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Worth Considering
Death tugs at my ear and says: "Live, I am coming."
Oliver Wendell Holmes, Sr. |
Feeling slighted, miffed, or offended can influence how a person responds much more than being the recipient of perceived generosity, even if the net value of the social transaction is the same, the research on reciprocity—giving and taking—shows.
“Negative reciprocity, or taking, escalates,” said Boaz Keysar, Professor of Psychology at the University of Chicago and lead author of the paper “Reciprocity is Not Give and Take: Asymmetric Reciprocity to Positive and Negative Acts,” published in the Psychological Science. The study was based on giving-and-taking games conducted on students and people in downtown Chicago.
The games provided data on how people respond to give-and-take social exchanges.
In one experiment, subjects were divided into two groups and asked to conduct experiments that began in two different ways using money. In the first group, one player learned that another player had $100 and was going to share it. In each situation, the player with the money gave the other player $50. When the roles were reversed, the players who received the $50 received $100 which they could share with the other players. In that exchange, those players gave their partners on average $49.50.
On the other hand, In a companion experiment, the researchers found when they changed the act to taking instead of giving, that the act of taking had a far bigger impact on people’s responses than did the act of sharing. Just as in the first experiment, when the roles were reversed, the first players took back much more, leaving the partners with an average of $42.
Further, as each round continued, each person “taking” became increasingly greedy over repeated exchanges.
The study, which was supported by the National Science Foundation, the National Institute for Mental Health, and the Templeton Foundation, shows various social exchanges differ from those in the marketplace, where goods are bought and sold, Keysar said. “Acts of giving are perceived as more generous in social exchanges than objectively identical acts of taking,” Keysar said. “Taking tends to escalate.”
Applying the Research
Most studies involve positive reciprocity – the giving of gifts in anticipation of coercing positive action from the other person. However, this study demonstrated that negative reciprocity can often be more powerful a motivating factor than positive reciprocity. This directly applies to the litigation negotiation context. Often in litigation, one party feels slighted. Take for example, when an offer is made that is a “highball offer” or “lowball offer,” the other side tends to reciprocate with their own version of an offensive offer. This research demonstrates that unless the cycle is broken, the conflict of negative reciprocity will continue to escalate.
Moreover, people are often also slighted by some action that occurred that instigated the litigation. The same cycle of negative reciprocity and increasing escalation can substantially increase the transaction cost to the litigation by forcing parties to conduct more discovery, more motions, and more time and energy.
It is, therefore, important to break the cycle. According to Louis Kreisberg, professor of sociology, all conflicts will escalate until a point of stalemate, and then only can the parties de-escalate. As such, whether the conflict is the litigation or the negotiating offers, the parties must first come to a stalemate. In negotiations, that means that the parties need to realize that the escalating moves that are “offensive” won’t work. The parties need to realize that they won’t be able to achieve their goal by pursuing the “offensive offers.” But that may take some time. The parties won’t realize that there is a stalemate in the negotiations until several moves have taken place.
Second, after realization of the stalemate, the parties need to have some way to start to de-escalate. Some ways that negotiators and mediators can break the escalation cycle is as follows:
From the Mediation Matters Blog of Steve Mehta.
Much discussion has taken place of late about credentialing or certifying mediators or what it means to prepare mediators for competent practice. All too often, number of hours of mediation training serves as proxy for proficiency and skill. That is certainly the case in Massachusetts, which has a law protecting mediation communications from disclosure in court only if the mediation is conducted by a mediator who has, among other things, completed at least 30 hours of training. Recently mediators in Massachusetts considered increasing those hours from 30 to 40, although discussions stalled out and are now on hold.
Time and again I have heard Massachusetts mediators defend this provision, arguing that it protects the public. In reality, it does not. Why? Two reasons. One, the 30 hours were pulled from thin air - an arbitrary number made up by the drafters of the Massachusetts law. And two, mediation trainers and training programs that prepare mediators for private practice are unregulated. Just as anyone can hold themselves out as a mediator in private practice, so, too, can anyone hold themselves out as a trainer of mediators. Quality of programs vary widely; some programs are good and some are not. Even if a mediator has 30 or 40 or 400 hours of training, where’s the assurance that any of that training was conducted by competent, knowledgeable instructors?
As we discuss what it takes to prepare individuals to become effective mediators, we must also be willing to look at what it takes to prepare individuals to teach or train mediators.
From Mediation Channel
It is disappointing that Jason A. Waxman’s “A Nuanced Comparison of Transformative, Insight and Narrative Mediation” on the mediate.com website relies, in two cases, on outdated source material and, in the third case, on a secondary source. In the case of transformative mediation, he cites a 1996 journal article by Bush and Folger when the most definitive and recent articulation of the framework is to be found in the revised edition of The Promise of Mediation, published by Jossey-Bass in 2004. Similarly, for insight mediation, he cites a 2007 journal article by Picard and Melchin when the most current statement of the model is to be found in their 2008 Transforming Conflict Through Insight. And, in the case of the narrative mediation model, his piece relies on an article on the mediate.com website (the URL for which is cited incorrectly), a secondary source, when the 2000 Narrative Mediation — A New Approach to Conflict Resolution by the model’s originators, Monk and Winslade, is available. Indeed, chapter 1 of the book appeared on the mediate.com website in 2001.
As surprising as this sourcing is, it is becoming common place to see the transformative mediation model yet again misunderstood. I am not interested in a close reading to comment on what I see as flaws in the model’s description. I will point out, however, that the interested reader would do well to dismiss the definition of “recognition” as it is incorrect. What interests me more is why misunderstanding about transformative mediation persists, 15 years after publication of the first edition of Bush and Folger’s seminal work and five years after the revised edition was released.
It seems to me that there are two principal reasons for the many misunderstandings. One is that the authors of the transformative model have written two books with the same title, and the other has to do with frames of reference and values.
Despite the identical titles of the two editions of The Promise of Mediation, the books are almost entirely two distinct works. The decision of the publisher to issue a revised edition with the same title has had unfortunate consequences. Many readers of the 1994 first edition have not consulted the 2004 revised edition, assuming that the books are substantially the same. In fact, all the two works have in common are the first and last chapters. All the other material is completely different. What is more, the 2004 revised edition contains a complete transcript of a training mediation, “The ‘Purple’ House Conversations”, together with a detailed analysis of what is going on from a transformative perspective.
The value of this material is that it brings into micro-focus, illustrations, albeit simulated in a role play, of how transformative theory and concepts are practised. Just as important, the revised edition makes clear that the term ‘transformation’ refers to the potential for people doing conflict differently and more productively in the course of the current mediation as well as in future conflict situations.
The other major factor in the misunderstandings surrounding transformative mediation has to do with ideological lenses and values. Transformative practice is explicitly based on a relational ideology
The nature of conflict is seen as a crisis in interaction that involves both a sense of vulnerability and self-absorption that destabilize the person in conflict. The transformative mediator believes that not only does the person in conflict want to re-establish a productive balance individually and socially but that she has the capacity to do it. A transformative practitioner is committed to applying a micro-focus to the interaction of disputants in mediation to support them in their conversation as they spiral downwards through vulnerability and self-absorption, shift to empowerment and recognition and back again, and spiral upwards to greater strength of self and recognition of the other. Given the nature of conflict it posits, transformative theory views mediation as a process of communication or conversation instead of a negotiation. Priority is placed on individuals becoming clearer about how they view the conflict situation, what options are open, what resources are available and what decisions about these they are prepared to make. Decisions are freely made and are not guided either in process terms or substantively by the mediator. The transformative mediator does not set guidelines for the mediation; participants decide whether to have what ever type of guideline they wish at any time in the process; the mediator does not ask questions for her own information or questions that direct the participants to consider issues and factors that they have not themselves raised; the mediator follows the participants to wherever they wish to take the conversation, and so on.
Clearly if one does not subscribe to this ideology and set of beliefs, there is much here to take issue with. For example, if one is committed to an individualist ideology where people are seen as acting on the basis of their perceived self-interest, the transformative framework will not be grasped on its own terms but rather seen through a set of lenses that are more suitable for other mediation models; it’s kind of like trying to understand and explain baseball in terms of three downs, field goals and touchdowns. Similarly, if conflict is seen as a problem situation that has arisen where disputants can be assisted by a process that implicitly relies on a diagnosis in terms of scarce resources, of differing interests, between competing narratives, or of deeply-held personal cares that are perceived as threatened by the other, the transformative approach will be misunderstood.
All of these mediation approaches have their rightful places. Too often allegiance to one model leads to misunderstanding of other perspectives. All in the conflict resolution field, I think, are at times guilty of this. It is unfortunate that the inclusiveness that is so often advocated by us as collaborative practitioners is not always applied to our own discipline.
From Arnold W. Zeman's blog
From Jeff Thompson's Enjoy Mediation Blog
Place: Glyptoteket, Copenhagen
Date: The 10th and 11th December 2009
During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties – COP15 – to the United Nations Framework Convention on Climate Change, UNFCCC. The Denmark meeting is crucial for the international climate change negotiations. The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing and resolving conflict arising because of limited resources and/or the effects of climate change.
