Straight from the folks who got me wondering what would be on your mediator’s playlist comes another question suitable for a Friday: “Besides ‘Animal House’, What Pop Culture References Inspire You?”

I’d like to ask the same thing of mediators and negotiators: what pop culture references inspire you?

The haggling scene from “Life of Brian”?

The conflict resolution episode of “The Office”?

“The Wedding Crashers”? (Please, God, not that.)

To get your creative juices flowing, there are a couple of lists, one here and another here with some ideas.

ADR scholar and law professor Michael Moffitt has rightly lamented the lack of meaningful guidance that professional rules of conduct for mediators provide the practitioner. This is especially so when more than one ethical duty is at stake, since codes of conduct provide no instruction on how best to balance one ethical duty against another.

A case from Pennsylvania demonstrates the challenges real-life issues raise. The York Daily Record reports on the controversy generated by the selection of a neutral to mediate a land seizure dispute between county commissioners and land owners. The mediator had served as re-election campaign manager for the president commissioner, who had voted in favor of the land owners. All parties were aware of the mediator’s ties, yet selected him because of his reputation for honesty as the best person to help them settle their differences. Meanwhile, some members of the public are not pleased by the decision.

It’s a real-life case that pits two ethical duties against each other: party self-determination on the one hand, and on the other, the duty to identify, disclose, and avoid conflicts of interest.

If it were you, what would you have done?

[Editor's note: In the blogosphere you have to move fast. I'd planned to get this completed and posted last night but instead elected to watch the Patriots vanquish the Jaguars on the road to the Super Bowl, a decision this Pats fan does not regret for one moment. Carrie Menkel-Meadow got here first, but I'm still weighing in with my own two cents.]

Authority wields an irresistible power, as Robert Cialdini recounts in the well-known classic, Influence: The Psychology of Persuasion. In Chapter 6, “Authority”, Cialdini describes a highly successful TV commercial for Sanka, a brand of decaffeinated coffee, in which actor Robert Young, known for playing a doctor on a popular 1970’s television drama, Marcus Welby, M.D., warns against the health risks caffeine poses and recommends Sanka to the viewing audience:

From the first time I saw it, the most intriguing feature for me in the Robert Young Sanka commercial was its ability to use the influence of the authority principle without ever providing a real authority. The appearance of authority was enough. This tells me something important about unthinking reactions to authority figures. When in a click, whirr mode, we are often as vulnerable to the symbols of authority as to the substance.

While today we make light of the phrase, “I’m not a doctor, but I play one on TV”, it nonetheless remains difficult for some of us to distinguish between the actor and the role, between apparent and real authority.

Case in point: actor and holder of the “sexiest man alive” title George Clooney has apparently volunteered to mediate the Writers Guild of America strike that has the entertainment industry in full lockdown.

In all fairness to Clooney, who did not, as previous reports indicate, say, he would tell the WGA “you have to live with this and get over it”, Clooney at least does appear to appreciate that mediation is not an adversarial smackdown. Sources indicate rather that Clooney’s “stance has always been to find common ground and not alienate each other.” His heart’s in the right place.

Nonetheless, what bugs hell out of me as a mediator is how all too often people like the well-intentioned Clooney claim expertise to mediate disputes — as if mediation is a task that anyone can perform, rather than a professional service requiring training and preparation to master.

Learning to mediate is hard and demands commitment — as I hear often from the hundreds of people I have trained over the years to become mediators. At the end of every training I have taught, almost every participant — from the retired judges to the practicing lawyers to the social workers to the corporate executives — tells me that they anticipated learning to mediate would be easy — only to discover that there’s far more nuance, complexity, and skill involved than they ever anticipated.

Among the knowledge and skills that a professional mediator possesses at a minimum are:

• an understanding of the dynamics of conflict;
• the fundamentals of negotiation, including familiarity with both distributive and integrative bargaining;
• techniques for facilitating joint problem solving;
• communication skills, including effective listening and questioning skills;
• techniques for addressing impasse and barriers to agreement;
• and standards of practice and professional ethics

I do have a proposal for George Clooney and the other actors who have volunteered to mediate the WGA dispute. Come take a mediation training with me. Not only will you learn some great life skills, but you’ll come away with a better appreciation for the work that professional mediators like me perform. And who knows? If you ever get to play a mediator in a movie, you’ll be ready for the role.

For mediators, impartiality is our stock-in-trade. The integrity and fairness of the process depend upon our ability to conduct ourselves as “neutrals”, a term we often use to describe the role we serve.

