It’s not at all surprising that most women’s initiatives at most AmLaw200 law firms have been dismal failures.

They failed because they lack buy-in; are often unfunded; and, no one takes them seriously.

The best use I’ve seen made of an unfunded women’s initiative in an AmLaw100 firm was the way the women used it. Instead of cross-referring business among specialty groups to the primarily male practice leaders, the firm’s women cross-referred to the women in the initiative.

That subverts the established order of things which tends to favor men.
People with power do not tend to freely give it away. You must take it.

Action.

That’s what women’s initiatives need.

What they primarily get is a great looking promotional brochure or well-designed web page.

I call this the summer associate bait and switch.

The firms want to attract the best and brightest law school candidate and half of them are women. The firm wants to assure the women that they have a bright future. Hence, the brochure, the web-page and the lip service.

Obviously, I’m in favor of action, which includes subversion of the established (male) order for women to get the opportunities they deserve for practice development and advancement.

My friend Lauren Stiller Rikleen who often guest posts here, has had the solution ever since her book, Ending the Gauntlet, Removing Barriers to Women’s Success in the Law was published several years ago.

Five Keys to Success

Let’s assume that these women’s initiatives are not just Potemkin Villages but actual attempts to improve the retention and promotion of high potential women in the law. Let’s assume that law firm management (an oxymoron) just can’t figure it out.

After today, there will be no excuse. Here they are, straight from Rikleen’s keyboard to your in-box

Men must become partners in creating the template for future success.

As Rikleen explains here, for women’s initiatives to succeed, they must be focused on institutional changes, not simply band-aids. That means the men – who remain the firm leaders and hold most of the power to make the institution woman-friendly, must be active participants.

Implied Biases Must Be Recognized and Their Effects Addressed.

I’m on the diversity committee of a powerful ADR think tank. When we meet to discuss our strategies and programs to raise the number of women and minorities who are making their living as mediators, the conversation devolves into yet another discussion on the issue whether there’s bias in the profession at all.

I’ve been on the Committee for two years now and this dynamic is the primary reason why we haven’t yet gotten anything done.

We’re about to declare the promotion and retention of women and minorities in ADR Mission Critical for 2013. So keep your eyes peeled. I will be practicing what I’m preaching here.

Management Support, Accountability Structures, and Resources to Ensure Change.

Those firms who have gotten firm leader buy-in and gotten past the barrier of implied-bias-denial, must go on to “develop a variety of programming options, including speakers and training.” These programming events are not cynical, politically correct scrims meant to keep the firm’s women “happy.”

They must meet identified goals and objectives which firm leaders crafted after engaging in an process that assessed those factors that were keeping the firms women back, or, worse, making them leave in numbers that create an attrition problem for the firm and its clients.

Continue at Forbes Woman

Last month I facilitated a conversation about language and relevancy in the conflict resolution field for the New England Association for Conflict Resolution annual meeting.

If you’re a New England mediator who missed the vibrant, fast-paced discussion, you can now read a summary of it in the publicly available Winter-Spring 2012 NE-ACR News. I was also profiled in the issue for their ongoing “10 Questions for…” series. Here’s a snippet:

How did you get started in this field?

I was a college dean, and my president kept asking me to mediate disputes in various departments on campus and facilitate large campus meetings where there were diverse and strong opinions on a variety of organizational matters. Then she began recommending me to presidents at other institutions, and I realized that people saw me as someone who could help them sort out messy stuff. I was just winging it, though, so I decided I’d better get mediation training. I came home from that first basic mediation course knowing conflict resolution was the work I wanted to do all the time.

When was this?

That was in 1996. I was a VP by then, and it was months before I built up the courage to walk away from a good and fulfilling job.

Editor, NE-ACR Past President, and all-around fab mediator Louisa Williams has put together another gotta-read edition of the newsletter. It includes a review of Thinking, Fast and Slow by Danial Kahneman, whose early work lit me on fire while I was working on my doctoral dissertation in the early 90s. I enjoyed Kahneman’s new book tremendously and am still working to digest all that was in it.

Christy Burke, Legal IT Professionals:

“Courtroom showdowns make for great movie scenes, but To Kill a Mockingbird’s Atticus Finch would be shocked to hear that the courts are only resolving a fraction of today’s legal disputes. A growing number of cases are being resolved by online tools, and sometimes lawyers and judges are not even involved. Impartial web-based systems apply computation, algorithms and cryptographic technology to bring about resolution quickly and inexpensively.

A growing stable of private sector companies are beginning to compete with the judicial system for “customers” and are also changing the face of traditional Alternate Dispute Resolution or ADR, which has typically included mediation, arbitration and other alternatives to the courts.

Not only are approaches to justice and negotiation changing, but some of these new systems like those provided by Fair Outcomes, are actually prompting lawyers and their customers to be more honest about the value of a case and their realistic objectives from the outset, providing disincentives to lie, bully and posture. Utopian though it may sound, this is actually becoming a reality. Atticus would be happy to hear that, at least!

A potential paradigm shift is in the making here, but what is motivating parties to look outside traditional courts, mediation and arbitration and flock to the web for resolving their disputes? In short, overburdened courts, lean economic times, cost, and convenience all figure into the mix…”

Great article, check it out!

