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Already subscribed No subscription today Blog for June 29, 2009

by John Ford
June 2009
xxSteve Mehta
Taking Escalates More Than Giving De-Escalates — How That Affects Mediation And Negotiation (6/29/09)
Steve Mehta

Feeling slighted, miffed, or offended can influence how a person responds much more than being the recipient of perceived generosity, even if the net value of the social transaction is the same, the research on reciprocity—giving and taking—shows.

“Negative reciprocity, or taking, escalates,” said Boaz Keysar, Professor of Psychology at the University of Chicago and lead author of the paper “Reciprocity is Not Give and Take: Asymmetric Reciprocity to Positive and Negative Acts,” published in the Psychological Science. The study was based on giving-and-taking games conducted on students and people in downtown Chicago.

The games provided data on how people respond to give-and-take social exchanges.

In one experiment, subjects were divided into two groups and asked to conduct experiments that began in two different ways using money. In the first group, one player learned that another player had $100 and was going to share it. In each situation, the player with the money gave the other player $50. When the roles were reversed, the players who received the $50 received $100 which they could share with the other players. In that exchange, those players gave their partners on average $49.50.

On the other hand, In a companion experiment, the researchers found when they changed the act to taking instead of giving, that the act of taking had a far bigger impact on people’s responses than did the act of sharing.  Just as in the first experiment, when the roles were reversed, the first players took back much more, leaving the partners with an average of $42.

Further, as each round continued, each person “taking” became increasingly greedy over repeated exchanges.

The study, which was supported by the National Science Foundation, the National Institute for Mental Health, and the Templeton Foundation, shows various social exchanges differ from those in the marketplace, where goods are bought and sold, Keysar said. “Acts of giving are perceived as more generous in social exchanges than objectively identical acts of taking,” Keysar said. “Taking tends to escalate.”

Applying the Research

Most studies involve positive reciprocity – the giving of gifts in anticipation of coercing positive action from the other person.  However, this study demonstrated that negative reciprocity can often be more powerful a motivating factor than positive reciprocity.  This directly applies to the litigation negotiation context.  Often in litigation, one party feels slighted.  Take for example, when an offer is made that is a “highball offer” or “lowball offer,” the other side tends to reciprocate with their own version of an offensive offer.  This research demonstrates that unless the cycle is broken, the conflict of negative reciprocity will continue to escalate.

Moreover, people are often also slighted by some action that occurred that instigated the litigation.  The same cycle of negative reciprocity and increasing escalation can substantially increase the transaction cost to the litigation by forcing parties to conduct more discovery, more motions, and more time and energy.

It is, therefore, important to break the cycle.  According to Louis Kreisberg, professor of sociology, all conflicts will escalate until a point of stalemate, and then only can the parties de-escalate.   As such, whether the conflict is the litigation or the negotiating offers, the parties must first come to a stalemate.  In negotiations, that means that the parties need to realize that the escalating moves that are “offensive” won’t work.   The parties need to realize that they won’t be able to achieve their goal by pursuing the “offensive offers.”  But that may take some time.  The parties won’t realize that there is a stalemate in the negotiations until several moves have taken place.

Second, after realization of the stalemate, the parties need to have some way to start to de-escalate.  Some ways that negotiators and mediators can break the escalation cycle is as follows:

  • Make a unilateral gesture of good faith
  • Change the focus of the negotiation
  • Take the initiative to identify the stalemate  — I.e. “we all know that these moves aren’t going to get us anywhere.  We need to get to the realistic negotiations, otherwise we will be at a stalemate forever.”
  • Make a small gesture whilst indicating a desire to receive such a small gesture also.  This is also known as GRIT, an approach developed by Charles Osgood.   In his original writing he said it stood for “graduated and reciprocated initiatives in tension reduction; later he simplified this to gradual reduction in tension.  The basic idea is that disputant can initiate de-escalation by making a small, unilateral (one-sided) concession to the other side, and at the same time, communicating a desire or even an expectation that this gesture will be matched with an equal response from the opponent.  If the opponent does respond positively, the first party can make a second concession, and a “peace spiral” is begun.  If the first initiative is ignored, Osgood suggests that it be followed by a second–or even a third–attempt.  These concessions should be designed to build trust, but should not be terribly costly (materially or strategically), nor should they suggest weakness.   However, they should indicate a willingness to transform the conflict to a more cooperative and less adversarial approach.
  • Apologize – whether this is for something substantive or procedural.  An apology can help to significantly de-escalate a conflict.
  • Take a time out from the negotiations so as not to escalate the conflict.
  • Identify that the conflict is escalating and that you do not wish to escalate – State your intention to de-escalate.
  • Ask the other side to help you de-escalate.  – Former enemies will becomes the greatest of allies when they share the common goal or enemy.

