“If you do it for money, then you’re cheapening something special and meaningful that should only be done for love, out of the caring in your heart.”

Does that statement refer to

1) Sex
2) Raising dairy cattle
3) Cultivating cymbidium orchids
4) None of the above

If you chose 4), None of the above, you’d be right.

Believe it or not, what that statement actually refers to is mediation.

It was precisely what a volunteer community mediator said to me one long ago day when I mentioned to them my plans to go forward with a full-time mediation practice. “How are you going to support yourself?” they asked. I was puzzled for a moment, and then I replied, “Well, I’m not providing mediation services for free. I’m charging for them.” This was greeted at first with an appalled silence, and then, moments later, by those words this post began with.

The work mediators do is undeniably valuable. Mediators boldly go where angels fear to tread–right into the very heart of conflict. And, like intrepid guides, we are able to lead disputants to level ground. We help people achieve resolution and overcome their differences, even in the face of seemingly intractable conflict. We give them tools to improve their critical relationships, be they personal or professional.

As incredible as it sounds, there are still those within the mediation community, as well as those outside it who benefit the most from mediation’s advantages, who devalue the work of mediators.

Two dispute resolution professionals have written passionately and eloquently on behalf of underpaid mediators everywhere. Begin with Charles Parselle’s article from the most recent Mediate.com newsletter , “L.A.’s Policy Of Free Mediation Benefits Everybody But Mediator“. Then visit Mediation Mensch, published by ADR entrepreneur Dina Beach Lynch, who has written several articles exploring this issue: “Pay for Mediators Threatens Status Quo,” “Pro Bono NOT Volunteering,” and “Pro Bono Strategies for Mediators“.

We all need to ask ourselves: how do we value ourselves and the services we provide as mediators? Are we inadvertently devaluing our own worth? And what are we individually and collectively doing to increase or depreciate the value of the work we do? Mediators, you have nothing to lose but your chains.

Here’s a follow up to last week’s post about the American Bar Association ethics opinion distinguishing between “puffing” on the one hand and “false statements of material fact” on the other in caucused mediations, and which bestowed its blessing upon the former but not the latter.

This week’s edition of Blawg Review links to a post on the Psychology of Compliance & Due Diligence Law blog about a new book for the legal profession, Lawyers’ Poker : 52 Lessons that Lawyers Can Learn from Card Players.

Consider this from the book’s description on Amazon.com (and negotiators, be sure to note the zero-sum imagery):

Great poker players are master tacticians. Not only do they calculate odds with lightning speed and astonishing precision, but they also cunningly anticipate and manipulate the actions of their adversaries. In short, they boast skills that every lawyer can envy. This highly entertaining work might best be summed up as “better lawyering through poker.” Steven Lubet shows exactly how the tactics of the poker table can be adapted to litigation, negotiation, and virtually every aspect of law practice. In a series of engaging and informative lessons, Lubet describes concepts like “betting for value,” “slow playing,” and “reverse bluffing,” and explains how they can be used by lawyers to win their cases. The best card players, like the best lawyers, have a knack for getting their adversaries to react exactly as they want, and that talent separates the winners from the losers.

When I consider the preceding passage together with the recent ABA ethics opinion, some questions for lawyers, negotiators, and mediators come readily to mind.

Let me say first that as someone who enjoys a good card game (and in fact married my husband in Las Vegas), I have nothing against poker, cards, gambling, winning, losing, or even using those analogies in describing litigation tactics or outcomes. In fact, gambling metaphors lend themselves very nicely to depicting the risks inherent in litigation–it’s the leverage that mediators use when we urge parties to weigh their alternatives.

But should we attorneys and negotiators rejoice to hear these metaphors applied not only to litigation but “virtually every aspect of law practice” including “negotiation”? Are we truly supposed to believe that skill in “manipulating the actions of their adversaries” is a virtue that “every lawyer can envy”?