In a Manifesto from 9th July 1955 issued in London, Albert Einstein and other leading scientists urged humanity to find peaceful means for the settlement of all matters based on new ways of thinking. An important new way of thinking features the use of the collaborative, participatory, and pluralistic conflict resolution processes like mediation and facilitation. Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction will be a major part of the Copenhagen Mediation Seminar, with discussions of conflict prevention and resolution. Our aim is to gather 100 mediators to create a new Manifesto showing the infrastructure to peaceful conflict resolution.
Please reserve this important seminar for 100 mediators attending from all parts of the world. More information will come shortly.
Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders – Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindelov of Nordic Mediators
During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC). The Denmark meeting is crucial for the international climate change negotiations. In December 2007 the parties to the UNFCCC agreed at Bali, Indonesia that negotiations on a future agreement have to be concluded at COP 15. The decision reflected the increased emphasis on the need for swift action made in the latest report by the UN Intergovernmental Panel on Climate Change. The Bali delegates also recognized that 2009 would be a critical opportunity for an agreement before the commitments set in the Kyoto Protocol expire in 2012.
A Critical Issue
The International Crisis Group, one of the world’s leading independent, non-partisan conflict analysis advisory organizations, stresses that “a key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.” Conflict preventive measures and resolution mechanisms need to be part of the climate change negotiations, both in Copenhagen and beyond.
At the December 2007 United Nations Conference on Climate Change in Bali, Indonesia, the German Advisory Council on Climate Change presented a report, World in Transition – Climate Change as a Security Risk. Based on research into environmental conflicts, the causes of war, and climate impacts, the report states that climate changes could “overstretch many societies’ adaptive capacities within the coming decades. This could result in destabilization and violence, jeopardizing national and international security to a new degree.”
Drawing on the work of international experts and organizations including the United Nations Environmental Programme (UNEP), the report notes, though, that “climate change could also unite the international community, provided that it recognizes climate change as a threat to humankind” and adopts “a dynamic and globally coordinated climate policy.” If the international community “fails to do so,” the report emphasizes, “climate change will draw ever-deeper lines of division and conflict in international relations, triggering numerous conflicts between and within countries over the distribution of resources, especially water and land, over the management of migration, or over compensation payments between the countries mainly responsible for climate change and those countries most affected by its destructive effects.” In its introduction to the report, the UNEP website states that “combating climate change will be a central peace policy of the 21st century.” Conflict preventive measures and resolution mechanisms should be part of the climate change negotiations, both in Copenhagen and beyond.
Scientists See the Need
?In addition, the scientific community recognizes that global climate change issues challenge our ability to deal with a changing environment containing huge potential for conflict. In March 2009 over 2500 delegates from nearly 80 countries participated in the International Scientific Congress on Climate Change: Global Risks, Challenges & Decisions in Copenhagen, Denmark. At the end of the conference the delegates presented a set of key messages that included cautions about conflict and climate change.
Key Message 2: Social Disruption stated that “recent observations show that societies are highly vulnerable to even modest levels of climate change, with poor nations and communities particularly at risk. Temperature rises above 2C will be very difficult for contemporary societies to cope with.”
Key Message 3: Long Term Strategy stressed that “rapid, sustained, and effective mitigation based on coordinated global and regional action is required to avoid ‘dangerous climate change’ regardless of how it is defined. Delay in initiating effective mitigation actions increases significantly the long-term social and economic costs of both adaptation and mitigation.”
Key Message 4: Equity Dimensions emphasized that “climate change is having, and will have, strongly differential effects on people within and between countries and regions, on this generation and future generations, and on human societies and the natural world.”
The delegates recommended the use of tools and governance practices to address these fundamental concerns. Conflict preventive measures, conflict transformation and resolution are essential to meet climate change challenges.
Rio and Kyoto Precedents
?The COP 15 Provisional Agenda, reviewed in Bonn, Germany in early June, lists a range of essential issues, from emission reduction to technology transfer. Conflict prevention and resolution mechanisms are missing from the Agenda despite the fact that Article 14 of the 1992 UNFCCC (negotiated in New York and Rio de Janeiro and reaffirmed in Article 19 of the Kyoto Protocol) states that “in the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.” This article, though, is not sufficient to address the complex conflicts between nations and peoples likely to emerge as climate change impacts accelerate. Conflict preventive measures and resolution mechanisms should be part of the talks in Bonn, Copenhagen, and beyond.
Beyond Rio and Kyoto, there is precedent for putting conflict resolution on the Climate Change Conference agenda. A number of UN treaties and conventions that deal with environmental issues include conflict or dispute resolution mechanisms. For example, the UN Convention on the Non-Navigational Uses of International Watercourses, adopted in 1997 by the UN General Assembly, specifies conflict resolution methods. Agenda 21, the Environment and Development Agenda administered by the United Nations Environmental Program (UNEP) emphasizes conflict resolution.
Article 39.3 specifies the need:
g) To identify and prevent actual or potential conflicts, particularly between environmental and social/economic agreements or instruments, with a view to ensuring that such agreements or instruments are consistent. Where conflicts arise, they should be appropriately resolved;
h) To study and consider the broadening and strengthening of the capacity of mechanisms, inter alia in the United Nations system, to facilitate, where appropriate and agreed by the parties concerned, the identification, avoidance and settlement of international disputes in the field of sustainable development, duly taking into account existing bilateral and multilateral agreements for the settlement of such disputes.
An Important Commitment?
Climate change negotiators and decision-makers should affirm the commitment that people, communities, and nations will not be in violent situations due to conflicts that arise as a consequence of climate change. Politicians, diplomats, and specialists who attend the Climate Change meetings should consider conflict prevention measures and resolution mechanisms.
The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing, minimising and resolving conflict arising because of limited resources and/or the effects of climate change.
Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction can start with the Copenhagen conference, with discussions of conflict prevention and resolution along side the negotiations of scientific and technical issues of climate change.
Copenhagen DK, Corvallis and Santa Monica USA – 22 May 2009
Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders, ?Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindeløv of Nordic Mediators
The authors’ affiliations:?
Gregg Walker, Ph.D., Professor of Speech Communication, Oregon State University, USA (gwalker@orst.edu)?
Tina Monberg, Mediator, exam. psychotherapist and lawyer, Mediationcenter Ltd., Denmark (tm@mediationcenter.dk)?
Kenneth Cloke, Mediator, President of Mediators Beyond Borders, California, USA (kcloke@aol.com)?
Jens Emborg, Ph.d. MMCR, Associate Professor of Environmental Conflict, University of Copenhagen, Denmark (jee@life.ku.dk)?
Mie Marcussen, M.Sc., MMCR, Mediator, President of Nordic Mediators, Private Consultant, Denmark (kontakt@miemarcussen.dk)?
Lone Clausen, MMCR, Developing Aid and Crises Expert, Private Consultant, Danmark (lc@direkte.org)
?Vibeke Vindeløv, Dr., Professor of Mediation and Conflict Resolution, University of Copenhagen, Denmark (Vibeke.Vindelov@jur.ku.dk)
In this podcast, Josh answers a listener's negotiation challenge related to the dismissal of an employee.
MP3 File
From Josh Weiss's blog.
The brain considers new information from the point of view of what it already knows and remembers, so the use of good metaphors is an effective way to communicate. Metaphors facilitate getting your message across in every area of your life, including dispute resolution. Those who have been reading my posts here for a while know that I have recommended metaphor use in the past; I am a metaphor advocate.
Here's what Anne Miller author of Metaphorically Selling has to say:
A metaphor is simply a way of communicating. It's a shortcut to instant understanding. Think of it as a mental equation in which something is compared to something else. Metaphors make complex and unfamiliar things or ideas simple and familiar to the listener, because they compare the unknown to what the listener already knows and accepts.
...
Information + Metaphor = "I see what you mean!"
Dr. Daniel Willingham puts it this way in Why Don't Students Like School: A Cognitive Scientist Answers Questions About How the Mind Works and What It Means for the Classroom. (The title of the section from which I have taken this excerpt is "Understanding Is Remembering in Disguise;" a great way to encapsulate the value of metaphor!)
[We] understand new ideas (things [we] don't know) by relating them to old ideas (things [we] do know). ...
...
The fact that we understand new ideas by relating them to things we already know helps us to understand some principles that are familiar to every teacher [and many skillful negotiators and mediators]. One principle is the usefulness of analogies.
Analogies and metaphors are cousins, both drawing similarities between two different things. Both can assist in understanding. Are you a user?
I know you use analogies everyday. Some examples from Metaphorically Selling:
And are you using them in helping clients to resolve conflict? They're a good way to grease the mediation wheels. (Nah, I don't like that one either. Please suggest something better.)
From Stephanie West Allen's blog on Neuroscience and conflict resolution.
In many mediations, I have faced the dilemma in which one side provides crucial but confidential information to me in a separate session (i.e. caucus), admonishing me “not to tell the other side.” I sense that the information is extremely relevant and may make the difference in reaching a settlement. But, I know “my lips are sealed” unless I can convince that party to change her mind and either allow me to disclose the information or have her do so directly to the other side! Do I have any other options?
