This video was UTTERLY MEZMERIZING to watch. Really an incredible event in modern American politics.

Partial transcript:

"Part of the reason I accepted your invitation to come here was because I wanted to speak with all of you, and not just to all of you. So I'm looking forward to taking your questions and having a real conversation in a few moments. And I hope that the conversation we begin here doesn't end here; that we can continue our dialogue in the days ahead. It's important to me that we do so. It's important to you, I think, that we do so. But most importantly, it's important to the American people that we do so.

I've said this before, but I'm a big believer not just in the value of a loyal opposition, but in its necessity. Having differences of opinion, having a real debate about matters of domestic policy and national security -- and that's not something that's only good for our country, it's absolutely essential. It's only through the process of disagreement and debate that bad ideas get tossed out and good ideas get refined and made better. And that kind of vigorous back and forth -- that imperfect but well-founded process, messy as it often is -- is at the heart of our democracy. That's what makes us the greatest nation in the world.

So, yes, I want you to challenge my ideas, and I guarantee you that after reading this I may challenge a few of yours. (Laughter.) I want you to stand up for your beliefs, and knowing this caucus, I have no doubt that you will. I want us to have a constructive debate. The only thing I don't want -- and here I am listening to the American people, and I think they don't want either -- is for Washington to continue being so Washington-like. I know folks, when we're in town there, spend a lot of time reading the polls and looking at focus groups and interpreting which party has the upper hand in November and in 2012 and so on and so on and so on. That's their obsession.

And I'm not a pundit. I'm just a President, so take it for what it's worth. But I don't believe that the American people want us to focus on our job security. They want us to focus on their job security. (Applause.) I don't think they want more gridlock. I don't think they want more partisanship. I don't think they want more obstruction. They didn't send us to Washington to fight each other in some sort of political steel-cage match to see who comes out alive. That's not what they want. They sent us to Washington to work together, to get things done, and to solve the problems that they're grappling with every single day.

And I think your constituents would want to know that despite the fact it doesn't get a lot of attention, you and I have actually worked together on a number of occasions. There have been times where we've acted in a bipartisan fashion. And I want to thank you and your Democratic colleagues for reaching across the aisle. There has been, for example, broad support for putting in the troops necessary in Afghanistan to deny al Qaeda safe haven, to break the Taliban's momentum, and to train Afghan security forces. There's been broad support for disrupting, dismantling, and defeating al Qaeda. And I know that we're all united in our admiration of our troops. (Applause.)

So it may be useful for the international audience right now to understand -- and certainly for our enemies to have no doubt -- whatever divisions and differences may exist in Washington, the United States of America stands as one to defend our country. (Applause.)"

I think our country needs more and more and more of these kinds of frank dialogues. This was extremely heartening to watch, and I think both the Republicans and the President demonstrated the better angels of their nature.

From Colin Rule's blog.

A few years ago, I and my Woodbury College faculty colleagues Susanne Terry and Alice Estey published an article on mediator training and preparation in ACResolution. Last week’s Cafe Mediate podcast got me thinking about that article again – it’s content is still valid and the topic still timely. So, with my colleagues’ agreement, I’m posting an updated version of the article here. If you’re interested in this topic, you might also like my past article, The Integrated Practitioner: What It Takes to Be One.

The value of extended, integrated mediator education

by Tammy Lenski, Alice Estey and Susanne Terry

Traditional approaches to mediation training rely heavily on mastery of technique, strategy, rules and structure. Some also provide companion workshops in theory, research, ethics and content knowledge for specific types of disputes.

Many, if not most, professional and part-time mediators in the U.S. receive their training through a series of self-selected, intermittent workshops of one to 10 days’ duration. This cafeteria-like approach to mediator preparation, where mediators select items á la carte according to interest, has some of the same benefits as buffet food: Freedom to taste as much or as little as one likes, and the opportunity to experiment with new selections without significant investment. This allows “digestion on the run” so that other work and life commitments can continue on center stage.

It is entirely possible tor a mediator to become competent, even excellent, through the self-built training program, and there are a number of practicing professional mediators whose consistently high quality of service to others reflects this reality.

That said, we believe the cafeteria approach has noteworthy limitations for the mediator, for the field, and perhaps, in some instances, for clients. Since we have the good fortune to teach mediation in a graduate program that places high value on extended, integrated preparation, we’d like to paint a picture of what’s possible when mediators have ongoing opportunities to interact with the same instructors, receive regular, in-depth feedback on progress and are intentionally challenged to develop a deeper understanding of theory and more extensive practice of their craft.