From the Mediation Matters Blog of Steve Mehta.


xxDiane J. Levin
Mediation Credentialing: What About Mediation Trainers? (6/29/09)
Diane J. Levin

questions for the mediation field

Much discussion has taken place of late about credentialing or certifying mediators or what it means to prepare mediators for competent practice. All too often, number of hours of mediation training serves as proxy for proficiency and skill.  That is certainly the case in Massachusetts, which has a law protecting mediation communications from disclosure in court only if the mediation is conducted by a mediator who has, among other things, completed at least 30 hours of training. Recently mediators in Massachusetts considered increasing those hours from 30 to 40, although discussions stalled out and are now on hold.

Time and again I have heard Massachusetts mediators defend this provision, arguing that it protects the public.  In reality, it does not. Why? Two reasons. One, the 30 hours were pulled from thin air - an arbitrary number made up by the drafters of the Massachusetts law. And two, mediation trainers and training programs that prepare mediators for private practice are unregulated. Just as anyone can hold themselves out as a mediator in private practice, so, too, can anyone hold themselves out as a trainer of mediators. Quality of programs vary widely; some programs are good and some are not. Even if a mediator has 30 or 40 or 400 hours of training, where’s the assurance that any of that training was conducted by competent, knowledgeable instructors?

As we discuss what it takes to prepare individuals to become effective mediators, we must also be willing to look at what it takes to prepare individuals to teach or train mediators.

From Mediation Channel


xxArnold W. Zeman
Transformative Mediation Misunderstood (6/29/09)
Arnold W. Zeman

It is disappointing that Jason A. Waxman’s  “A Nuanced Comparison of Transformative, Insight and Narrative Mediation” on the website relies, in two cases, on outdated source material and, in the third case, on a secondary source.  In the case of transformative mediation, he cites a 1996 journal article by Bush and Folger when the most definitive and recent articulation of the framework is to be found in the revised edition of The Promise of Mediation, published by Jossey-Bass in 2004.  Similarly, for insight mediation, he cites a 2007 journal article by Picard and Melchin when the most current statement of the model is to be found in their 2008 Transforming Conflict Through Insight.  And, in the case of the narrative mediation model, his piece relies on an article on the website (the URL for which is cited incorrectly), a secondary source, when the 2000 Narrative Mediation — A New Approach to Conflict Resolution by the model’s originators, Monk and Winslade, is available.  Indeed, chapter 1 of the book appeared on the website in 2001.

As surprising as this sourcing is, it is becoming common place to see the transformative mediation model yet again misunderstood.  I am not interested in a close reading to comment on what I see as flaws in the model’s description.  I will point out, however, that the interested reader would do well to dismiss the definition of  “recognition” as it is incorrect.  What interests me more is why misunderstanding about transformative mediation persists, 15 years after publication of the first edition of Bush and Folger’s seminal work and five years after the revised edition was released.

It seems to me that there are two principal reasons for the many misunderstandings.  One is that the authors of the transformative model have written two books with the same title, and the other has to do with frames of reference and values.

Despite the identical titles of the two editions of The Promise of Mediation, the books are almost entirely two distinct works.   The decision of the publisher to issue a revised edition with the same title has had unfortunate consequences.  Many readers of the 1994 first edition have not consulted the 2004 revised edition, assuming that the books are substantially the same.  In fact, all the two works have in common are the first and last chapters.  All the other material is completely different.  What is more, the 2004 revised edition contains a complete transcript of a training mediation, “The ‘Purple’ House Conversations”, together with a detailed analysis of what is going on from a transformative perspective.


The value of this material is that it brings into micro-focus, illustrations, albeit simulated in a role play, of how transformative theory and concepts are practised.  Just as important, the revised edition makes clear that the term ‘transformation’ refers to the potential for people doing conflict differently and more productively in the course of the current mediation as well as in future conflict situations.

The other major factor in the misunderstandings surrounding transformative mediation has to do with ideological lenses and values.  Transformative practice is explicitly based on a relational ideology

[...] in which human beings are assumed to be fundamentally social — formed in and through their relations with other human beings, essentially connected to others, and motivated by a desire for both personal autonomy and constructive social interaction (Bush & Folger, 1994; Della Noce, 1999).

The nature of conflict is seen as a crisis in interaction that involves both a sense of vulnerability and self-absorption that destabilize the person in conflict.  The transformative mediator believes that not only does the person in conflict want to re-establish a productive balance individually and socially but that she has the capacity to do it. A transformative practitioner is committed to applying a micro-focus to the interaction of disputants in mediation to support them in their conversation as they spiral downwards through vulnerability and self-absorption, shift to empowerment and recognition and back again, and spiral upwards to greater strength of self and recognition of the other.  Given the nature of conflict it posits, transformative theory views mediation as a process of communication or conversation instead of a negotiation.  Priority is placed on individuals becoming clearer about how they view the conflict situation, what options are open, what resources are available and what decisions about these they are prepared to make.  Decisions are freely made and are not guided either in process terms or substantively by the mediator.  The transformative mediator does not set guidelines for the mediation; participants decide whether to have what ever type of guideline they wish at any time in the process; the mediator does not ask questions for her own information or questions that direct the participants to consider issues and factors that they have not themselves raised; the mediator follows the participants to wherever they wish to take the conversation, and so on.

