Mediation In Healthcare (6/29/09)
Holly Hayes Bovio A new leadership standard issued in January 2009 by The Joint Commission, the accrediting body for hospitals, addresses the development of a code of conduct that defines acceptable, disruptive, and inappropriate behaviors; and requires the creation and implementation of a process for managing disruptive and inappropriate behaviors.
Mediation And Social Norms: A Response To Dame Hazel Genn (6/29/09)
Charlie Irvine The article is a response to Dame Hazel Genn’s 2008 Hamlyn Lecture, in which she characterized mediators as having ‘no interest in justice and fairness.’ The article argues that mediators’ own rhetoric has allowed this caricature to develop and suggests that, in practice, mediators are no longer indifferent to norms like justice and fairness, if they ever were. Drawing on the work of Ellen Waldman and Julie MacFarlane this article examines the role of social norms and ethical codes in mediation practice, and calls on mediators to examine their values.
The ‘Texas Shoot Out’ And Other Ways To Get Out Of Deals! (6/22/09)
Manie Spoelstra Most partnerships, joint ventures, marriages and many contracts and alliances start off with big plans,
grand expectations, speeches and champagne! Statistics indicate that the majority will, somewhere in the future, due to many personal and financial reasons, reach a point of such conflict or deadlock that parties want to ‘get out’!
Mediation And The Right To Privacy: Confidentiality, The USA PATRIOT Act, And Us (6/22/09)
Susan Oberman This article addresses the offer of confidentiality in mediation which ultimately references the constitutional and common law right of privacy, and makes confidentiality in mediation one of the rare instances in which citizens can exercise this right. However, rules of evidence can override confidentiality, in reality it cannot be guaranteed. The USA PATRIOT Act Section 215 places promises of confidentiality in even greater jeopardy. The legal boundaries around what can be kept confidential make what mediators say about it a key example of how mediation is not an alternative to, but an option within, the legal system. As a critical aspect of supporting party self-determination, mediators need to fully understand and explain confidentiality.
A Recent Finding on Oxytocin (6/22/09)
Kenneth Cloke In a recent experiment, Swiss Neuroscientists Beate Ditzen, Marcel Schaer, Barbara Gabriel, Guy Bodenmann, Ulrike Ehlert, and Markus Heinrichs found for the first time a direct connection between oxytocin and couple bonding in human subjects. The following summary is drawn from their research report.
A View of Mediation in the Future (6/21/09)
James Melamed One topic that is not talked about much is: mediation in the future. Perhaps we assume that the future of mediation is self-defining or that "others" will make good choices. Will courts and agencies be the primary delivery system for mediation? It did not start that way. What about community programs? And what about technology? Mediation may be soon coming to a pocket or purse near you.
Mediation And Equal Justice For The Poor (6/15/09)
William S. Harralson Throughout the history of America, justice and injustice have co-existed in a fierce struggle to determine which contender would emerge in victory. Money and the lack of money remain decisive factors in determining the extent to which an individual will have access to our civil court system. Alternative means of resolving disputes, most notably mediation, have gradually positioned themselves as attractive options especially for those who live in a condition of poverty. This brief essay will explore the extent to which mediation serves to advance or impede the goal of achieving equal justice for every American.
Ombudsman ADR: The 6 C’s Of Sociocratic Peace Building (6/15/09)
Clayton Gilman The 6 C's; communication, complaint, cooperation, consensus, consent and coordination act as mental milestones for facilitators and mediators in group oriented conflict management scenarios. Increasingly the Sociocratic process of self governance is gaining popularity in all sizes and types of groups in North America and is becoming the preferred structure for processing issues, disputes and complaints. The 6 C's support this process between small to very large groups.
A Nuanced Comparison Of Transformative, Insight And Narrative Mediation (6/15/09)
Jason A. Waxman Within the broad framework of mediation, there exists an expansive spectrum of styles. A particular approach or style of mediation may, therefore, be more appropriate depending on the circumstances. There are also, however, numerous similarities among the range of methodologies. The purpose of this paper is to compare and contrast the specific approaches of transformative, insight and narrative mediation. Although these three methods differ in their approaches and applications, they are fundamental to the discipline of mediation as a whole, and contribute to both the improvement of communication and relationships, as well as to the possibility of mutually beneficial settlements.
