Expect the Unexpected (2/06/12)
Phyllis Pollack

One of the more memorable movie lines is from Forrest Gump (1994) when Gump comments “My momma always said, “Life was like a box of chocolates. You never know what you’re gonna to get.” ”

Mediations are like that, too; as a mediator, I never know what to expect. I say this because I had two mediations recently that turned out far differently than I expected. Both involved automobiles. In the first, the plaintiff – I will call her Jane Doe –purchased a used vehicle from a dealership – I will call it ABC Dealership – which sold both new and used cars. Ms. Doe had a continuous problem with steering – it was quite difficult to turn the steering wheel and when she did so, it whined. She took it back to the dealership seven (7) times for repair. . . and it was still not fixed. Believing that enough is enough, she sued. Under the particular statute involved, she was entitled to diminished value i.e. the difference in the value of the vehicle as represented (i.e. without the steering wheel problem) and the vehicle as it was in actuality (i.e. with the steering wheel problem). This sum probably amounted to a few thousand dollars. But, at the mediation, the owner of the dealership proposed an “out of the box” solution to take her car in a generous trade-in, for a new vehicle (that has a generous manufacturer’s warranty) at a reduced price, giving plaintiff incentives and the best financing obtainable in light of Ms. Doe’s credit. While no doubt, ABC Dealership will probably make some money on this deal (i.e. What’s In It For Me!), it will probably cost the dealership more than the few thousand in cash representing the diminution in value. It will also engender goodwill as it is far more than what the statute requires. Clearly, the owner of ABC Dealership was looking for a way to resolve this matter to plaintiff’s satisfaction – one that would not leave a bad taste in Ms. Doe’s mouth.

In contrast was my other mediation – again involving an automobile. The plaintiff – whom I will call Sally Roe – leased a vehicle for three years. During that period, she brought it to the dealership for different things; one or two of her complaints were at issue twice. At the end of the lease, she decided to purchase the vehicle. Soon thereafter, she brought the vehicle into the dealership once more to have other issues resolved. At this point, the vehicle was outside of the manufacturer’s warranty and so Ms. Roe did not bring it to the dealership anymore. Approximately 18 months after she purchased the vehicle at the end of the lease, she sued the manufacturer claiming the car to be a “lemon”, alleging defects that were complained of to the dealer once or perhaps twice, years ago.

Part of my job as a mediator is to provide doses of reality and to manage expectations. So, I discussed the jury instructions that would be used at trial and the fact that a jury may question her credibility and/or motivation since she voluntarily purchased the vehicle at the end of the lease. (i.e. If the vehicle was so bad, why didn’t she simply walk away from it at the end of the lease?)

My doses fell on deaf ears. Evidently, her attorney had counseled her that this was a good case to take to trial, and if the manufacturer was not willing to repurchase the vehicle, then the matter should be left for a judge and jury to decide. Thus, when I proposed the manufacturer’s cash offer to Ms. Roe, her response was simply that it was time to go to trial, and the mediation was over. She would not counter or negotiate for anything less than a repurchase.

Two strange mediations, neither ending the way my training and experience would have led me to believe.

The teachable moment is so obvious that it sometimes escapes me: Mediation is “like a box of chocolates, you never know what you’re gonna get.” Or, be flexible and ready to go with the flow!

. . .Just something to think about.

PGP Mediation Blog by Phyllis G. Pollack

Lady Gaga on Trust (2/06/12)
Aik Kramer
Lady Gaga: “Trust is like a mirror, you can fix it if it’s broken, but you can still see the crack in that mother f#ck*r’s reflection.” Whether you’re a superstar dealing with a large group of fans or whether you’re a ‘regular’ person in a relationship, trust impacts us all. Trust is the lifeblood of relationships. Without it, friendships would simply have no point, romance would wither away and die… Trust even gives us stability and satisfaction at work. But what is trust exactly? Is it a feeling? A perspective? Can we actually ‘manage’ it?

In an interview, Lady Gaga was asked how she manages trust in a world where people try to exploit her fame. Lady Gaga responded, “You can’t live in fear, but it’s important to be protective of the things that are important to you no matter what.” We all need to trust and be trusted, it’s not just something that Lady Gaga needs to worry about: “I don’t think trust is any different for me that it is for anybody else.”

Trust in Ourselves, Relationships and Organizations

Trust is based on our psychosocial development, the interactions we have with others and in organizations. At the level of ourselves, trust is “…a belief, expectancy, or feeling deeply rooted in the personality.” This means that the way we were raised or treated as children impacts how we trust today.

Beyond ourselves, trust is within relationships. It is defined as the expectatations we have of others, the risks involved when depending on them and the situations that affect our relationships together. When Lady Gaga was talking about her level of trust, she was referring to this level. She revealed her expectations of others with whom she interacted.

Trust is also based within and between organizations through the expectations we hold about our future interactions. Say you’ve been treated poorly at a store, you may no longer trust that company or brand because you would expect the same treatment in the future.

Lady Gaga shows us how trust works at a basic or impersonal level. For relationships that are more intimate, a different theory of trust is more fitting.

“Calculus Based Trust” is a theory of measuring trust based on a calculation of the threats or risks involved if trust is violated or the rewards gained if its maintained. In the interview, Lady Gaga made a statement to increase the threat of punishment to people that may violate her trust:

“I’m from New York city, I’ve fought from the bottom all the way to the top and I’m a pretty ‘no-shit’ bitch when it comes to that sort of stuff and it’s really hard to pull the wool over my eyes.”

Short term gain or long term relationship

This type of trust is also encouraged by the gains involved when trusting others and being trustworthy, including a repulation as a trustworthy person. Lady Gaga could have emphasized the rewards if these particular people maintained her trust as a means to motivate them.

A useful metaphor to describe how this type of trust works is the game snakes and ladders (shoots and ladders). Like the game, “forward progress is made by climbing the ladder, or building trust, slowly and stepwise. People prove through simple actions that they are trustworthy, and similarly, by systematically testing the other’s trust. In contrast, a single event of inconsistency or unreliability may “chute” the relationship back several steps-or the worst case, back to square one.”

Even for someone that wants to violate Lady Gaga’s trust to gain a short-term reward, they may risk loosing their trustworthy reputation. Based on a calculation, “If the costs of depending on someone’s behavior outweigh the benefits, we are typically inclined to either change or terminate the relationship.” With this in mind, Lady Gaga may have no choice but to be a “no-shit bitch” and leave those people behind to protect herself from the costs of trusting them.

Lady Gaga on Trust:
Generation Why by Aik Kramer

Mediation and Negotiation by Skype (2/06/12)
Karin S. Hobbs

Should you mediate by Skype? Perhaps. There are benefits and warnings.

When a recent case was scheduled and one client would not be present in person, an attorney called me to discuss the client’s participation by telephone. After a short discussion, we decided to have the client (let’s call her Meg) participate via Skype.

Neither attorney had experience with Skype. Both clients were experienced Skype users. After some initial reluctance, all agreed to Meg’s Skype presence for mediation. Still on the day of mediation, concerns surfaced.

