What did we know and when did we know it? The mutability of facts

In 1770, in his historic defense of British soldiers accused of murdering five Bostonians, John Adams told the jury in his summation:

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence…

Facts may indeed be stubborn things, but they are also subject to the vicissitudes of time and nature’s forces. Our thinking about those facts, and their significance to us, is often refracted through the lenses of culture, cognition, and bias. As our understanding of our physical world alters; as records are broken or measurements exceeded; as times, laws, borders, and customs change; our encyclopedias and other reference books, along with our memories, demand constant updating.

In a thought-provoking essay in the New York Times Sunday Book Review, author Geoff Nicholson pondered “The Joy of (Outdated) Facts“, a meditation on the mutability of factual information and the changing nature of human knowledge. Nicholson observes,

[B]ooks of facts always display localized preferences, cultural values, sometimes straightforward prejudices. My “New American Cyclopaedia” (1872) tells me that in 1855 there were 25,858 people in New York who could neither read nor write, and 21,378 of them were Irish. This may well have been true, but why exactly did it need to be emphasized? Well, I think we might hazard a guess.

With hindsight, we can always see through the dubious “authority” of such historical sources. Few things look as unstable as the rock-solid certainties of previous ages. Since encyclopedias are supposed to be balanced and disinterested, the bias often seems even more naked…

Of course, ideas of what’s worth knowing, and even what’s interesting, are constantly changing: The fascination with trigonometrical formulas certainly seems to have receded. But in a world where ever fewer people care about, or even understand the nature of, fiction, where readers and viewers demand facts and reality, outdated books of supposedly impartial information can be a useful reminder of just how slippery facts are — as unreliable as the most unreliable narrator.

Also pondering the phenomenon of the mutability of factual knowledge is Mesofacts, a web site devoted to facts that change slowly over time – whether the population of the world or the number of new elements added to the Periodic Table since you graduated from high school.

To gain our notice, facts need human attention – to collect and record, to weigh or measure, to determine significance, meaning, or connection to other facts. They must enter the machinery of perception – where sometimes they transform themselves into something else entirely, not an objective reflection of what is but a mirroring of who we are.

In fact, I wonder what John Adams would have made of a Supreme Court decision like Scott v. Harris, a case that reveals the permeable boundary between the objective and the subjective. A police officer rammed the car of a fleeing suspect, who was seriously injured and subsequently filed suit alleging that the use of excessive force resulted in an unreasonable seizure under the Fourth Amendment. Significantly, a video camera captured the entire chase on film. In an 8-1 decision, according the video evidence great weight, the Supreme Court held in favor of the police officer, determining that the officer’s actions were reasonable, and that the officer was entitled to summary judgment. The lone dissenter, Justice Stevens, insisted that whatever conclusions were to be drawn from the video should be left to a jury to determine.

The video which recorded the entire car chase has become the subject of much debate, as well as the focus of a study by a group of legal scholars. Their results suggest that what we see when we view that video may be the product of cultural, ideological, and other forces. A lone Supreme Court dissenter, Justice Stevens,

“Just the facts, ma’am,” as Jack Webb’s character, police detective Joe Friday, used to say in the U.S. television series, Dragnet. But the facts may be culturally contingent, temporary, or long past their expiration date. In fact, some facts may not be facts at all – much like Joe Friday’s catchphrase, imbedded in our cultural memory but never in fact uttered.

Resources online and beyond for the aspiring mediator

Connecting to ADR resources onlineGreetings to regular readers, new visitors, and to the members of the Mediation Works Executive Mediation Training, with whom I have the pleasure of working this week. To stimulate your curiosity and to encourage further exploration, I’ve pulled together a list of essential resources for aspiring mediators:

Mediate.com is always at the top of my recommended resource list. This premiere ADR site offers

Recommended mediation reading. The following posts recommend books in print and online articles for the mediation library:

Top ADR blogs. I know of no better resource for staying current with the latest issues in dispute resolution and negotiation than my fellow bloggers, who make it their business to keep abreast of essential news and trends. I collected my own list of essential bloggers to follow. You’ll no doubt find some of your own at the World Directory of ADR Blogs at ADRblogs.com, a site which tracks and catalogs dispute resolution blogs from across the globe, and one of my ongoing web projects.