Get Busy, Get Paid! How to develop a financially successful mediation practice: a review (6/11/09)
Tammy Lenski I had a chance to view this video last week and recommend it for a whole host of reasons. It covers important topics like target markets, market niches and market differentiation in a straightforward, thoughtful way. It challenges you to put the work into understanding what you have to offer. And Lowry sets the stage well for successful practice-building with his practice development pyramid.
Confidentiality in Collaborative Cases After Thottam (6/08/09)
Elizabeth Bader The recent case of Estate of Thottam (2008) 165 Cal.App.4th 1331, 81 Cal.Rptr. 856, has many mediators and collaborative practitioners worried about confidentiality in California. In Thottam, the Court of Appeal found that a mediator’s confidentiality agreement could reasonably be interpreted as a waiver of confidentiality and opened up a complex probate case to potentially expensive litigation.
Book Review: Staying With Conflict: A Strategic Approach To Ongoing Disputes (6/01/09)
Jan Frankel Schau In his newest book, Staying with Conflict, Bernie Mayer urges “conflict professionals” to think of ourselves as specialists who are retained as allies in assisting disputants to develop a constructive approach to engaging in enduring conflict, which he contends is both healthy and omnipresent. A word of caution to colleagues who are engaged exclusively in mediating the litigated case: the book, if taken to heart, may call into question your/our own self-limiting roles.
When Divorce Means Re-Entering The Job Market (6/01/09)
Laurie Israel In working with divorcing couples, reemployment of an “at-home” spouse is a recurring theme. This is usually (but not always) the wife, who needs to enter the job market after the divorce. An analysis of the finances of a divorce case generally leads to the stark truth that the family unit (now divided into two households) cannot live on the earned income that was being brought into the household prior to the divorce.
La Mediación en España, Edición 2009 (5/28/09)
Franco Conforti El desarrollo de la mediación en España es de reciente data, su historia es breve si la comparamos con países como EEUU, Canadá o Gran Bretaña. El origen de la mediación se sitúa en EEUU en los años 70 en que justamente la proliferación de las separaciones matrimoniales hizo de La Mediación el método más exitoso.
Advancing the Plot: Narrative Therapy and Artful Mediation (5/25/09)
Roberta Morris Particularly in family mediations a narrative therapist working in tandem with the mediator can be immensely useful in ‘advancing the plot’ toward resolution. Indeed, narrative mediation has its roots in narrative therapy. The parties in a mediation, just like writers, are engaged in developing a common story, developing their characters and advancing the plot to achieve resolution.
Conflict Coaching: When Mediation Isn’t A Possibility (5/25/09)
Barb North Ideally, mediators would like to sit down with all parties in a dispute and do what we are trained to do. But what happens when despite the mediators best efforts to convene a case, only one party is interested in coming to the table? There is still hope for a peaceful process through Conflict Coaching.
The Journey to Empathy (5/18/09)
Martin Golder A story of the author's experience in the use of the conscious projection of good will as a tool in mediation. How the ancient skill and way of being 'metta bhavana' or loving kindness can transform participants and raise settlement rates dramatically. How empathy and active listening are related and are the central skills of a successful mediator.
Marital Mediation: An Emerging Area Of Practice (5/18/09)
Susan K. Boardman, John Fiske, Laurie Israel, Ken Neumann This article describes the process of “Marital Mediation” as a relatively new field of family mediation, designed to keep couples together using established family mediation techniques. Previously many of these techniques were used solely in divorce mediation. We begin by describing what the process involves, how it differs from both couples counseling and divorce mediation, and why we believe it often works for couples when counseling has not. We also discuss suggestions for promoting the development of Marital Mediation using both research and marketing techniques.