We started early. As a frequent user of Skype, I was comfortable. I conducted telephone mediation as an appellate mediator for several years. Thus, I was conscious of the differences the telephone could add and subtract. With telephone mediation, you have to shift your focus. Listening to tone of voice is exceptionally important. Deep sighs and tempo are important as are pace and pauses. My first course on mediation in 1997 was from Judy Mares-Dixon and Bernard Mayer at CDR Associates in Boulder, Colorado. Judy was blind and demonstrated that when you cannot see, your focus alters and you pay attention to other details. Judy encouraged us to try to heighten the use of all of our senses.

And, as we know, watching body language is also important. It accounts for 50-65% of our communication. While negotiating in-person, noticing body language happens out of the corner of your eye if you are trained. With Skype, you must focus more on the images on the computer, intentionally noticing the clues. Turning the computer so that the client can see body language of counsel and/or the mediator is also key. One benefit of a computer is that unhelpful body language, exasperated sighs, and/or difficult conversations can be edited by simply turning the screen. For example, if an attorney has a difficult message to convey, he can gather is thoughts, take a deep breath and relay the response in a more controlled manner.

My role as the mediator was tuned into new ways of helping lawyer and client through their negotiation process. And, Skype was helpful for their difficult negotiation. They were not trapped in the same room. They could take brief breaks, eat a snack or read their mail during the breaks.

There were other benefits as well. Meg was more relaxed. Due to the issues in the case, she did not want to be physically present. Whether or not her fears were justified, Skype alleviated her concerns. As the mediator, I also thought about my tone of voice, the occasional problem of voices that break due to connectivity problems, and the ways those problems may be more difficult to control.

I also had an interesting experience when Meg muted us as she conferred with a support person. As we watched her body language, it was clear from her crossed arms and angry expression, she was becoming frustrated or angry. Perhaps she thought since we couldn’t hear, we would not know. Out of courtesy and deference to her desire for privacy, and knowing that she may not understand what I could see, I felt it was most appropriate to end the call and send her a chat message. My message stated, “We decided to hang up for now. Give us a call when you are ready.”

As the case was nearing settlement, I sent the proposed settlement to Meg in a file on Skype. She was able to print the document, ask questions, sign the final version, scan it and send the signed agreement back. We did run into technical problems on several occasions. I would mediate via Skype again, but I recommend it only with a trained professional mediator who can work with the subtle communications differences and with a mediator who has technical Skype experience.

Mediation Bytes by Karin Hobbs

Seven Tips for Setting Boundaries and Consequences with Teens (2/06/12)
Lorraine Segal

One huge source of conflict and stress for parents of teens is figuring out how to set appropriate guidelines and consequences and then follow through successfully. Here are some tips and suggestions based on communication and conflict resolution principles:

1. Set clear guidelines and expectations

Get clear about your own needs and concerns for your teens. Then talk to your teens, listening thoroughly to their concerns and needs, as well as sharing your own.

See if it is possible to negotiate an agreement that works for you both. Parents’ assessments have more weight because teens’ ability to understand risk, reason logically and make good decision is limited by their incomplete brain development, according to neuroscientists. But, any agreement works better if there is “buy in” by all parties. Writing this up as a contract can be helpful too.

2. Then, follow the guidelines with kindness and flexibility as well as firmness.

It is essential to be clear about the boundaries and consequences and follow them consistently. If you set consequences and don’t follow through, teens won’t take any agreements seriously. If you yell and then back down when they complain or whine, they will learn that complaining and whining work.

Be firm but supportive when holding them accountable. Scolding and judgment weakens rather than strengthens the positive impact of consequences and can lead teens to rebel or not feel loved and accepted.

3. Be the grown-up

Be their parent. You can’t be their b.f.f. (best friend forever) and set limits and consequences at the same time. Even when they don’t act like it, teens need their parents to be the responsible adults, not friends first.

4. Hold to the spirit, not the letter of agreements.

While firmness is important, so is flexibility for extenuating circumstances. If your teen made every effort to get home on time but the car got a flat tire, that is very different from lack of time management or deliberate flouting of limits. If you insist on extreme consequences when it truly wasn’t their fault or responsibility, it can lead to resentment and a lack of respect.

5. Show them you love them no matter what.

It is devastating to feel that your family will withhold love or stop loving you when you make a mistake. As mediators say, “be tough on the problem, but gentle with the person.” You can be furious at what they did, but still make it clear you love them always and completely.

 

6. Look at your own triggers and issues

Many of us come to adulthood with unresolved issues or emotional wounds from the past, sometimes from our own teen years, that may need healing before we can approach parenting with clarity and calm.

For example, parents may find words of their own tyrannical parent flying out their mouths, even though they hated that behavior at the time. Or they may overreact to their own teen frustrations by not setting limits, but then be furious when the teen crosses an unspoken line they were unaware of.

7. Get help and support.

Raising a teenager is one of the most challenging, difficult, and important jobs there is. No one does it perfectly, and every parent needs and deserves an extensive toolkit and lots of help and support.

Communication classes or coaching can offer support, perspective, and skill building. Therapists and counselors can offer help with healing the past. Mediators can offer a calm safe space to have productive conversations between parents and teens when the topic is difficult.

Conflict Remedy Blog by Lorraine Segal

When to Negotiate (2/06/12)
Joe Markowitz

Anyone who has still been following budget negotiations in Congress has no doubt noticed that they have reached another interesting stage. Recall that last summer Congress struck a deal in which Republicans agreed to go along with raising the debt ceiling, in exchange for appointing a super committee to come up with additional debt reduction measures. The deal was that if the super-committee could not agree on such measures, then automatic spending cuts, that were designed to be unpalatable to both sides, would take effect. Well, of course in November the super-committee failed to agree (because Democrats insisted that revenue enhancements be part of the mix, and Republicans refused to consider that), and now Congress is faced with the prospect of automatic spending cuts (a process called sequestration) that neither side especially likes. Republican leaders now suggests we can avoid the automatic cuts to the Defense Department by instituting additional pay freezes and reductions for federal employees. Democrats charge that Republicans are reneging on the deal they made last summer.

So here's a question for mediators and negotiators. Should the administration and the Congressional Democrats embark on a new series of budget negotiations based on this Republican proposal, or do they hold firm and refuse to negotiate, allowing these unpopular defense cuts to take effect? (I'm not asking which choice represents a better policy; I'm raising a pure question of negotiating strategy. So you just have to assume that if you are advising the Democrats, you are against additional cuts to the federal budget and for raising taxes on the rich, and if you are advising the Republicans, you are against cutting defense, against any kind of tax increase, and for finding additional cuts somewhere else.)

Mediators are prone to advise that seeking a negotiated solution to conflict through a process of interest-based bargaining is always the best course of action. But thinking back to Robert Mnookin's book Bargaining with the Devil, which I discussed in a previous post, a book that suggests that maybe negotiation is not always the solution, we have to consider that in this particular political conflict, this might be a time when both sides decide--and should decide--that it is in their best interests to fight. Mnookin gives some examples from history, such as whether the Allies should have negotiated with the Nazis, or whether Natan Sharansky should have negotiated with the Soviet government, in both cases concluding that it might have been better to fight. He also recounts examples of negotiations in which he was personally involved. For example, Mnookin helped train members and management of the San Francisco Symphony Orchestra in a newer style of interest-based bargaining that made their contract negotiations the smoothest and least acrimonious ever. Interestingly, however, several years after this highly successful negotiation, the parties reverted to a much more traditional style of labor negotiations characterized by threats, demands and a higher level of hostility. Apparently, the union was just much more comfortable treating management as an adversary rather than as a cooperative bargaining partner.

