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.

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:

• A vast library of articles organized by Section or searchable by Topic, Term or Author
• An archive of over 100 video interviews featuring conversations with giants in the ADR field
• A round-up of the best each week in conflict resolution blogging

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

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“.

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.

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:

• A vast library of articles organized by Section or searchable by Topic, Term or Author
• An archive of over 100 video interviews featuring conversations with giants in the ADR field
• A round-up of the best each week in conflict resolution blogging

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.

What 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.

Mediator, lawyer, writer, and all-around Renaissance woman Stephanie West Allen needs your help as she prepares to write an article on neuroscience transparency. What is neuroscience transparency? It’s what conflict resolution professionals tell their clients about neuroscience. You can contribute by taking her survey at her site, Brains on Purpose, a blog which explores the role that brain science can play in the resolution of disputes.

Stephanie raises an interesting question that ADR practitioners no doubt will ask themselves more and more. Increasingly I myself look for ways to apply discoveries from neuroscience, cognitive psychology, and behavioral economics to my own work, whether assisting clients to resolve their disputes or teaching people how to negotiate or mediate.

As readers of this blog know, the private practice of mediation in the United States remains unregulated by government.  Arguably, this absence of formal regulation, licensing, and credentialing does not diminish mediation’s standing as a profession.  It does, however, place weighty responsibility on the shoulders of U.S. mediators, collectively and individually, to protect the reputation of the profession and to build public confidence in mediation services.

Professional standards of conduct remind mediators to aspire to moral values or principles, and to strive for consistency between those values and practice.  But a professional ethos embraces more than the practice of mediation: those professional values should apply not to the delivery of services alone, but also to the business of mediation.

In May 2002, as part of a joint initiative, two respected institutions – the CPR Institute for Dispute Resolution and Georgetown University Law Center – drafted and approved Principles for ADR Provider Organizations (PDF).  These principles were created to provide guidance to “any entity or individual which holds itself out as managing or administering dispute resolution or conflict management services” and to encourage the responsible practice of ADR.  Among other things, they encompass values that include fairness, quality and accessibility of service, and competence of neutrals; and they emphasize the importance of establishing policies regarding confidentiality, internal or external ethical codes, and conflicts of interest. I have reproduced these principles below.

As I read these principles, the product of evident hard work and deliberation, I note that one essential ingredient is missing: diversity. In revisiting them today, mediators might draw inspiration for revisions from the example set by the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution, Rule 7 (PDF), which provides that:

Programs shall be designed with knowledge of and sensitivity to the diversity of the communities served. The design shall take into consideration such factors as the languages, dispute resolution styles, and ethnic traditions of communities likely to use the services. Programs shall not discriminate against staff, neutrals, volunteers, or clients on the basis of race, color, sex, age, religion, national origin, disability, political beliefs or sexual orientation. Programs shall actively strive to achieve diversity among staff, neutrals, and volunteers.

A 2009 version might emphasize the importance of measures that ensure that decisions relating to hiring, evaluation, and promotion of mediators are free from bias.

I invite you to read the principles yourself and ask: what would you add or change today to improve them for today and for the years ahead?

I.  Quality and Competence of Services

1. The ADR Provider Organization should take all reasonable steps to maximize the quality and competence of its services, absent a clear and prominent disclaimer to the contrary.
2. Absent a clear and prominent disclaimer to the contrary, the ADR Provider Organization should take all reasonable steps to maximize the likelihood that (i) the neutrals who provide services under its auspices are qualified and competent to conduct the processes and handle the kind of cases which the Organization will generally refer to them; and (ii) the neutral to whom a case is referred is competent to handle the specific matter referred.
3. The ADR Provider Organization’s responsibilities under Principles I and I.a decrease as the ADR parties’ knowing involvement in screening and selecting the particular neutral increases.
4. The ADR Provider Organization’s responsibilities under this Principle are continuing ones, which requires the ADR Provider Organization to take all reasonable steps to monitor and evaluate the performance of its affiliated neutrals.

II.  Information Regarding  Services and Operations

ADR Provider Organizations should take all reasonable steps to provide clear, accurate and understandable information about the following aspects of their services and operations:

1. The nature of the ADR Provider Organization’s services, operations, and fees;
2. The relevant economic, legal, professional or other relationships between the ADR Provider Organization and its affiliated neutrals;
3. The ADR Provider Organization’s policies relating to confidentiality, organizational and individual conflicts of interests, and ethical standards for neutrals and the Organization;
4. Training and qualifications requirements for neutrals affiliated with the Organization, as well as other selection criteria for affiliation; and
5. The method by which neutrals are selected for service.

