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Already subscribed No subscription today Blogs - August 17, 2009

by John Ford
August 2009

How Should You Respond To The Noisy Health Reform Critics? (8/17/09)
Larry Susskind
Imagine you are one of the members of Congress running a "town hall" meeting to discuss pending health care reform legislation during the current legislative break. You are confronted by some very angry citizens. They are shouting at you!

"How dare you!
Don't you take my doctor away from me! Don't tell me what medical services I can and can't have!
If you think the Canadian system is so great, why don't you go live up there. People have to wait months to see a doctor in Canada.
Shame on you! I don't want some faceless government bureaucrat deciding whether my parents live or die!
I'm a small business owner. You're gonna bankrupt me if I have to pay for health care for my four or five employees.
Our health care system is already too expensive! You're going to raise my insurance premiums if we have to pay for everyone who won't take care of themselves!
The deficit is already out of control. You're bankrupting the country.
Look at what happened in Massachusetts after they passed their health care reform. Costs exploded! They can't cover everybody. Their taxes are going up.
My tax money shouldn't be used to pay for abortions.
Don't you cut my medicare benefits!
It's greedy trial lawyers who driving up the cost of health care.

There a bunch of things you want to say, but every word out of your mouth is met with another round of boos and chants of "No New Taxes," "Let Doctors Decide," and "Keep Your Hands Off." You feel obliged to set the record straight on each and every point:

No one will have to give up the health care provider they have now.
We are not proposing a single payer system like they have in Canada. The proposed reforms
passed by the House and being considered in the Senate will offer more choice for more people, not less choice. (Besides, the claims about long waits and government telling doctors what they can and can't do in Canada are bogus.)
This whole Sarah Palin "death panel" thing is a complete fabrication. There's nothing in the proposed legislation that would tell doctors or patients how to handle end-of-life decisions. There are provisions that make it OK for doctors and patients to talk about the most compassionate ways of helping people who are dying. But everybody wants that.
We are going to exempt small business or rebate some of the costs to small businesses who help their employees get health coverage.
The cost of health care keeps going up. We can't afford not to do something to bring the costs under control. Other countries get better medical results at lower costs than we do. One of the best ways of reducing the continued growth of health care costs is to get everyone into an insurance system that compensates providers for keeping people healthy (not for spending as much as possible on unnecessary procedures once you are sick)! We need a system that can bargain with powerful pharmaceutical companies to keep the costs of drugs down.
We may have to increase public spending in the short term to reform our health care system, but in the long term this is the only way to bring costs under control. We need to put the system in place and give it couple of years. Then the costs will start to come down for everyone.
Actually, Massachusetts has reduced the cost of providing health care to everyone in the state. It's not true that the new state system (that covers everybody) is breaking the budget or causing tax increases.
Abortions are legal in the United States. People covered by publicly supported health insurance need to have the same choices that people covered by private insurance have.
We are not talking about cutting medicare benefits or medicare spending. What we are trying to do is get more people who don't have insurance covered by something like medicare.
Yes, legal reform is necessary to reduce unscrupulous malpractice claims that drive up medical costs.

But, it's pointless. As soon as its clear that you mean to disagree
with what one of the questioners has said, the boos and chants begin. Nobody is listening to anything you say. And, even if you managed to get the words out, they wouldn't believe you. They have been briefed by their favorite talk radio hosts. And, many of the people there have been bused in or organized by political action groups. They have their talking points. Many of them believe fervently what they are saying -- that proposed reforms will bankrupt the country, that their medicare benefits and choices are about to be cut, that they will be forced to abandon their local health care provider or limit their medical services.

So, what's the best advice we can give a Congressperson in such a situation? Most aren't going to get the easy ride that President Obama got in New Hampshire. Hard as he tried, he couldn't get any of the 1600 people present to challenge what he was saying.

Here are five suggestions that grow out of what we have learned about facilitating public dialogue in politically charged situations:

1. Begin by saying that you want to hear what the audience has to say. Ask 5 volunteers to come up on the stage to ask whatever questions or make whatever statements they think are important. Invite them up. Make it clear that you don't know any of these people and you are just trying to find out what people who bothered to come to the town hall meeting have to say. Pick five who raise their hands and appear to represent different age or other groups. Let them speak. Tell them that the ground rule is that each person has the mike for no more than five minutes. Invite them to sit on the stage with you. (Make sure someone is controlling the mike and make it clear that it will be shut off after five minutes.) Don't try to respond to each statement. Just listen.

2. Then, after those five have spoken and gone back to the audience. Ask for 3 more people who have different points they want to make that don't repeat what has already been said.
Again, choose three from those who indicate a desire to speak. Invite them up. Same ground rule. Let them speak. Don't respond to each person.

3. When the eight have spoken (it could be 10 if you want), make a list of the key concerns or criticisms that have been raised. Re-state each argument in the most empathetic way you can -- as if you believed each claim or criticism. Show that you have listened. When you have played the points back, ask those who stated them originally whether you have understood their concerns. If they say no, spend a minute or two trying to re-state their points.

