I often hear critics of mediation dismiss it as “touchy-feely”.

Yet as the results of one recent poll conclude, half of commercial disputes “get personal” as hearts win out over minds in business-related conflict. This suggests that it may be neither possible nor prudent to ignore the emotions that conflict triggers when it comes to successfully resolving disputes.

In “Emotions and Problem Definition in Mediation“, Professor Nancy Welsh, blogging at Indisputably.org, discusses the value of offering parties in mediation the choice of addressing emotional concerns, explored more fully in a soon-to-be-published law review article she has co-authored with influential ADR scholar Len Riskin. Welsh observes about parties,

They may want the emotional impact of their disputes to be a legitimate part of their mediation session. And, of course, one of the great promises of mediation is its potential to incorporate and deal productively with emotions.

As Welsh points out, the question is how:

Len and I decided to adopt the concept of “core concerns” introduced in Beyond Reason by Roger Fisher and Daniel Shapiro. Fisher and Shapiro observe — pretty convincingly, I think — that it can be quite complicated to deal directly with emotions in negotiation… Meanwhile, there’s lots of research showing that we lawyers are not too keen on dealing with emotions and personal impacts. So, Fisher and Shapiro propose that negotiators focus on five core concerns that are the source of many of the emotions expressed in negotiations. These core concerns are: appreciation (the desire for our thoughts, feelings and actions to be valued); affiliation (the desire for connection or positive relationships); autonomy (the desire for respect of our freedom to make important decisions); status (the desire for recognition of our standing); and role (the desire for a role and activities that are fulfilling). If negotiators attend to these core concerns, they can trigger positive emotions and respond to negative ones.

Beyond Reason is a text that I use when I teach and is one that I recommend often to clients. It explores a topic that other negotiation texts have neglected or paid scant attention to: how to deal constructively with emotions in negotiation — both your own and the other person’s. It provides numerous examples from both business and family life, making the techniques relevant and meaningful to anyone who negotiates — or who assists others in negotiating — to produce real-world results.

And there’s nothing touchy-feely about that.

While checking my daily Google alerts, I came across a press release from the PRWeb Newswire captioned, “Divorce Mediation: Myths & Facts, Internet Radio Talk Show, audience grows more than 221% in first 10 months and receives endorsement by the Association of Attorney-Mediators“.

The press release contains the following quote:

For any couple considering divorce, Divorce Mediation: Myths & Facts clarifies the many advantages of mediation over litigation and explains the importance of using a professional attorney-mediator qualified to handle the most challenging issues of divorce.

(Emphasis mine.)

Now wait just a minute, folks. Since when does admission to the bar automatically make someone a better mediator? I had thought we had long ago rejected the notion that a law degree constitutes a prerequisite to mediation practice. The mediator’s role is to aid the parties to identify interests, communicate and share information, make informed decisions, and ultimately reach resolution, and not to provide legal advice. As the American Bar Association Section of Dispute Resolution observed in its February 2002 Resolution on Mediation and the Unauthorized Practice of Law (PDF)

Mediation is a process in which an impartial individual assists the parties in reaching a voluntary settlement. Such assistance does not constitute the practice of law. The parties to the mediation are not represented by the mediator.

Implying that the services of so-called “attorney-mediators” are somehow preferable to those of mediators from other professions of origin does an injustice to the many excellent family mediators currently in practice who are not attorneys. This does no favors to the public as well which needs more facts and far fewer myths.

11/16 update: For a powerfully worded essay on why the mediation profession needs to rethink these labels, please read Tammy Lenski’s “Let’s Change Our Limiting Self-Labeling Practices” posted at Mediate.com.

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.

Illinois governor Rod Blagojevich has cut almost $500 million of “‘pork’ and non-essential spending” from the state’s Fiscal Year 2008 budget.

Unfortunately these cuts included funding for a gang mediation program aimed at reducing conflicts and violence in the city’s neighborhoods.

Some day, some day, political leaders will view conflict resolution as an essential service. Hey, a mediator can dream…

(Photo by Clarissa Rossarola.)

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.

