Category Archives: Mediation

Resources online and beyond for the aspiring mediator

Connecting to ADR resources onlineGreetings to regular readers, new visitors, and to the members of the Mediation Works Executive Mediation Training, with whom I have the pleasure of working this week. To stimulate your curiosity and to encourage further exploration, I’ve pulled together a list of essential resources for aspiring mediators:

Mediate.com is always at the top of my recommended resource list. This premiere ADR site offers

Recommended mediation reading. The following posts recommend books in print and online articles for the mediation library:

Top ADR blogs. I know of no better resource for staying current with the latest issues in dispute resolution and negotiation than my fellow bloggers, who make it their business to keep abreast of essential news and trends. I collected my own list of essential bloggers to follow. You’ll no doubt find some of your own at the World Directory of ADR Blogs at ADRblogs.com, a site which tracks and catalogs dispute resolution blogs from across the globe, and one of my ongoing web projects.

Online discussion.

Mind and cognition. How people reach judgments and make decisions is of great interest to mediators. For intellectually curious mediators and negotiators interested in staying on top of the results of the latest research, here is a list of the best social and brain science blogs.

Self-awareness tools. Remaining vigilant for cognitive errors can be a challenge but is essential for effective dispute resolution practice. The following tools can help keep minds open.

Negotiation sites, blogs, and podcasts. A list of value-creating resources.

Mediation marketing. I only recommend one site: Dr. Tammy Lenski’s “Making Mediation Your Day Job“. Accept no substitutes. Tammy is the real deal, a successful professional mediator and author with an international reputation and the respect of mediators around the world.

Readers, if you have other suggestions, by all means please feel free to add them in the comment section below.

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.

The sound of silence: listening between the lines

The sound of silenceSome cases you remember vividly; the impressions they leave are lasting.

The plaintiff, seated with my co-mediator and me, had just heard us convey the defendant’s final proposal. The plaintiff said, “I need a moment.” I asked if they (and I hope you will excuse me for using the pronoun “they” in the ungrammatical singular) wished to take a break to think about the offer. They declined and said, “No, let me sit here with you. But give me a moment to think.”

The plaintiff sat not for a moment but over the course of many moments – in silence for 20 full minutes. My co-mediator and I sat, looking at each other from time to time, witness to this inner struggle. So deep was the plaintiff’s concentration, so palpably serious, that we both felt humbled in its presence. Their focused concentration, and the accompanying silence, became a fourth person in that room. My watch ticked off the minutes. Into that silence of thinking and weighing, other, minute noises intruded. Around us, the building’s heating and ventilation system produced bursts of noise; my co-mediator’s stomach growled insistently; outside once we heard a siren wail. I could hear my breath, in and out, as we sat our patient vigil.

I knew that they’d reached a decision when suddenly I heard them exhale. “Yes,” they said, and the silence ended, as they thanked us for giving them the space to think.

Bearing witness to silent concentration was a profound experience. Later we discussed it, my co-mediator and I. The impulse to break that silence was strong at first. But as the silence lengthened, waiting became easier. Apart from sounds, too, there were other things to attend to. Their face, for example, spoke volumes about the progress of the struggle within, shadowed first by doubt and then growing lighter with certainty. Even in total silence, there is something to hear.

What reminded me of that long-ago case? I happened to hear an interview on NPR with acoustic ecologist Gordon Hempton, a man on a quest to record the sounds of natural environments and to protect land from the intrusion of human noise. Watch the video on the page I’ve linked to; whether the cry of swiftly flying birds or the steady melt of snow as winter recedes, it’s astonishing how much sound our natural landscapes contain when the din of human activity falls silent. Listen closely to what remains.

Buying the cow: mediators, money, and value

During the many years now I’ve been in the mediation field I like to think I’ve given of my time generously on behalf of our profession.

I’ve devoted countless unpaid hours to serving on numerous boards and committees to advance the ADR field; organizing numerous conferences and workshops for mediators; volunteering in community mediation programs mediating and mentoring new mediators; answering numerous phone calls and emails from people hoping to become mediators; providing tech support to colleagues struggling with ethical dilemmas; helping other ADR professionals master social media like Twitter; supporting fellow ADR bloggers through my ADRblogs.com project and other endeavors; and sharing what I know through this site, responding to every person who contacts me, including numerous requests over the years from mediators and mediation programs throughout the world seeking help locating resources, people, or information.

