Two weeks ago I published a post explaining why I would not be observing One Day Blog Silence today, April 30, when many bloggers will be observing a collective day of silence in honor of the victims of the Virginia Tech shootings along with others who have fallen to violence throughout the world.

I have chosen not to participate. Today instead I am calling attention to another important observance. Tomorrow is Law Day. Law Day, a public education initiative of the American Bar Association, was created to celebrate democracy and the rule of law. I can think of no better way to honor those who have perished through violence than to celebrate the fundamental liberties that the rule of law protects. Before we can have peace in the world, we need justice first.

How will you celebrate Law Day? For some ideas, visit the Law Day web site.

There is probably no greater source of workplace conflict than bad bosses. Why?

Good bosses provide leadership. Bad bosses provide what columnist Dale Dauten, author of the Corporate Curmudgeon, calls “Impedership“–which Dauten defines as “the art of demotivation”–the ability to stifle innovation, stamp out ideas, and discourage success among employees.

In today’s column, Dauten points readers to a brilliant video produced by online training company ej4 that captures all the qualities common to demotivating bosses.

There comes a point in a mediation when it’s time to ask the hard questions.

It often happens when negotiations are stalled. Although a decent offer is on the table, one thing stands between the parties and settlement. “Principle. It’s the principle of the thing,” they say, as they weigh hope at trial against certainty at the table.

At that point I may ask people to do something that is very difficult to do.

I ask them to think for a moment about the future–to imagine their future selves and to ask themselves, will that decision still be the right one for me then?

Unfortunately, the laws of physics prevent us from speaking directly to our future selves. But a web site has made it possible for anyone to send messages to the person they will be tomorrow. All you need is an email address that will hopefully still be active on the date of delivery.

Futureme.org allows visitors to send messages that will be delivered electronically to themselves at a designated future date. Visitors to the site can scroll through the public messages at random to read the dispatches from the past that await delivery–some hopeful, some filled with profanity, some bearing advice, others poignant. Here are two:

Because you were working on your thesis and went through that Roman Stoicism phase and tend to forget who said what and where all the ideas come from:

“Never let the future disturb you. You will meet it, if you have to, with the same weapons of reason which today arm you against the present.”

Marcus Aurelius

p.s. Finish the book and jog more

. . . . . .

Dear FutureMe,

First off, what the hell are you doing still using gmail?

Second, I’m really surprised that I’m still alive. I’d have expected the stress of working 100 hours a week would have killed me by now. I mean, seriously, what are the odds of a human being actually surviving for 30 years on Ramen noodles and day old pizza?

Oh well, I hope things have turned out well for me.

You can send yourself a message at Futureme.org.

So, what would you say to your future self?

As a trainer, I’m keenly aware that adult learners all have different learning styles. The trick is to find ways to engage them all.

Interested in finding out what your own learning style is? You can find out at the Vark Guide to Learning Styles by taking this online questionnaire.

Facilitators, mediators, and other group process mavens, take note: here’s an interactive Periodic Table of Visualization Elements. Take a ride down the Argument Slide, cross the Negotiation Bridge, or marvel at the Heaven ‘n Hell Chart.

This fun tool comes courtesy of Visual-Literacy.org, an e-learning site educating visitors about “a critical, but often neglected skill for business, communication, and engineering students, namely visual literacy, or the ability to evaluate, apply, or create conceptual visual representations.”

(Hat tip to Cool Tools.)

American lawyers by now may be inured to media attacks on the legal profession. We expect it from Fox News. But this week lawyers drew fire from an unexpected source: a National Public Radio broadcast.

On Point, a week-day radio news magazine produced by NPR member station WBUR in Boston, broadcast a show this week titled “Verdict on American Lawyers“. From the show’s description:

America’s legal profession is based on ideals: on standards of education and admission to the practice, ethics regulation, a disregard for commercialism and on working on behalf of the public good. The legal system is rooted in the belief that all should have access to justice. But Yale Law Professor and legal historian, [sic] says it’s not so. The profession is hardly professional anymore. He says lawyers today are out for their own economic self-interest…

Instead of providing what could have been a rich discussion about the present and future of the legal profession, with points and counterpoints from a spectrum of voices, On Point succeeded in reinforcing for its listeners virtually every negative stereotype that exists about American lawyers today. It perpetuated the myth that all lawyers work for large firms on behalf of shady corporate interests and are members of an Ivy-educated elite motivated solely by self-interest and greed.

