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Evaluative Mediation Techniques Help Achieve Success (9/01/08)
Jeff Kichaven A March 2008 report of the American Bar Association's Task Force on Improving the Quality of Mediation confirms what is obvious to all who participate in commercial mediation: There is "overwhelming support" for the conclusion that lawyers want mediators to provide "analytical input," or, as we more commonly call it, "evaluative mediation." The marketplace has spoken.
Summarising (9/01/08)
Alan Sharland Summarising is the second effective communication skill which forms part of the cyclical process of Listening - Summarising - Questioning that promotes Effective Communication and Effective Conflict Resolution.
Mitigating High Conflict Divorce Disputes (8/24/08)
Brook D. Olsen High levels of parental conflict have consistently been shown to be among the most destructive factors in both intact and divorced families. Currently, we have an epidemic of children caught up in the chaos and turmoil of parental conflict.
The Shadow (8/18/08)
Edward P. Ahrens To paraphrase an old radio program: Who knows what lurks in the minds or faces or voices of men or women? Only the Shadow knows . . . and he ain’t here!
Impasse Is A Fallacy (8/18/08)
Lee Jay Berman I often wonder who invented the concept of impasse. Who first said, “We are stuck. We cannot go any further.”? Who decided that we should give it a name, acknowledge its existence, and make it the scapegoat for all that goes wrong with a mediation or negotiation?
Business Mediation:A Better Way To Resolve Workplace Conflict (8/11/08)
Marta J. Papa In a situation where there is no process for eliminating conflict other than litigation, resentments build up and productivity plummets. Currently, we are seeing a trend toward solving conflict in the workplace through mediation rather than litigation or other more traditional methods of dispute resolution.
The Importance Of Follow Up (8/11/08)
John Ford There was a time when I considered a follow up a courtesy, something non essential but ‘good’ to do. More and more, I am of the view that follow up is a vital part of any mediation, especially in workplace mediations where the disputants have worked out new behavioral arrangements.
Blawg Review 171 (8/05/08)
Victoria Pynchon If intellectual property had a theme song it would have to be "Like a Virgin." Why? Because IP is all about "the very first time," the "aha" moment, the creative spark that gives rise to previously undreamed imaginings.
In honor of the moment of creation at the root of every intellectual property dispute, this week's Blawg Review No. 171 gives you the great virgins of history.
Mediators And Centurions Have More In Common Other Than Wearing Shoes (8/04/08)
Elizabeth Moreno After forming a new ADR firm, I am always asked the question, why did you choose the name ‘Centurion Mediation’ for your business? Centurions conjure up images of battles and aggressiveness, not the attributes of a mediator who should be peace building and peacemaking individuals. I wonder if any of these questioning individuals have ever mediated a dispute.
Recognizing And Validating Diversity In Mediation (8/04/08)
Malcolm Sher When they become involved in disputes, whether litigated or not, people from differing cultural or ethnic backgrounds often bring to the table differences that may have caused or contributed to the dispute, and that may well govern its outcome. This article will examine some of those differences and emphasize the need for all participants in the mediation process to learn about and validate them in order to bring about a mutually beneficial settlement.
Alternative Dispute Resolution: Alternative to the Legal System, Not Just to Court (7/28/08)
Nancy B. Sharpless Attorney and non-attorney alternative dispute resolution practitioners squabble over who is more suited to apply their non-adversarial dispute-resolution skills to cases already pending in the legal system.? Instead, these practitioners should work together to promote dispute resolution outside the legal system.? This article proposes means by which practitioners of alternative dispute resolution can create in the public mind an awareness that viable alternatives exist.
Evaluative Mediation Techniques Help Achieve Success (7/21/08)
Jeff Kichaven A March 2008 report of the American Bar Association's Task Force on Improving the Quality of Mediation confirms what is obvious to all who participate in commercial mediation: There is "overwhelming support" for the conclusion that lawyers want mediators to provide "analytical input," or, as we more commonly call it, "evaluative mediation." The marketplace has spoken.
The No-blame Approach In Mediation (7/21/08)
Alan Sharland Mediation adopts a 'no-blame' approach when supporting people in resolving their dispute. And the reasons behind doing this are just as relevant in any difficult situation such as a complaint, or relationship breakdown or other destructive conflict situation. This article explains this approach and the reasons why it is an important and more effective approach to adopt.