The American Bar Association Section of Dispute Resolution has announced the establishment of a Committee on Mediator Ethical Guidance.

Mediators are invited to submit to the Committee inquiries regarding ethical issues arising out of the practice of mediation, which will provide advisory responses.

According to Section Chair John Bickerman:

There is no greater way for consumers to have confidence in the services that mediators provide them then to know that mediators are following the ethical duties of their profession. As the leader in policy and practice in the field of dispute resolution, the DR Section is pleased to be able to provide guidance to mediators, the parties and lawyers who use their services.

Full details are available at the ABA web site.

(A big hat tip to Geoff Sharp.)

My series on “Bridging the divide between lawyers and mediators” continues with an appreciation for the value lawyers contribute to the mediation table.

*****

In the many conversations I have had with mediators over the years about the role of lawyers at the mediation table, one thing has sadly stood out: the extent to which many mediators distrust attorneys and misconstrue their motives. They see attorneys as sources not healers of conflict and view them as obstacles to resolution.

As a mediator who is also an attorney, I have to say that this is unfortunate and short-sighted. My observations tell me that these stereotypes are often based on misunderstanding of lawyers’ roles, of the ethical duties that constrain or define their conduct, and of the culture of the legal system itself.

I know that what I have just written may provoke protests from mediators who insist that their criticism of attorneys is warranted. No doubt many of you have war stories that prove it. However, I am not claiming that lawyers–or anyone else for that matter–are always team players at the mediation table or that they never get aggressive, play dirty, or try to exploit or sabotage the mediation process.

What I am saying however is something quite different. War stories aside, it’s important not to assume how someone may behave at the mediation table solely because they happen to have a bar card.

I am asking all of my colleagues who are mediators to think of attorneys in another light: to recognize them as valuable assets at the mediation table.

Here’s why.

To begin with, although some lawyers continue to rely on distributive bargaining, more lawyers these days are familiar with more sophisticated negotiation techniques, including integrative, interest-based negotiation. Many are trained in mediation themselves, were exposed to mediation in law school, or have undergone training in mediation advocacy. The legal profession is changing as well, and lawyers are breaking new ground through movements like collaborative law, restorative justice, and legal futurism. Even lawyers who are old-school hard bargainers can still be assets at the table when mediators take time to prepare all parties to make the most of the mediation process before the mediation even begins.

That’s the big picture. Here now are specific ways in which lawyers can make a positive difference to what happens at the mediation table.

Preparedness for mediation. More and more attorneys these days understand and appreciate mediation. Attorneys like this can transmit this understanding to their clients, preparing and coaching them to take full advantage of what mediation offers.

Informed decisions. As mediators know well, one of the foundational principles of mediation is informed decision-making by parties. In fact, mediations can easily stall out when parties lack critical information. To participate meaningfully in the process, parties should understand fully the mediation process itself, the issues involved, options for settlement, and the alternatives that await the parties in the event that no agreement is reached. Attorneys at the table can provide their clients with the advice and information they need to make the most of mediation.

Helping clients participate. A good attorney will know and understand their client’s interests and can help their client communicate those interests clearly.

Creative problem-solving. This works two ways. First, lawyers can be skilled problem solvers–it’s a part of their job. Secondly, there’s the “two heads are better than one” phenomenon–an attorney and their client can work together to brainstorm solutions, bouncing ideas off each other and fine-tuning options with the mediator’s help.

Offset power imbalances. Power imbalances can easily throw a mediation off course. The presence of attorneys at the mediation table can act as a safeguard to ensure that each party is able to make decisions free from intimidation, influence, or pressure by the other.

Size up the no-agreement alternative. Attorneys can help their clients strategically assess their BATNA–their best alternative to a negotiated agreement. “Best” of course may not mean “good”. If the BATNA is trial, attorneys know from experience the probability of success in court and how much time trial–with the possibility of appeal–may realistically take.

Make decisions. Attorneys can assist their clients evaluate options on the table and weigh the merits of settlement proposals.

