I am sorry that my schedule won’t allow me to attend the upcoming Fifth International Forum on Online Dispute Resolution which will be held in Liverpool, England, on April 19-20, 2007. I would have liked the opportunity to meet innovative thinker and agent for progressive change, Sanjana Hattotuwa, who will be among the speakers.

Fortunately for us, Sanjana does some of his best thinking out loud at his blog, ICT for Peacebuilding (ICT stands for information communications technology).

While much of Sanjana’s efforts focus on Sri Lanka, his words and work have universal application. His writing speaks global truths. His most recent post exemplifies this: it is an impassioned and eloquent call for citizen journalism.

Anyone who cares about participatory democracy and a responsible media should listen closely.

Appearing on the op-ed page of the April 4 New York Times was this illustration by Paula Scher depicting the life cycle of a blog post. It actually resembles many efforts at public discourse, particularly those of a political nature.

Familiar points include “present factoids that counter thesis”, “impugn the character of thesis author”, “impugn character of anyone who even considered agreeing,” “criticize the character of those who repudiated the character of those who agreed,” and “denounce all dissenters of thesis”.

Yup, that sounds about right.

(Hat tip to Kottke.org.)

An ongoing fascination for me is the way in which maps reflect our understanding of the world around us, reveal our cultural biases, record human history, or chart the geography of conflict.

If you share my fascination, then allow me to recommend to you strange maps, a blog which collects unusual maps portraying places that are real or exist only in the cartographer’s imagination. A recent posting included this one depicting a “culture wars” battleground: where and how evolution is taught in the U.S.

Meanwhile, Bill Warters at Campus ADR Tech Blog links to “Baghdad: Mapping the Violence,” a BBC News animated map depicting the violence in Baghdad since May 2003 when the U.S. declared the end to major combat operations.

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.)

Having written about bystander nonintervention just last week, I have my own bystander experience to describe to you.

She swayed unsteadily on her feet, leaning hard against the door to the subway car. In swollen red hands, she clutched a bottle of Dr. Pepper and a plastic shopping bag. Her fingers fumbled clumsily at the handles of the plastic bag, try to shift its weight off her wrist. She tried to lift a stubbed-out cigarette butt to her lips, but there was something wrong with her aim–she kept missing her mouth until finally she gave up.

A row of nickel-plated rivets marched up the sides of her bellbottom jeans. She was about the age of my 20-year-old son.

And that’s when I realized that she was high.

As the train sped along, her eyes closed as she leaned back against the door, rocking with the motion of the car. Slowly, slowly, her head nodded and then fell far forward. Just as the rest of her was about to follow, she snapped her head up, waking in time to pull herself up. Her mouth hung open.

All the way past Maverick and Airport she swayed, her head falling forward, eyes shut tight, nodding off and losing balance, then jerking upright. Just when I thought she’d collapse in a heap on the subway car floor, some internal force would shake her and pull her up. The other passengers either ignored her or pointed at her, laughing quietly among themselves. The woman next to me met my eyes and shook her head in disapproval.

I was about to stand to offer her my seat at least, insist she sit down, when some homing instinct alerted her that her stop was next. The train stopped, the doors slid open, and she stumbled outside onto the platform. As the doors closed, and the train pulled away, she stood looking dazed as if uncertain where she was and thinking was too great an effort. She leaned against a metal fence and sank to the platform, her eyes closed. That was the last I saw of her.

I was the only one who watched her leave.

For the rest of the ride home and well into the evening, and even now, days later, I asked myself what I should have done. I had sat there, watching as this woman, this girl really, my son’s age, placed herself in harm’s way. I had sat there, wondering what to do, paralyzed by indecision. A thousand things went through my mind. Did she need medical attention? How would she get home? Did she even have a home? Despite the rough-looking hands, her nails bore signs of a recent manicure and her eyebrows were painstakingly plucked. She must have had a home. But would she get there safely? In that state she was vulnerable–to sexual assault, physical abuse, worse. I wanted to do something, but I didn’t know what.

And to tell you the truth, I was afraid. If I’d offered to help somehow, would she have turned angry, violent even? What if somehow I made things worse?

But this was someone’s daughter, someone’s sister. There but for the grace of God go any of us or anyone we love.

