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Already subscribed No subscription today Blogs - August 10, 2009

by John Ford
August 2009

Beer Summits And Presidential Mediations (8/10/09)
Colin Rule

I've wanted to post something on Obama's Beer Summit for some time, but I thought it best to let the dust settle before weighing in. The racial hot buttons made it harder to focus on the conflict management approach behind the engagement. I think now the time has come to process what happened.

As I've written before, I think that Obama's baseline personality predisposes him to conciliation. Momentary passions or demonstrations of calculated distress (such as the "stupidly" comment) can pull him away from that orientation in a particular window, but over time Obama resets back to the role of conflict manager. Hence this situation ending with the television video of the three men sitting at the table with beers having a civil conversation. This case became a media phenomenon because of the intersection of class, celebrity, and connections to the White House -- there are far worse examples of police over-reaction that have generated much less media attention.

It was definitely satisfying to see "mediation" all over the media for 48 hours. It's clear this has benefited awareness across the US. Though it's definitely an unresolved question as to whether this will result in any uptick in case filings at mediation centers.

Net-net, this underscores why I find it so satisfying to have Obama in the White House. Turbulent times often call for peacemaking personalities (I think the converse is also true, however.) Drawing the likely larger outcome out of this event is a challenge, but John Sturrock did a good job on "From a relatively minor incident in Massachusetts to a history-making speech in Cairo, Mr. Obama's language is straight from the texts on principled negotiation: let's find our real interests, explore the concerns that others have, seek to understand where they are coming from, be robust on what we believe in, but always be respectful of those with different views.

And let's see if we can develop some objectively supportable options for moving forward. Mr. Obama is a natural mediator. His instincts in the Massachusetts matter are to bring people together, in the knowledge that a face-to-face meeting, with a credible third party present, is likely to pay dividends and nip this in the bud.

As he said: "My sense is you've got two good people in a circumstance in which neither of them were able to resolve the incident in a way that it should have been resolved."

That is not unusual. Whether the conflict is about an untidy arrest, or a dispute between workmates, or a tram construction project that isn't working as it should, or changes in terms and conditions leading to strike action and rubbish on the streets, bringing people together with the help of skilled third parties can often lead to a solution where a logjam existed."

I think this is not the last example we'll see of Obama playing mediator. I'm sure it happens in less obvious ways every day, but more behind the scenes. Hopefully he'll refine his approach over the course of his presidency, so that the narrative of the "presidential mediation" can be firmly implanted in the public consciousness.

From Colin Rule's blog.


Negotiating The Power Of Reciprocity With "The Go Giver" (8/10/09)
Victoria Pynchon

A friend recently reminded me of a book review I wrote for one of those "get rich" books The Go Giver (below) for the sorely-missed Complete Lawyer.   I reprint it here in the Negotiation Blog because I talk a lot about the power of reciprocity in bargaining.  I'd summarize my response here, but I can't say it any better than I did below. 

The Go-Giver, A Guide to a Life Lived Richly

American business people have been writing self-help guides to financial success since Benjamin Franklin penned Advice to a Young Tradesman and Poor Richard’s Almanac. Business consultants Bob Burg and John Davis Mann add to this tradition a new parable -- The Go-Giver, A Little Story About a Powerful Business Idea.              

As the title suggests, Burg and Mann recommend that we discard “go getting” -- hard work focused on individual success -- in favor of “go giving” – authentically passionate work focused on the success of others. To demonstrate how material wealth follows generous action, Burg and Mann create an elusive but legendary business consultant “Pindar,” who shares his Five Laws of Stratospheric Success with anyone who promises to practice these principles in all their affairs.    

The pilgrim in this progress is “Joe,” an earnest and hard-working salesman on the brink of a third failed quarter. After promising to follow the laws Pindar teaches him, Joe meets a handful of spectacularly successful givers. These include former hot dog vendor Ernesto, who credits his restaurant and real estate empire to giving more than you take; Nicole, who owes her rise from school teacher to educational software titan to giving much to many; former insurance salesman Sam, whose many philanthropies thrive on giving without expectation of return; and, Debra, who learns to succeed in business by giving of her true self. Having quickly learned each lesson, Joe himself exemplifies Law No. 5 – the willingness to receive the bounty that flows from giving.  

Unfortunately, as a guide to financial success, The Go-Giver is more fairy tale than instruction manual. All of the business icons Joe visits ascribe their riches to acts of authentic generosity. It is apparent from the context in which these stories arise, however, that the key here is neither virtue nor the inherent satisfaction to be found in giving. The key is choosing the right people to give to – those with wealth, monied connections or the power to create economic opportunities for others.   