In politics, as is so often the case with labor negotiations, we are dealing with perpetual conflict, and parties whose raison d'etre consists of struggle against a competing ideology or goal. Even though it seems desirable to get those parties to work together for the common good, we have to accept that most of the time, they would rather try to defeat each other. My guess is that in the current budget negotiations, both sides are going to conclude that this is not a good time to work together to try to reach a consensus solution, even though the public might very well prefer some kind of compromise such as sparing some of the defense cuts in exchange for closing some tax loopholes. This time, both Democrats and Republicans would probably rather fight.

What is different in 2012 from 2011? For one thing, of course, it is an election year. That is never considered a good time to make nice with your adversaries, even when the public says they are disgusted with Congress's inability to work together to get things done. For another, the threat of the government running up against the debt ceiling is not hanging over the parties' heads in the same way. And both parties have to answer to their respective bases of supporters that were upset with both parties for the protracted series of negotiations last summer that resulted in a compromise solution that neither side liked very much. Moreover, both sides are dug into positions that would cause them to lose face if they backed down. President Obama has already said he is not going to rescue Congress from this jam. The Republicans in Congress have taken a pledge not to increase taxes. That means the president and the Senate Democrats will probably hold firm this time, insisting that either the defense cuts take effect, or the Republicans go along with some revenue increases. The Republicans can probably be counted on to refuse to agree to anything that sounds like a tax increase.

And then what? Both parties will take their positions to the voters this fall, hoping for increased numbers and a change in the balance of power, but more likely being forced to return to a slightly-reconstituted divided government again. Then maybe next year it will be time to deal.

Mediation's Place by Joe Markowitz

Poor Behavior #3: Pitting People Against Each Other (2/06/12)
Vivian Scott

Continuing the Dirty Dozen list of 12 behaviors that cause conflict at work and then are attributed to the catchall phrase, “personality clashes”, I’m adding:

#3 Pitting People Against Each Other

Building a cohesive work group is nearly impossible when behaviors that divide and conquer take over. If your supervisor has a tendency to pit people against each other in what she thinks is merely a friendly competition for more sales or better customer service, she may not know that she’s tearing her team apart. Dividing coworkers can cause deep divides that are hard to bridge.

Bringing up sensitive issues in a team meeting (like what’s-his-name’s inability to meet deadlines), or ignoring tension, playing favorites, and using sarcasm to make a point are all ways we can stir up issues at work. Those specific behaviors do nothing for creating a productive workplace and when the victims of such actions clue into what’s happening they can sometimes turn on the culprit—creating a scene that doesn’t often end well.

No one likes to feel small in front of their peers; even if you think it’s the push they need to improve. If you’re looking for ways to motivate an individual, start by seeing him as an individual. Private discussions about shortcomings or areas for improvement will help him hear your message while you tailor your comments to his specific situation. Let’s be honest; public displays that result in winners and losers are only fun for the winners!

And, then there’s gossip. It’s the ultimate way to divide people and one of the most common behaviors that even the best of us have participated in. If you do it, it’s time to stop it. If a coworker comes with a juicy bit of information or you notice he’s good at throwing barbs at others when he has an audience, don’t participate. Instead, say something like, “I’m not sure how necessary that was,” or “I think I’ll pass on this conversation.” A good response that works almost every time is, “Oh”; followed by a prolonged period of silence. That sends a clear message that you have no intention of participating in destructive behaviors that divide, rather than unite, the working relationships around you.

Why concern yourself with changing these behaviors? Consider that friends and allies come from all corners of the workplace. The individuals affected today may be the very folks sitting on the hiring panel for your next position or, worse yet, the seemingly innocuous coworker who stealthily thwarts your every move as a way to repay you for the hurt you’ve caused. Plus, there’s power in numbers and a united team is far more powerful than a divided team.

Conflicts of Interest Blog by Vivian Scott

The Rise of ADR in Mauritius (2/06/12)
Chris Poole

Today’s post comes from Matthew Rushton, deputy managing director for JAMS International, the international arm of JAMS.

Some 1,200 miles off the coast of South Africa, east of Madagascar, is the island of Mauritius. With just 800 square miles of land and a population of 1.2 million, one might be forgiven for overlooking the significance of the country’s recent push into ADR. While principally known as a tourist destination, its first-class transport infrastructure, stable government and Commonwealth status make it an attractive destination for commercial dispute resolution.

The opening of the Mauritius Mediation Centre in June 2011 marked the latest in the country’s efforts to promote ADR domestically and in particular within the region. According to Edwin Glasgow QC, a recent visitor to Mauritius and a panellist with JAMS International, demand for ADR services in the region has grown as a result of a sequence of recent political initiatives by the South African government, and their unintended consequences.

Confidence in South Africa’s civil justice infrastructure has been decreasing as certain discrimination policies have created a generation of judges who, under Apartheid, were unfortunately denied involvement in commercial cases. While Glasgow views the judges as “very bright and capable of handling any case given the necessary experience,” parties with complex cases have begun boycotting the courts in favour of arbitration.

To counter this trend, South Africa’s ruling government party has sought to limit the growth in arbitration by requiring former judges to seek written approval to sit as arbitrators from the Attorney General. It is believed that although hundreds of former judges have applied, approvals had not yet been granted and those judges who wish to sit as arbitrators without approval risk losing their pension. While the move was intended to channel parties back into the court system, the result has been to push alternative dispute resolution offshore.

Given South Africa’s status as one of the five BRICS countries (an international political organization of leading emerging economies, which also includes Brazil, Russia, India and China), to whom the world is now turning as a possible driver of economic growth, the potential of the market in Mauritius is substantial. It will be interesting to see how the country maintains its own local involvement as other ADR organizations have taken an interest in the developing area.

JAMS ADR Blog by Chris Poole

Suing Over an Online Review (1/30/12)
Colin Rule

Debra Cassens Weiss, ABA Journal:

‘A Dallas law firm has filed a lawsuit seeking to learn the identity of a commenter calling himself “Ben” who posted a bad online review.

The Lenahan Law Firm claims defamation and seeks $50,000 in damages, Texas Lawyer reports. Partner Wes Black says the suit will allow the law firm to subpoena Google to learn the commenter’s identity.

Ben wrote in his comments on Google Review: "Bad experience with this firm. Don’t trust the fake reviews here.” Ben also gave a bad review to an Oregon cleaning company and may have intended to post the negative review about a different law firm closer to home, the suit (PDF) says.

Black tells Texas Lawyer the Lenahan Law Firm gets most of its clients from searches, and the bad review won’t help. "The issue isn’t trying to recover tons of money,” Black tells Texas Lawyer. “We just want the review down.”’

