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	<title>Comments on: You be the judge: do retiring justices make the best neutrals?</title>
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	<link>http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/</link>
	<description>News and ideas about mediation, negotiation, conflict resolution, and law</description>
	<pubDate>Wed, 08 Oct 2008 10:41:59 +0000</pubDate>
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		<title>By: Charles H. Green's Trust Matters</title>
		<link>http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1128</link>
		<dc:creator>Charles H. Green's Trust Matters</dc:creator>
		<pubDate>Mon, 10 Mar 2008 05:14:36 +0000</pubDate>
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		<description>&lt;strong&gt;Blawg Review #150...&lt;/strong&gt;

Thanks to everyone who submitted or recommended posts for Blawg Review #150, especially to Colin Samuels and Diane Levin, who each sent me several recommendations but not their own excellent posts that I've cleverly hidden in the links to their names....</description>
		<content:encoded><![CDATA[<p><strong>Blawg Review #150&#8230;</strong></p>
<p>Thanks to everyone who submitted or recommended posts for Blawg Review #150, especially to Colin Samuels and Diane Levin, who each sent me several recommendations but not their own excellent posts that I&#8217;ve cleverly hidden in the links to their names&#8230;.</p>
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		<title>By: michael webster</title>
		<link>http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1127</link>
		<dc:creator>michael webster</dc:creator>
		<pubDate>Mon, 10 Mar 2008 01:34:03 +0000</pubDate>
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		<description>Diane:

1.  I don't think there is a one size fit all training.  What would work in my legal field, franchise and distribution law, might not work elsewhere.

2.  Simulations do give participants a chance to find their mediation style or voice.  Which is important.  Just not as important as many think. 

On the other hand, simulations which can be scored and replayed do have high value.  However, they are rare and the lessons learned may not be that important.

3.  But if you think, as many academics do, that the most important problem negotiators face is trying to understand the other person's view without capitulating to it,  then I would focus on teaching negotiation techniques which require individuals to coordinate their actions with minimal overt communication.

Many of current integrative illusions, such as the get as much as you can game, cannot be replayed once you learn the trick.

However, some  simple coordination repeatable exercises can be found in Thomas Schellings' Strategy and Conflict in his essay on bargaining.

Here is one simple example.  You pull up to a stop sign, another car does so at the same time.  How do you avoid the you go, no you go, ... , beneficial brinksmanship which takes place?  

Another one.  You draw a card, unseen, from a standard deck.  If it is an ace of spades, then if you can get the other player to buy it sight unseen, you will get $20, and that player will get $10. If it is not the ace of spades, you will get $10, but the other player gets nothing. But if you turn the card over, and reveal what it is, then you get nothing and the other player gets to take it or refuse it for nothing.  You draw the ace of spades, how do you convince the other player that a rare event has taken place, so that both of you can benefit?

I could go on, but the general idea should be clear.  

4.  However, I do have some concern that these training techniques may select for only highly analytic types.  

5.  I have a series of posts in my new blog on strategic thinking coming up which highlights some of these ideas, which I will pass on to your and your readers -with any luck by the end of next week.</description>
		<content:encoded><![CDATA[<p>Diane:</p>
<p>1.  I don&#8217;t think there is a one size fit all training.  What would work in my legal field, franchise and distribution law, might not work elsewhere.</p>
<p>2.  Simulations do give participants a chance to find their mediation style or voice.  Which is important.  Just not as important as many think. </p>
<p>On the other hand, simulations which can be scored and replayed do have high value.  However, they are rare and the lessons learned may not be that important.</p>
<p>3.  But if you think, as many academics do, that the most important problem negotiators face is trying to understand the other person&#8217;s view without capitulating to it,  then I would focus on teaching negotiation techniques which require individuals to coordinate their actions with minimal overt communication.</p>
<p>Many of current integrative illusions, such as the get as much as you can game, cannot be replayed once you learn the trick.</p>
<p>However, some  simple coordination repeatable exercises can be found in Thomas Schellings&#8217; Strategy and Conflict in his essay on bargaining.</p>
<p>Here is one simple example.  You pull up to a stop sign, another car does so at the same time.  How do you avoid the you go, no you go, &#8230; , beneficial brinksmanship which takes place?  </p>
<p>Another one.  You draw a card, unseen, from a standard deck.  If it is an ace of spades, then if you can get the other player to buy it sight unseen, you will get $20, and that player will get $10. If it is not the ace of spades, you will get $10, but the other player gets nothing. But if you turn the card over, and reveal what it is, then you get nothing and the other player gets to take it or refuse it for nothing.  You draw the ace of spades, how do you convince the other player that a rare event has taken place, so that both of you can benefit?</p>
<p>I could go on, but the general idea should be clear.  </p>
<p>4.  However, I do have some concern that these training techniques may select for only highly analytic types.  </p>
<p>5.  I have a series of posts in my new blog on strategic thinking coming up which highlights some of these ideas, which I will pass on to your and your readers -with any luck by the end of next week.</p>
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		<title>By: Diane Levin</title>
		<link>http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1111</link>
		<dc:creator>Diane Levin</dc:creator>
		<pubDate>Sat, 08 Mar 2008 11:35:23 +0000</pubDate>
		<guid isPermaLink="false">http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1111</guid>
		<description>Michael, thanks for answering my question. You make some interesting points here. Given your doubts about the value of negotiation simulations to teach students to find integrative value, I'd be curious to learn what thoughts you have about teaching methods that would prove more effective.