Clearly if one does not subscribe to this ideology and set of beliefs, there is much here to take issue with.  For example, if one is committed to an individualist ideology where people are seen as acting on the basis of their perceived self-interest, the transformative framework will not be grasped on its own terms but rather seen through a set of lenses that are more suitable for other mediation models; it’s kind of like trying to understand and explain baseball in terms of three downs, field goals and touchdowns.  Similarly, if conflict is seen as a problem situation that has arisen where disputants can be assisted by a process that implicitly relies on a diagnosis in terms of scarce resources, of differing interests, between competing narratives, or of deeply-held personal cares that are perceived as threatened by the other, the transformative approach will be misunderstood.

All of these mediation approaches have their rightful places.  Too often allegiance to one model leads to misunderstanding of other perspectives.  All in the conflict resolution field, I think, are at times guilty of this.  It is unfortunate that the inclusiveness that is so often advocated by us as collaborative practitioners is not always applied to our own discipline.

From Arnold W. Zeman's blog


xxJeff Thompson
Selective Perception (6/29/09)
Jeff Thompson

Selective Perception

One of the many ‘evil’ traits that frequently are displayed by parties in mediation is selective perception. People form their own idea of an event or situation and then anything that is said or information that arises after the fact which contradicts their opinion is dismissed or ignored.

I say it is ‘evil’ as selective perception hinders the process of getting the parties to work in a collaborative and cooperative mindset. Selective perception does not allow the party to see and understand the interests of the other party.

As the mediator it is important to realize this is being displayed. I think it is important for a mediator to know the names of behaviors and actions such as selective perception and other attribution biases listed [here]. Sure, a good mediator can help move the party away from a hindering position while not knowing the name of the act but it makes things easier knowing it because then it will be easier to respond accordingly. Step one is naming it, while step two would be properly responding.

Getting the party to open up more about their thought process behind their position can not only help display a potential selective perception to you, but it then can also be picked up by him or her- the one displaying it.

If the person does not pick up on it, and then after the other party presents their side of the event, many times, what I do is ask the first party something is along the lines of, “It sounds like party B viewed the event/situation different to way you described it. Now that you have heard his/her version, what do you think?” It might seem unnatural to ask an open-ended question but by doing it this way it diminishes the chance for a one word answer. The more they talk, the more they think about what they are saying and going to say.

A note I would like to mention is I do this with both parties. If I were to do this type of questioning with just one party it could present the illusion I am picking sides and trying to get one side to change their mind. Checking in with party A after party B has spoken (and vice versa) is a way to ensure they are effectively listening as well as opening their mind to the other side’s viewpoint. Promoting empathy is crucial to assist the party(s) move away from their selective perception. I tend to stress that understanding the other side’s point of view is not agreeing with them.
In order for an agreement to be reached in mediation, I tell them both sides have to agree. As simple and possibly silly it might sound, I think reminding the parties if an agreement is possible of being achieved, each one needs to be able to understand the other.
Enjoy and I hope this little ‘golden nugget’ helps.

From Jeff Thompson's Enjoy Mediation Blog


xxVictoria Pynchon
Put Conflict Resolution On The Climate Change Conference Agenda (6/29/09)
Victoria Pynchon

Place: Glyptoteket, Copenhagen

Date: The 10th and 11th December 2009

During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties – COP15 – to the United Nations Framework Convention on Climate Change, UNFCCC. The Denmark meeting is crucial for the international climate change negotiations. The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing and resolving conflict arising because of limited resources and/or the effects of climate change.

In a Manifesto from 9th July 1955 issued in London, Albert Einstein and other leading scientists urged humanity to find peaceful means for the settlement of all matters based on new ways of thinking. An important new way of thinking features the use of the collaborative, participatory, and pluralistic conflict resolution processes like mediation and facilitation. Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction will be a major part of the Copenhagen Mediation Seminar, with discussions of conflict prevention and resolution. Our aim is to gather 100 mediators to create a new Manifesto showing the infrastructure to peaceful conflict resolution.

Please reserve this important seminar for 100 mediators attending from all parts of the world. More information will come shortly.

Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders – Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindelov of Nordic Mediators

During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC). The Denmark meeting is crucial for the international climate change negotiations. In December 2007 the parties to the UNFCCC agreed at Bali, Indonesia that negotiations on a future agreement have to be concluded at COP 15. The decision reflected the increased emphasis on the need for swift action made in the latest report by the UN Intergovernmental Panel on Climate Change. The Bali delegates also recognized that 2009 would be a critical opportunity for an agreement before the commitments set in the Kyoto Protocol expire in 2012.