Much ink, both real and virtual, has been spilled in exploring the meaning and significance of impartiality, together with its implications for mediation practice and the extent to which it defines the mediator’s role and limits the possible interventions a mediator may deploy. (Consider, for example, this article that asks “Impartiality v. Substantive Neutrality: Is the Mediator Authorized to Provide Legal Advice?“) In fact, googling together the words “mediator” and “impartiality” yields 617,000 hits, signaling that this is a topic of interest for both mediators and consumers of their services.

It’s a preoccupation that of course I share. If you do as well, then consider the following articles on bias.

From The Situationist: “I’m Objective, You’re Biased“, which looks at “bias blind spots”–the extent to which many of us readily spot bias in others while remaining blind to our own.

And from ScientificAmerican.com,”Not-so-deliberate: The decisive power of what you don’t know you know“, which looks at the ways in which “even seemingly rational, straightforward, conscious decisions about arbitrary matters can easily be biased by inputs coming in below our radar of awareness.”

Mediation has been struggling with an identity crisis for years now. It’s been confused with meditation. It’s often mistaken for arbitration. And more recently an Illinois governor characterized a state-funded gang mediation program as “pork” to be trimmed from an overbloated budget. Wrong, wrong, wrong.

In the grand scheme of things, these are harmless errors that should prod professional mediators to do a better job at marketing and packaging their services and educating the public about mediation’s advantages. Of far greater concern though to the field is the questionable use by a debt collection agency of the words “legal mediation” as part of the name of its business, reported today by Chris Annunziata at CKA Mediation & Arbitration Blog.

Chris observes, “As a libertarian, I am loathe to advocate governmental intervention, but shouldn’t the bar in these states regulate the use of the term ‘legal’ and ‘mediation’?”

While I agree with Chris that state bars should monitor the use of the word “legal” by businesses to describe their services, I am not sure that it’s any business of the bar to regulate the use of the word “mediation” — not when so many professional mediators are not attorneys and there is no requirement that mediators in private practice must also be members of the bar. Moreover, while it is true that a very few state courts do certify certain classes of mediators in court-connected programs, no U.S. state currently possesses the power to license mediators or to regulate the private practice of mediation.

This instance illustrates how urgent the need is for the mediation field here in the U.S. to move now to develop a formal system to qualify mediators and regulate the profession. The future of the field depends upon it; public confidence demands it. We can no longer argue that regulation will thwart innovation in a still developing field, that it is unnecessary or will be too costly, that it will discourage otherwise qualified individuals from entering the field, or that mediation itself resists definition.

We should act now, before others define mediation for us. It is, at last, time.

Critics of alternative dispute resolution have claimed that it undermines the rule of law and subverts justice. A court decision this week from California may lend support to these criticisms.

In a case titled “Wimsatt v. Superior Court” (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.

California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:

Our Supreme Court has clearly and unequivocably stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts…

The stringent result we reach here means that when clients … participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.

The judge called upon the Legislature to act in the best interests of justice and the public:

Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.

Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.

Mediators, still not ready to support public policy exceptions to confidentiality in mediation? Then consider the damage a case like this can do to public confidence in the mediation process. One blogger, law professor Shaun Martin, sums it up in a few harsh words:

Feel like committing malpractice? Selling out your client?

Do it in a mediation.

That’s the lesson of the day. Justice Aldrich doesn’t appear especially happy about the result, but he says that he’s bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.

Remember that the next time you agree to participate in a mediation.

(With thanks to colleague David Hoffman for alerting me to this decision.)

There’s a story I tell when I teach mediation students how to ask effective questions:

A guy walks into a bar. He strolls up to the bartender and asks for a glass of water. The bartender looks at him–then flies into a rage, pulls out a gun from under the counter, and aims it straight at the guy’s head. The guy thanks the bartender and leaves the bar.

I instruct my students to figure out the ending of the story using only yes/no questions.

People start asking, “Did the bartender know the guy?” “Was the bartender out of water?” “Was the gun loaded?” “Was the guy a robber?” “Was the guy sleeping with the bartender’s wife?” “Was it a water gun?”

A dozen or so questions later, they’ve given up. All the yes/no questions in the world can’t solve the puzzle for them. So I tell them that I’ll give them one more chance. This time they can ask me an open-ended question to figure out the ending of the story. Someone will then ask, “Okay, so why did the guy thank the bartender for pulling a gun on him?”

Then I say,

Funny you should ask. The guy walked into the bar and asked for a glass of water because he had the hiccups. The bartender saw immediately what the problem was but knew that the best cure for the hiccups is to scare the pants off someone. So he pulled out the gun and aimed it at the guy’s head. That cured his hiccups, so the guy thanked the bartender and left the bar.