Online discussion.

Mind and cognition. How people reach judgments and make decisions is of great interest to mediators. For intellectually curious mediators and negotiators interested in staying on top of the results of the latest research, here is a list of the best social and brain science blogs.

Self-awareness tools. Remaining vigilant for cognitive errors can be a challenge but is essential for effective dispute resolution practice. The following tools can help keep minds open.

Negotiation sites, blogs, and podcasts. A list of value-creating resources.

Mediation marketing. I only recommend one site: Dr. Tammy Lenski’s “Making Mediation Your Day Job“. Accept no substitutes. Tammy is the real deal, a successful professional mediator and author with an international reputation and the respect of mediators around the world.

Readers, if you have other suggestions, by all means please feel free to add them in the comment section below.

Mediation and law, strange bedfellows: time for us to start seeing other people?

In his recent Mediate.com essay, “Killing Mediation: The Specialized, Professionalized And Neutralized Mediator”, ADR personality Robert Benjamin pronounced mediation dead, naming the usual suspects responsible. (For those who enjoy a good whodunit, you may wish to read how Jeff Thompson, who plays a detective in real life in his work with the NYC Police Department, conducts his own investigation of Benjamin’s allegations.)

As the title of his article suggests, Benjamin is known for iconoclasm, a dramatic flair and a determined willingness to declare the emperor naked (or, in this case, deceased).

If you wash away the fake gore and other Hollywood special effects, Benjamin’s essay contains words of caution to be heeded. He invokes the great promise that mediation offers to consider and address a dispute across many dimensions, in all its astonishing complexity, through a participatory process in which “clients remain directly involved, not merely the objects of professional expertise and treatment”, and in which many issues and needs – legal, financial, interpersonal, emotional, psychological, and more – can be addressed. Benjamin warns that this promise may be compromised in the rush to specialization, citing the rise of “legal mediation” as but one example:

As mediators increasingly specialize in particular dispute contexts or limit themselves to particular practice approaches they close off the systemic focus that is the hallmark of mediation. Those who practice “legal mediation” in the business or legal context tend to use strategies and techniques that are more familiar to traditional case settlement conferences where the focus is solely on the legal solution. That narrow view is not wrong or bad, per se; in some circumstances it may be necessary. However, to have that approach become a matter of habit—or a rut—conditioned by the context in which the dispute is presented often precludes the use of other more creative strategies and techniques…

“Legal mediation” is distinguished from other kinds of mediation, suggesting that those outside law could not understand the nature of conflicts that arise in the legal context and that conflicts that occur in the shadow of the court actions are predominantly legal.

How narrowly we perceive the range of mediatable disputes. Too often mediation is framed as an only an alternative to trial, a dispute resolution mechanism within the machinery of the court, a last-ditch effort to settle a case.

That framework limits our ability to see the full range of possibilities and applications for our work. It’s like looking at the entire world of disputes through the cardboard tube left over after the toilet paper’s been used up. Suddenly your viewpoint has shrunk to a 1.5-inch circle.

There would be more opportunities for mediators if more of us recognized – and helped the public understand – that not every dispute arises in law or offers legal redress. Many disputes that lend themselves well to mediation lie beyond the reach of the shadow of the courthouse.

Perhaps it’s time to pause here, for a moment, and recall the expansive opportunities that mediation holds for those who are mired in dispute and who yearn or struggle to break free. Remember, too, that mediation can be used long before disputes arise, preventatively or diagnostically, to guide planning, negotiations, or dialogue.

Let’s set down the cardboard tube and take an unimpeded look at what’s possible, expanding our vision along with the proverbial pie.

The sound of silence: listening between the lines

The sound of silenceSome cases you remember vividly; the impressions they leave are lasting.

The plaintiff, seated with my co-mediator and me, had just heard us convey the defendant’s final proposal. The plaintiff said, “I need a moment.” I asked if they (and I hope you will excuse me for using the pronoun “they” in the ungrammatical singular) wished to take a break to think about the offer. They declined and said, “No, let me sit here with you. But give me a moment to think.”

