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Yesterday, I was in a meeting and discussing mediation services when I was shocked by what I heard. An attorney told me that a prominent mediator (He who shall not be named) in California charged a contingency fee for a mediation.
Specifically, the attorney told me that the case was worth seven figures and the mediator told the parties that he would charge 5 percent of the settlement amount divided by each side, but only if the case settled. I was shocked to hear that because of my belief that such fees are illegal.
I went to my computer to double check the issue and reaffirmed that such fees are illegal.
Here is the California rule:
CRC, Rule 3.859. Compensation and gifts
(a) Compliance with law
A mediator must comply with any applicable requirements concerning compensation established by statute or the court.
***
(c) Contingent fees
The amount or nature of a mediator’s fee must not be made contingent on the outcome of the mediation.
Sub section (c) makes it very clear that such a fee cannot be charged. I was interested to see what other jurisdictions allowed and found that there are a few jurisdictions that allow such fees but the vast majority do not. Moreover, mediator organizations also discourage the practice.
Geoff Sharpe of Mediator Blah Blah identified an article, however, in support of such contingency fees.
The case for and against (but mainly for) contingency billing by mediators is put in the well reasoned, but appallingly named, Contractarian Economics and Mediation Ethics: The Case for Customizing Neutrality Through Contingent Fee Mediation by Scott Peppet of CU Law. And find out why this minority view says neutrality is not undermined simply because of mediator interest in the outcome!
The problem with the contingent fee mediator – besides being unethical in most jurisdictions – is that it creates an appearance of impropriety and creates a bad taste in the mouth of the prospective clients. Moreover, from a business standpoint, the mediator has two clients: the Plaintiffs and Defense. Although many plaintiffs attorneys may be familiar and accepting of such fees; the defendants typically do not regard them in a favorable light. As such, even if the plaintiffs considered the fee arrangement, it is likely to turn off the defendants’ attorney. Indeed, the attorney I spoke with last night was turned off by the fact that the mediator could theoretically do a few hours worth of work and earn over $50,000.
Many attorneys also do not like mediator fees that are tied to the size of the case. In other words, if the case is six figures or less it is one fee; seven figures, then another fee.
The reaction I heard last night about the mediator (He who shall not be named) was a visceral reaction. The attorney relaying the story did not know of the ethical issue. He simply reacted by stating that he did not believe that was right that the mediator share in the fee. He stated that he thought that would taint the neutrality of the process and would make the mediator a third player in the mediation. Instead of trusting the mediator’s advice as neutral, the parties may have to consider whether the advice is given solely because the mediator wants to settle the matter and collect his handsome contingency fee. After all 5 percent of $1,000,000 is $50,000.
The reality is that not only is it unethical to charge such a fee, but it is also bad business.
From the Mediation Matters Blog of Steve Mehta.
Conflict.
There’s certainly plenty of it to go around. Daily life is made up of discord, debate and disagreement. I for one would hate to see conflict vanish. Not only would it put me and all the other mediators out of work, but life would be far less interesting. No doubt quality of life would suffer, since conflict after all famously provokes improvements. (Besides, in a world without argument imagine how erotic love might suffer without make-up sex to spark things up.)
What we need is not fewer arguments in the world. It’s not the quantity that’s at issue, it’s the quality. Friends, we need to bicker better.
Regular readers are familiar with a recently added feature on this blog, the Fallacious Argument of the Month. With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy. One consequence of creating that feature is that it has sharpened my eye for real-world instances of mistakes in arguing. Hence this post: I found a whopper.
One common mistake when arguing is to make cheap appeals to emotion through an old playground trick: name calling. The intent is to arouse the disgust of one’s audience against the target of one’s attack. Using words designed to inflame the prejudices of your audience can certainly be effective. Unfortunately, this ruse can backfire. Your audience may turn on you and not your intended target.
I spotted an example of this in the pages of the local paper, the Boston Globe. One particularly touchy subject these days is a proposal concerning a public law school for Massachusetts, one of a handful of states without one. Under this proposal, the state higher education system would take over private Southern New England School of Law. The Globe has run several opinion pieces on the subject, pro and con, including one, “Bailing out a failing law school,” penned by two University of Massachusetts trustees.
In the interests of full disclosure, I should tell you that I oppose this plan myself. But I winced when I read the UMass trustees’ opinion. Instead of focusing on relevant facts to sway the undecided or the committed, the writers vitiated their argument by throwing in deliberately demeaning language, lobbing phrases such as “fourth rate”, “raw political pork”, and “‘Lawsuits ‘R’ Us’ justice”. Not surprisingly, it provoked angry letters from insulted readers.
How much more effective this op-ed piece would have been had its authors stuck with facts and reasons, leaving the sneering provocation behind in the first draft.
From Mediation Channel
The American Bar Association, Law Student Division, hosts a variety of negotiation tournaments for law students. I spent a Saturday afternoon recently as a judge of an early round of the in-school competition at UC-Hastings College of Law. From the blog of Nancy Hudgins
Even so luminary a firm as O'Melveny has been smacked down by the courts (here, the Ninth Circuit) when trying to enforce employee arbitration agreements. California lawyers would therefore be well-advised to read the opinion covered at the California Employment Law Report this week: Arbitration Agreement Upheld Despite Employee's Argument It Was Not Mutual And Adhesive
Here's the clause:
I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution which might arise out of my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the American Arbitration Association. This application contains the entire agreement between the parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written.
This decision is made more interesting by the recent Parada decision (.pdf) (covered here and here) where the drafter's failure to attach the JAMS arbitration rules cited in the agreement was one of the reasons the Court concluded the arbitration clause was substantively unconscionable. I think it's safe to say at this point in the development of California law on these issues that it's not malpractice for an attorney to fail to draft an enforceable arbitration clause. But as the opinions multiply, you can be sure some employer will be looking around for someone to name its legal counsel as the source of his discontent, blame its law firm for having to bear the expense of litigation, and claim damages as a result.
The best protection for drafters of arbitration clauses (particularly in California where the Courts remain suspicious of adhesion arbitration contracts) is to be familiar with all the case law on the topic in the last five years; to avoid any provision the Courts have used to tip the "sliding scale" in favor of non-enforcement and include those provisions which favorably incline the courts to enforce the clauses.
Sarah Shahi
For all of us who explain how we do mediation in our opening statements to clients, we know that the process is not the best known in the land.
It is to be hoped that “Facing Kate”, a new TV series in development by the USA Network may help change that. Kate is a San Francisco lawyer who leaves the practice of law to become a mediator.
Kate is played by Sarah Shahi, somewhat younger and more glamorous than my community of practice, including me!
(H/T: Diane Levin & Joe Markowitz)
From Arnold W. Zeman's blog
Bryan Hanson, Assistant Director at the Werner Institute of Creighton University a couple of months gave a presentation on, "An Introduction to Active Listening Skills" in which he provided the audience with the acronym F.E.A.R.S.
When focused on the conversation and truly present you provide a highly conducive environment for the conflict resolution process to be successful.
Empathize- Empathizing is the ability to put yourself in an other's situation and understand HOW THEY FEEL. Empathy focuses on the emotions of the speaker. Not only are you identifying the emotions, but you are also gauging the intensity of the emotions.
For example, there is a difference between someone being "upset" and "extremely distraught" or between being "slightly annoyed" and "really bothered". part of your success and credibility when you empathize will turn on your ability to make distinctions in the gradation of the emotion. By doing so, you let the speaker know you really understand them.
Often, people are scared to empathize during a conflict because they think it means that they are agreeing with the speaker. It is crucial to understand that your ability to empathize successfully does not mean you agree with the speaker's emotions, it simply means that you are able to identify and understand how the speaker feels.
Ask open-ended questions- An open-ended question gives the speaker an opportunity an opportunity to answer the question in narrative form, instead of just saying "yes/no". it provides the listener with more information than a close-ended one. During conflict resolution, part of the goal is to gather information. by framing your questions in a way that is more likely to elicit information, you are improving your chances of understanding what lies underneath the surface of the conflict.
