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How Mediation Works: Theory, Research, and Practice - Book Review

by F. Peter Phillips, Stephen Goldberg
June 2017 How Mediation Works

A collection of Blaise Pascal’s letters, published in 1657, included a letter that contained the apology, ”Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte.”  That is to say, “I wrote a longer letter than usual because I did not have time to make it shorter.”  The recently published book, tersely titled How Mediation Works, must have taken the authors quite a bit of time.

The bulk of the non-bulky (111-page) volume is written by three seminal leaders of the ADR movement:  Stephen B. Goldberg, Jeanne M. Brett and Beatrice Blohorn-Brenneur.  A chapter on “Mediation and the Law” is contributed by Professor Nancy Rogers of Ohio State.  The result could be compared to those condensed “…for Dummies” series, except that the precision of thought, clarity of writing and general excellence prompts me to subtitle it “Mediation for Smarties.

Reading the book is like brushing away cobwebs and seeing a room clearly.  The authors start off by distinguishing between “conflicts” – the collision of differing viewpoints – and “disputes” – a subset of conflicts in which one party makes a claim upon another, who rejects it.  Then they divide the process of resolving disputes into three broad categories:  processes relying on power and coercion (like boycotting a segregated restaurant), processes relying on rights (like appealing to an authoritative decision-maker to apply applicable principles and declare which party should prevail), and processes relying on interests (like engaging to reconcile priorities and effect trade-offs, resulting in an imperfect but acceptable outcome).  Then they define mediation as “negotiation with the assistance of a neutral third party.”  That gets us to page 7.

In keeping with their rigorous discipline of thought, the authors walk us through the role of a mediator in convening the parties, explaining the process, developing potential resolutions, and concluding the process.  In a 17-page chapter worth the price of the entire book they opine on common party-related obstacles during mediation, such as the urge for rights-based vindication, prevarication, or exploitation.  And they are admirably frank in the final chapter, titled “So You’d Like to Be a Mediator?”  This is, I’m pretty sure, the only mediation book I’ve read that includes in the index the entry “Day job, don’t quit, 104.”

The book is steadfastly mainstream.  The authors accept without challenge that a mediator should be “neutral,” for example – a proposition that a great number of sophisticated parties, including Asian disputants and many Western companies, would contest in a number of contexts.  It’s a little weak on recent scholarship and resources; the list of recommended mediation demonstration DVDs, for example, is pretty dated, and the suggested reading on impasse-breaking consists of only two items, the most recent six years old.  At the same time, aspects are quite contemporary; readers are provided a compilation of ADR blogs that includes this one – evidence of the authors’ profound discernment, if ever I saw it.  And the book is available in digital as well as hardcopy format.

Buy several copies of the book.  Share it, and give copies as presents to clients, counsel and your mediator buddies.  It really is that brief and it really is that good.

Biography



F. Peter Phillips is a commercial arbitrator and mediator with substantial experience providing consultation on the management of business disputes to companies around the globe.

A cum laude graduate of Dartmouth College and a magna cum laude graduate of New York Law School, Mr. Phillips served for nearly ten years as Senior Vice President of the International Institute for Conflict Prevention and Resolution (CPR Institute). During that time, he earned a reputation as an author, teacher, industry liaison, and systems designer for the avoidance, management and resolution of complex and sophisticated business conflicts.

In 2008, Mr. Phillips formed Business Conflict Management LLC (BCM) in order to offer his direct services as a neutral and a consultant. Through BCM, Mr. Phillips also continues his career as a highly sought-after public speaker, facilitator and instructor.


Stephen Goldberg has taught negotiation, mediation, and arbitration at Northwestern Law. Professor Goldberg has been serving as a mediator, arbitrator, and dispute resolution consultant for 35 years. He is president of Mediation Research & Education Project, Inc, a member of the National Panel of Distinguished Neutrals of the International Institute for Conflict Prevention and Resolution, and a member of the National Academy of Arbitrators. He is also a mediator of the International Court of Arbitration for Sport, a salary arbitrator for Major League Baseball and the Major League Baseball Players Association, and the Jobs Monitor for the United Mine Workers of America and the Bituminous Coal Operators Association. Professor Goldberg is the author of numerous books and articles.

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