Mediation or Meditation? (5/14/12)
John Sturrock Much has been written about the human brain in recent times. Eolene reminded us that the brain has two components, the limbic brain, which developed as homo sapiens dealt with primitive conditions and learned the importance of fight or flight. Later, the neo-cortex, the more rational part of the brain, was formed. But the two were – and are – not united. Our emotions could still override logic, especially under pressure. We are not Mr. Spock.
An Experiential Exercise to Dramatize the Five Modes (5/14/12)
Ralph Kilmann Several decades ago, I developed an experiential exercise for classroom and workshop settings in order to accelerate people’s understanding and internalization of the five modes (Competing, Avoiding, Collaborating, etc.). This articles walks readers through that example, and also provides insights for instructors as to why different parts of the exercise works.
On Beating Bullies (5/14/12)
Michael Jacobs Tackling bullying may involve a counter-intuitive approach. While naming and shaming may leave us feeling morally superior, it might also produce ever more subtle forms of bullying. This article argues that we need to encourage those of us who feel like kicking butts to ‘come in from the cold’.
Mediate.com Announces Open Access Week! (5/11/12)
James Melamed Mediate.com now has over 8,000 articles, 4,000 news items and 500 videos. Normally, some sections of Mediate.com are reserved for Mediate.com Premium Members and Subscribers. See
Mediate.com Sections. For the week of May 11-18, Mediate.com offers OPEN ACCESS to all site visitors and to all Mediate.com content!
Sixty Things You Can Do This Week (5/06/12)
Diana Mercer Below is a list of 60 simple tasks that you can get started on this week. These are designed to be simple tasks that you can do to market your arbitration or mediation practice. It is an excerpt from The Peace Talks Marketing Book.
Because The Other Side Has A Perspective (5/06/12)
John DeGroote “Every truth has two sides; it is as well to look at both, before we commit ourselves to either”. Aesop’s quote made sense over 2000 years ago, and the rest of this story reminds us it’s good advice today. This article examines the scandal at the New York Philharmonic when one patron's cell phone rang continuously--a good reminder to examine both sides' story without forming a conclusion.
A Divorce Lawyer's Suggestions For Mediators (5/06/12)
Scott Morgan This article offers advice from a practicing divorce attorney to mediators who are handling divorce cases. He offers his thoughts on how to best resolve difficult divorce cases. Addressed are issues such as whether there should be any limitations as to the parties being allowed to “vent,” whether joint sessions are helpful in divorce mediations, how to handle the situation when one side claims they are not able to settle because they are missing information, and whether potential court outcomes should be discussed.
Planning To Settle Complex Employment Cases? Ten Tips To Increase Your Chance Of Success (4/30/12)
Jeffrey Krivis Mediating complex employment cases is like rehearsing for a great performance. Success depends on planning and preparation. The Beatles rehearsed and played their music for 10,000 hours before they were ready for the Ed Sullivan Show. That’s not to say it’s necessary to spend that much time preparing for an employment mediation, but success or failure does often depend on your willingness to invest time in planning.
Real Estate Mediation and Arbitration (4/30/12)
Jim W Hildreth Why Litigate when you can Mediate? Today's consumer has other alternatives in a real estate dispute to avoid the cost and stress of litigation. Two of these alternatives are mediation and arbitration.
Conflict, Narrow Places, and Rebirth (4/30/12)
Ann Begler As part of the Easter story, we are taught a lesson about the possibility of redemption and deliverance. In fact, we are taught about the miracle of seeing that even one who has lost all life -- that one who has died -- can be renewed and can find life, again ... Whether we are in the midst of our own conflict, or we are someone who helps others to work out conflict, these stories, and the powerful and compatible lessons, provide us with useful guidance.
The Secret Language Divorce Lawyers Speak (4/23/12)
Laurie Israel Lawyers often use idioms rather than legal terms to explain concepts and strategies in divorce law to our clients. Somehow, these idiomatic terms are more descriptive and powerful in describing the dynamics and techniques that are present in a divorce than any other type of language.
