I would pose a far more interesting question: what might that attire be concealing?
We mediators are keepers of secrets. People trust us with sensitive information. We know their vulnerabilities, their self-doubt, their long-nursed wrongs, their secretly nurtured hopes. We have seen the hiding places of the human heart.
Yet it’s not only mediators to whom confidences are trusted. Designer and corporate lawyer David Kimelberg is the creator of Inked Inc., a photography project and book exploring the intersection of corporate and alternative culture, in which professionals roll up their sleeves and reveal the tattoos beneath the pinstripes.
An online gallery of photos of lawyers, doctors, and other professionals shows us images of these individuals in work clothes as well as of the body art they keep hidden from their colleagues. (There are, alas, no mediators, in case you were wondering.) It provides a candid look at individuals straddling the line between the professional and the personal, the corporate and the countercultural, as they proclaim their individuality in a conventional world.
A case from Pennsylvania demonstrates the challenges real-life issues raise. The York Daily Record reports on the controversy generated by the selection of a neutral to mediate a land seizure dispute between county commissioners and land owners. The mediator had served as re-election campaign manager for the president commissioner, who had voted in favor of the land owners. All parties were aware of the mediator’s ties, yet selected him because of his reputation for honesty as the best person to help them settle their differences. Meanwhile, some members of the public are not pleased by the decision.
It’s a real-life case that pits two ethical duties against each other: party self-determination on the one hand, and on the other, the duty to identify, disclose, and avoid conflicts of interest.
“use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.
and described the transformative effects of mediation, particularly:
its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.
Sander described a courthouse which offered many avenues for justice, uniquely suited to the dispute and the disputants. Sander’s paper helped launch a revolution in ADR and the American legal system.
While ADR today is institutionalized in courts throughout the U.S. and the world, not all would agree that the result has been better access to justice.
Professor Childress raises serious questions about a justice system that seems to place greater value on settling cases than on serving justice. He evokes New York subway vigilante Bernhard Goetz, who shot four youths in 1984. Several years earlier, Goetz was mugged and beaten by three youths in a Manhattan subway station. The court offered him the opportunity to mediate his dispute with one of his assailants, but Goetz declined.
Childress speculates that “[i]t is quite possible that Goetz was not snapped by subway crime or ‘kids today,’ but rather by a legal system that no longer wants to state right or wrong, or enforce norms, just dispute-resolve”. He reminds readers that “The Goetz example was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution”, citing Albert W. Alschuler’s “Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two Tier Trial System in Civil Cases“, 99 Harv. L. Rev. 1808 (1986) (not available free online).
From “Mediation with Mugger”:
Goetz’s unwillingness to rely on a legal system that had invited mediation with his attacker — as well as the public’s initially favorable response to Goetz’s act of violence — suggests what can befall a society whose legal system fails or is perceived to fail.
Although Goetz’s act suggests a lesson about retribution and criminal justice, it also offers a broader lesson about procedure. Goetz’s despair and indignation may not have been entirely the product of his sense that his attacker had gone unpunished. More fundamentally, Goetz may have concluded that no one in the legal system had been willing to listen and to determine whether this mugger deserved punishment. In place of a prompt hearing at which a judge or jury would decide what had happened, this system had offered a conciliation proceeding designed to encourage the victim and the victimizer to resolve their differences and go on their way. The apparent procedural default of a bureaucratized and overburdened legal system may have fueled Goetz’s sense of injustice as much as his misperception of the substantive outcome.
I agree with Childress that the courts serve a crucial role, and that the Goetz case does raise disturbing questions that the mediation field should not shy away from. But I wonder whether the Goetz case serves as the best example of a very real and vexing problem. It involved a criminal complaint, not a civil one. Should the failings of a criminal justice system serve as evidence to condemn the mediation and settlement of civil disputes?
In addition, the problem may not have arisen from the offer of mediation but instead with the failure of the court to communicate with a victim of crime. Goetz was sent home without ever learning of the fate of his attacker. According to “Mediation with a Mugger,”
[Goetz's assailant] was ultimately punished for his crime. He later received a three-to-nine year penitentiary sentence for additional robberies committed after his release. At last word, he was still in prison. The victim of the mugging, however, was never told what had happened to his attacker. He thought that the case had ended when he declined the offer of mediation.
This seems more of a bureaucratic failing — a failure to keep a victim informed. While there are many problems that can be laid at the doorstep of ADR, is this one we want to add?