The plaintiff sat not for a moment but over the course of many moments – in silence for 20 full minutes. My co-mediator and I sat, looking at each other from time to time, witness to this inner struggle. So deep was the plaintiff’s concentration, so palpably serious, that we both felt humbled in its presence. Their focused concentration, and the accompanying silence, became a fourth person in that room. My watch ticked off the minutes. Into that silence of thinking and weighing, other, minute noises intruded. Around us, the building’s heating and ventilation system produced bursts of noise; my co-mediator’s stomach growled insistently; outside once we heard a siren wail. I could hear my breath, in and out, as we sat our patient vigil.

I knew that they’d reached a decision when suddenly I heard them exhale. “Yes,” they said, and the silence ended, as they thanked us for giving them the space to think.

Bearing witness to silent concentration was a profound experience. Later we discussed it, my co-mediator and I. The impulse to break that silence was strong at first. But as the silence lengthened, waiting became easier. Apart from sounds, too, there were other things to attend to. Their face, for example, spoke volumes about the progress of the struggle within, shadowed first by doubt and then growing lighter with certainty. Even in total silence, there is something to hear.

What reminded me of that long-ago case? I happened to hear an interview on NPR with acoustic ecologist Gordon Hempton, a man on a quest to record the sounds of natural environments and to protect land from the intrusion of human noise. Watch the video on the page I’ve linked to; whether the cry of swiftly flying birds or the steady melt of snow as winter recedes, it’s astonishing how much sound our natural landscapes contain when the din of human activity falls silent. Listen closely to what remains.

The 40-hour mediation training: a good argument for regulating the private practice of mediation

Regular readers know that for some time now I have not supported the movement favoring formal licensing or credentialing for mediators in private practice. I have remained unpersuaded by most of the arguments that favor it and am concerned about the difficulties in design and implementation and the impact on multijurisdictional work. (If you’re interested, I’ve collected the arguments on both sides, pro and con.)

That is, until now. A number of incidents over the past several months have made me increasingly sympathetic to the concerns voiced by advocates of regulation, who see regulation as a way for the mediation field to safeguard quality, limit practice to the qualified, and reclaim control over determining who gets to call themselves a mediator.

Briefly summarized, here are some recent events that changed my mind:

Example 1

My colleague, Jeff Thompson, alerted me to new rules adopted by the Nevada Supreme Court for court-connected foreclosure mediation which establish minimum standards for mediator qualifications (PDF) and that unwittingly perpetuate the myth that lawyers are automatically qualified to mediate by virtue of their bar cards. To mediate foreclosure disputes in Nevada, a mediator must:

(1) Be authorized to practice law in the State of Nevada; or

(2) Be an experienced mediator (defined as “an individual who has participated in a mediation training program consisting of at least 40 hours of classroom and role playing and has conducted 10 mediations as a co-mediator or sole mediator”).

These minimal requirements can be waived “for good cause”.

It’s worth noting that various groups and public officials were cc’d on the order, including the Nevada Bankers Association, the Clark County Bar Association, the Nevada Land Title Association, but not, however, a single mediators’ association.

Example 2

An individual teaching a course in mediation at a university contacted me to ask about mediation training. This instructor wanted to know whether I thought taking a basic mediation training might be a good way for them to “get certified as a mediator”. Apart from a few classes on ADR in law school, this person had received no training in mediation and had no professional experience mediating. The department head who hired this individual thought that the law school degree was sufficient qualification. This is not the first time by any means that a university-level instructor has contacted me with a query like this.

Example 3

Recognizing that there’s money to be made from the growing popularity of mediation, an organization not in the business of providing ADR services offers a minimal mediation training led by someone who is not a practicing mediator. So popular are these “trainings” that they fill up quickly. Evidently unaware that a handful of hours of mediocre mediation training is not enough to qualify someone to mediate professionally, several recent “graduates” of this program have launched mediation practices.

* * * * * * * * *

If you’re a mediator, you should be worried. If you’re a member of the public that currently uses mediation services or may use such services one day, you should be worried, too. If you’re a student enrolled in a mediation course at the undergraduate or graduate level who hasn’t checked the qualifications of your instructor, or someone who took a mediation training without doing some due diligence, you should be worried as well. And whether you think these examples suggest that it’s time to move toward better regulation of the profession, or whether you disagree, I think there’s one point reasonable people can agree on:

The mediation field has got to do a far, far better job than it is doing right now to police itself, and to take a principled stand against practices that diminish our professional integrity and worth.