The show’s greatest defect was its failure to accurately and fully depict today’s legal profession in all its diversity. This one-sided portrayal of a legal profession in moral decline ignored the numerous efforts that have contributed to the improvement of law and the institutions that serve it. And it disregarded the movements within the profession that seek to deliver justice better and provide effective mechanisms for the resolution of disputes.

There are plenty of attorneys today who are trailblazers, breaking new ground through movements like collaborative law and restorative justice. These attorneys are bold architects of new ways of serving the public and justice better.

And how can a show that purported to examine the legal profession and access to justice fail to discuss one of the most important revolutions in the courts and in the practice of law: the widespread availability and institutionalization of alternative dispute resolution?

As an attorney who no longer practices traditional law but has spent the past decade as a mediator helping people resolve disputes both within and outside of the legal system, I have many colleagues in the bar who are committed to these kind of innovations in the practice of law and the resolution of disputes. Many are outspoken advocates of these new ways of thinking and work to transform and reinvigorate the practice of law.

Many of them strive to illuminate for the legal profession as well as the public the art and creativity within the practice of law and to help attorneys reclaim the dignity and meaning in what is still an honorable profession.

You may hear “Verdict on American Lawyers” in a number of formats at the On Point web site and judge for yourself.

By now many of you, including those living outside the U.S., have heard of the murder this week of 32 students and faculty at Virginia Tech by a lone gunman, a Virginia Tech student who turned the gun on himself and died also. It was the worst mass shooting in U.S. history.

Some of you as well may have heard also of the One Day Blog Silence, the blogosphere’s latest meme, which calls on bloggers everywhere to be silent on April 30 to honor the Virginia Tech victims:

All you have to do is spread the word about it and post the graphic on your blog on 30th April 2007. No words and no comments. Just respect, reflect and empathy.

The day of blog silence has been extended to include “all the victims of our world”–which I assume to mean all those who have also perished by violence.

What I am about to say intends no disrespect to the many good-intentioned bloggers–including those who are my friends and colleagues–who are participating in the April 30 event. It certainly in no way is meant to diminish the heart-breaking tragedy of these senseless deaths.

But I have to ask, why? Why be silent? What is the point? Why not use this as an opportunity to speak out? To rage against the machine? To stand up for whatever cause you believe in that will reduce human suffering or end violence? Provide better treatment and interventions for the mentally ill? Increase safety on college campuses? Take action against handgun violence? End the war in Iraq? The crisis in Darfur? Any one of the thousand conflagrations that burn around the world?

Or, better yet, get away from the keyboard and actually do something?

It will be business as usual at this blog on Monday, April 30. I won’t be silent.

One of the biggest–and costliest–mistakes that businesses make is the failure to properly address disputes early in their life cycle. More and more though in-house counsel recognize the virtues of alternative dispute resolution as a cost- and time-saving device for the organizations they advise.

Case in point: in a Law.com interview, Mark LeHocky, general counsel at Dreyer’s Grand Ice Cream, advocates the use of early dispute resolution to keep costs down and prevent disputes from, in his words, “metastasizing”. As LeHocky explains,

…Litigation costs typically account for the biggest portion of expenditures that companies spend on outside counsel. And the proper management of disputes is in turn the biggest cost control opportunity most companies have before them…

… I actively pursue a package of early dispute resolution tools — starting with a disciplined internal review process and the use of mediation and other ADR devices regardless of the perceived strengths and weaknesses of the positions of each dispute matter. I have served as a mediator for the federal courts for 10 years — one of my few pro bono activities now that my kids are grown up enough that I can stop coaching soccer teams. That experience, together with my background in private practice, has transformed my thinking about how disputes arise and, more importantly, how they grow and metastasize unnecessarily.