4. Then, announce that you are going to take no more than 3 - 5 minutes to respond to each of those points. Since you have given those who have concerns a chance to voice them, you expect to be given the same courtesy. If people disrupt, remind them of this ground rule. If the whole crowd continue to be unruly, indicate that you will end the town hall and broadcast your responses on the web and the radio. See if that gives you the "space" you need to have your say.

5. If you manage to get through all eight points. Then, open the microphones -- people
need to stand in line to use them one at a time -- so that anyone can rebut what you have said, respond to one of the original statements, or raise any additional question they like. Promise that by the next day, you will make available to anyone who provides an email address or a snail mail address a written version of your responses to all the questions raised.

6. Hand out a survey form to everyone in the room. Include three or four open ended questions about people's reactions to the parts of the proposed reform legislation that you would most like input or advice on. Say that you will read all the responses. Indicate, that you will also be doing a scientific survey of everyone in your district to see whether the views represented at the town hall are representative of the district as a whole. Then, do a quick overnight telephone survey of 500 people in the district to see whether the key points raised in the town hall match up with what the population of the district thinks. Publicize the results.

If the goal of the town hall is to hear what people have to say, then the suggestions above will accomplish that. If the goal is to "educate" people on what the Congressperson believes, he or she should have a handout ready with a detailed statement and evidence to backup their claims. If the goal is to generate a thoughtful dialogue, a town hall meeting is the wrong format. Better that the Congressperson selected a small statistically representative sample of residents to talk with in an extended conversation for several hours. It might also make sense to encourage the kind of "study circles" that have been used so successfully in Scandinavia to get thousands of people thinking and talking about the issues framed in a study guide. If the goal is to hammer out a consensus with regard to the district's views, it will be necessary to tap a professional mediator to undertake a district-wide conflict assessment that will produce a "map" of all the relevant stakeholder groups vis a vis the health reform issue and to involve representatives of each of category of groups in formulating an agenda, ground rules, and a process of joint problem-solving.

From Larry Susskind's blog on the Consensus Building Approach


Bad Faith Mediation Tactics Or Not? (8/17/09)
Steve Mehta

It is fascinating that when I experience a particular event at a mediation, every so often I happen to come across information on  the web that is directly relevant to the event that happened that day.  Today for example, I mediated a case where one party accused the other of acting in bad faith and coming to the mediation in bad faith.

It just so happens that on the same day, I saw this post at where there was a reference to a proposed Texas law regarding bad faith mediation.  That post discusses the new law regarding bad faith mediation tactics.  That law addresses three things as bad faith:  failure to participate, failure to have a full authority representative present, and failing to provide necessary information.  It authorizes the mediator to report this conduct.

Interestingly, I do  not think a statute like this would pass muster in California due to the limitations that the courts have imposed on the mediator’s ability to disclose information from the mediation.  But even if this limitation were removed by statute (as an exception to confidentiality), is it reasonable to ask the mediator to disclose this bad faith action?  Isn’t the mediator going to lose all credibility with one side or the other for reporting potential conduct?  Moreover, aren’t many cases subject to interpretation.  For example, what if a person has authority to settle from an insurance company but is limited by the authority given to him or her by the round table committee?  Is that full authority or is that failure to provide a proper person?  Is a client’s obstinate refusal to see the lack of merits in its position a failure to participate  in the process?  And what is necessary information?  Does the party have to disclose all information?  All relevant information?  All unfavorable information?  What if the party knows of a case or a theory that would destroy its position, but the other side doesn’t?

The issue of bad faith is very complex and in my humble opinion cannot be defined as easily as the Texas Legistlators seem to suggest

The problem with the issue of bad faith is that many litigators feel that the other side is acting in bad faith when they themselves may have acted in fashion that could be accused of being in bad faith.  Much of this comes from the frustration that occurs when the other side does not quickly accede to one side’s position or dollar value.  Much of the frustration (and comments regarding bad faith) comes from the fact that one side does not understand why the other side does a particular thing.  I have seen people accuse others of acting in bad faith because the other side would not agree with their dollar position;  I have also seen one side accuse another of acting in bad faith because it is not responding quickly enough.

The reality is mediation is not that simple.  You have two or more completely adverse parties who have been unable to solve their problems by themselves who are attempting to use the mediation process as another arena to advocate their positions.  The parties often don’t want to hear what the other side says, and I frequently hear that one side doesn’t care what the other side thinks or feels about a particular issue because the other side is simply wrong.  All of this goes in the mediation pot along with a dash of frustration regarding the litigation process.  Out of those raw ingredients, there is room for peace and resolution.  But the chance of resolution is probably decreased with accusations of bad faith.  Things don’t happen at the exact pace that we want it to happen.

We should be very careful about claiming bad faith, and should be even more careful in legistlating bad faith in mediation.

From the Mediation Matters Blog of Steve Mehta.


