Today the American Bar Association celebrates Law Day, a public education initiative to raise awareness of the meaning and import of law, liberty, and justice in a democratic society.

The ABA provides a list of talking points for discussion which include not only such topics as separation of powers, judicial independence, and the contributions of the legal profession, but also mediation as an alternative to court.

Technorati tags: Law, Lawyers, Mediation

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In a move that has stunned members of the closely-knit alternative dispute resolution community here in Massachusetts, the Boston Bar Association (BBA) has announced that it has drafted a proposed amendment to the Massachusetts statute protecting mediation confidentiality and will hold a meeting on May 9 to provide stakeholders with an opportunity to submit their comments.

Together with the text of the proposed draft, the BBA has also released a Statement of Purpose explaining its reasons for developing this draft.

The statute as currently written applies only to mediators who enter into a written agreement with the parties and meet certain threshold requirements, including the completion of 30 hours of mediation training.

The BBA’s proposed draft, which would amend the confidentiality statute to codify certain public policy exceptions to confidentiality, omits entirely the training requirement for mediators and does not require a written agreement between the mediator and the parties. The proposed amendment defines a mediator merely as “an individual who conducts a mediation”.

These omissions would allow anyone at all, even those who have had no mediation training whatsoever, to be treated as mediators for purposes of the confidentiality statute. Theoretically then virtually anyone could assert this privilege and claim to be a mediator or a party to a mediation, creating an evidentiary nightmare for courts.

Reaction from mediators has been overwhelmingly negative. Many believe, as I do, that, if enacted, the BBA’s proposed amendment with its omission of training requirements for mediators would undo years of effort by many in the ADR field to improve the quality and integrity of mediation services and build public confidence in the profession. These efforts more recently included the 2003 addition of Rule 8, “Qualifications Standards for Neutrals“, to the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution. (Rule 8 sets forth training requirements for neutrals receiving court referrals and specify a minimum of 30 hours of training for mediators, together with a court orientation.)

Mediators I have spoken with are deeply troubled that the BBA did not obtain input from the broader ADR community in preparing this draft, an omission many view as inexplicable in light of the emphasis mediators place on collaborative efforts and transparency. Sentiment runs strong that any changes to Massachusetts law concerning the practice of mediation should occur only with full and public participation by and input from all stakeholders across the Commonwealth.

What the fate of the proposed amendment may be remains unseen, although given the reaction of mediators so far, it’s unlikely that this version will ever become law. Stay tuned.

Those who monitor treatments of negotiation and conflict resolution in popular culture (and who have strong stomachs) may want to tune in to Unan1mous, a U.S. reality television show now in its third week at Fox Broadcasting, and which the Washington Post has amusingly dubbed a “Zero Fun Game“.

(By the way, that’s not a typo you’re seeing—like the CBS series “Numb3rs” or the cheesy Brad Pitt flick, “Se7en”, “Unan1mous” follows the entertainment world trend to replace perfectly good letters with numbers in film and television titles–as much of an annoyance to type as they are to read).

The basic premise is this: nine individuals, sealed inside a windowless underground bunker, must make a single decision–to unanimously select one of themselves to receive $1.5 million.

Although the voiceover on the first episode melodramatically describes this as “a social experiment that will spiral completely out of control,” it is at bottom nothing more than a badly played negotiation game.

Contestants include a truck driver, a minister who runs an e-commerce business when she’s not preaching, a professional poker player, a human resources professional, a choreographer, a self-described “soccer mom”, a handbag designer, a real estate sales rep, and a “42 year old Temp Worker” (evidently a TV synonym for “loser”).

Each of these players must try to convince all the others that he or she should receive the prize money. Once the group reaches a unanimous decision, all the contestants are free to leave their captivity. If any of them leaves before a unanimous decision is reached, the prize money is instantly reduced by half.

We see the contestants use time-honored (and ineffective) strategies straight out of traditional, distributive bargaining–argument, persuasion, deception, appeals to sympathy, cultivation or subversion of alliances, and intimidation (this marks the first time I’ve heard eternal damnation invoked as a threat in a negotiation).

