Category Archives: ADR

Mediation and law, strange bedfellows: time for us to start seeing other people?

In his recent Mediate.com essay, “Killing Mediation: The Specialized, Professionalized And Neutralized Mediator”, ADR personality Robert Benjamin pronounced mediation dead, naming the usual suspects responsible. (For those who enjoy a good whodunit, you may wish to read how Jeff Thompson, who plays a detective in real life in his work with the NYC Police Department, conducts his own investigation of Benjamin’s allegations.)

As the title of his article suggests, Benjamin is known for iconoclasm, a dramatic flair and a determined willingness to declare the emperor naked (or, in this case, deceased).

If you wash away the fake gore and other Hollywood special effects, Benjamin’s essay contains words of caution to be heeded. He invokes the great promise that mediation offers to consider and address a dispute across many dimensions, in all its astonishing complexity, through a participatory process in which “clients remain directly involved, not merely the objects of professional expertise and treatment”, and in which many issues and needs – legal, financial, interpersonal, emotional, psychological, and more – can be addressed. Benjamin warns that this promise may be compromised in the rush to specialization, citing the rise of “legal mediation” as but one example:

As mediators increasingly specialize in particular dispute contexts or limit themselves to particular practice approaches they close off the systemic focus that is the hallmark of mediation. Those who practice “legal mediation” in the business or legal context tend to use strategies and techniques that are more familiar to traditional case settlement conferences where the focus is solely on the legal solution. That narrow view is not wrong or bad, per se; in some circumstances it may be necessary. However, to have that approach become a matter of habit—or a rut—conditioned by the context in which the dispute is presented often precludes the use of other more creative strategies and techniques…

“Legal mediation” is distinguished from other kinds of mediation, suggesting that those outside law could not understand the nature of conflicts that arise in the legal context and that conflicts that occur in the shadow of the court actions are predominantly legal.

How narrowly we perceive the range of mediatable disputes. Too often mediation is framed as an only an alternative to trial, a dispute resolution mechanism within the machinery of the court, a last-ditch effort to settle a case.

That framework limits our ability to see the full range of possibilities and applications for our work. It’s like looking at the entire world of disputes through the cardboard tube left over after the toilet paper’s been used up. Suddenly your viewpoint has shrunk to a 1.5-inch circle.

There would be more opportunities for mediators if more of us recognized – and helped the public understand – that not every dispute arises in law or offers legal redress. Many disputes that lend themselves well to mediation lie beyond the reach of the shadow of the courthouse.

Perhaps it’s time to pause here, for a moment, and recall the expansive opportunities that mediation holds for those who are mired in dispute and who yearn or struggle to break free. Remember, too, that mediation can be used long before disputes arise, preventatively or diagnostically, to guide planning, negotiations, or dialogue.

Let’s set down the cardboard tube and take an unimpeded look at what’s possible, expanding our vision along with the proverbial pie.

Doing it backwards and in heels: a prescription for remedying implicit bias in ADR

Yesterday I pointed readers to an electrifying series by commercial mediator and arbitrator, Victoria Pynchon, which rips the lid off the ADR profession’s secret and unacknowledged shame: the absence of women and minorities from the prestigious ADR panels:

Not content to merely name the problem, my colleague today proposes solutions in “Combatting Implicit Gender Bias in ADR“.

Turning to Americans for American Values for ideas, Pynchon identifies the cure, a detailed action plan, which you can read in her post.  It’s going to take strong medicine to cure what ails us.

It takes guts to do what she Pynchon has done. She warns readers “that the topic of implicit gender bias is ‘toxic’”,with the potential of poisoning her market against her and costing her opportunities. Her post stands as a challenge to other women – and men, too – in ADR to break the silence and speak out. In solidarity, I stand shoulder to shoulder with my colleague on the West Coast.  I issue a call to arms of my own:

It’s time for ADR membership organizations to make the vanquishing of implicit bias a local and national priority – and actually do something about it. The ABA Section on Dispute Resolution has a diversity committee, but it has apparently posted nothing new on its site in two years. This is also a committee limited in size with membership by appointment only. How about opening it up to those of us out here hungry for change and ready to act? The Association for Conflict Resolution has a diversity committee as well – what is it doing right now to actively battle implicit bias and improve access to business opportunities for all ADR professionals? What about the numerous regional and state associations for ADR professionals? NE-ACR? SCMA? TAM? This problem affects your membership – what will you do to make a difference? State bar associations with ADR committees, where are you on this? Exert your influence. And let the rest of know what needs to be done so we can roll up our sleeves and get to work.

