“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, Massachusetts, and later as the Executive Director of the Academy of Family Mediators, one of the organizations which later became the Association for Conflict Resolution, before founding her dispute resolution firm DisputEd in 1998.

Participation in this study tour is designed to provide participants with advanced commercial mediation skills and techniques, strategies for the successful administration and financial operation of commercial mediation programs, techniques for training commercial mediators, and the opportunity to establish ties with mediators and mediation service providers here in the U.S.

For two days this week I was privileged to join the study tour as Ericka’s co-trainer teaching these distinguished visitors from Bulgaria advanced commercial mediation skills. Vastly knowledgeable about mediation, deeply committed to its precepts, and rooted squarely in its theory and practice, they had much to teach us as well.

The impression that has remained with me today as I reflect on my time with these extraordinary individuals is the degree to which mediation has become a universal language, an idiom that all of us who are mediators speak and share.

For more information on mediation in Bulgaria, visit the web site for the Mediation Center at the Bulgarian Chamber of Commerce and Industry.

Technorati tags: mediation, Culture and Society

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

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

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

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

A continuing fascination for me is the depiction of conflict and negotiation in popular culture. As I have discovered, while depictions of conflict are common, depictions of conflict resolution in the media are quite rare.

Back in March I reported here on “Families at War”, a British television series which exposes the dynamics and roots of family conflict and documents the efforts of specially selected families to resolve their differences under a mediator’s guidance.

Media-watching mediators may be interested to learn that plans are underway here in the U.S. to turn the camera’s lens on divorce mediation. Independent television producer Kate Hudec is working with Massachusetts mediator Diane Neumann to create a documentary which will explore the experience of divorce mediation.

Neumann is currently seeking a divorcing couple willing to participate in this first-of-its-kind project. Information and a contact form are available here.

A couple of weeks ago, just for kicks (and also because I was frankly too tired to get off my butt and change the channel), I watched Hell’s Kitchen, the latest reality television offering. Unless you’ve been living under a rock for the past several years, you’re probably all-too familiar with the standard premise behind reality television shows: contestants compete for some prize (whether to marry an eligible bachelor, achieve fame and fortune as a vocalist, or, in this case, to win your own restaurant), usually under the supervision of an egotistical tyrant with serious anger management issues.

Reality television programs like this are indeed a curious phenomenon. If aliens from outer space visited Planet Earth and the only glimpse they were afforded into American culture was achieved through the satellite signals of reality television, they would undoubtedly reach the mistaken conclusion that above all things Americans value aggression, treachery, self-aggrandizement, and naked ambition. Oh, yes—and conflict. Definitely conflict.

Conflict is indeed the high-octane fuel that popular entertainment runs on. You will never see a reality television program depicting a boss who is a skillful teambuilder with good listening skills and a collaborative approach to problem-solving. It just ain’t going to happen. Conflict is exciting. Peace, on the other hand, is pretty dull stuff. Let’s face it—watching people get along with each other is just no fun. (One can only wonder to what extent the prevalence of workplace bullying may be attributable to the influence of popular culture.)

I was struck by a comment that one of the Hell’s Kitchen contestants made when she was instructed to select two of her fellow contestants to be ejected from the game: “I’m not here to make friends”.

That phrase really struck me. “I’m not here to make friends.” Too bad really. And richly ironic when the goal of each contestant is to win their own business—a restaurant of their very own. No business, whether a restaurant or a restaurant supply manufacturer, can run without a good team to support it or without the good will of employees and customers to sustain it. (For an instructive example of what happens when qualities such as backstabbing and betrayal are openly encouraged among employees, and toxic practices flourish, consider Enron.)

As the famous 1960’s study by social psychologist Stanley Milgram demonstrated, each of us is only six people away from everybody else. This is the “small world phenomenon”, as Milgram described it, and the reason why networking in careers and businesses can be so effective. It’s also a good reason to cultivate connections, not burn bridges behind you.