If we are moved to visit shut-ins; bring recovery meetings to incarcerated felons; or make micro-loans to third-world entrepreneurs, this book is not for us. This is focused giving and the focus is on the “haves,” not the “have nots.”  If we are among the unemployed; the sick; or, the elderly, we’ll need another set   of “Laws” for success  – chief among them laws guaranteeing the education; training; and, health care necessary to enable us to make use of the opportunities created by the Go-Givers’ generosity.  [1]

Walking the Razor’s Edge

Most Complete Lawyer readers are, however, the type of business people for whom The Go-Giver is written.   No matter where we appear on the legal economic ladder, as educated people with access to the justice system, we are well poised to engage in random acts of kindness for, and reap rewards from, those who are well situated to spread a little green.  [2]   So long as we successfully negotiate the razor’s edge between opportunism and genuine acts of generosity, Burg and Mann’s advice will likely redound not only to our emotional and spiritual well-being, but also to our financial success.    

Most readers will, of course, recognize Joe’s spectacular rise from failing salesman to coffee-bean multi-millionaire as the fairy tale the The Go-Giver all but announces itself to be. There is value here, however, in the quotidian acts of kindness in which Joe engages to satisfy Pindar’s requirement that he promptly practice the “Laws” conveyed.     

The most credible results of Joe’s baby steps on the road to becoming a generous human being are his improved relationships with his fellows. Practicing “not keeping track,” Joe foregoes telling his wife his own work-a-day worries, focusing his entire attention upon the challenges of her day. His reward? An entirely believable note of love and gratitude on her pillow the following morning. Practicing “giving more value” than he receives, Joe serves coffee to his workmates as they struggle to meet a collective quarter-end deadline. Though Joe reports “feeling like an idiot” in doing so, it is clear that the warmth and bemused surprise expressed by is co-workers is its own reward.     

The true lesson of The Go-Giver is not so much that material reward follows an expansive spirit, but that one’s daily pleasure increases with the size of one’s own heart. After all, when financial success eludes us – or crashes with the national economy – what we have to rely upon is not numbers on a ledger sheet, but the family, friends and neighbors who will see us through. If we give authentically without expectation of reward – because we “love to . . . as a way of life” – what we will reap is a life richly lived even if we do not thereby “get rich” in the process.

[1]  As the Labor Department tells us, in the year 2000, “high school dropouts were more than twice as likely as high school graduates to be counted among the 31 million American “working poor” while only 1.4% of that number possessed college degrees. See A Profile of the Working Poor – 2000, U.S. Department of Labor, Bureau of Labor Statistics at One’s existing occupation – the job we have been lucky or well-placed enough to be trained to do -- is also highly correlated with financial success or failure. As the Labor Department reports, “[a]lmost 31 percent of the poor who worked during the year [2000] were employed in [low skill] service occupations . . . .,” including “[p]rivate household workers, a subset of service workers that is made up largely of women, were the most likely to be in poverty (20 percent)”. On the other hand, those engaged in executive, administrative, managerial and professional occupations had low incidences of poverty since “[h]igh earning and full-time employment are typical in these occupations.” 

[2] For a fascinating study of way in which social networks have benefited some and excluded others, including women and minorities, see University of Colorado History Professor Pamela Walker Laird’s book, Pull, Networking and Success Since Benjamin Franklin.

From Settle It Now Negotiation Blog


Never Assume (8/10/09)
Phyllis Pollack

        Last week, I mediated a very contentious dispute that was fueled by a misassumption. Only late in the mediation did the parties realize the existence of the misassumption. In the words of our President, it became a “teachable moment.” The teaching: never assume.

      The dispute was simple. A homeowner suffered a fire loss and so made a claim to her insurance company. Eventually, the claim was settled and the insurer issued two checks, payable jointly to the homeowner and her lender or mortgage company. The homeowner allegedly forged the endorsement of the mortgage company and attempted to negotiate both checks. She was able to negotiate one of them but the bank became suspicious and was able to have its depositor, the insurer, request a stop payment on the other. The homeowner then vanished. The mortgage company then requested the insurer to re-issue the second check and send it directly to the mortgage company. The insurer refused, contending it owed a duty to the insured to pay her and was concerned that the insured might reappear and request the payment. Thus, the dispute arose.          

      For more than a year, the parties corresponded: the mortgage company insisting that it was entitled to the re-issued check, while the insurer, citing various reasons, claimed it should hold the funds to be given to the insured, if and when she reappeared. Themes of bad faith and entitlement to punitive damages were flying between the parties.

