Are you a cognitive miser? Test yourself to find out

I’ve been active on social networking site Twitter for about a year now. It’s proven to be a good resource for useful links.  Last week one of the folks I follow, workshop facilitator Joe Gerstandt, pointed his readers to an article that appeared last November in the Globe and Mail, “Why smart people do dumb things“.

It’s an article on dysrationalia – how hard it is for us to think rationally, despite the intelligence we possess. Dysrationalia leads us to take shortcuts in solving problems, going for what seems the easy or obvious answer instead of working harder to identify the correct one.

This article poses some puzzles for readers to solve, including this one:

Bob is in a bar, looking at Susan. But she is looking at Pablo. Bob is married. Pablo is not.

Is a married person looking at an unmarried person? The answer could be (a) yes, (b) no or (c) cannot be determined.

The correct answer might surprise you. Click here to test yourself on this and the other brain teasers the article challenges readers to match their wits against.

Photo credit: Artem Chernyshevych.

Diversity, bias, gender, and race in ADR: a hard fight to level the playing field

Blind justiceAs I was getting ready for the start of the mediation training I was teaching, one of the participants, just arrived, approached me to tell me to get him a cup of coffee. Despite my power suit and the flip chart markers in my hand, he had mistaken the lead trainer for a member of the support staff.

If you think that this is an isolated incident in the life of an ADR professional who happens to be a woman, think again. Challenge yourself by reading commercial mediator Victoria Pynchon’s gutsy series on gender, race, and diversity in the ADR profession:

Negotiating Prejudice at U.C. San Diego

Negotiating Gender: Why So Few Women Neutrals?

Update on Gender Diversity in the Judiciary and in ADR

Then do as Vickie suggests and take the awareness-raising tests at Project Implicit, an ongoing research project inquiring into the implicit biases that affect our judgment. What associations do you draw about identity, capability, and role?

Fallacious Argument of the Month: the fallacy of the fallacy of the ad hominem

In my ongoing one-woman effort to contribute to the improvement of public discourse, each month I discuss an example of a Fallacious Argument. In December I chose a particular favorite of mine, the ad hominem.

This month I revisit it. Why? Because accusing someone of committing a fallacy of the argumentum ad hominem can itself be a fallacy. Let us consider it.

As the saying goes, there’s an app for everything. Some enterprising soul, capitalizing on the American fondness for the gratuitous insult, has created the political insult generator app, one for conservatives and one for progressives.

Thanks to these digital innovations, iphone and ipod Touch owners need no longer be at a loss for words in any political debate. Confident that a witty retort is always handy, they can hurl at their opponents ready-made epithets such as “crunchy business-bashing libtards” or “puritanical Bible-banging bullies”. It’s all in har-har good fun.

It’s harder to laugh though when a visit to any online forum or the letters page of your daily paper shows how ready to hand the insult is, like a rock to be hurled. But who’s surprised? Marshaling evidence to demonstrate the flaws in an opponent’s reasoning takes hard mental work. It’s much more fun and requires less effort to simply heap verbal abuse upon your adversary to attack their patriotism, ancestry, food preferences, or taste in ties.

There are of course ways to respond to such tactics. Often, however, in response to the jeering, people mistakenly accuse their opponents of engaging in ad hominem attacks. This is the fallacy of the fallacy of the argumentum ad hominem.

In a true argumentum ad hominem, an individual uses an attack on the speaker to undermine the speaker’s argument. Declaring your opponent a “Nazi”, “socialist”, or other insult du jour doesn’t cut it. It may be childish, uncalled for, and do nothing to further discussion, but it is not an ad hominem. Sorry.

If you’re confused about the difference, one writer, Stephen Bond, offers guidance, parsing numerous examples of correct and incorrect uses of ad hominems (warning: some language not safe for kids). Here’s one :

A: “All politicians are liars, and you’re just another politician. Therefore, you’re a liar and your arguments are not to be trusted.”
B: “Yet another ad hominem argument.”

If you accept the premises, A’s argument is sound; but I think most of us would sympathise with B and class it as fallacious, and ad hominem. This is because we do not accept the premise that all politicians are liars. There is a false premise that lies behind all ad hominem arguments: the notion that all people of type X make bad arguments. A has just made this premise explicit.