What usually follows is the sound of loud groans, laughter, and palms smacking foreheads.

The point of course is that you can waste time and work hard asking closed questions and never come close to understanding what’s really going on. On the other hand open-ended questions give mediators plenty of traction to draw out interests, elicit solutions, and address roadblocks. They get parties thinking–which is exactly what they’re designed to do.

(Unfortunately I cannot take credit for this story–which is really a lateral thinking puzzle. One of my mediator friends–and I can no longer remember which one since it was quite a few years ago–taught it to me. Now I pass it along to you in the spirit in which I shared a negotiation style game earlier this year. Fellow mediation trainers, please free to use it.)

Recently I had the great pleasure of teaming up with friend and colleague Tammy Lenski to deliver a workshop at the Annual Conference for the Association for Conflict Resolution’s New England Chapter.

Our workshop was designed to introduce mediators, arbitrators, and others in the conflict resolution field to digital tools for managing, marketing, and delivering services in an ADR practice.

Tammy and I selected our favorite tools and put them together in a handbook for workshop participants. We had three criteria for selecting the tools that made it into this handbook: 1) ease of use; 2) no special tech skills or knowledge required; and 3) free or affordable.

We realized though that this stuff was too good to keep to ourselves and the people who came to our workshop–so we decided to share it with the web-surfing world. In PDF format for you to download is ADR in the 21st Century: Easy Tech Tools to Market and Manage Your Practice.

Tammy and I hope that you find it useful. And if you have your own favorite digital tools that make your life as a mediator easier, please let me know.

It behooves all of us who serve in a profession to pay attention to the way our work is perceived or our profession characterized. In particular we should heed the criticisms, whether just or not, that are raised about our work, so we can learn from or counter them.

Mediators may then wish to know how we are viewed by one scholar in a movement afoot here in the U.S. This movement would expand the right to counsel in criminal cases to civil litigation. It comes in response to a challenge that many in the legal community recognize but do not always agree how best to address: the rising number of pro se litigants in civil and family court cases.

This civil right to counsel is known as “Civil Gideon”, after the landmark U.S. Supreme Court decision, Gideon v. Wainwright, which affirmed the right of an indigent person to have the assistance of counsel in a criminal trial. (Retired mediator and attorney David Giacalone introduced me and other readers of the blog shlep to this movement.)

Acceptance for the notion of a civil right to counsel will come about only through cultural change in the halls of justice and among the players there, according to one of its proponents, Russell Engler, a Professor at New England School of Law. In his 2006 article, “Shaping a Context-Based Civil Gideon from the Dynamics of Social Change” (downloadable in PDF from SSRN), Professor Engler describes the actions of those standing in the way of progress thus:

In the courtroom, court personnel, including the judges, will likely encourage the unrepresented litigant to settle the case. That, in turn, may require the litigant to go to the hallway to negotiate with the lawyer, or to resort to some form of court-based mediation. The hallway negotiations are rife with instances of overreaching and unethical behavior by lawyers, unmonitored and unpunished by a legal system that depends on a high settlement rate. Where the litigants resist settlement, strong words from the judges, mediators or lawyers eventually induce litigants to settle. Few civil cases are tried, and most settlements involving the unrepresented poor occur with a minimum of judicial involvement. [Id. at 2.]

Even acknowledging variations in behavior and changes over time, it is difficult to overstate the extent to which judges, court-connected mediators, clerks, court administrators, and the bar’s rank and file are hindering the expansion of a right to counsel in transacting their daily business. While many in those ranks are focused on the “problem” of unrepresented litigants, it would be a mistake to assume that those players are natural allies in Civil Gideon initiatives. [Id. at 3.]

(Emphasis mine.)

My first reaction was to feel outraged by this portrayal of our profession as intentional actors in an assault on justice. In my view such sweeping generalizations smear those whose support is most needed and ignore the efforts that many in our profession make to advance justice. (And never mind the insult to the many judges, clerk magistrates, and lawyers I have seen over the years who bend over backward to accommodate pro se litigants and treat them with fairness and respect.)

This is particularly true when so many mediators, particularly those in the nonprofit community mediation programs serving courts where the indigent pro se seem so overrepresented, know all too well the dangers such litigants face. Many mediators care passionately about justice and take such concerns seriously. Here in Massachusetts, our Supreme Judicial Court promulgated rules that prohibit exactly the sort of conduct on the part of mediators that Engler criticizes–rules which mediators helped create incidentally. The Uniform Rules of Dispute Resolution, Rule 9(c)(iii), provides:

Where a party is unrepresented by counsel and where the neutral believes that independent legal counsel and/or independent expert information or advice is needed to reach an informed agreement or to protect the rights of one or more of the parties, the neutral shall so inform the party or parties.