CPR Publishes Early Case Assessment Guidelines (8/17/09)
John DeGroote
You can’t settle your case before you know what it’s worth — or at least you shouldn’t — so we discussed why it’s best to value your dispute before settlement discussions start a few months ago.  This fact has driven an entire series on Early Case Assessments here on Settlement Perspectives, and it’s clear I’m not the only in-house ECA fan out there.

The International Institute for Conflict Prevention & Resolution, known also as the CPR Institute, has recently published CPR’s Early Case Assessment “ECA” Guidelines (2009), which are designed to “set forth a process designed to help businesses decide early on how to manage disputes, including identifying key business concerns, assessing risks and costs, and making an informed choice or recommendation on how to handle the dispute.”  They certainly meet their objectives.

CPR’s Early Case Assessment Guidelines

The guidelines themselves are divided into five sections, each of which deserves a read:

  1. CPR’s Definition of ECA;
  2. Benefits of Utilizing Early Case Assessment;
  3. CPR Rationale for Developing the ECA Guidelines;
  4. Setting the Stage for Successful Early Case Assessment; and
  5. Utilizing the CPR ECA Guidelines.

Additional ECA Materials from CPR

Importantly, CPR’s Guidelines are backed by truly helpful resources in .pdf format, including:

Recent Press on CPR’s Early Case Assessment Efforts

CPR Institute President and CEO Kathy Bryan has followed up on these guidelines and CPR’s other efforts to make sure ECA stays at the top of the in-house agenda with a recent Metropolitan Corporate Counsel article.  Bryan provides us with a quote not unlike one you might have seen here on Settlement Perspectives before:

We think that the sooner early case assessment can be done - and it can be done 30 to 60 days after a complaint is filed - the greater the likelihood of an early resolution at minimum cost.

We couldn’t agree more.

Stop by the CPR website at when you can. You’ll be glad you did.

From John DeGroote's Settlement Perspectives


Run Toward Fear (8/17/09)
Debra Synovec

People in the midst of divorce are often extremely overcome with fear caused by the overwhelming change in their life. Pressure from fear of the unknown, triggered by questions such as: “How will the divorce affect the children?” “How will I survive financially?” “What will people think?” “Where will I live?”, coupled by anger and raw emotions, drives people to run away, looking for a place to “solve” the questions and expunge the fear. In their flight, divorcing clients regularly run to attorneys, hoping to be saved by the courts, only to find out that the situation then spirals even more out of their control, magnifying the fears, stress and trauma.

Running toward the source of the fear may be a better solution. While reading The World Behind the World, by Michael Meade, I was reminded of an old African story told to me by a guide when I was in Kenya several years ago, called “The Lion’s Roar”. The guide’s narrative was much more colorful, but the basic story is: Older lions, although not nearly as strong as the younger lions, have an enormously loud and ferocious roar. Out on a hunt, the older lions strategically wait for the prey in the grass away from the younger, powerful lions. Even though toothless ...the older lion’s enormously loud and ferocious roar sends the prey running away scared, right into the pounce…and teeth…of the younger lions. The moral of the story is that instead of following our first instinct to run away from the roar of the fear, it is better to face our fear head on.

Facing and even embracing the fear can help clients take control and navigate the situation. As Michael Meade points out, when we do not face our fears terror is given the space to grow. Mediation is a process that helps people face their fears and navigate the unknown, one step at a time. Step by step ambiguities are cleared up, solved and even transformed…and fear is released.

Please let us know your thoughts.

From the Real Divorce Mediation Blog of Nancy Hudgins and Debra Synovec


Letter From Cambodia: American Cambodians For Justice (8/17/09)
Victoria Pynchon

[Update Ed. note:  Cambodia genocide tribunal to get anti-corruption oversight as reported by Jurist on August 13, 2009)

My name is David Blackman and I am a trial lawyer who practiced in Sacramento, California, for approximately 32 years before coming to Cambodia, where I have made my home for the last three years. I have been a member of the California Bar Association since 1972. I have formed an organization called American Cambodians for Justice. This organization represents American Khmers who were victims of the Khmer Rouge and who immigrated to the US in the early 80’s after the defeat of the Khmer Rouge by invading Vietnamese forces accompanied by Cambodians who fled to Vietnam to escape the purges of the Khmer Rouge during their reign of terror.

At the present time I represent several American Cambodians who have lost their husbands or wives, children, parents and brothers and sisters during the Khmer Rouge years, from April 1975-January 1979.

Cambodia and the United Nations have created an International Tribunal whose purpose is to prosecute and try Khmer Rouge senior leaders and persons most responsible for Crimes against humanity.While here in Cambodia as a tourist in late 2006, I became interested in the Genocide Trials taking place in Phnom Penh.  Because of my experience doing trial work with large numbers of victims, I thought I could help US Cambodian Victims of the Khmer Rouge. They are some of the senior leaders of the Communist Party of Democratic Kampuchea. (CPK) and were the architects of the grand design to mold Kampuchea into a Communist Utopia at any cost. 