There’s been time enough to talk. It’s time at last to do.

Cafe Mediate, mediation podcast series, looks at what it takes to train, educate a mediator

In the third episode of ADR podcast series Cafe Mediate, I serve as host while professional mediator  and author Tammy Lenski, international business mediator Amanda Bucklow, New York City detective and conflict resolution professional Jeff Thompson, and commercial mediator Victoria Pynchon debate the question, “What kind of preparation is involved in becoming a mediator?

You can pour yourself a cup or glass of your favorite beverage, pull up a chair, and enjoy the conversation in any of three ways:

Each month Cafe Mediate (motto: “where conversation, not caffeine, is the stimulant”)  features conversation among ADR practitioners about topics relevant to the business, practice, and future of our field.

Coming up next time: a two-part discussion on mediator certification that is sure to produce sparks. Caution: avoid wearing flammable material while listening to that one.

Thanks so much to my wise, talented colleagues for another outstanding discussion about the issues that matter.

New and recommended: ADR blogs to add to your reading list

ADRblogs.comFrom time to time I select noteworthy blogs from recent additions to ADRblogs.com, the site tracking alternative dispute resolution blogs world-wide, and highlight them here. Here is my latest selection, four blogs that stand out in different ways:

Mediation Strategies, published by San Francisco mediator and lawyer Michael Carbone, discusses techniques for resolving civil lawsuits and other disputes, with recommendations to lawyers and clients on how to prepare for mediation. Carbone, who writes well, is off to an impressive start, with posts such as “Deciding when to mediate“, earning him a well-deserved place among Mediate.com‘s Featured Bloggers.

The Trial Warrior is published by Antonin Pribetic, a Toronto-based lawyer who specializes in domestic and international commercial litigation and arbitration. Pribetic is also an academic, teaching Advanced Legal Process at the University of Toronto at Mississauga-Rotman School of Management Diploma in Forensic & Investigative Accounting (DIFA) program. A gifted writer who brings keen-eyed analysis to his work, Pribetic describes the unique focus of this outstanding blog:

A few years ago, I picked up a copy of The Art of War—the classic Chinese treatise on military theory and Taoist philosophy—and experienced an epiphany after reading the following quote from Sun Tzu: “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” Since then, I have studied and applied The Art of War to both my professional and personal life. This blog will endeavour to lead rather than simply follow; to enlighten, inform and entertain, as well as to learn from its readers, contributors and warriors in all disciplines and walks of life.

Mediation’s Place, published by Joseph C. Markowitz, a trial lawyer and mediator based in Los Angeles, grapples with compelling questions:

How does mediation fit into a system of justice that seems antithetical to mediation? What changes need to be made to court procedures, and to litigants’ mindsets, in order to resolve issues by negotiation instead of by litigation? Why is mediation called a form of “alternative” dispute resolution? What makes mediation work?

New bloggers are often advised to focus their blog on a niche topic. Published by Florida firm Upchurch Watson White & Max, Wealth Mediation Blog does precisely that, focusing its posts on issues relevant to its client base, family businesses and families of wealth.

For additional blogs on alternative dispute resolution and negotiation, consider my recent list of top 24 ADR blogs.

Top 5 Tuesdays at National Arbitration Forum Blog this week highlights 5 new ADR bloggers

Top 5 TuesdaysMy long-time pals over at the National Arbitration Forum Blog have launched “Top 5 Tuesdays“, a terrific new feature to be hosted each week by a different member of the ADR community. They were nice enough to invite me to host this week’s edition, and I used it to showcase five blogs I’ve recently added to ADRBlogs.com, where I track blogs related to ADR, negotiation, and conflict resolution. These five blogs include Loree Reinsurance and Arbitration Forum and Disputing: Conversations about Dispute Resolution. I had a tough act to follow – the first contributor to Top 5 Tuesdays was ADR superstar Kenneth Cloke, who discussed “5 Reasons Why We Need to Mediate Environmental Disputes“.

If you’d like to participate and contribute to Top 5 Tuesdays, you can learn more about why Top 5 Tuesdays are a win-win for everyone – NAF Blog, its readers, and you. Enjoy.

Photo credit: Ruben Joye.

Mediation: not meditation, not medication, and definitely not arbitration

confusing apples and oranges - mediation is not arbitrationYesterday the New Jersey Star-Ledger reported that the state’s Supreme Court “OKs mediation in custody disputes“.