Novo Justice Blog by Colin Rule

Rescuing the Amygdala from the Swamp of Pop Culture (1/30/12)
Stephanie West Allen

Coming on the heels of my blog post Clearing up confusion: The amygdala is not the same as the reptile brain & it's probably not reserved for fear is a news release from Association of Psychological Sciences with more information which I hope will continue the cleaning up of the amygdala's reputation in the media. And clear up its role in our day-to-day to lives.

The release:

The Amygdala And Fear Are Not The Same Thing

In a 2007 episode of the television show Boston Legal, a character claimed to have figured out that a cop was racist because his amygdala activated – displaying fear, when they showed him pictures of black people. This link between the amygdala and fear – especially a fear of others unlike us, has gone too far, not only in pop culture, but also in psychological science, say the authors of a new paper which will be published in the February issue of Current Directions in Psychological Science, a journal of the Association for Psychological Science.

Indeed, many experiments have found that the amygdala is active when people are afraid. But it also activates at other times, for example in response to pleasant photographs and happy faces.

The misconception came from how scientists first approached studying the brain. A lot of people came to the amygdala from the study of fear, says Wil Cunningham of Ohio State University, who co wrote the new paper with Tobias Brosch of New York University. “It’s a great emotion to study because it’s very important, evolutionarily, and we know a lot about fear in animals,” Cunningham says. Almost every study of fear finds that the amygdala is active. But that doesn’t mean every spark of activity in the amygdala means the person is afraid.

Instead, the amygdala seems to be doing something more subtle: processing events that are related to what a person cares about at the moment. So if you’re in a scary situation or have an anxious personality, the amygdala might be activated by a frightening image. But hungry people have increased amygdala activity in response to pictures of food and people who are very empathetic have an amygdala response to seeing other people.

“When we’re studying emotion, people want to find specific brain parts that are associated with different

Continue reading "Rescuing the amygdala from the swamp of pop culture" »

Neuroscience and Conflict Resolution Blog by Stephanie West Allen

Family Law Council Files Rare Amicus Over Mediation Issue (1/30/12)
Victoria VanBuren
For the first time in 25 years, the State Bar of Texas Family Law Council has filed an amicus curiae brief in an appeal pending before the Texas Supreme Court.

The council submitted the brief on Jan. 9, urging the Supreme Court to grant a mandamus to force a family law judge to approve a mediated settlement agreement (MSA) in a custody dispute. The judge in that suit, 309th District Judge Sheri Dean of Houston, refused to approve the MSA between Stephanie Lee and Benjamin Jay Redus, on the ground it was not in the best interest of a child. The council argues in the amicus that the judiciary should not create common-law exceptions to the enforceability of MSAs.

Read the rest of the article here. Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly Hayes

Hire Me: I Won't Leak in Flight (1/30/12)
Jeff Thompson

Hire Me: I’m Really Good at Summarizing

What are the odds of me being hired if this was my big selling point as a professional mediator? Think about it, you really do want to be a good summarizer, right?

Of course this is absurd to think this would be a top selling point when promoting yourself but it came to mind when something else, equally or perhaps more absurd was presented to me.

As mediators, an important tool (and I mean literally here, not the “Mediator’s Toolbox” sense) is a pen. Based on informal conversations I had with other mediators, I am not the only one who puts lots of effort in their pen selection. Of course there are some that laughed while saying a pen is just a pen which got me to thinking if there mindset on pens is so flawed, what kind of mediation skills could they have??

As my favorite pen was beginning to go low on ink, I embarked on going to the local store to get a new one. See, I was planning ahead, when the current one runs out of ink, I will have the other one available right away. As I searched, the first two stores were sold out. This allowed my ego to become slightly larger as I now began to think that I am in good company and have good taste in pen selection as they are sold out in two places while the regular run of the mill pens were abundantly available. Think about it, who needs a discerning mind for wine selection when pen selection is much more important?

Anyway, on attempt number three, I found my pen. My joy was short-lived and was replaced with confusion as my ever-discerning mind reviewed the packaging to see what it had to say (perhaps insight as to why it is the best pen in the world) and I see the following as the main marketing reason, at least from Bic, as to why this pen is so good: Won't Leak in Flight.

Yes, it won’t leak in flight.

Now I travel fairly often each year and all of my concerns (crashing into water, missing my connection, not being offered a drink with my meal, jockeying over the arm rest with a stranger, etc.) never once, not once did I ever (EVER!) think about my pen leaking mid-flight, early-flight, or as towards the completion of the flight. Does this constitute an epic marketing failure?

This brings me back to mediation and marketing. Take a brief moment to consider, even if your mediation business is a raging success (or not), is it despite your marketing or because of it?

 

Enjoy Mediation by Jeff Thompson

The Pull of Hate in Lawsuits (1/30/12)
Karin S. Hobbs

“Let no man pull you low enough to hate him.” Every year at this time, we are reminded of the great work of Reverend Martin Luther King, Jr. So often I encounter people who seem to “hate” each other.

In a recent series of mediations, I encountered a number of people who began to “hate” each other. Each time, allowing the parties to talk resulted in far less hatred. Picture a conference table full of men in dark suits in one room angry about a dispute regarding a contract. Distrust and hatred were palpable. Down the hall, the other party to the contract was sitting with his spouse and his attorney. He was sad and frustrated. Both sides were distressed and disturbed. They were good friends but significant problems had arisen. A lawsuit had been filed, and for many months neither side had talked to the other. The legal issues were complicated.

I mentioned early in the process that a few select men may need to speak to each other. Attorneys were reluctant. Clients were intrigued but wary. After ordinary attempts at settling the dispute seemed to be yielding no results, I brought the key people together. They shared stories. They cried and laughed. They solved their problem. All indications of hatred disappeared. Like so many others, these good people appreciated the opportunity to discuss the issues in a controlled setting with a trained mediator.

That day I felt I was working to correct that pull of hate, as I do more often than not. ”Hatred paralyzes life: love releases it. Hatred confuses life: love harmonizes it. Hatred darkens life: love illuminates it.” Reverend Martin Luther King, Jr. Thanks Dr. King for reminding me of why I love my job.

Mediation Bytes by Karin Hobbs

Bi-Partisanship (1/30/12)
Joe Markowitz

Ryan Lizza's article, "The Obama Memos," in this week's New Yorker, contains some inside information explaining how candidate Obama's promises to usher in a new style of politics, ran into the realities of a Congress that is more partisan than ever before. Commentators like Paul Krugman have jumped on the bandwagon, chiding President Obama for being so naive in thinking he could "transcend partisanship." Now conventional wisdom seems to suggest that President Obama has abandoned any efforts at bi-partisanship, and is going to come out swinging at Congress and the Republican opposition during this election year. The headline in the LA Times, for example, called this week's State of the Union speech a "confrontational" address. All of this feeds into a comfortable narrative proving that those who attempt to resolve conflicts by negotiation and compromise are doomed to fail. See, the "realists" say, eventually the idealists must wake up to the cold, hard truth that politics, and life, are nothing but a series of contests that you must fight to win.