This is the first Genocide trial in the world that has let Civil Party Victims join in the criminal proceedings at all stages, including pretrial proceedings. [Ed. note:  see the Khmer Rouge Trial Portal]  Because of the effect of these trials will have on International Human Rights Law, what happens here will be precedent for future cases. 

  [Ed. note:  below, survivor of Toul Sleng Prison gives his testimony on YouTube]


The cases are at this time divided several categories, Case 1 victims are the survivors of Toul Sleng Prison and the families of those murdered there.  This infamous prison is where over 15,000 Cambodians, and foreigners  were tortured and killed.  Their buried bodies were later found in mass graves in what has been called the "Killing Fields,” a few kilometers outside of Phnom Penh. This is only one of many mass burial sites throughout Cambodia. This case is currently in trial as I write.  The Defendant is “Duch” the Prison Warden, There are only about 89 victims involved in this case.  There are no American Cambodians who are Civil Parties in Case 1”.

Case 2, which will begin perhaps before the end of 2009, [will ] likely [involve] people who were forced to leave the cities like Phnom Penh and forced marched to work in the labor camps or killed because they were branded either Capitalists or educated or belonging to a former regime. These cases will remain open for some time. There maybe a case 3 involving additional defendants but, it is being resisted by the Prime Minister of Cambodia Hun Sen.


David Blackman

 Attorney at Law

 American Californians for Justice

 855-12- 872-503 (in Cambodia)

 916-935-1164 (in the US)



I am the only American lawyer representing exclusively American Cambodians. Only a handful of Cambodian Americans have filed claims so far. That can be explained, as the terror that they experienced is so psychologically damaging that they are unable and unwilling to deal with the past and its pain even after more than 30 years.

I have talked to many American Cambodians who are simply still afraid, after more than 30 years, of  becoming involved because they still live in the past.  Once I tell them that their names will generally not be disclosed and will be kept secret, they are more at ease, but they still do not take the next step to join. Their names are not necessarily important, but their stories are. Without actual descriptions of the brutality of the Communist Party of Kampuchea (CPK), history may not reflect what actually happened. 

Case 002 involves the CPK’s ideologues. Nuon Chea, Ieng Sary, Ieng Thirith and Kiev Samphon. These leaders are still true believers even after being confronted with their atrocities. They were educated in Paris in the 50’s where they, as Cambodian intellectuals, were easy targets for the rapturous call of a Communist Utopia. Kiev Samphan wrote his PhD dissertation there and formulated his vision of Cambodia as one great collective. Caught up in the winds of history, it is these upper class Cambodians who ended up the leaders of the most brutal communist revolution in the history of modern man. They were even cautioned, but ignored the warnings, from Peking and Zoe Enlai, to go slowly so that the misery of China’s great leap forward would not be visited upon Kampuchea.

I, as a representative of American Cambodians have offered my assistance in Cambodia. I am not being paid by any organization and have donated my time and money pro bono. My clients have not had a good night sleep in over 30 years. The horror of watching their starving babies die and all the killing of their families and innocent people and the fear of being killed at any moment for no apparent reason and the innocent people blown apart by land mines and the slave labor, never leaves them for very long.  They have seen people killed for humming a song or sharing food or eating a crab in the field..  They have seen people starved or beat to death, raped, forced to marry and many more atrocities and they could do nothing to stop the carnage.  Unfortunately, many are still of the mind that there is nothing they can do, but that is simply not true. I believe that the suffering of the Cambodian people will never be put to rest until all there stories have been told. It is easy to understand their reluctance to become involved.

Cambodia has no Rule of law.

 I would like to give a lecture on the Genocide Trials to the membership of the various Trial Lawyers Associations about what is happening here.  I have become an expert in Southeast Asian history especially concerning the role that the Khmer Rouge, US, China, and Vietnam played in creating an environment where the Genocidal behavior of a few Paris trained Communist intellectuals were able generate a successful revolution with the naive belief that Utopia could be reached in one fell swoop which justified in their minds that this achievement could be at the expense of any means.& When their short lived regime came to an end in 1979, 3 years 8 months and 11 days after the fall of Phnom Penh, they left a nation with no educated people, 2-3 million Cambodians dead, (1/4 of the population in 1975), the existing economy incapable of supporting the Countries people and fear so persuasive that it still exists today more than 30 years later. 

 I feel that our trial lawyers need to know what happened.  While history continues to repeat itself, knowledge can break such a cycle. Of all the causes we have supported over the years, I cannot think of a more important one than these trials.  

