Last week in joint posts fellow blogger Colin Samuel and I saluted the anonymous editor of Blawg Review for his significant contributions to the legal community in creating the  invaluable resource that Blawg Review shows itself to be, week after week.

The most recent two editions of Blawg Review demonstrate why Colin and I were moved to say,

Presented each week by a different host, Blawg Review shows readers the many faces of the law, both in the U.S. and across the globe. In the best tradition of law and justice, as an institution it is open for all to participate, bringing well-deserved attention, appreciation, and traffic to the many lawyers, legal academics, law students, legal professionals, and others who blog about legal topics and issues.

Today’s presentation of Blawg Review #143 is hosted by Public Defender Stuff, which celebrates the enduring legacy of Martin Luther King, Jr., and reminds readers of the principles of equality and justice that Dr. King stood for.

Meanwhile, the widely respected legal business coach Susan Cartier Liebel hosts Blawg Review #142 at Build a Solo Practice, where she distills a week’s worth of posts and expert advice into a “Letter to a New Lawyer”.

“An Aboriginal Woman’s Experience with Mediation” is a six-minute-long film that allows a woman to describe what mediation meant for her and the changes in her life it helped her produce:

…When you go to appear in front of a judge with a lawyer, your lawyer does all the talking and you don’t get to be heard. Whereas with mediation you have a voice and there’s options…and things get worked out on both sides…

Despite its length, this little film speaks volumes, serving as an eloquent reminder to lawyers and judges of mediation’s power to give a voice to those whom the legal system all too often silences.

“An Aboriginal Woman’s Experience with Mediation” was produced by the Vancouver Coastal Region, Ministry of Children and Family Development, for the Mediation Cafe, a mediation forum held in April 2006 in Vancouver, British Columbia.

Thanks to the Peacemakers Trust for the link, which reports on news and events on dispute resolution.

If you don’t like American football or live outside the United States, you’re probably not aware (or even care) that the undefeated New England Patriots are squaring off against the San Diego Chargers this Sunday in the battle for the AFC Championship and the right to play in the Super Bowl, that most sacred of American sports events. The top-seeded Pats, 17-0, are considered the odds-on favorites.

Some folks, however, are rooting for the San Diego underdogs. Kristina Haymes, an attorney and mediator who blogs about mediation marketing, and also an avowed Chargers fan, has thrown down the gauntlet. Knowing that my heart belongs to the Patriots, she asks me,

What do you say Diane are the Pats going to trounce the Chargers? Do the underdogs have a chance?

I confess that I’m torn. How to respond? The superstitious sports fan in me never makes public predictions about my team’s likelihood of victory (a superstition borne of a lifetime as a Red Sox supporter). Yet the pulse-pounding excitement of the 2007 football season has gone to my head.

Should I simply say, “Let the best team win?”

Nah. There’s only one answer for Kristina:

Go, Pats!

Blawg Review, the carnival of legal blogging co-founded by its anonymous editor, highlights the best legal blogging each week.

Issue after issue, hosts from across the legal blogosphere (and occasionally beyond it) are selected by the anonymous editor of Blawg Review to present the carnival in their own voices, sharing their personal and professional experiences and interests with the ever-growing Blawg Review audience. In developing each issue, the anonymous editor of Blawg Review guides each host, offering invaluable advice and links to worthy posts. Working tirelessly behind the scenes, the anonymous editor of Blawg Review brings attention to this cooperative effort and to the bloggers who produce each edition of the carnival.

Yes, there is a theme here.

While he takes time each week to recognize the hosts of Blawg Review, and annually singles out an outstanding Blawg Review of the Year, it has been the Anonymous Editor’s practice since the beginning of the Blawg Review endeavor to shun publicity for himself. Notwithstanding, Diane Levin and Colin Samuels, the “Sherpas” who assist the hosts and the anonymous editor to source posts for each issue of Blawg Review, would like to take this opportunity to recognize, and to invite others to recognize, Ed.’s efforts.

Over nearly three years, Blawg Review has grown to become a widely-respected brand in the legal end of the blogosphere. Presented each week by a different host, Blawg Review shows readers the many faces of the law, both in the U.S. and across the globe. In the best tradition of law and justice, as an institution it is open for all to participate, bringing well-deserved attention, appreciation, and traffic to the many lawyers, legal academics, law students, legal professionals, and others who blog about legal topics and issues.

Blawg Review has prospered where other carnivals have failed; it has grown in reputation where others have dissolved into infighting. Blawg Review stands tall as a positive and enduring example of what can be accomplished by and among bloggers; its success results in large part from the efforts of the anonymous editor of Blawg Review.