      In preparation for the mediation, the insurer’s counsel sent a very thorough, detailed brief containing many exhibits. It was signed by the attorney (I will call her “Esquire, Senior”) who had been handling the matter from the beginning. Counsel for the mortgage company submitted her brief and again it was signed by the attorney (I will call her “Mortgage Attorney”) who had been handling the matter throughout.

      The parties then appeared for the mediation session. The Mortgage Attorney and a senior representative of the mortgage company arrived at the mediation. But, on behalf of the insurer, a junior attorney (“Esquire, Junior”) appeared without her client who was appearing by telephone. Immediately, the Mortgage Attorney and her representative became upset: they felt disrespected. They believed that – deep down – the insurer knew it  had no valid reason to not re-issue the checks for the past year or more and so  sent Esquire, Junior to “take the heat” for its “bad faith” tactics and otherwise unprofessional behavior. They believed that Esquire, Senior was “playing dirty” by not showing up  but, instead, took  the “cowardly” road of sending a junior associate to handle what  would be a very contentious and unpleasant mediation.

      So, if the mortgage company and its counsel were not livid about this case before, they  certainly became so. They, immediately opined: “Esquire, Senior does not even have the “guts” to show up herself.” However, being polite, they did not raise this directly with Esquire, Junior. Instead, they seethed, silently, and/or vented to the mediator during the separate sessions.

      Only, many hours later, as the matter was settling, did Esquire, Junior mention that solely because of a family emergency arising late the prior afternoon, Esquire, Senior could not be there: otherwise, she would have been present to “take the heat” herself. She further mentioned that it was and is not Esquire Senior’s “style” to send an associate to do her “dirty work”.

      Upon being told this, a palpable shift in attitude appeared on the faces of the Mortgage Attorney and her representative. They had ascribed evil motives where there were none which had fueled their anger and infected their negotiations. They had assumed, and had done so, erroneously. Had they not done so, perhaps, the mediation would not have been as contentious or taken as long to resolve.

       I have always said that litigation occurs mainly due to a lack of communication or a miscommunication. People assume the wrong things or take a communication the wrong way and sue over it, only to find out years later the error of their thinking. Here, the mediation got off to a bad beginning and lasted longer than it should have because of a misstep and misassumption.

      The lesson: never assume, just ask instead.

From the Blog of Phyllis G. Pollack.


Hey, C'mon, Why Can't Reds And Blues Agree? (8/10/09)
Larry Susskind
I was thinking about the reds and the blues. You'd think they'd be able to reach agreement once in a while without bashing each other. But, the more I analyze it, the more I realize that the reds and blues are probably doomed. Some of the time, it's not in one side or the other's interest to reach agreement. They have more to gain by holding out for some extreme proposal, even if it throws them into deadlock. And, often, something or somebody stands in the way. It's hard to have a constructive conversation if there's too much background noise or by-standers are trying to sabotage things. And, finally, I keep forgetting that most of the reds and blues have no relevant negotiation training or consensus building experience.

It's Not In Their Interest to Reach Agreement

Let's say I'm a red, and I want to build something. I need some of the money that's in the shared kitty. (It's not my money, it's our money.) So, I announce, "I want to build one of those." Doesn't matter what reasons I give, before the words are even out of my mouth, some of the blues have lined up against it. They are against it because I'm for it. They're playing to their constituents. They think they will lose face with their constituents if they support something that a red like me might favor. If I try to make an argument "on the merits," rolling out facts to support my claim, they challenge the legitimacy of my data and marshall contrary evidence. The information is really secondary. They've made up their mind that building what I want to build will take resources away from whatever it is they prefer to do. They have different priorities.

When I suggest we meet to work something out, they might agree, but only because they want to convince me to build what they want instead of what I want. If the blues think they can move forward without any support from the reds, they will. Why talk if they can get what they want. If they can't, they'd rather go down in flames than admit that what the reds want makes more sense, especially when the thing we are fighting about is much less important in the long run than maintaining the support of their constituents.

Are there ever issues on which the fundamental interests of reds and blues overlap? You'd think so. But as soon as someone tries to frame a problem in terms of the overlap, someone else will reframe it in partisan terms -- because it is in their individual interest to do so. That's how they can stand out (and claim a leadership role) in the blue or the red community. Even in a time of crisis, when leaders on both sides know that something must be done, the temptation to frame the crisis in partisan terms (and thus force a win-lose confrontation) is overwhelming. Red and blue leaders wont' be leaders for long if they can't rally the troops. The way they do that is to frame every issue (including every crisis) in partisan terms. Reds say it is about individual rights and responsibilities, letting the market operate in unfettered ways, protecting our national identity and hegemony, and above all promoting economic growth. Blues say it is about reinforcing the social contract (fairness and group responsibility), using the mechanisms of government to correct for inevitable market failures, international responsibilities and human rights, and, above all, promoting sustainable development (so that future generations have the same choices we do). Confrontation allows each side to promote its agenda. Getting agreement pales in importance.