A Critical Issue

The International Crisis Group, one of the world’s leading independent, non-partisan conflict analysis advisory organizations, stresses that “a key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.” Conflict preventive measures and resolution mechanisms need to be part of the climate change negotiations, both in Copenhagen and beyond.

At the December 2007 United Nations Conference on Climate Change in Bali, Indonesia, the German Advisory Council on Climate Change presented a report, World in Transition – Climate Change as a Security Risk. Based on research into environmental conflicts, the causes of war, and climate impacts, the report states that climate changes could “overstretch many societies’ adaptive capacities within the coming decades. This could result in destabilization and violence, jeopardizing national and international security to a new degree.”

Drawing on the work of international experts and organizations including the United Nations Environmental Programme (UNEP), the report notes, though, that “climate change could also unite the international community, provided that it recognizes climate change as a threat to humankind” and adopts “a dynamic and globally coordinated climate policy.” If the international community “fails to do so,” the report emphasizes, “climate change will draw ever-deeper lines of division and conflict in international relations, triggering numerous conflicts between and within countries over the distribution of resources, especially water and land, over the management of migration, or over compensation payments between the countries mainly responsible for climate change and those countries most affected by its destructive effects.” In its introduction to the report, the UNEP website states that “combating climate change will be a central peace policy of the 21st century.” Conflict preventive measures and resolution mechanisms should be part of the climate change negotiations, both in Copenhagen and beyond.

Scientists See the Need

?In addition, the scientific community recognizes that global climate change issues challenge our ability to deal with a changing environment containing huge potential for conflict. In March 2009 over 2500 delegates from nearly 80 countries participated in the International Scientific Congress on Climate Change: Global Risks, Challenges & Decisions in Copenhagen, Denmark. At the end of the conference the delegates presented a set of key messages that included cautions about conflict and climate change.

Key Message 2: Social Disruption stated that “recent observations show that societies are highly vulnerable to even modest levels of climate change, with poor nations and communities particularly at risk. Temperature rises above 2C will be very difficult for contemporary societies to cope with.”

Key Message 3: Long Term Strategy stressed that “rapid, sustained, and effective mitigation based on coordinated global and regional action is required to avoid ‘dangerous climate change’ regardless of how it is defined. Delay in initiating effective mitigation actions increases significantly the long-term social and economic costs of both adaptation and mitigation.”
Key Message 4: Equity Dimensions emphasized that “climate change is having, and will have, strongly differential effects on people within and between countries and regions, on this generation and future generations, and on human societies and the natural world.”

The delegates recommended the use of tools and governance practices to address these fundamental concerns. Conflict preventive measures, conflict transformation and resolution are essential to meet climate change challenges.

Rio and Kyoto Precedents

?The COP 15 Provisional Agenda, reviewed in Bonn, Germany in early June, lists a range of essential issues, from emission reduction to technology transfer. Conflict prevention and resolution mechanisms are missing from the Agenda despite the fact that Article 14 of the 1992 UNFCCC (negotiated in New York and Rio de Janeiro and reaffirmed in Article 19 of the Kyoto Protocol) states that “in the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.” This article, though, is not sufficient to address the complex conflicts between nations and peoples likely to emerge as climate change impacts accelerate. Conflict preventive measures and resolution mechanisms should be part of the talks in Bonn, Copenhagen, and beyond.

Beyond Rio and Kyoto, there is precedent for putting conflict resolution on the Climate Change Conference agenda. A number of UN treaties and conventions that deal with environmental issues include conflict or dispute resolution mechanisms. For example, the UN Convention on the Non-Navigational Uses of International Watercourses, adopted in 1997 by the UN General Assembly, specifies conflict resolution methods. Agenda 21, the Environment and Development Agenda administered by the United Nations Environmental Program (UNEP) emphasizes conflict resolution.

Article 39.3 specifies the need:

g) To identify and prevent actual or potential conflicts, particularly between environmental and social/economic agreements or instruments, with a view to ensuring that such agreements or instruments are consistent. Where conflicts arise, they should be appropriately resolved;

    h) To study and consider the broadening and strengthening of the capacity of mechanisms, inter alia in the United Nations system, to facilitate, where appropriate and agreed by the parties concerned, the identification, avoidance and settlement of international disputes in the field of sustainable development, duly taking into account existing bilateral and multilateral agreements for the settlement of such disputes.

An Important Commitment?

Climate change negotiators and decision-makers should affirm the commitment that people, communities, and nations will not be in violent situations due to conflicts that arise as a consequence of climate change. Politicians, diplomats, and specialists who attend the Climate Change meetings should consider conflict prevention measures and resolution mechanisms.

The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing, minimising and resolving conflict arising because of limited resources and/or the effects of climate change.

Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction can start with the Copenhagen conference, with discussions of conflict prevention and resolution along side the negotiations of scientific and technical issues of climate change.

Copenhagen DK, Corvallis and Santa Monica USA – 22 May 2009

Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders, ?Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindeløv of Nordic Mediators

The authors’ affiliations:?