My digital door is always open.

But ultimately I’m a business owner and a professional, and there are things I don’t give away for free. Once, a mediator, just starting off, contacted me to ask me to meet them and their business partner on a regular basis to help them set up their business and web site. When I quoted my fee, I got an angry email in response, wondering how I had the nerve to ask to get paid for something they thought I should give them for nothing. This left me scratching my head, wondering why they didn’t respect or value my time as a professional.

I similarly upset some mediators in an advanced mediation training that I taught recently. The organization I was teaching for had provided a comprehensive training manual packed full of many practice forms for the participants to use later. As I was teaching one module, I mentioned that what I’d done in my own practice for this kind of case was to develop a handbook for my clients to assist them in preparing to mediate, suggesting to the participants that they should do the same. One participant raised a hand to ask if I would make my handbook available to them. I told them no, it was proprietary to me and my business, but that they should by all means create materials of their own that would serve them and their clients. I also reminded them that the organization providing the training had generously included in the training manual plenty of client forms for them to use and adapt.

My “no” evidently put some people off. Two participants complained about my refusal to share materials I’d created for my own business. One wondered why I was even there if I didn’t want to share my stuff.

This left me puzzled and a little sad as well.  I was in fact very willing to share – everything I know, the experiences I’ve had, the lessons I’ve learned, it was all available to them, unstintingly. I just declined to share my intellectual property – the content I’d created and customized to use in my business – the work product to distinguish me from the rest of the herd.

Unfortunately they heard only the “no”, and not the rest of my message: As a professional be willing to create your own stuff. Construct your own tools, the better to fit your hand.

Perhaps this view is just a consequence of living in the digital age, when we have come to expect content to be free and where the lines between original content and borrowed material have grown blurred. Surely no one could think that my appearance at the training program constituted a relinquishment of my rights in my own content or the keys to my office door.

But there’s another reason, an issue that haunts our profession. Almost four years ago I sent a message to ADR professionals: “Don’t sell yourself short: why fair compensation should matter to mediators.”

This post urged mediators to value themselves and each other more highly; too often we give both the milk and the entire cow away for free. In our negotiation with the larger world, we ourselves must start placing greater value on our work. To do otherwise diminishes our worth.

To be sure, ours is a profession devoted to helping others. It rests on certain important principles: value creation not value claiming; the notion of the ever-expanding pie; creative allocation of resources; and of course collaboration, teamwork, and sharing. These are noble principles to be sure, embodying the highest aspirations of our field.

This is perhaps why some of us are uncomfortable with professional self-regard. It seems to contradict these cherished ideals.

But just because we place a premium on collaboration does not mean that we must refrain from placing a premium on our services or the content we create as business owners.  As usual, the toughest negotiation is always with ourselves.

The side I see: challenging assumptions, changing minds

It’s funny how the books we read when we are young stick with us. One such book for me was Robert Heinlein’s Stranger in a Strange Land, a science fiction story about a man, raised by Martians, who returns one day to Earth, and the clash of cultures and values that inevitably results.

What I recall most vividly were the Fair Witnesses, the licensed professionals that Heinlein invents for this book. Fair Witnesses receive extensive training in careful, impartial observation and assiduously avoid assumptions when called upon to provide their services.  In one memorable scene, one Fair Witness, Anne, demonstrates her unique skill to two other characters, Jubal and Jill. Jubal asks Anne, “That house on the hilltop — can you see what color they’ve painted it?” Anne  replies, “It’s white on this side.”

Jubal explains to Jill,

You see? It doesn’t occur to Anne to infer that the other side is white, too.  All the King’s horses couldn’t force her to commit herself…unless she went there and looked–and even then she wouldn’t assume that it stayed white after she left.

I never forgot what the Fair Witness said: “It’s white on this side.”  It’s unlikely that any of us is that precise or discerning when called upon to recount an incident or describe an object or problem.