III.  Fairness and Impartiality

The ADR Provider Organization has an obligation to ensure that ADR processes provided under its auspices are fundamentally fair and conducted in an impartial manner.

IV.  Accessibility of Services

ADR Provider Organizations should take all reasonable steps, appropriate to their size, nature and resources, to provide access to their services at reasonable cost to low-income parties.

V.   Disclosure of Organizational Conflicts of Interest

1. The ADR Provider Organization should disclose the existence of any interests or relationships which are reasonably likely to affect the impartiality or independence of the Organization or which might reasonably create the appearance that the Organization is biased against a party or favorable to another, including (i) any financial or other interest by the Organization in the outcome; (ii) any significant financial, business, organizational, professional or other relationship that the Organization has with any of the parties or their counsel, including a contractual stream of referrals, a de facto stream of referrals, or a funding relationship between a party and the organization; or (iii) any other significant source of bias or prejudice concerning the Organization which is reasonably likely to affect impartiality or might reasonably create an appearance of partiality or bias.
2. The ADR Provider Organization shall decline to provide its services unless all parties choose to retain the Organization, following the required disclosures, except in circumstances where contract or applicable law requires otherwise.

VI.  Complaint and Grievance Mechanisms

ADR Provider Organizations should provide mechanisms for addressing grievances about the Organization, and its administration or the neutral services offered, and should disclose the nature and availability of the mechanisms to the parties in a clear, accurate and understandable manner. Complaint and grievance mechanisms should also provide a fair and impartial process for the affected neutral or other individual against whom a grievance has been made.

VII.  Ethical Guidelines

1. ADR Provider Organizations should require affiliated neutrals to subscribe to a reputable internal or external ADR code of ethics, absent or in addition to a controlling statutory or professional code of ethics.
2. ADR Provider Organizations should conduct themselves with integrity and evenhandedness in the management of their own disputes, finances, and other administrative matters.

VIII.  False or Misleading Communications

An ADR Provider Organization should not knowingly make false or misleading communications about its services. If settlement rates or other measures of reporting are communicated, information should be disclosed in a clear, accurate and understandable manner about how the rate is measured or calculated.

IX.   Confidentiality

An ADR Provider Organization should take all reasonable steps to protect the level of confidentiality agreed to by the parties, established by the organization or neutral, or set by applicable law or contract.

1. ADR Provider Organizations should establish and disclose their policies relating to the confidentiality of their services and the processes offered consistent with the laws of the jurisdiction.
2. ADR Provider Organizations should ensure that their policies regarding confidentiality are communicated to the neutrals associated with the Organization.

ADR Provider Organizations should ensure that their policies regarding confidentiality are communicated to the ADR participants.

One of the issues hotly debated in the ADR field is whether it’s time for state licensing and regulation of the practice of mediation. The following are summaries of the arguments that each side to the debate has marshaled.

In the comments below, I’d welcome readers to add arguments that I’ve overlooked. I’m not critiquing the arguments, merely collecting them. The criticism I’ll leave for another day.

The arguments in support of state licensing of mediators:

• State regulation of the practice of mediation would assure the quality of mediation services by establishing best practices and setting standards of ethical conduct, increasing public confidence in ADR.
• State regulation would establish a mechanism for disciplining, rehabilitating, or suspending from practice those whose conduct falls below a specified standard.
• State licensing would enhance the professional standing of mediators and confer greater credibility upon the profession.
• State licensing would enable mediators to market their services more effectively and to compete more nimbly in the marketplace against other service providers.
• State licensing would protect mediators practicing within a defined geographic area, and give local practitioners preference over out-of-state practitioners.
• Given the long-standing uneasy relationship between lawyers and mediators, state licensing of mediators would level the playing field between lawyers, who hold state-issued licenses to practice law, and mediators, who do not hold state-issued licenses to practice mediation.
• State licensing would establish standards not only for mediators but also for the training and education of mediators.  State regulation of mediation trainers and mediation training programs, which at present vary widely in terms of quality and effectiveness, would increase public confidence in institutions and programs that train mediators.
• State regulation would ensure that mediators possess professional liability insurance to compensate consumers for losses resulting from professional negligence by mediators.
• State regulation would result in a database of practitioner contact information, including office location or residence for service of process in the case of a legal proceeding or disciplinary action against the neutral.
• Licensing and related fees resulting from state regulation of mediation and mediation training would generate revenue for state coffers.