Other sections of Rule 9(c) emphasize the voluntary nature of mediation and prohibit coercion by the mediator:

(v) The neutral shall inform the parties of their right to withdraw from the process at any time and for any reason, except as is provided by law or court rule.

(vi) In mediation, case evaluation, and other processes whose outcome depends upon the agreement of the parties, the neutral shall not coerce the parties in any manner to reach agreement.

Similar safeguards exist in other states as well.

As I said, though, that was my first reaction. My second reaction was different.

I thought to myself, Engler has a point.

You and I both know that not every mediator heeds these ethical rules. I have known of mediators (yes, community mediators among them) who routinely browbeat pro se parties into settling. I have met mediators who care more about settlement rates than trivialities like informed consent or the satisfaction of the parties in the outcome. And in a recent conversation with another mediator about informed consent, I was surprised to hear that mediator express horror at the thought of encouraging a party confused by a legal issue to seek advice from a lawyer. (Encouraging them to go to an accountant for advice on a tax issue would be okay, however.) “It’s against the spirit of mediation to involve lawyers!” they argued. This view incidentally is not an uncommon one.

I am not arguing here in favor of Civil Gideon. I don’t know yet whether I support it or not. I am concerned that it focuses only on the indigent, when so many of the middle class cannot afford legal services either. I also don’t think that being represented by counsel is any guarantee that you’ll negotiate more effectively at the mediation table or even fare better in court–I have seen my share of unrepresented people outbargain a supposedly more sophisticated opponent with counsel, as well as people whose best interests were ignored by their lawyers. And the problem may also not be that pro se litigants are pressured to accept settlements they should not. On the contrary, I have seen pro se litigants walk away from fair settlements to defeat in court later, simply because they lacked legal advice to recognize that settlement as a fair one. And I personally would rather see this energy channeled against tort reform, before the case for a civil right to counsel becomes moot. But these are concerns well beyond the scope of this post.

I share Engler’s viewpoint with you, my colleagues, to invite us all to reflect on our role at the table. He raises questions we should stop and face.

Is our goal to settle cases? Or is it to advance justice? Perhaps we can achieve both.

But let us be careful–very careful–not to mistake the first for the second.

As a mediator, when it comes to ground rules, what’s your style? Are you a mediation cop who lays down and enforces rules for parties to follow? Or are you a Zen master who responds in the moment to enable parties to generate their own rules of engagement?

My friend Ericka Gray, a leader in the dispute resolution field who has been mediating for more years than she would like me to tell you, has written an article that may convince mediation cops to turn in their badges and try a more nuanced approach in “Resistance Is Futile: Going with the Flow“, published at Mediate.com.

Ericka draws on Lao Tzu for inspiration, along with good old common sense and some real-life anecdotes. Ericka says,

In the spirit of T’ai Chi, meeting challenges with resistance leads only to some degree of injury to both sides. In mediation, this may take the shape of meeting positions with positions or establishing positions (ground rules) at the beginning of the process in order to try to exert some control by the mediator. Lao-Tzu’s prescription of meeting such hardness and force with softness, following the motion and redirecting, could easily have been written for mediation students.

Now stop resisting and go read the article, Grasshopper.

In an excellent article that frames culture as “the software of the mind”, attorneys Robert de By and George Mastoris explain “How to Avoid a Culture Clash in Business Mediations“.

(Via the Stark County Law Library Blog.)

My series on “Bridging the divide between lawyers and mediators” continues with a look at the advantages that mediation offers attorneys.

*****

Alternative dispute resolution (ADR) is here to stay. Courts refer litigants to it or may even require it, more businesses include it in contractual agreements, and savvy clients demand it.

Mediation in particular has grown in popularity as a time-saving, cost-effective way to resolve disputes in mutually satisfying ways and get people back to work, back to business, or back to their lives.

Regardless of the stage of a dispute–whether it’s already in litigation or not there yet–mediation can make a difference. But what specifically does mediation offer the lawyer? Quite a lot, as it turns out:

1. A framework to negotiate.

Back in the day when I was in law school, we were taught trial skills. This was deeply ironic, since it quickly became apparent when I began work as a lawyer that the real focus of my practice wouldn’t be trial at all. The real focus was negotiation–bargaining with the other side to reach settlement. The problem though is that most of us don’t have any real training in negotiation, and consequently we don’t always do it very well. We treat negotiation as a take-no-prisoners death match, or we come to the table expecting to give a little, get a little, and both walk away equally unhappy. The first of these approaches is notorious for damaging trust and destroying good will. And both these approaches leave value on the table and stifle creativity in designing settlement options.