Reframe- Reframing provides an opportunity to demonstrate empathy to the speaker's emotions allowing the conversation to move forward. Reframing entails quick sentences that acknowledge the emotions that you are feeling without attributing any judgment to the stated emotions. An effective reframe redirects the conversation in a constructive direction, opens up possibilities, deescalates the tension in the room and illustrates that you are present and engaged in the dialogue.
Summarize- one way to let the speaker know that you have heard them and understood them is to summarize (paraphrase) what the speaker has said. You are not simply mimicking their words- you are internalizing the essence of what's been said and giving it back to them in your own words.
* Note: During the talk and it was stated on the handout it was partially adapted from material produced by EBCM in 2003.
From Jeff Thompson's Enjoy Mediation Blog
Susan Collin Marks is the Senior Vice President of Search for Common Ground (SFCG). In this interview with the European Journalism Centre, she describes some of the goals of SFCG and specific projects involving popular media to reach millions of people in war-torn countries.
The mission of Search for Common Ground, founded in 1982, is nothing less than shifting the world away from conflict to cooperative solutions. It now operates a series of global forums and media projects as well as seventeen field programs, mostly in African countries but also in Macedonia, Ukraine, Jerusalem, Nepal and Indonesia. These are all countries dealing with the effects of violent conflict as well as deep ethnic and political divisions. Read more »
From John Folk-Williams's blog Cross Collaborate
I got back late this week from the NeuroLeadership Summit with a strong need for a nap. The days were long and the presentations many. I hope to blog about some of the programs soon. Originally I had planned to blog in the evenings while there. Instead, soon after I returned to my room, I curled up in bed with a book and fell asleep minutes later.
People from all over the world were in attendance. I met and talked with a large number of people involved with a myriad of intriguing uses of neuroscience. (I only met one other mediator, though.) All in all, a very well-spent few days!
Now for the podcasts found here.
From Stephanie West Allen's blog on Neuroscience and conflict resolution.
As I have mentioned several times over the last few weeks, the Southern California Mediation Association (“SCMA”) will be hosting its Annual Conference on Saturday, November 7, 2009 at Pepperdine University School of Law, Malibu, California. (See, 2009 SCMA Conference) It will be preceded by a dinner on Friday night, November 6, 2009 at which Lee Jay Berman will host a discussion entitled “M3: How Do Mediators Spread The Word And Better Educate Users.”
The Conference is entitled: “M3 The Next Generation” and will explore all of the various ways in which mediation is being used, can be used and will be used. One of the panels will explore this from the female perspective. The panel, comprised of Jan Frankel Schau, Esq., Joan Kessler, Esq., Amy Fish Solomon, Esq., and Stacy Phillips, Esq. will examine the now historic literature on gender and communication and question its applicability in negotiation and mediation in 2009. The panel discussion, entitled “Negotiating in the Female Voice: What Can We Learn From Our Women Colleagues (Not For Women ONLY)” will explore the gender biases, assumptions, empathy and competition in mediation and negotiation.
I highlight this panel because recently one of its panelists, Jan Frankel Schau, made a very interesting point in her Schau’s Settlement Strategies. In it, she discusses the importance of having the important decision makers at the mediation and fully present in all respects. (See, top-twelve-tips-for-success-in-negotiations) Why? She explains:
“Statistics suggest that 55% of communication is non-verbal. It stands to reason, then, that if the decision maker is not present. . . , they miss out on more than ½ of the communication going on. . . .” (Id.)
Thus, when the client is not physically present at the mediation session, she does not become “invested” in the process; rather she is distracted by emails and what is going on where she is physically. Further, and more importantly, she is unable to respond to the bulk of the communication during mediation, since it is non-verbal. Thus, she will probably miss much of the true value of mediation, and as importantly, her matter will probably result in a disappointing outcome.
Ms. Schau further points out that while attorneys may dislike joint sessions, the clients, (i.e. the actual parties to the dispute) appreciate them. Why? . . .“The clients bring the conflict in and they are a critical component to its resolution.” (Id.)
Ms. Schau makes some important points. To learn more of what she has to say, come to the Conference and attend her panel discussion.
. . .Just something to think about.
From the Blog of Phyllis G. Pollack.
From Michael P. Carbone’s Mediation Strategies Blog
Bias does its greatest damage undetected, operating beneath the radar of our awareness or even contrary to our conscious intentions.
Bias can be costly, imposing what researchers have described as a “stereotype tax“, affecting everything from negotiating to hiring decisions. Unconscious bias can exclude qualified people from jobs or educational opportunities. Because of biases and assumptions about their counterpart on the other side of the table, negotiators are more likely to leave value on the table.
Bias is pervasive. It can be found where it is least welcomed, even in courthouses where justice should be blind and balanced, treating equally and with fairness all who come before the law.
To combat implicit bias and to raise awareness of its dangers in America’s courthouses, the National Center for State Courts has gathered on its web site an impressive collection of articles and videos on social cognition, judicial deliberation, and decision making, including these:
Also included is a link to Project Implicit, the ongoing research project into unconscious bias.
From Mediation Channel
By Peter S. Vogel
Allison O. Skinner is an attorney and full-time mediator at Sirote & Permutt and has written two outstanding articles about resolving eDiscovery disputes as a Mediator to develop a “Mediated Discovery Plan.” What a great way to help parties take advantage of the mediation process to reduce the out of control costs of eDiscovery and at the same time reach an amicable plan to deal with eDiscovery. Allison has setup a great model that will surely be widely adopted.
Allison’s Strategy
In a great article entitled “The Role of the Mediation for ESI (Electronically Stored Information) Disputes” Allison describes a straight-forward roadmap of how mediation can resolve eDiscovery disputes. She lists a number of benefits:
“How to Prepare an E-Mediation Statement for Resolving E-Discovery Disputes” will help all lawyers who want to resolve eDiscovery disputes using the mediation process, and allowing Judges to not have to split the baby on ESI which they may not even understand.
eMediation Will Work if the Mediators Understand ESI Disputes
Allison’s great idea is destine to change ESI disputes, but only if the Mediators understand eDiscovery. To be successful with eMediation the Mediator must be able to communicate clearly and simply with the IT folks who manage the ESI, and at the same time Mediator can help educate the lawyers about what makes sense in their case. Before Judges appoint Mediators (and lawyers who volunteer names of Mediators) a determination should be made if the proposed Mediator has sufficient the IT technical skills and eDiscovery experience to make eMediation a successful effort. Stay tuned for Allison’s plan to revolutionize eDiscovery!!!
Technorati Tags: ADR, law, mediation, e-discovery
Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com.
From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.
From Jeff Thompson's Enjoy Mediation Blog
The real test of a collaborative agreement only begins when the changes it requires hit the streets. That’s when it gets personal. Carrying out an agreement usually means that particular people will have to do things differently, pay costs they’re not used to paying, live with new restrictions, new requirements.
The negative side of change is often the first to be noticed, even if an agreement’s hoped-for benefits have been well-publicized. They may look fine on paper but quite different when change comes knocking on the door.
Half a century ago, Eric Hoffer wrote in The Ordeal of Change
We can never be wholly prepared for that which is wholly new. We have to adjust ourselves, and every radical adjustment is a crisis in self-esteem: we undergo a test, we have to prove ourselves. It needs inordinate self-confidence to face drastic change without inner trembling.
That’s especially relevant when it comes to implementing a collaborative agreement. Every collaborative leader and practitioner works hard to ensure that all the interest groups necessary to produce and support an agreement are in the room.
Even processes that are well designed can’t possibly include everyone. Representation is not a perfect system. There is a wider public and there are operational staff within implementing organizations who haven’t been in the loop. They may hear of it only during or after formal adoption. Even if they’ve heard of it, the potential impact may not have been clear.
The first test of implementation takes place inside the very organization(s) charged with turning its provisions into actions. Those actions may require changes in the way staff and managers do their work. They may have to master new skills, new procedures, new goals and metrics to measure progress. That can look risky to both career prospects and professional self-esteem. And fears at that level will likely trigger resistance to change.
As noted in the earlier post, resistance is often considered an irrational obstacle to implementing new ideas and methods. There is likely a group ready to embrace the changes; they “understand.” The resisters “don’t get it” and stubbornly cling to their familiar ways.