Why are neuroscientists interested in the skills of magicians? Because magicians have long known traits and states of the brain that brain scientists are just now learning. Why am I so interested in what magicians do to so masterfully simulate magic? Because they know the value of paying attention to attention, a critical skill in the my approach to conflict resolution. That's why I often—in programs, presentations, and with clients—use this phrase to describe my approach to mediation: Attention choreography™.

Because of the topic's importance to my professional (and personal) interests, I have blogged about magic many times in the past here and here. (Scroll down at each of these links to see many posts.) Today I point your way to still another piece on magic.

From "How Neuroscientists and Magicians Are Conjuring Brain Insights" (Scientific American blogs):

Why are scientists working with sleight-of-hand artists? Their tricks, honed through the decades, have revealed that people respond to certain situations in specific ways. Like detectives looking for new leads to solve a mystery, scientists can mine magicians’ knowledge for ideas to test in the lab. And for the magicians, understanding principles about the brain—that is, why a trick works the way it does—can suggest new ways to advance their art as they develop new tricks or improve existing ones. (The article, “What Can Magicians Teach Us about the Brain?”, provides some more background and a November 2008 Nature Reviews Neuroscience paper coauthored by neuroscientists and magicians.)

The conference explored several aspects of attention. [Stephen] Macknik started things off by explaining how the brain constructs our experience of reality from a truly imperfect set of biophysical tools, resulting in a “grand simulation of everything around you.” For instance, “You have one megapixel eyeballs compared with your eight megapixel camera,” he said. In addition to collecting a relatively small amount of information from a scene, the eye itself has a large blind spot, where the optic nerve that ferries information to the brain pierces the light-collecting retina at the back of the eye; the brain fills in the visual gap to create the illusion of your vision acting like a seamless movie camera.

Our internally produced picture of reality is subjective—and subject to influence. “Magicians are the performance artists of attention and awareness,” Macknick said. ...

Click to read the rest. Wouldn't you like to go to one of those Neuromagic conferences? For me, it would be a magical trip, a dream. Maybe I can learn to conjure myself to the next one?

In my years as a mediator, it has struck me that the smaller the dispute, the harder it is to settle. And, I have always wondered why. Well, my friend and colleague, Maria Simpson, Ph.D., in her most recent Two Minute Training, explained the “why” quite succinctly: it is all about “justice” and “fairness”. She was mediating a “straightforward” collection case in which one party was suing two others for payment for work performed. The defendant though questioned the quality of the work and refused to pay.

While everyone at the mediation agreed the case should settle as it was such a “small” case, making it too expensive to take to trial, Defendant, at the same time, refused to pay.

Why? Principle! Because, defendant wanted justice and fairness; why should he pay for a penny for work that was not performed? “It isn’t fair”. As Dr. Simpson notes:

The point here is that very often those of us who aren’t really in the middle of the fight have no idea what drives people to take the stands they take, to offer $500 but not $550 or even $525. We don’t understand how important the principle is, or maybe even what the principle is. We simply see the recalcitrance as stubbornness but don’t understand what it really means. (Emphasis original).

It is all about “fairness”. But there are different types of “fairness”. A recent blog on the Program on Negotiation at Harvard Law School notes that researchers have identified three types of “fairness”:

Researchers have identified three fairness norms that people frequently invoke: equality (… a 50-50 split of profits; equity (a split in proportion to input…); and need ( a split that favors…[the one most in need]).

Psychologist David Messick has found that people commonly choose among these fairness norms based on their self-serving desire for more. That is, our greed determines how we define fairness in a given situation.

Similarly, Nina Meierding, MS, JD, in a recent presentation at the American Bar Association’s Section on Dispute Resolution 14th Annual Spring Conference, categorized “fairness” as either based on legal theory (what do the statutes, cases, legal precedent or rules state as “fair”?); equity theory (“based on the level of investment and contribution of each person”); needs based or culturally based theory (focuses on the greater good of the collective so that the group is more important than the individual; the proceeds are divided equally among all without regard to contribution, or are divided based on gender or status. Cultural values determine “fairness”); or faith based theory (“What would God say is fair?”)

As my colleague Dr. Simpson notes, to resolve a dispute, the mediator or the other person to the dispute must view or at least understand “fairness” through the eyes of the other party or the parties:

So whether you are wondering why someone is being so dramatic or stubborn over something that seems so small, try to understand why it is so much larger to that person than it is to you. You may have to struggle to get to the reason, and you may never understand it, but remember that there is a reason, and it is important, and whether you understand doesn’t matter, but you really will have to respect it.

Walk in the other person’s shoes. Trade places and see what it feels like to be him or her. Live with that person’s experience. Understand that someone may not be able to help you with something for many reasons, and even then you will probably never realize on your own that it is because a family member was murdered.

Don’t ever judge the case or the amount or the issue as small until the issue is yours and you have the right to make that judgment. Otherwise, be patient and understanding even when you do not feel either. These are signs of respect for other people’s right to feel injustice and demand fairness. (Emphasis original).

Once you are able to view if not understand “fairness” and/or “justice” from their point of view, you will grasp why such a “small” thing seems SO important to them. With this “ah-hah” moment, you will be, hopefully, able to reach a resolution.

…. Just something to think about.

“Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen.”—Winston Churchill

What does it take to sit down and listen to someone we disagree with, instead of dismissing them as the enemy or turning to violence?

First we must accept that they are full and imperfect human beings, just as we are, not cardboard characters in our own personal or professional drama.