Look for the devil in the details. After all the hard work that goes in to a mediation, no one wants a mediated agreement to fall apart later. A critical role that lawyers can and do play is to make sure that no details in an agreement have been left to chance and double-check that contingencies get addressed and ambiguities cleared up.

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.

A recent press release from Jim Melamed at Mediate.com reminds me of the words from the 1969 Who classic: “We’re Not Gonna Take It“.

It’s mediators who aren’t taking it any more, and what they’re not taking is the failure on the part of world leaders to engage in effective negotiations to defuse once and for all the crises breaking out around the globe.

From the press release:

Senior Mediators Release Statement Urging Effective Negotiation Approaches

There comes a time when even mediators will speak up. Mediators are conflict resolvers who help others to resolve conflict in a voluntary and constructive way. Mediators are normally quiet, priding themselves on their impartiality and neutrality. Now, however, over 75 of the world’s leading mediators have “had enough” according to Mediate.com CEO Jim Melamed, and have signed a statement urging that community, national and global leaders engage effective negotiation and mediation approaches. Here is the text of the Mediators’ Statement developed at the recent Senior Mediators Conference in Keystone, Colorado:

Given that the world is confronted with real and perceived threats from several international arenas we, the undersigned, urge that citizens of our nations insist their elected and appointed government officials immediately engage in honest, direct and unconditional negotiations with all authorities and powers who can resolve these pending crises in ways that are equitable and practical for all concerned without sacrifice to national sovereignty or security. As citizens of the world and as professional negotiators and mediators we urge that proven conflict resolution processes be employed now.

To show your support , visit the web site for the International Coalition of Concerned Mediators at www.concernedmediators.org.

Pass it on.

“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.

Last week my fellow blogger Stephanie West Allen forwarded to me a link to a provocative article recounting “Arbitration’s Fall From Grace“. It seems that companies which had been inserting mandatory arbitration clauses into contracts with their customers in an effort to avoid costly court battles are now finding themselves spending inordinate amounts of time and money fighting for the enforceability of these clauses in, ironically, court.

None of this should come as surprising news.

Many of us have long recognized that mandatory arbitration clauses are bad for business. They are bad for consumers and definitely bad for customer relations. Typically they form part of a contract of adhesion—a take-it-or-leave-it, one-sided agreement consisting of terms that the customer has no power to bargain for, usually printed in a microscopic font barely visible to the naked eye written in language that even lawyers have trouble understanding. This agreement is never directly brought to the attention of the customer, since it typically arrives in an envelope packed with advertising material and other irrelevancies–most customers are blissfully unaware that such an agreement exists at all.

Think about the message a mandatory arbitration clause conveys to the customer. Basically the message is this:

• If you have a legal beef with us, you can’t go to court.
• You have to use arbitration, and you will have to share with us the costs for the arbitrator’s services (of course if you could go to court, which you can’t, you’d be getting the judge’s time for free, courtesy of taxpayers).
• We, not you, get to pick the dispute resolution services company which will provide the arbitrator.
• If lots of you have a beef with us, you can’t join forces in a class action law suit to enforce your legal rights collectively and publicly. That would level the playing field between us, a mega-corporation, and you, an insignificant flyspeck of a customer. We can’t allow that.
• This dispute will be resolved according to the laws of a state far, far away from where you live and work–laws which favor us, not you.
• In short, we are going to stack the deck so thoroughly against you that you have little hope of achieving justice.
• Thanks, and have a nice day.

Mandatory arbitration clauses, in my own experience, seem to be favored by large corporations with poor customer service records and a history of unfair or deceptive business practices. Mandatory arbitration clauses are a way to limit corporate accountability to customers.

Mandatory arbitration clauses of course fail to address the underlying causes of customer dissatisfaction. They’re lousy conflict resolution tools.