The program at Vermont’s Woodbury Institute is based on a three-pronged framework tor advancing mediation as the primary profession of the practitioner: (1) develop masterful professionals capable of mediating any kind of dispute in which they’re interested, (2) foster heightened mediator self-awareness, and (3) contribute to the credibility of the field through the accomplishment of the first two goals.

Developing masterful mediators

One risk of stand-alone basic mediation training is that new mediators may mechanically replicate methodology, perhaps even zealously embrace it, without a broader context to guide them. The result can be an unintentional indoctrination into a specific mediation “camp” or “method” due to insufficient awareness of other approaches, skills, tools and the values and beliefs upon which they’re based.

When we designed the curriculum for the master’s in mediation and applied conflict studies several years ago, we focused on helping mediators move beyond a recipe of rules, techniques and processes attached to one style or school. Because of the length of the program, students have the time and the depth of learning to make meaningful choices about how they will approach their work not only in ways that satisfy and serve clients well, but which are also consistent with their own deeply-held values and principles.

We designed the program to be anchored by faculty with whom students have ongoing relationships over multiple courses that were deliberately interwoven. This encouraged students to examine their own relationships with conflict, deepen their understanding of the work they’re asking parties to do, and develop ways of knowing and working that aren’t limited by the conflict cultures in which they grew up or practiced in earlier professions. We wanted to give students the time and learning space to look into the mirror held up by instructors and learn from what they see reflected back.

Fostering mediators’ self-awareness

Excellent mediators develop a keen form of self-awareness that creates fodder for continuously improving their work. Such practitioners not only self-reflect deeply on their work, but also know how to translate those musings into greater artistry in practice.

In our experience, this self-awareness begins with the act of unlearning. The deep grooves of behavioral response worn into our students from years of navigating the world of communication, social interaction and conflict do not yield automatically to the introduction of new skills and knowledge. This is particularly true for mediation students who come from another field of origin, such as law or counseling, because old frameworks for problem solving are often deeply ingrained. An extended education program creates the space and mechanisms for students to return to “beginner’s mind,” that state described by Buddhist philosopher Suzuki with the words, “In the beginner’s mind there are many possibilities; in the expert’s mind there are few.”

We’ve noticed that newly minted mediators don’t really know what they don’t know. Our graduate mediation students often display wonderful confidence and solid ability after 30-40 hours of preparation. With more and regularly occurring instruction, they begin to second-guess themselves and lose that initial glow of confidence. We consider this a good thing! This is when we know they are beginning to unlearn and we’re witnessing the process of a re-wiring of old neural pathways being replaced by new ones, of old problem-solving crutches being set aside.

Over a period of months we observe students’ progress, challenge them, push against what they think they already know and ask difficult questions. We believe that one of the mediator’s most powerful tools is the use of “self as instrument.” To help our students begin to use who they are as one of the tools in their toolbox, we invite them regularly into the hard work of honestly exploring their own interior terrain. This on-going interaction between teacher and student, with the trust of challenge and support that’s built over rime, enables this difficult work to unfold in ways that intermittent trainings are rarely able to foster.

Building the credibility of the field

Mediators help parties navigate some of life’s most difficult moments: the dissolution of a marriage or a business, the evolution of a workplace team, decision-making about end-of-life care, negotiations over significant environmental and land issues. Considered in this context, it seems insufficient that the professionals assisting disputing parties in these major life matters may have had the equivalent of a week’s worth of specialized classes (distinct from their professions of origin) to prepare them for such a pivotal role.

We believe that the credibility of our field will advance when professional mediators make in-depth investment in their learning and development, in much the way required in other fields. While formal “school” learning never ensures professional excellence in any field, advanced, cohesive educational programs, along with the selecting and weeding that inevitably goes with them, significantly improve the quality of practitioners in any profession. Law students or counseling students with six credits completed are quite different professionals than ones who complete several more terms of study and practice, regardless of their first profession.

There is also the matter of hybridization—some would label it appropriation—of the mediation field. We believe the field will gain credibility when we abandon the current vogue of identifying practitioners with hybrid professional labels. The labels “attorney- mediator” and “counselor-mediator,” for instance, convey that the roles are somehow linked in practice, and reinforce the notion that the mediator role cannot or should not stand alone.

We invite professionals to name themselves as mediators and mediators only, to assume that role as primary, and to acquire the kind of cohesive preparation worthy of a profession that is pivotal in some of the most important matters and difficult decisions in people’s lives.