The problem with the story is that the New Jersey Supreme Court did nothing of the kind. Instead, it held that parties to a matrimonial action can submit questions relating to child custody and parenting time to binding arbitration (PDF).

Was this confusion in reporting the result of careless journalism? No doubt. But this also tells me that the ADR field still has plenty of work to do in terms of public education and awareness. Arbitration and mediation are not concepts to be used interchangeably. One is not a synonym for the other. They serve different purposes and produce different outcomes. And we need to help the public – our prospective clients – understand that.

Hat tip to Jim Melamed, Mediate.com‘s CEO.

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

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

Law like love: thoughts on a Supreme Court nomination, ADR, and jurisprudence

Law like loveEarlier this week President Obama announced the nomination of Federal Appeals Court Judge Sonia Sotomayor to the U.S. Supreme Court.

Predictably her nomination produced swift reaction: cheering accolades from some quarters and harsh condemnation from others. What caught my own attention was the response of a number of conservative pundits to an article Sotomayor wrote with Nicole Gordon, “Returning Majesty to the Law and Politics: A Modern Approach” (PDF), 30 Suffolk U.L. Rev. 35 (1996), based upon a speech Sotomayor delivered in February 1996 as part of the Donahue Lecture Series, a program instituted by the Suffolk University Law Review to commemorate an honored 1921 alumnus, Judge Frank J. Donahue. A former faculty member, trustee, and treasurer of Suffolk, Donahue served as an Associate Justice of the Superior Court of Massachusetts for 42 years. (As an aside, over the years the Donahue Lecture Series has featured many distinguished speakers, including Chief Justice William H. Rehnquist, Associate Justices Antonin Scalia and Stephen G. Breyer, and Judge Richard A. Posner.)

Sotomayor’s article acknowledges the lack of public confidence in law and legal institutions, due in part to law’s propensity to evolve over time and the uncertainty of its outcomes, and sets forth some modest proposals to restore confidence in the legal profession and the judiciary.  Sotomayor recognizes, too, the binary limitations of law, giving alternative dispute resolution a nod:

…the adversary system, almost by definition, cannot address the gray area of the “truth” present in most cases because the system tends to produce all-or-nothing winners and losers. This is why settlements and new forms of “alternative dispute resolution” are so important.

What provoked the heated wrath of several conservative voices? These words:

The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.

And these:

The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.

And finally these:

…a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction…[referring to cases of first impression]

Sotomayor’s critics are quick to see these as nothing more than secret code, the tell-tale signs of judicial activism, and convincing proof that Sotomayor will make up law out of whole cloth to advance a radical left-wing agenda.

Alas, there is nothing either remarkable or sinister about what Sotomayor has written. She is simply describing what every first-year law student in common law jurisdictions like the U.S. learns during his first few weeks in law school: that law is in flux, gradually but constantly evolving, and that some of it, as indeed it has been for centuries, is the product of judicial decision making not legislative action.  At the risk of reproducing here what has rapidly devolved into a tedious cliché through constant repetition, I offer you what jurist and legal scholar Oliver Wendell Holmes said about the law in his best known work, The Common Law:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

On a less lofty, more pragmatic level, the uncertainty of law is well known to its agents, intermediaries, and surrogates: it is what creates leverage at the mediation table. As litigators and the mediators who assist them behind closed doors know full well, the law can be unpredictable, so better trade hope for certainty by settling.

While pundits cannot see it, even the poets know of the mutability of law; I leave you with W.H. Auden’s moving work, “Law Like Love”, which speaks of law’s unknowable and ever-changing nature:

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,

No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyvay:
Like love I say.

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

Gorilla in the room: the dividing lines in mediation practice

the gorilla at the mediation tableLast week’s annual spring meeting of the ABA Section on Dispute Resolution was endowed with an optimistic title: “ADR: Building Bridges to a Better Society”. Despite the noble sentiment it carried, something else – unwelcome and ignored – was present.

It was there in the plenary meetings and in the sessions I sat in on. No one explicitly named it, but plainly there it sat: the dividing line that separates one practitioner from the other. It was there when the famous scholar declared that cases involving legal issues are best mediated by attorneys only. It was there in one of the workshops when a facilitative mediator declared an evaluative intervention to be “wrong” and “bad mediation”.  It was there when a law professor dismissed lawyers – the original dispute resolvers – as flunkies and functionaries of a heartless judicial system. It’s the line that runs straight between attorneys who mediate and mediators who don’t practice law. It’s the line that separates facilitative mediators from mediators who evaluate. It’s the line between theory and praxis. We ADR professionals pay lip service to the values of community and collaborative effort; but the reality is otherwise for those willing to look more closely.

