I just finished teaching a mediation training program for a group of extraordinary people from a wide range of professional and personal backgrounds. It was a delight to work with smart, insightful, good-humored men and women who demonstrated so much intellectual curiosity and a passion for learning.
I promised to pull together for them a selection of must-read articles for mediators — hence this post. I am also including links to suggested sites. I’m breaking it all down into three sections: Read, Learn, and Connect.
Read
In this section are articles tackling important questions about the practice of mediation. These articles have served as the focus of discussion here in the blogosphere and in the real world.
“Is that All There is? The ‘Problem’ in Court-Oriented Mediation“, by ADR scholars Leonard Riskin and Nancy Welsh. From the abstract: “In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters… Mediation is structured so that litigation issues predominate; other potential issues - personal, psychological, relational, communitarian - disappear.”
“Moving Mediation Back Toward its Historic Roots - Suggested Changes” (in PDF), by Joseph P. McMahon, Jr. This article concerns itself with two central criticisms of mediation today: “(1) the legal community has learned to accept low-functioning mediation; and (2) changes are needed to bring commercial and environmental mediation to their full potential.” (With appreciation to Stephanie West Allen.)
What follows are links to resources for new and experienced mediators to continue to develop the capacity to mediate well.
Mediate.com. The world’s leading online resource for news and information about the field of ADR. Nobody –and I mean nobody — does it better. On the main page you can sign up for its weekly newsletter with links to the latest articles and blog posts. Also includes a special “Featured Blogs” section.
Negotiation Tip of the Week. A weekly podcast, just three minutes long, that packs an enormous amount of negotiation wisdom into a tiny amount of time. Produced by Dr. Josh Weiss and the Harvard Program on Negotiation. Speaking of which…
International Dispute Negotiation. A high-quality podcast series by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas, based at his company’s headquarters in Florence, Italy. Beautifully produced interviews with the best and the brightest minds in ADR internationally as they share their wisdom and experience.
Connect
The following links connect you to bleeding-edge ideas and online conversations about mediation, negotiation, and ADR, or to opportunities to participate in professional associations for ADR practitioners.
World Directory of ADR Blogs @ ADRblogs.com. My ongoing effort to track and catalog blogs world-wide that discuss ADR, conflict resolution, negotiation, and innovations in the practice of law and the delivery of justice. All across the globe mediators are wrestling with the issues that face a still-developing field. A random sampling of English language blogs include Brains on Purpose, exploring the intersection between brain sciences and conflict resolution; Settle It Now, a fresh new look at negotiation and ADR from the perspective of a former litigator and experienced commercial mediator; Mediator Tech, dedicated to making technology accessible for even tech-challenged mediators; Mediator Blah…Blah, a self-described “overly opinionated mediation resource” from New Zealand; and ICT for Peacebuilding, a Sri Lankan blog exploring the intersection between technology and conflict resolution while examining ethnopolitical conflict and its transformation.
MassUMA Working Group web site and blog. For mediators and others interested in taking part in an ongoing conversation about enacting the Uniform Mediation Act in Massachusetts. A chance to participate in making mediation history. Visit the MassUMA Blog to sign up for advance notice of meetings or to add your voice to online discussion.
And something tells me that Victoria Pynchon, mediator and author of the negotiation blog Settle It Now, will leave us all with plenty to remember as she plays first-time host to Blawg Review this coming Monday at her second home, IP ADR Blog.
Want to know the identities of the other Blawg Review virgins? The anonymous editor of Blawg Review kisses and tells. Meanwhile, let’s all see what we can do to make Vickie’s first time really special — visit IP ADR Blog on Monday, August 4, and, if you’re a blogger, give her some link love.
[Update: Blawg Review #171, the Virgin Edition, is now up at IP ADR Blog. It is indeed as memorable as one could wish a first time to be.]
Several months ago, a former student of mine, about to sit for the bar, asked me to write for him the letter of recommendation his application package required. Although at that time my schedule was hectic, I was happy to do so and accommodated his request, completing the letter and mailing it off to him well in advance of the bar deadline. I emailed him to let him know it was on its way.
