Monthly Archives: August 2009

Recommended reading: 24 alternative dispute resolution blogs to follow

ADRblogs.comRecently Mediator Blah…Blah…, one of my favorite ADR blogs, sadly ceased publication. I will miss friend and fellow blogger Geoff Sharp‘s intelligent, emotionally honest writing and wit.

Fortunately there are other blogs, written by talented, insightful practitioners, that can fill the void that Geoff’s absence has created. I have compiled a list of currently active blogs that I recommend to you, with a few words on why.

Creating a list like this was challenging, with so many worthy ADR blogs to choose from. I fear that some I may have inadvertently overlooked, and as I’ve written this post, I’ve had to change the number in the title several times.

I therefore invite you, gentle reader, to add your own recommendations in the comment section below.

Enduring Classics

These blogs have been around for quite a long time, in one form or another. The quality of their writing and the usefulness of the information they provide explain their longevity. They are:

  • Settle It Now Negotiation Law Blog, by Victoria Pynchon, contains consistently superb discussion and analysis of issues in negotiation, as well as unflinching self-honesty and debate on controversial issues.
  • Idealawg, by Stephanie West Allen, artfully weaves in discussion of law, conflict resolution, scientific discoveries, and creativity; will get your neurons firing.
  • Campus ADR Tech Blog, by technological wizard Bill Warters, consistently links to useful tools and resources for ADR practitioners, trainers, and educators. A long-time favorite of mine.
  • Making Mediation Your Day Job, by Tammy Lenski. Other ADR marketing “experts” have come and gone. To appreciate why Tammy’s site endures while others have long since faded away, visit the latest incarnation of her site helping mediators build successful practices.
  • PGP Mediation Blog, by Phyllis Pollack. Phyllis leaves the door to the mediation room open just a crack so you can listen in and learn from her experiences at the table.
  • CKA Mediation and Arbitration Blog, by Chris Annunziata. We all need a gutsy contrarian, someone willing to dispatch sacred cows or tell us when the emperor wears no clothes.  Chris pulls no punches, whether tackling lawsuit abuse or discussing practice issues that the mediator in Georgia faces – such as this recent post on the “deregistration” of a mediator by the Georgia Office of Dispute Resolution.

Global Perspectives

These are blogs that present views beyond U.S. borders. They enrich our understanding of conflict resolution and negotiation.

  • The Mediation Times, by Amanda Bucklow, U.K., addresses an international audience and seeks to expand the role of mediation to resolve disputes. (FYI, Amanda recently published the results of her own research on mediator skills and attributes.)
  • ICT for Peace, by Sanjana Hattotuwo, Sri Lanka. This outstanding blog explores the use of technology for conflict transformation and the critical role of citizen media in social justice.
  • MediAsian, by Ian Macduff, Singapore. Published by a relocated New Zealander – born in Malaysia, now living and working in Singapore – this blog discusses mediation and dispute resolution in Asia, including the role that culture plays.
  • Reporting on Conflict: Peacemakers Trust Media Watch Blog, edited by Catherine Morris, Canada. This blog rounds up news on dispute resolution, conflict transformation and peace building, gathered from sources around the world. Essential for anyone interested in following international news on conflict resolution.
  • Dialogic Mediation, by Arnold Zeman, Canada. This blog publishes less frequently than others, but quality not quantity matters. Consider for example, this illuminating article on transformative mediation, which got me to confront my own assumptions about this model of practice.

Newer Voices, Robust Discussion

These newer contributors have elevated the quality of discourse in the ADR blogosphere or have reinvigorated it with fresh ideas or new direction.

Specializations

These blogs focus on specialty areas in ADR.