The Mediator’s Toolkit – Neutrality and the Mediator (4/23/12)
Dave Aschaiek Neutrality applies to a mediator’s impartiality and refers to the idea that a mediator should not take sides in a dispute or voice an opinion about who is right or wrong in a dispute. While it is critical for a mediator to be impartial, two items must first be examined.
Check the Status, Please (4/23/12)
Jeffrey Krivis This story is for you if it’s difficult to tell who the decision makers are on your cases. You are looking for different approaches to influence your adversary. You need to adapt to changing events in order to maximize your client’s settlement.
Ten Common Negotiation Mistakes (4/23/12)
Nancy Hudgins Harvard Business School professors Deepak Malhotra and Max Bazerman wrote one of my favorite negotiation books: Negotiation Genius. There are many powerful negotiation strategies in this book. They also point out seven common mistakes that negotiators make.
Facing Mediation? 5 Strategies (4/22/12)
JoAnne Donner As a mediation coach, my mantra is “Mediation can be one of the most important days of your life. The decisions made that day can affect you and your family for the rest of your lives.”
Russia's New Mediation Law (4/17/12)
Allan Silberman Russia’s new mediation law, enacted January 2011, established procedures for resolving civil disputes including those dealing with commercial transactions, business activities and labor relations. The legislation also includes measures that regulate relations between the parties that arise during mediation and that govern the role and responsibilities of the Mediator. The legislation, comprehensive in its description of mediation, is designed to promote the use of the process and is seen as a means of alleviating congestion in the nation’s courts.
Conflict Resolution - The Indispensable Inner Life (4/17/12)
Michael Wright This article highlights the relationship of our thoughts and beliefs to our experience of conflict. It contends that our view of conflict is formed internally and, when left unquestioned, projects and holds itself externally in our conflict situation. It is argued that this dynamic blocks us from seeing anything other than the internal thoughts and beliefs that generated the conflict in the first instance. This also in turn blocks our realization of solutions. The article then points out that mediators are in a critical position to support client examination of conflict producing thoughts and beliefs, giving examples of a few common facilitative techniques that support client questioning of his/her thoughts.
The Mediator as Healer? (4/17/12)
Nigel Singer I have been a mediator for years, but only recently have I been toying with the idea that my role is a healer. This is a transition for me and an ongoing process. I am working through this concept and how it affects my identity. I also wonder how it changes my approach to my clients.
The Revolution in Family Law Dispute Resolution (4/12/12)
John Lande In the past fifty years, the revolution in American family law led to a revolution in family law dispute resolution. Virtually every aspect of divorce law has been transformed since the Mad Men era, including grounds for divorce, characterization of marital property, child custody presumptions, and alimony and child support rules. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle.
The Role of Imagination and Mediation (4/09/12)
Milan Slama Before you start the mediation process, you are already making some assessments. You imagine what kind of issues might occur. You imagine what kind of behavior you will have to deal with when it comes to interactions between parties. You picture their backgrounds and the environments they grew up in. As you go along you try to imagine their working environment, their personalities, and how they might act under various circumstances. To make it simple, you, the mediator, must do a lot of imagining.
Homeowner Mediator Association Primer (4/09/12)
Jim Lingl There is no “right” or “wrong” type of mediation style. Effective mediators can be helpful in almost any setting, regardless of their predominant style. But resolution of different types of dispute can be enhanced by the selection of the best style of mediator to match the participants and the conflict.
Competitive Bargaining Delays 2011-2012 NBA Season (4/09/12)
Michael Finkelstein This article focuses on the positional bargaining tactics employed by the NBA and its players during the league's recent labor dispute. The article explores how highly competitive bargaining led to a mediation impasse and how, by showing that they were unwavering in their position, the NBA pressured its players into accepting an agreement.
Interview with Sid Lezak (4/09/12)
Sid Lezak This is the complete interview with former US Attorney and mediator
Sid Lezak shortly before his death as part of Mediate.com's "The Mediators: Views from the Eye of the Storm" Series.