Several weeks passed, and I heard nothing at all from my former student — not an email or phone call to let me know he’d received my letter. I grew concerned that the letter had gone astray and he had failed to receive it. Then, as the days passed, I became annoyed that he hadn’t acknowledged an effort undertaken on his behalf and at his request. At last I emailed him to ask if the letter had reached him. Yes, he wrote back, it came. And then, as an afterthought, he added, by the way, thanks.
His casual response disappointed me. I had taken time to reflect on my personal knowledge of him and his character and then draft with care a letter to help him achieve an important professional goal. Yet it never occurred to him to contact me to reassure me that my letter reached its destination and that he appreciated my help.
Expressing appreciation requires little effort yet means so much to the recipient. You can pick up the phone, send an email, even write a note. Yet failure to do so results in great cost. It saddens me that my former student has unthinkingly burned a bridge. It is unlikely now that I will ever send a client or business opportunity his way.
His carelessness made me think a lot about what “thank you” really means. It is not simply expressing gratitude for the extra mile, the care, the thought. “Thank you” is also about renewing or building relationships. “Thank you” honors a past deed. “Thank you” affirms hope for the future.
If someone gave you advice you asked for, put you in touch with people who could help you, referred you business, linked to your web site, made available resources so you could get something done, or otherwise did you a good deed, thank them. Although some (like gratitude’s fiercest champions, attorneys Dan Hull and Holden Oliver) would suggest a hand-written note (preferably on Crane’s stationery), others like me would say the message itself matters more than the medium in which it is delivered.
Someone called me the other day to ask me to recommend them a lawyer. After describing to me the issues at stake, they said, “I want a real pitbull — someone who’ll go straight for the jugular and show no mercy.”
Believe me, a pitbull was not what this particular case warranted. It’s too bad that so many people think that’s what they need in a lawyer. Not a principled defender of justice, nor a skilled negotiator who can broker a winning deal, nor a charismatic leader who can influence others. Thanks to the media, which rarely depict this side of lawyering, most people fail to see, let alone celebrate, the art in the lawyer’s craft.
J. Kim Wright, who describes herself as a “pioneer, catalyst and leader in a new paradigm of law”, has launched CuttingEdgeLaw.com, an online community and magazine that seeks to show lawyers in a very different light:
Rather than focusing on the latest litigation victories and defeats, we will focus on the roles of lawyers as healers, peacemakers, problem-solvers, and champions for justice. We aren’t looking for the “Super Lawyers” who made $6MM on moving money between two behemoth corporations over a technicality but rather the lawyer who healed a conflict between two parents in a custody dispute or a lawyer who helped a murderer come face to face with the family of his victim and give them the gift of a sincere apology. We’re here to support the explorations and promote the most workable and inspiring options for the legal system. Imagine the legal system as a resource for creating whole, vibrant, loving communities? If we transform our practices, how do we reach clients? How do we earn a living on healing and peace-making when the world is used to viewing lawyers as a polarizing force?
Since 2005 I’ve been a devoted supporter of Blawg Review, the weekly review of the best in legal blogging. It isn’t just for lawyers — the ideas, analyses of news, and viewpoints you’ll find there are relevant to anyone who seeks intelligent conversation about legal issues or smart tips on the business of running a practice — law or ADR.
Whisper is founded on one big idea: “The key to any effective marketing, branding or advertising effort is to change and take ownership of the conversation.”
Helping people shape and take ownership of the conversation is something we mediators know plenty about. But branding our work and branding ourselves? — not so much, as my colleague Tammy Lenski has pointed out. Whisper, however, has a lot to teach us. Blawg Review #169 presents examples of effective branding and shares Whisper’s philosophy of strategic brand building.