  • Loree Reinsurance and Arbitration Law Forum, by Philip J.  Loree, Jr., contributor and editor.  This niche blog is distinguished by scholarly, sophisticated discussion and analysis of issues in reinsurance and commercial litigation and arbitration.
  • Disputing, by Victoria VanBuren, contributor and editor. Recently celebrating four years of blogging, Disputing focuses its writing on news and discussion on the resolution of commercial disputes through arbitration and mediation.
  • IP ADR Blog, by Eric van Ginkel, Les Weinstein, Victoria Pynchon, and Michael Young. Expect from this blog high-level analysis of issues involving the resolution of intellectual property disputes, including business strategy and tactics.
  • The Ombuds Blog, by Tom Kosakowski. An essential source for news and job postings for the ombudsman.
  • ADR Prof Blog, by Andrea Schneider, Michael Moffitt, Sarah Cole, Art Hinshaw, Jill Gross, and Cynthia Alkon. To the best of my knowledge, this is the only blog with a special focus on ADR teaching and scholarship. Don’t assume that its academic pedigree signifies starchiness and pretense; on the contrary. Expect to find relevant news, useful links, and sly humor, delivered in an admirably concise package.

Easy Listening

This is the one podcast among this group of blogs. It is always worth listening to.

  • International Dispute Negotiation, hosted by Michael McIlwrath and the International Institute for Conflict Resolution and Prevention (CPR). This high-quality podcast series featuring conversations with leading thinkers and practitioners with a global perspective on ADR. (I just wish that CPR would stop messing with the RSS settings for this podcast – I just discovered that the feed changed yet again, which meant that I missed learning of recent podcasts via my newsreader. Hint, hint.)

Unsung Heroes

These are blogs published by folks who consistently produce great writing but haven’t garnered the attention IMHO I think they merit. Here’s some link love for these deserving blogs:

Of course there are still roughly 200 other ADR blogs over at my other site, ADRblogs.com, which tracks and catalogs blogs from 30 countries across the globe.

For other outstanding blogs, see Mediate.com’s Featured Blogs page, or pay a visit to the world-wide gallery of ADR blogs at the web site of the International Mediation Institute.

The legal profession has a PR problem: one sad reason why

low approval ratings for lawyersLawyers have a PR problem.

A recently released Gallup survey indicates that only 25% of Americans view lawyers favorably. The public likes lawyers even less than they do banking, the airline industries, and the federal government, none of which is particularly popular these days.

I hear this reflected in conversations with prospective and current mediation clients, who view lawyers with suspicion. Among the comments I’ve heard lately are these:

  • Lawyers will just screw everything up.
  • They’ll deplete all our assets and leave nothing for our family.
  • Lawyers only make things worse.
  • Lawyers? In my experience, they’re happy to take your money, not your phone calls.

Here’s what one caller said on learning about collaborative law:

  • Lawyers collaborate? Sorry for being blunt, but, yeah, when pigs fly.

Their reason for distrusting lawyers so much?

They see them as creating problems, not solving them.

………………………………………………………..

Postscript, 8/28/2009:

I fear that some readers may believe that I wrote this post in gleeful delight, a mediator taking grim pleasure in diminishing public confidence in lawyers.  But this post wasn’t motivated by schadenfreude. Instead, it was intended as wake-up call for my brothers and sisters at the bar.

These statements about lawyers pain me deeply. I’m an attorney myself, and proud to be one, and it hurts to hear them.

Countless attorneys every day do good work for their clients. The great majority of those who practice law are honorable, decent, hard-working people who take their oaths seriously and serve their clients with integrity and competent professionalism. The many attorneys I know personally are the kind of lawyers Atticus Finch would have been proud of.

What troubles me is the increasing number of people who are reporting to me frustrations with lawyers, and the number of people who complain about poor services from their lawyers – lawyers who fail to return calls, who fail to keep clients informed, who treat clients with paternalism not as intelligent adults. I recently spoke with one CEO who complained that his lawyers ignored his explicit wishes and ended up costing him a critical business relationship by escalating and not ameliorating a dispute. I hear these stories with increasing frequency.

For a long time I chalked these gripes up to a few bad apples or even simply urban legend, but these complaints are not going away. My sense now is that there’s a real problem out there. I think these concerns merit our attention and must be treated seriously, and not dismissed as isolated expressions of dissatisfaction by a few uninformed cranks. I do what I can to correct these misperceptions, but this requires a widespread collective effort. We need the efforts of the bar, the judiciary, the legal academy, and bar associations. We need to root out their causes and vanquish them. There’s much at stake – we need the full confidence of the public in the law, its institutions, and its servants.