So, instead of focusing on ways to limit liability, companies should be taking a preventative approach to managing problems with customers. This could include:

• Conduct an honest assessment of corporate policies regarding customer service–are they fair, consistently applied, and favor communication and clarity?
• Ensure adequate training of sales and customer service representatives
• Provide incentives to employees to serve customers better, not just increase sales
• Don’t hide contact information from customers–make it as easy as possible for them to get in touch with the right department and the right person to resolve their issue
• Acknowledge and take responsibility for mistakes–apologies are not optional
• Return customer phone calls and emails within hours, not days
• If an issue requires investigation, provide customers with frequent updates–even if the investigation is ongoing and no new data is yet available
• Create a customer service ombuds who can assist in the resolution of difficult disputes

Interestingly enough, “Arbitration’s Fall from Grace” drew attention to mediation’s far more positive track record:

As arbitration has fallen out of favor, mediation, a less frequently discussed alternate dispute resolution method, seemingly is gaining traction among corporations. Though the same issues that plague arbitration — a lack of discovery rights and enforceability — remain in mediation, the less-structured environment tends to be cheaper, less adversarial and quicker than an arbitration hearing.

At a recent continuing legal education event for corporate counsel in Atlanta, speaker David C. Vigilante, associate general counsel and chief litigation counsel at Turner Broadcasting, told the audience that he’s not a fan of arbitration because the process requires companies to give up some legal rights — and it’s binding. He called mediation “the worthwhile companion to its less worthwhile exercise, arbitration.”

In an interview after the event, he added that “most lawyers will tell you today that mediation is one of the most fantastic things to come along.”

Not surprising when mediation encourages communication, addresses misunderstandings, and levels the playing field for all parties at the table.

The Wall Street Journal on its CareerJournal.com web site reports on the results of its recent survey “2006 Best Careers“.

CareerJournal.com lists 14 attributes that make a career choice an excellent one:

• Advancement
• Autonomy
• Contribution to Society
• Creativity
• Customer Contact
• Friendly Co-workers
• Impressive to Others
• Income
• Intellectual Stimulation
• Job Security
• Lower Stress
• Predictable Hours
• Work-Life Balance
• Benefits

Although mediation doesn’t seem to have made CareerJournal.com’s list of most satisfying careers, mediation does meet many of these criteria. Plenty of intellectual stimulation, low stress, no indentured servitude to the Almighty Billable Hour, with lots of emphasis on contribution to society and work/life balance. (The only areas that a mediation career may come up short in are income and job security, which can prove illusive although not unobtainable. One of the jokes that mediators like to tell mediation trainees illustrates this all too well: What’s the difference between a mediator and a large cheese pizza? The pizza can feed a family of four.)

This special feature of CareerJournal.com comes with advice for anyone contemplating a career change. Articles to consider include “How to Switch Careers in Midlife” and “Five Almost Painless Ways To Make a Career Change“, which recommend one step in particular that make especially good sense for anyone who wants to transition to mediation from another career: Start a parallel career. (I would not recommend Step No. 5: Go cold turkey. Quitting your day job is rarely a wise move.)

For my thoughts on mediation training and careers, please read “How to become a mediator: five frequently asked questions about training and careers in mediation“.

For a list of blogs (good resources since they offer regularly updated content) that focus specifically on marketing for mediators, visit the World Directory of Alternative Dispute Resolution Blogs.

(Via the excellent George’s Employment Blawg.)

In “Consequences of Power,” an article to appear in the upcoming Harvard Negotiation Law Review, Vol. XII, 2007, and available as a PDF download at the Social Science Research Network, Tamara Relis, a postdoctoral research fellow at Columbia Law School and the London School of Economics Department of Law, reports on the results of a survey and analysis of litigation-track mediation in medical malpractice cases.

Relis finds evidentiary support for the value of bringing plaintiffs and defendants face to face, despite the efforts of counsel to keep them apart. Her findings reveal the disconnect between attorneys’ objectives and those of their clients and shows that plaintiffs and defendants are more closely aligned than one might suppose, seeking similar outcomes and desiring above all the opportunity to communicate. And Relis sees ample evidence for what mediators have long known from experience, namely that mediation meets needs beyond those which the legal system can remedy, something other than compensation or a favorable verdict. Mediation provides what Relis calls “human benefits”–understanding, forgiveness, empowerment, or merely the opportunity to be heard.

For the abstract and a link to the download in PDF, please visit the Social Science Research Network web site.