Second, we must understand that good people can hold different beliefs and opinions. We may find their views wrong or event abhorrent, but must not equate that with believing they are themselves evil.

We must also understand that listening isn’t the same as agreeing. We can listen to the perspective, history, and motivations of others without abandoning our own beliefs. We can embrace their humanity and acknowledge what we have in common even when we disagree.

Instead of demonizing them as the enemy, we must find a way to open our hearts and spirits to a bigger reality holding multiple truths. This can be a frightening concept to those who find safety in holding fast to narrow certainties.

My work as a communication coach and mediator is always to offer support and gentle awareness that strengthens clients’ compassion for themselves and others. With willingness and practice, we can all find peaceful, creative ways to work through conflicts and honor our differences.

When people don’t know what’s happening they often get a movie going in their head that helps them explain the situation. The film versions they conjure up are rarely romantic comedies; rather, most resemble horror movies with terrible endings. A lack of honesty or openness at work can put everyone’s mental movie-making skills to the test.

I love a dramatic film as much as the next guy but when it comes to resolving conflict, I know I need to set my desire for a good story aside and focus on what’s real. With that said, we’ve probably all had coworkers who like to make even the most mundane topics sound intriguing and captivating. As long as you know that about them, don’t get too worked up when they want to send out those “I know something you don’t know” messages. If what you’re experiencing goes beyond that, address your concerns privately and give the person an opportunity to let you know if they’re in a position to share information. Accept that sometimes people are sworn to secrecy for a certain amount of time or that they may be in the “thinking” stages and need to explore a number of options before making an announcement.

Withholding information is one thing; one’s words not matching one’s actions is another. We’ve all had occasion to feel blindsided, disrespected, or embarrassed because we took someone at their word and then something else actually happened. When you find that someone has been less than honest give them a (private) opportunity to explain what happened. Our sense that someone didn’t tell the truth isn’t always accurate, so certainly give people the benefit of the doubt. If it turns out that your suspicions are true, let the person know that you expect more and that you’re willing to work on trusting them again. Move forward with an agreement that it won’t happen again.

We’re all human and when you find yourself in a circumstance in which you’ve been less than honest or were unnecessarily closed off about particular information, make whatever apologies you need to make, come clean, and be better than that from here on out. Keep in mind that you’re the star of your coworker’s mental movie, so work on creating a better ending.

I heard an amazing interview on the The World radio program today, with a young American Army commander, Captain Michael Kolton, who decided to reach out and forge a relationship with one of the Taliban commanders that his unit was fighting in Afghanistan. Here is the whole thing:

Captain Kolton made a deal with his Taliban counterpart, a man known as Massoud. Kolton told Massoud that as long as he called every week, the Americans would not hunt him down. Massoud made sure to call every week, and the two men continued to meet and get to know each other. Pretty soon, Massoud was giving Kolton the best intelligence he had ever received, and both found they had more to talk about than they realized.

What common interests could these two enemies, who were both there for the purpose of killing each other, possibly have? And how would these talks serve the Americans' mission, which was to defeat the Taliban forces?

For one thing, both found that they had some common enemies. The Americans were after some rival insurgent leaders in the area, and Massoud was only too happy to help the enemy of his other enemies track those rivals down. More importantly, both discovered that they identified themselves in a similar way. Both men were in the area to hunt and kill others for a cause. Different causes, to be sure, but the realization that both defined their mission in a similar way helped both discover their common humanity (or perhaps their common lack of humanity).

Kolton began to ask himself, is this man truly evil, or is he fighting for something he believes in, just as I am. Those questions allowed him to feel a certain empathy toward his enemy, instead of viewing him only as the other, as something to be destroyed.

These opposing forces probably have a number of other goals in common. Both may seek an end to conflict. Both may seek political power. And both can probably help the other achieve at least some of those goals by continuing the dialogue. It turns out that the Taliban fighters that the Americans made contact with are now receiving stipends and vocational training from the Afghan government. They do not pose the same threat they once did. Kolton thereby proved the truth of Abraham Lincoln's saying that the best way to destroy an enemy is to make him a friend.

This certainly seems like a new way of fighting, especially as an initiative from an American soldier instead of the usual way that diplomatic efforts come about. We give medals for heroism in war, usually for uncommon bravery in risking one's life to help others in the unit. Perhaps we should also consider medals for peacemaking, to reward initiatives that help the army achieve its goals without needless loss of life. As Captain Kolton says in this interview, "the new definition of courage is risking yourself to protect innocent people and reconcile fighters. That new definition of courage is slowly changing the culture of my army."

Impracticable approaches to projects and tasks have certainly been the topic of many a gripe session between employees. The conversation often begins with one of them busting out with, “He’s never even done this job before,” and the other person responding with, “Really! What does he know?!” Having unrealistic expectations with your staff, boss, or coworkers can easily place you in the center of such a conflict.

If you’re experiencing push-back about your expectations, try a new approach. Learn more about what’s involved in a process so you can break down the steps and then discuss the specific points that are causing the disagreements rather than getting into a back-and-forth about the entire project. If you’re not comfortable starting from ground zero, let others tell you what is possible and negotiate from there.