Gregg Walker, Ph.D., Professor of Speech Communication, Oregon State University, USA (

Tina Monberg, Mediator, exam. psychotherapist and lawyer, Mediationcenter Ltd., Denmark (

Kenneth Cloke, Mediator, President of Mediators Beyond Borders, California, USA (

Jens Emborg, Ph.d. MMCR, Associate Professor of Environmental Conflict, University of Copenhagen, Denmark (

Mie Marcussen, M.Sc., MMCR, Mediator, President of Nordic Mediators, Private Consultant, Denmark (

Lone Clausen, MMCR, Developing Aid and Crises Expert, Private Consultant, Danmark (

?Vibeke Vindeløv, Dr., Professor of Mediation and Conflict Resolution, University of Copenhagen, Denmark (

From Settle It Now Negotiation Blog


xxJoshua N. Weiss
Real World Example — Negotiating a Dismissal (6/29/09)
Joshua N. Weiss

In this podcast, Josh answers a listener's negotiation challenge related to the dismissal of an employee.

MP3 File

From Josh Weiss's blog.


xxStephanie West Allen
Why Use Metaphors In Conflicts? Because Understanding Is Remembering In Disguise (6/29/09)
Stephanie West Allen
General Eisenhower to soldier: "Sarge, give me an assessment of the military situation."
Soldier: "Sir, picture a doughnut. We're the hole."
Quoted in Metaphorically Selling

The brain considers new information from the point of view of what it already knows and remembers, so the use of good metaphors is an effective way to communicate. Metaphors facilitate getting your message across in every area of your life, including dispute resolution. Those who have been reading my posts here for a while know that I have recommended metaphor use in the past; I am a metaphor advocate.

Here's what Anne Miller author of Metaphorically Selling has to say:

A metaphor is simply a way of communicating. It's a shortcut to instant understanding. Think of it as a mental equation in which something is compared to something else. Metaphors make complex and unfamiliar things or ideas simple and familiar to the listener, because they compare the unknown to what the listener already knows and accepts.


Information + Metaphor = "I see what you mean!"

Dr. Daniel Willingham puts it this way in Why Don't Students Like School: A Cognitive Scientist Answers Questions About How the Mind Works and What It Means for the Classroom. (The title of the section from which I have taken this excerpt is "Understanding Is Remembering in Disguise;" a great way to encapsulate the value of metaphor!)

[We] understand new ideas (things [we] don't know) by relating them to old ideas (things [we] do know). ...


The fact that we understand new ideas by relating them to things we already know helps us to understand some principles that are familiar to every teacher [and many skillful negotiators and mediators]. One principle is the usefulness of analogies.

Analogies and metaphors are cousins, both drawing similarities between two different things. Both can assist in understanding. Are you a user?

I know you use analogies everyday. Some examples from Metaphorically Selling:

  • "Chew on an idea
  • "Plow" through your work
  • Return a "mountain" of phone messages
  • Check your "inbox" emails
  • "Surf" the web
  • "Iron out the wrinkles in a speech
  • "Mine" data

And are you using them in helping clients to resolve conflict? They're a good way to grease the mediation wheels. (Nah, I don't like that one either. Please suggest something better.)

From Stephanie West Allen's blog on Neuroscience and conflict resolution.


xxPhyllis Pollack
The Dilemma Of Confidential Information (6/29/09)
Phyllis Pollack

       In many mediations, I have faced the dilemma in which one side provides crucial but confidential information to me in a separate session (i.e. caucus), admonishing me “not to tell the other side.” I sense that the information is extremely relevant and may make the difference in reaching a settlement. But, I know “my lips are sealed” unless I can convince that party to change her mind and either allow me to disclose the information or have her do so directly to the other side! Do I have any other options?

       This question was recently answered in ethics opinion SODR-2009-2 issued by the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance (“Committee”). The scenario posed was quite similar to the one described above:

      “I’ve been involved in two separate mediations where an employer has sued a former employee for the unauthorized taking and/or duplication of the employer’s sensitive electronic data shortly before the employee left his job with the employer. In the course of speaking with both employers in separate caucus, I’ve been advised, in a rather off-hand manner, that the employers have initiated some form of referral of the case for prosecution to the police/district attorney regarding the alleged unauthorized taking/duplication by the employee by the employer’s sensitive electronic data.”

      . . .

      “The dilemma for me, as a mediator, having been made privy to this very sensitive information, is what, if anything, I should say on this subject to the former employee and his counsel?. . .” (Id. at p. 1).


