This is easily one of the best, all-time great quotes about mediation:

When we begin our mediation training and practice, we often hear (and speak) of the magic of mediation. When it works, it truly is wondrous. It’s easy to see why a mediator feels like a wizard with supernatural powers, enabling lambs to lie down with lions. Based on my experience in the realms of magic and mediation, here is my hope.

Once upon a time, if you could take a cup of water, put it in a box, push a button, and make that water boil — without raising the temperature inside the box — you’d have a miracle on your hands. Ditto for talking to someone, or even seeing them in real time, on the other side of the planet — or even in outer space! How magical is that! And yet, thanks to technology, even the youngest child is jaded by these daily experiences.

My fondest wish is that our social evolution keeps pace with our technological progress, so that the peaceful resolution of disputes will similarly become as commonplace as microwaves and mobile devices. Then it will no longer seem that mystical forces -or card tricks, or magic pennies — are needed to bring together the bitterest of enemies for a common purpose.

From Jerry Lazar, a mediator by day and magician by night, who explores the magic of mediation at his delightfully titled blog, Fight Nicely.

(With thanks to Vickie Pynchon who makes magic of her own at Settle It Now Negotiation Blog.)

From Mediation Channel

       More and more parties are using mediation (which is nothing more than a negotiated resolution ) to resolve their lawsuits.  Perhaps, the following explains why.
     

        In late April 2008, the U.S. Chamber Institute for Legal Reform published its Lawsuit Climate – 2008 in which it ranks the states’ liability systems. The survey conducted by Harris Interactive, Inc. polled 957 in-house general counsel, senior litigators and other senior attorneys “who are knowledgeable about litigation matters at companies with annual revenues of at least $100 million.” (Id.) The polling occurred by telephone between December 18, 2007 and March 19, 2008, with each conversation lasting about 23 minutes on average.
 

      As I live in Los Angeles County, California, the first thing I looked for was California’s ranking. It is ranked 44 out of 50. (It seems that in 2007, it ranked 45 and in 2006, it ranked 44). The five best states, respectively are: Delaware (#1); Nebraska (#2); Maine (#3); Indiana (#4); and Utah (#5). The five states below California (or worse than California) are: (Illinois (#46); Alabama (#47); Mississippi (#48); Louisiana (#49); and West Virginia (#50).
 

      In looking through this study, I discovered another statistic: the worst jurisdiction (i.e. specific city, or county courts) is Los Angeles County: 14% of the respondents thought this. Chicago (Cook County), Illinois came in second worst: 11% of the respondents thought this.
   

          As this statistic took me aback, I continued reading to find out why corporate attorneys thought Los Angeles County was so bad. The top 12 issues (with the percentage of respondents who cited the reason) broke down as follows:
     

      1. biased judgment – 20%;
      2. corrupt/unfair system – 5%;   
      3. unfair jury/judges – 5%;
      4. have read/seen a report on a case – 5%;
      5. unpredictable jury/judges - 4%;
      6. personal experience – 4%;
      7. incompetent jury/judges – 4%;
      8. overburdened with cases/too many cases – 4%;
      9. not enough knowledge/experience about other states – 4%;
     10. high jury awards – 3%;
     11. too liberal – 3%; and
     12. slow process – 3%.

       When the respondents were asked what should be the most important issues for state policy makers, the top five issues mentioned were: speeding up the trial process – 12%; reform of punitive damages – 10%; eliminate unnecessary lawsuits – 9%; tort reform issues in general 8% and high litigation costs – 5%.
   

         Indeed, in a separate study published by Public Opinion Strategies in April 2008, 88% of the respondents (executives at California businesses) stated that the number of frivolous lawsuits is a “serious problem,” while 45% believed frivolous lawsuits to be a “very serious problem.” Sixty-two percent believe that the number of frivolous lawsuits has increased in California in the last 3 – 5 years. Moreover, 50% of the respondents stated that they had made a business decision primarily to avoid a potential lawsuit. Ninety percent of the respondents stated that a threat of a lawsuit is a factor in making business decisions.
    