	Tammy Lenski, Ed.D., in private practice since 1997, served on the core faculty of Woodbury College’s Master’s Program in Mediation & Applied Conflict Studies for nine years.
	Alice Estey, M.A., teaches mediation skills, negotiation, and ethics in the Woodbury program; she is a mediator and conflict management specialist in private practice since 1994.
	Susanne Terry, M.S., is a mediator, facilitator and consultant in the public and private sectors worldwide. She founded and teaches in the Woodbury Mediation Program.

© 2007 by Tammy Lenski, Alice Estey and Susanne Terry.

From the Mediator Tech blog of Tammy Lenski.

From Jan Schau's blog.

       Trust – for a mediator, this is a very important issue.  At the beginning of  each mediation, a mediator must gain and build the trust of the parties. If the parties do not trust the mediator, they will place no value in the assistance she provides to facilitate a resolution.  Her services and presence will be useless.

      Well, it seems that “trust” is nothing more than a chemical response.  In an article entitled “The Neurobiology of Trust”  by Paul J. Zak published in the June 2008 edition of the Scientific American, the author describes experiments conducted by researchers to determine how we decide to trust someone.  This research  showed “… that an ancient and simple molecule in the brain – oxytocin –plays a major role in the process.”  Id. at 88.  Oxytocin is a short protein or peptide which serves as a neurotransmitter or signaling molecule.  Somehow, oxytocin facilitates cooperation – which requires trust.  Id. at 89.

      To test this, researchers developed an experiment called the “trust game.”  In this experiment, each participant is given $10 for agreeing to participate.  Then the participants are randomly assigned into pairs, although they will have no direct communication with each other.  In each pair, one participant is designated “Subject 1” while the other is designated “Subject 2.”  Then a computer asks Subject 1 if she wishes to send some of her $10 to Subject 2.  The amount sent by Subject 1 is, in reality, tripled in the account for Subject 2 so that if Subject 1 decides to send $2, the account for Subject 2 will contain $6 + the initial $10 deposit or $16 total.

      Then, the computer asks Subject 2 if she wishes to return some of the money to Subject 1, advising that Subject 2 is not required to send any money back and that her identity will remain undisclosed.  If Subject 2 does decide to send some money back, only  that actual amount   is returned; it is not tripled.

       Immediately, after making these decisions, the participants’ blood was tested for oxytocin levels.  ( Id. at 90-91).

      Pointing out that the consensus “. . .among experimental economists is that the initial transfer measures trust, whereas the return transfer gauges trustworthiness” (Id. at 91), the researchers found “that being trusted by Subject 1s would induce an oxytocin rise and that those who received greater sums from subjects would experience the greatest increases.”  Id.  In fact, “. . .when people were shown greater trust in the form of more money, their brains released more oxytocin.”  (Id).  The researchers also found “. . .that Subject 2s with high levels of oxytocin were more trustworthy – that is, they sent more money back to Subject 1s who had trusted them.  Receiving a sign of trust appears to make people feel positive about strangers who have trusted them.”  (Id at 91).

       In short,

        “Oxytocin constitutes a positive side of personal interactions;  it literally      feels good when someone seem to trust you, and this recognition motivates you to reciprocate.”  (Id at 92).

      Concomitantly, distrust causes a chemical reaction which in men will cause aggression.  That is, “men have an aggressive response to being distrusted.”  (Id).   Women do not like being distrusted either, but their response is a bit “cooler” than those of men.  (Id at 94-95).

      So. . .how does this relate to mediation and resolving disputes. . ..  Simple!  To gain someone’s trust, one must give something of value (which could include giving of herself) so that the other person will deem her trustworthy, by reciprocating and giving something back.  This “trust game” applies not only to the mediator but to the parties themselves.  If the parties “trust” each other and/or deem the other as “trustworthy”, they will find it easier to settle their dispute.  So, they, too, should play the “trust game”; one party giving something to the other,  (including  giving of herself) so that the other party deems her trustworthy by reciprocating and giving something back.

      Thus it seems that our decision whether to trust someone is nothing more than a chemical response based on the level of oxytocin in our brain!

       . . .Just something to think about.

From the Blog of Phyllis G. Pollack.

NATIONAL EXPERT / SHIPMAN & GOODWIN ATTORNEY CHUCK HOWARDWRITES NATION’S DEFINITIVE BOOK ABOUT OMBUDSMEN AND MEDIATIONNewly Published by the American Bar Association HARTFORD, CONN.,

From Jeff Thompson's Enjoy Mediation Blog

Many times in mediation, the question or issue arises as to whether a party is making an apology because it genuinely feels remorse or whether the party is simply saying it to gain some form of economic advantage.  As you will see, those same apologies, when done wrong can backfire terribly.