       As might be expected, the Committee responded by essentially stating, “not much.” Pursuant to Standard V(B) governing “Confidentiality” of  the Model Standards of Conduct for Mediators (2005), the Committee noted that the mediator is precluded from “directly or indirectly” (emphasis original) disclosing confidential caucus information either to the employee or his counsel without the consent of the employer. Thus, because of the prohibition against even “indirect” disclosure, the mediator is prohibited from conveying the information through a series of “reality testing” questions, that indirectly or impliedly suggest that criminal prosecution might be an issue. [eg: “Do you know whether your former employer has referred these types of cases to the police or prosecutor for possible criminal prosecution” (Id. at p. 6)]? Rather, the mediator may ask only very generalized “reality testing” questions such as, “if you do not settle this matter in mediation, what likely options exist for both you and the employer to resolve the issues arising from your departure from  your job?” Or: “What risks do you face if you do not settle this case?” (Id.).

       Of further concern to the mediator who requested this opinion was her “very strong sense of moral obligation to the employee to alert him to a very real risk of a possible forthcoming criminal prosecution. . .” (Id.). The mediator was concerned that the employee could not make a “free and informed choice. . . as to . . . outcome” without knowing all the facts, that is, the possible criminal prosecution.

       The Committee responded by noting that Standard I(A)(2) acknowledges that the “mediator cannot personally ensure that each party has made free and informed choices.” (Id. at  p. 7). If the party is represented by counsel, that obligation falls upon counsel. If the party is not represented by counsel, then Standard I(A)(2) advises the mediator to point out “the importance of consulting other professionals to help them make informed choices” and allows the mediator to postpone the mediation for that purpose. (Id.)

       Alternatively, the Committee noted that Standard VI (A)(4) governing the Quality of the Process encourages the mediator to “promote honesty and candor between and among all participants.” This allows the mediator to encourage the employer to reveal the referral for potential criminal prosecution either directly or through the mediator.

       In sum, the Committee concluded that caucus communications remain confidential unless the Model Standards provide otherwise. Where the mediator is concerned that the other party is not making an informed decision due to the lack of crucial but confidential information, the only technique the mediator may use is very generalized “reality testing” questions and hope that the party’s counsel  has been astute enough to pick up on and review all the issues with her client.

       . . . Just something to think about.

From the Blog of Phyllis G. Pollack.


xxTammy Lenski
5 Powerful Interests That Influence What People (6/29/09)
Tammy Lenski

mediation marketingOne theory behind interest-based bargaining is that parties to a conflict are more likely to agree to a solution that meets one or more of their most important interests. If you’re one of the millions who’ve read William Ury’s work, you know this well, and you know his defintion of interests: The intangible motivations that lead people to take positions – needs, desires, concerns, fears, and aspirations.

I used to remind my mediation grad students that if parties keep saying no to proposed solutions, the solutions either don’t meet an important interest or they don’t see that the solutions do. So it’s pretty pointless (and stepping over the mediator line in a lot of professionals’ books) to convince or manipulate them into agreement in these circumstances and so much more effective to look for solutions that do meet their interests or work to understand where they see the disconnect between the solution and their important interests.

Any of you who’ve read my book know I make the case for using interests to guide our marketing work in much the same way as they guide the work of many mediators. So, the concept above works for your market, too: People are more likely to agree to a service that helps them meet one or more of their most important interests.

In The 5 Things People Really Buy Duct Tape Marketing’s John Jantsch makes the case,

“…No matter if you sell heating and cooling services, legal services, hand painted greeting cards, or consulting, at the end of the day, your customers all buy some variation of the same five things.

So you better make sure you show them how you and your products and solutions are going to:

  1. Make them more money
  2. Save them more time
  3. Allow them to avoid the frustration of doing stuff they don’t like (like wasting time and money)
  4. Help them save or not lose money today and in future
  5. Help them feel better about themselves

Copy these five points and refer to them often as you develop your marketing and sales pitches.”

So, mediators, the work we do speaks very directly to interests 3, 4 and 5 and you could probably make the case for interest 2 as well. I see a lot of mediation marketing that addresses #4 (ok, in all honesty, I see it ad nauseam).

I think mediators are missing the boat by failing to address #3 and #5 in how we talk about what we do. What do you think?

A quick announcement

Those of you who also read my Conflict Zen blog already know I’ve started a new writing project, The Year 20 Reboot. I’m celebrating year 20 of my marriage this year and my husband and I have a launched a bit of a joint marital experiment for the next 12 months. Something mediators might have an interest in. If I’ve intrigued you, read more about it here.


From the Mediator Tech blog of Tammy Lenski.


xxGeoff Sharp
By Popular Demand (6/29/09)
Geoff Sharp

I have had a number of emails about my last post where I mentioned a law firm breakfast I had last week to chat about 10 suggestions I had for lawyers heading into a mediation.

Here are the first 5;

I've just had a call from a lawyer with whom I have a large mediation coming up in late November.

She asked me what she could do to prepare her client John, for what is probably going to be the most important meeting of his life.