I really appreciate your contributions to the conversation here, Michael.  Speaking of value, thanks for adding some!</description>
		<content:encoded><![CDATA[<p>Michael, thanks for answering my question. You make some interesting points here. Given your doubts about the value of negotiation simulations to teach students to find integrative value, I&#8217;d be curious to learn what thoughts you have about teaching methods that would prove more effective.</p>
<p>I really appreciate your contributions to the conversation here, Michael.  Speaking of value, thanks for adding some!</p>
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		<title>By: michael webster</title>
		<link>http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1100</link>
		<dc:creator>michael webster</dc:creator>
		<pubDate>Sat, 08 Mar 2008 02:17:37 +0000</pubDate>
		<guid isPermaLink="false">http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1100</guid>
		<description>Diane, 

I seriously doubt that role playing negotiation simulations are effective in locating integrative value.  I have held this view for about 24 years, since first reviewing the training exercises at PON.  Of course I am in a small minority on this.

What I don't know is whether solving the toy negotiations training exercises cited in the appendix in the Bazerman article leads to finding value in the real world.  (And I don't think much his analogical solutions - but that is a debate for another day.)

But I am  hopeful because solving these type of exercises explicitly require the participants to focus on what the other's preference function is.

Now in the real world, we don't have ready made preference functions or relations. 

But I believe that training exercises which require us to think hard about the other player's preference ordering and how to credibly signal our own ordering may lead to better real world negotiation.  Could be wrong, though.</description>
		<content:encoded><![CDATA[<p>Diane, </p>
<p>I seriously doubt that role playing negotiation simulations are effective in locating integrative value.  I have held this view for about 24 years, since first reviewing the training exercises at PON.  Of course I am in a small minority on this.</p>
<p>What I don&#8217;t know is whether solving the toy negotiations training exercises cited in the appendix in the Bazerman article leads to finding value in the real world.  (And I don&#8217;t think much his analogical solutions - but that is a debate for another day.)</p>
<p>But I am  hopeful because solving these type of exercises explicitly require the participants to focus on what the other&#8217;s preference function is.</p>
<p>Now in the real world, we don&#8217;t have ready made preference functions or relations. </p>
<p>But I believe that training exercises which require us to think hard about the other player&#8217;s preference ordering and how to credibly signal our own ordering may lead to better real world negotiation.  Could be wrong, though.</p>
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		<title>By: Diane Levin</title>
		<link>http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1084</link>
		<dc:creator>Diane Levin</dc:creator>
		<pubDate>Fri, 07 Mar 2008 14:16:23 +0000</pubDate>
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		<description>Paul, thanks for your comment. I chuckled when I read the story you recount. I've heard judges and lawyers as well say that, too. It's really tough for highly skilled people who are good at what they've been doing for the past 20 or 30 years to be beginners at something. I have a lot of respect for the difficulties that judges and others confront when they learn to mediate. Thanks for reading and sharing your thoughts, Paul!

Nancy, as always, thanks for your insights and for underscoring the challenge ahead for teaching interest-based, facilitative mediation. I'm grateful to you for pointing me to that article.

Michael, thanks for stopping by again!  I know that you sent me the link to this article recently. I did have a chance to download it and skim it, but I'm not prepared to debate Bazerman on the merits of his arguments.  I'm going to bounce your question right back to you and ask you, What do you think?  I'm guessing you've got some thoughts on that!

However, this post concerns itself, at least in passing, not with the training of negotiators but with the training of mediators.  Based on my experience training hundreds of people to mediate, I think that role play simulations are an effective way to teach people how to mediate. It's by no means the only teaching tool that mediation trainers use, but it's a useful and powerful one.  There is of course no substitute for real-world experience, and it's one reason why the co-mediation model is so effective as a pedagogical tool once students have completed training in mediation.</description>
		<content:encoded><![CDATA[<p>Paul, thanks for your comment. I chuckled when I read the story you recount. I&#8217;ve heard judges and lawyers as well say that, too. It&#8217;s really tough for highly skilled people who are good at what they&#8217;ve been doing for the past 20 or 30 years to be beginners at something. I have a lot of respect for the difficulties that judges and others confront when they learn to mediate. Thanks for reading and sharing your thoughts, Paul!</p>
<p>Nancy, as always, thanks for your insights and for underscoring the challenge ahead for teaching interest-based, facilitative mediation. I&#8217;m grateful to you for pointing me to that article.</p>
<p>Michael, thanks for stopping by again!  I know that you sent me the link to this article recently. I did have a chance to download it and skim it, but I&#8217;m not prepared to debate Bazerman on the merits of his arguments.  I&#8217;m going to bounce your question right back to you and ask you, What do you think?  I&#8217;m guessing you&#8217;ve got some thoughts on that!</p>
<p>However, this post concerns itself, at least in passing, not with the training of negotiators but with the training of mediators.  Based on my experience training hundreds of people to mediate, I think that role play simulations are an effective way to teach people how to mediate. It&#8217;s by no means the only teaching tool that mediation trainers use, but it&#8217;s a useful and powerful one.  There is of course no substitute for real-world experience, and it&#8217;s one reason why the co-mediation model is so effective as a pedagogical tool once students have completed training in mediation.</p>
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		<title>By: michael webster</title>
		<link>http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1078</link>
		<dc:creator>michael webster</dc:creator>
		<pubDate>Fri, 07 Mar 2008 05:44:28 +0000</pubDate>
		<guid isPermaLink="false">http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1078</guid>
		<description>Diane; 