At what point should we cease being bystanders? At what point do we take responsibility for others? At what point do we get involved?

And why do I feel the need to assert my own anti-bystander credentials in telling you this story? I am the kind of person who stops at accident scenes on highways to render aid and give the homeless along Park Street money, coffee, and food. I have come to the rescue of lost toddlers in shopping malls and runaway dogs in the street.

So why was this different? Why did I do nothing this time? And what will I do next time?

What about you? What will you do?

Will you stand by? Or will you stand up?

In honor of April Fool’s Day, the weekly review of the best in law blogging, Blawg Review, comes to us courtesy of host George M. Wallace in a special double album set: Blawg Review #102 at Declarations and Exclusions and a special Blawg Review prequel at Wallace’s personal and cultural web journal, a fool in the forest.

Congratulations and best wishes to my friend Gini Nelson on the first anniversary of her blog, Engaging Conflicts, which explores themes of “Science, Ethics, and Spirit In A High Conflict Practice”.

It seems like only yesterday that I welcomed Gini to the ADR blogosphere. Gini is a wise, warm, welcoming soul who makes this corner of the internet the friendly neighborhood it is.

Many happy returns, Gini!

As a mediator in a solo private practice, I’m always on the lookout for ways to run my business better with the help of digital technology. Which explains why I’m a regular reader of Law.com’s Legal Technology blog. Case in point: this post on “Ten Must-Have Web Sites for Solo Practitioners“. You don’t have to be a lawyer to find stuff here you can use.

(Pssst. This post recommends eFax for internet faxing service. I use GoDaddy.com’s Fax Thru Email for the increasingly rare faxes that I need to send or receive. It’s less expensive and works great.)

According to studies in social psychology, many of us unwittingly overestimate our own abilities, blind to our own deficiencies.

These studies demonstrate, however, that accurate feedback powerfully counteracts these tendencies.

The problem though is that in many settings–workplaces for example–mechanisms for providing accurate feedback are often inadequate or even absent. Which explains why poor performance is so often seemingly rewarded by wage increases or even promotion.

Part of the problem of course is that we’re reluctant to deliver bad news. “If you can’t say something nice, don’t say anything” is drilled into us from childhood. Many of us may also feel totally unprepared to give feedback. The trouble though is that people won’t get better on their own. Without feedback to hold a mirror to our faces, we have no idea what’s not working and what needs to be changed.

Not sure how to give feedback? Consider the following suggestions:

1. Think about your goal. I remember a boss from one of my first jobs after college who seemed to enjoy publicly humiliating his employees. He would yell at his staff, berating them at a high decibel level. Needless to say, the turnover rate at this workplace was enormous. This guy lost sight of the purpose of feedback–an opportunity to build a relationship and trust with someone else, not demean them. The objective is to:

a. Help people understand the goals to be met
b. Explain what they’re doing and not doing to meet those goals–be honest
c. Provide a realistic blueprint for improvement

2. Provide privacy. Giving and receiving feedback can be hard. It can be more comfortable for everyone involved if it’s done privately–and allow for face-saving.

3. Give specifics. People need to understand exactly what isn’t working well. If you’re giving feedback, come prepared with specific examples. Document, document, document. In addition, provide specific details of steps that need to be taken. Be direct and clear.

4. Stop being an avoider. Delay doesn’t make problems go away–they will only get worse and be harder to deal with. The sooner a problem is addressed, the easier it is for everyone to remedy. When behavior is allowed to go on for years and no one ever says anything, it’s going to be much harder to address.

5. Set out a clear action plan. People need to know what comes next. Make sure that the goals are clear and that the other person understands them. If possible, chunk the action plan down into manageable, realistic steps. Do people need support or training to help them meet goals? Make sure that it’s going to be available. It’s also important that people understand the consequences of failing or refusing to make changes in response to feedback. And be consistent in enforcing consequences.

6. Give positive feedback too. If possible, don’t just dwell on negatives. Let people know what they’re doing that’s great. It gives people hope and incentive to continue to do those things well. Besides, we can all do with a pat on the back.

7. Follow up. It can be a great idea to establish a feedback checkup–a follow-up session or sessions to see if goals are being met or any fine-tuning needs to be done.