What is often overlooked, however, is that those in favor of the change also have an emotional response. Instead of feeling fearful and threatened, they feel empowered and excited. In both cases, what happens is that people personalize the change. They favor or oppose it by imagining what it will mean for their own lives and jobs.
Marketers and politicians, among many others, have long understood that people don’t accept something new simply because they hear a list of excellent reasons. They have to be moved to act in a new way. When it comes to accepting the changes called for by new policies, both the staff charged with carrying them out and the members of affected communities need to translate the abstractions they hear into specific ways their daily personal and work lives might have to change.
Yet responses by leadership to emotional resistance usually rely on efforts to educate, to provide additional information to persuade the skeptics. That’s a rational strategy. It assumes that if each individual grasps the benefits, which seem obvious to those who support the new agreement, they should understand how their interests will be met and their situation improved, despite certain trade-offs that might be necessary.
It’s also assumed that emotion is a negative that clouds judgment. Reason should prevail through a calm appraisal of the pro’s and con’s. Emotion needs to be vented, gotten out of the way as quickly as possible. They are matters of individual adjustment.
If the change is deep enough, those assumptions don’t capture the reality. There are several dimensions that will not be touched by additional information and education.
Emotion and reason are not good or bad. They are different ways of evaluating experience. Emotional responses indicate not only the intensity and hence importance of the concern. They also are signals about basic values that shape daily life. And as noted above, they are a principal means by which individuals internalize and make sense of impending change.
Emotions are not entirely internal to individuals. People react on a feeling level to an event or perception of some kind and look to others experiencing the same thing for validation of that personal reaction. If you learn that most of the other staff in your program or neighbors in your community or whatever type of group you’re part of may share the same feeling you do, it’s a great relief. In that sense, emotional responses are highly social and are legitimized by being shared.
One of the realities that is often forgotten in the push to carry out the terms of an agreement is that whatever change it requires is experienced in a broad context of other, unrelated shifts that are taking place at the same time. If the cumulative effect makes life or work harder, the latest change might be experienced as the last straw. Future benefits may not materialize, but I’m paying yet another price in the here and now.
So what to do?
Start by recognize the legitimate feelings of the opposition – and show understanding of the larger context of change that is also putting pressure on them. Demonstrating that understanding lets people know you want to be responsive to the impacts they face.
Take a collaborative approach in figuring out how to proceed from this point. Those who believe they’ll be harmed need to have a chance to communicate exactly what they’re concerned about and know that they’re really being listened to. If the response is more one-way flows of information to show how mistaken they are, that may only increase the frustration. They’ll believe they’re not being heard, and the divide between adopters and resisters will be reinforced.
Create a forum to allow the expression of the fears of loss related to specific changes but then go beyond that to elicit ideas for action that respond to those concerns. This may well require the help of a facilitator trained in the many methods for working in this context. They will know how to structure and conduct meetings of this type to produce positive outcomes.
To build on those results provide learning opportunities on how to put new ideas for action into practice. Organizational staff need training and/or mentoring tied to their specific assignments and assurance that they’ll be given adequate time and opportunity to master new skills. Community members need hands-on workshops close to home that give them a chance to learn step by step what they can do to carry out the ideas they’ve helped develop.
There is no way to accommodate everyone’s needs or respond to every concern. But there are ways to address the ones that are widely shared. Publicity campaigns and testimonials won’t do it. Responsive collaboration during implementation can make a positive contribution.
From John Folk-Williams's blog Cross Collaborate
Not only do the people in the room affect the outcome of a mediation, but the room itself may, too. How much attention do you pay to the little things in the conflict resolution setting? Let's look at some recent experiments that just might increase that attention.
One factor in the environment that may have an influence is smell. Research indicates that a scent in the room can promote fairness. From "Cleanliness May Foster Morality" (Live Science):
A simple spritz of a fresh-smelling window cleaner made people more fair and generous in a new study.
...
[Researchers] conducted fairness tests, with subjects completing tasks in a room that was either unscented or one that was sprayed with a common citrus-scented window cleaner.
When in a scented room, subjects were more charitable and fair.
Some more interesting research that may confirm the relationship between morality and cleanliness:
I am not suggesting you mist the room with Windex prior to each session, but that paying close attention to the mediation room is important. Galinsky summarizes the underlying point of the research for mediators in this quote from "Do 'Clean' Smells Encourage Clean Behavior?" (TIME):
"Economists and even psychologists haven't been paying much attention to the fact that small changes in our environment can have dramatic effects on behavior. We underemphasize these subtle environmental cues," he says.
Another environmental variable that can affect how people see and interact with each other is temperature. Recent research has shown that the temperature of a room, or of a beverage being
held, affect social relationships. Warmth promotes feeling closer to others and having a more relational focus. Read more in The social thermometer: Temperature affects how we perceive relationships (Neurophilosophy). Research abstract.
In the other direction, emotional feelings affecting body temperature, research has shown that feeling excluded can make a person feel colder. Click to read "Cold and Lonely: Does Social Exclusion Literally Feel Cold?" [pdf]. This research is still another indication that feelings and temperature are probably related.
That relationship, as well as of the possible influence of scent, are good pieces of information for conflict professionals to keep in mind as they evaluate settings, and even beverages served.
Recently, I was sent a study that was published in The Jury Expert (www.astcweb.org) entitled “Civil Case Mediations: Observations and Conclusions” by James A. Wall, Jr., and Suzanne Chan-Serafin.
The authors researched 62 civil case mediations in two cities to determine, empirically, whether the behavior of the mediator and/or that of the plaintiffs and/or defendants influenced the process or outcome of the mediation. The cases observed were mediated by attorneys (21 of them) and retired judges (8 of them) who had practiced law on average for 30 years and had mediated on average 606 cases over about nine years.
First, the authors found that the settlement rate varied with the type of case. “Specifically, 89% of liability cases other than motor vehicle and medical malpractice (e.g. slip and falls. . .) ,69% of motor vehicle cases and 75% of medical malpractice cases resulted in settlement agreements.” (Id.) In contrast, 10% of contract cases and 50% of employment cases ended in settlement. Further, they found that the smaller cases settled more often than the larger ones.
Second, the authors found that whenever a party had high goals (aka unrealistic expectations), the mediator did, indeed, use assertive techniques/statements to provide the dose of reality.
Third, the authors also found that their chicken-and-egg cycle for the plaintiffs’ and defendants’ behaviors was an accurate prediction:
“Specifically, plaintiffs made higher concessions than the defendants; mediators expected they could get higher concessions from the plaintiffs; therefore, they applied more assertive techniques to the plaintiffs. (Id.)
The authors found that the mediators did not use “. . .more assertive techniques when there were low concessions and non-agreement.” Id. Rather, two process were at work when there was non-agreement. In one set of cases, the mediators did use assertive techniques in the face of excessive demands by plaintiffs, but to no avail. In the second type of cases – contract and employment – “. . .the mediators became bogged down in the cases or became impatient and instructed the disputants to simply exchange numbers. . . .” (Id.) Not surprisingly, few agreements were reached.
Finally, but most importantly, the authors found that the behavior of the mediator really had no effect on whether the case settled. In 27 of the 62 civil cases reviewed, the mediators’ behavior had no effect upon the agreements. However, in the other 35 cases, “the mediators’ techniques affected the disputants’ behaviors but even in these, there was evidence that the mediators’ behaviors were occasionally reactions to – rather than a cause of – a plaintiff’s or defendant’s behavior”. Id. In short, either the mediator did not affect the outcome or her behavior was affected by the parties’ behavior and not vice versa. Id.
In sum, it seems that this research supports the assertion of Judge Wayne Brazil that mediators “should understand that they are hosting a negotiation process.” Id.