If you feel a coworker or boss is asking you to do too much with too little, spend time planning (and practicing) how you’ll communicate your concerns without sounding like you’re whining or trying to get out of doing work. Providing solutions that include prioritizing are always a good thing. If you’re suggesting something should go to the compost pile, talk about both the downside and the upside for letting it go so you present yourself as seeing the big picture—not just advocating for your side. And, of course, if there’s a better, smarter way to accomplish a task, be sure to share your ideas as neutral as possible.

There’s an old saying in business that says you can have things fast, good, and affordable. Problem is, the best you can usually do is two out of three so decide which two are most important to you and go forward from there. Fast and affordable may not be good; and fast and good will probably cost you more than you’d like to pay. Expecting all three each and every time may be, well, unrealistic.

The sensible use of experts is often an issue that arises in mediation. It begins with the mediator: is the mediator an expert? What is the mediator an expert in?

It then may continue to outside experts, when parties may feel the need to consult a financial, legal or mental health expert. Very often, when such experts are called in, the question arises as to what their actual expertise is in and how to tease out the parts that are the valid areas of their expertise from the parts that are educated guesses based on their experience, and lastly and most importantly: the parts that are simply their own personal opinions.

In my view, the sensible use of experts is to ask oneself a series of questions:

1 — Why do I need an expert?
2 — What specific information am I lacking that they can provide?
3 — Do I want them to convey that specific information to me so that I can weigh it myself or do I want them to make a recommendation based upon that specific information? If the latter, do I want them to tell me at each step of the way what the information is, how they are weighing it, and what their conclusions are? Do I want them to explain where they are getting the information and how reliable it is? Do I want to assess myself how reliable it is?
4 — Is the particular expert I chose able to follow my instructions and meet my needs in question 3 above? If not, how can I find an expert who will do so?

The bottom line is that an expert is not someone you throw your entire problem to and just wait for a result to pop out. An expert, when consulted appropriately, can be an extremely helpful aid to a problem. However, an expert, when consulted without care, can give you the false confidence to make exactly the wrong choice.

Judges and court-appointed mediators have an interesting relationship. ”Interesting” can be defined as big brother, incestuous, or a match made in heaven.

In an ideal world, a judge reviews the cases on her daily docket, and suggests/refers/mandates appropriate cases to her court-appointed mediator. In this ideal world, many of the cases would calmly settle. Some cases would return to the courtroom, without a settlement, but with a better understanding of the other party and the options available.

That’s the ideal world. And then there’s Kate Reed’s world.

In Kate’s world, the judge hands her a case. The judge threatens her to settle the case. The judge also tells her how he would like the settlement to play out. And in the middle of a case, the judge checks-in with the mediator, calmly pilfering sensitive and confidential information.

In the California Supreme Court, there is currently a bill in play that will change the confidentiality of information discovered in mediation. While it is hoped that everyone is on the same page for protecting a mediator and a client’s confidentiality, it is still worthwhile to check our assumptions and our goals.

I welcome further discussion on this topic–especially from those involved in drafting and reviewing the bill. It seems to me that our goal is somewhere between Kate’s world of a big brother judge and stark silence from the bench. I believe our goal for confidentiality is to:

1) enable the mediator to have sufficient information before the case to have enough facts to help the clients

2) allow the clients freedom to explore options during the mediation without being afraid that the brainstorming will haunt them during trial

3) allow the mediator protection from judicial pressuring

4) allow the mediator protection from testifying against herself or her clients.

What other confidentiality exceptions or privileges do we expect? And in designing our own ideal world, what do we hope for?

Today, you are in for a real treat. Jane Henderson, Q.C., our perennially popular blogger and member of our distance mediation team, is back with another of her signature frank, but light-hearted, posts. I hope you are settled into a comfortable chair because this is one you’ll want to read to the end!

* * *

So, you have finally got a settlement and a parenting plan that you can live with. It was a long and difficult battle but it is over and time to move forward. Your Family Law Professionals have suggested that since you and your Ex are unable to communicate in person without it degenerating into a shouting match, and you can’t talk on the phone without someone slamming the receiver down, you should limit your communication to email. Or perhaps you live in different communities and have settled using distance mediation, so email is the best method of communicating.

Email seems like a perfect solution. It is written — so no shouting. It is a record — so everyone should be respectful. Writing gives one time to think about what one wants to say — so no emotional outbursts. It is right there in black and white — so no misunderstandings.

Well, maybe. If, like most of us, you have ever been on the receiving end of an email which you thought was aggressive, or have been surprised that an email which you sent offended the recipient in some way, or was completely misunderstood, then you will appreciate that communicating by email in a positive way is as much a skill as any other kind of productive communication. You likely also know that, if you and the recipient have a history of misunderstandings and antagonism, bad emails can make a bad situation even worse.