Thank you, Ed.

(Cross-posted by Colin Samuels at Infamy or Praise. Congratulations to my fellow sherpa Colin for so deservedly earning the support of his peers to win the coveted title of Blawg Review of the Year 2007.)

You must have noticed it.

That odd silence that fell over this corner of the blogosphere, where the mediators hang out.

Yes, some of us were still posting. But something was different. The rhythm was off somehow. You could sense it.

But now, following a month-long hiatus from blogging, he’s back, and with him all the energy and spark and light that filled this end of cyberspace.

And I’ll stop right there, because I know I’m probably embarrassing hell out of him.

Geoff Sharp has returned with this lovely tribute to Edmund Hillary and the achingly beautiful place Geoff calls home.

Road trip to New Zealand, anyone?

One of the trickiest stages of any negotiation is when to make the first offer.

No one ever wants to go first. But that first number possesses almost talismanic properties — it can profoundly influence how the other side perceives the value of what you demand. Studies have in fact shown that negotiators who make the first offer often do better than those who wait. Why? According to an article by Kellogg School of Management Morris and Alice Kaplan Professor of Ethics and Decision in Management Adam Galinsky,

The answer lies in the fact that every item under negotiation (whether it’s a company or a car) has both positive and negative qualities — qualities that suggest a higher price and qualities that suggest a lower price. High anchors selectively direct our attention toward an item’s positive attributes; low anchors direct our attention to its flaws…

Anchoring research helps clarify the question of whether to make the first offer in a negotiation: by making the first offer, you will anchor the negotiation in your favor…

While this may be true, Galinsky has also found that one of the most common negotiation mistakes is to make a first offer that isn’t aggressive enough.

An aggressive first offer can work in your favor for several reasons. Take the perspective of the seller: more extreme first offers lead to higher final settlements. For example, higher listing prices lead to higher final sale prices in real estate transactions because, as we’ve seen, high-anchor offers lead buyers to focus on a negotiated item’s positive attributes. In addition, an aggressive first offer allows you to offer concessions and still reach an agreement that’s much better than your alternatives…

One of the best predictors of negotiator satisfaction with an outcome is the number and size of the concessions extracted from an opponent. By making an aggressive first offer and giving your opponent the opportunity to “extract” concessions from you, you’ll not only get a better outcome, but you’ll also increase the other side’s satisfaction.

While starting with an aggressive first offer can give a negotiator the edge at the table, there is a caveat:

Of course, it’s important that your opening offer isn’t absurdly aggressive. The first offer provides preliminary insight into the bargaining zone and range of possible agreements. An absurd offer can lead the receiver to believe that no agreement exists that will be acceptable to you both and therefore can cause her to walk away from the negotiation.

Unfortunately an unidentified Katrina victim didn’t have the benefit of Galinsky’s wisdom: this individual filed a claim with the United States Army Corps of Engineers seeking more than $3 quadrillion in compensation.

(Hat tip to Lowering the Bar.)

[Editor's note: In the blogosphere you have to move fast. I'd planned to get this completed and posted last night but instead elected to watch the Patriots vanquish the Jaguars on the road to the Super Bowl, a decision this Pats fan does not regret for one moment. Carrie Menkel-Meadow got here first, but I'm still weighing in with my own two cents.]

Authority wields an irresistible power, as Robert Cialdini recounts in the well-known classic, Influence: The Psychology of Persuasion. In Chapter 6, “Authority”, Cialdini describes a highly successful TV commercial for Sanka, a brand of decaffeinated coffee, in which actor Robert Young, known for playing a doctor on a popular 1970’s television drama, Marcus Welby, M.D., warns against the health risks caffeine poses and recommends Sanka to the viewing audience:

From the first time I saw it, the most intriguing feature for me in the Robert Young Sanka commercial was its ability to use the influence of the authority principle without ever providing a real authority. The appearance of authority was enough. This tells me something important about unthinking reactions to authority figures. When in a click, whirr mode, we are often as vulnerable to the symbols of authority as to the substance.

While today we make light of the phrase, “I’m not a doctor, but I play one on TV”, it nonetheless remains difficult for some of us to distinguish between the actor and the role, between apparent and real authority.

Case in point: actor and holder of the “sexiest man alive” title George Clooney has apparently volunteered to mediate the Writers Guild of America strike that has the entertainment industry in full lockdown.