It’s just too bad that bridge-burning is what keeps Nielsen ratings so high and viewers tuning in.

An interesting report on mediation appeared this week in the U.K. online journal Legal Week by attorney Tim Ashdown, a commercial litigator and partner with the British law firm DMH Stallard.

The article describes benefits mediation offers clients in commercial litigation, including early settlement, cost savings, more direct participation by clients in their own case, and greater flexibility in creating outcomes than litigation offers. The article also draws attention to factors which can limit mediation’s effectiveness.

However, that’s not the reason why you should read this report (despite the fact that we mediators always appreciate a thoughtful, well-written article highlighting the benefits mediation offers written by someone who understands the subject matter very well indeed, as Ashdown does).

What’s most striking about this article is its discussion of a current trend in British jurisprudence for judges to sanction litigants who “unreasonably refuse” to go to mediation to resolve their disputes, particularly when a judge has recommended mediation. Ashdown cites a number of examples of cases in which courts in Britain have approved cost sanctions against parties who have refused to mediate.

This imposition of sanctions in my view undermines two of mediation’s defining principles: voluntariness and self-determination. These principles are among the chief factors which account for mediation’s tremendous appeal for disputants. The process works precisely because of this absence of coercion—parties are more willing to participate in a process which is theirs alone and in which they themselves define the outcome. Autonomy matters.

It is true that courts everywhere—in Britain and certainly here in the U.S.—promote mediation and other forms of ADR as a means of relieving the demands litigation places upon overburdened court systems. But here in the U.S., at least here in the state in which I practice, we approach the issue of sanctions in mediation very differently.

In Massachusetts, Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution requires court clerks to make information on court-connected dispute resolution available to both attorneys and pro se parties, and requires attorneys to

provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent.

However, although Rule 6 permits a court to impose sanctions on parties who fail to attend a scheduled dispute resolution session, it also prohibits courts from imposing sanctions for failure to settle and stresses the importance of ensuring that settlements are reached without coercion, particularly when parties are unrepresented by counsel:

Courts shall inform parties that, unless otherwise required by law, they are not required to make offers and concessions or to settle in a court-connected dispute resolution process. Courts shall not impose sanctions for nonsettlement by the parties. The court shall give particular attention to the issues presented by unrepresented parties, such as the need for the neutral to memorialize the agreement and the danger of coerced settlement in cases involving an imbalance of power between the parties. In dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.

Voluntariness and self-determination, along with confidentiality, may be under assault here in Massachusetts: as some of you no doubt recall, back in January a Superior Court judge issued a decision which penalized a party for failing to heed a mediator’s advice. This decision, fortunately, has been appealed.

As I have discussed here before, this is a path we do not want to embark upon. Sanctioning parties for failing to settle through mediation will only erode support and public confidence in the mediation process. While this approach may provide incentive to parties in Britain to come to the mediation table and reach a deal, there are other and better ways to promote settlement through mediation.

I couldn’t resist the following headline from today’s Orlando Sentinel: Could barbecue succeed where mediation fails?

According to the story that followed, mediation has unfortunately been unsuccessful in a long-standing dispute between Volusia County, Florida, and the City of Deltona over Deltona’s intended annexation of 5000 acres of land. Therefore, in a moment of civic inspiration and Southern hospitality, a resident of Deltona has invited municipal and county officials over to his place to sit down and work out their differences over a plate of barbecued ribs.

My thought is—hey, why not do both? Mediate and eat barbecue? After all, if collaborative law, which envisions the use of a team of attorneys and other professionals, including financial planners and therapists, to help disputing parties resolve differences cooperatively, why not apply the same team-based approach to mediation–pairing mediators with barbecue pitmasters to break down barriers to agreement and foster collaboration?