More often than not, disputes go on longer than they should and become bigger than they need to be due to misunderstandings as to facts as much as legal issues. Sorting those items out as soon as possible is the best for everyone concerned and helps to avoid the unnecessary buildup of litigation fees and other costs. That doesn’t mean we don’t litigate. We do so when the situation warrants and we use the best and the brightest lawyers. But that happens only after we have pursued the early dispute resolution path in rigorous fashion.

With thanks to Stephanie West Allen who pointed me to the post on the excellent blog Law Department Management linking to the interview.)

Here in Massachusetts, although technically it’s Tuesday, today is our work week Monday. How come? Yesterday was Patriots’ Day, a state holiday which commemorates the battles of Lexington and Concord in the American Revolutionary War (and not New England’s favorite football franchise).

Therefore, here’s a Monday-style work-day distraction for mediators: a video of two chickens breaking up a fight between two rabbits.

(Hat tip to Kottke.org.)

This week’s Blawg Review, the weekly review of the best in law blogging, is hosted this week by Rosemary the dog, filling in for her human, attorney Sheryl Schelin who blogs at the SC Employment Law Blog.

As usual, Blawg Review #104 links to some interesting posts, including Stephanie West Allen’s interview with Mohammadreza Hojat on the empathy of service professionals as part of her series of interviews with thinkers and practitioners with ideas to inspire the work of both lawyers and mediators.

Good dog, Rosemary–here’s a cookie!

In an effort to raise public awareness of one of the world’s worst humanitarian crises, the United States Holocaust Memorial Museum has partnered with Google as part of an extraordinary project using Google Earth technology to map the atrocities in Darfur. From the USHMM web site:

Crisis in Darfur enables more than 200 million Google Earth users worldwide to visualize and better understand the genocide currently unfolding in Darfur, Sudan. The Museum has assembled content—photographs, data, and eyewitness testimony—from a number of sources that are brought together for the first time in Google Earth.Crisis in Darfur is the first project of the Museum’s Genocide Prevention Mapping Initiative that will over time include information on potential genocides allowing citizens, governments, and institutions to access information on atrocities in their nascent stages and respond.

You can download Google Earth along with the Crisis in Darfur layers at USHMM.

Recently I looked at why the world–or least America–has not yet gotten to yes. I described the cultural forces that resist mightily the logic and common sense of principled negotiation and are deeply distrustful of peacebuilding, collaboration, and dialogue.

I offer you yet one more example: a transcript of right-wing radio talk show host Rush Limbaugh’s comments on a recently released study on workplace bullying.

Here’s a sample–and it’s classic Limbaugh all the way:

There’s nothing new in any of this and all of these are obstacles that countless gazillions of people have overcome throughout life in the history of human civilization. Study Reveals Widespread Office Bullying! I know exactly what this is. I know exactly. It’s a bunch of liberals behind this, a bunch of pantywaist, limp-wristed, linguini-spined liberals who are out there trying to work their magic and reorder the basic tenets of human nature, which is largely what a lot of liberalism attempts to do.

I’d add more, but these limp wrists make it awfully hard to type.

From the storage vaults at the Smithsonian Institute: two pairs of elk horns locked together tell a tragic tale. Two elks, butting heads, entangled their horns.

Unable to free themselves, they both perished.

(Thanks to Boing Boing.)

The blogosphere’s buzzing over a proposed code of conduct for bloggers that seeks to strike a balance between frank conversation and civility.

This is a collaborative exercise of course in the best spirit of Web 2.0, and bloggers are invited to submit their comments or otherwise to participate in developing this proposed code.

Bloggers have already raised some fair criticisms with the proposed code, including A-listers Jason Kottke and Cory Doctorow, and no doubt others will be weighing in.

In the meantime, we’ll just have to wait to see whether the blogging world is ready for its own “No Asshole Rule“.

Grab yourself some peanuts and Cracker Jack: Baseball is the theme at this week’s Blawg Review, the weekly review of legal blogging hosted each week at a different law blog. Calling balls and strikes at Blawg Review #103 is Jonathan Frieden at E-Commerce Law.

Among the posts linked to are two that particularly caught my attention: one story about jurors compromising and another one about a first-year property law class creatively using Second Life to learn real-world lessons.