Imagine the house on the hilltop. Now picture two people, each of whom stands facing a different side of the house, one person at the back, one at the front. Based on what they are able to see, front or back, each draws conclusions about the entire house – what color it is painted, what materials it is constructed of, whether repairs may be needed. But until each has left his original position and walked around the house, inspecting it from all sides, those conclusions remain suspect, based on incomplete data.

In teaching negotiation and mediation, I often discuss the scene from Heinlein’s book after administering an uncritical inference test known as “The Cash Register Exercise“. This exercise highlights the very human tendency to quickly fill in the gaps when information is missing and to draw assumptions about what we don’t know from what we do. (Click here to download the exercise and answer key in PDF.)

For those negotiating, information is indeed power. Examining issues from different angles can protect negotiators from bad deals or from missed opportunities.

For new mediators, the exercise and Heinlein’s story serve as a salutary reminder that our own assumptions can limit our effectiveness at the table. Cognitive error may blinker us, hampering us from helping those locked in conflict arrive at a more expansive understanding of the problems they face. The other lesson, too, is an obvious one: mediation offers fresh ways of looking at issues – from all sides, not just one, inviting parties to step away from their side of the house to see it in its entirety.

Seeing the house from all sides allows us to test or transcend our assumptions. Stepping away to gain a different view doesn’t mean giving up what you believe or need. With accurate and complete information, our conclusions can rest on surer ground. And it might even change our minds along with our vantage points.

Top ADR site Mediate.com adds resources on gender

Premier dispute resolution web site Mediate.com has demonstrated its support for raising awareness of gender bias in ADR. Showing leadership and its commitment to social justice issues, Mediate.com has created a new section on gender, as well as a page on gender bias links.  This is just one more reason among many to visit Mediate.com, the top web site for news, information, and resources on ADR and negotiation.

Other features that make this site outstanding include:

To my good friends at Mediate.com, thank you as always for your support.

What makes a great mediator? 2nd episode of Cafe Mediate podcast series has answers

In the second episode of ADR podcast series Cafe Mediate, conflict resolution and ADR marketing expert Tammy Lenski, London-based international business mediator Amanda Bucklow, New York City detective and conflict resolution professional Jeff Thompson, and I sit down together to consider the question, “What makes a great mediator?”.

This lively transatlantic conversation focused on the qualities that distinguish the effective practitioner. Listening to these seasoned colleagues left me inspired and thinking how fortunate I am to be able to count these talented conflict resolvers as my friends – thanks to Tammy, Amanda, and Jeff for such a thought-provoking discussion.

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

Future editions will explore issues such as certification and professionalization; debunking ADR myths; and training and education of mediators. I hope you’ll tune in. In the meantime, click here to learn more about “what makes a great mediator“.

Kudos to Mediate.com, 2010 recipient ABA Lawyer as Problem Solver Award

The American Bar Association Section on Dispute Resolution has announced that it has honored premier ADR and negotiation web site Mediate.com as the institutional recipient of the prestigious Lawyer as Problem Solver Award.

From the ABA press release:

Mediate.com offers the field one of the most used information resources, replete with blogs, cutting edge articles, news of mediation and negotiation practice, as well as a place for interactive dialogue. The website is a practical tool for practitioners and helps them become more effective problem solvers.

Mediate.com applies the technology of the internet directly to lawyers and dispute resolution practitioners. The founders of Mediate.com had the foresight to see the importance and applications of internet and bring them to bear on a developing field of practice. This groundbreaking website has given tools and resources to the public and to ADR professionals to do their own problem solving in virtually every field of law.

Jeffrey Krivis, a well known leader in the dispute resolution field, expressed it best when he observed that Mediate.com “has become to mediators what Google has become to the Internet.”

To my friends at Mediate.com: congratulations on this well-deserved honor.

Top ADR site Mediate.com reaches milestone: 300th issue of weekly newsletter

Mediate.com is number one!Year after year, Mediate.com remains at the top of its game, the very best resource bar none for news, information, and high-level thinking about conflict resolution and negotiation.