But I did not hear President Obama giving up on the possibility of working together with the opposition. Instead, his State of the Union message started and ended with descriptions off how members of the military are able to transcend their differences, focus on the mission, and work as a team. The president made a renewed call for members of Congress to put aside partisan differences and work toward achieving consensus of a range of issues that need to be addressed.

Because, really, what is the alternative? The "realists" like Lizza and Krugman argue that getting anything done in Washington always has been and always will be a numbers game. If the president's team has the votes, they can get their program through Congress. If they don't, they can't. They are foolish to think they can ever achieve anything by trying to persuade the opposition to work with them. If we accept that view, however, that means we must view Congress as either a brick wall or a steamroller. We must accept gridlock whenever we have divided government, which we seem to have most of the time. And when one party or the other has the votes, we must let them roll over the opposition and implement a program that is going to be unpalatable to a substantial minority.

I once heard Taylor Branch, who wrote a three volume history of the years of Martin Luther King, Jr., talk about how many veterans of the civil rights movement view the early, non-violent years of the struggle as a naive, child-like phase that the movement had to pass through before reaching its more mature, confrontational style in the late 1960's. The lesson we have failed to learn from King, said Branch, was that the methods of non-violent conflict resolution King espoused may be his more lasting, and more universally-applicable legacy, not merely the achievement of civil rights for black people. (I don't mean to diminish that achievement at all, of course.) Just in terms of sheer effectiveness, compare what was accomplished by the years of non-violent protests--the 1964 Civil Rights Act and the 1965 Voting Rights Act--to the results of those later, more violent tactics, which led to a massive backlash, and decades of the politics of resentment and divisiveness?

I recognize that in politics, as in every other type of conflict, there are times when you must fight to win. Most of the time, however, that approach is not going to provide a better outcome. Those who counsel giving up on negotiations because that way is too "soft" or "naive" or requires too much compromise, are really saying that it is better to get nothing done at all, or to lose to the other side half the time, than to satisfy at least some of your objectives. They are saying it is better to maintain the purity of your ideological principles, even if you accomplish less by doing that.

I did not hear President Obama suggest that we should accept that reality. I heard him offer a vision of putting aside partisan differences to work together on a common mission, just as the military does. But even as a practical matter, the president is smart to stick with this approach. He knows he still has a hostile Congress to work with this year. And even after the election, he is probably not going to regain the large Democratic majorities he enjoyed during the first two years. That means he must appeal to Congress's better nature, or threaten Congress, or shame Congress, or whatever he can do in an effort to persuade Congress to work with him this year and in his second term, if he is to get anything done.

When I heard the president talk near the end of his speech, about lowering the temperature in Washington, and trying to achieve consensus, that did not sound to me as if he were giving up on the idea of post-partisanship. Far from it. I see continuity from the candidate Obama's original message beginning back in 2004 that we must move beyond the traditional antagonistic red state/blue state, Republican vs. Democratic type of politics to a more constructive approach. We may never achieve that dream, but we should not give up on it either.

(adapted from a post on my political blog)

Mediation's Place by Joe Markowitz

Tattoos (1/30/12)
Phyllis Pollack

The January 2012 issue of the California Lawyer contains an article about tattoos in court. As the blurb intrigued me, I read the article, entitled “Tattoos as Evidence” by Ryan Lozar (pp 37-39) (Tattoos as Evidence ) in which the author discusses the existence of a tattoo on a criminal defendant as potentially biasing a jury:

It’s a fact of life that people make snap judgments about each other’s character based on discretionary aspects of physical appearance. . . . This is especially true when it comes to tattoos, whose bearers-depending on the nature of the tattoo itself – may be viewed as seedy, provocative, or downright dangerous. The consequences of such judgments can be serious for a tattooed criminal defendant. . . . (Id. at p. 37).

The author goes on to describe how in a race-related murder trial in Florida, the court granted the defendant’s motion to have the state pay for a make-up artist to come each day before court to cover up a swastika and barbed wire tattooed onto his head. The court agreed with his counsel that such a tattoo was likely to offend, intimidate and/or frighten jurors to the point of losing their objectivity. (Id. at p. 37).

There is no doubt that tattoos are a much more serious matter in a criminal matter than a civil one. The criminal defendant has much more at stake than does a civil plaintiff or a civil defendant. But, a tattooed civil plaintiff or defendant still impacts the jury, and impacts the other party who is deciding what to do about settling the matter.

I have conducted a few mediations in which either the plaintiff or defendant has tattoos – sometimes small, sometimes not so small. In such instances, I have, at times, taken his/her counsel aside and pointed out that the tattoos may give the wrong impression to a jury. While the response I often receive is that if the matter does go to trial, the party will wear long sleeves or other clothing to hide the tattoos, my comments are not lost on counsel; if counsel has not already had that conversation with her client, she proceeds to do so during the mediation.

It is wrong to make snap judgments; but, as the author of this article notes, we all do: it is a fact of life! It is “appearance bias” about which I have previously blogged. But this time, it is quite specific: tattoos. We all have opinions about them, and probably strong ones: very much in favor or very much against. And, our views are probably generational. While the World War II and baby boomer generations are most likely to be against tattoos, the Generation X’ers and the “Y” Generation most likely think they are “cool” and see nothing wrong with them!

So, I guess the point here is that “beauty is in the eyes of the beholder.” If you are a baby boomer or older person like me, be cognizant of your appearance bias against tattoos. Try not to make a snap judgment about the person simply by the tattoo being displayed. And, . . . if you are the person wearing the tattoo, be aware that everyone does not think tattoos are cool; quite the contrary – they may be biased against you simply because of your tattoo! Opportunities may be lost simply because of the art being worn on your body!

Tattoos and bias! A fact of life.

. . .Just something to think about!

PGP Mediation Blog by Phyllis G. Pollack

Negotiation tips for work, home and the marketplace (1/23/12)
Tammy Lenski

Last fall, my 13 graduate negotiation students, few of whom described themselves as good negotiators when class started, mostly shuddered at the prospect of one assignment in particular: Each week, they had to negotiate something. A matter at home. A better price on a purchase at the mall. A contract with a vendor at work. A problem with a colleague.
We kept track of their negotiations outside of class in our online discussion forum, where they could post about the negotiation, celebrate, or ask for insights about what could have been done better. Seven weeks later, when the term ended, these 13 graduate students had successfully completed dozens of home and workplace negotiations, and I estimate they saved well over $10,000 in purchases ranging from new carpet to sporting goods to coffeemakers. Not bad for a group that claimed not to like negotiating!

Next up in my 10-year blogiversary retrospective and prize giveaway are a few of my favorite negotiation tips and stories. These just scratch the surface of the total posts on the subject, of course, so if you want more, check out the Conflict Zen archives.

Conflict Zen Blog by Tammy Lenski

Attending By Telephone (1/23/12)
Phyllis Pollack

Although the general consensus among neutrals is that the parties to a dispute should attend the mediation in person, at the same time, I have successfully mediated disputes in which one or more or all involved have attended by telephone. Indeed, I have conducted several mediations solely via telephone with success: the cases settled.