This question was recently answered in ethics opinion SODR-2009-2 issued by the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance (“Committee”). The scenario posed was quite similar to the one described above:
“I’ve been involved in two separate mediations where an employer has sued a former employee for the unauthorized taking and/or duplication of the employer’s sensitive electronic data shortly before the employee left his job with the employer. In the course of speaking with both employers in separate caucus, I’ve been advised, in a rather off-hand manner, that the employers have initiated some form of referral of the case for prosecution to the police/district attorney regarding the alleged unauthorized taking/duplication by the employee by the employer’s sensitive electronic data.”
. . .
“The dilemma for me, as a mediator, having been made privy to this very sensitive information, is what, if anything, I should say on this subject to the former employee and his counsel?. . .” (Id. at p. 1).
As might be expected, the Committee responded by essentially stating, “not much.” Pursuant to Standard V(B) governing “Confidentiality” of the Model Standards of Conduct for Mediators (2005), the Committee noted that the mediator is precluded from “directly or indirectly” (emphasis original) disclosing confidential caucus information either to the employee or his counsel without the consent of the employer. Thus, because of the prohibition against even “indirect” disclosure, the mediator is prohibited from conveying the information through a series of “reality testing” questions, that indirectly or impliedly suggest that criminal prosecution might be an issue. [eg: “Do you know whether your former employer has referred these types of cases to the police or prosecutor for possible criminal prosecution” (Id. at p. 6)]? Rather, the mediator may ask only very generalized “reality testing” questions such as, “if you do not settle this matter in mediation, what likely options exist for both you and the employer to resolve the issues arising from your departure from your job?” Or: “What risks do you face if you do not settle this case?” (Id.).
Of further concern to the mediator who requested this opinion was her “very strong sense of moral obligation to the employee to alert him to a very real risk of a possible forthcoming criminal prosecution. . .” (Id.). The mediator was concerned that the employee could not make a “free and informed choice. . . as to . . . outcome” without knowing all the facts, that is, the possible criminal prosecution.
The Committee responded by noting that Standard I(A)(2) acknowledges that the “mediator cannot personally ensure that each party has made free and informed choices.” (Id. at p. 7). If the party is represented by counsel, that obligation falls upon counsel. If the party is not represented by counsel, then Standard I(A)(2) advises the mediator to point out “the importance of consulting other professionals to help them make informed choices” and allows the mediator to postpone the mediation for that purpose. (Id.)
Alternatively, the Committee noted that Standard VI (A)(4) governing the Quality of the Process encourages the mediator to “promote honesty and candor between and among all participants.” This allows the mediator to encourage the employer to reveal the referral for potential criminal prosecution either directly or through the mediator.
In sum, the Committee concluded that caucus communications remain confidential unless the Model Standards provide otherwise. Where the mediator is concerned that the other party is not making an informed decision due to the lack of crucial but confidential information, the only technique the mediator may use is very generalized “reality testing” questions and hope that the party’s counsel has been astute enough to pick up on and review all the issues with her client.
. . . Just something to think about.
From the Blog of Phyllis G. Pollack.
One theory behind interest-based bargaining is that parties to a conflict are more likely to agree to a solution that meets one or more of their most important interests. If you’re one of the millions who’ve read William Ury’s work, you know this well, and you know his defintion of interests: The intangible motivations that lead people to take positions – needs, desires, concerns, fears, and aspirations.
I used to remind my mediation grad students that if parties keep saying no to proposed solutions, the solutions either don’t meet an important interest or they don’t see that the solutions do. So it’s pretty pointless (and stepping over the mediator line in a lot of professionals’ books) to convince or manipulate them into agreement in these circumstances and so much more effective to look for solutions that do meet their interests or work to understand where they see the disconnect between the solution and their important interests.
Any of you who’ve read my book know I make the case for using interests to guide our marketing work in much the same way as they guide the work of many mediators. So, the concept above works for your market, too: People are more likely to agree to a service that helps them meet one or more of their most important interests.
In The 5 Things People Really Buy Duct Tape Marketing’s John Jantsch makes the case,
“…No matter if you sell heating and cooling services, legal services, hand painted greeting cards, or consulting, at the end of the day, your customers all buy some variation of the same five things.
So you better make sure you show them how you and your products and solutions are going to:
- Make them more money
- Save them more time
- Allow them to avoid the frustration of doing stuff they don’t like (like wasting time and money)
- Help them save or not lose money today and in future
- Help them feel better about themselves
Copy these five points and refer to them often as you develop your marketing and sales pitches.”
So, mediators, the work we do speaks very directly to interests 3, 4 and 5 and you could probably make the case for interest 2 as well. I see a lot of mediation marketing that addresses #4 (ok, in all honesty, I see it ad nauseam).
I think mediators are missing the boat by failing to address #3 and #5 in how we talk about what we do. What do you think?
A quick announcement
Those of you who also read my Conflict Zen blog already know I’ve started a new writing project, The Year 20 Reboot. I’m celebrating year 20 of my marriage this year and my husband and I have a launched a bit of a joint marital experiment for the next 12 months. Something mediators might have an interest in. If I’ve intrigued you, read more about it here.
From the Mediator Tech blog of Tammy Lenski.
I have had a number of emails about my last post where I mentioned a law firm breakfast I had last week to chat about 10 suggestions I had for lawyers heading into a mediation.
Here are the first 5;
I've just had a call from a lawyer with whom I have a large mediation coming up in late November.
She asked me what she could do to prepare her client John, for what is probably going to be the most important meeting of his life.
Apart from the usual prep like identifying interests etc I advised her to:
1. In the time between now and November try not to poison the well from which she will drink on mediation day - start 'mediating' now within the litigation
2. Prepare John to interact with me on a personal level. He needs to talk to me and should treat me as a confidant, not the enemy. Please trust me (or let me earn that trust)
3. Anticipate a predictable start to the negotiation where the other side asks for the moon and make sure John is prepared to respond in a way that keeps the dialogue going
4. Have John explain the personal side of the dispute to me, in front of the other side. Be prepared to do this early
5. Use me - make me earn my fee. Seek out my reaction to the story of the case and the negotiation moves that are unfolding. Give me a heads up on the negotiation moves John is contemplating - test them on me - I can often help
From the blog mediator blah...blah...
According to Robert Wright in The Evolution of God (reviewed in todays NYT Book Review by Paul Bloom) "God has mellowed" from a capricious tyrant into non-zero-sum playing diety. This is good news for mediators and anyone else in search of a better paradigm for conflict resolution than the 16th century adversarial system. As Bloom explains Wright:
When people see themselves in zero-sum relationship with other people — see their fortunes as inversely correlated with the fortunes of other people, see the dynamic as win-lose — they tend to find a scriptural basis for intolerance or belligerence.” The recipe for salvation, then, is to arrange the world so that its people find themselves (and think of themselves as) interconnected: “When they see the relationship as non-zero-sum — see their fortunes as positively correlated, see the potential for a win-win outcome — they’re more likely to find the tolerant and understanding side of their scriptures.” Change the world, and you change the God. For Wright, the next evolutionary step is for practitioners of Abrahamic faiths to give up their claim to distinctiveness, and then renounce the specialness of monotheism altogether. In fact, when it comes to expanding the circle of moral consideration, he argues, religions like Buddhism have sometimes “outperformed the Abrahamics.
Having just finished reading Wright's The Moral Animal (an evolutionary exploration for our tendency to reciprocal altruism) and taking the long view of Western Civilization, I'm pre-disposed to believe that we have not only evolved physically and intellectually, but "morally" as well.
I understand from Bloom's review that Wright -- either a firm agnostic or wavering atheist -- is moved to wonder whether a universe in which moral progress takes place might suggest the presence of a higher power. Quoting Wright, Bloom observes:
[Wright] emphasizes that he is not arguing that you need divine intervention to account for moral improvement, which can be explained by a “mercilessly scientific account” involving the biological evolution of the human mind and the game-theoretic nature of social interaction. But he wonders why the universe is so constituted that moral progress takes place. “If history naturally pushes people toward moral improvement, toward moral truth, and their God, as they conceive their God, grows accordingly, becoming morally richer, then maybe this growth is evidence of some higher purpose, and maybe — conceivably — the source of that purpose is worthy of the name divinity.
Whatever the source of our moral development, divine or "mercilessly scientific," its encouraging on a bright summer Sunday to believe we can achieve, if not perfection, at least greater decency toward the divine in one another.
We’re at a point where lawyers who are effective at getting cases settled are often thought to be afraid of trial, yet real trial lawyers often forget that their clients have more important business than litigation. Which approach will you choose as your next case begins? With Unconventional Dispute Resolution you can integrate both, so you don’t have to choose either — until the choice is actually yours.
So what is UDR? There’s no single element of Unconventional Dispute Resolution that’s truly new, but UDR combines 7 component parts in a way I haven’t seen before. These elements — each of which is critical to the success of the whole — include:
It’ll take more than one post to fully explore UDR, but my old friend Robert Manley and I began the conversation in a recent presentation to the Austin Chapter of the Association of Corporate Counsel. A quick recap of each element, and how it relates to the success of UDR as a whole, is below.
Come back for more on UDR, which we’ll post here. You’ll be glad you did.
From John DeGroote's Settlement Perspectives
From Jeff Thompson's Enjoy Mediation Blog
“There is a great deal of opportunity to create a niche in your community once you have the training and if you are willing to put in the time to market your practice and develop the network of referrals you will need in order to grow,” say Arline Kardasis and Rikk Larsen of Elder Decisions, which scored a major marketing success with National Public Radio in April.
