A Purdue University employee and student has been accused of racial harassment simply for reading a book. The book that got Keith Sampson into trouble was the critically acclaimed Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan, which surveys Notre Dame and anti-Catholic bigotry during a troubled time in U.S. history.

According to the Freedom for Individual Rights in Education’s (FIRE) The Torch,

First, a shop steward told Sampson that reading a book about the KKK was like bringing pornography to work (apparently this holds true in his eyes regardless of the context in which a book discusses the KKK, the position it takes, and so on). Likewise, a co-worker who happened to be sitting across the table from Sampson in the break room remarked that she found the KKK offensive. On both occasions, Sampson tried to explain what the book was really about. Both times, the other individual refused to listen.

A few weeks later, Sampson was notified by Marguerite Watkins of the school’s Affirmative Action Office (AAO) that a co-worker had filed a racial harassment complaint against him for reading the book in the break room. Once again, he attempted to explain the book’s content, but Watkins too had no interest in hearing it.

(Emphasis mine.)

Apart from the significant threat posed by “an over-aggressive application of employment discrimination laws poses for First Amendment rights in the public employment context”, in the words of Concurring Opinions blogger Paul Secunda put it, what is deeply disturbing to me as a dispute resolution professional is the utter failure of anyone to listen to Sampson. Had anyone bothered to do so, any concerns about the subject matter of the book would have been instantly allayed.

A little listening would have meant a very different outcome for everyone involved — including Sampson. Consider how many misunderstandings, the vast majority below the radar and unreported, arise out of the failure to communicate — and how many complaints, lawsuits, and conflicts might be avoided if people assumed less and listened more.

(Hat tip to Concurring Opinions.)

A press release just crossed my desk for “Divorce Mediation: Myths & Facts,” an online radio show. Back in November, I explained how the show has managed to create some myths of its own — namely, that the best divorce mediators are lawyers.

An upcoming episode in March will cover “‘Certified’ Doesn’t Mean ‘Qualified’ - Choosing a Qualified Divorce Mediator”. I can’t wait to listen in, especially when the show mined a similar vein last November with “Choosing the Right Divorce Mediator” (in MP3 format), where you can tune in to hear aspersions heaped on the talents and expertise of mediators who are not attorneys. Look, I’m all for mediators doing everything they can to promote themselves and their work, but let’s not do it at the expense of fellow mediators, shall we?

So let’s clear some stuff up once and for all. Repeat after me:

Barack Obama is not a Muslim (and so what if he were?).

There were no weapons of mass destruction.

And you don’t have to be an attorney to be a competent divorce mediator.

An article in this week’s Massachusetts Lawyer’s Weekly asks, “Retiring judges have always flocked to ADR. But do they make the best neutrals?” While judges may make great arbitrators — a role which is essentially judging in a private forum — whether they make good mediators is a whole other story.

ADR legend Frank Sander, interviewed for the article, had the following observations:

“Arbitration is private judging, so I think it is very natural that judges would want to become arbitrators, and they generally do a good job,” says Frank E. Sander, a Harvard Law School professor who is considered a pioneer of ADR for his work studying the topic over the past three decades.

But mediation is a very different process, and Sander questions whether judges can step down from the bench and instantly be “competent [as] mediators without further training.”

“True mediation — and I don’t mean settlement activity by judges — is a complex process that requires very different qualities from judging because you’re looking for an accommodative resolution,” he says. “You’re not assessing fault; you’re trying to find a mutually acceptable resolution.”

If a lawyer is looking for a competent mediator, he should not assume that a judge is that person, maintains Sander. In fact, he says, “you should almost assume that a judge wouldn’t be good, though there are clear exceptions to that. … Mediation is a future-oriented process, and court and litigation are past-oriented processes.”

My friend Geoff Sharp, a New Zealand barrister and mediator, weighed in on this issue a year or so ago with “Great on paper, crap at the table“. Geoff linked to an article by mediator Jeff Kichaven, who recounts his experience at the 2006 American Bar Association Section on Dispute Resolution conference with a general counsel who didn’t seem to appreciate the difference between mediators and judges. Kichaven distinguishes the role of the judge from that of the mediator:

Critically, the skills of the professional mediator are completely different than the skills of a judge. The job of the judge is to judge others. The skills of a judge serve a system where juries of strangers follow preset rules and make decisions that are supposed to be consistent and predictable. Judges, therefore, master rules of evidence to restrict conversation and help juries reach these consistent, predictable results. Hearsay, relevance, opinion—these and other limiting rules focus the jury on legally-germane issues and consistent results. Skilled application of these rules is necessary for the professional judge.

Mediators are unshackled from that system. The job of the mediator is not to judge at all. The mediator’s job is to stay curious and leave decision-making to the parties themselves, based on their own standards. Results are individual, spontaneous, and sometimes quite unpredictable. So mediators and judges direct conversations differently. Good mediation technique helps parties gather and exchange whatever information is important to them. That information can address the emotional, financial, and other barriers to settlement. It can go far beyond the “relevant” and “admissible.” So, skill in applying the rules of evidence is not only unnecessary, it can be destructive. A different skill in guiding communication is required.

Kichaven then adds,

Being a good mediator, therefore, has very little to do with having been a good judge. Frankly, it also has very little to do with having been a good lawyer. Just as there are a lot of former judges who are lousy mediators, a lot of former lawyers stink at it too. Additionally, there are excellent mediators who never even went to law school, much less served on the bench. The quality of a mediator depends on the ability to take the litigating lawyers’ own evaluations of cases and test whether, in the eyes of the clients, those evaluations make sense logically, feel right emotionally, and seem doable practically. When those tests are met, cases will settle.

…

Some former judges have taken the training, gained the experience, and joined the mediation profession. Many others rest on their laurels, on the “weight of the robe” and the “force of the gavel,” and cannot go beyond the raw evaluations that good litigators already know. If all you are looking for is the ability to call back to a boss at the home office and say, “Judge X told us the case is worth Y dollars,” maybe you don’t need a professional mediator. But sophisticated users are left flat by this two-dimensional approach.

As someone who has trained a number of judges over the years to be mediators, I couldn’t agree more with both Sander and Kichaven. Just because you were a judge does not mean you’re going to be a great mediator.

Judges, far more so than others, struggle in mediation trainings to grasp the concepts and put a mediator’s skills into practice. That’s not surprising. With a lifetime of experience judging — and being good at it, too — it’s difficult for them to assume a wholly new and unfamiliar role.

Can a judge be a good mediator? With training, mentoring, talent, and aptitude, the answer is yes. But without training? No way. But this is true of anyone, not just judges. No one — and I mean no one — is automatically qualified to be a mediator by virtue of their profession of origin.

This is probably way more information than any of us really needs to know, but here goes.

Poop For Peace Day (do not click if you possess a low tolerance level for the scatological) is based on the notion that #2 is the best way to solve the world’s #1 problem:

Poop For Peace Day is not a day of protest. Pooping for peace is not a left-wing or right-wing activity. Pooping for peace is an act of unity. It’s not about religion or politics. Rather, it’s about the simple truth: underlying our religions and our politics are universal needs, wants and desires. To poop for peace is to transcend arbitrary divisions and embrace that which makes us human. Only from starting at such a fundamental truism can we hope to expand our understandings and solve our differences.

If you say so.

Via Kottke.org.