No matter what, an important lesson emerges here. In opening multiple doors to resolution, courts must remember that one size does not fit all. A process that fails to fit is not a just process. Let the process be appropriate for the dispute and those most affected. We must always be asking ourselves, is our priority to settle cases and clear dockets? Or is it to serve justice?
IMI has posted for international comment first drafts of the standards which can be reviewed and downloaded from the IMI web site. These drafts combine into a competency system that IMI hopes will work internationally. IMI highly values the input of professionals in the field and has established a comment period of 6 weeks to 2 months. The Commission will then convene to review the details in the light of comments received.
…Scientists at the University of Oxford are trying to understand how the ears and the brain work together. They fit ferrets with auditory implants, trained them to respond to sound, and then looked at the way their neurons reacted. It turns out that each ferret’s neurons in the auditory cortex responded to changes in gradual differences in sound but each ferret responded differently.
The researchers say this is applicable to humans. They say this means that our brains are wired to process sounds depending on how our ears deliver that sound. So if you suddenly heard the world through my ears, it might sound quite different.
The UMA speaks to the relationship of mediation to the courts, and addresses mediation confidentiality and evidentiary privilege, together with exceptions to privilege.
In an effort to encourage public input and participation in discussions concerning the UMA and its impact on mediators, lawyers, and others, the MassUMA Working Group has turned to digital technology and the internet, launching the MassUMA Blog at www.massumablog.com.
How “mediator” is defined is a matter of great consequence. Under current Massachusetts law, M.G.L. ch. 233, § 23C, a mediator is defined as “a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body”.
This means that in Massachusetts mediation communications are privileged only if the mediator meets the prescribed conditions. The UMA on the other hand defines a mediator simply as “an individual who conducts a mediation”, providing greater reassurance to parties valuing the candor and confidence mediation promises that mediation communications will remain out of evidentiary reach.
The MassUMA subcommittee, however, has other plans. If the UMA is adopted in Massachusetts, what the MassUMA subcommittee proposes is
preserving the essence of MGL Ch. 233, § 23(c) with respect to mediator definition, training, professional experience and accountability, with the addition of clarifying language.
It’s been such a busy month that my third anniversary of blogging, January 10, 2008, passed unnoticed. I completely forgot until now.
That is partly due to the attention that my blog’s move to a new home required, as well as the demands of work. And among the tasks involved in that move was the slow sorting-through and creation of categories for over 650 posts, the product of 36 months of blogging.
Among my archives I discovered several posts that reminded me why I continue to blog — some thoughts I’d like to share with you as I look back on three years.
Blogging of course is an effective marketing tool, one reason why many businesses and entrepreneurs are drawn to it, as my friend and fellow New Englander, Tammy Lenski, reminds readers today in asking an important question, “Is blogging a good mediation marketing strategy?”
Successful blogging requires research. So bloggers surf the web, cruising for news. We’re Internet blood-hounds, tracking down the elusive scent of stories that will pique the curiosity of our readers. That constant prowling alerts us to stories, trends, breaking news in our field—and even in fields that have nothing whatsoever to do with our blog’s focus, which, I would argue, makes us well-rounded individuals.
Although I have made many contacts the old-fashioned way—through personal introductions, conference attendance, and committee work–nothing has connected me to the world around me faster or more dramatically than blogging has succeeded in doing.
Blogs bring people together like no conference or convention can. It allows for conversation in a multitude of ways.
Here’s one: Publish a post and instantly the whole world hears your message. But this is no one-way conversation–because most blogs permit reader comments, the world can talk back.
Here’s another: Another blogger reads your post. Intrigued by the viewpoint or links you shared, he or she riffs on what you’ve written and links back to you, amplifying the conversation. Suddenly your voice is joined by someone else’s. Other bloggers chime in and the chorus of voices grows.
Here’s another: Someone discovers your blog. One of your posts has sparked their imagination or triggered questions. They email you to tell you. Or they email you a link to an article they think you’d find interesting. Or they email you just to say hello.
With a little encouragement, these conversations can ultimately give rise to meaningful connections–to collegiality, to inspiration, to collaboration. These connections, as I have happily discovered, can produce discoveries, insights, and, most rewardingly, friendships.
Contrary to popular belief, blogging is not a solitary activity. It is joyfully, boldly public.
You can shout into the canyon and hear your own voice echo back.
