Archive for January, 2008

Lawyers with body art subject of new book Inked IncAt CKA Mediation Blog, Chris Annunziata asks, “What Is Appropriate Law Firm Attire Nowadays?

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.

Inked Inc. also provides an online social community.

So . . . inquiring minds want to know. What’ve you got up your sleeve?

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Great ideas online for creativity and decision makingYou wouldn’t expect that a military web site would be a great resource for the peace-loving conflict resolution crowd, but you’d be wrong.

Air Force University maintains on its web site one of the most comprehensive lists of creativity, problem-solving, critical thinking, and decision-making resources I think I’ve ever encountered. Find links to information on everything from emotional intelligence to creativity and innovation to fallacies in logic.

Happy browsing.

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What choice for mediators facing ethical dilemmas?ADR scholar and law professor Michael Moffitt has rightly lamented the lack of meaningful guidance that professional rules of conduct for mediators provide the practitioner. This is especially so when more than one ethical duty is at stake, since codes of conduct provide no instruction on how best to balance one ethical duty against another.

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.

If it were you, what would you have done?

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Is justice blind?Over 30 years ago at the historic Pound Conference Harvard Law School professor Frank Sander delivered a paper in which he set forth his vision for a multi-door courthouse. In “The Pound Conference: Perspectives on Justice in the Future”, Sander reminded his audience of litigation’s limits with its:

“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.

New Zealand mediator Geoff Sharp points his readers this morning to a post by Tulane University Law School Professor Alan Childress on the Legal Profession blog that argues for the “Value of Litigation: Against Settlement and Mediation“.

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.

(Emphasis added.)

It is true that overburdened courts often place undue emphasis on getting cases settled. And there is evidence to support the claim that all too often litigants, particularly those who are unrepresented and unfamiliar with the law, are coerced to mediate and settle cases. And few these days would credibly claim that mediation is appropriate for every dispute. Justice must always come first — and certainly well ahead of administrative or bureaucratic goals.

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?

Let’s make it the latter.

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The International Mediation Institute (IMI) has convened an Independent Standards Commission to determine the standards, criteria and guidelines which together will make up the IMI global mediator competency certification system.

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.

If you wish to provide the IMI with your input, please visit IMI online.

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Listen up!If you’ve ever been in an argument over what you thought you heard someone else say, the results of a recent study should come as no surprise.

They suggest that when you hear something, it may not sound the same to me.

From Scientific American Mind & Brain:

…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.

This explains a lot…

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Blawg Review #144 goes to Middle EarthLord of the Rings fans, rejoice.

Kevin Thompson at Cyberlaw Central, and three-time host of Blawg Review, the weekly review of the best in legal blogging, sets Blawg Review #144 in Middle Earth.

Mediators may also enjoy reading “Gollum, Meet Sméagol: A Schizophrenic Rumination on Mediator Values Beyond Self-Determination and Neutrality“, by Professor James Coben, Director of the Dispute Resolution Institute at Hamline University School of Law, an article that challenges mediation’s long-cherished notions of self-determination and neutrality and invites practitioners to consider the importance of other values in mediation: justice and community, and the connection and interplay between the two.

The quest stands upon the edge of a knife. Stray but a little and it will fail. But hope remains, if friends stay true.

Don’t miss Blawg Review #144.

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Mediator's playlistOn the ABA Journal Daily News web site, the Question of the Week asks “Which Songs Would You Choose for a Lawyer’s Playlist?

A few of the usual suspects are suggested, including “Lawyers, Guns and Money” by the immortal Warren Zevon.

In time for Friday and the weekend, here’s a proposed playlist for mediators. (And no, “Kumbaya” does not make the cut. Not on my list, pal.)

And, of course, INXS’s “Mediate“:

What’s on your mediator’s playlist?

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MassUMA Working Group seeks comments on proposed definition of mediatorAs I reported back in 2006, a group of mediators in Massachusetts, designating itself the MassUMA Working Group, has been meeting to discuss the adoption of the Uniform Mediation Act (”UMA”) by the Commonwealth.

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.

