Red Sox fans like myself, while still basking in the afterglow of our team’s recent World Series triumph, are grieving that baseball season has at last come to an end.

But I can take comfort in the latest edition of PONCAST, which brings together two of my favorite topics, negotiation and baseball, in its latest podcast, “Negotiation Lessons from Baseball’s Free Agents“.

(Photo credit: Rodolfo Clix.)

I often hear critics of mediation dismiss it as “touchy-feely”.

Yet as the results of one recent poll conclude, half of commercial disputes “get personal” as hearts win out over minds in business-related conflict. This suggests that it may be neither possible nor prudent to ignore the emotions that conflict triggers when it comes to successfully resolving disputes.

In “Emotions and Problem Definition in Mediation“, Professor Nancy Welsh, blogging at Indisputably.org, discusses the value of offering parties in mediation the choice of addressing emotional concerns, explored more fully in a soon-to-be-published law review article she has co-authored with influential ADR scholar Len Riskin. Welsh observes about parties,

They may want the emotional impact of their disputes to be a legitimate part of their mediation session. And, of course, one of the great promises of mediation is its potential to incorporate and deal productively with emotions.

As Welsh points out, the question is how:

Len and I decided to adopt the concept of “core concerns” introduced in Beyond Reason by Roger Fisher and Daniel Shapiro. Fisher and Shapiro observe — pretty convincingly, I think — that it can be quite complicated to deal directly with emotions in negotiation… Meanwhile, there’s lots of research showing that we lawyers are not too keen on dealing with emotions and personal impacts. So, Fisher and Shapiro propose that negotiators focus on five core concerns that are the source of many of the emotions expressed in negotiations. These core concerns are: appreciation (the desire for our thoughts, feelings and actions to be valued); affiliation (the desire for connection or positive relationships); autonomy (the desire for respect of our freedom to make important decisions); status (the desire for recognition of our standing); and role (the desire for a role and activities that are fulfilling). If negotiators attend to these core concerns, they can trigger positive emotions and respond to negative ones.

Beyond Reason is a text that I use when I teach and is one that I recommend often to clients. It explores a topic that other negotiation texts have neglected or paid scant attention to: how to deal constructively with emotions in negotiation — both your own and the other person’s. It provides numerous examples from both business and family life, making the techniques relevant and meaningful to anyone who negotiates — or who assists others in negotiating — to produce real-world results.

And there’s nothing touchy-feely about that.

While checking my daily Google alerts, I came across a press release from the PRWeb Newswire captioned, “Divorce Mediation: Myths & Facts, Internet Radio Talk Show, audience grows more than 221% in first 10 months and receives endorsement by the Association of Attorney-Mediators“.

The press release contains the following quote:

For any couple considering divorce, Divorce Mediation: Myths & Facts clarifies the many advantages of mediation over litigation and explains the importance of using a professional attorney-mediator qualified to handle the most challenging issues of divorce.

(Emphasis mine.)

Now wait just a minute, folks. Since when does admission to the bar automatically make someone a better mediator? I had thought we had long ago rejected the notion that a law degree constitutes a prerequisite to mediation practice. The mediator’s role is to aid the parties to identify interests, communicate and share information, make informed decisions, and ultimately reach resolution, and not to provide legal advice. As the American Bar Association Section of Dispute Resolution observed in its February 2002 Resolution on Mediation and the Unauthorized Practice of Law (PDF)

Mediation is a process in which an impartial individual assists the parties in reaching a voluntary settlement. Such assistance does not constitute the practice of law. The parties to the mediation are not represented by the mediator.

Implying that the services of so-called “attorney-mediators” are somehow preferable to those of mediators from other professions of origin does an injustice to the many excellent family mediators currently in practice who are not attorneys. This does no favors to the public as well which needs more facts and far fewer myths.

11/16 update: For a powerfully worded essay on why the mediation profession needs to rethink these labels, please read Tammy Lenski’s “Let’s Change Our Limiting Self-Labeling Practices” posted at Mediate.com.

Runners and running have inspired poetry and literature, art and film.

This week it serves as the inspiration for the magnificently marathon-themed Blawg Review #134, hosted by Eric Turkewitz at New York Personal Injury Law Blog.

Blawg Review is the weekly review of the best in legal blogging hosted each week by a different blogger. Next week’s Blawg Review will be a double presentation, hosted by the Rainbow Law Center and Transgender Workplace Diversity in commemoration of Equal Opportunity Day and Transgender Day of Remembrance.