But wait and shout again, and you will hear other voices rise in greeting.
That, more than any other reason, is why blogging remains such an essential part of my professional life. It is the collegiality, the friendships that have sprung up across geographic distances. It is the pleasure of mutual discovery, of interests shared. It is the sparks struck and the ideas that ignite when viewpoints collide.
Here on the web, what matters most: Only connect.
Thanks to all of you for sharing some or all of those three years with me. I’m glad you were here.
Couples in which both the husband and wife suppress their anger when one attacks the other die earlier than members of couples where one or both partners express their anger and resolve the conflict…
The study results suggest that good conflict resolution skills may be key, but the problem is that few people possess the proper training. According to the study’s lead author,
“When couples get together, one of their main jobs is reconciliation about conflict…Usually nobody is trained to do this. If they have good parents, they can imitate, that’s fine, but usually the couple is ignorant about the process of resolving conflict. The key matter is, when the conflict happens, how do you resolve it?”
The lesson? If you want to save your marriage and your health, learn conflict resolution skills.
There is no greater insult in America today than “flip-flopper”, a label anyone with political ambitions is eager to avoid. It’s as if the act of changing one’s mind as the result of reasoned self-reflection is somehow as shameful, as, say, lying about sex with an intern, rather than a mark of maturity and character.
Certainly anyone who changes their views with the prevailing wind as a matter of political expediency deserves our condemnation, as do those who fail to keep their promises, both political and otherwise.
But as a mediator I have to ask, what’s so great about consistency anyway? If you’re going in the wrong direction, what’s the problem with heading in a better one? When exactly did it get to be a bad thing to change your mind?
When a politician changes his mind, he is a ‘flip-flopper.’ Politicians will do almost anything to disown the virtue — as some of us might see it — of flexibility. Margaret Thatcher said, “The lady is not for turning.” Tony Blair said, “I don’t have a reverse gear.” Leading Democratic Presidential candidates, whose original decision to vote in favour of invading Iraq had been based on information believed in good faith but now known to be false, still stand by their earlier error for fear of the dread accusation: ‘flip-flopper’. How very different is the world of science. Scientists actually gain kudos through changing their minds. If a scientist cannot come up with an example where he has changed his mind during his career, he is hidebound, rigid, inflexible, dogmatic! It is not really all that paradoxical, when you think about it further, that prestige in politics and science should push in opposite directions.
What about you? Are you ready to exercise your reverse gear? Or, like Blair, do you deny owning one?
One of the best blogs on cognition, behavior, and the mind sciences is The Situationist, which examines the implications of social psychology for law, policymaking, and legal theory. In honor of Martin Luther King Day, which is celebrated in the U.S. today, The Situationist has republished a post from 2007, “Martin Luther King, Jr.’s Situationism“.
Pointing to excerpts from the text of King’s “Letter from a Birmingham Jail“, this post makes the case that “Martin Luther King, Jr. was, among other things, a situationist“:
To be sure, King is most revered in some circles for quotations that are easily construed as dispositionist, such as: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” Taken alone, as it often is, that sentence seems to set a low bar. Indeed, some Americans contend that we’ve arrived at that promised land; after all, most of us (mostly incorrectly) imagine ourselves to be judging people based solely on their dispositions, choices, personalities, or, in short, their characters.
Putting King’s quotation in context, however, it becomes clear that his was largely a situationist message. He was encouraging us all to recognize the subtle and not-so-subtle situational forces that caused inequalities and to question (what John Jost calls) system-justifying ideologies that helped maintain those inequalities.
In reading King’s movingly written “Letter”, and The Situationist post, I would say that not only was King a situationist but a skilled master of negotiation and conflict resolution. Consider what King says about community and the mutual responsibility that flows from it:
Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.
Or this about negotiation and the need to confront issues and talk them through:
You may well ask: “Why direct action? Why sit-ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent-resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.
The purpose of our direct-action program is to create a situation so crisis-packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.
Read King’s “Letter from a Birmingham Jail“. What messages does it hold for you, as a mediator, as a negotiator, as a resolver of disputes, or simply as a human being?
At CKA Mediation Blog, Chris Annunziata asks, “What Is Appropriate Law Firm Attire Nowadays?”
As 
Just a few stories spotted in my travels around the web that piqued my interest and hopefully yours as well, dear reader:
A recent study shows that the upside of marital fighting is not just the makeup sex afterwards.
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