Book Review: Conflict and Charisma (4/02/12)
Jeff Thompson A book review of the new book on Charisma by Olivia Fox Cabane. If you are interested in increasing your ability to be charismatic in your conflict resolution work, this book will give you direct skills to use in a style that will have you believing (and practicing) starting with the introduction and increasing with each chapter.
Effective Use of Depositions in Mediation (4/02/12)
Henry Cox Most attorneys use discovery to prepare for trial. Most civil cases settle outside the courtroom. Attorneys who use discovery with mediation in mind, tend to reach for effective results in the mediation process.
The Rise of Civil Society (3/26/12)
Anna Spain With the Kyoto Protocol expiring at the end of this year, international lawmakers have been gathering to find a productive process for resolving environmental conflict. Their conversations are an example of where international conflict resolution is headed and who the key players will be.
A Little More Conversation (3/26/12)
John Sturrock The next two years present Scotland and the rest of the UK with a unique opportunity. How we conduct the discussion of the constitutional question (whether or not Scotland should become an independent nation) could be as important as the outcome.
The State of Community Mediation (3/19/12)
Justin Corbett The National Association for Community Mediation (NAFCM) has released its much-anticipated new report: The State of Community Mediation. This fieldwide assessment is the most comprehensive in nearly a decade, and includes many never-before reported statistics detailing the size, scope, and impact of the the community practice area.
A Mediator’s Proposal – Whether, When, and How It Should Be Used (Part 2) (3/19/12)
Stephen A. Hochman As most mediators know, a mediator’s proposal is a settlement proposal that the mediator makes to all parties, and each party is requested to accept or reject it, on the exact terms proposed, in a confidential communication to the mediator. This section discusses the disadvantages of a mediator's proposal as well as what to do when only one side accepts the proposal.
Emotional Involvement in a Fairly Legal Resolution (3/16/12)
Alex Dukhovny Emotional involvement is the idea that each party in a conflict has some personal feelings concerning the dispute. As mediators we are taught to remain neutral, thus fundamentally non-emotionally involved. However, the TV series portrays a mediator being so emotional about the disputes she handles that all ethics and dispute resolution practices go out the window. Kate Reed wears many hats, a mediator, a lawyer, a detective and sometimes even a defendant. With her trusty assistant, she is able to not only solve disputes, but as she puts it, “Solve your problems.”
Threat to Mediation Confidentiality in California - Your Help Needed! (3/14/12)
Ron Kelly Our courts are already suffering a crushing scarcity of resources. For decades, mediation has helped lighten that burden. Mediation produces voluntary resolutions, in line with our democratic ideals of self-determination. Hundreds of thousands of mediations take place in California every year. Now AB 2025 threatens all this by cutting a hole in the legal protections for mediation communications.
We Have to Talk: A Step-By-Step Checklist for Difficult Conversations (3/13/12)
Judy Ringer What you have here is a brief synopsis of best practice strategies: a checklist of action items to think about before going into the conversation; some useful concepts to practice during the conversation; and some tips and suggestions to help you’re energy stay focused and flowing, including possible conversational openings. You’ll notice one key theme throughout: you have more power than you think.
Proposed Legislation To Do Away With Mediation Confidentiality (3/12/12)
Phyllis Pollack On Thursday, February 23, 2012, Assembly Member Wagner introduced AB 2025 before the Californai State Legislature. The proposal seeks to create an exception to mediation confidentiality by amending the California Evidence Code to allow the introduction of evidence. This could have lasting impact on California mediators, and may set the standard for national evidence codes.
Looking Behind the Curtain (3/12/12)
Roger C. Benson Mediation training has developed ad hoc over the last few decades. As the field begins to get a foothold in the legal industry, however, it is important to be intentional about what should be necessary in training a mediator. The author suggests some topics that should remain, points out some topics that are often inadvertently left-out of many trainings, and invites suggestions for additional topics.