Arline and Rikk graciously agreed to an interview about the actions they and their partners, John Dugan, John Maher, Crystal Thorpe, and Blair Trippe have taken to garner such fabulous media attention for their mediation work.
Tammy: Elder Decisions has had success getting stories in several major media outlets, including CBS Evening News and National Public Radio. I’m guessing mediators everywhere are wondering, how did they do it? So what was the path to your success with such major P.R.? Please tell me your story!
Arline and Rikk: At Elder Decisions, we believe that our work has three paths: first, working with adult families to develop thoughtful decisions together around eldercare and elder transitions, estate planning and inheritance, and other difficult family disputes; second, training experienced mediators to work in the emerging field of elder/adult family mediation; and third, raising public awareness around mediation for adult families and elders. So, writing articles for all sorts of publications and delivering presentations to large and small audiences is an integral part of what we do in an effort to inform eldercare professionals, dispute resolution practitioners, attorneys, court personnel, and the general public about elder mediation. This work which is shared by all of us at Elder Decisions, has increased our visibility – and, as a result, journalists and writers have come to us on many occasions to provide expertise for their television, radio or print stories.
Tammy: Did you set out to build relationships with particular media outlets or reporters?
Arline and Rikk: We sent press releases to lots of publications when we were getting started in 2003/2004. We followed up with phone calls and emails but had no immediate results. Over time journalists found us online when they were researching stories. A reporter from CBS Evening News with Katie Couric interviewed our partner, Blair Trippe, and spoke with members of a family who had used her as their mediator. There was also an in-depth story in the Boston Globe featuring another family; and an Associated Press article appeared online at ABC News, CBS News, Forbes.com, MSNBC.com, and The Washington Post.
Tammy: For a mediator just starting on the path of building a P.R. plan, what do you recommend they do first and foremost?
Arline and Rikk: Write, write, write. Articles are very important. They have a long shelf life and they are searchable on the web. Local papers, newsletters and journals are always looking for stories, and Mediate.com is also a great venue.
When you deliver workshops to professional organizations, elder services networks, business groups, etc, you will often find that you will be approached for an article in a newsletter or a blog. Say yes. And if you are looking for ideas, please visit our website where you can peruse our library of articles and our list of speaking engagements and media coverage.
And to be sure to follow Tammy’s advice as to how to develop a presence on the web using the newest social networking technologies – this is definitely not our strong suit and we still have a lot of work to do in this area.
Tammy: Do you have any other advice or insights for mediators that you’d like to add?
Arline and Rikk: Elder (adult family) mediation is a new field. There is a great deal of opportunity to create a niche in your community once you have the training and if you are willing to put in the time to market your practice and develop the network of referrals you will need in order to grow. We have found that our team approach has been effective for us in every possible way, including: ongoing inspiration, motivation, efficiency and division of labor, peer review of cases and greater exposure in the community. Also, ACR may soon be adding an Elder Mediation Section. Those who want to learn more can write to us for contact information. And we are always happy to speak with mediators and eldercare professionals who want to learn about this field.
Elder Decisions has a unique niche and clear target market, has strategically networked and built their credibility online, and used a team business approach to maximize their reach and exposure. Great lessons in mediation marketing. Thanks, Arline and Rikk!
From the Mediator Tech blog of Tammy Lenski.
From Larry Susskind's blog on the Consensus Building Approach
A new study suggests that our mood literally changes the way our visual system filters our perceptual experience. In other words, seeing the world through rose-colored glasses is not just a metaphor. It also reiterates that people in bad moods will have tunnel vision.
The researchers used MRI’s to investigate the internal working process of the brain. According to the researcher Adam Anderson, a U of Toronto professor of psychology “Good and bad moods literally change the way our visual cortex operates and how we see,” In other words, when we are in a good mood we take in more visual images.
Subjects were first placed in a good or bad mood. Then the subjects were then shown an image, featuring a face surrounded by other images, such as a house. Subjects were asked to identify the gender of the person’s face. When in a bad mood, the subjects did not process the images of places in the surrounding background.
However, when viewing the same images in a good mood, they actually took in more information — they saw the central image of the face as well as the surrounding pictures of houses.
Applying the Research
If possible, I will always try to keep the mood light in a mediation. Although I didn’t have the scientific basis to do so, I now know that the good mood can help the person to visualize more information. This research also leads me to believe that if a good mood can help visual recognition, it can also help to recognize and accept other information that is not just visual – suggestions from the mediator.
Moreover, other research has found that people in good moods are more receptive to suggestions of change than when in bad moods. As such, keeping the participants in good moods can only help with the negotiation and mediation process.
Further, as a negotiator, if you sense that the mood is going darker, perhaps it is not the best time to announce a new concept or term. The mood will likely prevent the person from properly evaluating your new proposal. The bad mood may may keep others too narrowly focused; preventing them from integrating information outside of their direct focus.
Reference Source:
Taylor W. Schmitz, Eve De Rosa, and Adam K. Anderson. Opposing Influences of Affective State Valence on Visual Cortical Encoding. Journal of Neuroscience, 2009; 29 (22): 7199 DOI:10.1523/JNEUROSCI.5387-08.2009
University of Toronto (2009, June 6). People Who Wear Rose-colored Glasses See More, Study Shows. ScienceDaily. Retrieved June 5, 2009, from http://www.sciencedaily.com/releases/2009/06/090603103807.htm
From the Mediation Matters Blog of Steve Mehta.
A Los Angeles Superior Court judge on May 28 affirmed an arbitration award of more than $4.1 billion, sending shock waves through the labor and employment bar in California.
The award went to Paul Thomas Chester, a former executive at iFreedom Communications Inc., who brought a wrongful termination suit against his former employer, its affiliated businesses and the founder, Timothy Ringgenberg.
The case ended up before an arbitrator, William F. McDonald, a retired supervising judge of the Orange County, Calif., Superior Court's complex civil litigation panel, who now works at JAMS.
Michael D. Young, a partner in the Los Angeles office of Atlanta's Alston & Bird, wrote about the award on his firm's labor and employment blog, "Who's the Boss?" Young spoke to The National Law Journal about the lessons that employment lawyers and their clients could learn from the outcome in this case regarding arbitration agreements and the arbitration process.
Young also broke down the award, to explain how the arbitrator came up with such an astronomically high number.
As many of my readers are aware, I mediate “lemon law” cases or matters brought under California’s Song-Beverly Consumer Warranty Act (Civ. Code §1790 et seq.). (“Song-Beverly Act”).
On June 8, 2009, Division Three of the Fourth Appellate District (i.e. Orange County) for the Court of Appeal of the State of California decided two appeals involving August B. Doppes and his 2001 Bentley Arnage.
The first appeal, Doppes v. Bentley Motors, Inc., Case No. G038734, focused more on the discovery abuses by Bentley’s counsel than the breach of warranty issues. But, it is interesting because the appellate court, in essence, imposed a civil penalty and granted the fraud claim as sanctions for discovery abuse. Further, the appellate court reaffirmed the lodestar approach in awarding attorneys’ fees.
The second appeal, Doppes v. Bentley Motors, Inc., Case No. G039922, involved the award of prejudgment interest on the repurchase of the Bentley under the Song-Beverly Act. But, more on this later.
In the first appeal (Case No. G038734), the issue before the appellate court was whether the “trial court [had] abused its discretion by failing to impose terminating sanctions against defendant for misuses of the discovery process.” (Id. at 2). The appellate court answered “yes,” finding that Bentley had engaged in “repeated and egregious violations of the discovery laws that not only impaired plaintiff’s rights but threatened the integrity of the judicial process.” (Id. at 2).
It seems that in April 2002, plaintiff August B. Doppes purchased a 2001 Bentley Arnage that had an “obnoxious odor” in the interior, causing the automobile to be out of service for 171 days. When Doppes demanded that Bentley replace or repurchase the vehicle in accordance with the Song-Beverly Act, Bentley refused. During the course of the litigation, Bentley withheld documents pertaining to its extensive knowledge about this odor concern, the other customer complaints, the fact that the odor emanated from corrosion protection wax, was prevalent in all of its model year 2001 four door cars, and related issues. (Id. at 4). Although, internal documents revealed that as early as June 2001, Bentley was aware of this concern, during discovery, it failed to provide such crucial but potentially damaging documents and continued to stonewall to the time of trial. However, the discovery referee, out of moderation, recommended issue sanctions rather than terminating sanctions. But, during trial, it became apparent that Bentley had engaged in further stonewalling and “hide the ball” tactics by not producing crucial e-mails and customer complaint files. Yet, the trial court still hesitated to issue terminating sanctions and allowed the jury to decide thecase.
Thereafter, the jury found that Bentley had violated the Song-Beverly Act and had concealed a material fact but found that neither the violation nor the concealment had been intentional. The jury also found that Bentley breached its express and implied warranties. The jury awarded Doppes the sum of $214,300 as reimbursement for a new vehicle plus $100,000 for breach of the express and implied warranties. The court entered judgment for Doppes for $214,300 concurrent with the return of the vehicle to Bentley but to avoid double recovery, did not enter a judgment for the additional $100,000. The court also awarded prejudgment interest at seven percent per annum. (More on this later.)