Interview with new ABA Section on Dispute Resolution chair Homer LaRue at Enjoy Mediation Blog

Homer LaRueNYPD officer detective and ADR professional Jeff Thompson has posted an interview with new ABA Section on Dispute Resolution chair Homer LaRue at his blog, Enjoy Mediation.

LaRue discusses the Section’s priorities for the coming years (but alas, does not reveal which blogs he reads regularly).

[Update, 8/28/2009: Jeff just alerted me that he has been promoted to NYPD detective. Jeff, congratulations on the promotion! I know it's well deserved.]

Negotiating social media: the sequel

Negotiating social mediaLast week I posted “It’s a jungle out there: words of caution for negotiating social media“, an article with my recommendations about using social media wisely and courteously.  What spurred me to write it were some unpleasant and fortunately isolated experiences with shameless marketers on social media sites.

I noted the irony when yesterday I received an email from someone I’d recently connected with on one of those sites. The message read as follows:

You are among the many contacts of [name omitted]. Before we begin sending you any information, we want to be certain we have your permission.

CONFIRM BY VISITING THE LINK BELOW:

[Link omitted]

Click the link above to give us permission to send you information. It’s fast and easy!

I was first baffled and then annoyed. I wrote back to the sender asking for more details about the content I’d be receiving. They replied, assuring me it would contain news along with highlights from the sender’s blog. I wrote back again, asking for the RSS feed for the blog so that I could follow it with my newsreader if the content interested me. They wrote back and told me that the blog didn’t in fact exist yet. No thanks, friend.

I realized that perhaps the contact settings on this particular account weren’t explicit enough. I added the following information in the hopes that this will deter similar communications going forward:

I am delighted to connect with others online. Social media make it possible to build relationships and forge alliances that transcend geography and time zones.

Please be aware though that my interest in connecting does not extend to receiving solicitations from you for services or goods that you or those you serve as agent for offer. Also, I am not interested in being added to your newsletter list; I get enough email as it is, thanks. If you publish a blog you think might interest me, you can let me know. I’m a blogger myself.

If you do not honor these simple requests, I will have no choice but to decline your invitation or to delete your connection from my account. I regret that I must even post this message at all, but unfortunately I’ve encountered a number of people using social media for persistent and unwelcome sales pitches and not for networking. I am grateful for your understanding and look forward to connecting with those who share my appreciation for building relationships distinguished by integrity and trust.

I’ve added a version of this notice to my social media page on this site as well. Against all odds, I remain hopeful that at last folks will begin to get the message.

Of death panels, Hitler, and the healthcare controversy: media literacy, now more than ever

media literacyEighteen years ago, on a brilliantly sunny day, I attended a Fourth of July barbecue in a pleasant suburb a few miles outside of Boston. I was sitting at an umbrella-shaded table by the pool, watching my son splashing happily in the water with the other kids, when one of the guests nearby turned to me and asked me a question that caught me off-guard.  He said, “Why don’t you Jews celebrate the 4th of July?”

“Why in the world would you think we don’t?” I responded (although I will admit that I used much more colorful language than that to convey my astonishment).

It turns out that this guest (a native-born, college-educated American about my age, mind you, not a confused elder or a recently arrived immigrant unfamiliar with U.S. customs) believed that Independence Day was a Christian holiday.  There was of course more, but I’ll spare you. Suffice to say that there was no convincing him otherwise; he believed unswervingly in the radio talk show host he’d heard it from. It was, as you might imagine, a wholly unsatisfactory conversation.

Not surprisingly, I’ve thought of him these last several weeks as the debate over healthcare reform has raged. I’ve heard his voice in  the ludicrous accusations about death panels and forced euthanasia, in the offensive comparisons to Nazi Germany that have diminished civil discourse.

At a recent town hall meeting on health care a disgruntled citizen, bearing a photo of Obama doctored to look like Hitler, confronted Massachusetts Congressman Barney Frank (who happens to be Jewish). She asked him, “Why are you supporting this Nazi policy?” Frank, viewing her with cool contempt, asked, “On what planet do you spend most of your time?”, and dismissed her, saying, “Trying to have a conversation with you would be like arguing with a dining room table.” (You can view the video yourself to watch their exchange.)

