Monthly Archives: June 2009

Conflicts of interest in the age of Twitter and Facebook: neutrals must find right balance

Posted on June 5, 2009 | 6 Comments

finding balance in an age of Twitter and FacebookFacebook, Twitter, LinkedIn - if you are active on any of those sites or on the many others like them – then you no doubt have frequent opportunities to connect.

But what happens for ADR professionals – mediators, arbitrators, and others – when clients are the ones who invite you to connect, follow you, or seek to “friend” you?  In an increasingly plugged-in (and wireless) world, when many of us do our networking or marketing online, the risks of this happening are real: the ABA Journal reports that the North Carolina Judicial Standards Commission reprimanded a judge who friended on Facebook a lawyer in a pending case and discussed the case by posting messages to the lawyer through the social networking site.

Various codes of conduct for mediators, such as ABA and ACR’s Model Standards of Conduct for Mediators (PDF) (which, alas, are aspirational only with no regulatory teeth to back them), exhort mediators to identify and disclose all actual or potential conflicts of interest, including current or past personal or professional relationships with any of the parties, and caution mediators to prevent harm to the integrity of the process and avoid establishing a relationship with any of the participants once the mediation has ended.  These standards, as my favorite ADR iconoclast, scholar Michael Moffitt, has pointed out before, offer little meaningful guidance and don’t tell me whether following someone on Twitter counts as a “relationship”, professional or otherwise. I can however imagine how one side to a dispute might feel were they to see that I’d connected on LinkedIn with their counterpart two weeks after the mediation had concluded.

So what’s a mediator to do in the digital age? What policies do you have in place for dealing with the day a former client seeks to friend you on Facebook ?

Photo credit: Kostya Kisleyko

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Posted in ADR, ADR Laws, Rules, and Regulations, Networking and Social Media for Mediators, Popular Culture, Politics, Society

Mediation certification back on track at Association for Conflict Resolution, but bumps in road ahead

Posted on June 3, 2009 | Leave a comment

go slow on mediator certificationIn its June 2009 Update (PDF), the Association for Conflict Resolution (ACR) reports that it’s full steam ahead for the ACR Certification Task Force, resuscitated after a three-year break.

According to Nancy Gardner, Co-Chair of the ACR Mediator Certification Task Force, a 2008 survey indicated support for certification from ACR member, providing the impetus for reviving the Task Force. Gardner reports that ACR’s board adopted a call for certification that would be premised upon

basic principles and practices that are applicable across the broad range of mediation, e.g. client self-determination, mediator neutrality, management of process, understanding of conflict theory, etc., but also

  • reliability, involving not only requirements for experience and training but also assessments of knowledge and performance-based skills;
  • accountability, which requires Standards and a Code of Ethics, specific to the areas of expertise with a credible grievance procedure; and
  • inclusivity, requiring that it be available and achievable by diverse demographic groups, and that it be model-neutral.

Certification itself would rest upon training, a portfolio of experience, and an assessment of knowledge and performance-based skills.

Mediators in the U.S. will be watching the efforts of the Task Force closely as its work unfolds.  I already see several challenges that I wonder how ACR will address.

First, the call for inclusivity and a “model-neutral” approach is contradicted by an article written by Gardner’s co-chair Stephen Erickson for ACR’s Family Section newsletter, in which he argued that only certain models of mediation practice should be eligible for certification, expressly excluding evaluative mediation.This is hardly a promising start, not when one of the task force leaders has already made up his mind that “model-neutral” means “all models except”.

Second, the proposed certification framework includes a performance-based assessment. Given ACR’s stated commitment to diversity, I must ask what ACR will do to ensure that such assessments are free from bias and based on objective criteria not subjective observations. Given the widely reported gender discrimination that female musicians suffered until orchestras began utilizing blind auditions to assess candidates, as well as early studies that suggest the existence of discrimination against women who mediate, not to mention real-life anecdotal accounts, ACR must be prepared to explain what steps it can take to reassure women, and minorities, too, that the process will indeed achieve not thwart inclusiveness.

With a hat tip to Ericka Gray.

(Photo credit: Asif Akbar.)

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Posted in Mediator Certification and Credentialing, News about ADR, Online Publications and Articles on ADR

In praise of joint sessions: mediator Geoff Sharp pays tribute to face-to-face negotiations

Posted on June 1, 2009 | 2 Comments

in praise of the joint sessionRing the bells that still can ring
Forget your perfect offering
There is a crack in everything
That’s how the light gets in

- Leonard Cohen

The past couple of years have brought energetic debate within the mediation profession, pushing mediators to confront questions about practice, professional identity, and the nature of mediation itself. One of the most controversial questions concerns the use of the caucus, the private meetings behind closed doors with each side to a dispute separately. Some consumers of mediation services, particularly attorneys, insist upon it, as I learned while attending one of the break-out sessions at the annual spring meeting of the ABA Section on Dispute Resolution.  Some mediators rely on it heavily. Meanwhile, others, like Gary Friedman and Jack Himmelstein, authors of Challenging Conflict: Mediation Through Understanding, reject the use of the caucus entirely, arguing that the caucus distorts the flow of information between parties and negates the principles of dialogue and rapprochement that lie at the very heart of mediation practice.

Wading into the debate is experienced international commercial mediator Geoff Sharp with a working paper entitled, “In Praise of Joint Sessions” (PDF). Geoff pulls no punches in his criticism of devotees of the caucus, observing that “shuttle mediation has arisen, in part, out of a laziness by mediators.”  On the basis of his substantial experience mediating difficult commercial disputes, Geoff explains why he believes the joint session is so essential to their resolution:

The heart stopping success or failure of a large commercial mediation often occurs in joint in those pivotal moments where the mediation sets its course, north or south. In my 10 years of mediation, I have never seen a party make the kind of movement, whether emotionally or financially, in private as they do in joint. Sure, movement may manifest itself away from the public glare but it is usually as a result of insight gained in the fire of a joint session.

Of great importance to Geoff as well is the capacity for mediation to bring transparency to people whose differences have largely kept them in the dark, as well as revelations that light their understanding. To bring his point home, he shares the quote from Leonard Cohen with which I began this post. The joint session illuminates the shadows and brings the sun to the dark places in the disputes that divide us. Go read this working paper – it truly shines.

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Posted in Cool Stuff on the Web, Mediation, Online Publications and Articles on ADR