       While these two surveys are from the perspective of defendants and thus reflect a certain bias, their results still provide food for thought. Without doubt, the results are based on perceptions of either corporate attorneys (Lawsuit Climate - 2008) or business executives (Public Opinion Strategies). But, perceptions are “reality” and to these two sets of respondents, the litigation system in many states is not fair, not predictable, is over-burdened and is presided over by inexperienced judicial officers.
           

       . . . Which brings me back to mediation and the negotiated resolution of a lawsuit. The issues raised by the respondents provide all the more reason to resolve disputes through mediation. First and foremost, the parties, themselves, control not only the results, but the process. They need not worry about biased judgments, corrupt/unfair systems, unfair juries/judges, unpredictable juries/judges, incompetent judges and juries, overburdened judges, high jury awards, or a slow process.
 

           By agreeing to mediate their dispute, the parties are in total control: they select a neutral, the pace or timing of the process, the length of the process, the simplicity or complexity of the process and most importantly, the results. The parties control their own destiny – the outcome to their dispute. They can resolve it in any way that they want to do so, and not in a way dictated by some stranger – a judge or jury.
  

          So. . .the next time someone tells you they want to sue . . .think about this study. . .and the beauty of mediation.
       

           . . . Just something to think about.
 
 

From the Blog of Phyllis G. Pollack.

You recognize this guy.

He’s the  one who stole your parking place. He cut you off in traffic. Just last night at the Olmstead’s party, he interrupted your story about your trip to London for the sole purpose of changing the subject to his trip to Cambodia. 

You, on the other hand, are not an asshole. You are respectful of other people’s property, return telephone calls promptly, and honor the compacts that grease the wheels of social interaction. These are rules of etiquette, mostly, some of which have been turned into law, like “first in time, first in right.”

Still, you’re not inflexible. You can make the reasonable exception. If you’re standing in the check-out line with a shopping cart carrying enough food to feed a family of ten for a month, you don’t say “no” to the young woman holding a bottle of spring water when she asks if she can cut in front of you. If you refuse her this reasonable courtesy, you are the asshole.

From these few examples we see that an asshole is not necessarily a person or even a behavior. No one can be an asshole alone in his room. He needs someone to be an asshole to. An asshole is a social relationship in crisis. An asshole is a dispute.

Let’s go back to the asshole who steals your parking place.

It’s Christmastime at the Farmers’ Market in Los Angeles. Although the day is warm and the mood festive, the afternoon sun is reflecting harshly against your windshield as you make your third circuit of the parking lot. You’re starting to get really tense. You need to pick up the kids after soccer practice. If you don’t find a place right now you’ll have to turn around and leave, your errand undone.
You’re not, of course, alone in this contemporary hunting and gathering adventure. If you were, you would already have slid your white Kia into one of the many available spaces half an hour ago, picked up the ornaments you need to finish trimming the tree, and be headed over to the soccer field right now. But it’s not just you. There are at least ten other drivers circling the lot with you, and another five or six patiently idling their cars in the aisles.

You think you’re in a parking lot but you’re really in the field of conflict.

Conflict, a neutral state of social relations, exists whenever one person believes that his needs or desires cannot be satisfied at the same time as his fellows’. Because the parking lot is full and at least fifteen other people are looking for a space, you and they are all in conflict – which is a state of perceived relative deprivation.

As frustrated as you may be, you are not angry at those already favored with parking places or at your fellow seekers. This is just how things are. You may be in competition for scarce resources, but nothing “wrong” or “unfair” has happened to you, at least not as far as you can tell. There is no one to name as the source of your deprivation, no one to blame for your current distress and no one from whom to claim a right to a parking space right now!

In social psychological terms, you have not yet sustained the perceived injurious event that can ripen any conflict over scare resources into a dispute about who is most entitled to possess them.

At least not until now.