More to the point, do we really want to be comparing ourselves to card sharks and gamblers when public opinion of lawyers has never been so low? (Although, ironically, just ask anyone what qualities they would wish for in the attorney that represents them, and most people would answer emphatically that among those qualities would be the ability to “cunningly anticipate and manipulate the actions of their adversaries”. But that’s a post for another time.)

As for mediators, if mediation is, as we like to say, “assisted negotiation“, is this the kind of negotiation we want to be assisting? What does it do to public confidence in mediation if we allow parties to “puff”, bluff, and manipulate their way to settlement, even if it does have the ABA’s seal of approval? We still have a responsibility to the process, to our profession, and to ourselves.

Otherwise, in the end, everyone loses. And is that a gamble mediators should be willing to take?

Mediators should be aware that the American Bar Association has apparently given its stamp of approval to the practice of “puffing” in negotiation, including caucused mediations:

Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a party may not make a false statement of material fact to a third person. However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing,” are ordinarily not considered “false statements of material fact” within the meaning of the Model Rules.

Frankly this is way too nuanced for me, and I don’t think the ABA has done mediators and lawyers any favors with this “clarification”. Puffing good, lying bad–you be the judge.

You can download “Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation” in PDF here.

(Thanks to Knight on Family Law for the link.)

Technorati tags: Lawyers, mediation, negotiation

Anyone who has ever gotten married (or reads Dear Abby) knows only too well how many family feuds are sparked by wedding plans (which is probably why my husband and I eloped to Las Vegas). Battles can and do ensue over guest lists, menus, ceremonies, religious traditions, and who’s paying for what.

Stepping in to pour oil on troubled waters are wedding planning mediators who help couples and family members resolve thorny issues to prevent nuptial arguments from leading to divorce court.

(Thanks to my friend Bill Warters for kindly alerting me to this story.)

Technorati tags: conflict resolution, mediation

“Hacking” is a word tainted by controversy. While it often evokes images of teenaged malcontents exploiting security vulnerabilities in computer networks, it possesses other more affirmative meanings.

Hacking also means “the intellectual challenge of creatively overcoming or circumventing limitations“. It stands for an ingenious way of solving intractable problems or providing new functionality to an object different from its intended purpose.

Anything can be hacked. Software applications and Department of Defense databases–that goes without saying. But also video games, consumer goods, religion, and, well, life.

And, would you believe, even urban and industrial landscapes. Consider parkour, an urban sport that combines physical and intellectual agility. In parkour, the only direction is forward as participants creatively maneuver and strategize their way past obstacles in their physical environment. It’s as much about quick reflexes as it is about quick thinking. Participants in a sense must grasp the solution at the moment they perceive the challenge. It’s about reframing the material world by transforming barriers into passageways.

Fortunately mediation doesn’t require physical strength (or we’d all be in big trouble). But it does depend upon the skill of the mediator to help disputants limber up brain cells and keep minds open to possibility and potential.

Mediators, who mediate between the past and the present, experience and hope, uncertainty and optimism, can draw inspiration from metaphors like these.

Although conflict and impasse are age-old, we can use the language of today to revolutionize the way we think about our practice as mediators to see our craft in a new light. We aid disputants in hacking the narratives of their own conflicts. We push them to alter the code of the past to pareto optimize their way beyond the limits of their own ingenuity. And we can use technology to revolutionize the resolution of disputes and to transform dialogue itself.

Welcome to Mediation 2.0.

Technorati tags: conflict resolution, mediation, online dispute resolution, technology

One of the greatest rewards of blogging has been the opportunity to meet alternative dispute resolution practitioners from all over the world. And it’s affirming to learn that no matter what latitude we inhabit, we all seem to share a common tongue–the lingua franca of conflict resolvers everywhere. And the differences of course only keep things interesting.

There is much we can all learn from each other with the internet as facilitator for our conversations together. I am therefore honored and pleased to be able to bring to you today a conversation with a respected leader in the mediation field–Ewan Malcolm, Director of the pioneering Scottish Mediation Network based in Edinburgh, Scotland.