All kidding aside, quite a few mediators I know make a point of feeding their clients, not only because providing coffee and pastry is a nice thing to do, but for other reasons as well. Consider that the act of breaking bread with another human being is deeply symbolic, a reminder of the link between each person at table. (Note that the English word “companion” is derived from the Latin words for “together” and “bread”, signifying “the one with whom I share bread”.) There’s anecdotal evidence to suggest there might be something to this: a friend of mine, a community mediator who works primarily with families with teenagers and who often bakes brownies and cookies for her mediation sessions, insists that there’s something about the aroma of freshly-baked chocolate chip cookies that puts everyone in a much more collaborative frame of mind–something which I can well believe.

Bon appetit. (And please pass the napkins.)

Hard to say which is more annoying—reality television or spam. (Spam would probably get my vote, since there’s little I can do to prevent it from showing up in my inbox. Avoiding reality television is much easier—I just don’t have to watch any.)

Recently I got a double dose of annoyance in my email inbox: spam about reality television. The message came from someone claiming to be a representative for a casting company looking for contestants for Love Thy Neighbor, a new “comedy-reality series” debuting on TBS.

I hastened to the TBS web site, and learned that this is no urban legend. TBS does indeed have a new series in the works. This is what TBS has to say about Love Thy Neighbors:

Are you annoyed with your neighbors? Do their sprinklers flood your convertible? Does the menagerie of noisy animals in their backyard keep you up at night?

If your home, sweet home is turning sour thanks to your neighbors, we have the show for you!

I was hoping at this point that the next thing I would read would be something along these lines:

But no challenge is too great for our team of professional mediators, who are tough enough to help real-life Hatfields and McCoys kiss and make up.

Instead I read:

We’re looking for a set of neighbors willing to compete against each other in a new comedy reality series on TBS. If you’re fed up with the people next door or across the street, here’s your chance to even the score.

Revenge, not reconciliation, is evidently the focus of Love Thy Neighbor. I therefore figured that all this meant was that it would be a long time indeed before anyone gets around to making a TV show about mediation. (However, back in 2003 a casting call went out from “Cheri Sundae Productions”—no, I am not making that name up—for two divorcing couples willing to mediate their divorce while the camera rolls. The show, tentatively titled “Divorce Mediation” was supposed to begin filming in late 2003 and air last year on Discovery Health Channel, but no further word has been heard since. Which is probably a good thing. If you’d like to see the press release, go to http://www.mediation-works.org/pg204.cfm and scroll way down.)

It turns out I was wrong about mediation’s readiness for prime time. Britain’s Channel 4 is airing Families at War, a new reality TV program with a very different focus from Love Thy Neighbor. Here’s how Channel 4’s web site describes its new offering:

Would you like the chance to heal a family rift? Perhaps your family has fallen out over something big, or something small, and you don’t know how to resolve the problem.

RDF Media is producing a new series called Families at War for Channel 4 and are looking for feuding family members to come together under one roof in the hope of bringing about reconciliation. During the programme they will be helped by family peacemakers and a professional mediator. [Emphasis mine.]

(American readers may be interested to know that there are rumors that Families at War may soon be another British export to the U.S.)

Although I welcome the publicity Families at War will no doubt bring to the mediation field, I am concerned about how accurately the program will portray mediation. (Anyone who remembers the mediation scene from the Michael Douglas/Demi Moore flick Disclosure will know what I’m talking about: a stern-faced mediator, wearing a judge’s robes, conducts an adversarial process while a court stenographer seated in the background records the proceedings.)

Hopefully a program like Families at War will increase public understanding of mediation, not muddy the waters. We still haven’t been able to clear up the confusion between mediation and arbitration (or between mediation and meditation, for that matter). Despite the fact that mediation has become far more widespread of late, there remains perplexity in the public mind about what mediators actually do and how we do it.

While perhaps it’s true that there’s no such thing as bad publicity, let’s just hope that if mediation becomes reality television’s hot new topic, the media portray it positively, sensibly, and accurately so that the field—and the public—benefit.

