Claiming Mediation's Future
Elinor Robin, Susan Dubow
Our own article on the future of mediation focuses on emerging trends and untapped potential. In addition we decided to write a response to “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination” which was written by the esteemed Robert A. Baruch Bush, and Joseph P. Folger for Mediate.com in November 2014. We are not submitting this rebuttal in an attempt to change any one’s mind. Instead, as mediators we are generally fascinated with hearing, and telling, the rest of the story, so here it is…..
Agatha Christie Helped Me Be A More Effective Mediator
This short article presents a technique that the author calls a "Miss Marple Moment." Through the use of parallel stories, a neutral may address attribution and perceived negative intentions, and assist participants in seeing their situation in a different light and help them reflect on their contributions to the conflict. Hopefully, it is a fun read, just like an Agatha Christie book.
Mediator Ethics and Professionalism: A Recipe for Success
I attended an interesting presentation on agreement writing and other mediation issues for advocates. One presenter talked in terms of moves, strategies, bluffs and get-away-with’s. The other talked in terms of good practice and ethical standards. Though the first mediator never advocated unethical conduct, the second struck me as a professional whose values and ethical standards were at the forefront of his practice.
Workplace Restoration Case Study
Relations between the account services team and the head of production (“Bob”) were at an all-time low. The “drama” was a distraction from business. The manager wanted people to be able to work together collaboratively as a team. She was tired of responding to complaints about Bob and wasn’t sure what to do. And she wanted a quick solution before key staff members left for vacation. So she turned to a mediator.
Retire Already! Why?
This article discusses retirement in non-traditional fields such as mediation and teaching. Should there be a set retirement age?
It Is All In Your Perspective!
The December 2014 edition of The Atlantic contains an interesting article entitled "The Real Roots of Midlife Crisis" by Jonathan Rauch. In it, he notes that mid-life crisis is not a unique reality to the United States. Rather, it is a worldwide phenomenon explained by science and more particularly the "U" or happiness curve.
The Californication of Mediation
The rise and rise of the mediator’s proposal  and other evaluative interventions by many of our number, along with the relentless demise of the joint session, are all part of a larger lurch to the right for mediation practice.
Mediator’s Proposals: God’s Gift to Mediation, or a Betrayal?
Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system. The great early teachers and scholars of mediation — Frank Sanders, Christopher Moore, Leonard Riskin and others — envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path.
I recently stumbled upon a useful analogy that I used in our required Lawyering course, namely that lawyers are like “conflict doctors.”
A Future of Social Technology In Support of Peace & Justice
I envision a world where our social technology is designed in a way that builds human empathy, identifies and resolves conflict early and effectively, and introduces an era of greater peace, justice, and happiness. It will take a lot of work to get there, and there will be a lot of bumps in the road, but I can see it plain as day. That’s my hope for the future of mediation.
The Conflict Pivot: A Must-Read for Mediators and Coaches - Book Review
In Tammy Lenski's latest book, The Conflict Pivot: Turning Conflict into Peace of Mind, I have discovered a rich resource that I can use in the moment while I’m working with clients, and which I can give to my clients to guide them when they're in the grip of a conflict. This article summarizes the book and explains why it is so valuable.
Mobbing at Work - en Espanol
Este artículo intenta abarcar tres aspectos diferenciados aunque esenciales para el reconocimiento y tratamiento de este modo de violencia que tanto el Informe sobre Seguridad en el Trabajo de la Organización Internacional del Trabajo (O.I.T.) como otras publicaciones especializadas en la materia y en Congresos y Eventos sobre el tema lo califican como “nueva plaga laboral del siglo XXI”.
Dealing with Difficult People
Jon Warner, John Radclyffe
We have to face dealing with difficult people at any time in our lives (and at both work and in our home lives). But in general, it’s not so much that the people themselves are difficult (although there are exceptions to this of course), but it is more likely that we find their current behavior difficult to deal with at a particular point of time.