Max Bazerman has an article from 2004 in which he basically admits that the training of negotiation techniques has not given the student the ability to generalize or learn negotiation skills.

For 20 years, PON has used role playing simulations to "train" negotiators.  They now say it doesn't work.

Do you agree with Bazermans' assessment?</description>
		<content:encoded><![CDATA[<p>Diane; </p>
<p>Max Bazerman has an article from 2004 in which he basically admits that the training of negotiation techniques has not given the student the ability to generalize or learn negotiation skills.</p>
<p>For 20 years, PON has used role playing simulations to &#8220;train&#8221; negotiators.  They now say it doesn&#8217;t work.</p>
<p>Do you agree with Bazermans&#8217; assessment?</p>
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		<title>By: Nancy E. Hudgins</title>
		<link>http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1070</link>
		<dc:creator>Nancy E. Hudgins</dc:creator>
		<pubDate>Fri, 07 Mar 2008 01:20:02 +0000</pubDate>
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		<description>A thoughtful post, Diane.  
Judges with mediation training can be excellent mediators.  Some lawyers prefer judges who are still conducting settlement conferences (although they are called mediations).  I think this is because lawyers are trained to evaluate cases and they are comfortable when the judge is evaluative.
What this means is that we have a big challenge in undertaking to educate lawyers to facilitative, interest-based mediation which holds the greater promise of a more mutually satisfactory outcome.
Professor Sander and Professor Stephen Goldberg at Northwestern University School of Law, teamed up last summer to write an article for "Litigation," the magazine of the Litigation Section of the American Bar Association, entitled, "Selecting a Mediator: An Alternative (Sometimes) to a Former Judge."  It's in Vol. 33, No. 4, and is available online if you are a member of the ABA Section on Litigation.</description>
		<content:encoded><![CDATA[<p>A thoughtful post, Diane.<br />
Judges with mediation training can be excellent mediators.  Some lawyers prefer judges who are still conducting settlement conferences (although they are called mediations).  I think this is because lawyers are trained to evaluate cases and they are comfortable when the judge is evaluative.<br />
What this means is that we have a big challenge in undertaking to educate lawyers to facilitative, interest-based mediation which holds the greater promise of a more mutually satisfactory outcome.<br />
Professor Sander and Professor Stephen Goldberg at Northwestern University School of Law, teamed up last summer to write an article for &#8220;Litigation,&#8221; the magazine of the Litigation Section of the American Bar Association, entitled, &#8220;Selecting a Mediator: An Alternative (Sometimes) to a Former Judge.&#8221;  It&#8217;s in Vol. 33, No. 4, and is available online if you are a member of the ABA Section on Litigation.</p>
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		<title>By: Paul Gale</title>
		<link>http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1063</link>
		<dc:creator>Paul Gale</dc:creator>
		<pubDate>Thu, 06 Mar 2008 19:27:26 +0000</pubDate>
		<guid isPermaLink="false">http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-best-neutrals/#comment-1063</guid>
		<description>As a UK mediation trainer, I agree wholeheartedly with this article.

I am reminded of a course I ran which was attended by a High Court judge.  On the morning of the second day, I found him at a break sitting down with his hand to his forehead.

"What's the problem?" I asked.

"No problem, Paul," he replied, "it's just that I've realised that I've got thirty years of experience to umlearn!"

I smiled.  "You're getting it," I said.</description>
		<content:encoded><![CDATA[<p>As a UK mediation trainer, I agree wholeheartedly with this article.</p>
<p>I am reminded of a course I ran which was attended by a High Court judge.  On the morning of the second day, I found him at a break sitting down with his hand to his forehead.</p>
<p>&#8220;What&#8217;s the problem?&#8221; I asked.</p>
<p>&#8220;No problem, Paul,&#8221; he replied, &#8220;it&#8217;s just that I&#8217;ve realised that I&#8217;ve got thirty years of experience to umlearn!&#8221;</p>
<p>I smiled.  &#8220;You&#8217;re getting it,&#8221; I said.</p>
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