I understand fully the impulse that led Frank to respond as he did. Although 18 years have passed, I still recall vividly that exchange at that long-ago party. I remember how the anger seared when I heard his contemptuous “you Jews”. I can still feel the frustration, the stunned disbelief at his willful ignorance and full-bore stupidity.

But a mediator I know asked me the other day if I thought Frank’s response was appropriate. I had to answer no, it wasn’t. Emotionally satisfying on a primal level, yes. Appropriate, certainly not. The last thing we need these days is more insolence, more incivility, more personal attacks. Frank had an opportunity to educate; instead he chose to alienate. Frank may perhaps be unrepentant, but other members of Congress should heed seasoned public facilitator and dialogue and negotiation expert Lawrence Susskind.  Blogging at The Consensus Building Approach, Susskind proposes a wholly different approach in his post, “How Should You Respond to the Noisy Health Reform Critics?

Although Susskind’s post makes good reading, my primary concern is not in getting people to speak civilly to each other. I’d like that, yes. But I’ll leave that for others to ponder.

I’m far more interested in a bigger and more pressing issue, one we must address before we can have discourse that is truly civil: How do we eradicate ignorance? How can we create a better informed citizenry? One that is capable of thinking critically, of relying on reason and logic, of analyzing and evaluating data, and reaching decisions and making judgments based on sound information, not sound bites? In other words, what can we do to improve media literacy among citizens?

Earlier this week the European Commission issued guidelines calling on European Union member countries to promote media literacy:

Media literacy is the ability to access the media, to understand and to critically evaluate different aspects of the media and media contents an to create communications in a variety of contexts.

Media literacy relates to all media, including television and film, radio and recorded music, print media, the Internet and all other new digital communication technologies. It is a fundamental competence not only for the young generation but also for adults and elderly people, for parents, teachers and media professionals. The Commission considers media literacy as an important factor for active citizenship in today’s information society.

In its recommendations (downloadable in PDF), the Commission observed,

Democracy depends on the active participation of citizens to the life of their community and media literacy would provide the skills they need to make sense of the daily flow of information disseminated through new communication technologies.

Unfortunately, some here in America remain suspicious of “Old Europe” and any of its ideological exports, whether law or policy. But surely (and I say “surely” with only the slightest hint of cynicism) there is nothing controversial about a better educated, well-informed, media-savvy public.

It's a jungle out there: words of caution for negotiating social media

the social media jungleTwitter. LinkedIn. Facebook.

Chances are you’ve set up a user account on at least one of these sites or maybe others besides these popular three. Learning how to navigate these social media sites can be overwhelming,  but with the right approach they can be well worth the time you spend building your profile or your portfolio.

I’ve enjoyed my experiences with each of these. Twitter has become my office water cooler, a place to swap news and strike up conversation with some interesting folks while I drink my morning coffee or take a break for lunch.

I’m stimulated by the freewheeling discussions in the groups I’ve joined on LinkedIn, particularly the Commercial and Industry Arbitration and Mediation Group founded by ADR reinsurance expert Philip Loree Jr., Victoria VanBuren, Karl Bayer, Don Philbin, Robert Bear, Peter Scarpato, and Roger Moak.

Facebook, which I use for personal connections, has turned out to be a great way to stay in touch with far-flung friends and family or to get to know on a more personal level the people  I know through my professional ties.

But using social media is not always a bed of roses. I’ve had a couple of experiences lately that have been total bummers. In one case, someone I’d accepted an invitation from on LinkedIn immediately began hitting me with sleazy sales pitches. They became the first person I’ve ever had to disconnect from on LinkedIn (ironically, this person has a reputation as a social media maven).  In another case, I reluctantly took the unprecedented step of unfollowing on Twitter a fellow mediator due to the annoying frequency of self-serving updates they posted, the constant linking to spam sites, and their unhealthy obsession with their follower count. This kind of behavior just ruins it for the rest of us.

Fortunately, these kinds of incidents are rare. But nonetheless, drawn from my recent experiences, here are some social media suggestions to help you 1) play it safe and 2)  improve the quality of life for others online.

