored by academic institutions or non-profit associations for ADR professionals. I provide that information as a public service. I may also use this blog to announce classes, trainings, or programs that I myself am teaching.

Final thoughts.

Those are my guidelines for commenting. My hope is to encourage readers to participate in the life of this blog, to become the secondary authors envisioned by E-mediators. You inspire and give meaning to the writing that takes shape here. Your voice can be heard here. And your comments will always be welcome.

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Posted in Blogs and Bloggers

World Directory of Alternative Dispute Resolution Blogs has three new additions

Posted on July 25, 2006 | Leave a comment

The World Directory of Alternative Dispute Resolution Blogs adds three more titles to its growing catalogue:

  1. Disputing: Conversations about Dispute Resolution provides updates and commentary on arbitration law, with a special focus on Texas. Disputing is published by Karl Bayer and Robert Hargrove, two attorneys from Austin.
  2. TogetherResolve, an English language blog, is published by mediator Emmy Irobi, based in Biala Podlaska, Poland. TogetherResolve explores mediation and conflict resolution with the hope of discussing ideas and sharing experiences with mediators around the globe. This is the World Directory’s first Polish mediation blog.
  3. Settle It Now Mediation Blarg was launched earlier this month by Victoria Pynchon, publisher of the negotiation blog Settle It Now Blog Spot. To create the title for her site, she combined the word “blog” with “ar” for “alternate resolution” without the “d” in dispute, to come up with the title for a blog that explores insights and encourages inquiry into the practice and principles of mediation.

If you publish a dispute resolution blog (or one that is ADR-friendly) and would like to be added to the World Directory of ADR Blogs, please let me know. It’s a completely commercial-free site, and there is no cost to be listed. The Directory has information on submitting your blog and submission guidelines.

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

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Posted in World Directory of ADR Blogs

Why mandatory arbitration clauses are bad for business — and what companies should do instead

Posted on July 25, 2006 | 1 Comment

Mandatory arbitration clauses fray relationships between companies and customersLast week my fellow blogger Stephanie West Allen forwarded to me a link to a provocative article recounting “Arbitration’s Fall From Grace“. It seems that companies which had been inserting mandatory arbitration clauses into contracts with their customers in an effort to avoid costly court battles are now finding themselves spending inordinate amounts of time and money fighting for the enforceability of these clauses in, ironically, court.

None of this should come as surprising news.

Many of us have long recognized that mandatory arbitration clauses are bad for business. They are bad for consumers and definitely bad for customer relations. Typically they form part of a contract of adhesion—a take-it-or-leave-it, one-sided agreement consisting of terms that the customer has no power to bargain for, usually printed in a microscopic font barely visible to the naked eye written in language that even lawyers have trouble understanding. This agreement is never directly brought to the attention of the customer, since it typically arrives in an envelope packed with advertising material and other irrelevancies–most customers are blissfully unaware that such an agreement exists at all.

Think about the message a mandatory arbitration clause conveys to the customer. Basically the message is this:

  • If you have a legal beef with us, you can’t go to court.
  • You have to use arbitration, and you will have to share with us the costs for the arbitrator’s services (of course if you could go to court, which you can’t, you’d be getting the judge’s time for free, courtesy of taxpayers).
  • We, not you, get to pick the dispute resolution services company which will provide the arbitrator.
  • If lots of you have a beef with us, you can’t join forces in a class action law suit to enforce your legal rights collectively and publicly. That would level the playing field between us, a mega-corporation, and you, an insignificant flyspeck of a customer. We can’t allow that.
  • This dispute will be resolved according to the laws of a state far, far away from where you live and work–laws which favor us, not you.
  • In short, we are going to stack the deck so thoroughly against you that you have little hope of achieving justice.
  • Thanks, and have a nice day.

Mandatory arbitration clauses, in my own experience, seem to be favored by large corporations with poor customer service records and a history of unfair or deceptive business practices. Mandatory arbitration clauses are a way to limit corporate accountability to customers.

Mandatory arbitration clauses of course fail to address the underlying causes of customer dissatisfaction. They’re lousy conflict resolution tools.

So, instead of focusing on ways to limit liability, companies should be taking a preventative approach to managing problems with customers. This could include:

  • Conduct an honest assessment of corporate policies regarding customer service–are they fair, consistently applied, and favor communication and clarity?
  • Ensure adequate training of sales and customer service representatives
  • Provide incentives to employees to serve customers better, not just increase sales
  • Don’t hide contact information from customers–make it as easy as possible for them to get in touch with the right department and the right person to resolve their issue
  • Acknowledge and take responsibility for mistakes–apologies are not optional
  • Return customer phone calls and emails within hours, not days
  • If an issue requires investigation, provide customers with frequent updates–even if the investigation is ongoing and no new data is yet available
  • Create a customer service ombuds who can assist in the resolution of difficult disputes

Interestingly enough, “Arbitration’s Fall from Grace” drew attention to mediation’s far more positive track record:

As arbitration has fallen out of favor, mediation, a less frequently discussed alternate dispute resolution method, seemingly is gaining traction among corporations. Though the same issues that plague arbitration — a lack of discovery rights and enforceability — remain in mediation, the less-structured environment tends to be cheaper, less adversarial and quicker than an arbitration hearing.