Leaving Borderland – Expanding The Frontiers Of Restorative Justice (7/21/08)
Darrell Puls An ever increasing body of evidence strongly suggests a “third way” alternative to litigation that often stops litigation before it is filed. It starts with answering this rather complex question, “What if we just told the truth – all of it, without defense, without excuse, without blame, took responsibility for the consequences, were transparent in all of it, and offered to make things right?” I argue along with others that this complex question goes well beyond the realm of conventional thought and into the more fluid and nuanced world of restorative justice.
Comparing Collaborative and Traditional Conflict Management in Environmental Issues (7/14/08)
Christina Simokat Collaborative processes have been called the new “dominant paradigm” (Gillingham, 2001; Lubell, 2004) in watershed management, and government agencies such as the EPA are encouraging and looking to expand this style of natural resource management. This paper reviews the literature on this topic, and the findings indicate ambiguity about the definition of a collaborative process and its benefits, and a need for more empirical research on the processes for watershed management and the effects, short and long term, on communities.
Interdisciplinary Co-Mediations: The Good, the Bad and the Imago (7/07/08)
Josefina Rendon This article focuses on interdisciplinary mediations, that is, mediations performed by co-mediators of different professional backgrounds or disciplines. It highlights the work done by four interdisciplinary co-mediation teams in Texas. The article will also discuss some of the perceived benefits and drawbacks of co-mediation in general and discuss future possibilities of the practice of interdisciplinary co-mediation.
Greek Philosophy And Mediation Practice (7/07/08)
David Hurley I am always interested in finding pearls of wisdom that illuminate what we do, or that identify fundamental human experiences that validate steps in the process one otherwise might have taken on trust.
Why Getting To Yes Is the Most Vital Journey We Face (6/30/08)
John Sturrock GETTING to Yes is the seminal work on negotiation by Fisher and Ury. First published in 1983, it has been read by millions of business people, diplomats, lawyers and others around the world and is standard fare in universities in the United States and elsewhere. Recently, General Sumbeiywo, the man at the centre of the Southern Sudanese peace agreement, was asked what one book he would recommend to negotiators. Getting to Yes was his swift reply.
Promote your professional practice in the largest worldwide ADR directory for free (6/27/08)
James Melamed Mediate.com is now, for the first time, offering a Free Basic Membership. Basic Membership provides a free listing in our field-wide ADR professional directory. Mediate.com Premium Membership provides you with an elevated and enhanced directory listing, access to all Mediate.com video content, participation in the "stars" Qualifications Disclosure Program, eligibility for liability insurance, and more. All Members can now indicate organizational affiliations, and there is a new "Search by Organization" feature So, for example, you can now search by the ABA DR Section; ACR; ACCTM, AFCC, IAM and many other international, national, and state associations.
Congregational Conflict: Preparation For Resolution (6/23/08)
Lester L. Adams Everyone who is either trying to resolve conflict in his own life, or assisting others with settling their differences is looking for ways to become better at this. When I studied the way that Jesus dealt with conflict, I saw how he got people better prepared to resolve their disputes. I want to share with you some of the insight I saw in his life and ministry in this article.
A Credo For Facilitators (6/23/08)
Peter Adler I recently was asked to state clearly and unequivocally to a group of prospective clients what my “philosophy” of facilitation is. To prepare for that, I went back through my files and dug up a “credo” that various colleagues and I put together in 1998 in Hawaii. The statement grew out of a series of discussions about the use and occasional abuse of “facilitation” in the public, private, and civic sectors. The following tenets have held up well over the years and may be of use to others. We encourage readers to copy and disseminate the statement to other groups and individuals who have an interest in facilitation, collaboration, and consensus-building.
So You’ve Got a Beef. Now What? (6/09/08)
Gary Weiner Negotiating a good resolution to a conflict isn’t rocket science. There are a few things, though, that you should know if you want to do a better job in settling disputes on your own.
To Talk Or Not To Talk With The Enemy, That Is The Question (6/09/08)
Noa Zanolli President Bush and his secretary of state, Senators McCain, Clinton and Obama, and President Carter as well, have been embroiled in a debate about the level-headedness of talking to the enemy. The outcome of this debate will be decisive for the two remaining presidential candidates.
Pele: An Inspiration For Teamwork In Negotiated Solutions (6/09/08)
Luis Miguel Diaz Team work lies beneath negotiated solutions of complex problems. This article focuses on Pele who is regarded as the greatest soccer player of all times. No team sport evokes the intuitive drive for team work as soccer, where all eleven players of a team must cooperate. Soccer requires improvisation from the players to solve the strategic necessities of the soccer field. Can we learn from Pele processes for team work?