When debaters throw mud, everyone gets splattered. Too bad that a good clean fight has never been in fashion.

Cafe Mediate, mediation podcast series, looks at what it takes to train, educate a mediator

In the third episode of ADR podcast series Cafe Mediate, I serve as host while professional mediator  and author Tammy Lenski, international business mediator Amanda Bucklow, New York City detective and conflict resolution professional Jeff Thompson, and commercial mediator Victoria Pynchon debate the question, “What kind of preparation is involved in becoming a mediator?

You can pour yourself a cup or glass of your favorite beverage, pull up a chair, and enjoy the conversation in any of three ways:

Each month Cafe Mediate (motto: “where conversation, not caffeine, is the stimulant”)  features conversation among ADR practitioners about topics relevant to the business, practice, and future of our field.

Coming up next time: a two-part discussion on mediator certification that is sure to produce sparks. Caution: avoid wearing flammable material while listening to that one.

Thanks so much to my wise, talented colleagues for another outstanding discussion about the issues that matter.

The devil you know: the dispute resolution professional in popular culture

Lawyers are frequent targets for humor, the butt of countless stale jokes. With the exception perhaps of  “Wedding Crashers“, conflict resolution professionals so far have been spared the ribbing that comedians, cartoonists, and screenwriters so often heap on our brothers and sisters at the bar.

That may be changing. My colleague, ombuds and blogger Tom Kosakowski, alerted his readers that Scott Adams, creator of Dilbert, the popular comic strip that lampoons the workplace, has set his sights on an unsuspecting target: the corporate ombuds. In this week’s installment, Dilbert’s boss has hired an ombudsman, a pitch-fork-wielding demon who accepts souls in exchange for conferring favored treatment.

Although lawyers have been linked to devils before (as numerous jokes and at least one Hollywood film can attest), this is a first for the ombuds.

Is this a sign of the impending apocalypse? Hardly. As one anonymous commenter on Tom’s site observed, “Just getting the word ombudsman in cartoons raises awareness of our profession.” Or, as Oscar Wilde once put it, “The only thing worse than being talked about is not being talked about.”

Blog responsibly: a public service reminder for dispute resolution bloggers

I’ve been blogging about dispute resolution for over 5 years now. When I first launched my blog, you could count ADR blogs in single digits. You can still find these early adopters online – folks like my predecessors, blogging role models Bill Warters, Colin Rule, and Tammy Lenski – who continue to produce worthwhile content.

Slowly at first, then more steadily, our numbers grew. I soon began tracking them, eventually launching, which catalogs blogs from around the globe, organizing them by country and by topic. I’ve been serving as the unofficial taxonomist of the dispute resolution blogosphere since June 2006. today lists over 230 blogs from 31 countries, all discussing conflict resolution, negotiation, or various forms of ADR.

During 5 years of blogging and almost 4 years of tracking blogs, I’ve seen ADR bloggers come and go. Some, like Geoff Sharp’s iconoclastic Mediator Blah…Blah…, which flared and burned brightly for far too short a time, I miss a great deal. I’ve gotten pretty good at predicting which ones will have staying power, and which ones will quietly (and deservedly) fade into obscurity.

Which do you want your blog to be? If the former, it’s pretty simple. There are really only three things you need to remember:

  1. Create good content.
  2. Be social.
  3. Don’t plagiarize.

I will amplify on each briefly:

1. Create good content.

Write about what you love and know well. Share information useful to your audience. Make your readers think, change their minds, or even laugh. Don’t just copy and paste content or news you found elsewhere; tell your readers what you think about it. Be of help.

2. Be social.

I’ve said this before: ADR is fundamentally about conversation. So is blogging. If you, an ADR professional who blogs, aren’t going to link to other blogs and participate in the conversation online, why are you blogging? My old friend Geoff Sharp in an email to me once called it “the paradox of blogging” – you confidently send readers away to other sites to encourage them to return. If you want your blog to sink below the surface of search engine results, then don’t link. It’s that simple. By the way, linking is just one way to converse – remember to comment on other blogs. Contribute to the discussion.