The good news is that it is not difficult to communicate productively with email if you follow a few simple rules. Even better, improved communication will likely improve your relationship. These are my Top 10 Rules for doing that:

1. Be clear in your own mind about what you want to accomplish before you send the email (e.g., You would like him/her to keep the kids an extra day …..).
2. Be direct but polite; don’t try to be tricky.
3. Start with a salutation. It doesn’t have to be formal: “Hi” and your Ex’s name is fine.
4. End with a closing: “Thanks for considering this” and your name.
5. Don’t use capitals except for proper nouns and the first letter of the first word in a sentence. CAPITALIZED WORDS IN EMAILS ARE EASILY INTERPRETED AS SHOUTING.
6. Similarly, don’t use multiple exclamation points!!!!! (unless you are conveying something the recipient will think is good news too) or question marks????? Both come across as being aggressive.
7. Stick to the necessary facts and your real question. Don’t use email to deliver a lecture, commentary, advice or instruction — unless the instruction has been specifically requested.
8. If a request is made of you in an email and you are saying “No”, you don’t have to give excuses, lengthy reasons, or say why you think the request is out of line. It is enough to say “I am sorry but I can’t help you out this time” — always accompanied by a salutation and civil closing.
9. If a time limit for the response is needed, put it in your email, but don’t ask or expect that it be immediate. Give at least 24 hours; the longer the time you can give, the better. (And don’t follow up with capitalized exclamatory requests for a response. You know s/he is going to get great satisfaction in hitting the “Delete” button.)
10. Don’t send or reply to emails in haste, unless it is a legitimate emergency — that is, someone’s health or life is in immediate danger. Take as much time as possible before you hit the “Send” button. If there is the remotest possibility that you have not said what you want to say in a civil and respectful tone, send it to yourself first. Look at it the next day and make sure it says exactly what you want in a civil and respectful way.
    Here are some examples of what I am talking about:

Let’s say you would like your Ex to take the kids this weekend because you have plans that don’t include them.

You could send this email:

Since you are always nagging me to be flexible, I am willing to trade my weekend with the kids this week for your weekend next week. But don’t drag this out. I need to know now.

Followed up a couple of hours later by:

So do you want the kids or not??????

The reply might come back as:

Of course I want the kids. I ALWAYS want the kids. They come FIRST in my life, not like in some people’s. But I have a life too and I am not your babysitter. You are supposed to be responsible for them this weekend and, besides, we have plans for next weekend. So I guess you will just have to put them first and be a responsible parent for a change.

You may now feel entitled to respond:

Well FINE!!! Just don’t expect me to be flexible when you want to make a change!!!

And so, the toxic cycle continues. Neither of you is going to feel very good about it and neither of you got what you want. Your Ex would have been happy to have the kids but didn’t want to swap weekends, so ended up without them. You are either going to have to pay a babysitter or miss your event because you asked to swap weekends instead of asking for what you really wanted, which was to have the kids go to the Ex. The tone of the emails makes any sort of discussion about options or alternatives pretty difficult.

On the other hand, you might try sending this email:

Hi Robin: Something has come up this weekend and I am wondering if there is any chance you could take the kids? I would like to swap weekends, but if that doesn’t work for you, it would still be a big help to me if you could take them this weekend. I would be glad to do the same for you another time. Could you please let me know by Wednesday? If I don’t hear from you by Wednesday, I will assume that doesn’t work for you and make other plans. Thanks, Tony

Then Robin is more likely to respond:

Hi Tony: I am happy to have the kids this weekend, though sorry that the swap won’t work for me. I expect I will need to ask you to take one of my weekends later this fall. Let me know when you will drop them off. Cheers, Robin

Or Robin’s response might be:

Hi Tony: Sorry I can’t help you out this weekend, but would be happy to do it another time. Cheers, Robin

The point is that what Tony really wanted was for Robin to take the kids this weekend. If they could do a swap, that would be a bonus. By asking in a direct, yet respectful, way Robin is more likely to agree; even if s/he doesn’t, the door is left open for it to happen another time. Neither person needs to feel that they have “lost” anything, and neither is left feeling angry or attacked. More importantly, they have had a civil, respectful exchange — the first step to a civil, respectful relationship.

In some cases, a respectful request will still result in an aggressive or hostile response. Even if this happens, don’t succumb to the temptation to reply in the same way. One of you may have to be the first to break the toxic cycle, so let it be you. It is hard to maintain hostility if it is not reciprocated.

The moral of this story is:

Don’t underestimate the power of email communication, for bad and for good. Use it wisely and you will improve communication and your relationship.

Folks, here’s an article in the current TimeOut New York about roommate conflicts, with tips by yours truly and my colleague Sheila Sproule, Prez of the Association for Conflict Resolution of Greater New York.

Dealing with roommates: How to resolve three common space-sharing problems.

1. Lack of respect for common areas. Whether you live with a Craigslist-sourced stranger who blares thrash metal in the living room at 2am or a high-school pal who’s suddenly stopped doing the dishes, you’ve got a grade-A roommate beef. To avoid noise issues, Sheila Sproule, president of the Association for Conflict Resolution—Greater New York Chapter (acrgny.org), recommends discussing ground rules ahead of time—ideally over drinks to keep things casual. Conflict-resolution expert Brad Heckman, who runs the New York Peace Institute (nypeace.org), adds: “Just be clear about what works for you, and ask about their preferences.”

2. Neglecting to pay rent or utilities. Both Sproule and Heckman emphasize that conversation is key. Sproule offers a few pointers, depending on whose name is on the official documents: If it’s both of you, you’re collectively liable for the missing funds, so remind the other person that the landlord could sue the two of you. If your roommate is flying solo, but you’re nervous about the repercussions, a calmly conveyed reminder might be all that’s necessary. If it’s just you, then you’re in a bind. Sproule reiterates that a direct conversation should be the first step—“maybe they’re not getting paid regularly at work, or they’re in a temporary tough spot”—but if it’s a reoccurring problem, you may need to involve your landlord. Lest things get ugly, Heckman chimes in with a couple of strategies to diffuse the situation: “Listen without interrupting, even if what you’re hearing is absolute baloney. Repeat what the person has just said, so he or she knows you’ve understood their point of view. And go easy on the venting.”