Somebody or Something Is Getting In the Way

Reds and blues act as if they are the only ones with something to say. That is so not true. There are whites who pursue their own individual interests and don't care at all about the perpetual battle between reds and blues. This is really hard for reds and blues to accept: whites are playing a different game entirely. For example, there are contractors who donate equally to red and blue causes. They are trying to court favor on both sides. They don't care about the issues that are central to red and blue, they only care about themselves. There are also people who have written off "the whole system." Their lives are miserable and they blame both red and blue. Then, there are global interests who, like the contractors mentioned above, court both red and blue leaders. They are not above surreptitiously making secret deals with one or both sides. Finally, there are those who make a living off the conflict between red and blue -- the chattering class. It's in their interest to turn up the flame on every controversy.

Any time a segment of reds and a segment of blues try to find common ground, they are attacked not only by hardliners on their own side, but by the chattering class. "Reds and Blues Make a Deal!" does not a headline make. You can't sell papers, you can't grab eyeballs and ears with a story about agreement. But, if you can get a red leader to punch out a blue leader, then you've got a story with legs. The chattering class takes no responsibility for educating anyone on the underlying issues (indeed, the presumption is that there is no such thing as education, only propaganda, so pick a side!). It's hard to reach agreement when you are attacked for even contemplating a meeting with the other side. The chattering class demands transparency and accountability because it is in their interest to do so. The notion that confidentiality might be crucial to the early stages of a useful conversation between reds and blues, is so antithetical to the interests of the chattering class, that they have made such exploratory moves almost impossible.

They Don't Have the Knowledge or Skills

Would you put somebody before a judge or jury who doesn't know how the present their arguments in court? Of course not. We'd make sure that they were represented by qualified counsel. Would you throw someone with no diplomatic experience into a high-level peace-making situation? I hope not. They'd get eaten alive. Would you throw someone into a red or blue leadership role who had no formal training in negotiation or consensus building? We do it all the time! Legal, political, administrative, or corporate experience is not necessarily consensus-building experience. There is a science of collaborative problem-solving that is as carefully spelled out as the techniques of political combat that are on display all the time. But, no one has asked that red and blue leaders demonstrate any consensus building competence. In fact, we seem to think that what we need are leader-warriors who will fight the good fight. Is it a surprise, then, that these leaders have no capacity to generate agreements that are in our collective best interest?

One of the most important things that skilled consensus builders know is that the rules of the forum in which joint problem solving takes place are as important as the abilities of the participants. If reds and blues want to reach mutually advantageous agreements that are actually aimed at solving jointly framed problems, they'll need to change the rules that govern when and how they meet. There's no reason they can't suspend the prevailing rules periodically and switch into consensus building mode, but they don't know that. And, they don't know how to operate in such a setting. They'll probably need a neutral mediator (selected jointly) to help them manage the conversation. Imagine, a confidential mediated conversation between reds and blues where nobody could claim victory over the other side. They'd need to conduct such conversations in private with a confidentiality rule in place. Finally, they'd probably need to agree that no agreement would be reached unless and until nearly all the reds and blues involved were in concurrence. No majority rule. No 60% cloture vote.

So, the question is, as a red or blue constituent, would you be willing to reward your representative with your vote if they produced effective bi-partisan solutions to problems
rather than post more wins than losses against the other side? How should we identify the issues we prefer to have red and blue leaders work on in this way? Is there a large enough segment of the population willing to demand that red and blue switch into consensus building mode periodically? How might we trigger such a shift?

From Larry Susskind's blog on the Consensus Building Approach


Non Attorney Mediators- Not Welcome?!? (8/10/09)
Jeff Thompson
Non Attorney Mediators- Not Welcome!?

Recently someone said having mediators on court mediation rosters be limited to those who are also an attorney was a reasonable rule.

I do not agree.

I vehemently disagree.

Things are dangerously becoming more and more an “us versus them” situation. The two sides to the “us and them” issue are non attorney mediators and mediators who also happen to be attorneys. I happen to belong to the “us” side.

Before I continue, let’s go back to the first paragraph. I ask each of you reading this, is it reasonable to have only mediator’s who are also attorneys be allowed on court rosters? Please, leave some feedback. Let’s hear it from both sides.