Here’s where a mediator can help. The best mediators are negotiation experts who understand how to turn the parties into more effective negotiators. Mediation is not about holding hands and singing “Kumbaya”. It’s about getting your interests met and maximizing your gain–yours and the other side’s. If you don’t want to leave value on the table, if satisfaction counts, hire a mediator who understands negotiation.

2. Focus and structure.

Good mediators are skilled facilitators who run a mediation like an efficient business meeting. They have the ability to cut through the sparring, posturing, and argumentativeness to help parties get down to business. They push parties to develop an agenda, identify key interests, and create a realistic action plan which both can commit to and implement.

3. Reality testing for clients.

One of the challenges attorneys can face is the client with unrealistic expectations about the value of their cases or the likelihood of success at trial. Mediation allows clients a first-hand glimpse into the strengths of the case of the opposing side or gives a preview of how sympathetic a plaintiff will be in court. The mediator brings to the negotiating table skill in reality testing along with the ability to guide parties through risk analysis–which can make settlement seem far more attractive than the alternatives away from the table.

4. Reality testing for the other side.

Mediators of course will be asking the hard questions of all sides in a dispute, not just the one you happen to be on.

5. Overcoming barriers to agreement.

Mediators will be proactive in seeking out and addressing issues that are preventing the parties from reaching resolution. It’s part of our job description.

6. Negotiation skills you can use.

There’s no reason you can’t raid a mediator’s toolbox. You can learn to become a more effective negotiator and problem-solver. Take a negotiation training or hire a dispute resolution professional to design an onsite negotiation training for your law firm. Take a mediation training yourself to gain an insider’s view of the process and insights you can pass on to your clients to help them–and you–make the most of mediation.

7. Greater satisfaction for your client.

What’s not to like about a process that can save your client time and money and enable them to walk away with a solution tailor-made to meet their interests? In addition, in a time when ADR will be increasingly available and not less, being conversant in ADR and negotiation can give you a competitive edge. It’s one more benefit you can offer your clients.

And that’s a win-win for everyone.

Since detailed instructions on how to sue a mediator are readily available online, as the ever-vigilant Geoff Sharp has reported, perhaps it’s time to dust off an article of mine that first appeared a couple of years ago in the newsletter of the New England Chapter of the Association for Conflict Resolution: “An Ounce of Prevention or a Pound of Cure: Making the Decision to Purchase Professional Liability Insurance for Mediators” (in PDF).

It’s one of those things that no mediator should be without.

Anyone who trains mediators is always on the lookout for good videos for training or teaching purposes. They’re tough to come by. Finding free videos is even harder.

Thanks to the efforts of Professor James Coben of Hamline University School of Law Dispute Resolution Institute, 20 videos depicting mediation in litigation contexts are available for downloading, all at no cost. (Some of you may remember that Professor Coben is also the author of one of my favorite articles on mediation, in part because of its great title, “Gollum, Meet Sméagol: A Schizophrenic Rumination on Mediator Values Beyond Self Determination and Neutrality” (PDF), discussed here in a post from last year.)

All that Professor Coben, who produced these videos, asks in return is that you notify him if you’re using the videos and let him know the context, and of course to provide proper attribution before showing them. A very small price to pay indeed.

Some of the videos are better than others, and downloading should definitely not be attempted without a high-speed internet connection. What makes some of these vignettes especially fun are the deliberate mistakes here and there you’ll see the actor-mediators make–lots of food for thought and discussion here.

Thanks to my colleague and friend, Melinda Gehris, for the link.

Back in July I published a post entitled “Don’t sell yourself short: why fair compensation should matter to mediators“, a polemic on the tendency within the mediation profession to devalue the work that all of us do.

This post touched a powerfully responsive chord among my readers. Two months later, I’m still hearing from you about it. I have received numerous electronic shouts of “Amen” from ADR professionals who thanked me for speaking out on this issue and who wished to add their voice to the growing chorus of mediators insisting upon fair compensation for their services.

There’s more to it, however, than getting paid for the work we do. It’s also about demanding–and receiving–the recognition that every profession deserves. We are, absolutely, professionals. And let’s not let the rest of the world–or ourselves–forget that.

Pursuing that theme, incidentally, were two mediators who took the time to post smart, insightful comments, which I direct your attention to now (several weeks after they were first created, alas, no thanks to the hand surgery I underwent, but definitely worth the wait). Read these comments, and see if you don’t find yourself shouting out “Amen” as well.