3. Playing the passive-aggressive card. This sort of under-the-radar hostility is funny only when it shows up on Post-it notes via Tumblr. In real life, it can lead to a lot of unnecessary angst. Heckman’s tip: “Give specific, constructive commentary on how you see the situation, and pay attention to your body language, so that you’re not unintentionally sending signals that you’re closed off to his or her grievances.” Sproule adds, “Be direct and cite specific examples of behavior.” The more explicit you are, the less wiggle room you leave for the other person to dodge the issue.

PS If our sage advice doesn’t pan out — try mediation. New York Peace Institute, and our mediator friends nationwide, loves getting in the middle of roommie beefs.

It is often said that listening is one of a mediator’s core skills. At the same time the parties’ ability to listen to each other is equally important. Where parties’ communication has broken down to such an extent that they are unable to really hear what each other is saying, mediators can step in and assist them to listen more effectively.

How can they do this? Consider the following conflict that eventually made its way to mediation:

Dr Tooth asks his dental assistant Ms Smile to whether the appointments for the next day have been confirmed. She glares at him, picks up her handbag and walks out of the practice. Dr Tooth calls after her, ‘Well if that is your attitude to work, then don’t bother coming back.’ Not long after this episode, Dr Tooth receives a letter from a lawyer acting on behalf of Ms Smile seeking compensation for unfair dismissal. Dr Tooth calls his lawyer who suggests that the parties attend mediation.

During the mediation, the parties recount their different experiences of the event that led to Ms Smile walking out of the dental practice. Their mediator encourages them to talk through their respective experiences of that interaction with a view to identifying the different meanings embedded in their communication.

Four messages in every meaning
On one level, Dr Tooth was providing Ms Smile with information that the patient appointments scheduled for the following day required confirmation. However, Ms Smile seemed to be responding to Dr Tooth’s message at another level. The message to which she was reacting was something along the lines of: ‘You are lazy, disorganised and incompetent.’ But that is not what Dr Tooth said. Or is it?

German psychologist Friedemann Schulz von Thun has spent much of his life delving into the intricacies of interpersonal communication and helping people master the art of communicating with one another. In the course of his work, he has found that messages contain four different meanings. Let’s look at what these meanings might be from Dr Tooth’s perspective (knowing that Ms Smile may legitimately offer a different view that requires exploration at the mediation table).

Factual meaning. One of the four meanings contains factual data such as Dr Tooth’s information that the patient appointments need to be checked. The factual message is usually gleaned from the words of the person sending the message.
Self-disclosure meaning. Another meaning contains information about the person sending it — what is important to them or what they might be experiencing or feeling. For example, Dr Tooth could be communicating that he is anxious about the number of no-shows in the practice recently. Self-disclosure information can be revealed by non-verbal aspects of communication such as the tone of the sender’s voice (vocal), body language and eye contact (visual). It can be gleaned not only from what is said, but also from what is not said—the little things that we choose to include (or not include) in our message.
Relationship meaning. Yet another meaning communicates how the sender of the message — here Dr Tooth — feels about the receiver — in this case Ms Smile — and views the nature of the relationship between them. Here, for example, Dr Tooth may doubt Ms Smile’s commitment to the job and experience ambivalence in her attitude towards him as her supervisor. Receivers can be particularly sensitive to this aspect of the message and react strongly to it. Here Ms Smile is reacting to the relationship aspect of the message as she interprets it: namely, that Dr Tooth is unhappy with her work and that he thinks she is disorganised and perhaps even lazy. Relationship meanings are often sent through subliminal vocal and visual communication channels.
Request. Messages also contain a request (either explicit or implicit) to do, or desist from doing, to think or to feel something. This is the final and fourth meaning in a message. For example, Dr Tooth’s implicit request might be, ‘I would like you to organise your day so that you can confirm patient appointments as a matter of course and without me reminding you.’

What this means is that every time each one of us communicates, we are sending out many messages, some consciously and others subconsciously, some explicitly and some implicitly. Not only that, the person we are communicating with may pick up a different meaning than we intend to send, but one that is just as real. Dr Tooth may have intended to send the factual message indicated above; however Ms Smile may have heard something quite different.

So how can we as mediators help parties deal with their crossed messages?

Tips for mediators
The following points may be helpful for mediators wanting to make use of the ‘4-meanings-in-a-message’ model.
• It is essential first to get a sense of the parties’ behavioural tendencies. Notice the parties’ communication patterns from the first moment you engage with them.
• Become aware of the meanings in messages that each party tends to hear first. Do they have a strong relationship ear, picking up on what the message seems to indicate about them, or what the other person thinks about them? Alternatively they might focus on what they think the message says about the other person, for example, that Dr Tooth seems anxious about the practice. Then again, they might have a strong factual ear, tuning into the information and data with a tendency to miss the rest? Or does their request ear dominate, so that they feel overwhelmed with the burden of being expected to fulfill endless requests?
• Assist parties to become aware of the communication messages they might be missing. Make use of reframing techniques to identify different meanings in parties’ messages; ask parties to summarise and reframe themselves; encourage parties to engage directly with each other to explore the different meanings in their respective messages.

Once parties begin to make this shift and recognise different meanings in a message, it becomes easier for them to negotiate directly with each other and begin to move forward towards resolution.