40 hours of mediation training do not automatically make you a professional mediator – or a mediation trainer or teacher.

Neither does possession of a bar card, law degree, or judicial gown.

This should be obvious to all, but it’s not. And so I am no longer confident that in the absence of regulation that we can succeed in countering myths and promoting best practices. I think it’s time at last to get serious about credentialing.


Finger-licking good health care reform or indigestion? Bartering chickens for doctor visits

From the “You just can’t make this stuff up” file…

Bartering has grown increasingly popular among those seeking other ways to do business when cash is short. Bartering, of course, may not be the ideal fit for every transaction, as Republican Senate candidate Sue Lowden recently learned the hard way when she took heat for her proposal to remedy America’s health care woes and drive costs down: encourage patients to barter poultry for medical treatment.

As Steve Benen, Washington Monthly, reported:

“I’m telling you that this works,” the Republican candidate explained. “You know, before we all started having health care, in the olden days, our grandparents, they would bring a chicken to the doctor. They would say, ‘I’ll paint your house.’ I mean, that’s the old days of what people would do to get health care with your doctors. Doctors are very sympathetic people. I’m not backing down from that system.”

Some enterprising wag has helpfully created a handy online calculator that enables physicians and patients to determine the proper chicken exchange rate for common medical procedures.

Triumph of the commons: a new role for attorneys in "sharing law"

The 21st century has wrought big change in the way communities constitute themselves. Digital technology has produced web sites and tools that enable people to transact business, form coalitions, find jobs, effect political change, connect with resources, and disseminate knowledge, news, and inventions, all from a cell phone or laptop.

The economic challenges of the last several years have also pushed people to rethink the nature of their commercial transactions, seeking new ways to do business and make economies flourish, while concerns about the environment have spurred the development of initiatives and technologies to recycle, share, and conserve resources.

Covering the story of this brave new world, where people strive together to work, run businesses, raise families, and improve neighborhoods is Shareable, a nonprofit online magazine dedicated to spreading the word about the triumph (not the tragedy) of the commons.

What place for lawyers in these creative economies? According to Shareable, in the “Birth of Sharing Law”, innovative, forward-thinking lawyers will be busy:

Contrary to what we see on lawyer TV shows, around half of lawyers primarily work as transactional lawyers, not courtroom litigators. Transactional lawyers advise on, negotiate, and structure the contracts that govern business deals, real estate transfers, loans, mergers, securities, insurance, and so on.

The evolving nature of our transactions has created the need for a new area of law practice. We are entering an age of innovative transactions, collaborative transactions, crowd transactions, micro-transactions, sharing transactions – transactions that the legal field hasn’t caught up with, like: Bartering. Sharing. Cooperatives. Buying clubs. Community currencies. Time banks. Microlending. Crowdsourcing. Crowdfunding. Open source. Community supported agriculture. Fair trade. Consensus decision-making. Cohousing. Intentional Communities. Community Gardens. Copyleft.

To read more about Shareable‘s vision for “community transactional law”, and the ways in which the role of lawyer, the meaning of “client”, and the focus of legal education may be altered, click here. The next new frontier in collaborative law may be about to open.

Buying the cow: mediators, money, and value

During the many years now I’ve been in the mediation field I like to think I’ve given of my time generously on behalf of our profession.

I’ve devoted countless unpaid hours to serving on numerous boards and committees to advance the ADR field; organizing numerous conferences and workshops for mediators; volunteering in community mediation programs mediating and mentoring new mediators; answering numerous phone calls and emails from people hoping to become mediators; providing tech support to colleagues struggling with ethical dilemmas; helping other ADR professionals master social media like Twitter; supporting fellow ADR bloggers through my ADRblogs.com project and other endeavors; and sharing what I know through this site, responding to every person who contacts me, including numerous requests over the years from mediators and mediation programs throughout the world seeking help locating resources, people, or information.

My digital door is always open.