Care-Full Conversations: Elder Mediation And Family Decision-Making (5/18/09)
Susan Curcio M.A. Elder Mediation is a tool that can be used to facilitate difficult decisions for aging adults and their families. Issues regarding the health and safety of a loved one may involve legal and financial considerations which can cause family tensions. The role of the mediator is to assist families in arriving at their own solutions while preserving or improving relationships among the members. Opening the channels of communication may make the job of an attorney or financial adviser easier and more cost-effective.
Negotiators And Snipers: On Strategies For Managing Piracy On The High Seas---And Elsewhere (5/13/09)
Robert Benjamin Few international incidents end with the successful finality and clarity as did the rescue of the Maerske ship Captain, Richard Phillips, from
the clutches of Somali pirates in mid April. Three clean kill shots
by U.S.Navy snipers settled the stand-off. Most people in the Western world felt relieved and good about the outcome. Maybe assassination was warranted. Clearly, piracy cannot be tolerated. However, the pursuit of both negotiation and assassination strategies at the same time is troublesome and may be costly in the longer term. If negotiation appears to be merely a pretext for snipers' to act, then will the trust essential for successful negotiations be lost in future negotiations?
The 6 Steps to Convening Mediations (5/11/09)
Diana Mercer The key step in building a mediation practice is bringing in clients. This article is geared toward private mediation firms, but the same convening techniques and goals hold true for non-profits, HR and government agencies.
Mediation Music (5/04/09)
Dena Schechter Mediation is often likened to a dance, but it is much more complex, much like a symphony and the mediator is the conductor who helps it develops its own distinctive rhythms.
Kamikaze Conflict – How Might It Damage Your Franchise System? (4/23/09)
Lorelle Frazer, Jeff Giddings, Scott Weaven This article considers the circumstances in which business franchise disputes can turn toxic. The complex nature of the relationship between franchisee and franchisor, which involves instances both of common and of competing interests, can lead to parties in conflict acting in ways which are detrimental to their own business interests in an effort to damage the interests of their franchise partner. We refer to this as 'kamikaze conflict' and explore what steps might be taken by franchisors in particular to anticipate and address such difficulties.
The Eyes Have It (4/22/09)
Phyllis Pollack When you smile, do your eyes smile, too? If not, you’re faking it! According to a recent research study, “. . . the eyes might hold the clues for bogus versus genuine smiles.”
Neutrals Reveal Tips With Their Opening Statements (4/20/09)
Lee Jay Berman Most mediations begin with the mediator's opening statement, much to the consternation of the lawyers (many of whom have heard them many times before) and their parties. Although most lawyers prefer to launch right into their opening statements in a mediation, the mediator's speech can be very helpful.
Marx Unity Of Theory/Practice And Mediation (4/20/09)
Luis Miguel Diaz The motivation of this article is first to highlight Marx preoccupation for seeking the unity of theory and practice. The second is to reframe the Marxist unity in the context of mediation as a method dealing with divergent views.
Real Mediation (4/13/09)
Barry Goldman Anecdote, intuition and introspection can suggest questions for science to examine, but only the scientific method can produce real knowledge. Until the terms in the field are unambiguously defined, hypotheses are clearly stated, and rigorous experiments are conducted under controlled conditions to test the claims of the various schools of mediation, all we have is arm waving and name calling.
Development Of Commercial Mediator Skills Training In England And Wales (4/13/09)
James South The UK mediation market has developed organically, both in a self-regulatory sense and in the development of training programmes and growth of the market in general. This compares with the development of mediation in other international jurisdictions where regulation and standards have tended to come before the mediation market is established.
Book Review: The Healthy Divorce: Keys to Ending Your Marriage While Preserving your Emotional Well-Being (4/10/09)
Joan B. Kelly This book is an updated version of
Between Love and Hate: A Guide to Civilized Divorce, originally published in 1992. At that time, I was troubled by the continuing portrayal by the American media and movies of American divorces as destructive, poisonous, hateful processes and behaviors reminiscent of
War of the Rose, and widely recommended Lois Gold’s book to mental health and legal professionals and separating partners and spouses to educate them about a better way to separate and divorce.