By the way, a reason the person gave for the law degree requirement is because of the education you then know the mediator has which then qualifies them to be on the roster. Yes, being educated and possessing a law degree gives a mediator a wealth of insider knowledge of the courts and the understanding of the various jargon and processes but does that translate into a requisite for a mediator?

If this continues, the mediation field for those without law degrees is going to shrink and I believe it can eradicate people like me from being involved. As I type this, I realized perhaps an important point to make- the ‘reasonable comment’ was in relation to a court service where the mediators will be paid. This brings up another question I have- is it ok for mediators without a law degree to mediate in the courts as long as they are volunteers? When it comes to getting paid, is that just for attorneys?

What is a mediator without a law degree to do? To answer my own question with a question, does it matter if I applied for one of these positions and said that I have a Masters Degree in Dispute Resolution? Surely that would fulfill the education requirement… right?

Another potential way to prevent the “us” from losing out to the “them” is (drum roll please) certification. Yes, certification. It seems like all talk on the Internet recently has been around the certification process of mediators. Could a national or international certification scheme help mediators in this case? [read recent comments on mediation certification at Mediation Channel,, Negotiation Law Blog and the Ombuds Blog]

Mediators need to increase their power and certification might be the way to do that. Yet another question for everyone- is it healthy that the ABA’s section on Dispute Resolution is arguably one of the most powerful ADR groups in the country, maybe in the world? What does that say for the field since it is an attorney based organization?

If the ACR could get a certification scheme up and running that could help level the playing field that seems to be titling in a direction heavily towards “them”. I recently became certified by the International Mediation Institute and they very well can potentially help as well. What I particularly like about IMI is 1) they are a non-profit organization and 2) they do not offer any services but are instead just a location for people to find qualified mediators.

The way I see certification helping is I think it will make choosing certified mediators become a ‘reasonable’ choice. A proper certification program, which I purposely will not go into here and that is a separate issue in itself, would give its mediators credibility as they have proved through the certification process they are educated, knowledgeable and have the requisite skills needed to mediate. There, no law degree is required anymore!

I would like to keep this short as many people have already given opinions recently on the pro and con side of certification of mediators. What I am trying to do is show a new angle of how it might benefit mediators.

It does not have to be “us versus them” but under a united certification plan, we all can be “us” under a process where a law degree does not exclude people.

From Jeff Thompson's Enjoy Mediation Blog


Will Smith Teaches Negotiations Lessons (8/10/09)
Steve Mehta

I just recently watched the movie Hancock with my son who has been asking me to watch movies with him.  Well since I like movies and Will Smith, I couldn’t think of anything better to do than to watch Hancock with him.  Now after several years of doing seminars that provide negotiation lessons from the movies, I am always watching for life’s lessorns from the movies.  After watching the movie, though, several thoughts came to mind about how Hancock teaches us lessons that we can all take into life and negotiations.

First, for those of you that don’t know, Hancock —  played by Will Smith – is originally a Superhero with an image problem.  He meets up with a Public relations person who helps him with his image.

The following is one negotiation lesson learned from Hancock.  I will provide additional thoughts and tips from the movie on different posts.

Good deeds, concessions, or actions will go unnoticed unless you have the right bedside manner

Here is a clip of a good deed done by Hancock.

As you saw from the clip, Hancock helped to save a whale from dying but the people hated him for it.  The movie showed many scenes where normally people should be thankful; but instead they are booing him.  In fact, many people even suedHancock for his  actions in saving the city.

Part of the reason, as explained further in the movie is that Hancock is an A$%%^.  His friend explains to him that he needs to change his bedside manner when interacting with people.  He was advised to thank people for their actions; be polite; get permission to do things and many more.

Here is a clip of Hancock as a changed man.

In negotiations the same is true.  You may make a concession or perform some deed that should – in your mind – allow the other person or side to recognize that you are acting in good faith.  But instead the other person mistakes your good intention for some negative or hostile act.  Sometimes in negotiations the other person actually mistakes your action for the exact opposite or believes that your action is only done for a machievillian purpose.

To help avoid these miscommunications, there are several things that you can do:

Make sure to communicate your intent.  In the movie, when Hancock is saving the female police officer, he now makes his intentions known.

Second, coordinate your actions with others – either on your team or the other side.  Letting them know what you are doing is helpful in making sure that the other side does not misperceive your action.

Third, treat others as you would want to be treated.  Simply using polite movements, gestures and statements can immensely help in preventing people from misperceiving your intentions in the first place.

There is an additional discussion of these issues and others in my new book, 112 Ways to Succeed in Any Negotiation.

From the Mediation Matters Blog of Steve Mehta.