Got ideas of your own that work for you? Share them here–comments are welcome.

The 99th edition of Blawg Review, the weekly review of the best in law blogging, is hosted this week by self-styled reformed lawyer (and dog lover) Matt Barr, who blogs at Begging to Differ. Matt gets some help from Libby the dog, who was apparently found guilty last week of perjury and obstruction of justice charges.

Show your support and free Libby by visiting this edition of Blawg Review.

(Incidentally, coming up soon, my friend Diana Skaggs of Divorce Law Journal will be hosting Blawg Review #101. Just one more reason why mediators should tune into Blawg Review for all the latest legal news.)

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.

We mediators spend a lot of time helping people make decisions.

And not just any decisions–informed decisions. This is particularly important when you’re dealing, as mediators often do, with people whose decision-making ability may be impaired by the strong emotional response that conflict can produce. The desire to punish an opponent, exact revenge, or teach someone a lesson can override reason and trump common sense. Sometimes you have to spend time getting people to consider whether a decision they want to make today in the heat of the moment will be one they regret ten years down the road.

Mediators then may be interested to see this video of Penn and Teller’s recent experiment revealing how appeals to emotion over reason can sway people to commit themselves before they have all the facts–in this case to sign a petition banning “dihydrogen monoxide“–water.

(Via Boing Boing.)

Mary Whisner at shlep, the legal self-help blog, points to an article on “The Many Costs of Conflict” by dispute resolution consultant Stewart Levine, which describes the heavy financial, emotional, and other tolls that conflict exacts.

According to Levine, these include:

• Direct Cost: Fees of lawyers and other professionals
• Productivity Cost: Value of lost time. The opportunity cost of what those involved would otherwise be producing.
• Continuity Cost: Loss of ongoing relationships including the “community” they embody
• Emotional Cost: The pain of focusing on and being held hostage by your emotions

It made me wonder what shlep and Levine would make of a new book on divorce for women by attorney Sherri Donovan: Hit Him Where It Hurts: The Take-No-Prisoners Guide to Divorce–Alimony, Custody, Child Support, and More.

The pugilistic theme doesn’t end with the title: the book jacket is adorned with a photo of a blood-red boxing glove. Chapters include “Are You Ready to Rumble?”, “Divorce Ain’t for Sissies”, “Sizing Up Your Opponent”, “Conditioning for the Fight of Your Life”, and “Psyching Up for the Fight”.

It should leave us all asking what kind of casualties result when divorce is framed as either prizefight or combat.

The New England Chapter of the Association for Conflict Resolution (NE-ACR) is seeking workshop proposals for its 2007 Annual Conference to be held on Thursday, May 31, 2007, at the Boston University Corporate Education Center in Tyngsboro, Massachusetts.

This year’s theme is Justice: Conversations for the ADR Community. Leading that conversation is internationally known dispute resolution scholar and practitioner, Lela Love, professor of law and director of the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law. Professor Love will also be leading a full-day Advanced Training on Friday, June 1, 2007.

NE-ACR’s annual conference attracts dispute resolution practitioners from throughout New England and beyond. It’s an ideal opportunity to network, make new friends, and meet old ones.
ADR practitioners–mediators, arbitrators, facilitators, educators, trainers, ombuds, negotiators, and anyone else whose work involves conflict resolution–are invited to submit their proposals for consideration.

The Call for Presentations Form is available for downloading here in two formats:

- Word format
- PDF format

Proposals are due by Friday, March 23, 2007, by 5:00 p.m. EST. If you have any questions at all, please email Kelly Thompson, NE-ACR board member and conference organizer, at kthompson@cmcri.org.

(And of course please feel free to pass this on!)

Conflict, as history tells us, can put down very deep roots. Long-lived, it can consume great quantities of time–weeks, months, years–and even centuries.

One such conflict is the long-standing rift between Shi’ite and Sunni Muslims, which has generated so many headlines and claimed the attention of the international community.

For those who wish to understood the origins of the rancorous division between Sunni and Shi’ite, Time Magazine has done an excellent job of untangling its roots in “Behind the Sunni-Shi’ite Divide“.

Meanwhile, at Maps of War, you can view the “Imperial History of the Middle East“–5000 years of shifting control depicted in a 90-second animation.