Are Agreements To Mediate Necessary? Yes! (6/02/08)
Nancy Kramer Since I began mediating 12 years ago, I have made it a practice to ask parties and counsel to sign an Agreement to Mediate, usually prior to the first session. Recently, a new-to-mediation lawyer and friend told me he believed such agreements were unnecessary and reinforce the image that lawyers only complicate everything. His surprising position made me think about my assumptions.
The Mediator's Triangle: Organizing the Mediator’s Focus (6/02/08)
Kendall Reed The mediation process and the mediator’s work have been well described and discussed by others, including Baruch Bush and Folger , Cloke , Krivis , and Moore . These authors provide a great deal of valuable information and guidance and should be studied. At the same time, I have found in my own practice as a mediator an approach that is somewhat different from those suggested by these authors. The purpose of this article is to describe this approach in the hope that others may also find it useful.
What Would An MBA Student Do? (6/02/08)
John Ford Never discount the importance of reality checking, and of finding a credible agent of reality, even if they are not able to make the mediation!
Thoughts on Mediation, Barack Obama, and Our Political Future (5/27/08)
Kenneth Cloke The emergence of Barack Obama as the front-runner for the Democratic nomination, and thus for the Presidency of the United States, presents us with unprecedented opportunities to influence global dispute resolution strategies and shift the prevailing paradigm of adversarial politics and diplomacy.
Appeasement and Diplomacy: When There is a Tempest in a Teapot, Keep Your Eye on the Teapot! (5/27/08)
Peter Adler George Bush recently visited Israel on the occasion of its 60th birthday and, in a speech to the Knesset, put forward thinly veiled criticisms of Barack Obama suggesting that his willingness to negotiate with Iran and Syria is the “false comfort of appeasement.” Out on the campaign trail, John McCain chimed right in. “The President is exactly right.” Various Democrats instantly fired back. Joe Bidden called the president’s comments “bullshit.” Hillary Clinton (rising to Obama’s defense) said Bush and McCain failed to understand the distinction between appeasement and diplomacy. Well, what is the difference between appeasement and diplomacy?
Measuring Conflict Coaching (5/26/08)
Cinnie Noble As it becomes a more defined technique in the ADR field, those who provide conflict coaching will be increasingly discussing its many applications and also, the ways to increase its legitimacy, as a distinct mechanism. This article suggests that to successfully increase conflict coaching’s credibility, it is important that practitioners together with the organization for which they work (or for which they provide external services), consider how this process may be measured as a mechanism that increases conflict competence and short circuits the unnecessary escalation of conflict.
Attribution Biases and Their Impact on Mediation (5/26/08)
John Ng Perception bias is a powerful communication process. Fritz Heider, father of attribution theory, proposes that attribution is an “effort of predicting and controlling the world by assigning transient behavior to unchanging positions”. In mediation, disputing parties hold biases with respect to the mediator, mediation process and the other party. These affect motivation and communication styles, which in turn influences the outcome of the mediation. Unless the mediator is conscious of these biases and develop skills to overcome them, the mediation process will be in jeopardy. This paper will consider three different attribution biases, namely fundamental attribution bias, false consensus bias, and negative impression bias and suggest practical ways, based on the experiences of the authors, to overcome these biases.
Negotiation Lessons from the Pawnshop (5/21/08)
Jay Folberg My resume is loaded with Alternative Dispute Resolution credentials: law school professor and then a dean; teaching negotiation and mediation for decades on several continents; writing books and dozens of articles; negotiating and mediating lawsuits with up to eight-figure payouts; and serving on umpteen advisory boards and “blue ribbon” commissions. But my resume is not the reason you should follow my advice about negotiation. The reason you should pay attention to what I have to say is that I am the son of a pawnbroker.
The Concept of Reciprocity in Mediation (5/19/08)
Jeff Kichaven I received a startling e-mail from a prominent Southern California judge. The reality he reflects should cause the commercial mediation community to reject two clods of conventional wisdom. To satisfy clients, commercial mediators must learn to love—not disdain—"evaluation." Commercial mediators must also remember to love—and again, not disdain—lawyers.
Bye Bye, Win-Win (5/19/08)
Edward P. Ahrens I previously played the iconoclast by suggesting that the “win/win” concept is falling on deaf ears. I have, however, now conceded that I nonetheless will continue to expound the win/win philosophy with hope that disputants will buy into it.