Tempers of course flare, and contestants begin behaving badly in predictable ways. Out of earshot of the others, some of them begin to reveal their true selves to the camera. On episode one, we hear the following confidences:

“My entire life is a game–but I play to win!” (the professional poker player)

“$1.5 million dollars is enough to make people lie, backstab, do whatever it takes. I know it is for me.” (the H.R. professional)

“What I tell the other people, what I don’t tell them, is very important. It’s like meeting a girl. You feed her a bunch of B.S. so you can bring her home [diabolical laughter].” (the real estate sales rep)

At the end of their first day of negotiations, the contestants not surprisingly fail to reach a unanimous decision. Consequences of course ensue, and the clock begins to run on the $1.5 million prize money, reducing it by a dollar for each second that passes until the contestants reach a unanimous decision at last. As of last night’s episode, the prize money had been reduced by more than half already, leaving just over $700,000.

Despite the utter ineffectiveness of the negotiation strategies they pursue, contestants are determinedly staying the course. An eternal optimist, I keep hoping that one of them will at some point turn to the others in a moment of inspiration and say, “Look, is there any way that all of us working together can beat the system and walk out of here with the prize money before it all disappears?” Surely cockroaches can’t be smarter than humans when it comes to problem solving.

However, at this point I’ve lost both interest and optimism–not to mention control over my family’s TV remote control device. You’ll just have to let me know how it all turns out.

Whatever my faults may be as a blogger, irregular posting is not among them. Readers will have to forgive me for nine days of unexplained silence here at Online Guide to Mediation.

Apart from the usual demands of work, I’ve unfortunately had a nasty malware infection to deal with on not just one, but two, computers. And this despite doing everything right–firewalls, updated virus definitions, and three (yup, that’s right, three) different anti-spyware programs on each laptop. (If you aren’t using it already, download Webroot’s Spy Sweeper–it saved my digital butt. It’s not free, but it performs its job with lethal accuracy, and, at $29.95 for a year’s subscription, it’s affordable.)

Now that my computers have been restored to health, it seemed somehow poetic to post about, well, bugs.

As I learned from this recent post at Collision Detection, Belgian researchers have demonstrated that cockroaches are able to make decisions as groups. They (cockroaches, that is, not Belgian researchers) approach problem solving in a democratic way, consulting with each other before making decisions. As one researcher told Discovery News,

Cockroaches are gregarious insects (that) benefit from living in groups. It increases their reproductive opportunities, (promotes) sharing of resources like shelter or food, prevents desiccation by aggregating more in dry environments, etc.

Let us hope that this news motivates us humans to work a little harder at collaboration. Otherwise, as Collision Detection author Clive Thompson says, cockroaches will definitely be inheriting the earth.

Sleep, as Shakespeare once observed and insomniacs know, possesses great restorative powers:

(In the interests of full disclosure, only one of the following quotes has anything to do with the themes typically associated with “Mediation Quote of the Week”.)

Today is Opening Day–New Year’s Day for baseball fans. In celebration, here are three of my favorite baseball quotes:

It breaks your heart. It is designed to break your heart. The game begins in spring, when everything else begins again, and it blossoms in the summer, filling the afternoons and evenings, and then as soon as the chill rains come, it stops and leaves you to face the fall alone.

~A. Bartlett Giamatti

That’s the true harbinger of spring, not crocuses or swallows returning to Capistrano, but the sound of a bat on the ball.

~Bill Veeck

Let the games begin.

Although alternative dispute resolution bloggers are few in number, I was glad to learn this morning that our population has happily increased.

Stephen Raymond, a Toronto-based full-time mediator and arbitrator whose practice focuses on labor, employment, business, and commercial disputes, has launched Perspectives from a Mediator/Arbitrator. Stephen’s blog promises to serve as “a one stop for information on current trends and ideas in the areas of ADR and mediation”.

You can visit Stephen here. (Thanks to Michael Fitzgibbon at Thoughts from a Management Lawyer for the news about Stephen’s blog–as well as for the kind words about Online Guide to Mediation.)

Welcome to the bloggerhood, Stephen.

Social capital is a concept signifying the collective value of social interactions and relationships and the reciprocity that springs from social networks. The sustainability of community and civic life–even, some say, democracy itself–depends upon the continued cultivation of social capital.

Some experts and scholars in recent years have warned that social capital is dangerously in decline. In response, a number of organizations have sprung up to counteract the perceived depletion of social capital and to encourage the nurturing of social and civic connection. These include BetterTogether, the World Bank, and Assist Social Capital.