When given two contradictory statements, people can respond in four different ways. They can deny the contradiction, discount the information that is contradictory, compare the information and decide which is right and which is wrong, or retain the basic elements of truth in both perspectives and tolerate the contradiction.

The acceptance of contradiction is known as dialectical thinking.

Studies have shown that fundamental differences exist between people from Western and Chinese cultures in dealing with contradiction. Chinese share a tendency to approach contradiction with tolerance; by finding a “middle way” by which truth can be found in each of two competing propositions. In contrast, European-Americans favor differentiation strategies that polarize contradictory perspectives in an effort to decide which side is correct and which is incorrect. Both ways of thinking can be traced back to the basic intellectual frameworks rooted in Eastern Confucianism versus Western Aristotelian logic.

Although both forms of reasoning have their merits, these cultural differences have been shown to have profound effects on conflict management. One study showed that American participants’ resolutions of conflicts were non-compromising, blaming one side for the causes of the problems, demanding changes from one side to attain a solution, and offering no compromise in dealing with interpersonal conflicts. In contrast, Chinese respondents were much more dialectical, usually attributing blame to both sides and preferring a compromise approach to resolve the contradictions. Ultimately, dialectical reasoning may be preferable for negotiating adaptively in complex social interactions, and identifying the conditions that foster this in the negotiation context is key.

Peng, K., & Nisbett, R. E. (1999). Culture, dialectics, and reasoning about contradiction. American Psychologist, 54, 741-754.

Lily Ng is a Master’s student in Social-Organizational Psychology at Teachers College, Columbia University.

We all have conflict in our lives, some disputes are more explosive and destructive than others. Maybe it is a long-term conflict with your neighbor over the property line, or a parenting plan has gone awry between you and your ex-spouse, or your business partners don't like how the business is run or being run down. In each of these potential scenarios, parties are stuck in a cycle of destruction and contribute to the escalation of the dispute. YOU need help. You have heard about mediation and think it might be worth getting help before things get completely out of control. What now? Where do you find a mediator? You don't want to have to go to court or file a lawsuit. What do you need to know to hire a mediator? How does this work? How much does it cost?

Join Pattie Porter and Zena Zumeta discuss how mediation can be a valuable process in handling your conflict situation privately, confidentially, out of the court system, and give all parties a chance to speak and be heard. More importantly, it supports the parties making their own decisions on how to solve the problem and move forward.

To find a mediator check out resources such a:
Association for Conflict Resolution Advanced Practitioner Directory
Texas Mediator Credentialing Association (TMCA)
Mediate.com Directory

Listen here:

This is a guest post by financial advisor Stacey Gordon, Managing Principal of The Gordon Group, a financial and HR consulting firm. Stacey is the former President of the National Association of Women MBAs.

I’m constantly asked the question, “why do women need to exclude men from their networks?”

My answer is simple. We need is a place where we can nurture relationships in a way that feels comfortable, a venue where we make the rules, and a private space that empowers us.

I dislike buzz words like “empowered” but when the shoe fits . . .

In this case, it’s psychological. When we’re not being judged by our actions, our speech, our tone of voice or our discussion of families and babies in business setting, we are able to put those perceived (and in many cases, actual) condemnations aside and get down to business.

It’s that simple.

We are judged all the time and we’d like to occasionally be in a place where we are judged less. Or at least judged on criteria that pertains to our jobs rather than to our gender.

The same is true for race or ethnic based organizations.

Unless he’s attended an all-woman’s conference, most white men have never walked into a room and questioned whether he should be there. White men have a sense of entitlement. They’re given the benefit of the doubt and the fact that they are leadership material is unquestioned.

The same cannot be said for female, Black, Hispanic, or Asians.

Ask any of them.

Continue at Forbes Woman

After reading books such as Psychology's Ghosts: The Crisis in the Profession and the Way Back, I am even more likely to see most research studies as, at best, clues, and clues only only in the material world. That's how I view this study written about below, but I post the news release here because I can never be reminded too often that we are each different; this study is another reminder that one size does not fit all.

News release from Society for Neuroscience:

DIFFERENCES IN DOPAMINE MAY DETERMINE HOW HARD PEOPLE WORK

Washington, DC — Whether someone is a “go-getter” or a “slacker” may depend on individual differences in the brain chemical dopamine, according to new research in the May 2 issue of The Journal of Neuroscience. The findings suggest that dopamine affects cost-benefit analyses.

The study found that people who chose to put in more effort — even in the face of long odds — showed greater dopamine response in the striatum and ventromedial prefrontal cortex, areas of the brain important in reward and motivation. In contrast, those who were least likely to expend effort showed increased dopamine response in the insula, a brain region involved in perception, social behavior, and self-awareness.

Researchers led by Michael Treadway, a graduate student working with David Zald, PhD, at Vanderbilt University, asked participants to rapidly press a button in order to earn varying amounts of money. Participants got to decide how hard they were willing to work depending on the odds of a

Continue reading "Dopamine related to motivation?" »

On February 23, 2012, Assembly Bill 2025 (ab_2025_bill_20120223_introduced) was introduced in the California legislature. The intent of the bill was to abolish mediation confidentiality with respect to “… communications between a client and his or her attorney during mediation, in an action for legal malpractice or breach of fiduciary duty or both and in a State Bar disciplinary action, if the attorney’s professional negligence or misconduct forms the basis of the client’s allegations against the attorney.