3. Don’t plagiarize.

I shouldn’t even have to say this, but unfortunately some folks are still not getting the message. If you use another blogger’s content as a source or inspiration for your writing, give them credit by a) naming the blogger; b) identifying their blog; and c) linking back to their post. Do not pass off someone else’s content or ideas as your own. The best ADR bloggers I know care about their writing, putting time, thought, energy, and, yes, heart into their posts. For me personally, blogging is an expression of my identity as lawyer, mediator, and writer; it is my own voice speaking out of these ones and zeros. Use your own voice, please, when you blog, not someone else’s. (While ADR bloggers are generally nice folks, some of us won’t hesitate to use our BATNA: filing a Digital Millennium Copyright Act infringement notification.)

Looking for role models? The following are but a few examples of bloggers who make the ADR blogosphere a great neighborhood to hang out in, consistently honoring these principles:

By the way, in the spirit of neighborliness, allow me to extend a very warm welcome to these promising new additions to

Zero sum game show: celebrities decide who’s right or wrong in The Marriage Ref

Billy Collins, a former two-term Poet Laureate of the U.S., penned these lines on the end of marriage:

Once, two spoons in bed
now tined forks

across a granite table
and the knives they have hired

Alas for many divorcing couples, sharp metal objects make an apt metaphor.

It’s also an image in keeping with the popular depiction of marital discord, which often frames it as all-out take-no-prisoners combat between two feuding camps.

Now, stepping into the marital fray is comedian Jerry Seinfeld, who will be hosting “The Marriage Ref“, a game/reality TV show in which bickering couples will submit their disputes to nonbinding arbitration before celebrity guests who will “comment, judge and decide who’s right and who’s wrong in real-life disputes between real-life spouses.”

Of course if you’d rather resolve your dispute anonymously, try the web site Sidetaker (“Let The World Decide Who’s At Fault”) and let the hive be the judge.

Listening in at the mediation table: books that teach readers how to talk like a mediator

Ready to trade up from the role play simulations they participated in during their basic mediation training, new mediators look forward to the chance to observe actual mediations, where they can watch experienced professionals mediating real-world disputes. However, as dispute resolution expert and ADR blogger Tammy Lenski recently reminded her readers, finding such opportunities isn’t easy.

Always a collaborative spirit, Tammy was kind enough to share as a download on her site a text that she uses herself in teaching new mediators, What the Fly Heard: What Mediators Say Behind Closed Doors. Written by mediator, facilitator and conflict coach Sandi Adams, MSCM, this book provides the next best thing to observing a real mediation: it pulls up a seat at the mediation table and invites readers to listen in.

Tammy’s post reminds me of two other texts that also allow readers to be the proverbial fly on the wall of the mediation room. What follows is a closer look at all three of these texts – What the Fly Heard – and two more.

What the Fly Heard: What Mediators Say Behind Closed Doors, by Sandi Adams, MSCM, is the text that I wish I had in my hands during my own basic mediation training. Adams writes with authority and sincere encouragement, as she walks readers through the mediation process, offering numerous examples of suggested language along the way. One of the biggest challenges for new mediators is how to reframe intractable problems into issues that can be solved, a technique that invites disputants to see their conflict in fresh ways conducive to problem solving. Adams is ready with examples of difficult disputes, including one involving neighbors and another an Americans with Disabilities Act grievance, with suggestions about how to frame the issues that each present. As a bonus, she also includes information on the difficult issues of impartiality and confidentiality, and recommends resources for mediators committed to professional development.

Together with recommended “do’s”, Adams also warns about potential traps for unwary flies, including statements that can inflame or entrench. The sections titled “Flies in the Ointment – Sticky Comments to Avoid” and “You Could Get Burnt – Don’t Fly Near These”, give examples of statements mediators should avoid. It might have been even more helpful if Adams had suggested alternatives here that would be more appropriate mediator choices. However, Adams, a conscientious professional, makes clear that her book is not a teach-yourself text, with an important reminder for readers that

… this collection is not meant to replace training in any way. It is provided, in fact, as a follow-up to training and as a supplement to a training manual. The examples are to provide modeling only. Training, manuals, and supervised experience are needed to understand the reasons behind certain language and statements, when they might be appropriate and useful, and how to decide when and if mediator intervention is needed at all.