Negotiating Justice in Community Mediation (5/19/08)
Victoria Pynchon Nearly every condominium complex harbors an outlaw -- the man, woman, couple or family who refuse to follow the rules. Offended and outraged, other homeowners make demands on their volunteer board who contact the (often unresponsive) management company. Many of these disputes ultimately make their way to the Los Angeles County Bar Association's Dispute Resolution Center in West Hollywood. And some of them make their way to me. Welcome to community mediation -- the non-zero sum, value-based, rights-seeking, joint session transformative dispute resolution process. We're well-trained and we're free. But can we deliver justice?
The Four Faces of Face (5/15/08)
John Ng This paper investigates the relationship between maintaining face and mediation and its effects on parties.
Listening (5/13/08)
Alan Sharland The purpose of listening in conflict resolution is not for the listener to get ‘the facts,’ but to support the speaker in understanding their own thoughts and feelings about the destructive conflict they are involved in.
Are You Really Ready for Divorce? The 8 Questions You Need to Ask (5/12/08)
Bruce Derman, Wendy Gregson This article outlines what couples need to do in order to face the numerous dilemmas that are inherent in divorce. A dilemma implies that you are torn between two choices, each of which have undesirable fearful elements. If people have not resolved their dilemmas before the divorce, they go through the process trying to manage their fear in different ways by hiding their doubt, responsibility; vulnerability, or dependency.
Einstein’s Tips For Negotiated Solutions In Human Conflicts (5/05/08)
Luis Miguel Diaz Albert Einstein was considered one of the great problem solvers of his generation. His remarks about the universe query scientific and conventional wisdom. Can we discover in his life and innovative beliefs any attitude, aptitude, method or skill suitable for a conflict solver who intervenes in human conflicts?
Saadia Touval, 76, Expert on Mediation Issues (4/28/08)
Saadia Touval, 76, a political scientist who made an influential argument that biased mediators in international disputes were often the most effective, died April 17 at his home in Rockville. He had gastric cancer.
Of War and Negotiation: Part 3, The Allure of War: If You Want Peace, Study War (4/22/08)
Robert Benjamin Fighting, often including war---or flight, the avoidance of conflict, are the biological and emotional responses of animals and humans to a perceived threat or attack. Neuro transmitters fired in the brain correspond with feelings of fear or anger. Neuro-scientific studies strongly suggest that animals and humans are hard-wired to fight and there is a biological basis for the allure of war. By contrast, there is no corresponding neuro-biological inclination to negotiate.
Calming Techniques (4/21/08)
John Ford In a previous article, I suggested that there are two ways we can approach our penchant for reactivity when we are triggered. One seeks to address why it is that we are triggered. The other focuses on the moment that we are triggered, and seeks to restore short term balance. This article focuses on techniques for calming down.
CLINTON VS. OBAMA: Mediating a Solution to the Democratic Nomination Battle (4/21/08)
Matthew J. Bailey Another process is needed to negotiate an end to the nomination, one through which the candidates’ interests will be explored and fairly addressed. Using traditional mediation principles, this article explores how mediation might be successfully used to settle the dispute between Senators Clinton and Obama of who will be the Democratic nominee for President this year.
La proteccion de la confidencialidad en la mediacion (4/15/08)
Walter A. Wright La importancia de la confidencialidad en la mediación no puede ser subestimada. En la mediación, el mediador cuenta con la confidencialidad como una herramienta esencial. En la introducción, el mediador asegura a los participantes la confidencialidad del proceso para crear una "zona de tranquilidad" y ayudar a la expresión franca de sentimientos e intereses. Más tarde en el proceso, el mediador alienta a los participantes a generar ideas y opciones para la solución del conflicto.
Independent Report Concerning Mediation And The Mediation Profession In Romania (4/14/08)
Zeno Daniel Sustac Mediation cannot be implemented in a legal system overnight! The efficiency of integrating mediation within the Romanian legal system is not guaranteed by the passing of a law which regulates mediation and the respective profession. A mediation law is not sufficient in a country which has had a vague relation with mediation only through legal commissions in a period which it wants forgotten.
Communicating Effectively During Conflict (4/14/08)
Lynne Eisaguirre When we’re arguing during a conflict, most of us are not listening; we are, as my son
says, “just talking to ourselves.” Clearly, one of the most important conflict resolution skills is listening. In order to listen well, we need to prepare.
Christian With Muslim Religous Dialogue (4/14/08)
Leo Hura Discussion about the need for Religious dialogue between the different faiths has become ubiquitous. There are many examples, one being, “Diplomacy in an Age of Faith”, by Thomas F. Far who argues “the United States has failed to understand the global resurgence of religiosity.” Can mediators fail to be involved?
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