This is by no means the first time I’ve encouraged readers to plumb the depths of their hidden biases with the help of Project Implicit and its Implicit Association Test (IAT), an instrument which “measures implicit attitudes and beliefs that people are either unwilling or unable to report.” With the recent discussion here and elsewhere of gender bias, I thought it was time to revisit the IAT.
The IAT tests for biases across a range of categories, from gender to skin tone to disability. Since I first wrote about it, Project Implicit has introduced other tests, including
the “Weapons - Harmless Objects” IAT, which requires the ability to recognize White and Black faces, and images of weapons or harmless objects;
the “Arab Muslim - Other People” IAT, which requires the ability to distinguish names that are likely to belong to Arab-Muslims versus people of other nationalities or religions; and
a “2008 Presidential Election” IAT, which requires the ability to recognize images of U.S. presidential candidates John McCain and Barack Obama.
You can also take the Three Countries IAT (link good at the time of this post), which requires participants to identify words associated with China, India, and Japan.
I’m probably one of the last people on earth with an internet connection to see the following video.
That means that it may not be news to you at all. But this video of a guy doing a goofy dance in locations around the world, often attracting crowds of people who join in the fun, put a big smile on my face just in time for the weekend. There’s a story behind it of course.
When was the last time you felt that kind of unalloyed and unselfconscious joy?
Now crank up the volume, get off that task chair, and dance:
This test ranks in order of preference the three moral philosophies that guide your ethical decision making: principled conscience, social conscience and rules compliance. Your test results reveal your ethical nature — enforcer, philosopher, judge, angel, teacher, or guardian.
Personally I have skepticism aplenty about a test that purports to plumb my moral depths, particularly when the outcome rests on a mere handful of responses. According to my test results, I am an angel — which any of my closest friends will assure you I am not.
Lobbed like a Molotov cocktail, Vickie’s post blew gender bias apart, as she recited a litany of examples of discrimination spanning decades against women inside and outside the legal profession.
It’s not just the persistence of gender bias that makes women like Vickie and me so damn mad. It is also its effect: it makes us invisible — so much so that it drove me to ask out loud several weeks ago, “Where are all the women who mediate?“, as I looked at an ad for a panel of 15 neutrals that included only one woman.
Now I’m asking a different question. A colleague just sent me a flyer for a workshop on diversity and conflict resolution to be held here in New England.
First the good news: the workshop leaders, all nationally prominent figures in the ADR and legal fields, are of different races and faiths.
Now the bad news: they’re all men.
So I gotta ask: how can you conduct a workshop on diversity without including at least one woman on your panel of speakers?
A Google Alert in this morning’s email directed my attention to an article titled, “Isn’t Your Look Part of Your Negotiation?“, posted on WomenandBiz.com, an online magazine “written for today’s entrepreneurial woman”.
The article emphasizes the importance of preparation to effective negotiation — namely, making the right impression with your appearance:
Here are some tips: mimic their style, put yourself in an attractive light and don’t create distractions. What does mimic their style mean? It doesn’t mean be who you are not, but rather present yourself in such a way that will look good to the other party… Mimic their look means to create a look for yourself that will be most pleasing for them to receive you.
Now here’s my favorite part, which the article offers up with a straight face and not even the faintest whiff of irony:
Negotiations are all about getting the other party to listen to you. Your hair, your clothing and your accessories should all be in tune to the tastes of the other party.
(Emphasis added.)
Huh? My accessories? Are you serious? (Incidentally, as my readers know, negotiations are indeed all about listening, but not “all about getting the other party to listen to you”. It’s in fact a lot about listening to them — vital to the relationship building that successful negotiations depend upon. Plus you’ll learn a great deal and be able to leverage the information you acquire.)
How about emphasizing the importance of a professional appearance? In his book Influence: The Psychology of Persuasion, Robert Cialdini describes how powerful authority is as a tool of persuasion and how readily we submit to those who wield it, often unable to distinguish between real and apparent authority. He points out that one of the most recognizable emblems of power here in the West is “the well-tailored business suit”, which “can evoke a telling form of deference from total strangers”, as experiments have shown.