This book, now out of print but fortunately still available as an affordable (and ecologically friendly) PDF download on Tammy’s site, serves as a clearly written, concise orientation to the basics of mediation practice, making it an indispensable teaching tool for new mediators. Like a travel guide for international tourists, What the Fly Heard covers the essentials, and suggests useful phrases for each stage in mediation across a variety of settings, making it an accessible resource for the beginning mediator trying to gain fluency in what can seem like a foreign language. In addition, its realistic examples, many drawn from neighborhood, landlord-tenant, family, and small claims disputes, make this a most welcome addition to the training library of community mediation programs and a dependable text for those who supervise and train new mediators.

While What the Fly Heard is a concise, user-friendly traveler’s guide,  Challenging Conflict: Mediation Through Understanding, by Gary Friedman and Jack Himmelstein of the Center for Mediation in Law, is a mediator’s playbook, with detailed descriptions – and, amazingly, transcripts – of each stage of the mediation process, from contracting to agreement. This book presents the “understanding-based approach of mediation”, a model of practice which controversially rejects the use of the caucus.  It seeks to help parties understand their own interests and other perspectives more completely through direct dialogue, and stresses the importance of parties in conflict working together to make decisions and address the issues they face. It recognizes their joint responsibility for determining whether and how the dispute will be resolved, supporting parties in crafting solutions that are the product of fully informed deliberation. This model of mediation presents a radical departure from the mediation that lawyers and jurists are most familiar with, and will prove challenging, as the authors caution, to the disputants and to the many lawyers who are used to mediation as a kind of non-binding arbitration.

Across 10 case studies that involve a wide  variety of disputes  – from the San Francisco Symphony to a family-run ranch in South America – the authors walk the reader through the stages of mediation. Through the transcripts of dialogue that Friedman and Himmelstein provide, we hear the voices of parties and listen as the mediators, with patience, gentle persistence, and an abiding respect, help parties face emotionally charged conflict to find a sane, humane way out of the wilderness of their dispute. Friedman and Himmelstein illuminate their approach to the mediator’s stock in trade, active listening – a technique they call “the loop of understanding”, and throughout the book demonstrate it repeatedly and masterfully, using it to propel parties and discussions forward. How they handle strong emotion in the mediation room may come as a shock to mediators used to caucusing; Friedman and Himmelstein never seek to contain or cut off emotional expression; instead they see it as an opportunity to take the dispute to a deeper level, locating and untangling its roots.  One addition would make this book an even better resource than it is: an index, so that finding information is easier for readers who return to the book to revisit techniques or concepts.

One caveat: published jointly by the American Bar Association and Harvard Law School, this book is about mediating sophisticated cases involving legal issues and lawyers. The authors strive to “make the law people size”, ensuring that the law doesn’t eclipse other issues, and enabling parties to use the law to inform not control their choices. Nonetheless, discussion of the law plays an integral part in this model of practice. Mediators uncomfortable about discussions about law and legal risk analysis may find the emphasis on the importance of having the “legal conversation” off-putting.  The authors prefer to have that conversation first, ahead of discussion of other issues – although in one case the reader listens in as parties refuse, pushing the authors to reluctantly postpone the discussion of legal issues until later.

If such emphasis leaves you uneasy, be assured that Challenging Conflict is more than a text on mediating legal disputes. And whether you agree with the authors’ approach to the caucus or not, their emphasis on the human dimension to conflict makes this a book worth reading. The numerous transcripts throughout the book demonstrate the complexity and nuance of conflict and the artistry of the mediator’s craft.

Although the case studies involve disputes over complex interpersonal and business issues, potentially intimidating for beginners, this is still a book with something to offer mediators at all skill levels, from the new mediator to the experienced trainer looking for resources for his or her students. The transcripts throughout allow readers to listen in to not just phrases or snatches of conversation, but to entire conversations between mediator and parties, so that readers hear how the mediator responds to what is unfolding in the moment, which gives a realistic sense of the ebb and flow of dialogue at the table. They offer numerous examples of “mediator speak” as the authors demonstrate their skills in helping people find solutions to the seemingly intractable problems they face.  These detailed transcripts serve as the next best thing to being a fly on the wall in a real mediation.