Yet, I recently had two mediations in which one of the parties attended by telephone and because of that fact, the matter did not settle. I believe the lack of resolution had a lot to do with the attitude or mindset of the party attending by telephone and my inability to change it with a “reality check” precisely because it was by telephone. Let me explain.

In the first one, a “lemon law” mediation, the plaintiff attended by telephone. The vehicle had been leased, and the lease had ended so that the vehicle had already been turned in. Yet, the plaintiff was seeking the return of all of her lease payments and down payment (approximately $20,000) because the air conditioning had a musty odor for which it was brought in for repair about four (4) times over a three-year period. Because plaintiff was appearing by telephone, I could not sit with her face-to-face and discuss the various realities of this matter; neither could her attorney. Neither of us could provide a meaningful “reality check”. Consequently, the “realities” got lost “in translation” so to speak. Would a judge or jury really award the return of all monies paid due to the musty A/C odor complained of 4 times over 36 months? (Despite the odor, plaintiff did drive the vehicle almost all of the miles allotted under the lease.) In the lingo of Section 1793.22 of the California’s Song-Beverly Consumer Warranty Act (Section 1793.22 ), is this a ”nonconformity” that “substantially” impairs the use, value or safety of the vehicle, to the point of requiring repayment of all monies? While the manufacturer was willing to pay some money to settle the matter (i.e. on a diminution in value basis), it was not willing to return all of the lease payments. Some conversations are difficult to have by telephone, and this was clearly one of them.

The second involved a motorcycle that was supposedly a “lemon”. This time, it was the defendant manufacturer who was appearing by telephone. Prior to the mediation, the manufacturer took pains to try to settle the case, but plaintiff’s counsel had been non-responsive. This lack of response left a bad taste in the manufacturer’s mouth.

At the mediation, a different plaintiff’s attorney appeared explaining that a re-structuring had occurred within the firm, she was now counsel, would be handling the case to its conclusion, and would be responsive. For the first hour of the mediation, plaintiff’s counsel worked with the manufacturer’s counsel in assessing what plaintiff’s actual damages would be (the motorcycle had been totally destroyed shortly after suit had been filed, and the insurance company paid for the loss!) and was very realistic and practical in her assessment.

Unfortunately, when defense counsel conveyed the demand to her client – the manufacturer – it balked. It had the bad taste in its mouth which it was unwilling or unable to put aside. It could not abide by the adage “that was then, this is now.” It kept circling back to the non-responsiveness of prior plaintiff’s counsel and wanted to retaliate by making a minimal counteroffer to present plaintiff’s counsel who was trying to be very realistic about the value of the case! Needless to say, the matter did not settle.

Again, had the manufacturer’s representative been present, I could have sat face-to-face and implored her to let go of the past and focus on the present. I could have had a “reality check” conversation. Instead, it was another one of those difficult conversations that do not go well by telephone. The manufacturer’s representative simply cannot vent in a telephone call the way she could have done to me in person. Also, a personal “mea culpa” from plaintiff’s counsel may have helped, but again, the telephone impeded that process.

So, I guess the moral of my tale is that while mediating by telephone may be easy and practical, depending upon the surrounding circumstances, it may not be conducive to reaching a settlement. (The very much needed “reality check” may not be possible!) When someone suggests trying to resolve a dispute by telephone, think long and hard whether all of the factors exist to make it likely to be successful.

. . .Just something to think about!