Obviously, as a mediator, I find this last result disconcerting. While I have hosted many a negotiation process in which I know I did not “affect” the parties’ behaviors because the matter settled quite easily and quickly, I also knew that I have hosted many a mediation in which my mediation skills did make a difference. In my gut, I know that the case would not have settled without my assistance. To say my behaviors in such instances were reactive rather than proactive to those of the parties, misapprehends the art and science of interpersonal relationship skills. As a mediator, I neither “control” the substance nor the process of the mediation. Rather, I must follow the lead of the parties, to see where they are and assist them in moving towards resolution. I “go with the flow,” take my cues from them and do not “call the shots.” So, my behavior must be “reactive” but at the same time, my “reactive” behavior is designed to channel the parties towards realistic goals and expectations, towards helping a party understand (or, at least, acknowledging) the other’s viewpoint, towards making concessions, towards understanding the needs and interests of all concerned and hopefully, towards resolution.
So while the study is interesting, I am not sure that it understands really how a mediator plys her craft and uses the tools in her toolbox.
What do you think?. . . Write a comment!
. . . Just something to think about.
From the Blog of Phyllis G. Pollack.
Though I'm not wild about raising the over-discussed issue whether mediation is a profession, in writing L is for Lawyer (for the ABC's of Conflict Resolution) I had occasion to take a look at the characteristics of "professions." I thought I'd share them with my readers to add a little fuel to this long-burning fire because, frankly, L is for Lawyer is one of the most boring chapters of this book.
From the Wikipedia entry on the topic "Profession."
They forgot the part about getting to wear a costume! Hence the wig at right.
action to fight corruption available at [1].link title This has caused for global audience and even the worldbank launched an international competition in it people are used to Some professions set standard scale fees, but government advocacy of competition means that these are no longer generally enforced.[citation needed]
ODR Cyberweek begins Monday and I’m thrilled to be part of a live event near the end of the week: Going from OH? to KNOW!.
The brainchild of Jeff Thompson, one of my favorite bloggers and a guy with a pretty compelling bio, the event brings together five major ADR bloggers to discuss our tips and strategies, the tools we use, how blogging has helped us, and to take your questions.
Here’s the skinny and where to find more information:
Who
What
We’ll be discussing blogging, social media, online communication tools, and other web technology for building, extending, managing, serving clients, and yes, having fun in our work.
When
Friday, October 30
2:30pm – 3:30pm Eastern time
Where
It’ll all be streamed online, live. I hope to be able to post the recording of it here later, but encourage you to help us have some fun and good learning by joining us live online.
How
Participant space is limited, so sign up soon by emailing Jeff at mediator.jeff@gmail.com.
For more information
Hope you can join us!
From the Mediator Tech blog of Tammy Lenski.
As in any other field, public sector consensus building always gets to the critical moment when choices have to be made. In my experience, how a group accomplishes this reveals more about motives behind decisions than any other step in the process.
Several years ago, I worked with a large group to build consensus on a regional water plan. The stakeholders had agreed that they would need a well-designed process for identifying alternative scenarios and then narrowing them down to the one everyone could accept.
They rejected the idea of a formal decision support method, which usually has to be managed by a technical expert. Instead, they wanted a more transparent procedure that could be publicly documented and understandable without a lot of technical background.
Working with the engineering consultant, we came up with a fairly common approach. The group agreed on a set of ten criteria reflecting the key values the stakeholders as well as legal requirements. Each of the criteria was broken out into specific, measurable components.
These would be used to establish a numerical score, and each of the criteria weighted in related to the rest. An average of the weighted scores could then provide an overall rating number as a rough basis for comparing the alternatives. The scoring may have satisfied the group’s desire to document what they were doing, but it had relatively little impact on their actual choices.
Putting the alternatives together was tricky. Many participants were used to a typical environmental review process in which three alternatives are constructed in a fairly arbitrary way. Two of them lean so heavily to one side or another (e.g. environmental vs. economic interests) that they clearly won’t be acceptable. The third tries to strike a balance between the others and is invariably the one adopted. That approach is a way of channeling thinking into predetermined forms and stifling creativity.
For this water planning process to work, each alternative, while giving some extra weight to the values of a particular constituency, needed to be a viable basis for negotiating a final plan. To do that, the group drew on 100 water project and policy options to define six alternatives, each of which could achieve the plan’s goals.
Everything went according to plan, though there were naturally many difficult meetings to get common understanding and agreement about the options, criteria and alternatives. Each alternative was scored – although that too was tough to get through, especially when it came to the weighting of the criteria. After a lot of negotiating, the alternatives were whittled down to three.
All this followed the logic of meeting interests and satisfying state planning requirements. A well-documented and transparent process was unfolding, and negotiations seemed to be making progress. But I knew that the group hadn’t yet come to the moment of truth.
There’s nothing like the final commitment, complete with name on the dotted line, to put each negotiator under the gun with their own organizations. Although they may have been passively following the process to this point, now they look at every detail and put the whole package through a worst case analysis. Every interest group finds elements it likes and others that could put some of their goals at risk. Usually the decision to accept a complex agreement boils down to the level of risk the interest group is willing to live with.
The representative who is negotiating at the table is caught in the middle between the pressure of the folks back home to hold the line and the collaborative expectations of the other participants to find common ground.
The driving force behind the final negotiations was this constant pressure and the personal calculation of political risk. Feasibility had been the final criterion added to the evaluation process – and that had many dimensions, financial, engineering and political. But it was political feasibility that determined almost every choice in the increasingly frantic pace as the group closed in on a final decision.
While the interests of each group represented at the table might be crystal clear, the political influences of the moment can easily distort a constituency’s perception of what would best meet its needs. A technically sound water project option, in this case, appeared to meet the interests of three major groups that had been at odds for years over water supply. However, the fears of one community forced its representative to push the project completely off the table. Even to talk about it or support further study of the option would mean political suicide.
The project had been a lightening rod for conflict for so long, it was now a symbol of contending values. None of the key interests could let go of that conviction in spite of evidence that the technical concept could be made to work in a mutually advantageous way. A water district manager could lose his job for suggesting its adoption, a city council member could be voted out of office, an environmental leader could lose the confidence of her organization’s large membership.
The impact of such pressures and established ways of perceiving the issues is just one of the many ways in which the concept of interest-based negotiation needs to be adapted to complex realities. I haven’t yet found a single model that captures the intricate interplay of all the influences that affect the work of a collaborative group.
Awareness of these multiple forces and the willingness to adjust methods to respond to them is essential. The regional water planning committee reached consensus on a final plan, though this agreement may have looked as much like a political balancing act as the outcome of interest-based negotiations. Nevertheless, it worked.
From John Folk-Williams's blog Cross Collaborate
From Michael P. Carbone’s Mediation Strategies Blog
A recent study provides some serious evidence that Americans prefer to read articles that agree with the opinions they already hold.
Researchers found that people spent 36 percent more time reading articles that agreed with their point of view than they did reading text that challenged their opinions. Even when they read articles contrary to their view, they went back to data that supported their original views.
“We found that people generally chose media messages that reinforced their own preexisting views,” said Silvia Knobloch-Westerwick, co-author of the study and associate professor of communication at Ohio State University.
“In general, they don’t want their views to be challenged by seriously
The results showed that participants clicked on an average of 1.9 articles that agreed with their views, and 1.4 articles that didn’t. The participants had a 58 percent likelihood of picking an article that supported their viewpoint, versus 43 percent likelihood of choosing an article challenging their beliefs.
Participants were most likely to read only articles that were consistent with their views, the study showed. Next most common was reading both views on an issue. Very few people only clicked on articles that opposed their views.
According to the study, people who reported that they read news more frequently, on the other hand, were more likely to avoid opposing viewpoints.
“People have more media choices these days, and they can choose to only be exposed to messages that agree with their current beliefs,” Knobloch-Westerwick said. “If you only pay attention to messages you agree with, that can make you more extreme in your viewpoints, because you never consider the other side,” she said.
This research has interesting implications for conflict resolution. One specific thing that comes to mind is that it suggests that in conflict scenarios where people have entrenched beliefs as to the merits of their case, they are not inclined to listen to contrary views. As the research suggests, although they may initially listen to the other side has to say, they may still resort back to their original beliefs and consciously look for evidence that supports their belief.