12 Online Resources On Collaboration And Public Policy (8/10/09)
John Folk-Williams


This is the first installment of a periodic series of posts highlighting sources of information and insight about collaborative public policy and its many related fields. Cross Collaborate looks at collaborative public policy as an emerging field that draws on numerous sources, including change management, negotiation, collaborative networks, deliberative democracy, mediation, consensus building and other related areas of practice. Each of these sources of influence has provided specific concepts and tools that collaborative leaders and practitioners need to understand in order to select the appropriate method for each situation they encounter.

Each of the websites mentioned here offers a gateway to resources of many types to help deepen understanding of collaborative principles and techniques. These have been especially useful to me, but please add your suggestions so that we can continue to build a comprehensive list.

I’ve adapted these summary explanations from each site and highlighted especially useful resources.

CRInfo: CRInfo “is a free, online clearinghouse, indexing more than 25,000 peace- and conflict resolution-related Web pages, books, articles, audiovisual materials, organizational profiles, events, and current news articles. In addition to its easy-to-use but powerful search engine, CRInfo (along with its partner project, Beyond Intractability) provides easy browsing of information on 600 peace- and conflict resolution-related topics. Also available are recommended readings from our panel of editors on 425 topics, along with 225 ‘executive summary’-type overview essays on key topics and approximately 500 summaries of important books and articles.” These two sites comprise a single comprehensive resource. There are guides introducing conflict resolution to different groups, including adversaries, practitioners and “bystanders,” and another set of user guides discussing the application of conflict resolution methods to many different policy fields. Especially interesting is a large collection of audio-recorded interviews with practitioners and experts from around the world.

Change Management Toolbook: The Change Management Toolbook is a collection of more than 120 tools, methods and strategies which you can apply during different stages of personal, team and organizational development, in training, facilitation and consulting. It is divided into three principle sections: Self, Team and Larger System. Registration is required. Free registration is required. Many materials are free, but others require payment. This is one of the most comprehensive collections of practical tools useful not only in the change management field but also in consensus building and other forms of group process.

The IAF Methods Database: This site is intended for professional facilitators and is dedicated to online and face-to-face methods for creating, leading and following up group meetings. Three levels of techniques are used in the IAF Methods Database; Applications such as Scenario Planning, Methods or Models such as Mind Mapping and Interventions for ensuring efficient meetings. Each of the levels is explained and examples are given. The searchable database contains 455 techniques. The database is located at a different site from that of the International Association of Facilitators, free registration is required for access to the materials. Recent changes to the site have greatly improved access and browsing of explanations for each of the methods.

Open Space World: OpenSpaceWorld is a portal site, functioning as a global community resource. It is managed by a volunteer webmaster, supported over the last ten years or so by a number of helpers and contributors, and linked to several other Open Space community gathering points and resource sites. “Membership,” online and around the world, is open, informal, self-selected — and active. Resources available include authoritative introductions to Open Space methodology, including a sector by Harrison Owen, who developed the method. A couple of earlier posts here provide a very brief introduction to Open Space and to OpenSpace Online, a website replicating the process in online meetings.

US Environmental Protection Agency Center for Conflict Prevention and Resolution (CPRC): CPRC provides alternative dispute resolution (ADR) services to the entire Agency. The CPRC “develops and implements Agency ADR policy, administers Agency-wide ADR programs, coordinates case management and evaluation, and provides support to program-specific ADR activities. Building on existing ADR efforts at EPA, the CPRC assists other Agency offices in developing effective ways to anticipate, prevent, and resolve disputes, and makes neutral third parties more readily available for those purposes.” The site has an excellent collection of documents on federal government policies and use of conflict resolution methods. The EPA site on Public Involvement has an even more extensive collection of resources, including EPA policy documents and Presidential Executive Orders on public involvement. The site also makes available an enormous collection of tools, guidance documents and handbooks prepared for implementation in several EPA programs. Similar materials from other federal agencies and a searchable database make this a comprehensive information resource.

World Directory of ADR Blogs: “Bringing together the world of blogs covering mediation, arbitration, negotiation, conflict resolution, and people-focused innovations in justice and law.” Assembled by mediator and lawyer Diane Levin, the directory contains information and links to blogs on 15 subject areas in the conflict resolution field, and includes sites from 30 countries. This is the most comprehensive listing of blogs by ADR experts from around the world. has been one of the most important sites in this field for more than ten years. It includes a comprehensive directory of mediators in all fields of practice, and an assortment of resources prepared for this site. There is free access to many resources, but practitioners, in particular, can readily sign up for a free Basic Membership. This includes access to over 5,000 articles & resources, a basic directory listing for practitioners for home state, county and area code, and the Weekly Newsletter. Especially helpful is a huge collection of online articles by practitioners and experts, contributed over the past decade, that cover every aspect of mediation, consensus building and negotiation. A weekly selection of posts from practitioner blogs is another unique feature. (Disclosure: this blog is now included.) Paid membership also provides access to a series of video interviews with senior practitioners as well as books and DVD’s.