 The existence of an International Tribunal is the first time that Cambodian lawyers have seen what the Rule of Law can mean to their society. Because there is absolutely no rule of law in Cambodia, the fallout from these trials comes in the form of seeing the Cambodian lawyers flourish under this system which guarantees justice. I see their excitement in being able to talk freely about the past.  I see it in their eyes when they realize the possibilities that the Rule of Law brings.  To actually advocate in a forum that supports the Rule of Law instead of in a system where the winner is the one who paid the biggest bribe or who knows the Judge or other powerful people, is life changing.  This International Tribunal while not perfect, is a benchmark for Cambodia’s future and those who dream of the Rule of Law are salivating at the thought of such a system here.

 I need help in outreaching to American Khmer's on the importance of participating and obtaining their stories which form the basis for the prosecution of crimes against humanity.  I cannot stress the importance of my participation for American Khmers.  Up until I was recognized by the Extraordinary Chambers, no American voice was heard.

 Because the US bombing of Cambodia from 1969-1973, we killed over 600,000 Cambodians. This number has been verified by various historians. Our justice system requires that the lawyers who have always fought for the downtrodden and the underprivileged, take an active role here.  It is the least we can do for our fellow American Cambodians. (In the early 80’s approximately 200,000 Cambodians immigrated to the US . They brought with them the clothes on their backs.  They lost their families, their cultural identification and received little help from our government, who was responsible in large part for their plight.) 

 I need trial lawyers help here.  It is the trial lawyers who really understand the human condition as they fight the battles for dignity everyday in this regard.  I have self funded my work here for 2 1/2 years.  I am fortunate to have some help this summer from a law student from UC Davis Law School .  She has worked night and day assisting me in filing legal briefs necessary to protect the victim’s rights here and I am indebted to her greatly.  She goes home soon and I will be left with the awesome task of preparing for a trial that will take up to two years, alone.  At my age and with limited resourses that is formidable task. I should say at any age it is a formidable task. Next summer the interns will come to my rescue again, but I need to hire some interns now.  If I would have access to the Bar Association and its members, the possibility exists that monetary assistance would be provided.  

 To sum up my position, I would like to speak to the members of the Bar about my experiences here and solicit their help in my humanitarian goals of obtaining Reparations for the hundreds of thousands of American Cambodian victims of the brutal Khmer Rouge Regime. Not only will my lecture be informative, it may lead to financial help so that my work here would be on the caliber that my practice in Sacramento was for 32+ years.


David Blackman

Attorney at Law

 American Californians for Justice

 855-12- 872-503 (in Cambodia)

 916-935-1164 (in the US)



From Settle It Now Negotiation Blog


Difficult People (8/17/09)
Phyllis Pollack

      We have all dealt with difficult people. This “difficulty” is precisely why we find ourselves in negotiations with these folks in the first place. If they were agreeable, then there would no need for negotiation; the issue would get resolved quickly and smoothly.

      In this month’s Los Angeles County Bar Association’s Negotiation Tips,  (Vol. 11, No. 11, August 2009), Linda Bulmash provides five (5) tips on how to negotiate with difficult people. They make perfect sense and are easy to incorporate into your next mediation or negotiation session: 

      1. “Set realistic standards of behavior: If you think tempers will flare or that your counterpart has a tendency to walk out or get cold feet just as the deal is about to be inked, consider talking about these issues before hand, e.g. “How should we handle it when …..?

      2. Avoid being dismissive or labeling behavior:  Often when someone is behaving badly, we tend to dismiss their behavior as crazy, foolish, or mean - which often sets us up for failure and prevents us from trying to get to the underlying issues that are prompting such behavior. Take a time out and then start probing the other side’s point of view.

      3. Invite the other side to brainstorm ways to resolve their concerns:  Re-engage them in the process by telling them that you are willing to work with them but you need some help identifying what it is that they really want.  Then suggest they put forth proposals that would work for them. As they do so, you have the opportunity to question why that is important to them.

      4. Put forth multiple proposals of your own: Take time off, prepare 3 proposals that take into account your interests and theirs as well. Present those proposals and ask your counterpart to comment on them. This will give the message that you have been listening to them which goes a long way toward getting negotiations back on track.

      5. Be ready to walk away: If they believe you really will, they often won’t.”

       Tip numbers 2 and  3 ( and 4) are particularly useful.  With respect to tip no. 2, so many times, when someone is acting contrary to our expectations, we tend to dismiss her and her behavior. Instead, we should stop and ask ourselves and the other party, “What  really is going on?”; “Why is she acting the way she is acting?”; “Is there  something going on that is not being shared with us?” As we say in mediation  practice, “what is going on “below the line””? What are the needs and interests that she is not talking about but that are critical to her and to resolving the dispute. More times than not, they are simple and can be easily met,… once we know about them and their role in the negotiation.

      I recall the example given by one of my mediation teachers; it involved a wrongful termination situation. At the mediation, the employer’s lawyers were offering millions of dollars to settle, but the plaintiff kept saying “no”. So, the mediator decided to sit down and just chat with the plaintiff. What came out of that conversation was that the plaintiff was caring for her ailing brother and husband; both had quite serious medical issues. What she wanted was not money, but to stay on the company’s health insurance plan so that both her brother and husband would get the medical care they needed as their health declined in the ensuing months and years. So, rather than a million dollars, she simply wanted to be put back on the payroll as an employee (agreeing never to show up for work) so that she would continue to qualify for the much needed medical care coverage. The employer agreed and the matter settled for much less than the millions of dollars being offered, simply because someone took the time (i.e., the mediator) to find out why  plaintiff was being so “unreasonable”.  