In the Midst of Ferguson Chaos, an Apology Done Right
It would have been easy for Louis Head to blame his raging words the other night fully on the grand jury. Or on the Ferguson, Missouri police department. Or on Office Darren Wilson. Or on racism and injustice. And if he had, there’d be a lot of people who would have given him a pass under the circumstances.
Arbitration Trends in 2014
A survey recently conducted by Today’s General Counsel asked in-house attorneys about their thoughts on arbitration. The results published in Arbitration Trends 2014 indicate that nearly half of lawyers surveyed normally choose arbitration over traditional litigation because it is required by contract. In addition, 38 percent stated they select arbitration because it is less expensive than litigating a case and the process preserves confidentiality.
Behind Mediation’s Smoke and Mirrors
Positive mediation outcomes are fairly common, which you might think is down to the magic of mediation. But there are several implicit reasons why mediation outcomes are high, which aren’t generally to do with the quality of the mediator! I want people to understand the reality of mediation and what it can achieve, and not to be taken in by the rhetoric you’ll find on some websites.
Having an Axe to Grind
According to wiseGEEK “There are two meanings to the phrase ‘an axe to grind’. The first meaning is the traditional American one, which means having an ulterior motive or personal reasons, other than the obvious, for doing something. The British meaning is to hold a grudge or a grievance against someone or something.”
Talking About Ferguson
We have started the last week of classes in ADR this week and usually, at this time in the semester, I turn to the overarching subject of how to counsel clients when choosing among different dispute resolution processes. Last night, I took a deep breath, and asked the class to think about the situation in Ferguson.
Our Mediation Future
I have practiced ADR since 1992. I look back fondly and forward enthusiastically with great hope. In thinking about “what from our past has worked best and should be brought forward and emphasized,” I decided to review two law review articles I wrote early on in my career. What follows is a summary of what I thought then. It will be followed by summaries of two articles about what I think currently. This article will then conclude with my half-formed or mal-formed thoughts about the future.
Revisiting Reframing: Mediation and the Impact of “Spin”
In this brief piece I argue that it is time to revisit some of the existing critiques of mediation. I look again at the function of reframing, question whether it still warrants the essentialism attributed to it in practice, and explore some alternative strategies. I also argue that, as a consequence of contemporary manoeuvring by the state and the media, disputants may perceive reframing in mediation as a form of “spin”, defined by the Oxford Dictionary as “the presentation of information in a particular way; a slant, especially a favourable one”.
Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination
Robert A. Baruch Bush, Joseph P. Folger
For us and the colleagues we’ve worked with for many years, our first premise has always been that self-determination, or what we call empowerment, is the central and supreme value of mediation – a premise probably shared by many in the field. This is what we were struck by when we began, and believed was uniquely served by mediation. We believe in the value of upholding party choice, and we also believe that increasing understanding, reaching sustainable resolution, and other goals all rest on the foundation of genuine party self-determination. At this point in the evolution of mediation, the question in our view is, what has happened to the mediator’s mission of supporting self-determination?
Some Good Questions
In 1998, commenting on the hot controversy about the “Rand Report’s” finding that certain mediation programs did not save time or money (measured in terms of lawyers’ work hours), Professor Craig McEwen argued that it was the wrong question to ask whether “mediation works.”
Have You Got What it Takes to be a Mediator?
I’ve always been intrigued about what it’s like to be someone else. We’re so isolated in our own thoughts and feelings, we only see the surface of each other. And it’s scary to be genuine with other people; there are so many social constructions that formalise how we talk to each other and I find those exhausting and limiting, and often meaningless. So what I love about mediation is that when you’re mediating you’re actually in a space where people are really working hard to not collude with those social constructions.
Use and Perception of International Commercial Mediation and Conciliation
The project was constructed with two goals in mind. First, the study attempted to discover and describe current behaviors and attitudes relating to international commercial mediation and conciliation so as to set a benchmark for further analysis in this field. Second, the research attempted to determine whether the legal and business communities thought an international instrument in this area of law would be useful and if so, what shape they believed that document should take.