And now for a word from our sponsor…

As discussed in an earlier posting, the confidentiality of the mediation process enables disputants to engage in candid discussions without the risk that the information shared and options considered could later be used against either party in court later on. Confidentiality, while important to maintain the trust of parties in the mediation process, is a two-edged sword and can become an issue when the mediation addresses matters of great concern to the public, which is the situation in Corvallis, Oregon.

In a story reported this morning, the Corvallis School District and the Corvallis Education Association recently negotiated a new teachers’ contract with the assistance of a mediator, whose responsibilities included the preparation and submission of a fact-finding report. The parties had agreed that the report would remain confidential unless they were unsuccessful in reaching an agreement. Oregon law apparently permits governmental officials to withhold such documents from the public. But some, including at least one parent, are requesting the School District to make the report public to shed light on the financial issues that Corvallis schools are facing. Oregon law does not prohibit the disclosure of such reports, but whether school officials and the teachers’ union will agree to release the report remains to be seen.

Balancing the demands of faith and work has increasingly become an issue for American businesses.

Such was the case at Dell Inc., in Nashville, Tennessee, when thirty Muslim employees walked off their jobs in February to protest Dell’s refusal to allow them to stop work for sunset prayers. According to an Associated Press release issued today, the workers have elected to take this issue to mediation, which is being handled through Nashville’s Human Relations Commission. Under federal law, employers must accommodate employees’ religious beliefs or practices so long as doing so would not constitute an undue hardship.

Religion in the workplace can lead to other tensions as well. As more businesses welcome spirituality into the workplace, complaints by employees have surfaced alleging that non-believers are subjected to hostile work environments by proselytizing co-workers.

Workplace mediators and ADR specialists will want to follow these trends closely as expressions of spirituality and faith continue to become more commonplace in business settings.

The central tenet of Judaism is contained within the exhortation, Hear, O Israel, the Lord Our God, the Lord is One. It is a call to listen closely, to heed the voice of God.

The importance of listening is emphasized in Christianity as well. Benedictine monks, for example, practice silence as a way to listen more attentively to God: “He who has ears to hear, let him hear”, Matt. 11:15.

Listening, as mediators know, is also the cornerstone of mediation practice. Mediators listen closely to the perspectives of parties in conflict. And through mediation disputants are able to listen to each other.

In light of this parallel it is perhaps not surprising that approaches to mediation have emerged that are deeply rooted in religious traditions and values. Faith-based mediation services have sprung up tailored to the special needs of disputants who are members of a particular denomination or faith.

The Jewish perspective

Jewish mediation practice is inspired by the spiritual mandate of tikkun olam , the obligation to repair and bring healing to a broken world. It includes the promotion of justice and peace through social action. Tikkun olam offers inspiration for the work of a number of Jewish mediators.

One program whose work gives expressions to these goals is the Jewish Community Justice Project in West Los Angeles which “brings together victim, offender and volunteer mediator in a voluntary conflict resolution process guided by Jewish values and tradition.”

Besides addressing community and neighborhood issues, mediation services incorporating Jewish values also focus on divorce and family concerns. This could include helping parents continue to work together collaboratively to raise children during and after divorce, or assisting a divorcing couple to obtain a religious divorce and a Get, or written decree of divorce under Jewish law.

Mediation in the Christian context

Christianity’s sacred texts place great value on peacemaking: “If it is possible, as far as it depends on you, live at peace with everyone,” Romans 12:18. The word “peace” itself appears numerous times throughout the New Testament.

A number of organizations provide mediation services built upon Christian teachings. For example, the U.K.-based Resolve: Christian Mediation and Arbitration Service, an affiliate of the International Christian Chamber of Commerce, “exists to encourage and assist Christians to respond to conflict in a biblical manner. Its primary purpose is to provide an advice and mediation service to help resolve disputes whether arising in business, church or family and to reconcile the parties involved.” Another organization, Peacemaker Ministries, a non-profit based in Montana, has a more far-reaching objective: it “trains and assists Christian adults and children to resolve personal, church, business, and legal conflict through biblical peacemaking, negotiation, forgiveness, reconciliation, mediation, and arbitration.”