       This story leads to the next tip about brainstorming. Brainstorming is important but to do it effectively, one must simply let the ideas flow and not be analytical as they are flowing. Jot down the ideas without making any judgment about them and ONLY AFTER you have run out of ideas, go back and analyze  them to determine if they are viable or what tweaking might be needed to make them so. No doubt, in the example above, once the employer learned what plaintiff’s true concerns were (i.e. continued health care coverage), the parties had to do some brainstorming to figure out how to keep her on the payroll and obtain that coverage legitimately.  Similarly,   the employer may have had to take some time separately, to come up with its own  proposals  that would fit plaintiff’s needs but, at the same time, not cause it to run afoul of any federal and/or state laws.

       In sum, negotiation is not always easy, but if you take the time to  think and plan ahead and then to dig a little during the mediation to figure out what is “really going on”, more times than not, that “ah-hah” moment of inspiration will come to your aid to help  resolve the issue.

       …. Just something to think about.

From the Blog of Phyllis G. Pollack.


What Difference Does A Robe Make? Comparing Mediators With And Without Prior Judicial Experience (8/17/09)
Geoff Sharp

An intriguing article (abstract only) in July's Negotiation Journal (Jul 2009. Vol. 25) by Stephen Goldberg, Margaret Shaw, Jeanne Brett reporting the results of two studies;

"... a glance at the rosters of some of the major mediation providers shows that between 40 percent and 60 percent of their mediators are former judges. This influx of former judges into the mediation ranks raises several questions that we address in this article:

1. Are former judges achieving success as mediators of commercial and employment disputes and, if so, why?
2. What are the characteristics and skills of those former judges who have succeeded as mediators?
3. Do former judges succeed as mediators for the same reasons as mediators who have not been judges?
4. What are the reasons why some former judges have not succeeded as mediators?

The first study, based on the responses of attorneys to questions about the reasons for the success of mediators with and without prior judicial experience, shows that the capacity of the mediator to gain the confidence of the disputants was most important for mediators with and without prior judicial experience.

Although certain process skills were viewed as important to the success of both former judges and nonjudges, in general, process skills were significantly more important for nonjudges than for former judges. The capacity to provide useful case evaluations, on the other hand, was significantly more important for former judges than for nonjudges.

The second study, based upon attorney responses to questions about unsatisfactory mediators, reinforced the conclusions of the first study regarding the importance of confidence-building attributes.

For both judges and nonjudges, the mediator's inability to gain the confidence of the parties was a major reason for his or her lack of success."

From the blog mediator blah...blah...


The Log In Your Eye: Eliminating Gender Bias In Mediator Performance Evaluations (8/17/09)
Diane J. Levin

evaluating mediators without biasThe hot-button issue of mediator credentialing and credentialing seems to be on the minds of many folks in the ADR field these days. It has generated discussion, here and on other blogs (including Tammy Lenski’s, Vickie Pynchon’s and Philip Loree’s).

Although I have not ruled out my support entirely for public credentialing for mediators in private practice, I have concerns aplenty not only about the wisdom and necessity of such schemes, but also about the challenges in establishing workable and meaningful ones - concerns which I would need to see fully addressed before I’d give my thumbs up.

Public credentialing of mediators will necessarily involve some kind of evaluation process - which raises a whole host of vexing questions. Among the many that I anticipate is one that particularly troubles me: given the realities of implicit bias, and the difficulties still facing women and minorities in gaining visibility in the upper reaches of our field, what would be done to ensure that any evaluation of mediators is free from it?

While sorting through the email that piled up while I was away on vacation during the first 10 days in August, I came across a message from the ABA Commission on Women in the Profession announcing that the latest issue of the electronic version of Perspectives, their quarterly magazine, was now available. It got me thinking. In that issue is an article by employment attorney Consuela Pinto, “Eliminating Barriers to Women’s Advancement: Focus on the Performance Evaluation Process“.

Emphasizing the importance of awareness-raising, Pinto sets out her recommendations for creating a bias-free evaluation process - recommendations that may transfer readily to a very different profession, mediation. I particularly like Pinto’s tips for evaluators:

  • Get educated about gender bias and examine your own biases.
  • Base your comments on actual performance and not potential.
  • Comment only on performance during the period under review.
  • Base your assessment on factual examples of behavior.
  • Weigh individual competencies similarly for all evaluatees regardless of gender.
  • Avoid using derogatory, disrespectful, or overtly biased comments.
  • Avoid basing comments or scores on the evaluatee’s adherence or failure to adhere to traditional gender stereotypes.
  • Review completed evaluations for consistency and objectivity.