Just as you’ve resigned yourself to leaving the lot, a young woman trailing two toddlers appears at the door of a blue Volvo to your immediate right. She smiles and gives you a friendly hand signal to indicate that she is leaving. The space is yours and just in time! The efforts of your afternoon will not go unrewarded. The ornaments will be purchased and the children picked up on time. You’re feeling all Christmas-y again. You relax behind the wheel of your car, shift into neutral, and switch the radio on.

But just as the Volvo pulls out and you shift the Kia back into drive, a young man in a red Corvette convertible swings around the corner and noses into your space with barely an inch or a second to spare. Maybe he didn’t see you were waiting for it. You suppress a flash of anger, roll your window down and shout, “hey! That’s my spot.” You’re really hoping that he’ll smile back, shrug his shoulders to indicate his mistake and yield to you, its rightful possessor.

Unfortunately, that’s not what happens.

“Nobody owns a parking place,” he says as he jumps out of his car and strolls toward your store -- the store with your Christmas ornaments on its shelves, waiting to be retrieved for your children.
Now you’re angry. Really angry. You gun the engine a little, drive up beside Red and shout out your window:

And with that, an Asshole is born.

Before now, there was no asshole. There may have been an awkward moment between two well-meaning, fair-minded people. You and Red might have shared rueful laughter, indicating empathy for one another’s mutual plight. As Red pulled his car back out of your space, you might have apologized for shouting at him, blamed your irritation on the holidays, and wished him luck in finding his own space “really soon.” He may have quickly forgiven you this brief flash of ill-temper, said “it gets to all of us” and wished you a “nice day.”

You would have been reconciled to life’s little inconveniences and to one another.

But that’s not how it happened. Instead of resolving into apology, forgiveness and reconciliation, the asshole stole your parking space, depriving you of your last opportunity to achieve the afternoon’s goal – to park the car, run into the store, buy a few Christmas goodies and head on down to the soccer field to pick up your kids. Red has made concrete that which had been purely theoretical. His refusal to cede your spot to you is the perceived injurious event that ruined your entire day.

Perceived? you say. There’s nothing perceived about it. That Asshole Stole My Parking Place!!

What you don’t know is this. Just as the word “asshole” is fading into the chatter of Christmas shoppers drifting in from the mall, a car three spaces ahead of you begins to pull out, providing you with the space you need now. Red sees the spot open up at the same moment you do and shakes his head in disapproval as if you’re the bad actor. Still, you feel chagrined at the strength of your anger, your lapse into profanity. In fact, you’re beginning to feel like a bit of an asshole yourself.

Why?

Because the resources you were competing for, though scarce, were in fact sufficient to satisfy both your and Red’s needs simultaneously. There was no genuine contest in the first place. The “dispute” was unnecessary, as was its painful emotional residue. You were in a state of perceived but not actual deprivation. The “conflict” existed only in your head. There was enough for both of you.

So what happened here? Let’s review.

As soon as you entered the parking lot, you were in a state of perceived relative deprivation, competing for scarce resources with at least fifteen other motorists. That conflict did not emerge into a dispute until you suffered an injurious event – here, Red’s refusal to restore to you the parking place that was rightfully yours. At that moment, it appeared as if you and Red could not simultaneously meet your needs. Worse, it appeared that Red had wrongfully deprived you of the only parking resource left in the lot, thus breaking the social compact of “first in time first in right.”
At the moment Red refused your demand for possession, you named him as the source of your injury; blamed him for your loss; and, claimed a right to redress, all in a single profane epithet – asshole. Thus did both an asshole and a dispute emerge.

In the Dispute Resolution ABC’s, “A” is for Asshole because an asshole is not a person but a process, not a character trait but a social interaction, not one person but two. In the Dispute Resolution ABC’s, “A” is for Asshole because the “Asshole” is the Dispute.

From Settle It Now Negotiation Blog

In this podcast Josh discusses some ideas about how to negotiate with someone who has an avoiding style in a negotiation.

MP3 File

From Josh Weiss's blog.