In urging women to “mimic” the look of their bargaining counterpart, how would the author of this article counsel the 60-year-old woman negotiating with her 30-year-old prospective boss? Or a woman of color negotiating in a predominately white workplace? Or a woman wearing a hijab? Or a woman with a face disfigured in a car crash, negotiating with people who are unscarred and whole?
Mediators and negotiators are familiar with the concept of the fixed pie versus the expanding one. In traditional negotiation, there is only one pie to be divided, and everyone wants to claim the largest piece. In principled negotiation, we talk of expanding the pie — of creating value so that everyone’s needs are met. In fact, many of us who practice principled negotiation promote the notion that the pie and possibilities are infinite and that the only limits are those our own imaginations set.
An essay that appeared in the May 2008 issue of Harper’s Magazine titled, “Faustian economics: hell hath no limits“, made me wonder whether we aren’t overselling that aspect of mediation and negotiation. In reality, in hard economic times, pies are indeed limited, as resources dwindle, grow more costly, or vanish altogether. Maybe, instead of raising false hopes of an infinitely expanding pie, perhaps we should inspire those in conflict or in negotiation to work creatively — even heroically — within the limits they face.
In this essay, author and critic Wendell Berry takes a long, merciless look at America’s consumerism and its enduring belief in the fable of unlimited economic growth. Condemning America’s “national faith” in “‘There’s always more’”, Berry writes,
In keeping with our unrestrained consumptiveness, the commonly accepted basis of our economy is the supposed possibility of limitless growth, limitless wants, limitless wealth, limitless natural resources, limitless energy, and limitless debt. The idea of a limitless economy implies and requires a doctrine of general human limitlessness: all are entitled to pursue without limit whatever they conceive as desirable — a license that classifies the most exalted Christian capitalist with the lowliest pornographer.
He pinpoints the source for our mistaken belief and reveals what we miss when we focus on limitlessness and not limits:
If the idea of appropriate limitation seems unacceptable to us, that may be because, like Marlowe’s Faustus and Milton’s Satan, we confuse limits with confinement. But that, as I think Marlowe and Milton and others were trying to tell us, is a great and potentially a fatal mistake…
On the contrary, our human and earthly limits, properly understood, are not confinements but rather inducements to formal elaboration and elegance, to fullness of relationship and meaning. Perhaps our most serious cultural loss in recent centuries is the knowledge that some things, though limited, are inexhaustible. For example, an ecosystem, even that of a working forest or farm, so long as it remains ecologically intact, is inexhaustible. A small place, as I know from my own experience, can provide opportunities of work and learning, and a fund of beauty, solace, and pleasure—in addition to its difficulties—that cannot be exhausted in a lifetime or in generations.
Although Berry is talking about an entire way of life, what he says rings true for negotiation and mediation. Here he describes how limits can in fact produce works that astonish us with their beauty or power:
It is the artists, not the scientists, who have dealt unremittingly with the problem of limits. A painting, however large, must finally be bounded by a frame or a wall. A composer or playwright must reckon, at a minimum, with the capacity of an audience to sit still and pay attention. A story, once begun, must end somewhere within the limits of the writer’s and the reader’s memory. And of course the arts characteristically impose limits that are artificial: the five acts of a play, or the fourteen lines of a sonnet. Within these limits artists achieve elaborations of pattern, of sustaining relationships of parts with one another and with the whole, that may be astonishingly complex. And probably most of us can name a painting, a piece of music, a poem or play or story that still grows in meaning and remains fresh after many years of familiarity.
As people struggle to obtain justice, create value, make meaning, save relationships, or reclaim dignity, here, then, is the mediator’s art: to draw upon the force that gives form to marble or color to canvas, to help them discover their own virtuosity.
To help Americans separate fact from fiction in the media they consume, a new web site has launched, Ameritocracy, which describes itself as
a user-contributed and user-generated content site that allows people to judge the accuracy, credibility and relevancy of claims made by society’s leaders and information gatekeepers such as media and business.