  • Know who you’re connecting to. Before I accept any invitation to connect, I make sure I know whom I’m dealing with. This is particularly true with the business networking site LinkedIn, which urges users to remember that what counts is “the quality of the connections and not … the quantity of connections”. For any site that you’re using for business-related networking, trust constitutes the basis for the connections you’ll be making. Ask yourself, would the person inviting you to connect be someone you’d be willing to recommend to others?  Today in fact I declined an invitation from someone on LinkedIn whose profile was missing all relevant information. Without knowing who they were, what kind of work they did and where, or any information that told me something about them, I was not yet willing to accept their invitation, and wrote back and explained why, asking for more information and their help so I could decide.
  • Be willing to say no. Mediators tend to be nice people. But don’t let your desire to be nice to others stand in your way of turning down an invitation to connect. Don’t hesitate to unfollow or block someone who is annoying you. People who are insensitive to social media etiquette will probably not even notice when you do, so don’t feel guilty about it. I think LinkedIn is correct here; it’s the quality not the quantity of your connections that matter. Besides, life is too short to tolerate schmucks.
  • Create a social media policy. Maybe it’s the lawyer in me, but I like guidelines. Well-crafted guidelines set expectations, create certainty, promote fairness, and make life easier for everyone. If you establish your own social media guidelines, you can point to them so that people know that your decision not to follow or friend wasn’t arbitrary or personal, it was based on good reason. A few months ago I had fun crafting a half-tongue-in-cheek Twitter policy; it hasn’t seemed to deter spammers much, but it’s a great conversation starter and my friends on Twitter get a kick out of it. Feel free to use mine as the basis for your own.
  • Remember that social media is about sharing, not selling. Please, no sales pitches. No shameless self-promotion. ‘Nuff said.
  • Be trustworthy, not trusting. That’s a wonderful piece of advice from the authors of Getting to Yes that applies as much to social media as it does to negotiations. Social media are ideal for building relationships; use them to build ties not burn down bridges. Show yourself to be trustworthy by being helpful to others, passing along useful links, or sharing noteworthy news.Your reputation depends upon it.

Rudyard Kipling might have had social media in mind when he wrote, “A brave heart and a courteous tongue. They shall carry thee far through the jungle…”

Mediate.com proves there is indeed such thing as a free lunch

free lunch at Mediate.comWhat’s not to love about free?

Mediate.com, the premier web site for news, resources, ideas, tips, and information on ADR and negotiation, reminds me of just how good free can be.

Available at Mediate.com are all kinds of goodies including:

With tasty offerings like these, no wonder Mediate.com continues to be the top ADR site.

The log in your eye: eliminating gender bias in mediator performance evaluations

evaluating mediators without biasThe hot-button issue of mediator credentialing and credentialing seems to be on the minds of many folks in the ADR field these days. It has generated discussion, here and on other blogs (including Tammy Lenski’s, Vickie Pynchon’s, F. Peter Phillips’s, and Philip Loree’s).

Although I have not ruled out my support entirely for public credentialing for mediators in private practice, I have concerns aplenty not only about the wisdom and necessity of such schemes, but also about the challenges in establishing workable and meaningful ones – concerns which I would need to see fully addressed before I’d give my thumbs up.

Public credentialing of mediators will necessarily involve some kind of evaluation process – which raises a whole host of vexing questions. Among the many that I anticipate is one that particularly troubles me: given the realities of implicit bias, and the difficulties still facing women and minorities in gaining visibility in the upper reaches of our field, what would be done to ensure that any evaluation of mediators is free from it?

While sorting through the email that piled up while I was away on vacation during the first 10 days in August, I came across a message from the ABA Commission on Women in the Profession announcing that the latest issue of the electronic version of Perspectives, their quarterly magazine, was now available. It got me thinking. In that issue is an article by employment attorney Consuela Pinto, “Eliminating Barriers to Women’s Advancement: Focus on the Performance Evaluation Process“.