Apart from the usual prep like identifying interests etc I advised her to:

1. In the time between now and November try not to poison the well from which she will drink on mediation day - start 'mediating' now within the litigation

2. Prepare John to interact with me on a personal level. He needs to talk to me and should treat me as a confidant, not the enemy. Please trust me (or let me earn that trust)

3. Anticipate a predictable start to the negotiation where the other side asks for the moon and make sure John is prepared to respond in a way that keeps the dialogue going

4. Have John explain the personal side of the dispute to me, in front of the other side. Be prepared to do this early

5. Use me - make me earn my fee. Seek out my reaction to the story of the case and the negotiation moves that are unfolding. Give me a heads up on the negotiation moves John is contemplating - test them on me - I can often help

Thanks to my colleagues at the International Academy of Mediators

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


xxVictoria Pynchon
Negotiating God: A Sunday Reflection (6/29/09)
Victoria Pynchon

According to Robert Wright in The Evolution of God (reviewed in todays NYT Book Review by Paul Bloom) "God has mellowed" from a capricious tyrant into non-zero-sum playing diety.  This is  good news for mediators and anyone else in search of a better paradigm for conflict resolution than the 16th century adversarial system.  As Bloom explains Wright:

When people see themselves in zero-sum relationship with other people — see their fortunes as inversely correlated with the fortunes of other people, see the dynamic as win-lose — they tend to find a scriptural basis for intolerance or belligerence.” The recipe for salvation, then, is to arrange the world so that its people find themselves (and think of themselves as) interconnected: “When they see the relationship as non-zero-sum — see their fortunes as positively correlated, see the potential for a win-win outcome — they’re more likely to find the tolerant and understanding side of their scriptures.” Change the world, and you change the God. For Wright, the next evolutionary step is for practitioners of Abrahamic faiths to give up their claim to distinctiveness, and then renounce the specialness of monotheism altogether. In fact, when it comes to expanding the circle of moral consideration, he argues, religions like Buddhism have sometimes “outperformed the Abrahamics.

Having just finished reading Wright's The Moral Animal (an evolutionary exploration for our tendency to reciprocal altruism)  and taking the long view of Western Civilization, I'm pre-disposed to believe that we have not only evolved physically and intellectually, but "morally" as well.

I understand from Bloom's review that Wright -- either a firm agnostic or wavering atheist -- is moved to wonder whether a universe in which moral progress takes place might suggest the presence of a higher power.  Quoting Wright, Bloom observes:

[Wright] emphasizes that he is not arguing that you need divine intervention to account for moral improvement, which can be explained by a “mercilessly scientific account” involving the biological evolution of the human mind and the game-theoretic nature of social interaction. But he wonders why the universe is so constituted that moral progress takes place. “If history naturally pushes people toward moral improvement, toward moral truth, and their God, as they conceive their God, grows accordingly, becoming morally richer, then maybe this growth is evidence of some higher purpose, and maybe — conceivably — the source of that purpose is worthy of the name divinity.

Whatever the source of our moral development, divine or "mercilessly scientific," its encouraging on a bright summer Sunday to believe we can achieve, if not perfection, at least greater decency toward the divine in one another.

From Settle It Now Negotiation Blog


xxJohn DeGroote
UDR: An Introduction To Unconventional Dispute Resolution (6/29/09)
John DeGroote
As I have said before, if you really want to cut your litigation costs, step one is to have less litigation.  Step two, however, is just as important:  actively manage what’s left.  This post will explore a great way to do both — UDR.

We’re at a point where lawyers who are effective at getting cases settled are often thought to be afraid of trial, yet real trial lawyers often forget that their clients have more important business than litigation.  Which approach will you choose as your next case begins?  With Unconventional Dispute Resolution you can integrate both, so you don’t have to choose either — until the choice is actually yours.

What is UDR?

So what is UDR?  There’s no single element of Unconventional Dispute Resolution that’s truly new, but UDR combines 7 component parts in a way I haven’t seen before.  These elements — each of which is critical to the success of the whole — include:

  1. Early Case Assessment
  2. Aligned Fee Agreements
  3. “BATNA” Changes
  4. Custom Procedures and Structures
  5. The Relationship
  6. To Get the Deal Done
  7. While Always, Always Preparing for Trial

It’ll take more than one post to fully explore UDR, but my old friend Robert Manley and I began the conversation in a recent presentation to the Austin Chapter of the Association of Corporate Counsel.  A quick recap of each element, and how it relates to the success of UDR as a whole, is below.