Distinguishing Between Compromising and Collaborating (3/12/12)
Ralph Kilmann People often ask me to clarify the difference between compromising and collaborating, especially since these two modes involve both people getting their needs met. In particular, people often use the word compromise to indicate that they have completely resolved the matter at hand: “We achieved a successful compromise!”
Stuck in Arbitration (3/12/12)
Colin Rule YOU buy a cellphone, computer or car. You sign up for a credit card or open a retirement account. You apply for a job. In all these circumstances, you’re told that you must agree to dozens of terms and conditions, set forth in technical verbiage and tiny print. Eager to complete your purchase — or desperate to be hired — you ultimately sign without reading.
The Unfairness of Arbitration? (3/12/12)
Art Hinshaw In the New York Times, Stanford Law Prof. Amalia Kessler has an interesting op-ed about consumer arbitration. The interesting thing about this piece is not its arguments against consumer arbitration but its historical take on arbitration that looks back past the FAA.
Interview with Zena Zumeta (3/12/12)
Zena Zumeta This is the complete interview with
Zena Zumeta, long time mediator, trainer and former President of the Academy of Family Mediators, filmed as part of Mediate.com's "The Mediators: Views from the Eye of the Storm" Series.
The Walk From "No" to "Yes" (Video) (3/09/12)
William Ury William Ury, author of "Getting to Yes," offers an elegant, simple (but not easy) way to create agreement in even the most difficult situations -- from family conflict to, perhaps, the Middle East.
Straus Institute Conversation Series featuring Ken Feinberg (Video) (3/09/12)
Kenneth Feinberg The Straus Institute for Dispute Resolution debuted a new “Conversation” series on November 14, 2011, as part of their 25th anniversary celebration. “Straus Presents: A Conversation with Ken Feinberg” featured one of the best-known figures in the field of alternative dispute resolution in a ninety-minute interview conducted by Straus Institute academic director and William H. Webster Chair Tom Stipanowich. The interview focused on Feinberg’s early involvement as special master mediating the Agent Orange cases and other mass tort claims, his role as special master of the September 11th Victim Compensation Fund, and his current oversight of the Gulf Oil Spill Fund.
Do Children Fare Better in a Mediated or Litigated Divorce? (3/05/12)
Howard Chusid Sometimes, parents think that only they are getting divorced and the children aren't adult enough to merit being heard. This is a major mistake that may fester and manifest into problems in the future. Poor grades at school, stomach aches, missing school days, getting up late, not listening to teachers, alcohol and drug use are just some of the ways that children and adults react to the stress and acrimony of divorce.
Are Mediators Indoctrinated or Evolving? (3/05/12)
Henry Cox Mediators should strive to be experts in the mediation process. This requires a deeper understanding of conflict management concepts. While the courts and attorneys have taken great strides to incorporate mediation into the civil litigation process, a significant number of judges, attorneys and mediators, coast to coast, do not understand the fundamental concepts of mediation.
Interview with Howard Gadlin (3/05/12)
Howard Gadlin This is the complete interview with
Howard Gadlin, Ombudsman and Director of the Center for Cooperative Resolution at the National Institutes of Health since 1999, filmed as part of Mediate.com's "The Mediators: Views from the Eye of the Storm" Series.
Moving Towards Better Dialogue? (2/27/12)
John Sturrock There is little doubt that the win-lose, black-white paradigm is costly, in money, time, opportunity and dignity. It denies the obvious fact that life is complex, that most people are trying their best in difficult circumstances and that creativity, imagination and compassion are more likely to achieve better outcomes than zero-sum games where there are often only losers.
A Mediator’s Proposal – Whether, When, and How It Should Be Used (Part 1) (2/27/12)
Stephen A. Hochman As most mediators know, a mediator’s proposal is a settlement proposal that the mediator makes to all parties, and each party is requested to accept or reject it, on the exact terms proposed, in a confidential communication to the mediator. This article examines the ramifications of a mediator's proposal. This section discusses when a mediator's proposal should be used.
