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Private Sector Innovation: An Interview with James Melamed

by Gini Nelson
September 2007


Originally published as Vol 1, Nos 3&4 of Gini Nelson’s Engaging Conflicts Today. A free subscription to the newsletter is available at EngagingConflicts.com.

Jim Melamed, J.D., has been offering mediation services since 1983. He is an adjunct professor of Mediation at Pepperdine Law School; has assisted in the resolution of over 2,000 disputes; and is the co-founder and CEO of Mediate.com, reputedly the world’s most visited conflict resolution web site. Jim’s innovative and entrepreneurial supports conflict specialists working to establish and maintain their niches, increasingly necessary for business success. His articles include 20 Concepts & recommendations for Utilizing the Internet, excerpted in several parts at the Engaging Conflicts blog beginning here. Enjoy!

INTERVIEW WITH JIM MELAMED

From Lawyer to Lawyer Mediation

Gini: Good morning, Jim. Thank you for taking the time to share your thoughts and experiences with us. What attracted you to the field of conflict management in the first place?

Jim: In law school and my first few years of legal practice, there just seemed to be a whole lot of righteousness and “myth.” Cases did not really get tried so much as settled at the 11th hour with extended tension and expense. Attorneys would argue until red in the face, then settle without any resolution of the legal or factual issues. Along the way, there was endless arguing and simplistic and expensive solutions. I came to want to participate in a better process, really a best possible process, and in best possible solutions. I think that’s what mediation uniquely offers.

A Personal Career Path

G: If you knew earlier what you know now, would you still have pursued the same career path?

J: Well, my career path was first as a practitioner, then as an administrator/executive of state and national organizations and then as a co-founder and CEO of Mediate.com, so that is a bit of a unique and exciting path, especially the past 10 years at Mediate.com. Right now, I see my and Mediate.com’s role as being a bridge between the field and public. My goal is to help the field and each practitioner be at their best, including their best web presence, as part of their greatest overall service and impact. I think I have had some unique and rather remarkable opportunities, so yes, I would do the same.

G: What is the best advice that you have been given? And what advice would you give a budding conflict specialist?

J: One piece of advice was, “you earn your mediator currency in the first half of a mediation and you spend it in the second half.” What this equates to, for me, is the critical nature of both listening and fully exploring each participant’s positive interests and map of reality until participants experience themselves to be fully heard. It is only then, when they experience you to be “one with them,” that they are open to joining you to explore new options. Advice to a budding conflict specialist: gently nod your head a lot; say “uh huh” a lot; only speak about half the time you are tempted to; only speak half as long as you might. In your humility and uncertainty lies their power and clarity.

Conflict Resolution Heroes

G: Do you have a “conflict resolution hero,” and if so, who and why?

J: I have many Conflict Resolution Heroes. What a great concept! I am going out to reserve the URL. We should do a comic book and web site then a feature length movie! Seriously, a few that come to mind are Fisher and Ury, who were huge in popularizing interest based negotiation. Frank Sander was and is foundational in his concept of a multi-door courthouse and his work to legitimize ADR, including establishing the ABA DR Section. I think that John Haynes should be honored for helping mediators to think of themselves as having a new distinct role from other professions of origin. Sid Lezak in Oregon was a great mentor. He had an authenticity that helped to honor and guide participants. He was an effective eclectic. Jay Folberg modeled what I will call “leading from behind,” allowing others to go first and then to honor and integrate their comments in offering one’s own constructive thoughts. Joan Kelly, in the family arena, has been helpful in insisting that our work be subject to capable research evaluation. I can go on …

The Biggest Questions

G: What do you think are the big questions to be answered next in the conflict management field?

J: Is it a field? If so, what are the boundaries? What is included and what not? Sometimes, it all seems so broad that it is more about “how we do life.” Our greatest gains have been in such core areas as family and the workplace. There have also been huge gains in commercial disputes and civil claims. And the number of administrative programs – special ed, ADA, EEOC, on and on is amazing. Whether we have a field or not, there are some 1500 statutes and regulations that have people doing something called “mediation.” One challenge is that a great many things are called the same thing - “Mediation.” My greatest fear is that the sacred mediation process, which offers our best opportunity for most capable discussion (process) and most capable solutions (agree-ment), is being institutionalized in foolish and mediocre ways. For example, it is common, given concepts of court or agency jurisdiction,to require a due process filing to gain access to government sanctioned mediation services. In other words, people with a concern need to polarize and legalize their complaint and legally file so as to gain access to government sanctioned dispute resolution assistance. This seems foolish, to use court and due process filings as a requirement for facilitative assistance. Then, when we get the folks, we offer them a time limited (often only 1 or 2 hours) “mediation” opportunity in what may be a windowless court basement room. There should be some sort of “mediation and facilitation jurisdiction” where one can get assistance without having to legalize and polarize. People should have whatever time it takes. We should build “Agreement Houses” at an even faster rate than “Court Houses” as we need to catch up. This also brings up community based dispute resolution. While there have been some amazing successes and over 500 programs nationwide, they are dramatically under-funded. The funding issue is a huge challenge. What should our public policy be here? I would suggest, as an earlier SPIDR 1990s white paper essentially did, that our efforts at supporting people to reach agreement should be funded at least to the extent that we subsidize adults waging court battle at public expense. All this being said, I think we are making a mistake to think that our answers lie with the government – maybe someday.

For now, our best short range solutions are to continue to effectively define what we have to offer in the private sector and to make that value proposition to ever-expanding populations. Our innovation has long come in the private sector. This is where market need and creative initiative come together. We need to be sure that institutional adoption of mediation approaches does not destroy the magic of the approaches themselves. We need to flexibly support people being at their problem solving best and put this before meeting formal court or agency due process requirements.

G: What is the major ethical issue facing the conflict management field?

J: Being swallowed by the legal rights-based mindset. The beauty of mediation is in its simplicity: voluntary, confidential, self-determination, minimized risk if you do not resolve. We need to keep it simple and safe to be attractive. Most capable discussion = most capable results. We should encourage early discussions with minimum formality and fuss. Focusing on Uniform Mediation Act and exceptions to mediation confidentiality is not where our energy needs to be. We need mediation to be bigger than the court system, a part of our everyday global mindset.

Thrills and Spills

G: What has been your biggest thrill in being a conflict specialist?

J: On occasion, folks put together a really remarkable set of resolutions and you feel like you played a meaningful role in that process, if only by staying out of the way and keeping your mouth closed. Seriously, folks are smart. They only want to settle when they are somewhat confident that they have the best deal that they can get. So, a lot of the discussion is best developing solutions and then also confirming face saving rationale for settlement. We are likely to settle, but we first need to be able to explain that settlement to ourselves and significant others. I believe that the media-tor plays a key role in both capacitating the discussion and in slowing it down sufficiently that folks are confident that they are not being a fool.

G: What was your biggest mistake?

J: Thinking that participants and attorneys want to settle matters as quickly and affordably as possible. There are a good many other (psychological) things that need to be taken care of along they way, including that each side feels that they capably perform and participate, that they are heard, that there is some honoring of their view and solutions that they can positively explain to themselves and others.

G: Any regrets?

J: That there are not 48 hours in a day.

G: Thank you, Jim.

©2006 Gini Nelson

Biography


Gini Nelson is a sole practitioner in Santa Fe, New Mexico. Her practice emphasizes private dispute resolution, including distance dispute resolution, and domestic, bankruptcy and bankruptcy avoidance law.



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Website: www.gininelson.com

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