The Ameritocracy community, made up of anyone who signs up for an account, submits and then rates quotes based on several scales, including accuracy, credibility, and relevance.
One of the most important qualities a negotiator possesses is patience, according to Reiss, who observes that it “isn’t just a virtue, it becomes a tactical advantage” at the negotiation table.
If you’re interested in learning more about international negotiation or ADR in international contexts, don’t forget about International Dispute Negotiation, the excellent podcast series by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas, based at his company’s headquarters in Florence, Italy.
Michael plays engaging host in conversations with some of the best and the brightest from around the globe. You can view the archive of previous episodes to find more.
He asked for his readers to post their answers in the comment section. I was late weighing in (Geoff had to ask that question over what was for Americans the long 4th of July weekend), but I finally gave him my response this morning. I decided to reproduce my comment here (with some later refinements in my thinking), because I think Geoff has asked a particularly important and thoughtful question. This is particularly so for me because in the course of the past year I allowed memberships in three organizations for ADR professionals to lapse.
What follows is my open letter to organizations for ADR professionals everywhere, with some advice on how to keep, not drive away, members:
First, provide your members with useful information that helps them do their jobs. A regularly published electronic newsletter for example that shares news, business tips, as well as links to news stories or web sites that are directly relevant to our work. Avoid drily written, heavily footnoted articles on obscure topics that aren’t useful to most of us toiling away in the trenches.
Second, provide value for those membership dues. Provide regularly scheduled programming (workshops, panel discussions) taught by respected and experienced professionals that will teach us something meaningful, help us deliver services more effectively, or give us tools to help us manage and market our practice better. Don’t waste our time with programs that don’t do any of those things. Schedule meetings and networking opportunities too at locations that encourage as many people as possible to attend, and not just for folks in one single geographic location, particularly if your mission is to serve a larger geographic area. Vary the meeting place to accommodate those different geographic constituencies.
Third, speaking of membership dues, if you increase dues, make sure that the increase is fair and also ensure that you are fulfilling your obligations under point #2, above. We want to know that our dues are delivering us value.
Fourth, provide us with discounts and services that add value to our membership — discounts on professional liability insurance or access to credit card processing, for example. Give us listings in an online directory so that clients can find us and make sure that we can easily update our listings, including the all-important contact information. Provide us with notices of job opportunities in our field, but don’t make prospective employers pay ridiculously high fees to post online job postings on your site, which will discourage those employers from doing so.
Fifth, communicate with members regularly and reliably. And by all means communicate with your members when you make important decisions that directly affect them. (One of the many reasons that I let my membership in ACR lapse is that they quietly dropped the ball on the mediator certification issue without bothering to inform their members — after making such a big deal out of the member survey on certification and appointing a panel to explore the issue.)
Sixth, respond to member inquiries, questions, and concerns promptly. Commit to resolving issues rapidly. And don’t ignore letters and emails. (In one case, I never received quarterly publications or even membership renewal notices, despite numerous requests over a three-year period to correct my address.) In fact, make it a point to conduct surveys of your members and ex-members from time to time to find out how you’re doing and what members really need, and then be responsive to the feedback you get. Earn and deserve the trust of your members.
Seventh, show appreciation to volunteers and to those who have served on your boards of directors. They have given up business opportunities to serve you and to help advance the good work of your organization. Express gratitude for their commitment and their service.
If you do these things, your members will thank you by renewing their member dues and by encouraging others to join you.
The latest issue of The Complete Lawyer, an online journal focusing on quality of life and career satisfaction for attorneys, is now available — and along with it, its special ADR column, “The Human Factor“. This issue of The Complete Lawyer asks, “What’s your exit strategy?” and looks at how best to plan financially and emotionally for retirement.