It behooves all of us who serve in a profession to pay attention to the way our work is perceived or our profession characterized. In particular we should heed the criticisms, whether just or not, that are raised about our work, so we can learn from or counter them.

Mediators may then wish to know how we are viewed by one scholar in a movement afoot here in the U.S. This movement would expand the right to counsel in criminal cases to civil litigation. It comes in response to a challenge that many in the legal community recognize but do not always agree how best to address: the rising number of pro se litigants in civil and family court cases.

This civil right to counsel is known as “Civil Gideon”, after the landmark U.S. Supreme Court decision, Gideon v. Wainwright, which affirmed the right of an indigent person to have the assistance of counsel in a criminal trial. (Retired mediator and attorney David Giacalone introduced me and other readers of the blog shlep to this movement.)

Acceptance for the notion of a civil right to counsel will come about only through cultural change in the halls of justice and among the players there, according to one of its proponents, Russell Engler, a Professor at New England School of Law. In his 2006 article, “Shaping a Context-Based Civil Gideon from the Dynamics of Social Change” (downloadable in PDF from SSRN), Professor Engler describes the actions of those standing in the way of progress thus:

In the courtroom, court personnel, including the judges, will likely encourage the unrepresented litigant to settle the case. That, in turn, may require the litigant to go to the hallway to negotiate with the lawyer, or to resort to some form of court-based mediation. The hallway negotiations are rife with instances of overreaching and unethical behavior by lawyers, unmonitored and unpunished by a legal system that depends on a high settlement rate. Where the litigants resist settlement, strong words from the judges, mediators or lawyers eventually induce litigants to settle. Few civil cases are tried, and most settlements involving the unrepresented poor occur with a minimum of judicial involvement. [Id. at 2.]

Even acknowledging variations in behavior and changes over time, it is difficult to overstate the extent to which judges, court-connected mediators, clerks, court administrators, and the bar’s rank and file are hindering the expansion of a right to counsel in transacting their daily business. While many in those ranks are focused on the “problem” of unrepresented litigants, it would be a mistake to assume that those players are natural allies in Civil Gideon initiatives. [Id. at 3.]

(Emphasis mine.)

My first reaction was to feel outraged by this portrayal of our profession as intentional actors in an assault on justice. In my view such sweeping generalizations smear those whose support is most needed and ignore the efforts that many in our profession make to advance justice. (And never mind the insult to the many judges, clerk magistrates, and lawyers I have seen over the years who bend over backward to accommodate pro se litigants and treat them with fairness and respect.)

This is particularly true when so many mediators, particularly those in the nonprofit community mediation programs serving courts where the indigent pro se seem so overrepresented, know all too well the dangers such litigants face. Many mediators care passionately about justice and take such concerns seriously. Here in Massachusetts, our Supreme Judicial Court promulgated rules that prohibit exactly the sort of conduct on the part of mediators that Engler criticizes–rules which mediators helped create incidentally. The Uniform Rules of Dispute Resolution, Rule 9(c)(iii), provides:

Where a party is unrepresented by counsel and where the neutral believes that independent legal counsel and/or independent expert information or advice is needed to reach an informed agreement or to protect the rights of one or more of the parties, the neutral shall so inform the party or parties.

Other sections of Rule 9(c) emphasize the voluntary nature of mediation and prohibit coercion by the mediator:

(v) The neutral shall inform the parties of their right to withdraw from the process at any time and for any reason, except as is provided by law or court rule.

(vi) In mediation, case evaluation, and other processes whose outcome depends upon the agreement of the parties, the neutral shall not coerce the parties in any manner to reach agreement.

Similar safeguards exist in other states as well.

As I said, though, that was my first reaction. My second reaction was different.

I thought to myself, Engler has a point.

You and I both know that not every mediator heeds these ethical rules. I have known of mediators (yes, community mediators among them) who routinely browbeat pro se parties into settling. I have met mediators who care more about settlement rates than trivialities like informed consent or the satisfaction of the parties in the outcome. And in a recent conversation with another mediator about informed consent, I was surprised to hear that mediator express horror at the thought of encouraging a party confused by a legal issue to seek advice from a lawyer. (Encouraging them to go to an accountant for advice on a tax issue would be okay, however.) “It’s against the spirit of mediation to involve lawyers!” they argued. This view incidentally is not an uncommon one.