The Science Behind The Sense: Exploring Cognitive Neuroscience In Decision Making (4/07/09)
Robert Benjamin For four days in March, some 20 professionals, a majority of them experienced mediators, but also including a doctor, a few lawyers, professors and others professionally engaged in conflict management, problem solving and decision making, gathered at Duke University for an immersion course in cognitive neuroscience. This is the kind of emerging research stuff that practicing professionals should be aware of, but all too often are not. Presented by the newly formed Master Mediator Institute, founded by Robert Creo and Monique McKay, in conjunction with Duke University faculty, and led by the Co-Directors of the Center for Neuroeconomic Studies.
Marital Mediation For Family Mediators (4/07/09)
John Fiske If you are a family mediator, you might expand your practice to offer mediation to help couples stay married. The process, called “marital mediation,” uses the specific settlement focus of mediation to preserve a marriage in ways not attempted by family therapy. The process uses your family mediation skills to help couples negotiate new terms for their marriage. Couples may use mediation to enter into a written post-marital contract defining their own solutions.
About Mediate.com (4/01/09)
With over 5,000 articles and videos, and over 4 million annual visitor sessions, Mediate.com is the world’s leading mediation web site. Mediate.com serves as a bridge between professionals offering and people considering mediation services.
The Mind Of A Mediator (3/31/09)
Deborah Sword We practitioners talk about many aspects of what goes on in mediation. Studies point to best practices, and we research and write about our experiences. We love to reflect on and share our mediation stories. From being retained to drafting any settlement agreement, we relish the details our conflict resolution practices. However, not much has been said about our in-the-moment thought and decision-making processes. Our love of conflict resolution analyses has not translated into writing about that moment of tension in which, with all parties’ eyes on us, we decide what to say or do next.
Urban Legends Of Mediator Selection In Patent Insurance Cases (3/30/09)
Jeff Kichaven An "Urban Legend" is commonly defined as "an often lurid story or anecdote that is based on hearsay and widely circulated as true." Like the one about alligators living in the sewers—although everyone has heard it, it's just not true. But what about the one that says, "To mediate a patent case, a mediator has to be an expert in science and technology"?
Why Should I Care? (3/30/09)
Edward P. Ahrens The question is purely rhetorical. The speaker does not expect nor want a response — and it represents the bane of some mediations. Almost always spoken by the claimant, it can frustrate his/her counsel, the opposing party and the mediator.
Concurrent Mediation Of Parental Disputes And Of Parent-Teen Conflicts (3/30/09)
Cory Mathews The article examines the dilemma for parents facing disputes over parenting arrangements for teenagers. It describes the complex intersection of teen development and parental decision-making. It can be particularly difficult for parents to resolve the disputes between themselves while teens are asserting their own independence. Parents may be faced with increasing conflicts with their ex-partner and with their teen at the same time. The article suggests that mediators explore the opportunity for concurrent mediation, in which parent-teen mediation is offered at the same time as domestic relations mediation between parents. The article suggests that the combination may yield positive results on both conflict-laden fronts.
Peace is Nonpartisan (3/30/09)
Kevin Forrester Didn’t the party of peace win this election cycle? No, the party of peace didn’t win this election cycle. There is no party of peace.
Can Mediation Evolve into a Global Profession? (3/24/09)
Michael McIlwrath Mediation is an organism that thrives in particular niche ecosystems like the UK, Australia, and North America. The question is whether it can thrive in other locations, and whether it can be used to resolve cross-border disputes. Anyone who has experienced mediation will understand its potential to grow and flourish as a critical part of a globally inter-connected economy, but it would be folly to ignore the challenges in breaking out of a local niche practice.
Do Lawyers Unbundling In A Frigid Economy Lead To Exposure? (3/23/09)
Elizabeth Moreno A large number of middle class litigants find the cost of legal representation prohibitive. Clients have resorted to self-representation out of economic necessity. Many litigants opt for partial self-representation because they have no financial alternative. A litigant has decided to handle the case, but needs some guidance on procedure or an attorney to handle the specific tasks that he/she cannot handle. In this situation, how can an attorney handle some aspects of the case and protect himself/herself against exposure in this frigid economy?