PGP Mediation Blog by Phyllis G. Pollack

The Struggle for Recognition (1/23/12)
Aik Kramer
As social struggles of the last few decades have made clear, justice demands more than the fair distribution of material goods. For even if conflicts over interests were justly adjudicated, a society would remain normatively deficient to the extent that its members are systematically denied the recognition they deserve. As Charles Taylor has recently emphasized, ‘Due recognition is not just a courtesy we owe people. It is a vital human need.’ As one scarcely needs to add, it is also a need that has all too often gone unmet. Regularly, members of marginalized and subaltern groups have been systematically denied recognition for the worth of their culture or way of life, the dignity of their status as persons, and the inviolability of their physical integrity.
[This is a synopsis of the translator's introduction.]
Axel Honneth’s theory
In The struggle for recognition (1995) philosopher and social-psychologist Axel Honneth (1949) sketches an approach to this dual task of explanation and justification that is highly original and firmly rooted in the history of modern social theory. Rather than following the atomistic tradition of social philosophy going back to Hobbes and Machiavelli, however, Honneth situates his project within the tradition that emphasizes not the struggle for self-preservation but rather the struggle for the establishment of relations of mutual recognition, as a precondition for self-realization? Like Hegel, George Herbert Mead, and, more recently, communitarians and many feminists, Honneth stresses the importance of social relationships to the development and maintenance of a person’s identity. On the basis of this nexus between social patterns of recognition and individual prerequisites for self-realisation – and with constant reference to emperical findings of the social sciences – he develops both a developmental framework for interpreting social struggles and a normative account of the claims being raised in these struggles.
Practical relation-to-self
With regard to the former, explanatory task, his approach can be understood as a continuation of the Frankfurt School’s attempt to locate the motivating insight for emanicipatory critique and struggle within the domain of ordinary human experience, rather than in the revolutionary theory of intellectuals. (…) With regard to the normative task, the roots of his approach are to be found in the model of the struggle for recognition developed by Hegel during his early years in Jena (before the completion of the Phenomenology of Spirit in 1807). Honneth takes from Hegel the idea that full human flourishing is dependent on the existence of well-established, ‘ethical’ relations – in particular, relations of love, law, and ‘ethical life’ [Sittlichkeit] – which can only be established through a conflict-ridden developmental process, specifically, through a struggle for recognition. In order to avoid the speculative, metaphysical character of Hegel’s project, however, Honneth turns to Mead’s naturalistic pragmatism and to emperical work in psychology, sociology and history in order to identify the intersubjective conditions for individual self-realisation.
Self-confidence, self-respect and self-esteem
Honneth’s approach can be summarized, in a preliminary way, as follows. The possibility for sensing, interpreting, and realizing one’s needs and desires as a fully autonomous and individuated person – in short, the very possibility of identity-formation – depends crucially on the development of self-confidence, self-respect, and self-esteem. These three modes of relating practically to oneself can only be acquired and maintained intersubjectively, through being granted recognition by others whom one also recognizes. As a result, the conditions for self-realisation turn out to be dependent on the establishment of relationships of mutual recognition. These relationships go beyond (a) close relations of love and friendship to include (b) legally institutionalized relations of universal respect for the autonomy and dignity of persons, and (c) networks of solidarity and shared values within which the particular worth of individual members of a community can be acknowledged. These relationships are not historically given but must be established and expanded through social struggles, which cannot be understood exclusively as conflicts over interests. The ‘grammar’ of such struggles is ‘moral’ in the sense that the feelings of outrage and indignation driving them are generated by the rejections of claims to recognition and thus imply normative judgements about the legitimacy of social arrangements. Thus the normative ideal of a just society is empirically confirmed by historical struggles for recognition.
Central to Honneth’s ‘social theory with normative content’ is his account of self-confidence, self-respect, and self-esteem, along with the modes of recognition by which they are sustained.
They represent three distinct species of ‘practical relation-to-self’. These are neither purely beliefs about oneself nor emotional states, but involve a dynamic process in which individuals come to experience themselves as having a certain status, be it as a focus or concern, a responsible agent, or a valued contributor to shared projects. Following Hegel en Mead, Honneth emphasizes that coming to relate to oneself in these ways necessarily involves experiencing recognition from others. One’s relationship to oneself, then, is not a matter of a solitary ego appraising itself, but an intersubjective process, in which one’s attitude towards oneself emerges in one’s encounter with an other’s attitude towards oneself.
With regard to each of these ‘practical relations-to-self’, three central issues emerge: the precise of each for the development of one’s identity, the pattern of recognition on which it depends, and its historical development.
Love and basic self-confidence
With regard to the concept of love, Honneth is primarily concerned with the way in which parent-child relationships – as well as adult relationships of love and friendship – facilitate the development and maintenance of the basic relation-to-self that Honneth terms ‘basic self-confidence’ [Selbstvertrauen: ‘trust in oneself’]. If all goes well in their relationships to others, infants gradually acquire a fundamental faith in their environment and, concomitantly, a sense of trust in their own bodies as reliable sources of signals as to their needs.
Although Honneth is generally at pains to emphasize the historically contingent nature of human subjectivity, he argues that this notion of bodily integrity, together with the need for love and concern it entails, captures something important that cuts across differences of cultural and historical contexts. This is not to say that practices of child-rearing or love have gone unchanged but only that the capacity to trust one’s own sense of what one needs or wants is a precondition for self-realization in any human community.
Rights and self-respect
As Honneth understands it, self-respect has less to do with whether or not one has a good opinion of oneself than with one’s sense of possessing of the universal dignity of persons. To have self-respect, then, is to have a sense of oneself as a person, that is, as a ‘morally responsible’ agent or, more precisely, as someone capable of participating in the sort of public deliberation that Habermas terms ‘discursive will-formation’. This relation-to-self is also mediated by patterns of interaction, those organized in terms of legal rights. (…) This is not to say that a person without rights cannot have self-respect, only that the fullest form of self-respecting autonomous agency could only be realized when one is recognized as possessing the capacities of ‘legal persons’, that is, of morally responsible agents.
Solidarity and self-esteem
Whereas self-respect is a matter of viewing oneself as entitled to the same status and treatment as every other person, self-esteem involves a sense of what it is that makes one special, unique, and (in Hegel’s terms) ‘particular’. This enabling sense of oneself as a unique and irreplaceable individual cannot, however, be based merely on a set of trivial or negative characteristics. What distinguishes one from others must be something valuable.’ Accordingly, to have the sense that one has nothing of value to offer is to lack any basis for developing a sense of one’s own identity. In this way, individuality and self-esteem are linked.
Like the evaluation of the way in which [work] is done, the esteem accorded to certain tasks hinges on a range of particular cultural factors. If, for example, homemaking is considered an insignificant contribution to the common good, then homemakers will lack the evaluative resources in terms of which they can acquire a sense of personal accomplishment.
‘Solidarity’ is the term Honneth uses for the cultural climate in which the acquisition of self-esteem has become broadly possible. Although ‘being in solidarity with someone’ is sometimes equated with feelings of sympathy, Honneth’s view is that one can properly speak of ‘solidarity’ only in cases where some shared concern, interest, or value is in play. What he is concerned with here is not so much the collective defence of interests or the political integration of individuals, but rather the presence of an open, pluralistic, evaluative framework within which social esteem is ascribed. He claims that a good society, a society in which individuals have a real opportunity for full self-realization, would be a society in which the common values would match the concerns of individuals in such a way that no member of the society would be denied the opportunity to earn esteem for his or her contribution to the common good.
Disrespect and the moral grammar of social conflicts
These intersubjective conditions for identity-formation provide the basis for Honneth’s ‘formal conception of ethical life’, understood as a normative ideal of a society in which patterns of recognition would allow individuals to acquire the self-confidence, self-respect, and self-esteem necessary for the full development of their identities. This ideal is not merely a theoretical construct; it is implicit in the structure of recognition itself. As Hegel showed, recognition is worthless if it does not come from someone whom one views as deserving recognition. From this perspective, since the requirement of reciprocity is always already built into the demand for recognition, social struggles for the expansion of patterns of recognition are best understood as attempts to realize the normative potential implicit in social interaction.
Because key forms of exclusion, insult, and degradation can be seen as violating self-confidence, self-respect, or self-esteem, the negative emotional reactions generated by these experiences of disrespect provide a pretheoretical basis for social critique. Once it becomes clear that these experiences reflect not just the idiosyncratic misfortune of individuals but experiences shared by many others, the potential emerges for collective action aimed at actually expanding social patterns of recognition. Here, the symbolic resources of social movements play a crucial role in showing this disrespect to be typical of an entire group of people, thereby helping to establish the cultural conditions for resistence and revolt.
By reconstructing and revising an alternative to the dominant tradition of modern social philosophy founded by Hobbes and Machiavelli, Honneth is able to undermine the apparent self-evidence of its underlying assumptions – in particular, assumptions about both the self-interested (what Honneth calls ‘utilitarian’) motives for social conflict and the atomistic character of the state of nature. He thereby opens up the theoretical space for conceiving struggles for recognition as attempts on the part of social actors to establish patterns of reciprocal recognition on which the very possibility of redeeming their claims to identity depends. On Honneth’s understanding, that possibility is at the heart of social justice in the fullest sense.
Source:
The struggle for recognition (1996) Axel Honneth
Translator’s introduction, Joel Anderson Generation Why Blog by Aik Kramer.

Joining Forces in Favor of the Joint Session (1/23/12)
Chris Poole

East and West Coast perspectives came together in a recent article entitled “Joint Support for Joint Sessions” published on Law360.com. Authored by two of our highly experienced neutrals, Michael Loeb, Esq. on the West Coast and Jerry Roscoe, Esq. on the East, who have developed their own unique mediation styles over the lives of their careers. Each presented strong arguments in favor of the joint session, which has changed over time and evolved differently on either side of the country.

Mr. Loeb points out that when he received his first mediation training almost two decades ago, the joint session was standard practice. As mediations became more common, however, many lawyers began to see the joint session as “polarizing.” Over time, more mediators conceded and mediations have gone from always having a substantive joint session to not having one at all.

He argues that rather than seeing a joint session as polarizing, an experienced litigator should take advantage of the opportunity to make important points in front of his or her audience, just as he would a judge or jury. Additionally, briefs, which have come to take the place of a joint session in many cases, are very often inflammatory. Mr. Loeb suggests the joint session could be the first chance for constructive progress. Or used later in the day to keep momentum going if a settlement is possible but stalled.

Mr. Roscoe also notes the significance of the joint session as one of the founding principles of mediation. He sees it as providing a different kind of opportunity for the parties involved.

The joint session for Mr. Roscoe offers parties a chance to not only explain their perspectives, and see who is participating from either side, but also to “vent.” He too argues that while this type of meeting can be uncomfortable – precisely the reason more advocates request to forgo it – this period of exploration and catharsis is very helpful for the long-term resolution of disputes.