Technorati tags: mediation, law

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

National Institute for Advanced Conflict Resolution(NIACR) has announced the winners of its first Annual Mediation Blog Roundup, naming five as the top mediation blogs.

Winners are this blog, Online Guide to Mediation, ranked #1 and selected as Editor’s Choice, Geoff Sharp’s Mediator Blah…Blah…, Tammy Lenski’s Mediator Tech, Mediation Mindset by Anthony Cerminaro, and Florida Mediator by Perry Itkin. Congratulations to everyone. You can read all about it right here.

To the best of my knowledge, this is the first time that any organization has recognized mediation blogs as a unique genre. I know that I am certainly grateful for the recognition and appreciate that NIACR took the initiative here in raising public awareness of the value that blogs can add to the Internet conversation, particularly with respect to a field that actively promotes dialogue and collaboration.

What has been tremendously exciting has been to see the growth in popularity of blogging among conflict resolution professionals just within the past 12 months. Today there exist 25 active blogs devoted to alternative dispute resolution with 13 additional blogs that regularly feature posts about ADR for a grand total of 38. It may not sound like much, but when I started doing this, you could count us all on one hand.

I hope to continue to add names to my Directory of Alternative Dispute Resolution Blogs in the coming months. In fact, I’m breaking ground on a new home for the Directory at www.adrblogs.com and hope to announce a housewarming party soon.

Technorati tags: alternative dispute resolution, blogging, mediation, mediation blogs

Last June the odr.info weblog linked without comment to an article by right-wing pundit Michelle Malkin on the threat which peer mediation allegedly poses to the American way of life:

The left-wing Kumbaya crowd is quietly grooming a generation of pushovers in the public schools. At a time of war, when young Americans should be educated about this nation’s resilience and steely resolve, educators are indoctrinating students with saccharine-sticky lessons on “non-violent conflict resolution” and “promoting constructive dialogues.”

One year later, guardians of “traditional family values” (whatever those may be) warn of a similar lurking danger that threatens the nuclear family, the sanctity of marriage, and, apparently, the foundations of civilization itself: tolerance towards homosexuals.

Via Objective Justice comes this report of an initiative launched by Concerned Women for America to involve parents in a nation-wide effort to audit their children’s schools for signs that they are promoting the “radical homosexual agenda”. Among the indicia of moral corruption that parents are asked to be alert for?

• anti-bullying policies that include sexual orientation as a protected category
• federal funding of “objectionable programs” such as peer mediation
• programs teaching tolerance and diversity

To see CWA’s “School Audit Form” for yourself, click here for the PDF download.

Technorati tags: conflict resolution, mediation, peer 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

My alma mater, Suffolk University Law School in Boston, is hosting a group of visiting mediators and mediation program administrators from Bulgaria who are here on a twelve-day study tour under the sponsorship of the United States Agency for International Development (USAID).

This tour furthers the efforts of USAID’s Commercial Law Reform Program (CLRP) to promote access to and use of mediation to alleviate the strain on Bulgarian’s underfunded and overburdened judiciary (a problem which will have the ring of familiarity to American jurists). CLRP has worked closely with Bulgaria to help it develop its capacity to provide court-connected mediation services. A legal framework supporting mediation is in place, which includes a Mediation Act enacted in December 2004, comprehensive procedural and ethical rules of conduct for mediators, and mediation training standards.

In addition, last year the 110-year-old Bulgarian Chamber of Commerce and Industry (BCCI) with the support of USAID opened a Commercial Mediation Center in Sofia, Bulgaria’s capital, with the goal of promoting the use of mediation as a time- and cost-saving measure.

This study tour was developed by and is under the supervision of Gabrielle Gropman, a mediator with over two decades of experience, who served as the administrator of the Harvard Mediation Program at Harvard Law School for 20 years and who possesses substantial experience as a trainer in both the U.S. and Europe.

Chief trainer is my friend and colleague Ericka Gray, who, among her many achievements, served as the founding Executive Director of the Middlesex Multi-Door Courthouse in Cambridge, Ma