Beyond the provision of mediation services, there are of course faith-based organizations actively involved in peacemaking efforts generally on local and global levels. For a list of some of these organizations, click here.

Over the years alternative dispute resolution (ADR) in all its forms has proliferated, increasing in popularity and accessibility. Mediation and arbitration are widely perceived as affordable, time-saving, private means for resolving disputes, presenting an appealing alternative to the expense, delay, and uncertainty that can characterize litigation.

Mediation and other forms of ADR can certainly spare people the emotional toll and financial costs that adversarial processes like litigation can produce. A friend of mine who mediates workplace and family disputes recently worked with a divorcing couple who came to mediation after spending thousands of dollars on attorneys’ fees. They had realized that they were wasting both time and money battling over issues that they could work out far more cheaply, efficiently and painlessly with the help of a mediator. And what is true in divorce cases is equally true of other kinds of disputes.

My first exposure to ADR came through my initial training by and subsequent volunteer work with grassroots community mediation programs, where mediation is used to bridge differences and empower individuals to become themselves the architects of positive change. Programs like these, which are founded upon idealism, optimism, and an abiding faith in humankind, undoubtedly do much good.

ADR’s success extends well beyond the grassroots level. ADR exists on both micro and macro levels, and today ADR is equally at home in the private and public sector, in schools, in neighborhoods, in federal agencies, in workplaces, in the military, in local, national and international conflicts, and even of course on the Internet.

But the Force, as any Star Wars fan can tell you, has a dark side.

The advantages that ADR offers over litigation have not gone unnoticed by corporate America. Litigation is an expensive proposition for corporations, and the public nature of trial and the evidence that discovery produces can result in embarrassing public revelations regarding corporate policy. Mediation and arbitration, on the other hand, conducted in private and shielded by confidentiality, produce speedy resolutions without public disclosure. ADR has become increasingly attractive to corporations who want to find ways to limit their liability and reduce exposure. Private remedies like arbitration and mediation shield corporate acts from public scrutiny and can result in the concealment of patterns of corporate misconduct.

The prevailing view in Washington is that litigation and jury trials have been bad for corporate America and that reform is urgently needed. Powerful business interests have been lobbying hard to limit access to courts, place caps on the amount of damages a jury can award, and place restrictions on class action lawsuits. (For example, Congress recently approved legislation aimed at restricting the power of state courts to hear class action lawsuits, requiring many of these suits to be filed in federal court instead where class action plaintiffs are less likely to enjoy a sympathetic reception. Good for business, very bad for consumers, patients, employees and others affected by negligent, unethical or illegal corporate practices.) Those sounding the drumbeat for litigation reform have been successful in influencing public opinion of trial attorneys and plaintiffs.

ADR unfortunately has become a piece of this overall pattern, increasingly utilized by the powerful to limit access to the courts by those less powerful. Mandatory arbitration, for example, has become a common feature of many consumer agreements, including everything from health care coverage to the purchase of an automobile. If you have a credit card or motor vehicle insurance, read the fine print—your agreement with either your credit card company or your insurer may well require you to arbitrate any disputes that arise—and most likely in a forum convenient for the company, not for you. And many large corporations—not surprisingly, Halliburton, friend of the current White House, is among these—have instituted mandatory ADR programs to address workplace disputes.

This trend is an alarming one. Those of us who are ADR practitioners need to be very careful of the company we keep and the uses to which ADR is put in our name.

ADR was conceived as a way to do much good, to provide a cost-effective process in which all parties participate on a level playing field, resolution can be achieved quickly, and which produces outcomes capable of creating winners out of everyone. We need to ensure that the affirming principles on which ADR was founded do not become distorted or manipulated for harmful ends.