In all fairness to Clooney, who did not, as previous reports indicate, say, he would tell the WGA “you have to live with this and get over it”, Clooney at least does appear to appreciate that mediation is not an adversarial smackdown. Sources indicate rather that Clooney’s “stance has always been to find common ground and not alienate each other.” His heart’s in the right place.

Nonetheless, what bugs hell out of me as a mediator is how all too often people like the well-intentioned Clooney claim expertise to mediate disputes — as if mediation is a task that anyone can perform, rather than a professional service requiring training and preparation to master.

Learning to mediate is hard and demands commitment — as I hear often from the hundreds of people I have trained over the years to become mediators. At the end of every training I have taught, almost every participant — from the retired judges to the practicing lawyers to the social workers to the corporate executives — tells me that they anticipated learning to mediate would be easy — only to discover that there’s far more nuance, complexity, and skill involved than they ever anticipated.

Among the knowledge and skills that a professional mediator possesses at a minimum are:

• an understanding of the dynamics of conflict;
• the fundamentals of negotiation, including familiarity with both distributive and integrative bargaining;
• techniques for facilitating joint problem solving;
• communication skills, including effective listening and questioning skills;
• techniques for addressing impasse and barriers to agreement;
• and standards of practice and professional ethics

I do have a proposal for George Clooney and the other actors who have volunteered to mediate the WGA dispute. Come take a mediation training with me. Not only will you learn some great life skills, but you’ll come away with a better appreciation for the work that professional mediators like me perform. And who knows? If you ever get to play a mediator in a movie, you’ll be ready for the role.

What difference does gender make in negotiation? Although both men and women in business strive to be leaders at the negotiation table, there are potential traps that women need to be on guard against, according to the speakers at a recent seminar of the Women’s Law Association of Ontario.

Leadership communication expert Donna Goodhand and attorney and negotiation coach Delee Fromm had advice tailored for women who want to become more persuasive and effective negotiators:

“People respond more to the person representing the cause than they do to the cause itself,” Goodhand said, emphasizing the importance of image. “If we want to be seen as leaders in our realm, if we want our ideas to be credited and our voices to be heard, then it’s essential that we take a persuasive presence into our encounters.”

Emphasized were the importance of:

• developing a vocal presence - women are socialized to speak quietly and use their “indoor voice”
• avoiding “undermining openers” like “It’s probably just me” or “I guess what I’m trying to say” in a competitive negotiation
• strategic, context-specific use of different negotiating styles

To read more on gender and negotiation, here some posts from the MediationChannel.com archives:

• A woman’s place is in the driver’s seat: Thoughts on negotiation and gender in the car dealer’s showroom
• Leveling the playing field: Neutralizing gender differences in negotiation
• More than we bargained for: Does gender matter in negotiation?

Fellow mediation blogger Victoria Pynchon and I are both really excited to learn that leading dispute resolution scholar Carrie Menkel-Meadow is a guest blogger this month at Concurring Opinions (covering “the Law, the Universe, and Everything”).

Readers of this blog will no doubt recall this post linking to a recent article by Professor Menkel-Meadow, which raised an important and timely question for the ADR field — “Why Hasn’t the World Gotten to Yes? An Appreciation and Some Reflections” (downloadable in PDF).

Visit Concurring Opinions to learn more about Professor Menkel-Meadow and her contributions to both ADR scholarship and the practice of mediaton.

Blawg Review, the weekly review of the best in legal blogging, is hosted this week by urbane British blogger Charon QC.

Blawg Review #141 covers posts from both sides of the Atlantic. If you’re not familiar with the legal blogging scene across the pond, don’t miss this British invasion.

According to Newton’s Third Law of Motion, for every action, there is an equal and opposite reaction.

This must surely apply to the dispute resolution field. Consider this:

Exhibit 1: Action.

Family lawyers in Massachusetts, including esteemed family mediation pioneer John Fiske, are currently working to replace references in state law to “custody” and “visitation” — words laden with negative associations for parents facing divorce — with the terms “parental rights and responsibilities” and “parenting plans” — language which is far less inflammatory and likely to provoke conflict. If Massachusetts takes this step, it will join other states like its neighbor New Hampshire which have already incorporated such changes into law.  I have seen first-hand how destructive the traditional language can be and how much anxiety it arouses; those who work with families and couples in conflict as I have will no doubt welcome this change.

Exhibit 2: Equal and Opposite Reaction.

Every year I take the last week in December off and enjoy some of that time catching up on my reading. One of the books I added to my library is the tremendously entertaining pocket reference, William Drennan’s Advocacy Words: A Thesaurus. From the preface:

Effective word use is vital for anyone active in the law. For the attorney arguing a case or preparing a brief, for the jurist writing an opinion, even for the law student, words are the ammunition needed to make the point.