After detailing the discovery abuses, the appellate court affirmed the judgment under the Song-Beverly Act and breach of express and implied warranty claims. But, as sanctions for the discovery abuse, it reversed the finding by the jury that Bentley did not commit fraud and did not intentionally violate the Song-Beverly Act. It remanded with directions, (1) to strike Bentley’s answer and to enter Bentley’s default on the fraud cause of action and to hold a default judgment prove-up hearing, and (2) to also enter a finding that Bentley intentionally violated the Song-Beverly Act such that civil penalties (typically two times the amount of actual damages) (California Civil Code §1794(c)) and other relief may be imposed against it at a subsequent hearing.
In the last part of its opinion, the appellate court discussed the award of attorneys’ fees noting that under the Song-Beverly Act, a prevailing buyer is entitled to recover attorney fees “reasonably incurred” and based on “actual time expended”. California Civil Code §1794(d). The court noted that, in essence, this statute is compatible with the lodestar adjustment method of calculating fees which requires “the trial court first to determine a touchstone or lodestar figure based on actual time spent and reasonable hourly compensation for each attorney.” (Id. at 37). Using this formula, the court determined that, in the main, the trial court did not abuse its discretion in awarding fees.
In the companion appeal, Doppes v. Bentley Motors, Case No. G039922, the appellate court affirmed the award of prejudgment interest at the rate of 7% per annum from the date of purchase in April 2002 to the date of entry of judgment in March 2007. Bentley appealed arguing that the Song-Beverly Act does not provide for the award of prejudgment interest, citing Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal. App. 4th 718 (Duale) in support.
The appellate court distinguished Duale because there, the amount of damages owed to plaintiffs was not calculable prior to trial. The appellate court reasoned that the Duale appellate court “. . . did not hold prejudgment interest may never be recovered in a Song-Beverly Consumer Warranty Act case, but only that prejudgment interest was unrecoverable under section 3287 [Civil Code §3287] in this particular case because, under the facts, the amount of damages could not be resolved except by verdict.” (Id. at 7).
In contrast, in this case, the amount was known - $214,300 – prior to verdict. Noting that there is nothing in the Song-Beverly Act that bars recovery of prejudgment interest, the appellate court determined that under Civil Code §3287, plaintiff was entitled to prejudgment interest.
With these two opinions, the appellate court provides much food for thought, including the use of the Song-Beverly Act’s civil penalty provisions as a “terminating” sanction for discovery abuses and the allowance of prejudgment interest from the date of purchase on a vehicle that is repurchased under this Act. Without doubt, these points will be much discussed within the “lemon law” community.
. . . Just something to think about.
From the Blog of Phyllis G. Pollack.
From Jeff Thompson's Enjoy Mediation Blog
I have had a number of emails about my last post where I mentioned a law firm breakfast I had last week to chat about 10 suggestions I had for lawyers heading into a mediation.
Here are the first 5;
I've just had a call from a lawyer with whom I have a large mediation coming up in late November.
She asked me what she could do to prepare her client John, for what is probably going to be the most important meeting of his life.
Apart from the usual prep like identifying interests etc I advised her to:
1. In the time between now and November try not to poison the well from which she will drink on mediation day - start 'mediating' now within the litigation
2. Prepare John to interact with me on a personal level. He needs to talk to me and should treat me as a confidant, not the enemy. Please trust me (or let me earn that trust)
3. Anticipate a predictable start to the negotiation where the other side asks for the moon and make sure John is prepared to respond in a way that keeps the dialogue going
4. Have John explain the personal side of the dispute to me, in front of the other side. Be prepared to do this early
5. Use me - make me earn my fee. Seek out my reaction to the story of the case and the negotiation moves that are unfolding. Give me a heads up on the negotiation moves John is contemplating - test them on me - I can often help
From the blog mediator blah...blah...
I have cited all manner of negotiation textbooks on this site, from Getting to Yes to Start with No and beyond — but if your answer to the question “What’s your first move?” was anything other than “Get the tree off his house,” take a deep breath. The roof is supporting the tree at the moment; let’s remove it before the problem is more serious than a few shingles.
As the tree guys began their work, I did the math to determine if the damage would exceed the deductible on my homeowner’s insurance — it was my tree so it was my responsibility, right? I thought I’d check, just in case . . ..
My wife did a quick Internet search as we worked to sort this out, and learned that our tree wasn’t the first to fall on someone else’s property. According to one site and more than a few others:
The mere fact that it was [someone's] tree is not enough to create liability for damages on the tree owner. Trees can fall through no fault of the owner’s, such as in a hurricane. In order to be able to hold the neighbor liable for damages, the homeowner must show that the treeowner’s actions somehow contributed to it falling.
(This isn’t a site about trees, but for those of you who need more on this, additional links can be found here, here and here.)
As I read the links above I realized I didn’t need to look any further for an answer. I asked myself what I’d do if my neighbor’s tree fell on my house — applying a rule I learned at Camp Laney when I was about 7. If the roles were reversed I would expect my neighbor to get his tree off my house, and nothing less.
The call was quick and friendly. I’d pay for the tree removal from his house, he’d pay for the minor damage to his roof and — although we didn’t say it — we knew our neighbors would remain our friends.
I’m confident that someone will tell me I wasted my money paying when I didn’t have to, and others will tell me I should have done something creative like split the difference. Perhaps those are the same folks who told Garrison Keillor that a lawsuit against his next door neighbor would be a good idea (before he moved) or maybe they’re the folks who bill their neighbors for apples that fall across the property line like this guy did.
No doubt the decision not to negotiate is often a difficult one. Sometimes it takes a bit of courage, and sometimes it costs a little money. But it’s usually worth it.
From John DeGroote's Settlement Perspectives
It’s almost impossible these days to pick up a newspaper or turn on the nightly TV news or your favorite radio station without reading or hearing something about Twitter.
Twitter is a free (at least for now) communication and social networking utility that allows you to post brief messages, known as “tweets” to others. Twitter invites users to respond to the question “What are you doing?”, using either their computers or cellphones to answer. Brevity is among Twitter’s virtues (and also its drawbacks - it is not the medium for carrying on nuanced conversation) — messages on Twitter are limited to 140 characters.
After long resisting Twitter’s allure, I finally set aside my suspicions and tried it out. I remain today a regular Twitter user. So what have I gotten out of Twitter? There are two chief reasons I have stuck with it — 1) it’s a fun way to connect with smart, interesting people you might not meet otherwise; and 2) it’s a great source of news and information or a good place to spot trends that affect one’s work. (I’ve got two main reasons, but mediator and blogger Steve Mehta has identified 22 reasons that he uses Twitter.) In sum, Twitter serves as my digital town square. To amplify:
Connecting with others. Twitter is part of the web of phenomena known as “social media” - tools that enable people to communicate directly with each other. It has introduced me to people right in my own backyard, as well as those located elsewhere around the globe. It’s also provided another communication channel with folks I already know, since Twitter permits both public and private messaging (use care when you post that you are not telegraphing sensitive information to the whole world). I enjoy these brief how-are-you’s as we pass each other, on our way to work for the day or home at the end of an evening. There’s a distinct pleasure, too, in experiencing the rhythms of the waking or dreaming world, as a colleague in New Zealand winds down with late-night TV while I drink my morning coffee.
Information, news, and trends. My favorite Twitter users do much more than answer the question “What are you doing?” They are also telling followers what they are reading or watching or thinking about. They share links to articles on topics that interest me. They pose questions in turn, asking for advice, recommendations on products or service providers, or solutions for problems at home or at work. Twitter can be a good place to go to get help - or offer it.
I use Tweetdeck, a tool that runs from my desktop, to sort and manage the flood of information Twitter produces, and also to monitor certain keywords or key phrases relevant to my work. This lets me use Twitter to track public attitudes or perceptions about ADR, or to understand how and why people use or choose not to use mediation, or why mediation or other processes for resolving disputes succeed or fail. Twitter can also help me tune in to the problems that people face as they grapple with their own disputes or upcoming negotiations to help me rethink the way I offer or describe services. Twitter gives me an additional source of data as I listen in on the flow of conversation; many people post messages as they wait in the hallway during mediations.
So how can an ADR professional use Twitter well?
Numerous social media experts have already written countless blog posts and print articles dispensing advice, good and bad, about Twitter. Conscientious Twitter citizen Amy Derby, who writes about blogging for lawyers at Law Firm Blogger, recently rounded up the best with a trio of posts with tips and how-to’s on Twitter. While ostensibly for lawyers, the advice in these posts apply equally to ADR professionals. I particularly recommend “Lawyer Twitter Practices: 29 Do’s and Don’ts” and “Figuring out Twitter“.
My own best advice includes these:
Be helpful. When I began using Twitter, a number of good Samaritans introduced me to their followers, offered me tips to make the most of my Twitter experience, and patiently answered my questions or pointed me in the direction of helpful resources to orient me to Twitter. Even those new to Twitter (and that includes you!) can be helpful. If someone asks a question and you have the answer or the know-how, respond. Someone will appreciate hearing from you.
Provide good content. Twitter is about sharing, not self-promotion. That’s advice I’ve heard others offer, and it’s true. Rather than linking repeatedly to your own site, share links to articles you’ve found stimulating, online content that makes you think, or to online tools that simplify tasks for work or home. Share stuff you’ve learned, ideas you’re mulling over, or something that made you laugh out loud. (By the way, before you link, be careful that the site you’re pointing followers to is legitimate and not a spam blog.) Or recommend another Twitter user you admire to your followers.