A third book also invites readers to sit at the table: J. Anderson Little’s Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes. What makes this book unique is its focus on the dynamics of traditional bargaining in issues over money in litigated cases, but with a twist: providing the reader with advice on mediating such disputes in a facilitative not evaluative way. Transcripts throughout the book give real-world examples of the negotiation roadblocks that await and how a facilitative mediator can subtly but surely generate movement and overcome impasse when talks seem stalled out.

This book serves as rebuttal to anyone who thinks that money disputes in civil litigation are best resolved through evaluative mediation – with its heavy reliance on caucusing, dominance by lawyers, lack of direct discussion between parties, and narrow focus on legal issues, which ADR scholar James Alfini once complained “sacrifices effective justice for efficient deal brokering“. Little proves that a facilitative approach can work with money disputes, explaining his own personal philosophy about mediation practice, which is reflected throughout this book:

Before we mediators strive for settlement; before we strive for solutions; before we strive for empowerment, recognition, or transformation; before any of these, we would be well served to strive first for understanding.

Amen, brother. Recognizing that sometimes people will resist integrative approaches to bargaining, Little offers insights into the rhythms of distributive negotiation, decoding for mediators the messages embedded in proposals, rejections, and counterproposals, with recommendations on how to facilitate party movement in a range of common bargaining situations. Using numerous examples, Little explains how familiar mediator tools, such as questioning, reframing, brainstorming, and observations can be put to good use. If you’ve ever wondered what to do when one party says, “I’m not going to bid against myself”, struggled with the question of “Who goes first?” in making an offer, or felt stymied when a disputant protests, “Do they think I’m stupid?”, this is the book for you.

Little won me over immediately with his express rejection of any mediation orthodoxy that anoints a one-size-fits-all approach or declares there to be but one Right Way to mediate – something which critics of Challenging Conflict will no doubt find refreshing. Instead, he assures readers that “the thesis implicit in these pages is that there is no single model of the mediation process that is useful in all types of cases”. Little’s approach emphasizes flexibility and an attuned sensitivity to parties’ states of mind.

Little writes to empower two audiences: mediators with experience in civil litigation but who feel that they are mere “messengers” doing little more than helping parties “swap proposal after proposal” but who strive to be more to their clients; and mediators whose work focuses on the “preservation and enhancement of relationships” rather than the litigated case. For the former, he declares his goal to be “to help them better understand the dynamics of money negotiations,…to build a model of the mediation process that will serve as a road map when traditional bargaining is unavoidable, and to describe how they can assist the parties with traditional bargaining in a facilitative, rather than a directive, way.” For the latter, Little understands that even in family matters “there will be negotiations about money that resist the mediator’s best effort to reframe them into problem-solving discussions.” For these mediators, Little modestly expresses his hope that they “will find in this volume a nugget or two to serve as a supplement to other approaches that are more appropriate for mediations conducted in family or workplace settings.” Indeed they will.

Although this is not a book for new mediators, I recommend this book (and also Challenging Conflict for the same reason) to participants in the basic trainings I teach, particularly those who have experienced only evaluative mediation conducted primarily through caucusing and who doubt that a facilitative approach could work “in their world”.

Mediation Channel Classics: golden oldies for February

Each month I highlight posts from that month in prior years, choosing ones that drew readers (or just happen to be my favorites).

Here’s my selection for February:

February 2009

February 2008

February 2007

February 2005

Change blindness: testing our powers of observation

change blindnessIt’s happened at some point to anyone who drives a motor vehicle. You inch slowly into the intersection, cautiously looking in all directions to make sure that the right of way is clear. Convinced that you can now safely make your turn, you pull forward. Suddenly, out of nowhere, its horn blaring, appears a car, swerving to avoid you. In a panic, your heart pounding loudly in your ears, you slam on your brakes, wondering how in the world you could have missed that car.

The subject of numerous studies, including research done by the Visual Cognition Lab of the University of Illinois, change blindness is the failure to detect large changes in what is literally right in front of our eyes.

Paying attention is important, not just for drivers. Daily life demands our attention, otherwise we may inadvertently overlook the important.

So, how observant are you? Test yourself with this video, created as part of a motor vehicle safety awareness campaign for the City of London:

More change blindness links on Mediation Channel here:

Hat tip to @SmilingMind.