Obama The Negotiator: The Strategic Use of Anger (3/17/09)
Robert Benjamin One of the few ways to endure the current economic catastrophe is to appreciate the event as theater. As President Obama goes head to head with the Wall Street folks, one can’t help but be intrigued by how the negotiations are played out. His dispassionate, reasoned demeanor has been noted and is reassuring, but the theater of negotiation sometimes requires dramatic flair. A flash of ‘irrational’ anger might be a useful negotiation technique---even if he has to authentically fake it.
Mediation And Meditation: The Deeper Middle Way (3/16/09)
Kenneth Cloke Conflict is everywhere, not only between human beings, but throughout nature, from quantum mechanical particles to dark energy and the soap bubble structure of galactic superclusters. Nonetheless, we each take our conflicts personally, and far from being happy or grateful to our enemies, we often allow ourselves to be thrown off balance and drawn into unpleasant ideas, negative emotions, and destructive behaviors.
A Practical Bibliography of Books for the Mediation Practitioner (3/16/09)
Barbara Brown Early in my education and training as a mediator I started compiling a list of the books on mediation I wanted to read. Woody Mosten started me out with a list of must-reads. I bought those books, and they all had bibliographies. So I added the books in those bibliographies to my list. And so it went. I became enthralled by the sheer number of books on mediation and conflict resolution and decided that it might be helpful to other practitioners as well to have these works pulled together in one bibliography with consistent citation format. Here is the result.
Darwin As Conflict Theorist (3/16/09)
Luis Miguel Diaz Charles Robert Darwin (1809-82) has reemerged on the 200th anniversary of his birth as conflict theorist.We can learn so much from Darwin since his authority as conflict theorist is insuperable; the core of his work was theorizing about conflicting forces of nature. To follow are Darwin’s thoughts as recorded in his own words.
The Culture in the Code (3/09/09)
Alma Abdul-Hadi Jadallah, Daniel Rainey In the United States, alternative dispute resolution (ADR) has become a routine, and sometimes even a dominant force in the resolution of disputes that traditionally would have gone through some formal, legal process. One observation from the United States will probably serve to make the point. The American Bar Association (ABA), the premier professional association for attorneys in the United States, now has as its largest interest group the Section on Dispute Resolution – a group within the ABA dedicated to dispute resolution outside the formal legal system.
Private Sector Innovation: An Interview with Wayne Brazil (3/09/09)
Gini Nelson This is an interview by Gini Nelson of Wayne Brazil. Wayne Brazil has been a United States Magistrate Judge in northern California since 1984. Before joining the court, Judge Brazil was a law professor and a civil litigator. He has hosted some 1500 settlement conferences and helped design his court’s ADR program. He has published a number of articles about court sponsorship of ADR programs.
Don't Use "Force" (3/09/09)
Bill Eddy “I won’t force the children to go with the other parent,” is one of the statements I hear sometimes from parents going through a separation or divorce. This statement has become so common (three times in one day recently), that a short article on this subject may be helpful.
Letter To President Obama (3/02/09)
Kenneth Cloke Thank you. As conflict resolution professionals, practitioners and scholars, we have noticed and profoundly appreciate your efforts to change the process and tone of how differences are managed, both in Washington and around the world. We value your experience, understanding and commitment to conflict resolution, and offer our full support to you and your administration in your efforts to promote peace, collaboration, and consensus in domestic and international relations.
What Collaborative Counsel Does For The Collaborative Client (3/02/09)
Laurie Israel Collaborative law is a form of alternative dispute resolution for divorcing couples who prefer not to endure litigation, but desire vigorous legal representation. One of the first issues of concern for every potential Collaborative Law client is whether the attorney will serve as a strong advocate for that client.
Mediation And Moral Imperative (3/02/09)
Merri L. Hanson On October 21, 2008 I read a curious Reuters headline that stated “Taliban Seeking Mediator.” Immediately I puzzled over why the Taliban would want one of us...a peacemaker, a harmonizer, an ethical do-gooder. Since then I have pondered these thoughts and the moral underpinnings they belie.