Harvard Law School Program on Negotiation – Clearinghouse: “The Program on Negotiation (PON) is a university consortium dedicated to developing the theory and practice of negotiation and dispute resolution. As a community of scholars and practitioners, PON serves a unique role in the world negotiation community. Founded in 1983 as a special research project at Harvard Law School, PON includes faculty, students, and staff from Harvard University, Massachusetts Institute of Technology and Tufts University.” PON is especially renowned for its intensive training courses and for publication of the Negotiation Journal. Of greatest interest in this context is its Clearinghouse, a collection of well-tested training materials and simulations. Many are free, but most require payment of modest fees, on a per role player/instructor basis. The simulations are often scorable and are known for their thoroughness in bringing out the fine points of negotiation and mediation skill building.

Policy Consensus Initiative (PCI)/ National Policy Consensus Center( NPCC) : “PCI builds and supports networks that provide states with leadership and capacity to achieve more collaborative governance. NPCC develops collaborative governance systems that enable leaders to achieve better solutions to public issues. We produce and distribute a range of tools and resources, including publications and videos, that promote best practices and provide guidance on the use of collaborative governance.” I have featured several PCI videos on this site because they are the best produced and most concise explanation of public policy consensus building that I can find on the web. In addition, PCI has produced carefully reviewed guidebooks for conveners of consensus processes, focusing on the needs of state legislatures and other officials who have play this role. These are some of the best guides I know to introduce any interested person to the field.

Program for the Advancement of Research on Conflict and Collaboration (PARCC) – E-PARCC Maxwell School, Syracuse University: Adapted from the website explanation: Collaboration is an essential tool in an increasingly interconnected world. PARCC examines how collaborative governance has altered political and social relationships across national and international landscapes. It seeks to identify the best practices of collaborative governance. – Two of its leading researchers, Lisa Bingham and Rosemary O’Leary, have produced authoritative guides to the use of collaborative methods and networks in public agencies. Another resource, located at the E-PARCC website, is a unique set of teaching resources. This collection includes case studies, simulations, course syllabi and other resources relating to collaborative public management, public agency networks, collaborative governance and collaborative problem solving. Many of these materials are produced as part of a competition judged by an international panel of experts. The prize-winning simulations, syllabi and other teaching materials are freely accessible online. Like materials from PON, these are useful for general learning purposes outside instructional settings, especially for the case studies and scenarios of conflict resolution.

US Institute of Peace – Resources and Tools: “USIP provides the analysis, training and tools that prevent and end conflicts, promotes stability and professionalizes the field of peacebuilding. USIP Online Library has over 12,000 items dealing with conflicts, diplomacy, negotiation, and mediation. Resources also include: interviews with experts on recent global conflict developments; a practitioner’s toolkit with tools for the prevention, management, and peaceful resolution of conflict; and digital collections of peace agreements, oral histories and other documentation.”

International Association for Public Participation (IAP2) – Public Participation Knowledge Network: IAP2 is the major professional association in this field. Its Knowledge Network is a growing resource that includes a forum for feedback and discussion. “Developed by the International Association for Public Participation (IAP2) and Portland State University’s Center for Public Participation, this interactive network is a resource for both academics and practitioners who are interested in sharing knowledge and research on public participation. The network consists of: a searchable database of books, articles and websites related to public participation; an online discussion forum for sharing research-related knowledge and experience.” The database provides abstracts and detailed references for over 300 research articles and 45 case studies. Especially useful for anyone wanting to learn more about public participation practices globally are summaries of almost 50 websites, with listings of the types of resources available at each site.

From John Folk-Williams's blog Cross Collaborate


You Decide from Mediate Dot Com (8/10/09)
Victoria Pynchon


 This new video just in from  No, it won't inspire attorneys to mediate sooner than they already do nor drive any attorney to your mediation door.  But it will introduce mediation to young people as a dispute resolution method that is in tune with the times - collaborative, reciprocal, fast, flat and flexible.

This is particularly timely for me as I sent my British law intern to the complex court to observe a status conference in an environmental coverage case that has been pending longer than she's been alive!