At a recent continuing legal education event for corporate counsel in Atlanta, speaker David C. Vigilante, associate general counsel and chief litigation counsel at Turner Broadcasting, told the audience that he’s not a fan of arbitration because the process requires companies to give up some legal rights — and it’s binding. He called mediation “the worthwhile companion to its less worthwhile exercise, arbitration.”

In an interview after the event, he added that “most lawyers will tell you today that mediation is one of the most fantastic things to come along.”

Not surprising when mediation encourages communication, addresses misunderstandings, and levels the playing field for all parties at the table.

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Posted in ADR, Arbitration, Dispute Resolution and Your Business, Mediation

Lawyer rating web site puts attorneys' reputations on trial

Posted on July 24, 2006 | 1 Comment

Lawyer rating web site tries and convicts attorneys without a fair trailShakespeare long ago penned these classic lines about reputation:

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’tis something, nothing;
‘Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

Othello III.iii

These immortal words today carry special meaning for attorneys, no thanks to the recent launch of LawyerRatingz.com, a web site that allows visitors to anonymously (and seemingly indiscriminately) rate and post comments about attorneys.

The web site will undoubtedly leave most lawyers, as it did me, with a nasty taste in their mouths. On the home page a photo depicts three attorneys, all middle-aged white guys in suits, who smirk knowingly into the camera. In the web site’s forum, someone gloats, “For the first time in history, crummy lawyers are going to be held accountable for their misdeeds! I hope you can keep them from closing this site!” (Posted by a sadly misinformed soul who has evidently never heard of disbarment proceedings.)

Meanwhile, the cover of anonymity which the web site gives visitors has resulted in some cases in comments which border on the libelous. Dip in anywhere at random and click on the names of lawyers who have received negative ratings to see what I mean.

Since the raters do not identify themselves, attorneys have no way to shield themselves from or refute false accusations of unethical or illegal conduct. The ratings are there for all the world to see (and search engines to find). Gladys McKie, a lecturer at the Northeastern University School of Journalism, points out in an article in Massachusetts Lawyers Weekly today (sorry, no free online version available) that “anyone can rate a lawyer regardless of whether the rater was a client or not. The rater could be a colleague who has an axe to grind, a neighbor who thinks you’re too noisy, or a friend of a disgruntled client.” Exactly.

What is unfortunate, too, is that while a forum like this may have limited usefulness for allowing dissatisfied clients to let off some steam, it does nothing constructive to address genuine issues that can and do arise between attorneys and their clients. Nor does the web site offer links to bar associations and boards of bar overseers where clients may far more productively address concerns about an attorney’s professionalism.

ADR professionals should take note of this as well. Although LawyerRatingz.com lists only 1,151 attorneys as of today, it is entirely possible that mediators and arbitrators may be counted among them. And, as ADR gains in popularity and public acceptance, it’s only a matter of time before someone thinks to launch MediatorRatingz.com–unless someone has gotten there already.

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Posted in Legal Issues

All in a day's work: is mediation an ideal career choice?

Posted on July 24, 2006 | Leave a comment

Is mediation a good career for you?The Wall Street Journal on its CareerJournal.com web site reports on the results of its recent survey “2006 Best Careers“.

CareerJournal.com lists 14 attributes that make a career choice an excellent one:

• Advancement
• Autonomy
• Contribution to Society
• Creativity
• Customer Contact
• Friendly Co-workers
• Impressive to Others
• Income
• Intellectual Stimulation
• Job Security
• Lower Stress
• Predictable Hours
• Work-Life Balance
• Benefits

Although mediation doesn’t seem to have made CareerJournal.com’s list of most satisfying careers, mediation does meet many of these criteria. Plenty of intellectual stimulation, low stress, no indentured servitude to the Almighty Billable Hour, with lots of emphasis on contribution to society and work/life balance. (The only areas that a mediation career may come up short in are income and job security, which can prove illusive although not unobtainable. One of the jokes that mediators like to tell mediation trainees illustrates this all too well: What’s the difference between a mediator and a large cheese pizza? The pizza can feed a family of four.)

This special feature of CareerJournal.com comes with advice for anyone contemplating a career change. Articles to consider include “How to Switch Careers in Midlife” and “Five Almost Painless Ways To Make a Career Change“, which recommend one step in particular that make especially good sense for anyone who wants to transition to mediation from another career: Start a parallel career. (I would not recommend Step No. 5: Go cold turkey. Quitting your day job is rarely a wise move.)

For my thoughts on mediation training and careers, please read “How to become a mediator: five frequently asked questions about training and careers in mediation“.

For a list of blogs (good resources since they offer regularly updated content) that focus specifically on marketing for mediators, visit the World Directory of Alternative Dispute Resolution Blogs.

(Via the excellent George’s Employment Blawg.)

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Posted in Careers in Mediation, How to Become a Mediator, Mediation

Mediation Quote of the Week | July 24, 2006

Posted on July 24, 2006 | 1 Comment
Only connect!
Howard’s End, E.M. Forster

Technorati tags: ,

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Posted in Miscellaneous