One of the Working Group’s subcommittees, which has been meeting to explore the definition of mediator and mediator training, has just posted its findings regarding the current Massachusetts mediation confidentiality statute and the UMA, and is asking for public comment on its recommendations regarding how the UMA, if adopted in Massachusetts, should define “mediator”.

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.

For more information about the implications of the recommendations of the Mediator Training and Definition Subcommittee for mediation practice in the Commonwealth, and a discussion of why in my view those recommendations are misguided, please read “In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past“, published both here and at Mediate.com.

To weigh in, visit the MassUMA Blog and add your views.

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connecting to the worldIt’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?

Blogs are also tools for gathering and disseminating knowledge and information. In a post from June 2005, “Five reasons why ADR professionals should be blogging“, I argued that blogging may make you smarter:

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.

But blogging by nature is designed to connect not just ideas but people — for me blogging’s greatest appeal. As I wrote in November 2006, “Get the connection: building your network through blogs“:

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.

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Link round up from Mediation ChannelJust a few stories spotted in my travels around the web that piqued my interest and hopefully yours as well, dear reader:

In a new twist on the old maxim, “Keep your friends close and your enemies closer,” The Illinois Trial Practice Blog has advice for new lawyers: learn from people more experienced than you — like your opponent.

Robert Ambrogi at Legal Blog Watch reports on the results of a first-of-its-kind video contest sponsored by the State of Texas Bar, Lone Star Stories: Texans on Justice. The contest rules were simple:

Create a three-minute-or-less video that captures your vision of the importance and value of the justice system in our daily lives.

You can view the winning videos at Youtube. Ambrogi’s favorite? “Like Justice for Chocolate“. Mine, too. Go see for yourself.

China Law Blog has advice on cultural awareness in business contexts that can be boiled down to four blunt words: “Don’t Be An Asshole“.

That’s also the workplace advice from Bob Sutton as he reports on the results of a study that indicate that when people are treated rudely, their performance suffers.

It’s advice, if followed, that could put mediators and lawyers out of business.

Science Daily explains how “The Mind And Body Together Lean Toward ‘Truthiness’” — in other words, “the more ambiguous an answer to a question, the more likely an individual will believe it is truthful”.

Finally, Cognitive Daily reports on “What you know, and how it’s different from what you remember” — it’s not just a linguistic difference.

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Conflict resolution skills in marriage are good for your healthA recent study shows that the upside of marital fighting is not just the makeup sex afterwards.

Researchers at the University of Michigan followed 192 couples over a 17-year period and discovered something interesting:

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.

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optical illusionFans like me of optical illusions will want to mark their calendars. May 11, 2008, is the date set for the 4th Annual Best Visual Illusion of the Year Contest, held in Naples, Florida. This is a contest that takes illusion seriously — even the trophies that three lucky winners will receive are optical illusions.

You can view the work of previous contestants, which include enough visual marvels to delight and surprise even the most jaded illusion enthusiast, among them the world’s largest lightness illusion, “how many circles do you see?“, and bouncing brains.

A word of caution — you may want to pop a couple of Dramamine before viewing some of the entries.

Incidentally, I’ve added “Optical Illusions” as a category on this blog. Feel free to explore.

(Hat tip to Omni Brain.)

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What have you changed your mind about?A friend recently sent me a link to the Edge World Question Center. Each year, Edge, a foundation that promotes inquiry into and discussion of intellectual, philosophical, artistic, and literary issues, poses a question to the world’s leading thinkers.

This year’s question, “What Have You Changed Your Mind About? Why?“, prompted many answers, to which I keep returning to explore.

It’s a good question, and one I’ve pondered often. Last March I asked, “Since when is changing your mind a bad thing?“:

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?

Evolutionary biologist Richard Dawkins, in considering the question Edge posed, had this to say as he contemplated his own change of 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?

What have you changed your mind about?

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Martin Luther King and the march on WashingtonOne 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?

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©Copyright 2005-2008 Diane J. Levin. The material on this blog is provided for informational and educational purposes only and should not be construed as legal advice or as creating an attorney-client relationship. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.