The 7 Elements of UDR

  1. Early Case Assessment: This site has fully explored Early Case Assessment in a series on ECA already, so we won’t repeat it all here.  Succinctly put, without a sufficient understanding of the case, there’s no way to assess how to resolve it — thus ECA is an indispensable first step in UDR.
  2. Aligned Fee Agreements: What’s the optimal alternative fee arrangement for your case — a reverse contingency fee?  An early resolution bonus?  Or something else?  How do you know?  I often see articles on how great it would be to get rid of the billable hour like those seen here, here and here, and I agree with them.  The trouble is that, in the corporate context at least, virtually no one has.  To me one of the biggest roadblocks to alternative fee agreements is a lack of understanding of the case when alternatives to the billable hour could be considered.  Without a real understanding of the case, a fee arrangement that aligns the interests of client and counsel cannot be achieved.
  3. “BATNA” Changes: We’ll explore the BATNA concept, meaning the Best Alternative to a Negotiated Agreement, in a later post, but for now we all know that lawsuit settlement and dispute resolution often hinge on the parties’ alternatives to a negotiated agreement.  What will happen if the case doesn’t settle?  Will the case go to trial? Even if you’re prepared for trial, what else is at stake?  Will your opponent’s customers have to testify?  Would a counterclaim that puts your opponent’s other patents at risk drive a settlement?  These questions often get lost in the battle until it’s too late.  Don’t let that happen.  Change your opponent’s alternatives and your own as early as you can — and make sure he understands you have done so when the time is right.
  4. Custom Procedures and Structures: This dispute is your problem, and you have to take the initiative to get it solved.  Don’t let litigation be something you spend $100,000 a month on until you’re ready to deal with it.  Work with your counsel, appropriately incented, and the other side early on to find a streamlined way to get it resolved.  For a few tips on how to get this done, take a look at Settlement Perspectives and its series on Settlement Structures — you’ll find ways to settle your case halfway (and why you might want to), paired with practical tips on nonbinding arbitration, blind bidding enhancement, high-low agreements, and more.
  5. The Relationship: As a longtime in-house litigator and past Chair of the Association of Corporate Counsel’s National Litigation Committee, I have listened to a hundred ways to cut litigation costs, but to me it all comes back to the relationship between counsel and client.  I have to trust my outside counsel — and they have to trust me — before we’ll achieve long-term success.  I know that I’ll need to waive conflicts of interests when they don’t really impact my client, and I expect my counsel to give presentations on litigation prevention to my team every now and then — even if there isn’t a convenient billing number nearby.  I hope to see young lawyers tagging along at depositions, I don’t call on Saturdays if I don’t have to, and I expect similar treatment in return.  After a time, outside counsel is no longer my vendor; she has truly become my partner — and we both know she’ll go that extra mile to get her partner’s case resolved.
  6. To Get the Deal Done: It’s time to take advantage of your knowledge of the case and the alignment of interests you share with your counsel or client.  You have done what’s necessary to change your opponent’s alternatives, and you have streamlined the procedures to get a deal done.  Now is the time to execute.
  7. While Always, Always Preparing for Trial: We have discussed before the Sid Hill Rule — that the power to negotiate is the power to walk away.  I have seen what happens when parties and lawyers fail to prepare for trial.  As we know, trial isn’t for everybody; make sure your lead counsel is comfortable with it and ready for it.

There’s More on UDR to Come

Come back for more on UDR, which we’ll post here.  You’ll be glad you did.

From John DeGroote's Settlement Perspectives


xxJeff Thompson
Friday News Round Up (6/29/09)
Jeff Thompson

A Network Theory of Conflict Resolution

Definitely worth a read:
Creating an "energy landscape" from networks of friends and enemies could lead to a better way of resolving disputes.

"Suppose you have two friends who detest each other. The resulting awkwardness often resolves itself in one of two ways: either you drop one of your friends, or they find a way to reconcile," say Steve Strogatz and buddies from Cornell University. They go on to add that the overall social stress in these situations corresponds to a kind of energy that relaxes over time as relationships switch from hostility to friendship (or vice versa).
Read more [here], I know you want to, especially after glancing at that exciting graphic.

Bring Mediation In House Is Cost Effective
This story has been making the rounds on a few discussion groups:
...Resolving disputes through alternative dispute resolution, as opposed to litigation, is one way that a corporation can save money. ADR can also save the corporation time because it is often less disruptive to business operations than litigation. And, when it is used to resolve disputes with customers, it can have a positive impact on customer relations. Mediation, in particular, can be an effective way to resolve customer disputes in a way that is better for everyone involved.

...The University of Pittsburgh Medical Center began utilizing mediation about five years ago as a way to resolve certain legal disputes and grievances that patients or families (the center's "customers") have with the system.
Full article [here]

Maine Adds Foreclosure Mediation
...The basic result of this law is that every person being foreclosed upon now has the right to mediation, if they so choose ("opt-in") by filling out and returning a simple form. The model program on which this law is based originated in Connecticut.
Read more [here]

Preaching To The Choir
Yes, as the headline says and I know you heard and read it plenty of times, but read it again- the benefits of court connected mediation. This one is from Reno: Click here for the article.
In all cases, the mediators use a "facilitative model," the executive director said. After assembling in a conference room, the mediators work with the parties to identify the problems and possible solutions. Unlike in court, non-monetary solutions, such as repairing or returning property, are possible. If a decision is reached, it comes from the parties.
...The center's success rate--more than 90 percent, according to its Web site--is higher than the national average, he said.

From Jeff Thompson's Enjoy Mediation Blog



John Ford is the former managing editor of 

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