We should resist the lawyer-bashing that seems to characterize much of the public conversation about litigation today. And let us stop spreading the notion that all litigation is bad—a view I have heard even well-meaning mediators advance in a misguided effort to promote the ADR field.

Litigation and ADR each have their place. There is much that each can offer, depending upon the parties, the case, and the issues at stake.

Mediation can result in what litigation by its nature does not typically allow for: dialogue, reconciliation, and closure. Arbitration avoids the delays of trial, bringing speedy resolution in an informal and private setting. And litigation can be the surest path to uncover truth, right wrongs, and achieve justice.

We need to ensure that all these avenues remain open and be cautious in our enthusiasm to promote the ADR field that we do not risk closing any of them.

May the Force be with you.

In a remarkable demonstration of support for mediation at the highest levels of government, U.K. Civil Justice Minister David Lammy has announced the launch of a National Mediation Helpline aimed at providing people with personal injury, small claims, business or consumer disputes information on using mediation as a way to resolve these matters without the expense and delay of going to court.

This one-year pilot program is the creation of the Department for Constitutional Affairs and the Civil Mediation Council. It was envisioned as a way to raise public awareness throughout the U.K. of the benefits that mediation offers.

For some years now here in the U.S. a debate has raged regarding depictions of violence and conflict in the media. Some would argue that the media glorify violence, positing it as the most effective and direct means of resolving conflict. And that in depictions of conflict by the media, conflict itself becomes the sole focus, with little meaningful analysis of the forces giving rise to conflict, no understanding of the underlying interests at its heart, and no chance to understand the different perspectives that exist among the parties to the conflict. Whether this is accurate or not I’ll leave for others to debate.

What I can say with certainty, however, is that while conflict no doubt sells newspapers and fills seats at the multiplex, conflict resolution just doesn’t seem to have the same panache. Let’s face it, no one makes movies about mediation. And no one has ever made an animated cartoon about mediation.

But that’s all changed, thanks to the Department of Veterans Affairs. The DVA has produced a cartoon short, The Three Little Pigs Go to Mediation. Don’t miss seeing the Three Little Pigs and the Big Bad Wolf work out their differences with the help of the Wise Old Owl, an experienced mediator who uses the facilitative model.

Just a few weeks ago on a chilly but gloriously sunlit January morning I attended the wedding of two dear friends at our local town hall. What made this particular wedding so unique is that the happy couple had been together for thirty-eight years before getting married. This was also the first marriage between two men to be performed in this small Massachusetts town.

The twenty of us who were present were deeply moved by this ceremony which honored almost forty years of devotion, commitment, and love between two life partners. Many other gay couples in Massachusetts have taken the same step since the Commonwealth legalized gay marriage: by conservative estimates, over 4,000 gay marriage certificates were issued in Massachusetts during 2004.

But just a few days ago I learned that another gay couple has regretfully chosen to end their months-old marriage. And others, too, have filed for divorce here in the Commonwealth.

These two very different cases illustrate what we know from experience: many marriages and relationships endure, but sadly they can also end in separation or divorce.

Divorce, a legal process, can easily become adversarial, and lead to increased stress and mental trauma. It doesn’t have to be that way. There are resources and options available for all couples, heterosexual and gay, for support throughout separation and divorce.

There are two processes in particular which can make a difference for couples going through a divorce: mediation and collaborative law.

Mediation provides a low-cost and confidential alternative to litigation. In mediation, a third party assists a divorcing couple have a constructive conversation about the issues they need to address as part of the process of obtaining a legal divorce. Those issues may include: division of assets and debts; spousal support; issues relating to children, including visitation and custody; and any issues that are unique to the relationship.