Surprisingly, however, a recent Pew Internet study (in PDF) found that the Internet, popularly believed to inhibit social interactions, in fact builds social capital:

The internet and email play an important role in maintaining these dispersed social networks. Rather than conflicting with people’s community ties, we find that the internet fits seamlessly with in-person and phone encounters. With the help of the internet, people are able to maintain active contact with sizable social networks, even though many of the people in those networks do not live nearby. Moreover, there is media multiplexity: The more that people see each other in person and talk on the phone, the more they use the internet. The connectedness that the internet and other media foster within social networks has real payoffs: People use the internet to seek out others in their networks of contacts when they need help.

In addition, contrary to the notion that regular Internet users are pathetic social misfits, the study instead found that “Internet users have somewhat larger social networks than non-users. The median size of an American’s network of core and significant ties is 35. For internet users, the median network size is 37; for non-users it is 30.”

Journeying from the Internet back to the terra firma of real-world social congress, at least one scholar has argued that the workplace is also a wellspring of social capital, and that there is evidence to support the notion that workplace relationships strengthen civic involvement and democracy. As Columbia law professor Cynthia Estlund observes in Working Together: How Workplace Bonds Strengthen a Diverse Democracy,

In the workplace, and often only there, individuals have to find ways of cooperating on an ongoing basis, over weeks or years, with others who have distinct cultural backgrounds, life trajectories, opinions, and experiences, and racial and ethnic identities. That makes the workplace a uniquely important institution in a diverse democratic society and a central component of any reasonably capacious account of “civil society”.

It is indeed true that the personal is, in the end, political. Dispute resolution professionals whose work brings healing to workplace conflicts should consider their endeavors in a new light: that their efforts may in a big-picture, long-range way promote civic involvement and, ultimately, a re-energized democracy. Makes you think, doesn’t it?

The latest edition of Blawg Review is hosted this week at De Novo, a blog collaboration showcasing the talents of some dedicated law student bloggers. (Where do these guys find the time?)

This edition, like all good Blawg Reviews, links to a wide range of great posts–from artificial intelligence as the new legal entity, to logic puzzles for law buffs, to reasons to consider a prenup or to settle early.

Stop by and see for yourself.

After blogging in the past (here and here) on the inestimable importance of relationship-building in business and personal contexts, I was glad to be introduced by Bob Coffield over at the Health Care Law Blog to “The Opportunity Wedge“, from the web site More Partner Income.

While I disagree with the rather grim premise that life’s opportunities form a wedge–with our birth as the largest edge of the wedge when possibility and potential are greatest, with opportunities narrowing with each choice and decision we make–I can think of plenty of examples of people reinventing themselves in later life, opening up doors to new beginnings and opportunity–nonetheless, this model for instilling achievement-oriented goals in new law firm associates comes along with sound advice for anyone, regardless of where they happen to be on their career or life trajectories.

And much of that advice will resonate with anyone who works in the dispute resolution field, in particular the following:

• It is all About Giving: Relationships are built by helping others
• Two Words to Use: “Thank you,” “You’re welcome,” and “I’m sorry”
• People Bank: Save them; they pay a great return
• Miss Manners: Behavior counts
• Play Offense: Act, don’t react
• We not I: Great things are accomplished through others
• Collaboration Trumps Competition: Personal contribution is valuable, but it took collaboration to build the Pyramids

You can read the rest of the advice here.

What follows is a hearty helping of a week’s worth of posts and stories for mediators and conflict resolvers everywhere:

Collaboration not competition

The blog Thinking Faster has an interesting piece on “Collaborating to Compete,” a reflection on the increasingly common practice of promoting collaboration internally to enhance a business’s competitive edge. In riffing on an earlier Wall Street Journal article, blogger Jeffrey Phillips says,

…businesses will require people who can share information and talents. I think this is especially true as we move from top-down hierarchical models to broader, flatter organizations. Customers also will fuel this change, since they require quick actions and decisions, and expect an organization to be able to create products and solve problems across organizational boundaries.

In fact, some organizations are beginning to place great weight on teamwork: Phillips tells readers that “Cisco, a firm known for fast growth, has made ‘teamwork and collaboration’ a factor in its formula for computing management bonuses. This factor alone can have impact bonuses as much as 20%.” Companies wishing to hone or gain that competitive edge may want to think about offering conflict resolution and mutual gains training to management and staff to build the capacity for effective teamwork.

You can’t take it with you: tracking probate and estate planning related mediation resources

Joel Schoenmeyer over at the excellent Death and Taxes blog is in the process of gathering together estate planning and probate related mediation resources (mostly online).