This principle is very closely connected to the concept of reactive devaluation, where a person devalues what the opposing side has to say about a topic. These two concepts together can make a very difficult scenario to break through when trying to resolve the conflict.
Participants in conflict resolution need to be aware of these biases when trying to come to a mutually agreeable resolution.
One way to address these biases is to first listen to the other side’s views without attack. This enables you to gain respect and to show that you respect their opinion.
In addition, if you are providing information that is contrary to the other side’s belief, try to provide the bad news after you have given the good news about their case. For example, your argument about the Causation is very good. However, there could be problems with Negligence. This method will allow you to gain credibility by accepting their initial position, and then as a proponent of that position presenting a problem.
Research Source:
Americans Choose Media Messages That Agree With Their Views. ScienceDaily. Retrieved October 25, 2009, from http://www.sciencedaily.com/releases/2009/05/090528110625.htm
From the Mediation Matters Blog of Steve Mehta.
From Larry Susskind's blog on the Consensus Building Approach
Bono in the NYT today: "The Nobel Peace Prize is the rest of the world saying, “Don’t blow it.”
But that’s not just directed at Mr. Obama. It’s directed at all of us. What the president promised was a “global plan,” not an American plan. The same is true on all the other issues that the Nobel committee cited, from nuclear disarmament to climate change — none of these things will yield to unilateral approaches. They’ll take international cooperation and American leadership.
The president has set himself, and the rest of us, no small task.
That’s why America shouldn’t turn up its national nose at popularity contests. In the same week that Mr. Obama won the Nobel, the United States was ranked as the most admired country in the world, leapfrogging from seventh to the top of the Nation Brands Index survey — the biggest jump any country has ever made. Like the Nobel, this can be written off as meaningless ... a measure of Mr. Obama’s celebrity (and we know what people think of celebrities).
But an America that’s tired of being the world’s policeman, and is too pinched to be the world’s philanthropist, could still be the world’s partner. And you can’t do that without being, well, loved... the idea of America, from the very start, was supposed to be contagious enough to sweep up and enthrall the world.
And it is. The world wants to believe in America again because the world needs to believe in America again. We need your ideas — your idea — at a time when the rest of the world is running out of them."
Bono tends to be an aphorist, but he's a thoughful guy for a pop star. The world needs hope, and Obama has become the spokesman for hope. (or HOPE, as is appears on the poster.) The Nobel was about hope that America will wield its power in a circumspect and collaborative manner. I don't think this hope is misplaced, and I can see the rationale behind the Nobel committee's decision.
All this talk about how Obama's not doing anything is interesting. I suppose pressure like this is inevitable at the end of the first year. Once we get health care passed it'll drop off relatively quickly, I think. And I think Obama is wise to tackle the big stuff first -- plenty of time to get rid of Don't Ask, Don't Tell etc.
What's more troublesome is the growing chorus of voices attempting to indict leading-through-collaboration. Take this quote from Leon Wieseltier shared by Maureen Dowd today: "The common ground is not always the high ground. When it is without end, moreover, the search for common ground is bad for bargaining. It informs the other side that what you most desire is the deal — that you will never acknowledge the finality of the difference, and never be satisfied with the integrity of opposition.” There it is, the dreaded compromise.
Some on the left are angry at Obama that he isn't being more partisan, that he isn't using his power to ram initiatives down the throat of the opposition. But that's not his style. It's the reason why Obama was given the Nobel -- this clear sense that he wants to listen, and to persuade. Initiatives foisted on the opposition by force last only as long as the current administration is in power. Initiatives where agreement is built, brick by painstaking brick, can become new realities that will last for a generation.
From Colin Rule's blog.
Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” -- a space in which “we can move around directly in our own lives and indirectly by touching the lives of the young and old around us.” Miall, Ramsbotham and Woodhouse, Contemporary Conflict Resolution.
What does the 200-year present have to do with conflict resolution week? It reminds us that new forms never really completely replace the old ones. We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity).
Whichever dispute resolution mechanism you use, it should be much improved if you take up juggling (as reported this week at Idealawg).
Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).
No brand of law-giver or enforcer has ever entirely left the scene. Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog).
And of course the gadflies (wolf protection lawsuits anyone? at Point of Law).
Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk). We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People).
We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).
And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).
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My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109. [1]
My grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line [2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. [3] Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More
asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.
Grandpa's first war was, well, the First and his second was the Second,[4] as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third.
My imagined grandchildren, [6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) [7] and play many of the same games [8] he did – hop scotch, jump rope and ring-around the rosy.
Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'. Hybrids will give way to fully electric (and perhaps hemp-powered) [9] vehicles (effective or defective) and though electricity will continue to be generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. [10]
Law, politics, society and culture also exist in the 200-year present of conflict resolution. [11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later? Or do they weave our future together?
The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,
The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.
Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own business magazine - ForbesWoman (my part in it here). And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia. See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.
My grandparents', parents' and step-children's 20th Century was dominated by genocide [14] on a scale and a technological precision unimaginable to our earlier forebears. Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism. We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.
Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations. And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. [15]
With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which
provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.
As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist).
How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here).
The Most Effective Conflict Resolution Technology is the Oldest
One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”
Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).
The winner of Axelrod's competition was a program named tit for tat. Tit for tat was programmed to cooperate [19] with its first encounter with any other programmed player. It rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. [20]
As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor. According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry. When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat.
Laws and Lawyers
First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog. Why first or important? Know thyself. Everything else follows that.
We don't "dis" lawyers here at the Negotiation Blog. We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind. Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyers was not an insult. In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.
The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code.
These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week). [23]
For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones. [24]
Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).
Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table. See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.
I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e.,
shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.
Legal Rebels: the Sky is Falling at Simple Justice. Charon QC also weighs in on the ABA Legal Rebels project here.
Arbitration
Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. [25]
Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week. The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").
18th Century Dispute Resolution Technology: The (Inevitably Polarizing) Adversarial System
It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them." If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.
As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them." We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.
The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs." Nor could he any longer be "outlawed or exciled or otherwise destroyed." Nor could the King "pass upon him or condemn him."
English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments. Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog). The motion?
Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages.
Id. (and ouch!) On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors.
Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails. As Ken wrote in Conflict Revolution:
Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.
Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.
All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.
As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.
These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus.
Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named: Martin Luther King, Jr. - the arc of history is long, but it bends toward justice.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.
[1] See the WSJ Law Blog’s post on the evolving law on gay marriage this week – Procreat[ion] Not Required.
[2] Alas, there will always be lemons over at the Texas Lemon Law Blog (save those repair invoices!)
[3] See Ruth Bader Ginsberg Hospitalized at the Volokh Conspiracy, reporting on Ginsberg’s fall from the seat of an airplane before take-off.
[4] See the Law History Blog on Brewer’s Why America Fights.
[5] Radio Stations are Still with Us at the Broadcast Law Blog (covering Non-Commercial FM Station Availability).
[6] Grandchildren who will not, I hope, have to deal with my Alzheimers, the perils of which are described at the Slutsky Elder Law and Estate Planning Blog.
[7] Though, of course, e-books will be read side-by-side with hard copy as paper and cardboard eventually goes the way of Colonial era hornbooks. See Downloadable e-Books Change the Face of Brick and Mortar Libraries at the Law Librarian Blog.
[8] Those games will, of course, exist side by side the video variety, many of which are recommended as Tools for Special Needs Students and Educators at the Adjunct Law Prof Blog this week.
[9] See Hemp and Audacity at the U.S. Ag and Food Law Policy Blog.
[11] Unfortunately, one of my colleagues at ADR Services, Inc., blogger Jan Schau, will be celebrating Conflict Resolution week with the service of a subpoena to testify in federal court about a mediation over which she presided. On a more cheerful note, go to Re:Solutions for a Happy Conflict Resolution Day and Dialogic Mediation Services Blog for a nice Conflict Resolution Day image.
[12] Alas there’s still a gender gap as described this week at Ms. JD.
[13] Voting rights are still a matter of concern today, of course. See Judge Says Virginia Violated Rights of Overseas Voters at the Blog of Legal Times.
[14] See Rachel Anderson’s Law Blog on the scope of immunity for foreign officials that Anderson believes may have important implications for Plaintiffs seeking recompense for genocide.