Mediation helps people talk through the issues that affect them and their families and reach agreements that are fair, workable, and make sense for them. Gay couples contemplating divorce may wish to think about working with a mediator who has experience with and is sensitive to issues affecting the gay community. The important thing is to find a mediator that you feel comfortable working with.

For information on mediation, visit Mediate.com or the web site for the Association for Conflict Resolution. Residents of Massachusetts may be interested in exploring the web site for the Massachusetts Council on Family Mediation.

Collaborative law is another option available to divorcing couples, which can be used on its own or in conjunction with mediation.

According to the web site for the Massachusetts Collaborative Law Council, the goal of collaborative law is “to protect the privacy and dignity of all involved”:

We acknowledge that the essence of “Collaborative Law” is the shared belief by participants that it is in the best interests of parties and their families in typical Family Law matters to commit themselves to avoiding litigation.We therefore adopt this conflict resolution process, which does not rely on a Court-imposed resolution, but relies on an atmosphere of honesty, cooperation, integrity and professionalism, geared toward ensuring the future well-being of the family.

Our goal is to eliminate the negative economic, social, and emotional consequences of protracted litigation to the participants and their families.

It requires the free and open exchange of information, and envisions working together with other experts, including psychologists, financial experts, and others, and sharing the recommendations and work product of those experts.

For more information about collaborative law, you can also visit the web site for the International Academy for Collaborative Professionals.

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

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

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

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

Like music, mediation hath charms to soothe a savage breast, to paraphrase English dramatist William Congreve.

In Missouri the St. Louis Symphony Orchestra has announced that management and musicians will sit down with a mediator in an effort to resolve a pay dispute that led to a strike by symphony employees. Concerts have been cancelled for several weeks as a result of the work stoppage.

Let us hope that mediation will help orchestra management and musicians transform cacophony into harmony.

Some of us just can’t stop thinking about football–after all, the next Super Bowl is only 363 days away. (Especially here in Boston, where fans are jubilantly celebrating the New England Patriot’s third Super Bowl victory in four years.)

And those of us mediator types who also happen to be football junkies sit up and take notice when a news story combines our two passions. Seems that the Cincinnati Bengals and the National Football League have just agreed to mediate a federal anti-trust suit filed by Hamilton County, Ohio. They’re working on selecting the mediators right now.

Stay tuned, sports fans.

The Sri Lankan Daily News reports that the Legal Aid Commission in Sri Lanka has requested that a special mediation law be extended to cover all tsunami-related disputes that will inevitably rise in the aftermath of December’s disaster. The goal here is to ensure that indigent victims would have a speedy and affordable means of obtaining redress for their losses. Mediation is certainly an effective way to accomplish such a goal, particularly in light of the fact that there will undoubtedly be numerous claims and disputes resulting from the resettlement and reconstruction process.

Community associations—condominium or homeowners’ associations—are booming. According to the Community Association Institute, over a quarter of a million community associations are in existence here in the U.S. Almost 50 million Americans live in an association-managed community—or one out of every 6 Americans.

There are advantages to living in an association-managed community—in some of the tonier communities residents share access to such amenities as tennis courts and swimming pools.

But there’s a down side as well. As a means of preserving property values, community associations are typically governed by rules and covenants which place restrictions on what property owners can do with their property. These rules, sometimes arbitrarily enforced, can place stringent limits on property owners, imposing strict rules on everything from mailboxes and flags to landscaping and exterior paint colors.

Needless to say, disagreement often arises as to how these rules should be enforced or interpreted. This generates a huge amount of misery and litigation for association residents who run afoul of these rules.

As someone who has mediated disputes involving condominium associations, I know from experience that these kinds of conflicts can be highly contentious. Good fences do not always make good neighbors.

The California Law Revision Commission is considering a proposal to establish an agency with oversight of homeowners’ associations. The services and resources that would be available through such an agency would include mediation services.

That’s a great way to mend fences.

Thanks to my friend and colleague Moshe Cohen for alerting me to this story.