This is an opus in four acts. You can check out Part 1 and Part 2 of Joel’s work in progress. Coming soon: Parts 3 and 4, which will provide links to web sites relating to probate mediation, and links to mediation and ADR-related web sites and blogs, respectively.

I’m looking forward in particular to Joel’s compilation of ADR-related blogs–I conducted my own survey last year and had been planning to update my results within the next several weeks, since there have been some additions to the ADR blog world since then. It looks like Joel may save me the time.

Putting an end to Monday morning quarterbacking: finding effective strategies for dealing with conflict

Even for dispute resolution professionals, dealing with conflict can be tough. It can be especially difficult to resist the tendency to second-guess ourselves. Long after the conflict has ended, we continue to hit the instant replay button: Did I say the right thing? Did I overreact? Why did I let myself get so emotional? Tammy Lenski has written two rock-solid posts for anyone who has struggled with their own responses to conflict and who seeks to learn more effective modes of behavior: “Using Your ‘Right Voice’ in Conflict” and “Beware the Conflict Replay”.

Take a message: the rise of call center mediators?

In these modern times, mediation is no longer conducted solely through face-to-face meetings with parties. Pioneering mediators have increasingly used digital technology, e-mail, and telephone to support or replace face-to-face interactions. Geoff Sharp, riffing on a recent post of mine on the rise of law in cyberspace, blogged this week about two changes on the ADR scene in New Zealand: 1) the establishment by the New Zealand Office of the Domain Name Commissioner of a panel of cyber-mediators charged with the resolution of .nz domain name disputes, and 2) a push by another New Zealand government agency to implement the use of telephone mediation to resolve disputes between landlords and tenants.

(For those of you who monitor the application of real-world laws to activities in cyberspace, you may be interested in reading “Craigslist Becomes Focal Point For Battleground Over Offline Laws In An Online World” from May It Please the Court.)

Strategic conversations: a talk with an online dispute resolution pioneer.

Speaking of the brave new world of online dispute resolution, Negotiating Tip of the Week features an interview with Colin Rule, the Director of Dispute Resolution at eBay, about the differences between resolving disputes online or in the flesh.

Identity crisis: what exactly is this mediation stuff anyway?

With the rapid proliferation of so many different types of alternative dispute resolution processes, there’s understandably much confusion, even within the mediation field itself, about what mediation is anyway and just how do we define it. Florida Mediator Perry Itkin looks at the confusion in “If It Looks, Walks And Quacks Like A Duck – It’s Not Mediation! It’s A Duck!”
(And definitely read the letter from one understandably frustrated mediator which Perry links to. )

Character references: final thoughts for Friday

Warning: this concluding story has nothing whatsoever to do with alternative dispute resolution, negotiation, collaborative processes, or the law. If you prefer your mediation blogs straight up, please feel free to skip this one.

Via Professor Bainbridge comes news of the SimpsoMaker, allowing you to transform yourself into a Simpsons character, just in time for the weekend.

Bringing creativity to problem solving is what attorneys, mediators, and other dispute resolution professionals can offer clients in conflict. And we’re always looking for ways to do what we do more creatively.

Looking for a way to get parties in mediation thinking about their goals or to prepare themselves to come to the mediation table? Matt Homann at the [non]billable hour has a great brainstorming idea for mediators, via the Achieve-IT! blog.

On the look-out for other ideas to stimulate creative thinking? Check out “Free the Genie” at the Idea Champions, the Whack Pack at CreativeThink.com, or the Creativity Toolbox on GoCreate.com. And one resource I continue to return to for creativity techniques can be found at the inimitable Mycoted Ltd. web site–hands-down the best site on the Web for creativity and brainstorming tools.

Wordsmiths and bloggers who normally seek creative inspiration from the thesaurus or dictionary should try out Visual Thesaurus, which charts a visual representation of the rich associations among words, creating an intriguing linguistic map that lures the user on. The web site allows for one trial–over all too quickly like a really great amusement park ride–but visitors can purchase a one-month subscription for only $2.95—not a bad bargain for a playful, three-dimensional alternative to your old dog-eared Roget’s.

Marketplace Money, a National Public Radio program covering personal finance and business issues, just featured “Courting a Mediator”, a story highlighting the benefits mediation can offer individuals and businesses seeking a confidential and time- and cost-saving alternative to litigation.

You can tune in to the story here.

As the Internet grows in influence, more and more does the business of the real world become intertwined and run parallel with the dealings of the digital world.