From Settle It Now Negotiation Blog


Kiwi Mediators To Get $3,000 A Day! (8/10/09)
Jeff Thompson

Nominations Sought For Court Ordered Mediation Pilot

Last month Justice Minister Simon Power and Courts Minister Georgina Te Heuheu announced that the High Court in Auckland would introduce a pilot scheme that would see private mediators undertake court-ordered mediation in some civil disputes.

The pilot will commence on November 1 this year and will enable the equivalent of 50 one day-long mediations to be carried out. The Ministry of Justice will pay mediators at the rate of $1500 plus GST for half-day mediations and $3000 plus GST for whole day mediations.

Here the are the qualifications (from the article):

1. Hold a certificate from a recognised mediation training provider;

2. Experience in conducting a reasonable number of mediations;

3. Experience in litigation and/or arbitration generally;

4. Operate at a senior or intermediate level of legal practice.

Read the full article [here].

Sounds like you have to also be an attorney... right?

If anyone has more information, please share it here.

From Jeff Thompson's Enjoy Mediation Blog


Elderly At Increased Risk of Death From All Causes Because of Abuse and/Or Self Neglect (8/10/09)
Steve Mehta

For those of you that are involved in elder issues, like myself, I thought this information might be interesting. 

Elderly who are subjected to abuse or self-neglect are at an increased risk of premature death, according to a recent study.

According to researchers, elder abuse and self-neglect are more common than you might expect and are under-recognized public health issues.  According to Dr. XinQi Dong, a geriatrician at Rush University Medical Center there are an estimated 2 million cases of elder abuse and self-neglect in the United States each year.

“Our findings demonstrate the dire health consequences for these vulnerable older adults,” Dong said. “Health care professionals and others who serve the elderly need to identify and report suspected cases of abuse or self-neglect early and act quickly to ameliorate the problems.” Abuse refers to psychological/emotional abuse, physical abuse, sexual abuse, caregiver neglect or financial exploitation. Self-neglect refers to behaviors that threaten the person’s own health and safety.

The study found that elder abuse was associated with a more than two-fold increased risk of premature death from all causes and an almost 4-fold increased risk of premature death from heart disease specifically. Self-neglect was associated with an even greater risk of premature death, particularly during the first year after self-neglecting behavior was identified. During that year, the risk of premature death from all causes was five times as likely as for elders who did not neglect themselves, and the risk of premature death from heart disease specifically was eight times more likely.

Interestingly enough, the study also found that increased mortality was significant for older adults regardless of what their level of physical or cognitive function, except for elders with the highest level of functioning.

According to Dong, the field of elder abuse is estimated to have lagged more than 20 years behind that of child abuse or domestic violence.  Dong’s hope for the study was that it would stimulate more discussion about these issues as well as raise awareness of this issue in the national forum.

Research Source:

XinQi Dong; Melissa Simon; Carlos Mendes de Leon; Terry Fulmer; Todd Beck; Liesi Hebert; Carmel Dyer; Gregory Paveza; Denis Evans. Elder Self-neglect and Abuse and Mortality Risk in a Community-Dwelling Population. JAMA, 2009;302(5):517-526


Texas House Bill And Bad Faith Mediation In Balance Billing (8/10/09)
Holly Hayes Bovio

As discussed in my previous post, Texas House Bill 2256 was signed into law on June 19, 2009. The bill provides a procedure for mediation of “balance billing,” which is the practice of billing insured patients for amounts or balances not covered by the insurer. HB 2256 also includes the following section on “bad faith” mediation:


Sec. 1467.101. BAD FAITH.

(a) The following conduct constitutes bad faith mediation for purposes of this chapter:

(1) failing to participate in the mediation;

(2) failing to provide information the mediator believes is necessary to facilitate an agreement; or

(3) failing to designate a representative participating in the mediation with full authority to enter into any mediated agreement.

(b) Failure to reach an agreement is not conclusive proof of bad faith mediation.

(c) A mediator shall report bad faith mediation to the commissioner or the Texas Medical Board, as appropriate, following the conclusion of the mediation.

Sec. 1467.102. PENALTIES.

(a) Bad faith mediation, by a party other than the enrollee, is grounds for imposition of an administrative penalty by the regulatory agency that issued a license or certificate of authority to the party who committed the violation.

(b) Except for good cause shown, on a report of a mediator and appropriate proof of bad faith mediation, the regulatory agency that issued the license or certificate of authority shall impose an administrative penalty.

On a related note, Victoria Pynchon conducted recently an interesting survey about “bad faith” in negotiations. Lawyers, mediators, and clients came up with a list of 35 examples of what they considered “bad faith.” Find the survey results here.

We welcome your comments about this post!

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.



John Ford is the former managing editor of 

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