Ewan guides us through Scotland’s mediation landscape, offering those of us who live elsewhere in the world a unique and in-depth look into the heart and soul of mediation practice there.

Please click here to read my conversation with Ewan. (And with deepest gratitude to Ewan for his generosity and kindness in taking time to share his perspectives and experience with my readers.)

Mediation can help individuals in conflict gain new perspective, bringing fresh insight and understanding of each other and the underlying conflict.

To enable disputants to see things differently, mediators utilize a technique called “reframing” to assist parties to redefine the way in which they understand or conceive of a problem. Bernie Mayer said it best: “The art of reframing is to maintain the conflict in all its richness but to help people look at it in a more open-minded and hopeful way.”

As it turns out, humans already possess a great capacity for seeing things in a more positive light. Those of you who are fascinated by the mysteries of human behavior will find much to ponder in two studies described in this article from the Wall Street Journal which xamined the human propensity to interpret negative outcomes in the most positive light possible.

Most of us would safely assume that we would recognize immediately when an outcome resulted which we did not intend, particularly when that outcome is not our desired one. But a study on decision-making, conducted by researchers at Lund University, challenged that assumption. Subjects were convinced that those less desirable outcomes were the ones they had actually intended, despite the evidence of their own senses.

In addition, research conducted by Professor David Gilbert of the Department of Psychology at Harvard University reveals that our brains “strive to provide the best view of things”. In tests performed using optical illusions in which an object can be perceived in any number of ways, when humans were rewarded for seeing one particular view of that object, they were no longer able to perceive the object’s other views. In other words, we are hard-wired to see things in the best and most rewarding light possible. For further details, read Professor Gilbert’s online article at Edge.org.

This ability to see the best view of events and objects obviously helps us as humans build resiliency and adapt to change, particularly when that change is difficult. It undoubtedly aids us when we are faced with conflict. Reframing comes naturally to us.

(This does raise some intriguing questions for mediation practice. Do we do good or harm when we assist parties in reframing their conflict? Should mediators be wary of exploiting the human susceptibility to see intention and choice in unintended outcomes, to see the positive in less than optimal results? Or does reframing innocuously and simply draw upon our natural propensity to seek the view that is most rewarding and ultimately lead people to optimal choices? And what do these studies suggest about choice and informed decision-making on the part of disputants at the table?)

Ethical questions for mediators aside, Professor Gilbert’s article on his studies includes a link to a brilliant animated version of Necker’s cube, a mind-boggling optical illusion, courtesy of Mark Newbold, which shows how many different ways there are of seeing something. While you’re on that page, be sure to follow the link to SandlotScience.com, a web site featuring one of the best collections of optical illusions I’ve ever seen.

(With thanks to Brad Spangler and his excellent article on reframing at BeyondIntractibility.org. For a different perspective on reframing, download David Hoffman’s article, “Mediation and the Meaning of Life” (alas, in PDF format only), originally published in the Summer 2005 edition of Dispute Resolution Magazine.)

In an earlier posting I had lamented the confusion in the public mind between “mediation” and “meditation”. There is, however, a potentially valuable connection between these two distinctly different practices insofar as a technique used in one can increase a practitioner’s effectiveness in the other.

With this understanding in mind, the University of Missouri-Columbia School of Law launched a program called the Initiative on Mindfulness in Law and Dispute Resolution, under the direction of renowned mediator and law school professor Leonard L. Riskin. According to the law school’s web site, the Initiative “is devoted to exploring the potential benefits and risks of mindfulness (and to some extent related contemplative practices, including yoga and other forms of meditation) to members of the legal and dispute resolution professions and those who use or are affected by those professions.”

Some objections, however, have been raised to the teaching of mindfulness at a public university, including concerns that doing so may constitute a constitutionally impermissible endorsement of religious beliefs.

In the best spirit of dispute resolution, however, a public debate concerning mindfulness will be held this Thursday at the law school, with the aim of promoting dialogue and providing an opportunity for all perspectives on this issue to be heard.