In cyberspace, we engage in commerce, form communities, and share ideas. We even reside at digital addresses where we receive mail or visitors. Not only does the Internet facilitate real-world transactions and interactions, but it has also provided the matrix from which virtual worlds have sprung.

The events and activities that transpire on the Internet hold real-world consequences and questions: Who controls the Internet? What relevance does the geography of the real world, with its territorial boundaries and laws, have to cyberspace which transcends the bounds of physical borders? What law applies to Internet transactions? And who decides? If disputes arise in cyberspace, as most surely they do, by what mechanism should they be resolved?

This month’s edition of First Monday, an online peer-reviewed journal on the phenomenon of the Internet, takes up these questions and ponders the nexus between cyberspace and law in a fascinating collection of articles entitled, “Law and Borders: The Rise of Law in Cyberspace, Ten Years Later“.

Included in this collection are:

• “Law and Borders: The Rise of Law in Cyberspace“(originally published in May 1996), along with “The Great Debate — Law in the Virtual World,” both by David G. Post and David R. Johnson
• “Virtual Borders: The Interdependence of Real and Virtual Worlds,” by James Grimmelmann
• “The Life of the Law Online,” by David R. Johnson
• “Dispute Resolution Without Borders: Some Implications for the Emergence of Law in Cyberspace,” by Ethan Katsh

First Monday, as its name suggests, is published on the first Monday of each month.

Anyone who runs a business knows that success depends upon meeting and exceeding clients’ expectations.

No one seems to know that better than Patrick Lamb, an attorney whose deep commitment to exceptional client service has motivated him to publish In Search of Perfect Client Service, a blog aimed at inspiring the legal community to go the distance for clients.

(Patrick, incidentally, hosts this week’s Blawg Review, the weekly review of law blogging hosted each week at a different blog.)

Not just attorneys but mediators and other dispute resolution professionals should visit Patrick’s blog to find plenty of ideas to guide them in their own quest for the holy grail of outstanding service for clients. Explore Patrick’s posts by sampling his list of categories (located in the right column), and take time as well to hunt through his blogroll (in the left column) for links to other great resources on running and marketing a successful practice–in particular his article on Michelle Golden, who publishes Golden Practices, a blog filled with ideas and tips for professional service firms.

The best way to destroy an enemy is to make him a friend.

I recently had the great honor of hosting Blawg Review (the Shakespearean edition). After burning the midnight oil on Super Bowl Sunday to raise the curtain on the 43rd edition of Blawg Review, the experience gave me renewed appreciation for the efforts of each week’s Blawg Review host, as well as all the behind-the-scenes hard work of Blawg Review’s intrepid editorial team, for whom Blawg Review must truly be a labor of love.

No production, whether theatrical or virtual, can be staged without the support of both audience and patrons. Bard and blogger alike depend upon it.

So, to all those in the blogosphere who lent their support to Blawg Review #43, I say:

Kevin Heller, Tech Law Advisor
Howard Bashman, How Appealing
Colin Samuels, Infamy or Praise
Bob Coffield, Health Care Law Blog
Kevin Thompson, Cyber Law Central
Inside Opinions: Legal Blogs
Dan Hull, What About Clients
Denise Howell, Bag and Baggage
Carolyn Elefant, MyShingle.com
David Giacalone, f/k/a
Michael Stevens, Kentucky Law Blog
Kenneth Gregg, Classical Liberalism
Robert Ambrogi, Law Sites
Evan Schaeffer’s Legal Underground

One of the functions that mediators serve is to assist people in making decisions. Our obligation is to ensure that people reach decisions that are fully informed and that as part of that process they have full opportunity to gather the data, the guidance, and the criteria necessary to make those decisions.

Making decisions of course is never easy, and some decisions are harder to make than others, no matter how much information there may be to guide us. Sometimes, in fact, you just need to sleep on it.

As it turns out, “just sleep on it” may be good advice, according to a study conducted by researchers from the University of Amsterdam Department of Psychology and reported today in Science, as well as by the BBC and the Boston Globe.

This study suggests that while a rational approach may work well with simple decisions–gathering all the facts and data and carefully weighing the pros and cons–more complex decisions are best left to the unconscious mind.

Since these research results remain controversial, you may want to play it safe when it comes to making your own decisions. To aid the indecisive, MindTools offers a variety of useful decision-making techniques.

For a less scientific approach, you can try using this Universal Decision Maker. Or, better yet, you can simply flip a coin.