The Mediation Industry: Our Time Has Come (2/27/09)
James Melamed The current use and potential for mediation over the next years is massive. We help people get problems resolved and we do that faster, better and cheaper. The word is out. A silent revolution has taken place. Policy makers don’t even think twice now in favoring, in fact, relying upon mediation. Our culture has changed. We have changed. Our time has come.
The Unique Value of Becoming IMI Certified (2/25/09)
Irena Vanenkova A practical solution to a fundamental problem has arrived - a global online certification scheme to enable credible details on only the world’s most competent and experienced mediators to be searched on a single search engine. What is going on and why?
The Neutrality Tightrope (2/24/09)
Janet Rubin Fields Every case has a truth to be discovered, and a lesson to be learned. On the surface, this case was about real estate, business litigation and partnership dissolution. But as a third-party neutral looking in, I realized it was about disappointment in relationships, forgiveness and recognizing the differences between emotionally driven accusations and hard evidence.
Recession Advice For Mediators (2/23/09)
Lee Jay Berman While many believe that mediation is a recession-proof business, the truth is that a difficult economy slows every business and practice as people have less money to pay for things. When a mediation practice slows, there are three things that mediators can do to make productive use of increased down time. They can increase their marketing efforts (attend more networking events, update websites, etc.), improve or update the administrative infrastructure of their practices, and they can hone their skills.
Contextualizing Disruptive Behavior in Health Care as a Conflict Management Challenge (2/23/09)
John Ford Disruptive physician behavior has been defined by the American Medical Association as “personal conduct, whether verbal or physical, that affects or that potentially may affect patient care negatively.” It is assumed that disruptive behavior by health care workers impacts quality of care and patient safety. How best to respond to disruptive behavior is less clear. This article explores the utility in framing disruptive behavior as a conflict management systems challenge.
A Perfect Storm is Gathering (2/18/09)
Michael Leathes A Perfect Storm is gathering, comprising the effects of severe economic downturn, the alacrity with which corporate law departments seek greater transparency and outcome certainty, and new tools in the field of information and communication technology. This convergence provokes serious changes in attitude and approach by all dispute resolution stakeholders – especially trial lawyers, mediators and mediation provider organizations. The status quo has had its day. Good news for those nimble enough to adapt quickly. This article is jointly written by a group of twelve institutional users of mediation services.
BOOK REVIEW: Staying With Conflict: A Strategic Approach to Ongoing Disputes by Bernard Mayer (Jossey-Bass) (2/17/09)
Daniel Rainey Bernie Mayer has an uncommon ability to draw an argument in a few strokes that makes figures in our field pop out in sharp relief. He did it with
Beyond Neutrality, generating a thoughtful and wide-spread discussion about the essential posture of the intervener. He’s done it again with
Staying with Conflict, this time bringing into sharp focus the question of whether the goal of “resolution,” a part of the name that we most often use to label our field, is in fact an impediment to effective assistance to parties in conflict.
President Barack Obama's Effective Communication (2/16/09)
Alan Sharland Well, President Obama is now making his mark on the world by speaking on the various issues that he will have to deal with over the next 4 years of his presidency. Already it is clear that he uses language that promotes effective communication and conflict resolution, and while I'm sure he is not an avid reader of this site and the Principles espoused on it, his means of communicating reflects many of the Principles that this site describes and the practice of mediation it draws its inspiration from.
The Joy Of Impasse: The Neuroscience Of ‘Insight’ And Creative Problem Solving (2/09/09)
Robert Benjamin Most novice and experienced conflict mediators alike feel themselves viscerally tighten in the face of an impending impasse. The prospect of the parties in a dispute becoming locked up and unable to reach an agreement raises the ugly specter of failure for the practitioner who purports to offer a better way to manage conflict. However, current studies in neuroscience suggest that frustration can be useful in fomenting creative problem solving. Practitioners might do well to encourage impasse.
A Question Of Ethics (2/09/09)
Darrell Puls More and more frequently I hear complaints about mediators who tell their clients what is or is not acceptable, particularly for settlements in divorce cases. So much for self-determination and impartiality!