Other lines divide us, too, along the borders of gender and race. Women and people of color remain excluded from premier ADR panels. Women, who face gender-specific hurdles when it comes to negotiation anyway, confront particular disadvantages when it comes to the selection of mediators who assist at negotiations. Meanwhile, in the recent issue of the ABA Dispute Resolution magazine, dedicated to diversity, and which arrived the day before I departed for the spring meeting in New York, the concluding page of one article (a critical look at the lack of diversity in ADR’s upper echelons) faced an advertisement for a prestigious training organization with head shots of trainers who were white and male, with only a single woman represented among them. Yet still at the conference I heard an honored guest speaker look back on a moment in history when women faced barriers in ADR as if that time belonged solely to a long-ago past and not to the present.

It seems to me that unless we build and cross bridges within our own community, we can hardly expect to bridge gulfs outside it.

So, in the words of Joan Rivers, and mediators everywhere:

Can we talk?

Facilitative? Evaluative? The struggle to define the practice of mediation

Recently I criticized a call by Stephen Erickson of the Association for Conflict Resolution to establish a certification system for mediators.  (Lively discussion ensued, and people have continued to weigh in, so please feel free to contribute.)

According to Erickson, facilitative mediation is “good” and evaluative mediation, by inference, is bad, since evaluative mediation undermines self-determination, a core principle of mediation practice.

I responded by insisting that we owe it to our profession to bring greater nuance to our debate about mediation practice and credentialing, and not privilege one style of practice over another, reducing the debate to little more than facilitative-good/evaluative-bad.

But my main point was that we mediators need to do a much better job educating the public about what we do and how we practice so that parties can make informed decisions about choosing the approach – facilitative, transformative, evaluative, narrative, understanding-based, or a hybrid of approaches  — that best fits their dispute.

However, just because we strive to be inclusive in discussing these issues does not mean that we check our critical faculties at the door.  Evaluative mediation certainly has its uses, but it does have its shortcomings, too, as Len Riskin and Nancy Welsh described recently in their article, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“, since that approach allows the preferences of lawyers and insurance adjusters to dominate and  narrows discussion to legal and economic interests, while disregarding a whole range of other concerns — emotional, interpersonal, behavioral, community — that are no less integral.

Similarly, in “Moving Mediation Back Toward its Historic Roots – Suggested Changes” (in PDF), Joseph P. McMahon, Jr., criticizes the law-centered, “low functioning” approach to mediation that increasingly the legal community has come to accept, characterized by separation of parties with no opportunity for direct dialogue, a focus on monetizing the dispute, while legal issues take precedence over the parties’ own narratives and personal experience as the mediator-expert directs the parties toward settlement. McMahon advocates revolution, overthrowing one model in favor of another.  McMahon proposes a solution that restores face-to-face dialogue to its rightful place and returns power to the parties by engaging them in designing a process and an outcome that will best serve their needs.

Unfortunately, public perception remains otherwise.  In the popular imagination, the all-powerful mediator shuttles back and forth between separate rooms, controlling the flow of information between parties, and withholding food and drink (and maybe even bathroom breaks) while cajoling or pressuring the parties into accepting a deal.  This became amply clear to me over the weekend when Boston Globe Magazine profiled a local mediator.  Here’s the picture of mediation the Globe painted for its readers:

Here’s how mediation works: In a civil dispute, going to trial is always risky. Verdicts can either force defendants to pay astronomical amounts or leave plaintiffs without a penny. And so people often decide they’d rather settle — if they can agree on a price. The parties then choose a mediator — both sides must agree on the person — and the process begins, behind closed doors, with both sides stating their cases and demands. Then the mediator separates the two sides into different rooms and begins shuttling back and forth between them. If mediation fails, the parties can agree on another mediator, or the case goes to trial….In mediations, lawyers need someone with a sharp legal mind who’s not afraid to nudge, push, and just plain tell people when they’re wrong…

It’s all there – the shuttle diplomacy behind closed doors, the focus on price, and a process conducted within the long shadow of the courthouse as lawyers wheel and deal. Go read it for yourself. Plainly this tough-headed mediator has earned the title “closer”, brokering deals and producing settlements of the economic and legal issues (if not, perhaps, the less tangible ones). All well and good if that’s what lawyers and their clients truly want – after knowing all the options.  But how can we be sure that the public appreciates the difference, when even journalists – trained, professional observers – miss it?

And so I must also ask – can we really call this “mediation”?