From Mediation Channel


Mediator Power & Collaborative Public Policy (8/17/09)
John Folk-Williams

BigMediator 300x300 Mediator Power & Collaborative Public Policy

What is mediator power and how does it operate in collaborative governance and public policy? I pose this question after reading the current issue of Conflict Resolution Quarterly (Vol. 26, No. 4). This collection of scholarly articles challenges basic concepts of mediation and calls for a searching reconsideration of its definition and practice.

The contributions differ greatly in methods and conclusions as to specifics, but I’d like to focus on one subject several of them explore: the power of the mediator to influence the outcome of a consensus building process.

The more radical criticisms in this collection claim that the practice of mediation sometimes turns the conventional concept of a mediator on its head. Instead of conforming to the ideal type of neutral servant of the parties, mediators may undermine stakeholder independence and facilitate outcomes primarily influenced by the most powerful interests in the room. Or they may follow more personal motives and use the tools at their disposal to direct and pressure parties into agreements that may not be in their best interests.

The essays raise key questions about the impact of mediators that do need attention, especially the clash between the theory and practice of mediation. With respect to the public policy field, however, the scenarios strike me as overstating the power of mediators and oversimplifying the considerable power of conveners and the parties themselves. (Rachel Goldberg’s essay is an exception, as it deals entirely with this field. I’ll explore her very helpful ideas in a separate post.)

In many cases, for example, it is the convener of a policy process who provides financial support, initially frames the issues, plays a major role in the selection of participants and organizes the process for selecting the mediator. The mediator’s influence comes more from a successful and adroit balancing of the power and interests of all the actors than from the possession of potentially coercive power. And that balancing would not be possible without the trust of the convener and stakeholders.

In my experience, then, trust of the parties, built up over time, is the most important source of mediator influence, but it is fragile and can be lost in a moment.

The participants in a collaborative policy project have usually experienced such a high level of conflict over the issues that they do not trust themselves to reach agreement without the help of independent guidance. They need someone without a hidden agenda or personal stake in the final decisions, someone who can be counted on to treat everyone fairly.

They expect and demand that the mediator will actively assist them in focusing on those areas where agreement may be possible, avoid detours into unresolvable past issues and check unproductive discussion. Being able to trust a mediator to do this is an important reason behind their participation. It’s a key sign that they can trust the process itself.

Without that trust, public policy mediators will not be effective. During a typical process, they have many opportunities to develop the relationships with stakeholders that are part of trust building. But the parties also need to see consistency in mediator performance and fairness throughout the meetings that are the heart of collaborative policy work.

Trust opens a door for mediator influence, but it does not create a power to coerce or control. What comes with trust is an openness on the part of stakeholders to mediator ideas for resolving especially difficult problems. They can accept these ideas as honest efforts to move the process forward that are free of hidden agendas. As soon as any participant senses that a mediator is, in fact, pushing an agenda or building pressure to force agreement more favorable to other parties, the trust is lost – not only in the mediator but very likely in the whole process.

The public policy mediator thus walks a fine line. One of my colleagues compares the situation to a high wire act without the net. The focus has to be on maintaining balance rather than on dominating the stakeholders.

I realize that the public policy field presents a very different situation for mediators than other types of practice. Two-party mediations in which individuals speak only for themselves and which take place in a very short timeframe give far more prominence to the mediator role than does the typical public policy process – with its large number of parties working over a long period of time in a highly dynamic political setting .

Hopefully, we’ll see more research and dialogue about the variations in the mediator role in each of the major fields of practice. The power and influence of the mediator should no longer be discussed as if research from one field of practice can be transferred to any of the other fields. The distinctive conditions in each one have to be considered carefully before reaching broad conclusions about the profession as a whole.

From John Folk-Williams's blog Cross Collaborate


Creative Mediation For IT Dispute (8/17/09)
Victoria VanBuren

By Guest, Peter S. Vogel

After receiving a Temporary Restraining Order (”TRO”) the Judge ordered a mediation conference between the plaintiff software licensor and their customer in Alabama. The software in dispute was a specialized tax website that the plaintiff had spent many years developing, and after defendant abruptly terminated the license the plaintiff was shocked that the defendant had a competing website providing specialized tax services somewhat a kin to the plaintiff. So the trial judge had no trouble issuing a TRO. As oftentimes happens the Judge ordered me to mediate the case since I was a programmer and have a masters in computer science. My law practice of more than 30 years has always been limited to representing buyers and sellers of IT and Internet services.

Step One – In Depth Review of Plaintiff’s Technology

Since the defendant was in Alabama I arranged a meeting with the plaintiff licensor’s technical staff at my offices a few days before the mediation conference. Plaintiff’s IT staff demonstrated the construction and schema for their data base, and how the website processed data. This exercise lasted a couple of hours, but provided good insight about their IT solution and web business.