Tell followers who you are. When you set up a Twitter account, you create a profile that includes your name, location, your web site, and your bio, and you have the ability to customize your Twitter profile image and background. If you’re planning to use Twitter for business, then when you set up your Twitter account, take time to personalize your Twitter profile. Use your real name and not a pseudonym. Prepare a bio that says something about you in 140 characters - who you are, what you do, perhaps your interests or hobbies. Add a link to your web site or, if you don’t have one yet, your LinkedIn profile. Swap out the default Twitter profile image for one of your own and customize your Twitter background. Before you make your official Twitter debut and let people know you’re on Twitter, take time to post several “tweets” as well to give prospective followers a sense of who you are and what you have to say. Also, if you’re planning to use Twitter for business networking, it can be helpful to provide your location so that others in your geographic area can find you. (I’ve temporarily listed my location as “Tehran” in support of Iranian citizens protesting the recent election results, but otherwise mine lists Greater Boston as my geographic base.) Giving your location can serve as a conversation starter, since prospective followers may have visited your town, grown up or studied there, or have family or friends nearby. (One caveat: be careful about “tweeting” that you’re going out of town on vacation; the criminally minded may be monitoring Twitter.)
Monitor and respond to replies and direct messages. Twitter is a form of social media, so use Twitter to be sociable. If someone mentions you in a “tweet”, reply to them and say thanks. If someone sends you a direct message, be courteous and reply. And don’t stand around waiting for someone to “talk” to you - by all means strike up conversation with people you’d like to get to know better, as well as colleagues or friends you’ve been fortunate to find on Twitter.
Be genuine. Avoid Twitter tools that generate automatic messages to people who follow you. I can spot these canned messages instantly, and they provide me with a reason to “unfollow” someone. If someone follows you, take a moment to reply and thank them; Twitter is about building relationships after all. (One caveat: Twitter is plagued by spam accounts, so be careful who you follow back and reply to. See “Be careful”, just below.)
Be careful out there. Twitter, like any community, has bad parts of town to steer clear of. Some Twitter accounts are created solely for the purpose of wasting your time or taking your money. Before following someone, check them out first. Have they bothered to change the default Twitter image with a photo of their own? Have they provided their location? A link to their web site? What does their bio have to say about them? What kinds of updates do they post to Twitter - do they link to content you find interesting? On principle I avoid following anyone whose bio claims they a) are an SEO expert, b) can help me make money online, c) get me thousands of followers on Twitter, or d) can get me out of debt fast. Twitter experts will tell you to pay attention to the follower/following/updates ratio. If someone is following 1000 people but only has 50 followers and has posted only 2 updates, watch out; there’s something fishy going on.
By the way, if you’d like to follow me on Twitter, my Twitter handle is @dianelevin.
Coming next: ADR practitioners to follow on Twitter.
From Mediation Channel
We recently featured a video clip of an interview with Justice Harvey Brownstone of the North Toronto Family Court in which he brought to life the principle of acting in the best interests of the child. Here now are his 10 tips for success in resolving parenting disputes from his book, Tug of War: A Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court:
This list of advice is taken from Chapter 13 of Justice Brownstone’s book. You can read Justice Brownstone’s commentary on each of these tips by clicking here for a book excerpt.
From Arnold W. Zeman's blog
From Larry Susskind's blog on the Consensus Building Approach
From Jan Schau's blog.
You often hear that you get more with honey than you do with vinegar. However, a study has tested that proverb with surprising results.
Summary of Study
In the January, 2004 edition of the Journal of Personality and Social Psychology, they studied the effect on anger and happiness in negotiations. The study entitled “The Interpersonal Effects of Anger and Happiness in Negotiations” came to some very interesting conclusions. The study had two experiments. In the first experiment, participants engaged in computer mediated negotiations in which they couldn’t see their opponents. One group was secretly told that the other side was either angry or happy. However, in reality the participants were actually negotiating against a computer that had pre-programmed responses. When the participants were told that the negotiator on the other side was angry, the participants didn’t bargain as hard as when they were told nothing or that the other side was supposed to be happy.
In the second experiment, the participants were told the same information about the state of mind of the opponent. This time, the opponent also provided expressions during the negotiation of either anger or happiness. The study found that again, when participants believed the opponent to be angry, they negotiated less aggressively. However, when participants believed the stated expressions of anger to be disingenuous, the participants deemed the anger as merely an attempt to bluff. However, when the opponents were identified as being consistently angry and demonstrated anger during the negotiation, the participants responded with hardball tactics of their own.
Discussion
This study has several ramifications to everyday negotiations:
If you are angry about a situation and wish to express that anger, don’t make outward statements that reflect your anger. Instead, your better choice is to let your actions communicate the message. Studies have shown that most of human communication is on a non-verbal level. One study concluded that only 7 % of communication is done verbally. In addition, by outwardly stating that you are angry, you may inadvertently escalate the dispute because the other side may react similarly. Finally, you could potentially mislead the other side into believing that you are bluffing. Studies show that when people are lying about their emotional state, they tend to over-exaggerate their reaction. This is sub-consciously done to mask the true state of mind. This research is consistent with the recent study of anger that I reported on in a prior post entitled Negotiating Games — Using Anger in Mediation, A Researched Analysis
Anger can be used as an effective tool in negotiating only if it is real. If you believe that it is appropriate to show your anger in a negotiation, then you should take care to not overtly state your anger, but instead let the opponent see the anger through indirect means. However, if you use anger as a ploy to gain tactical advantages, it can easily backfire into escalating the conflict. Overall, whenever you get the urge to throttle someone in a negotiation, step back for a moment and consider whether it is truly necessary to demonstrate your anger or whether the venting of your anger, although initially fulfilling, may do more harm than good.
From the Mediation Matters Blog of Steve Mehta.
An important aspect of any dispute, be it one filed in court or simply a neighborly spat, is the expectations of the parties. Are they unrealistic or do the parties know exactly what is what and what they can expect as part of a resolution?
When the expectations of the parties are not realistic because no one has discussed the realties with them, any attempt at alternative dispute resolution will end in disaster.
This, again, happened in one of my mediations recently. It involved a case filed in court. Plaintiff hired an attorney to prosecute her claim against defendant. The plaintiff’s attorney duly filed and served the complaint. After the defendant was served, it turned the complaint over to its counsel who analyzed it and concluded that the otherwise applicable state statutes did not apply. Plaintiff did not have a cognizable claim. Defense counsel wrote plaintiff’s counsel to share her analysis but did not receive a response. So, several weeks later, defense counsel, again, wrote plaintiff’s counsel, sharing her analysis. Again, no response.
The matter meandered along. Finally, the court ordered that the parties attend mediation. So, the parties scheduled a mediation with me. Defense counsel sent me a brief setting out the same analysis that she had given plaintiff’s counsel on several occasions over the past few months: plaintiff had no claim cognizable under state law.
I started the mediation with a joint session. Plaintiff explained the substantive issues. Then defense counsel presented her analysis. As she spoke, I could see from plaintiff’s face that this was all new to her; she had not been told that her case was subject to dismissal because the otherwise applicable statutes were not applicable. After some discussion on this point, the parties broke into separate sessions.
When I met separately with plaintiff, I could see she was clearly perturbed. She had come to the mediation with a particular mindset in terms of what she would accept to settle her case, only to find out for the first time at the mediation, that she had no case, and that any settlement would involve minimal amounts, nowhere near the amount she had in mind when she walked into the mediation.
The mediation went downhill from there. Plaintiff needed to process the new information and until she accomplished this, she was unable to accept the “new” situation and make a demand. Eventually, she got so angry at the situation, that she stormed out of the mediation, slamming the door behind her.
Several months ago, I read a book entitled The Science of Settlement by Barry Goldman, MA, JD (ALI ABA 2007) in which he discusses all of the psychological factors involved in negotiations. He devotes an entire chapter to “Preparation”, discussing the myriad of mind games we each play with ourselves in negotiating with others. His opening paragraphs are on point:
“Negotiating a deal is like painting a room.. It’s all about the prep. The part where you put the paint on the walls is easy. It’s the scraping and sanding and taping that takes the time and effort.”
“Negotiating without preparation – trusting your instincts or “going with the flow” – is a dreadful mistake. . . .”
“Obviously, you need to know your file. . . . “The best way to sound like you know what you are talking about is to know what you’re talking about.” . . . .” (P. 9)
On several occasions in the past, I have written about the importance of preparing for mediation. In each blog, I have stressed that the parties need to be fully informed about all of the issues and the consequences of any decisions made at mediation, including acceptance or rejection of offers and demands. I have noted that each party needs to know the exact parameters of the dispute, and thus the potential existence or non-existence of liability and thus the possibility for damages. I have suggested that prior to a mediation, a party needs to learn what mediation is all about, what to expect, to review the issues and to analyze them. I have implored that prior to the mediation, investigate the facts and law and assess the strengths and weaknesses of not only your position but that of the other party. Step into the shoes of the other party and view the dispute from her vantage point. How does your side of the dispute look from the other person’s side of the table?