[15] One generation wants out and the other wants in. See Don’t Ask, Don’t Tell, Don’t Teach at Sexual Orientation and the Law Blog.
[16] Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
[17] The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
[18] In Cells that Read Minds, New York Times Science writer Sandra Blakeslee explained:
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
[20] Check out the post on the Betrayal of Corporate Clients at the Investment Fraud Lawyer Blog.
[21] Wrongful death compensation over at the Product Liability Law Blog.
[22] Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
[23] This week Beck and Herrmann at the Drug and Device Law Blog note that “shame works wonders” in their post on the Free Speech Challenges to the FDA.
[24] Intentionally left blank.
[25] ADR professionals are often heard critics of the adversarial system, as can be seen over at the Australian Dispute Resolvers Blog where author Chris Whitelaw (really??) quotes the Journal of Law and Medicine as follows:
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
One of the issues hotly debated in the ADR field is whether it’s time for state licensing and regulation of the practice of mediation. The following are summaries of the arguments that each side to the debate has marshaled.
In the comments below, I’d welcome readers to add arguments that I’ve overlooked. I’m not critiquing the arguments, merely collecting them. The criticism I’ll leave for another day.
The arguments in support of state licensing of mediators:
The arguments against state licensing of mediators:
Related posts on this subject:
{ 5 comments }
From Mediation Channel
In a recent blog, I mentioned that the Southern California Mediation Association (“SCMA”) will be putting on its annual conference on Saturday, November 7, 2009 at Pepperdine University School of Law, Malibu, California. Entitled “M3 – The Next Generation,” (see,2009scmaconference923095) its theme is the increasing use of mediation in our society. In 1976, Professor Sander espoused the novel proposition of having a “multi-door courthouse” at the Pound Conference. (I will call this M1 or the first generation of mediation).
Over the next twenty years or so (M2 – the second generation of mediation), mediation and other forms of alternative dispute resolution (ADR) slowly took hold, both in the courts and in the community.
Slowly but surely we have now come to M3 – the third generation of mediation - where mediation is becoming the norm and “litigation” is becoming the rarity.
Where will M3 take us? I believe “everywhere.” Serendipitously, one of the conference’s speakers, James Melamed (who will present a discussion about online mediation), believes the same thing. Although the theme of this conference came to me in January, I came upon an article published by James Melamed on mediate.com in March 2009 entitled “The Mediation Industry: Our Time Has Come.”
In the article, Melamed opines that mediation is being used more and more often in these difficult economic times, precisely because it is “better, faster and cheaper” than the alternatives, (i.e. litigation?) Id. Mr. Melamed explains:
”[Mediation’s] growth is not based upon people wanting to engage in conflict. People hate conflict. Our growth is based upon mediation, despite its flaws, being widely and consistently viewed as the best alternative process available. If people cannot resolve things themselves, it simply makes sense to have a capable helper step in to assist rather than subsidizing a smaller war. . . .” Id.
Mr. Melamed opines that mediation fits today’s world because it is so flexible and adaptable to any situation or circumstance. A session can last 2 hours or 20 hours and can be used to lessen the blow of the current foreclosure crisis or to resolve mass claims arising from a natural disaster such as hurricane Katrina. Id.
The author further notes (as have I in previous blogs) that the Obama administration has shown its commitment to collaboration: in fact, the President, himself, has mediated a dispute or two while in office – be it the “beer summit” or between France and China (“One Word”).
At the SCMA’s conference, Mr. Melamed’s presentation will take us into the future; he will discuss using the internet and other forms of digital technology to mediate and resolve disputes.
If mediation is being used more and more today, just imagine how much broader its use will be by using the internet.
. . . Come join me at the Conference to learn where the future of mediation is taking us!
. . . Just something to think about.
From the Blog of Phyllis G. Pollack.
The One Hundred Eleventh United States Congress began on January 3, 2009 and will last till January 3, 2011. Following is a summary of some alternative dispute resolution bills currently being considered during this session. Click on the bill number for its text and on the status link to find the bill’s most recent legislative action.
Stay tuned to Disputing for more legislative updates!
From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.
A new study published in Economic Inquiry addresses the question: “If we can make a deal, why fight?” The authors conclude that a combination of each side recognizing the probable outcome and both sides considering the use of time similarily allow a potential loser of a conflict to use small concessions to successfully appease an expected winner. Given those conditions, small negotiated concessions can work, but in situations where clear and specific inequities exist, small concessions to avoid a fight won’t work.
The article offers support for their theory that “in the baseline case of common beliefs and identical time preferences, if the size of indivisibility is sufficiently small, conflict can always be avoided by a series of small concessions, with both parties recognizing that there will be additional concessions in the future.”
According to the research, both sides to the conflict must recognize the relative strengths of their positions and conflict can only be avoided when both parties agree that peace is preferable. However, if the perceived winner is more impatient than a likely loser, then this factor is a major consideration in talks failing and conflict being inevitable.
Although this research is not in the field of mediation, some of this research can be translated to litigation. First, the research supports the concept of ripeness for mediation. See my prior article on ripeness. There is a time that is better for mediation than others. Both sides must recognize their strengths and weaknesses, and must be willing to consider peace.
Second, how each side views time is also important to resolution. Recently, I had a mediation that nearly failed because of time perception disparities. The defense had a very strong case to demonstrate that there was limited to no liability. The plaintiff, however, was extremely emotional about the underlying facts, regardless of whether liability was good or bad. As the mediation progressed, the defense got increasingly more impatient with the progress of the mediation because the defense could not understand why the plaintiff wasn’t making more concessions and would not accede to what the defendants thought was a fair offer.
Each side had a different perception of time: Plaintiff believed that the process was about her and her emotions. She was not looking at the clock. She was not paying hourly to her attorney. Defense on the other hand felt that if the mediation was not going to work, why waste time when they would eventually win at trial. Only after both sides could understand the other’s perception of time, then the case became ready to resolve.
Reference:
From the Mediation Matters Blog of Steve Mehta.
Collaborative agreements often come together after seemingly endless sessions of hard negotiation. When reached, they may well represent a breakthrough achievement, finally getting long-time adversaries to agree on the toughest issues dividing them.
After that triumph, though, implementation may require continuing collaborative work for years. While there are many examples of success, others produce disappointing results. Why does that happen? How can it be avoided?
Once I had the opportunity to observe a collaborative group that had been working well for several years as an ongoing policy forum. Its focus was a large area of public land devoted primarily to recreation and managed by a dozen federal, state and local agencies. The signature achievement of the group had been a collaboratively negotiated management plan that was now a couple of years into the implementation phase. The meeting I attended was a progress review of the plan’s recommended action steps.
A large spreadsheet listed the 50 or so projects prioritized under the plan, and I wondered why the agenda only devoted a short time to such a massive review. It soon became clear, though, that little time was needed. A quick succession of speakers said more of less the same thing. The agencies responsible for most of the projects had no funding to carry them out. Yet each of these agencies had been full partners in the agreement and signed the final document.
As is not uncommon, implementation depended on the commitment of each of the group’s member organizations – both private and public – to take action on specific projects under the plan. Even though the commitments had been made in good faith, no connection had been established between the plan and budgetary processes. A few years into the implementation phase, most of the agencies seemed to lack incentive to push the necessary projects higher on their internal lists of funding priorities.
The problem this group ran into highlights a central aspect of collaborative policy groups. They are voluntary associations convened ad hoc to address specific issues. They have no authority either to make binding decisions or to enforce agreements.
As Donald Kettl puts it in his book, The Next Government of the United States
It is all the more remarkable, given the lack of centralized control, that so many collaborative agreements have been carried out effectively to meet ongoing needs. For example, collaborative implementation through public-private networks of independent agencies sustains the delivery of many social services, provides emergency response teams and creates joint management for large recreational areas.
There are many factors that can determine the success or failure of collaborative implementation. William Leach has provided an excellent summary (continued in this post). Potapchuk and Crocker also have an extensive discussion in Implementing Consensus-Based Agreements (The Consensus Building Handbook
One factor is especially important in determining the outcome of a collaborative implementation process. That relates to institutional self-interest of parties to an agreement and their incentive to keep commitments.