Quite an image, huh? Now this from the book’s description in the American Bar Association’s bookstore, which keeps the combat metaphors coming:

If you are a litigator, Advocacy Words can help you decimate opposing counsel’s position. If you are writing a brief, it can help you compose a convincing argument. If you are a jurist, it can help your opinions ring with the strength of your legal judgment. And if you are a law student, Advocacy Words can help you to hone your combative legal skills. Use the verbal dynamite in Advocacy Words to promote your position effectively. Let it be your companion in painting the verbal picture you want. Keep it handy to help you move others to your point of view.

In a way, it’s like reverse reframing.

The book is organized into two parts. Part one provides favorable words in one column with critical synonyms suggested in another; part two reverses it, with critical words in one column, with their favorable synonyms in the second.

For example, in part one, the critical “conspiracy, deal” are suggested substitutes for the favorable “agreement”; “confused, indecisive” for “considering alternative opinions”; and “manipulable, docile, meek, pliant, compliant, collaborative, toadying” for “cooperative”. Meanwhile, in part two, the favorable “frank exchange of ideas, frank discussion” is offered for the critical “argument”, and “flexible negotiator” for “soft-liner”.

See? Fun!

A new mediation blog has moved into the neighborhood. mediatorinthemaking.com covers “adventures in learning the practice of mediation”.

Published by an anonymous blogger, identified only as “a newly trained mediator seeking experience wherever I can find it, learning quite a lot as I put my new skills into practice”, this days-old blog already shows promise with “The future’s so bright“, a post that announces the release of U.S. News & World Report’s listing of best careers for 2008 — and the fact that “mediator” makes the list for the first time.

In the interests of full disclosure, I should tell you that I have the pleasure of knowing the anonymous blogger behind mediatorinthemaking.com. Although like a good mediator, I will keep that information to myself, without giving anything away I can tell you that this individual is bright, talented, and promising to be one of the mediation field’s success stories.

It’s therefore my pleasure to send my best wishes and congratulations to the anonymous author of mediatorinthemaking.com. I hope you’ll do the same.

(Photo credit: Afonso Lima.)

How others see us may be very different from how we see ourselves.

But how to map the overlaps and gaps between their perception and our own? How can we see that self more completely?

Professional mediator and tech expert Tammy Lenski points us to a tool that can help us see that total picture: an interactive Johari window that allows users to map personality awareness with the aid of friends, family, and colleagues.

Interested in finding more online tools that test self-knowledge? Visit this post from the MediationChannel.com vaults: “Hidden agenda: online test reveals conscious and subconscious biases“, which links to several, including Project Implicit, which tests for implicit associations, and the Moral Sense Test, an ongoing study of moral intuition.

According to today’s Boston Globe, the University of Leicester has published a Global Projection of Subjective Well Being, or, in layperson’s terms, a world map of happiness.

Which countries are among the 20 happiest? They include Denmark in the #1 slot; Canada, #10; and New Zealand, #18. The U.S. ranks 23rd, while the U.K. is #41 and India #125.

Click here for the list or here for the map (scroll down to see the map image).

As difficult as it can be to make requests of others, as I discussed in “New Year’s (Dispute) Resolution #3: Don’t be afraid to ask“, saying no to requests that others make of us can be just as hard.

Guilt can push us to say yes when all our instincts say no. Or we worry that “no” will harm a good relationship. Or we are convinced that saying no to them today will make them less willing to say yes to us tomorrow.

There’s an art in saying no well. And compelling reasons why no may be the best answer. According to negotiation expert William Ury’s 2007 bestseller, The Power of a Positive No: How to Say NO and Still Get to Yes,

In saying No positively, we are giving ourselves a gift. We are creating time and space for what we want. We are protecting what we value. We are changing the situation for the better — and all the while keeping our friends, colleagues, and customers. In short, we are being true to ourselves…

No is no longer a negation but an affirmation of the honesty that good relationships depend upon:

Your No can be a gift to the other as well. “Tell me Yes, tell me No, but tell me now” is a refrain I have often heard from those on the receiving end. The other often much prefers a clear answer, even if it is No, than continued indecision and waffling. A No allows them to go ahead and make their own decisions.

Indeed, a Positive No can bring us closer to the other, into a more authentic relationship. If we do not speak our truth — our No — we may in fact distance ourselves from the other, as there will always be something important that lies unspoken between us.

We need to gain greater comfort in saying yes to No.