Interview with Randy Lowry (2/27/12)
L. Randolph Lowry This is the complete interview with
Randy Lowry, President of Lipscomb University and founder of the Straus Institute for Dispute Resolution at Pepperdine,filmed as part of Mediate.com's "The Mediators: Views from the Eye of the Storm" Series.
Mediator - Subpoenaed? (2/19/12)
Michael Lang “Mr. Lang, my name is Chris Adams. I am a process server and have some papers for you.” With as much calm as I could muster, I asked, “what sort of papers?” He replied, “a subpoena.” And with that simple telephone conversation, the story begins.
Listening for the Echo in Mediation (2/19/12)
John Potter As we develop as mediators, it has been suggested that we engage in a process that grows through three stages. First, we learn technique. Second, we begin to develop a deeper understanding of how and why mediation works. Finally, we become more aware of how our personal qualities influence the mediation process for better or worse. It is the third stage that keeps me entangled in the joy and frustrations of the mediation process.
Tips for New Mediators (2/19/12)
Paul Stenzel A mediator who can remember what it was like to be a newer mediator offers some tips for new mediators. It is difficult beginning any career, and mediation offers some unique challenges.
Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation (2/17/12)
Zena Zumeta Mediators around the country find themselves uncomfortable with what is being called mediation in their own and other areas. Accusations are made that one or another approach to mediation is not “real” mediation or are not what clients wanted. In addition, many clients and attorneys are confused about what mediation is and is not, and are not sure what they will get if they go to mediation.
EU Online Dispute Resolution for Consumer Disputes (2/15/12)
European Commission At present, the offer of ADR schemes to resolve consumer disputes related to e-commerce transactions is scattered and incomplete. In addition, while half the existing ADR schemes offer consumers the possibility of submitting their complaint online, very few offer consumers the possibility of conducting the entire procedure online. Handling the entire process online would produce time savings and ease communication between the parties.
How To Handle Difficult Behavior In The Workplace (2/15/12)
Tony Belak There is no magic pill but there is a prescription to change behavior in others. It takes time and patience to cure such negative characteristics, and it doesn’t help to ignore the problem behavior or respond likewise or criticize rather than cure or just brand someone as a problem and be the psychiatrist to their craziness. We can work to prevent unproductive and negative behavior that leads to conflict.
2012: The Move to Online Dispute Resolution (2/13/12)
Hon. Arthur Ahalt As a new year begins there is always a clamor to know what is in store for the next 12 months. Some will look at last year and make a string of resolutions and predictions. While I do not pretend to be Carnac the Magnificent of Johnny Carson’s days, here is my take on the trends in 2012 that will shape ADR and ODR.
Distinguishing Between Accommodating and Avoiding (2/13/12)
Ralph Kilmann People often ask me to spell out the difference between accommodating and avoiding. Or, as some say, “Isn’t accommodating also an easy way to avoid, since you can quickly remove yourself from the situation by giving in to the other person? What’s the difference?”
The Role of Victory and Place in Conflict (2/13/12)
Ann Begler My personal philosophy is that in order to truly perform our work at our best we’re required to be on a constant course of self-reflection and in a process of continual self-growth. Several years ago I embarked on a four-year study program of Integrated Kabbalistic Healing. At the time I wasn’t sure how that course of study would become integrated into the work I do in mediation and conflict resolution. As I’ve moved well beyond that particular training, I’ve found, somewhat to my surprise, that the teachings that began with my training frequently filter through my work deep ways ...
Interview with Jim Coben (2/13/12)
James Coben This is the complete interview with
Jim Coben, long-time former director of the Hamline University Conflict Resolution Program, filmed as part of Mediate.com's "The Mediators: Views from the Eye of the Storm" Series.
Interview with Chris Moore (2/07/12)
Chris Moore This is the complete interview with mediation pioneer
Chris Moore, Founder of CDR Associates in Boulder, CO, and a long time leader in the area of public policy mediation, filmed as part of Mediate.com's "The Mediators: Views from the Eye of the Storm" Series.