The process of reaching consensus agreements often depends on defining joint gains for the participants through interest-based negotiation. A central tenet of this process is that all the interests around the table need to achieve at least some of their priority goals. So long as implementation of the agreement continues to meet the shared interests of the collaborating agencies, they all have a strong incentive to sustain their commitments to action.
That’s the case with most emergency response networks. Each agency shares public accountability for effective performance and finds the collaborative arrangement the best way to ensure this.
But there are also many cases where implementation depends not on the coordinated action of all working together in a single time frame but on a sequence of steps carried out by different agencies acting in turn over a long period of time.
For example, a complex agreement on habitat protection and urban development might involve the near-term approval of regulatory permits to allow construction of new housing projects based on time-sensitive investments and loans. Habitat conservation, however, is a long-term goal and may depend on private land transactions years in the future that are supposed to observe buffer areas between protected lands and urban development. Changes in market conditions over time may remove incentives for the developer to follow that part of the agreement. Threats of business failure, for example, may create new incentives that work against the interests of the conservation organizations trying to protect unique habitat areas. Collaborative implementation begins to fall apart.
This can happen even if the parties structure their agreement as a formal contract with mechanisms to ensure follow-through on commitments. If voluntary tools like mediation don’t work and the only recourse is to litigation, filing a lawsuit only confirms a breakdown of the collaborative implementation process.
Ultimately, every collaborative enforcement mechanism depends on the voluntary commitment of the independent entities that are parties to the agreement. If good faith and incentives for sustained involvement disappear, by definition no one can compel collaboration. The crucial preventive measures, then, need to take place before agreements are finalized.
That makes it all the more important to focus on the interplay of interests over time. One of the critical steps for avoiding later problems is to negotiate a structure of incentives that equally reinforce the commitments of all participants.
That will be the topic of the next post in this series.
From John Folk-Williams's blog Cross Collaborate
From Jeff Thompson's Enjoy Mediation Blog
To do my part to improve argument and discourse everywhere, each month I feature a different fallacious argument. I launched the series in July with the straw man; discussed the false analogy in August; and in September explored the misused ellipsis.
Today I take great pleasure in introducing you to October’s Fallacious Argument of the Month, the confusion of cause and effect.
There’s an old joke that goes something like this: A guy walks into a bar, sits down, and orders a beer. As he waits for his beer, he claps his hands together again and again, loudly and insistently. Annoyed, the bartender asks, “Hey, pal, what’s up with the hand clapping?” The guy says, “It scares the elephants away.” “But,” says the bartender, “there aren’t any elephants around here.” The guy replies, “See? It’s working!”
It’s easy enough to snicker at the beer drinker’s logic. But unfortunately this confusion between cause and effect is no laughing matter. It’s a persistently occurring phenomenon. All too often, people readily assume that when Event B follows Event A, it must be because A caused B.
The confusion of cause and effect is often used for political purposes to manipulate public opinion by exploiting prejudice or fear. It has been used to attribute blame for a host of social ills to purported causes that have included feminism, video games, atheism, and the internet. But it is also often the product of careless or exploitative journalism. For example, when British schoolgirl Natalie Morton died unexpectedly from an undiagnosed malignant tumor shortly after she had received a vaccination to prevent cervical cancer, some media rushed to report that it was the vaccine that killed her, fueling public anxiety.
These false connections flourish best in the presence of closed minds and foregone conclusions. They persist only because countering them demands hard work – a willingness to discard assumptions and dig deep for the facts.
From Mediation Channel
The question of whether someone can commit malpractice during mediation is recently gaining quite a bit of traction. The answer to that question lies in the philisophial riddle “If a tree falls in a forest and no one is around to hear it, does it make a sound?”
In mediation in many states, and Specifically in California, the answer would be no, there is no sound when the tree falls down. That is because mediation confidentiality has been strictly interpreted in California to prevent any testimony by a mediator or the parties to actions that took place during the mediation.
The ADR Prof Blog recently identified an Oregon case that addresses that very issue. Here’s what they had to say:
Not long ago, a federal court in Oregon gratned summary judgment for the defendants in a legal malpractice claim. The case highlights the stakes involved in expansive mediation privileges. Or put differently, the case highlights the tradeoffs of having limited exceptions to a mediation privilege. For anyone looking for a good set of modern facts to use in a Mediation class on confidentiality, this one will probably serve you well.
Fehr v. Kennedy, 2009 WL 2244193 (D.Or.).
Roughly speaking, the Fehrs were defendants in an action brought by ASH, an LLC of which they were a part. ASH alleged that the Fehrs breached their fiduciary duties to the LLC, engaged in fraud, and in a civil conspiracy. The case went to mediation, and no settlement resulted. The case then went to a bench trial, and the court awarded ASH a judgment in excess of $300,000 against the Fehrs.
The Fehrs then brought suit against John Kennedy, the attorney who represented them in the ASH v Fehr lawsuit. The Fehrs alleged that Kennedy had “failed to advise them of the risk of going to trial and specifically discounted and contradicted the mediator’s assessment of the likelihood of success of ASH’s claims and the consequences of a loss at trial.”
Read More by clicking here.
California courts have not expressly addressed this issue. However, more and more courts are evaluating this issue similarly. See for example, a New York court protected the mediation confidentiality as reported by a New York attorney Andrew Bluestone in his blog. 
The concern regarding this issue is that if mediation confidentiality is breached by a claim of malpractice, it would not only address the parties at issue, but would necessarily affect the other party in the mediation. How can someone talk about malpractice without addressing what was said by the other side? Take for example, a claim that the attorney falsely told the client about the risks of trial, and that the truth was only discovered in mediation. Necessarily, some of that information regarding the risks of trial would probably be coming from the other side. In order for the legal malpractice claimant to prove his or her case, she would need to prove what the mediator stated during mediation. Much of that information that the mediator knows about the case is coming from the opposite side. As such, allowing an exception for legal malpractice would potentially breach the confidence of both sides of the participants to the mediation.
On the other hand, allowing mediation confidentiality to remain would potentially prevent legal malpractice claims from being brought. Moreover, allowing such confidentiality could also encourage attorneys to hide their potential malpractice during mediation so as to prevent any evidence being raised.
In my opinion, the confidentiality of the mediation process and the need for a mediator to be able to gain the trust of both sides through such confidentiality outweighs the harm that may occur to the potential plaintiffs when they are unable to prove their malpractice case. Similar analysis has been conducted in the context of attorney-client privilege where certain claims may be proven by resorting to the attorney-client communications but are nevertheless protected and confidential because of the greater benefit in protecting the attorney-client privilege.
From the Mediation Matters Blog of Steve Mehta.
The text below is taken from vol. 1 issue 2 of”Conflict Chronicles” of October 15th, an email newsletter published by the Conflict Resolution Center of the University of North Dakota:
Carla and Joel came to mediation to work through their differences as they moved toward divorce. They met several times to talk about who would have primary custody of their two children, and what kind of parenting time could be worked out.
As with many couples, Carla had been thinking about separating long before Joel, who was still hurt and resistant to the idea. In fac[t], many times, Joel talked about the hatred he felt for his own mother for leaving his father, and would typically end with the threat, “I’m gonna make sure that the kids hate you as much as I hated my mom.”
Because of the mediators’ commitment to the ethics and principles of transformative mediation practice, they never lectured or stopped him, but rather reflected: “Joel, you seem to be so distraught about the situation that you are sure the kids will hate Carla for doing this.” Of course, Carla strongly argued against this action by Joel and reminded him of the abuse his mother suffered, but he didn’t seem to listen.
Surprisingly, between the second and third mediation sessions, Joel visited his mother on his own accord – the first visit in more than 12 years – and made amends for what had happened years ago. In that third mediation session, he cried, and told Carla about how this meeting with his mom had gone, and vowed never to allow that kind of hatred to impact his own children despite the divorce.