All too often, I have witnessed parties attend mediation, believing that settlement is possible without any real knowledge of the facts and the law. Their expectations are unrealistic. As Mr. Goldman notes above, it is a “dreadful mistake” to approach mediation by simply “winging it.” Parties need to mentally process issues, i.e., to prepare. Our minds must work through the issues to reach a conclusion. We cannot just walk into a mediation, be given a reality check by the mediator or the other party and mentally process such disparate information so quickly that we are capable of accepting a totally different reality in a nanosecond. Our psyches will not allow us to suddenly accept a settlement proposal that we thought to be anathema an hour earlier. We are not computers: we are humans and so require time to absorb and accept new ideas. Without preparation, unrealistic expectations will exist and will be the recipe for failure to reach resolution at a mediation. The effort will be futile and a valuable opportunity will be wasted.
So once again, I urge - - do not take mediation lightly. Come prepared and you will have a great chance at settling. Come unprepared and you will be doomed to failure.
. . . Just something to think about. . . .
From the Blog of Phyllis G. Pollack.
8 June 09 - Speech by Lord Clarke of Stone-cum-Ebony, Master of the Rolls - Mediation, an integral part of our litigation culture From the blog mediator blah...blah...
Littleton Chambers Annual Mediation Evening, 8th June 2009
Hat tip to Current Awareness
I do not recall the day on which I learned I spoke with an "American" or "West Coast" accent but I remember it coming as a surprise to me. As Cristof, the director of The Truman Show says of his "creation," the happily oblivious Truman Burbank, “We accept the reality of the world with which we are presented.”
The fact that people are still questioning whether a woman, an African American, a Latina or (gasp: clearly for a more equitable society) a gay, bi-, Lesbian or transsexual, jurist will be "biased" by his or her unique perspective is dispiriting to say the least. As many people in high (the New York Times, CNN) and low (twitter) places have rightly pointed out, no one asks whether a white man will bring his prejudices to the Bench. Why? Because white men "have no accent." The dominant culture does not think of itself in terms of race (it doesn't have to) and the people with power (still primarily white men) do not need to ask themselves thorny questions about their attitudes toward their own race and gender.
Here's an example from the New York Times: Speeches Show Judge's Steady Focus on Diversity, Struggle
WASHINGTON — In speech after speech over the years, Judge Sonia Sotomayor has returned to the themes of diversity, struggle, heritage and alienation that have both powered and complicated her nomination to the Supreme Court.
She has lamented the dearth of Hispanics on the federal bench. She has exhorted young people to value immigration. She has mulled over the “deeply confused image” America has of its own racial identity. And she has used on more than one occasion a version of the “wise Latina” line that she has spent much of this week trying to explain.
Today is my father's birthday. It is also the one-year anniversary of his death, so I'll ask you to forgive my stream of consciousness post. I promise to tie it up in a bow by post's end.
Dad -- a dust bowl refugee -- a lawyer at 42 and Bench officer by 52, used to say that there "should be dumb politicians, to represent the dumb people." He was exaggerating, of course, to make the point that a representative government should represent all of the people and not just the privileged majority.
Was Dad's life-view affected by his humble origins, his "struggle" to overcome his lack of a completed high school education and a culture of poverty, as well as the burdens of his gender in mid-Century America (burdens which assumed only men were obliged to work to support their families)? You bet it was.
Did anyone ask whether Dad was going to bring a white, male, depression-era, bias to the Bench? No. Did he? Yes of course he did. Still, Dad leaned as far away from his mid-20th Century white male privilege as he could, drafting "marital" agreements for gay clients from the late '60s until he went on the Bench; voting against his economic self-interest in every Presidential election (proudly asserting that he paid more in federal income tax than he used to make annually) and supporting all civil rights movements -- African-American, Chicano (the term of that day), women and gays.
Dad was a good guy aware of his biases and willing to push against them. It is not, however, possible for any of us to be without bias as this article in the Cornell Law Review -- Blinking on the Bench: How Judges Decide Case -- demonstrates.
Below: me and Dad, may he rest in peace. 9 June 1924 to 9 June 2008
I've had this article in my files for some time because it's about anchoring -- the principle that negotiators will be influenced by any number that enters the negotiation environment, no matter how random. Below is an excerpt from "Blinking" demonstrating the power of anchoring on judicial decisions. Note the repeated use of the word "intuitive" - a word usually associated with women but not only a woman's talent or trait. (All emphases supplied)
Justice Harvey Brownstone serves on the North Toronto Family Court and is the author of Tug of War: A Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court. Below is a 16 minute video clip of an interview of him on TV Ontario’s The Agenda – With Steve Paikin.
From Arnold W. Zeman's blog
As a blogger who’s been at this now for over four years, I have been fortunate enough to know first-hand the impact of blogging on the way ADR professionals practice. As a social media tool, blogging has transformed the way I network, helping me forge ties around the world with dispute resolution professionals and others committed to changing the way people respond to conflict. Writing a blog has honed my thinking, and sharpened my ability to spot emerging trends and advances that have bearing on the work I do. And I read blogs myself for breaking news, incisive analysis, and links to content relevant to my practice. In fact, during the four years I’ve been blogging and avidly reading other blogs, I’ve learned, reflected, and deepened my understanding about mediation, conflict resolution, and negotiation more than I did in the nine years that preceded that.
As the webmaster for ADRblogs.com, a site that tracks blogs globally that discuss ADR and conflict resolution (which just celebrated its third anniversary by the way), I have seen quite a few ADR blogs come and go. Consequently I’ve gotten pretty good at predicting which ones will last and which will rapidly fade away into obscurity. The ones that thrive do so because their owners developed certain habits. If you have just launched a blog, or have been blogging for a while now without seeing your readership increase, you may be interested in these observations that I share here now - 6 things that effective conflict resolution bloggers do:
Create worthwhile content for readers. A blog provides you with the ability to share what you know, and there are many ways to do it. Recount a personal anecdote that illustrates how negotiation can work in the real world. Explain how you handled a difficult client. Share what you learned from a student in the conflict resolution class you teach. Tell your readers about an inspiring book you’ve just finished or a web site that got you thinking. Pose a question to your readers and invite their ideas. Give your opinion and ask readers and other bloggers for their reaction. What to avoid: All too often I see new bloggers copy and paste in their entirety articles from other sources, without bothering to add their own observations or opinions to add value to the post. That’s okay once in a while but don’t make it a habit. Instead, let your own voice come through loud and clear.
Learn the lingo. Good news! There are really only a couple of words you need to know: “blog” and “post”. “Blog” can be a verb or a noun. As a verb, “blog” means to compose and publish an entry (known as a “post”) on your blog,. As a noun, “blog” is what your entire blog is called. A “post” is an individual entry. Please do not call a “post” a “blog”; that’s a common newbie mistake. One other concept you should be familiar with is “RSS feed”. They’re like belly buttons - every blogger has one. RSS feeds make it possible for people to subscribe to and read blogs easily, and your blog should already come equipped with one. Daniel Schwartz at Connecticut Employment Law Blog has written a brilliant explanation of RSS feeds - please read it. (Not to worry, there won’t be a quiz on this tomorrow.) (And thanks to Geoff Sharp for pointing it out.)
Remember to link to others - it’s called “social media” for a reason. Blogs are based on reciprocity; in fact, the currency of the blogosphere is links, inbound and outbound. Successful bloggers link out to other blogs and sites, sending readers away to good content. Outbound links in fact exude confidence, as well known blogger Brian Clark has written, and signal a willingness to engage in a robust exchange of ideas with fellow bloggers. Bloggers often respond by returning the favor and linking back. Inbound links to your blog are vital, increasing its visibility and bringing new visitors to your site. Last summer I wrote a post reminding ADR bloggers of the importance of linking and the social side of blogging - please read it. Even experienced bloggers sometimes overlook this; recently I was dismayed to notice that an ADR blogger discussed a post of mine but did not link to it. An oversight? Nope - this blogger simply does not link to others. Too bad - they’re devaluing their own blog in the process. Don’t let their mistake be yours: link regularly.
Give credit for others’ ideas. Blogging is like writing term papers in college: you have to credit your sources or you might be accused of plagiarism. If you write a post about an interesting article, news story, or web site that you learned of on someone else’s blog, give credit to that other blogger and - this is the really important part - link back to their post. Incidentally, linking back helps weave the web of conversation that blogging produces - your link back serves as a response to or a riff upon a thought or idea. Links get people talking.
Express appreciation. If another blogger says something nice about your blog on their blog or recommends you to their readers, write a comment to that post thanking them. Or send them an e-mail personally thanking them. Heck, do both. Better yet, return the favor, and blog about them. Make your mom proud.
If you screw up, apologize. I’ve done it. I bet you have, too. It’s not the end of the world. Take responsibility. Apologize. Fix it.
P.S. One other thing. If you do have a dispute resolution blog, tell other bloggers about it. Don’t keep it a secret. We’re here to help.
From Mediation Channel
From Jeff Thompson's Enjoy Mediation Blog
Elder abuse is often overlooked in our society as it is more likely to happen in a private setting and victims are often reluctant to report it, especially if the abuser is a family member.
The number of elder abuse cases has risen over the years. An article entitled Trends in Elder Abuse in Domestic Settings demonstrates the seriousness of the problem. In some cases, victims are unable to report abuse because they suffer from dementia.