The arguments against state licensing of mediators:

• Apart from anecdote, no hard evidence supports state regulation of the practice of mediation to protect the public from the unethical or unskilled. At this time, no external pressures exist –  such as demands by consumer watchdog or legal advocacy groups in response to actual harm to consumers caused by mediators — to place mediation practice under state regulation. The impetus comes from mediators themselves, not a concerned public.
• State licensing of professional activities typically results in geographic limits on the practice of such activity, prohibiting those who are unlicensed from operating within its jurisdiction. Given the multi-jurisdictional and transnational nature of much ADR practice, state licensing of mediators would unduly burden the practice of mediation and constrain the ability of mediators to practice.
• State licensing of mediators runs contrary to one of the foundational principles of mediation, self-determination. State licensing of neutrals would unfairly restrict the ability of parties to utilize a neutral of their choosing.
• State regulation rests upon the articulation of standards of practice, which promote and reward conformity in behavior but work to discourage innovation.  (Consider, for example, the case of opposition by some members of the bar to the legal innovation known as collaborative law.) This would have an inhibiting effect  on what is still an evolving field.
• Market forces and consumer preference already operate in place of state regulation, ensuring that the lion’s share of cases go to mediators with reputations for effectiveness.
• The positive benefits of state regulation could be achieved through the creation of certification mechanisms by private actors who understand the profession and its needs better than would state bureaucrats and politicians.
• Within the mediation profession, the differences among the various approaches to mediation practice, including the role that the neutral and participants play and how broadly or narrowly issues are defined, are significant. Given these ecumenical differences, establishing universally applicable and acceptable standards of mediation practice would be extremely difficult and take years to achieve if at all.
• During economically difficult times, it is not sound policy to impose fees and erect bureaucratic barriers to the conduct of business by mediators in private practice, particularly in light of the lack of evidence to support state regulation.
• Creating barriers to practice and imposing licensing fees would unfairly burden mediators who provide low-bono or pro bono services in non-profit mediation programs, which traditionally serve disadvantaged communities.

Related posts on this subject:

• “To certify or not to certify: that is the question as the mediation field struggles with professionalization“
• “Gorilla in the room: the dividing lines in mediation practice“
• “Facilitative? Evaluative? The struggle to define the practice of mediation“
• “Mediation credentialing: what about mediation trainers?“
• Preparing mediators for practice: mediation training or mediation education?

Some of you, particularly those with children, no doubt remember “Pirates of the Caribbean“, a 2003 movie based upon a Disneyland theme park ride. In one scene, the movie’s heroine attempts to parley with the villainous pirate captain, invoking the protection of the Pirate Code, a kind of seafaring Model Rules of Professional Conduct. He sneers at her entreaties, dismissing the Code as “more what you’d call ‘guidelines’ than actual rules”.

That’s pretty much the state of affairs the mediation profession in the U.S. finds itself in with its own Model Standards of Conduct.

As mediators, we are all aware of the existence of standards of conduct that are meant to guide our practice. We speak with reverence – and in capital letters -  of principles such as Informed Consent, Self-Determination, Impartiality. Most basic mediation training programs include some treatment of ethics: what principles guide practice, and how might mediators respond to specific ethical challenges.

Organizations like the Association for Conflict Resolution and the ABA Section on Dispute Resolution have drafted and approved such standards for their members. Private ADR providers have established rules for neutrals serving on their panels. Courts have promulgated them for neutrals serving in court-connected programs.

Although violation of these standards of conduct might cost you your membership card or result in your removal from a court-connected ADR panel, these standards are generally aspirational, as the preamble to the ABA/AAA/ACR Model Standards of Conduct for Mediators acknowledges:

These Standards, unless and until adopted by a court or other regulatory authority do not have the force of law.

The fact is that not one of these bodies of ethical standards regulates with the force of actual authority the conduct of mediators in private practice. They are, in the words of the pirate chief, more what you’d call guidelines.

Why do I point this out? So long as the private practice of mediation remains unregulated in the U.S., we must do our own policing. The state does not regulate us; we regulate ourselves. We each bear the responsibility of educating ourselves about our field’s best practices and conducting ourselves accordingly. And for those of us who train new mediators, we owe it to our profession to encourage those we mentor to strive with us to advance the field. Although principles such as competence and quality of practice may be aspirational only, at least for now, they are values that enhance our public standing.

Unlike the fictional pirates in Hollywood films, they have real-world impact.