Emphasizing the importance of awareness-raising, Pinto sets out her recommendations for creating a bias-free evaluation process – recommendations that may transfer readily to a very different profession, mediation. I particularly like Pinto’s tips for evaluators:

  • Get educated about gender bias and examine your own biases.
  • Base your comments on actual performance and not potential.
  • Comment only on performance during the period under review.
  • Base your assessment on factual examples of behavior.
  • Weigh individual competencies similarly for all evaluatees regardless of gender.
  • Avoid using derogatory, disrespectful, or overtly biased comments.
  • Avoid basing comments or scores on the evaluatee’s adherence or failure to adhere to traditional gender stereotypes.
  • Review completed evaluations for consistency and objectivity.

Photo credit: Dominik Gwarek.

Simply the best: good-bye to Geoff Sharp and Mediator Blah…Blah…

Safe trip, Geoff!Sad news today, friends.

One of the very best of the ADR bloggers is closing up shop.

Geoff Sharp has announced today that Mediator Blah…Blah… has ceased publication for now. Other projects beckon, and time with family matters. Geoff writes,

We’ve had fun, you and me. Thanks for reading, I remain grateful that you took the time.

We did indeed have fun, Geoff, and we are the ones who should say thanks.

Geoff wrote with honesty and straight from the heart, as posts such as “Rehearsing in poetry, practising in prose” will attest.

I’d been blogging for just under a year when I first met Geoff. His reflections on practice have been an important part of my online life for over three years, and I will miss him very much.

Best wishes, Geoff. Thanks for everything. And I’m really glad we’re friends.

Fallacious Argument of the Month: the false analogy

false analogies just don't add upWith the aim of improving public discourse and combating sloppy thinking, I continue with the next installment of my series, Fallacious Argument of the Month.

This month’s fallacious argument is a particular favorite of mine: the false analogy.  A false analogy is an effort to claim similarity between two items that even a desultory glance will reveal to be dissimilar. Those who wield the false analogy in its most noxious form don’t bother to compare apples and oranges; that’s for amateurs. Shameless masters of the false analogy appreciate that the more outrageous the comparison, the greater its shock value.  This makes the false analogy a favored weapon of demagogues.

Among the best known, most virulent, and most widely deployed of the false analogies are comparisons with Nazis: to compare someone we dislike to Hitler, things we disapprove of to the Holocaust, or negotiation with our opponents to Chamberlain’s appeasement.

The best defense against the false analogy is a vigilant and discerning mind. In fact, an op-ed column by Adam Cohen, “An SAT without analogies is like: (A) a confused citizenry,” should be compulsory reading for every citizen. That’s according to my friend David Giacalone, a retired mediator and lawyer with a tremendous talent for reasoning and writing, and I agree. Observing that “more lawyers ‘should think like lawyers’”, David wrote,

Adam Cohen’s op/ed piece in today’s NYT should be required reading for all educators and all who wish to fulfill the role of lawyer, pundit, politician or citizen competently.

Lamenting the decision of the College Board to drop analogies from the SAT – an admissions test administered to high school students – Cohen warned,

Nowhere are analogies more central than in politics. When Karl Marx wanted to arouse the workers of the world, he compared the proletariat’s condition to slavery and, in “The Communist Manifesto,” urged them to throw off their figurative chains. When Roosevelt argued for a balanced budget, he put it in homespun terms. “Any government, like any family, can for a year spend a little more than it earns,” he said. “But you and I know that a continuation of that habit means the poorhouse.”

The power of an analogy is that it can persuade people to transfer the feeling of certainty they have about one subject to another subject about which they may not have formed an opinion. But analogies are often undependable. Their weakness is that they rely on the dubious principle that, as one logic textbook puts it, “because two things are similar in some respects they are similar in some other respects.” An error-producing “fallacy of weak analogy” results when relevant differences outweigh relevant similarities. On [the NPR program] “Fresh Air,” Mr. [Grover] Norquist seized on a small similarity between the estate tax and Nazism and ignored the big difference: that the Holocaust, but not the estate tax, involved the murder of millions of people…

Since the SAT no longer contains analogy questions, here is one: A nation whose citizens cannot tell a true analogy from a false one is like – fill in your own image for precipitous decline.

Be a good citizen, friends: be ready to tell the difference.