One solution to this problem includes possible Guardianship of the elderly. Moreover, there is further emphasis on criminal prosecution of these acts as other solutions. Yet another solution is further connectivety with family and increased communications.
In mediation, we have to be aware of the many issues that relate to elder abuse issues. The following is a brief list of considerations that must be considered when mediating an elder abuse case. These issues affect both the legal status of the case as well as the emotional status of the case.
Domestic Settings
Institutional Setting
From the Mediation Matters Blog of Steve Mehta.
From Jeff Thompson's Enjoy Mediation Blog
In mediation, it is often common for parties to use a anger or emotions strategically. In fact, many people will intentionally have an emotional outburst in an attempt to try to strategically alter the other side’s position. Some may say that using such emotions is a long time strategy going back towards ancient days. But can exaggerating emotions backfire?
Researchers Eduardo B. Andrade and Teck-Hua Ho (University of California, Berkeley) evaluated whether exaggerated sense of anger or “emotion gaming” affected the outcome of the negotiation. “Emotion gaming” is the strategically altering the overt expression of emotion in order to convince or persuade the other person to act according to your desires. An example of “emotion gaming” would be exaggerating anger while negotiating during mediation.
The researchers developed several experiments to test “emotion gaming.” In one experiment, the Dictator Game, a “proposer” was given money to be split with the “receiver.” The proposers were told to make unfair offers, which the receivers had to accept. The Dictator Game’s purpose was to manipulate anger.
Half of the receivers were told that their last anger report would be shown to proposers before proposers made offers. The results showed that receivers intentionally inflated their levels of anger when they knew that proposers would see their anger display before deciding on an offer. The receivers admitted to inflating anger levels to manipulate the proposer. The study found that when proposers knew of the receivers’ anger levels with regards to the unfair offer, they increased their offers to the receiver.
In another part of the experiment, the proposers were informed that the receivers knew that their anger levels were going to be communicated to the other side. In those experiments, the proposers did not change their offers when they believed that the receivers display of anger was not genuine.
The authors concluded that “Receivers do get a better offer from proposers as long as proposers have reason to believe that their partners’ feelings are genuine. When proposers learn that receivers might be inflating anger, the impact of emotion gaming on proposers” goes away.
Applying the Research
This research confirms what many of us have already known: that people game emotions to gain advantages in negotiations. As a result, when you are negotiating, you need to be aware whether the emotion is a real display of anger or an artificially inflated display of anger.
It is also important not to instantly react to the display of anger but to ask questions about why they feel the way they do. Questions will help you to evaluate the true nature of the anger or to determine whether or not you’re being “gamed.”
Third, people react to anger because they feel that the other person will be volatile, unpredictable or will not adhere to norms in the interaction. Ask yourself what you have to be afraid of or worry about. So what if the other person is demonstrating anger! The question is what effect that anger will have on you. Just as with a person who demonstrates a tantrum, you can either give in to the tantrum or hold fast.
Finally, it is important to understand that although strategic uses of anger can have a short term effect, it may not help in the long run. As noted in the study, once the people making offers were aware that they might be “gamed,” they did not change their offers. So if the bout of anger works the first time, it probably won’t work the second time.
Reference:
Eduardo B. Andrade and Teck-Hua Ho. Gaming Emotions in Social Interactions. Journal of Consumer Research, online April 10, 2009; In Print December 2009
From the Mediation Matters Blog of Steve Mehta.
I am a baby boomer which means that my mother is a member of The Greatest Generation. Like other members of that generation, my mother is up in years so that us baby boomers must now be the “parents” to our parents.
Last week, my siblings and I had to be “parents” and make a lifecycle decision for our mother. We placed her into an assisted living facility so that she would be safe and secure from her own frailities and from what life can and will throw at a very senior citizen.
Needless to say, it was a very difficult task. We were moving our mother from the only home she has known for 60 years into a new environment that she is unable to totally grasp due to the frailities that come with age. She does not understand that we are doing this to keep her safe and secure, but, rather she is scared and frightened. Her life, as she knows and can still grasp it, is being turned upside down for no “apparent” reason.
So, she was driven to her new “home” without warning, She immediately recognized what it was as we had been there many times to visit my father before he passed on. She refused to get out of the car. All of our cajoling – both that of my siblings, myself, and the staff were for naught. This scene went on for many minutes.
After awhile, one of the residents, a gentlemen with southern charm (whom I will call Mr. Jones) came out and started conversing with our mother. He explained his circumstances; how he, too, had come to be there against his better instincts, but that he had found out in the short while that he had been there, what a nice place it was: the staff was great, the other residents were friendly, there were lots of activities and things to do and in sum, everything would be fine. He implored her just to walk through the door and take a look; she did not have to stay but at least give it a chance, a try. He asked if she needed help and made it easy for her by having a wheel chair brought and positioned for her to easily get into, all the while imploring that there is no harm in just taking a “look” and seeing what was inside the front door. With Mr. Jones’ kind and sensitive words to my mother, she finally got into the wheel chair and allowed herself to be wheeled inside and take a look at her apartment.
On May 1, 2009, I wrote a blog entitled “Just a Mediator” in which I described the many roles of a mediator, the first of which is to gain the trust of the parties and help them overcome their initial fears and anxiety about even attending a mediation. The second role is to manage their emotions.
Mr. Jones did just these things. By being a resident himself, he conveyed the empathy that I, and my siblings, all baby boomers, could not. As a fellow member of the Greatest Generation, he could relate to her in ways that I and my siblings could not. He could and did use that common experience (“been there, done that”) to gain my mother’s trust and to calm her fears and anxieties about what awaited her on the other side of the front door. He attempted to manage her emotions by telling her that he, too, unwillingly left his home, did not like it one bit but understood that coming to the facility was the right thing to do. He tried to convey to her that he truly and deeply “knew” how she felt because he, too, had traveled the same “road” to arrive at this same place.
Mr. Jones’ words struck me. I remained silent and physically backed away, letting Mr. Jones use his commonality to build trust with my mother , calm her fears and anxieties, and convince her that it was okay to go inside and, at least, take a look.
I know that mediation skills are useful in everyday life, and I have often used my own life experiences to build commonality, and trust with parties, but, to see it played out with such southern charm, sincerity and empathy was something entirely else. In all of my mediation training, I have not seen these skills so well displayed and exemplified. They are skills that only a member of The Greatest Generation could have. Us baby boomers aren’t there yet.
Life is a lesson, and I just learned one.
. . . Just something to think about.
From the Blog of Phyllis G. Pollack.
From Larry Susskind's blog on the Consensus Building Approach
“But we’ve always done it this way” all too often stifles fresh thinking or bars the way to needed change. That’s why now and again it doesn’t hurt to shake things up.
And shaking things up in the world of negotiation training and teaching is a new book, Rethinking Negotiation Teaching: Innovations for Context and Culture, edited by ADR movers and shakers Chris Honeyman, James Coben, and Giuseppe De Palo. Published by DRI Press, an imprint of the Dispute Resolution Institute at Hamline University School of Law, this book is available at Amazon.com and, best of all, as chapter-by-chapter PDF downloads at the Hamline web site.
In his introduction, Honeyman explains why it’s time to reconsider how negotiation is taught:
The completion of one generation offers a classic moment to take stock in full of any social innovation. By some measures, including market success across a variety of disciplines, the teaching of negotiation has been a great success story, and has been relatively consistent. The cohesiveness and attractiveness of the interest-based model across law, business, public policy, international relations, urban planning, and other fields have been remarkable. From a base of essentially zero courses in 1979, nearly every law or business school in the U.S. now has at least one course in negotiation, and many other countries are at various points on the same path. But that very success has combined with the inchoate nature of an interdisciplinary field to mask the inherent challenge created by the separate discoveries of many disciplines.
Over the last three decades those discoveries have been many. But by and large, they have not yet been incorporated in current teaching in any organized or consistent way. This book, together with the simultaneous publication of the Spring 2009 issue of Nego-tiation Journal, [Volume 25(2), with a special section guest-edited by the same editors], marks the first results of an interdisciplinary effort to make sense of these discoveries. We intend to revamp the teaching of our field across many settings and cultures.
I have already begun to dip into this superb collection of articles. Among those that grabbed my attention are these:
If you’re a negotiation trainer or teacher who’s ready to reboot their own thinking about how to teach negotiation, this is one book you’ll want to add to your shelf.
From Mediation Channel
In this podcast Josh interviews Tony Ozelis, who deals with foreclosed properties. They discuss some unique aspects of negotiating for these kinds of properties and provide some tips for how to prepare to enter into this type of negotiation.
MP3 File
From Josh Weiss's blog.
So much for the mediation carrot & the principle that "mediation is a voluntary process."
Foreclosure Mediation Becomes Mandatory
Program staffing, caseload expected to double
A voluntary foreclosure mediation program has worked so well in the eyes of legislators that the General Assembly pushed through a measure to make the program mandatory starting July 1.
Nearly 60 percent of those participating in the voluntary program have remained in their homes, and supporters contend that even more distressed mortgage holders will benefit from being forced into mediation. To date, only about 34 percent of those eligible for mediation have made use of the voluntary program, according to the Judicial Branch.
Continue reading here.