Features that make this site outstanding include:

Now Mediate.com announces it has reached a significant milestone: the publication of its 300th newsletter. Launched back in 1997, Mediate.com’s high-quality newsletter remains one of the best deals going: it’s completely free. If you don’t already, you can subscribe to Mediate.com’s newsletter, which arrives in your in-box packed each week with the hottest ideas and updates about ADR from around the globe.

Congratulations to Mediate.com on this impressive achievement. Thanks for being a dependably excellent resource, week after week, year after year.

The why's have it: teaching curiosity for effective negotiation and mediation

Cultivating curiosity in negotiators and mediatorsWhat makes Deepak Malhotra’s and Max H. Bazerman’s 2007 Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond so highly readable are the memorable anecdotes of real-world negotiations it contains. Among my favorites is one that concerns a colleague of the authors, a “negotiation genius” identified by his first name only, “Chris”.

Chris’s firm was negotiating with a small European company to purchase an ingredient for a new health-care product. The two firms agreed on a price but became deadlocked over the question of exclusivity – the American firm did not want to invest in a product containing an ingredient to which its competitors would have access, and the European company refused to sell the ingredient exclusively to the American firm. The American firm, surprised by the stubborn refusal of their European counterparts to agree to an exclusive arrangement, offered more money and other incentives, but the European firm wouldn’t budge. Malhotra and Bazerman describe what happened next:

As a last resort the U.S. team called Chris and asked him to fly to Europe to join them.

When Chris arrived and took a seat at the bargaining table, the argument over exclusivity continued. After listening briefly to the two sides, he interjected one simple word that changed the outcome of the negotiation. With it, he was able to structure a deal that both firms found agreeable. The word was “why”.

Chris simply asked the supplier why he would not provide exclusivity to a major corporation that was offering to buy as much of the ingredient as he could produce. The supplier’s answer was unexpected: exclusivity would require him to violate an agreement with his cousin, who current purchased 250 pounds of the ingredient each year to make a locally sold product. With this information in hand, Chris proposed a solution that helped the two firms quickly wrap up an agreement: the supplier would provide exclusivity with the exception of a few hundred pounds annually for the supplier’s cousin…

Why didn’t the other U.S. negotiators ask this simple question? Because, based on their prior business experience, they assumed they already knew the answer…

Other factors, I suspect, may have been in play here, working against the U.S. negotiators. Etiquette and social pressures inhibit inquiry. From a young age we learn that “it’s not polite to ask questions”. As we grow older, we worry that asking questions will make us look stupid, singling us out for unwelcome notice by the group.

In defiance of these deep-rooted social and cultural taboos on question-asking, virtually every best-selling negotiation text urges negotiators to “get curious”. G. Richard Shell, author of Bargaining for Advantage, prescribes a process that he calls “Information-Based Bargaining”, which emphasizes the importance of question-asking and careful listening, lauding the “relentless curiosity” skilled negotiators bring to the table. Mediation trainers also encourage curiosity in their students, so that they can delve deep into the needs and motivations of parties locked in conflict. In their classic work, The Making of a Mediator: Developing Artistry in Practice, Bernard Mayer and Alison Taylor define such artistry as “a commitment to curiosity and exploration”.

If curiosity is so essential to effective negotiation and conflict resolution, can educators and trainers teach curiosity? That’s a question that Vanderbilt University Law School Professor Chris Guthrie considers and answers in “I’m Curious: Can We Teach Curiosity?” (PDF) (copyright 2009 DRI Press, Hamline University School of Law). Determined to go beyond the “glib references to the need for curiosity” in negotiation literature, Professor Guthrie offers a short primer on the scientific study of curiosity and proposes some curiosity-enhancing teaching strategies. He concludes with a link to an article that appeared in Psychology Today in September 2006, “Cultivating Curiosity“, by Elizabeth Svoboda, which recommends three tips on how to “flex your curiosity muscle“, whether you’re negotiating, mediating, or doing something else entirely.

Incidentally, Professor Guthrie’s article is one chapter in an outstanding volume on negotiation pedagogy, Rethinking Negotiation Teaching: Innovations for Context and Culture, a collective effort to rethink how negotiation is taught in the 21st century. Those curious to learn more about negotiation teaching can download Professor Guthrie’s chapter along with the others at the Hamline University School of Law web site.