For the mediators, it was proof that people rarely change when pushed, or before your eyes, and that by trusting in the process and [...] in [the] parties’ capacity, your patience is often rewarded when the ‘bad dad’ emerges as a better dad.
From Arnold W. Zeman's blog
From Michael P. Carbone’s Mediation Strategies Blog
From Michael P. Carbone’s Mediation Strategies Blog
Last week, I discussed a study focusing on the effect of e-mediation (that is, a software program) on negotiating behavior. The study sought to determine whether a computer could mediate as well as, if not better than, a person. While the computer did reach resolution more often, people still preferred using the “live” flesh and blood mediator.
In my mediations, I have often found that a dispute arose due to a lack of communication or a miscommunication. That is, people did not mean what they said or did not say what they meant (or did not say it at all).
Now, it seems that there is a computer program to help us accurately understand each other (and avoid disputes altogether.) In the Technology section of the October 6, 2009 edition of The Economist, the authors discuss using computers to analyze sentiments. In their article entitled, “An Emotional Response,” the authors discuss research (by Stephen Pulman of the University of Oxford and Karo Moilanen, one of his doctoral students), using “Sentiment Analysis” software, to assess the emotional meaning of text and then labeling the words as positive, negative or neutral:
“The analysis is then broken into steps that progressively take into account larger and larger grammatical chunks, updating the sentiment score of each entity as it goes. . . .”
“By applying and analyzing emotional labels, the software can construct sentiment scores for the concepts mentioned in the texts, as a combination of positive, negative or neutral results. . . .” (Id.)
But the software does not simply do a tally; rather it applies a weighting to each word so that in the end, the software can determine whether a sentence has mainly a negative, positive or neutral meaning.
So, you wonder – to what use can this software be put? It seems that it can be used by companies seeking to identify unhappy customers (in an effort to stave off litigation such as “lemon law” suits) and by intelligence agencies seeking to determine if that e-mailer really does pose a threat to national security.
My question is whether such software should be part of my mediation toolbox so that when people say something to me, I can let the software tell me whether it was meant in a positive, negative or neutral context. It will let me know whether the party really said what she meant or meant what she said! If so, then so much for reading body language and knowing all of those other “tricks” in my toolbox. Now, computer software can do “it” all for me, including resolving the dispute! Technology . . .where is it taking us! Maybe, “back to the future!”
. . . Just something to think about.
From the Blog of Phyllis G. Pollack.
A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct. Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them. Recent research sheds light on this issue.
According to researchers at George Mason University and Oklahoma State University apologizing to a jury may lead more favorable results. The results of the study will be available in a the journal Contemporary Accounting Research.
Assistant accounting professors Rick Warne of Mason and Robert Cornell of OSU found that apologizing can result in lower frequencies of negligence verdicts in cases when compared to a control group receiving no apology or remedial message. The researchers hypothesized that apologies allow the accused wrongdoer to express sorrow or regret about a situation without admitting guilt. Alternatively, a first-person justification allows the accused to indicate the appropriateness of decisions given the information available when decisions were made.
“We found that apologies reduce the jurors’ need to assign blame to the [wrongdoer] for any negative outcomes to the client,” says Warne. “It also appears that an apology “influences the jurors impression that the auditor’s actions were reasonable and in accordance with professional standards.”
The researchers conducted several versions of a mock trial involving a lawsuit against an auditor whose actions had negative consequences on a client. The researchers examined whether a defendant making an apology, offering a justification, utilizing both techniques or remaining silent led to the most favorable verdicts.
“We know victims often respond favorably to an apology, but our findings suggest that even unharmed jurors react in a similar manner,” says Cornell. “Offering an apology though is not synonymous with admitting guilt.”
The majority of states have some form of ‘apology law’ that prevents an apology from being used against a defendant as evidence in court in some setting or other. According to the researchers these laws encourage the use of apologies when disputes arise.
“Defense attorneys must consider several factors before having their client testify in court,” says Warne. “However, we believe that most innocent parties could benefit from utilizing the apology and justification strategies when legal conflicts arise.”
In my experience, apologies – and especially heartfelt apologies – can have a significant impact on resolving many emotional conflicts. Given that the mediation setting is confidential, it is very easy for people to make an apology during mediation because such statements will remain confidential for legal purposes but have the desired effect of helping to reduce tension and deescalate a conflict.
Given that there is mounting research as to the effectiveness of these types of apologies as well as the financial benefits, an apology should be something to consider in litigation context.
See also, financial impact of an apology
From the Mediation Matters Blog of Steve Mehta.
Amid the excitement surrounding the Obama Administration’s use of the internet for massive public engagement, I’ve been looking for web-based applications that can be used on a much smaller scale to support collaborative policy projects.
While online services can’t yet take the place of in-person dialogue, there are many applications that can offer significant support through real-time web meetings.
This post gives a quick overview of one of the key meeting technologies: web conferencing. This provides the core functionality of today’s online collaborative experience. While the basic technology has been in use for some time, it’s only in the last few years that it has become affordable to smaller organizations. No longer restricted to in-house networks of large agencies, online meetings are accessible from any computer by means of a single link in an email or instant message.
What is Web Conferencing?
Web conferencing is an online meeting service that enables all participants to see the computer screen of the session convener while communicating by voice. Live presentations can be conducted using any application, such as PowerPoint, a spreadsheet or animated video – whatever the host of the meeting is displaying on screen.
A whiteboard, available in most of these applications, permits drawing, as on a flip chart, during the session. The host can shift control to another attendee’s computer at any time, allowing for collaborative work on the whiteboard or any other application.
Many of these applications now include limited video that shows one or two participants in corner windows, leaving the main part of the screen visible for the continuing demonstration. Other features include the ability for participants to communicate privately by means of text chat in side conversations during a meeting.
Audio is provided either through a conventional phone conference call or through a voice-over-internet (VOIP) service using the computer’s built-in speakers and microphone. These days, most of the applications incorporate voice communication into their pricing package rather than require purchase of a separate service.
Below I’ve included a video demonstration of DimDim, one of the newer applications. I apologize for the fact that this is a promotional piece (I have absolutely no connection to the company!), but it is the clearest presentation I could find. It summarizes features that are common to most of these applications.
Selected Web Conferencing Applications
Since features, per user costs and meeting capacities differ with each provider, each application needs to be evaluated for suitability to the needs of the users. [Cross Collaborate makes no recommendations of any kind.]
GoToMeeting charges a flat monthly fee for unlimited users with up to 15 participants. Although it is one of the more established screen-sharing meeting applications, it lacks features that have become standard for most competitors. These include whiteboards with drawing tools, file transfer and video.
DimDim offers a limited video feature, as shown in the demo, permitting meeting attendees to see the person in charge of the screen. Its free version permits meetings with up to 20 participants.
Yugma features a Skype edition and teleconferencing for larger meetings. The free version allows meetings with up to 20 participants, and the Pro version allows recording of every meeting for later playback.
Microsoft Office Live Meeting Live Meeting is a hosted service accessible through Microsoft’s Office applications. All Office features are available to use during screen-sharing sessions. Meetings can be scheduled and announced through Outlook in Windows, and audio is provided either through the computer on a VOIP service or by conventional call-in. Limited video elements are also incorporated.
Vyew includes a built-in VOIP service for up to 50 users and free tele-conferencing for larger meetings up to 150. It has an extensive set of drawing and annotation tools as well as optional plug-ins for specialized needs. Each meeting space is known as a VyewBook and contains “pages” which can be used to assemble, edit and comment on content from many different applications. The free version allows up to 10 participants.
Yuuguu has its own VOIP capability but also integrates with Skype. Screen sharing is quite fast to initiate through instant messaging or chat (all major instant messaging services are supported). Screen control can also be shifted quickly and files exchanged through the chat medium. The free version allows meetings with up to 5 participants.
WebEx is the most senior provider of screen-sharing technology. Although well known for a focus on corporate services, it also provides a package for small-to-medium organizations that permits meetings with up to 25 participants for a flat monthly fee.
In future posts, I’ll be reviewing the state of video conferencing as well as the use of older technologies specifically adapted to policy dialogue and deliberation.
From John Folk-Williams's blog Cross Collaborate