An additional benefit to the joint session in Mr. Roscoe’s experienceis that confidential pre-mediation briefs, as opposed to those exchanged by parties in the place of a joint session, tend to contain more useful information for the mediator. And in the end, much of what gets mediated is from the joint session, rather than the briefs.

In discussing his observations with colleagues, he determined that he was not alone in the conclusion, and it seems that many East Coast mediators have begun to shift back to the joint session model.

While their reasoning may differ slightly, both neutrals strongly agree in the power of the joint session. Whether they depend on it to set the tone for the day, open up critical lines of communication, shed light on the personal stories behind the briefs, or simply allow parties an emotional release, both will continue to rely on it as a critical tool in their mediations.

JAMS ADR Blog by Chris Poole

Divorce (In Itself) Does Not Pose Risk For Children (1/23/12)
Andra Brosh

“It is not divorce in itself that can lead to problems in children. It is the divorce linked to interparental conflict, a lack of co-parenting, an unsuitable family climate, etc.,” according to Priscila Comino, a researcher at the University of the Basque Country’s (UPV/EHU) Faculty of Psychology. Comino has gathered data on 416 children between the ages of 4 and 18 to study and compare the behavior of the offspring of divorced parents (214) with that of the offspring of married parents (202). The results show that there is no reason why the problems of a child of divorced parents should go beyond those that a child of married parents could have, as long as the parents have adapted positively to their new situation. In other words, rather than the divorce in itself, it is the divorce that has been poorly handled by the parents that could lead to additional behavioural problems in the child. This thesis is entitled Perfiles diferenciales en los problemas de conducta encontrados en hijos-as de progenitores divorciados y no divorciados (Differential profiles in the behavioural problems found in the offspring of divorced and not divorced parents).

Read more here.

Divorce Detox blog by Andra Brosh

The Three Pillars of Mediation (1/16/12)
Charlie Irvine

Like many of us I am constantly torn between simplicity and complexity. The world is complex: that’s a given. But a beautiful morning or a lover’s kiss is simplicity itself, and it’s a fool who overcomplicates it.

And so with mediation, the profession/activity/vocation that has grown on me like a skin these last nineteen years. Each time I practise I marvel at the almost infinite nuances and layers of a three-way encounter. And yet what could be simpler than someone sitting down to help two others sort out a disagreement? I also have a lot of sympathy for learners. It doesn’t help much when ‘experts’ say “This is really complicated”. We need to start somewhere. We can’t take in every idea, nor can we acquire every skill, in one big dollop. We need simple skills which we can learn and repeat, and we need a clear framework. A good, simple framework allows us to gradually pick up all the complex, clever, difficult ideas and slot them in without confusion.

‘The Three Pillars of Mediation’ is my offering. The idea has been brewing for the last five years, since I took a Masters course in Mediation at Birkbeck College, University of London (and a special thanks to the course leader, Lorraine Schaffer). The MSc was a marvellous induction into complexity, scanning the (anglo-American) literature on mediation, psychology, philosophy, therapy, justice and lots more. We were made to think hard about our practice, to write, discuss and chew over the novelty and oddity of this work. I have little doubt that it made us better practitioners.

And yet, when I looked back on two years of study, it seemed to me that it could all be summarised under three headings. These are the ‘Three Pillars’. I offer them in a spirit of enquiry: if they can be pulled apart and improved, so much the better. The idea is to start simple and allow for complexity. To mix my metaphors, each one acts like a trunk, from which numerous branches can grow.

So what are they? Well, Conflict, Communication, and Resolution. To give them their full titles, they are Conflict (Theory), Communication (Practices) and (Paths to) Resolution. They can be used to teach anyone about mediation, from schoolchildren to judges. How do they work?

Under Conflict Theory we have the body of knowledge that underpins mediation. As a foundation we need to understand the physiological impact of conflict: the physical responses triggered by anger or fear and their effect on our thinking. Then there is the vast body of psychological insights, such as Morton Deutsch’s work on cooperation and competition or Kahneman and Tversky’s work on cognitive biases. This pillar also includes ideas of justice. Because the law casts such a strong shadow over mediation we sometimes overlook its own theory of conflict, or what lawyers call ‘disputing’, manifested in, for example, the adversarial system. Then there are personality based approaches to conflict, such as Thomas Kilman or Kraybill Conflict Styles Inventories. Given more time we can consider emotional, cognitive and behavoural responses to conflict, or turn to the burgeoning body of neuroscience research. Each pillar can provide an hour, a day or a semester’s worth of teaching.

Communication Practices provide the ‘how’ of mediation, the oil in the machine. This pillar involves mostly learning by doing. All professions have a body of communication expertise. Mediators start from two simple branches: questions and summaries. We can learn from theraputic practice, particularly systemic thinking on question forms. We can also learn from experts on ‘active listening’. One innovative approach being developed by communication scholar, Professor Elizabeth Stokoe of Loughborough University, involves the ‘conversation analytic roleplay’. She uses detailed transcripts of real-life mediation interaction to highlight the sometimes alarming gulf between rhetoric and practice and develop mediators’ communication skills. For more information see http://mediationdigest.com/80-mediation-articles-mediation-articles/120-stokoe

And finally there are Paths to Resolution. This allows us to look at the popular models of mediation. I liken these to maps or guides, leading us step-by-step from conflict to resolution. The simplest, most taken-for-granted path was elegantly laid out in the 1980's by Quakers Jennifer Beer and Eileen Steef in their ‘Mediator’s Handbook.’ Most mediation training in the Western world borrows at least some of its ideas from this often unacknowledged classic. The ‘mainstream’ mediation model has gone on to predominate, and authors too numerous to mention have contributed to the canon. But turning to complexity again, I strongly argue that new mediators ought to know about other models, not least because it gives them options, something we are always keen to offer our clients. Bush and Folger’s Transformative Mediation and Winslade and Monk’s Narrative Mediation are perhaps the best known and deserve serious study. There are others: Kressel’s ‘Strategic Style’ is one innovative framework, and another neglected gem is Daniel Dana’s ‘Managing Differences’ model of workplace mediation. And of course it would be neglectful not to include Fisher, Ury and Patton’s ‘Getting to Yes’, a negotiation model that has influenced generations of mediators.

Doubtless each pillar could be populated by many more sources. I make no claim to a comprehensive knowledge of mediation literature or practice. But I have used the three pillars with students and learners for the last four years and they seem to provide a foundation on which to build mediation learning. At the end of a course they draw together the theoretical and the practical, while allowing space for mediation’s own body of knowledge.

Some outstanding questions remain for me. Where should I slot in ethics? Or the impact of culture, gender or power? Or reflective practice? Maybe these are overarching issues that should inform all three pillars. I am happy to have these pillars supplemented with new ideas. And yet, somehow, four pillars just wouldn’t cut it.

To return to simplicity, I recall a nice moment during a course delivered by US mediator Kenneth Cloke. He paused while explaining a fascinating but complex model of conflict, and confessed: ‘I make this stuff up.’ And so do we all, Ken.

I have no desire make mediation any more tricky than it needs to be. I hope the three pillars can bring some useful simplicity to the work.

Kluwer Meditation Blog.