I am not arguing here in favor of Civil Gideon. I don’t know yet whether I support it or not. I am concerned that it focuses only on the indigent, when so many of the middle class cannot afford legal services either. I also don’t think that being represented by counsel is any guarantee that you’ll negotiate more effectively at the mediation table or even fare better in court–I have seen my share of unrepresented people outbargain a supposedly more sophisticated opponent with counsel, as well as people whose best interests were ignored by their lawyers. And the problem may also not be that pro se litigants are pressured to accept settlements they should not. On the contrary, I have seen pro se litigants walk away from fair settlements to defeat in court later, simply because they lacked legal advice to recognize that settlement as a fair one. And I personally would rather see this energy channeled against tort reform, before the case for a civil right to counsel becomes moot. But these are concerns well beyond the scope of this post.

I share Engler’s viewpoint with you, my colleagues, to invite us all to reflect on our role at the table. He raises questions we should stop and face.

Is our goal to settle cases? Or is it to advance justice? Perhaps we can achieve both.

But let us be careful–very careful–not to mistake the first for the second.

I am sorry that my schedule won’t allow me to attend the upcoming Fifth International Forum on Online Dispute Resolution which will be held in Liverpool, England, on April 19-20, 2007. I would have liked the opportunity to meet innovative thinker and agent for progressive change, Sanjana Hattotuwa, who will be among the speakers.

Fortunately for us, Sanjana does some of his best thinking out loud at his blog, ICT for Peacebuilding (ICT stands for information communications technology).

While much of Sanjana’s efforts focus on Sri Lanka, his words and work have universal application. His writing speaks global truths. His most recent post exemplifies this: it is an impassioned and eloquent call for citizen journalism.

Anyone who cares about participatory democracy and a responsible media should listen closely.

Appearing on the op-ed page of the April 4 New York Times was this illustration by Paula Scher depicting the life cycle of a blog post. It actually resembles many efforts at public discourse, particularly those of a political nature.

Familiar points include “present factoids that counter thesis”, “impugn the character of thesis author”, “impugn character of anyone who even considered agreeing,” “criticize the character of those who repudiated the character of those who agreed,” and “denounce all dissenters of thesis”.

Yup, that sounds about right.

(Hat tip to Kottke.org.)

An ongoing fascination for me is the way in which maps reflect our understanding of the world around us, reveal our cultural biases, record human history, or chart the geography of conflict.

If you share my fascination, then allow me to recommend to you strange maps, a blog which collects unusual maps portraying places that are real or exist only in the cartographer’s imagination. A recent posting included this one depicting a “culture wars” battleground: where and how evolution is taught in the U.S.

Meanwhile, Bill Warters at Campus ADR Tech Blog links to “Baghdad: Mapping the Violence,” a BBC News animated map depicting the violence in Baghdad since May 2003 when the U.S. declared the end to major combat operations.

Important correction! Online Guide to Mediation and the World Directory of ADR Blogs nearly caused an international incident! I had originally reported that the World Directory had added its first French blog. In fact, it is it’s first Belgian blog. Mon dieu! Une erreur très embarrassante! Fortunately the blogger, mediator Dominique Foucart, charmingly and most graciously pointed out this regretful faux pas. I appreciate his understanding and hasten to correct my error here.

It’s exciting in any event to announce now not just one but two firsts for the Directory: its first French language blog and its first Belgian blog. Even better! Merci beaucoup, Dominique!

Bienvenue to the ADR blogosphere to Dominique.

If you wish to add your blog or someone else’s to the World Directory of ADR Blogs, please let me know. It’s a commercial-free site, and there is no cost to be listed. I am especially interested in leads on ADR blogs outside the U.S. and Canada. If you know of any, I hope you’ll get in touch. The Directory has information on submitting your blog and submission guidelines.

Many thanks to to my friend Christoph Stroyer, a mediator, attorney, and blogger in Germany, for letting me know about this new blog.