Improve Your Communication: Use Earplugs!
Guest blogger Kees van Eijk writes, "It started as a communication problem between my spouse and me. But my hearing impairment has remarkably become the most important instrument in my communication toolbox."
The Key “Moral” from Stories Mediators Tell
The theme of the 2014 Mediation Week was inspired by Stories Mediators Tell, a moving and illuminating collection of stories about the often dramatic facts of mediation life that Editors Eric R. Galton and Leila P. Love coaxed from a diverse group of experienced mediators to share with the rest of us.
My Least Favorite Part of Conflict
My least favorite part of conflict is not the conflict itself, nor is it any argument that may result. It's the aftermath. It could be that the conflict remains unresolved. It could be that things were said that deeply hurt one or both people, and that hurt feelings have been lingering for quite some time and only recently voiced.
Trials, Part One
Mediation is often touted as a better alternative to taking a lawsuit to trial. It usually is; but I believe that is still the wrong comparison to make in most cases.
Mediator’s Proposals? A Story…
I have never been a great fan of mediator’s proposals. I took the view that the mediator’s job, done well, was to help the parties to come to a solution themselves. Party autonomy and all that. Achieving a satisfactory outcome, I thought, shouldn’t require a specific suggestion by the mediator.
Fear Comes to School: Mediating Among Parents Around Ebola
As medical personnel, emergency aid workers, and diplomatic personnel return to the U.S. from West Africa, schools must manage tensions between local families who are fearful for their own children, and parents who have been at the front lines attempting to stem the epidemic. What mediator strategies may prove useful?
Is Conflict Always Negative (or Where is the Tiger)?
Once upon a time, when we lived among the tigers, we wisely kept our threat detectors on sensitive.1 With no time to think, when seconds might make the difference between having and being dinner, we reacted, and quickly. Knee-jerk made sense as time was usually on the tiger’s side.
Processing it All on the Last Day….
On my last evening in Israel, I walked on the beach and gazed at the sunset over the beautiful Mediteranean Sea and I was full of so many complex thoughts. That day my visit to Neve Shalom Wahat Al-Salam involved me joining a group of German Citizens who came to view the atrocities imposed upon the Palestinians by the Israeli Government.
What is a “Tiered Dispute Resolution Clause” and What Options Does it have to Offer?
Michael A. Zeytoonian
Tiered dispute resolution clauses in contracts -- this is the first step in providing clients with alternatives to court and litigation. It gives parties value in three ways: (1) It gives them the opportunity to work together on how they will resolve a dispute; (2) it allows lawyers to educate their clients on what their options are, how they work and what their pros and cons are while the parties are calm and agreeable; and (3) it gives the parties more control over the process as well as the outcome.
The Golden Sounds of Silence
Once you acquire some skill in mediation, I find one of the hardest things to master is keeping quiet when emotions erupt. Yes, anger, shouting, tears and bluster happen. Our job as mediators is to bring peace and calm into the room, but I find one of the challenges is to remain silent and still without reacting in a “fix it” mode. Eventually, the anger usually blows over once the steam has been let out.
Thanksgiving Through The Centuries!
Thanksgiving will soon be upon us. And while we will all give thanks for the many blessings that we have, I thought I would share some of the lesser known, but interesting facts about our national holiday. (Spoiler alert: This blog has absolutely nothing to do with mediation!--maybe just communication and national culture?)
Whose Job is the Conflict?
I am a big proponent of taking responsibility for resolving a conflict that somehow includes or affects you, especially if you started the dispute, and this article offers skills for doing this.
5 Ways to Ruin Your Relationships
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Ugh…relationships…who needs them? They are so needy! Your coworker always wants to go out for a beer after work, your partner wants to spend time with you, your friend keeps calling you up to come see your new house. Who has time for all this? It’s probably better just to get rid of them all. So here’s 5 things you can do to ruin any relationship in your life; work, home, friends, even acquaintances.