But ultimately I’m a business owner and a professional, and there are things I don’t give away for free. Once, a mediator, just starting off, contacted me to ask me to meet them and their business partner on a regular basis to help them set up their business and web site. When I quoted my fee, I got an angry email in response, wondering how I had the nerve to ask to get paid for something they thought I should give them for nothing. This left me scratching my head, wondering why they didn’t respect or value my time as a professional.

I similarly upset some mediators in an advanced mediation training that I taught recently. The organization I was teaching for had provided a comprehensive training manual packed full of many practice forms for the participants to use later. As I was teaching one module, I mentioned that what I’d done in my own practice for this kind of case was to develop a handbook for my clients to assist them in preparing to mediate, suggesting to the participants that they should do the same. One participant raised a hand to ask if I would make my handbook available to them. I told them no, it was proprietary to me and my business, but that they should by all means create materials of their own that would serve them and their clients. I also reminded them that the organization providing the training had generously included in the training manual plenty of client forms for them to use and adapt.

My “no” evidently put some people off. Two participants complained about my refusal to share materials I’d created for my own business. One wondered why I was even there if I didn’t want to share my stuff.

This left me puzzled and a little sad as well.  I was in fact very willing to share – everything I know, the experiences I’ve had, the lessons I’ve learned, it was all available to them, unstintingly. I just declined to share my intellectual property – the content I’d created and customized to use in my business – the work product to distinguish me from the rest of the herd.

Unfortunately they heard only the “no”, and not the rest of my message: As a professional be willing to create your own stuff. Construct your own tools, the better to fit your hand.

Perhaps this view is just a consequence of living in the digital age, when we have come to expect content to be free and where the lines between original content and borrowed material have grown blurred. Surely no one could think that my appearance at the training program constituted a relinquishment of my rights in my own content or the keys to my office door.

But there’s another reason, an issue that haunts our profession. Almost four years ago I sent a message to ADR professionals: “Don’t sell yourself short: why fair compensation should matter to mediators.”

This post urged mediators to value themselves and each other more highly; too often we give both the milk and the entire cow away for free. In our negotiation with the larger world, we ourselves must start placing greater value on our work. To do otherwise diminishes our worth.

To be sure, ours is a profession devoted to helping others. It rests on certain important principles: value creation not value claiming; the notion of the ever-expanding pie; creative allocation of resources; and of course collaboration, teamwork, and sharing. These are noble principles to be sure, embodying the highest aspirations of our field.

This is perhaps why some of us are uncomfortable with professional self-regard. It seems to contradict these cherished ideals.

But just because we place a premium on collaboration does not mean that we must refrain from placing a premium on our services or the content we create as business owners.  As usual, the toughest negotiation is always with ourselves.

Got a tune stuck in my head: on Youtube, a cognitive bias song

As a study aid for his students who were preparing for their AP Psychology exam, Arundel (Maryland) High School teacher Bradley Wray recorded and uploaded to Youtube a song about cognitive biases. (Is he the world’s coolest teacher or what?)

You can sing along here:

With a big tip of the hat to the Bias and Belief blog.

Mediation certification, part 2: the conversation continues at Cafe Mediate

Each month at Cafe Mediate, the monthly podcast series, a group of ADR professionals gathers to discuss the business, practice, and future of the field.

Last month we began a two-part discussion of certification and credentialing for mediators in private practice. Professional mediator  and author Tammy Lenski, international business mediator Amanda Bucklow, commercial mediator Victoria Pynchon, conflict specialist and NYC law enforcement detective Jeff Thompson and I continue the conversation on mediator certification, exploring these and other questions:

  • Should certification be benchmarked to the lowest common denominator of qualifications, to a high standard that is difficult to achieve, or somewhere in between?
  • What value would certification offer the public, and how would it benefit individual mediators as well as the growth of mediation as a profession?
  • How do we know certification would improve the quality of mediation services for consumers?
  • In what ways might certification have a negative impact on mediators and growth as a profession?

You can download or listen to Mediator Certification: An Idea Whose Time Has Come? (Part 2).

To enjoy this and earlier episodes of Cafe Mediate (motto: “where conversation, not caffeine, is the stimulant”), you can:

We welcome your suggestions. If you have a question you’d like us to consider or a topic you’d like to hear us address, please submit your ideas in the comment section to this post.