Hitchens describes the discoveries he made during his experience and concludes, “Believe Me, It’s Torture“, in an article appearing in the August 2008 Vanity Fair. Hitchens writes:
You may have read by now the official lie about this treatment, which is that it “simulates” the feeling of drowning. This is not the case. You feel that you are drowning because you are drowning…
You can view the videotape of Hitchens undergoing “enhanced interrogation techniques” and ask yourself how long might you have held out before you sneer that Hitchens lasted only a few pitiful seconds before giving the signal that brought the experiment to an end.
I tell the audience that they will observe two teams of people playing basketball, one in white shirts and the other in black, and tell them to count the number of times the team wearing white t-shirts bounces the ball.
After asking them to tell me what number they counted to, I ask if anyone noticed anything unusual. On average, across the many times I have played that video, only one third of the audience will have noticed the gorilla. On rare occasions, only two people out of an audience of, say, 50, will have seen the gorilla. And the ones that didn’t see the gorilla can’t believe their eyes when I replay the video to show them that the gorilla really was there after all. That’s a lot of people who didn’t see the gorilla.
It serves as a potent reminder of how easily our attention to one thing can blind us to seeing what is literally in front of our eyes — and that in every situation where lives or livelihoods are at stake, where relationships or choices matter — whether resolving a conflict, making an important decision, or pulling the lever in the voting booth — a gorilla may be present, hiding in the open, right in plain view.
Before we can talk about the gorilla, we have to know he’s there.
I completed both a BS and MS in Chemical Engineering, and I served as a Nuclear trained submarine officer in the US Navy.
As my career progressed through various leadership roles, I began to realize that my biggest problems were with people and not with equipment. So, I started to study and apply “people skills” to get better at my job. I eventually grew to love the study of leadership, communication, and conflict resolution principles. Now, I am a Conflict Resolution Specialist. I specialize in helping teams resolve conflicts so that they can get better results.
On this new blog, Guy shares his insights in posts like “Are You at War or at Peace?“, which describes how your heart affects the way you perceive others in conflict.
I get emails all the time from mediators, lawyers, and other professionals asking for link exchanges from this blog. It’s nice that they perceive me as an authoritative source for ADR and negotiation and that an outbound link from MediationChannel.com counts for something. Unfortunately all too often these folks are missing the point.
I got an email the other day from a web designer writing on behalf of the client the web designer had just built a site for. The designer wanted my help in improving the web site’s search rank and to that end asked me to add the client’s static, non-blog web site to my — and this is what blew me away — my blogroll. My blogroll! You know, the place on my web site where I list the blogs I’m reading — blogs where I routinely find great content and informative articles about issues that affect me and my work. Blogs that are written by creative, intelligent, inspiring people, many of whom I have gotten to know and also happen to like and respect a great deal. Blogs that are listed here because they may be of interest to the people I really care about — my readers.
I wanted to ask, “What part of blogroll don’t you understand?”
So, as a public service message, here’s a blogger’s friendly advice to mediators and others who want to improve their site’s rank with the help of blogs:
Don’t expect a blogger to link to your static site. Don’t even bother to ask — not unless you have great content there that will be of interest to the blogger and her readers — like well-crafted articles you’ve written, cool online tools and games you’ve created, productivity tips you’ve invented, or training and teaching materials you want to share. In my case, I may be willing (but no guarantees) to publish a post about your site and link to that terrific content. But please don’t expect me to add a link to your site from my sidebar. My blog is not here to provide free advertising for your business.
Don’t ask a blogger to add a static site to a blogroll. A blogroll is a list of links to other blogs. By definition, it’s for blogs only. It’s that simple. In addition, see above #1.
To really improve your site’s page rank with the help of a blog, exercise a little self-help. Either forget about regular web sites and launch a blog yourself in place of a static web site, or add a blog to your existing site. Reach out to other bloggers, build relationships with them, create good content that will keep readers returning (very important) and that bloggers will be delighted to link to, and the visitors to your site — along with the improved visibility on search engines — will come.
I just finished teaching a mediation training program for a group of extraordinary people from a wide range of professional and personal backgrounds. It was a delight to work with smart, insightful, good-humored men and women who demonstrated so much intellectual curiosity and a passion for learning.