There was much opposition to this bill from various groups and individuals. As a consequence, the state assembly judiciary committee’s hearing on it was postponed, and earlier this week, the bill was withdrawn altogether. As a result, for the present, communications between an attorney and his/her client during a mediation remain covered by mediation confidentiality and cannot be introduced in a later malpractice or discipline action to show that the attorney fell below the requisite standard of care or breached his/her duty to a client in some way.

While the withdrawal of this bill may seem like a victory to some and a defeat to others, in reality, it may be neither. The bill was withdrawn so that the issue could be referred to the California Law Revision Commission for further study. One of the quandaries is how to reconcile the aim of this bill- to allow the admission of evidence of malpractice or professional misconduct occurring during a mediation into a subsequent trial or hearing – with the waiver of the attorney-client privilege in actions for breach under California Evidence Code Section 958.

According to the proponents of AB 2025, a real issue exists regarding attorneys breaching their duties during mediation and escaping the consequences under the protection of mediation confidentiality. The proponents believe such breaches of duty occur during mediation more frequently than we would like to think or admit and so there must be a mechanism to address and remedy them. As this topic is a thorny issue, the California Law Revision Commission will now take it up. But, by doing so, the Commission may not necessarily have the very narrow focus of AB 2025; it may broaden its horizons by looking at all of the confidentiality statutes (and not just the one prohibiting the admissibility of evidence of what occurred during mediation) and create an exception much broader than AB 2025. By the time the Commission finishes, there may be exceptions to confidentiality far more reaching than simply for breaches of duty during mediation. In sum, some believe that this turn of events, in reality, is opening Pandora’s box.

The work of the Commission will probably take quite some time; a year or two.

So stayed tuned… this tale is not over yet.

. . .Just something to think about!

I was recently asked by my Harvard Law School class to summarize what we know (from actual experience) about environmental dispute resolution. I offered the following list. I'm eager to hear reactions from other scholars and practitioners. What have I left out? What have I mis-stated?

1 Environmental dispute resolution (EDR) can be used “upstream” during policy-making and planning as well as “downstream,” once disputes have crystallized over administrative decisions (e.g. permitting, licensing, funding, etc.), or even after disputes have entered adjudication.

2. EDR only works if the parties are motivated to come to the negotiating table. It is fine if they have very different motivations (e.g. no good BATNA, an opportunity to create value, a desire to improve or repair relationships, pressure from coalition partners, etc.).

3. EDR needs a process manager; ideally, a professional mediator or facilitator (but not always). This person must be acceptable to all the parties being invited to come to the table.

4. The parties in EDR must have a chance to participate in or at least approve the agenda, ground rules, selection of parties, timetable and other elements of process design before EDR begins.

5. It is perfectly reasonable, even necessary, for a facilitator or mediator to get involved in a variety of away-from-the-table activities on behalf of the group. These can include making sure that all parties are prepared properly. The mediator might also work with the parties to help them remain in touch with their actual or putative constituents throughout the EDR process.

6. EDR works best when there are opportunities for Joint Fact Finding and they are managed by a facilitator or mediator.

JFF should be highly interactive, involving all the stakeholder representatives in specifying the questions that need to be answered, selecting the experts of various kinds who will be called on to help, and making decisions about which analytical methods should be used.

7. EDR should always emphasize value-creating opportunities (and not just zero-sum choices).

8. EDR can never substitute for statutorily-mandated decision-making by public officials or agency staff. It can, however, supplement whatever formal decision-making is required by law.

9. EDR will, of necessity, take different forms in different constitutional contexts around the world.

10 EDR can rarely, if ever be precedent setting. It needs to be fitted to the unique contextual details of each dispute/conflict/decision-making process. The outcomes of EDR efforts are rarely recorded in the way court decisions are. They are not likely, therefore, to be accompanied by a legal rationale that justifies whatever agreement is reached.

11 EDR can include opportunities for confidential give-and-take among the participants even though open meeting laws, sunshine laws and other transparency requirements must be met. Transparency is the mediator’s responsibility along with an obligation to maintain promises of confidentiality. These can be balanced by allowing the mediator to carry messages between the parties and through work that is done in caucuses.

12 There are substantial advantages to creating EDR “systems” rather than treating each EDR opportunity anew. This often requires that dispute handling systems be enabled by statute or regulation.

13 The costs of EDR need not be shared equally by the parties. Each party can contribute what it can without compromising the non-partisan or neutral stand of the mediator. Funds to support an EDR effort (regardless of who provides them) should only be allocated with the support of all the participants (perhaps through the involvement of an elected executive committee of stakeholders).

14 It is possible to evaluate and improve EDR efforts. It is unlikely, however, that consistent quantitative measures of benefits and costs will be central to such assessments. Rather, in-depth case-by-case analyses – before, during and after each effort – undertaken by independent evaluators are required. These tend to focus on the satisfaction of the parties relative to their pre-defined BATNAs along with their sense of how the process "worked" given the alternative ways of handling the situation that were available.

15 Parties involved in EDR should be consult legal counsel. Court-connected EDR will undoubtedly involve parties and their lawyers throughout. The presence of lawyers in EDR, however, should not be allowed to create barriers to informal (problem-solving) dialogue among the parties themselves. Professional neutrals need not be attorneys.