Mic Check (2/06/12)
Bill Withers What if those who would change the world engaged in a conversation about what will replace whatever we want to tear down? What if protest included conversation? What if people who read this bravely begin talking to me and to others about it?
Woody and Pop Urge Mediators to be Compassionate Peacemakers (2/06/12)
Ewan Malcolm In San Diego, at the 2011 ACR Conference, key note speakers Forrest ‘Woody’ Mosten and Father Greg ‘Pop’ Boyle both spoke inspiringly and in distinctly different ways about the power of compassion in the work of conflict resolvers. Ewan Malcolm observes that despite their contrasting styles, the core message from both of these pioneering entrepreneurs was the same; that compassion is a fundamental attribute of successful mediators.
Prenups – Don’t Lawyer Up, Mediate! (2/01/12)
Laurie Israel Prenup articles typically talk about how resolving and clarifying money issues prior to marriage is a good thing. However, they do not take into account the very important component of most good marriages: the sharing of money and resources. So prenups aren't necessarily the best thing since sliced bread -- they can pose many problems for the future spouses.
Third Culture - Creating a Climate for a Successful Mediation (1/30/12)
Dave Aschaiek In “Cultural Competence – Transcending Culture Differences in Mediation,” cultural competence was described as an indispensible capability in a mediator’s toolkit. Cultural competence was presented as the ability for a mediator to not only identify, acknowledge and explain cultural influences on parties within a dispute, but to also transcend the cultural differences in a way that serves the dispute resolution process.
A Mediator's Reflections on the Occupy Movement (1/30/12)
Grace Eagle Reed The police in Portland, unlike other cities of its size, became national examples of progressive community policing during the Occupy Movement. By calmly responding to the conflict around them, they are open to ongoing community feedback, are continuing to look for ways to do a better job and are using better judgment when they have to restrain protestors. Their patience and openness is appreciated by all involved. It is also the perfect example of a counter-story peacefully challenging the accepted stock story, for the betterment of all involved.
High Conflict Mediation and Ethics (1/30/12)
Ann Begler Working with high conflict people requires skill that goes well beyond facilitating a conversation. Some mediators do it well and some should never try. If a mediator sees it as his or her responsibility to make a fair assessment about competency in this regard, everyone is well served – clients, mediator and the system, itself.
Mediation Works, But Will it Play in Macedonia? (1/23/12)
Michael Diliberto The article describes the status of mediation in the Republic of Macedonia and the cultural issues that affect whether or not the Macedonian judicial system should adopt compulsory mediation. The article also provides persuasive alternatives from other jurisdictions that are used to encourage mediation.
We Stumble...But Love Never Fails (1/23/12)
William Scott Harralson, J.D. At the age of 28, I began volunteering as a shop steward with the Office and Professional Workers Union (AFL-CIO). Countless hours were spent listening to the concerns of aggravated employees and their equally frustrated supervisors. The common thread running through our discussions involved disciplinary action initiated by the employer. The other recurring issue was unfavorable employee performance evaluations. It was my job to navigate between both sides in hopes of negotiating a settlement before things escalated to the point that a worker elected to file a grievance or charge.
Going Deeper in Mediation (1/23/12)
Rachel Fishman Green, Esq. This article looks at going deeper in mediation. Specifically, how to resolve zero-sum divorce disputes through mediation. This case study examines detailed scenarios and arguments that often arise in divorce mediations.
Lawyers’ Resistance in Construction Mediation (1/16/12)
Bryan Clark The interaction between lawyers and mediation has long been a controversial one. Rivers of ink have been spilled on the issue. Opinions, when expressed, are often sharply divided. The debate raises many questions, such as: Do lawyers resist mediation?
The Link Between Weather and War (1/16/12)
Christine Tsai Christine Tsai examines a new whether there is a link between weather and war. She looks at the data to see if there is a correlation between weather patterns and high conflict.