Step Two – Review Defendant’s Technology

When the defendant arrived from Alabama for the mediation conference I immediately requested that they demonstrate their website, database construction, and schema. It did not take a lot to determine that the database structures and implementation were not related to the plaintiff’s at all. Further that there were no clues that defendant developed their systems with the aid of plaintiff’s technology.

Settled at the Mediation

The case settled immediately. As a neutral observer of the databases and websites I was certain that the plaintiff’s and defendant’s tax websites were not related. Although on the surface it seemed obvious to most that how else would the developed their website were it not for access and use of plaintiff’s software.

Without question my IT experiences saved both parties from expensive litigation, and allowed them to move on.

Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog

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


Charlize Theron Fails In Negotiation — Hancock Part 2 (8/17/09)
Steve Mehta

Previously, I had discussed the movie Hancock and some negotiating points from it.  Here is another point raised in the movie.  See Will Smith Teaches Negotiation Lesson

Take the time to communicate information and reasons for why someone should do something rather than just simply demanding performance of an act.

In the movie, Hancock has explained that he doesn’t know how he developed his powers.  He has thought that he was the only one on Earth with powers.  He just learns that Charlize Theron also has powers like him.  He wants to learn more.  But Charlize Theron has told him that he should leave her immediately, without explanation.  The following scene starts with this background.

Charlize Theron obviously wants Hancock to leave her alone.  Yet she gives no reasons as to why he should do so.  She gives the direction, with no explanation.  As a result, Hancock does not listen and refuses to comply.  Indeed, as a result of the dispute that they have, her cover is blown and her husband finds out about her secret powers.

The same is true in negotiations.  If you want someone to do something for you, it is important to give a reason.  Simply taking the time to explain the process and rationale can save enormous amount of time and effort in having to deal with the consequences of not having the other person do what you are asking of them.

This principle is also true in social sciences.  One study found that simply by giving a reason at the end of the request dramatically increased the chances that someone would comply with the request.

As such, even though it might take a little longer now, that time investment will pay off ten times in compliance with your request.

From the Mediation Matters Blog of Steve Mehta.


Negotiating Rational Choice, Statistics and the Future of Mankind (8/17/09)
Victoria Pynchon

(right:  Bueno de Mesquita's "Logic of Political Survival")

The book at right was brought to my attention for the first time by this highlighted text in Good Magazine: 

In the foreboding world view of rational choice, everyone is a raging dirtbag.

What makes the Logic of Political Survival Relevant to negotiators is Bruce Bueno de Mesquita's application of game theory to international political problems such as the reduction of conflict between Israel and Palestine (quoted below).   

I'll have to admit that his claim to "produce a settlement [in litigation] that is 40 percent better than what the attorneys think is the best that can be achieved” -- also caught my attention and should draw my attorney readers into de Mesquita's world, first from Good Magazine's article The New Nostradamus and (at the end of this post, today's article in the Sunday New York Times).

First, de Mesquita's own words on the Middle East.

In my view, it is a mistake to look for [peacemaking] strategies that build mutual trust [between the Israelis and the Palestinians] because it ain’t going to happen. Neither side has any reason to trust the other, for good reason. . . . 

Land for peace is an inherently flawed concept because it has a fundamental commitment problem. If I give you land on your promise of peace in the future, after you have the land, as the Israelis well know, it is very costly to take it back if you renege. You have an incentive to say, ‘You made a good step, it’s a gesture in the right direction, but I thought you were giving me more than this. I can’t give you peace just for this, it’s not enough.’

Conversely, if we have peace for land—you disarm, put down your weapons, and get rid of the threats to me and I will then give you the land—the reverse is true: I have no commitment to follow through. Once you’ve laid down your weapons, you have no threat. 

The "rational" solution?

 In a peaceful world, what do the Palestinians anticipate will be their main source of economic viability? Tourism. This is what their own documents say. And, of course, the Israelis make a lot of money from tourism, and that revenue is very easy to track. As a starting point requiring no trust, no mutual cooperation, I would suggest that all tourist revenue be [divided by] a fixed formula based on the current population of the region, which is roughly 40 percent Palestinian, 60 percent Israeli. The money would go automatically to each side. Now, when there is violence, tourists don’t come. So the tourist revenue is automatically responsive to the level of violence on either side for both sides. You have an accounting firm that both sides agree to, you let the U.N. do it, whatever. It’s completely self-enforcing, it requires no cooperation except the initial agreement by the Israelis that they are going to turn this part of the revenue over, on a fixed formula based on population, to some international agency, and that’s that.

It actually gets much more controversial and interesting than this -- the "kicker" to the headline in Good Magazine reads:

Can a fringe branch of mathematics forecast the future? A special adviser to the CIA, Fortune 500 companies, and the U.S. Department of Defense certainly thinks so

If that intrigues you, you'll want to read the entire article here.  And you'll also want to read today's New York Times article on de Mesquita,

Can Game Theory Predict When Iran Will Get the Bomb?

From Settle It Now Negotiation Blog



John Ford is the former managing editor of 

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