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.)
- “Alone in the Hallway: Challenges to Effective Self-Representation in Negotiation,” (in PDF) by Erica Fox, an article discussing issues of justice and self-agency in court-connected mediation when parties must negotiate on their own in the hallway of the American courthouse. (Thanks to Michael Moffitt.)
- “Professional Mediator: A Distinction that Makes a Difference“, by Jeff Kichaven, clarifying the significant differences between the work of the judge and that of a mediator. Vive la difference! (Thanks, Geoff!)
Learn
What follows are links to resources for new and experienced mediators to continue to develop the capacity to mediate well.
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.
- American Bar Association Section on Dispute Resolution. Providing leadership in ADR to advance the field and promote public confidence. The Section is open to anyone committed to dispute resolution — it’s not just for attorneys by any means. It has established a committee on mediator ethical guidance where practitioners can submit questions to the experts, and is responsible for the development of ABA Model Standards of Conduct for Mediators (PDF). The Section famously set the record straight that the practice of mediation is open to all regardless of profession of origin in its February 2002 Resolution on Mediation and the Unauthorized Practice of Law (PDF).
- MassUMA Working Group web site . 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.
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Interested in still more resources and recommended reading, both on the web and in print, relating to mediation? Then read “Print and online resources for mediation and negotiation“, an article I posted a few months ago.
Meanwhile, here’s wishing the very best of luck to this group of new mediators!
They say you never forget your first time.
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.
Blawg Review, for those of you not familiar with it, is a weekly review of the best in legal blogging hosted each week by a different blogger, who each present a unique perspective on law, legal issues, and legal scholarship — topics which affect mediators, too.
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.]
(Photo credit: Camila Schnaibel.)
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.
Just say it. Right now.
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?
CuttingEdgeLaw.com is still under construction, so not all links on the site are operational. In the meantime, however, you can view video interviews with lawyers who are themselves leaders in the “new paradigm of law”.
A big hat tip to Stephanie West Allen for alerting readers to the launch of this site and Wright’s work.
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.
Blawg Review #169, this week’s edition, continues the Blawg Review tradition. Playing host is Whisper, a brand strategy consulting firm.
What is branding? Whisper captures it neatly:
Defining why you are, so that you become the only logical choice for what you offer.
Whisper’s approach to brand strategy is simple:
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.
You can still catch last week’s presentation of Blawg Review, when West Virginia Business Litigation served as host. Next Monday New York criminal defense blog Simple Justice will do the honors.