This issue has been raised in two different forums in the world recently.  First, the issue has come about with regards to Toyota’s apology to the world.  Indeed, in Japan when parties express regret they are (by culture) required to bow deeply.  Toyota’s C.E.O. has apologized for his company’s massive recall, but questions have risen whether his apology and bow were sufficient and genuine.  See Los Angeles Times article, A Ritualistic Bow From Toyota Chief.

Some say that C.E.O. Toyoda’s bow was not deep enough and was simply a ritualistic act.  Others also comment that a true apology would be used against Toyota in litigation.  Do these issues sound familiar?  They sure do to me.  This is a common theme in mediation. Whether to apologize?  How?  And whether it is genuine?

Another theme common in mediation is the following scene:  A person has committed a wrong several years ago.  Perhaps the person apologized “formally” at the time.  It was, however, unclear as to whether the apology at that time was genuine.  Enter the mediation.  Issues are being raised about the conduct several years ago and its ramifications.   How does the repenting person act.  Well, Mel Gibson gives us a great example of how not to act in that situation.

Here, Mel Gibson is asked about his anti-semitic remarks several years ago.  At first he appears remorseful.  But as you see in the video his conduct now is clearly not that.  There are several non-verbal and in between the message signs.  First, he states that he is the same person as he was then.  Clearly he is not distancing himself from that terrible event.  Second, he laughs at the question that he clearly understands in a nervous laugh when he asks for clarification.  Third, he states he has gotten over this “but clearly you haven’t.”

Further, he then states that he has done the “necessary mea culpas” as if there is a certain amount of apologies that can be made and then all is good.  This comment alone reflects his lack of remorse.  One of the things about violating people’s trust and then giving an apology, you cannot simply act as if the apology is ritualistic.  Take the same action and put it into other violations of trust.  For example, “Honey, I know I cheated on you several years ago, but I have said my necessary apologies.  You shouldn’t feel hurt today.”  His comment appears to reflect his true belief that he is not in fact sorry for his actions and that the apologies were simply formalities required to move on and keep selling movies.

Mel’s next action is also telling.  He picks up the cup of coffee and holds it in between himself and the camera as if to distance himself.  (How many times in T.V. interviews for movie promotions do you see someone drinking coffee while on camera?  Never).  Then, he turns away, and raises his thumb in a “yeah, yeah, whatever,” manner.

Then, the piece de resistance is Mel’s comment at the end.

Mel Gibson appears to the classic example of lack of remorse being shown for his indiscretions.  In mediation, many times a genuine apology can make the difference.  However, take Mel Gibson as an example of what not to do.

By the way, here is another interview with Mel Gibson by another reporter.  Does he appear remorseful to you?

From the Mediation Matters Blog of Steve Mehta.

From Michael P. Carbone’s Mediation Strategies Blog

To follow up on our earlier post, here are more details about Hong Kong’s mediation initiative:

Mediation in Hong Kong

December 10, 2009

By Alfred Ip, Partner at OLN and CEDR Accredited Mediator

From 1st January 2010, the court will require parties to civil proceedings to consider using mediation as an alternate means to settle their dispute. The court will require the parties to justify their decision in case they refuse to attempt mediation, failing which adverse costs order may be made against that party, irrespective of the outcome of the litigation.

The court also put the burden on the parties’ legal representatives to advise their clients properly on mediation, as early as possible. In fact, good lawyers in dispute resolution should be in a position to advise their clients of various ways to resolve a dispute. Civil proceedings should not be the only way to resolve disputes among parties in the modern era.

Mediation provides a platform for parties in dispute to discuss their issues in dispute in the presence of a trained and impartial mediator. The role of the mediator is to direct the parties to look at the future, and assist the parties in identifying their needs, in order to explore the alternatives available to the parties in resolving the disputes.

Mediation trumps over court proceedings in many ways:

1. Mediation is less expensive compared with litigation, because of the time involved.

2. The process of mediation is much quicker compared with court proceedings. Mediation can take place within weeks, while court proceedings often go on for years.

3. Some of the disputes and grievances arise out of the parties’ misunderstandings. Through dialogue, parties can be in a better position to understand their respective points of view, and the parties’ ongoing relationship can be saved through clearing such misunderstandings, which is less likely to be achieved through court proceedings.

4. Any resolution made at the end of the mediation would be made by the parties themselves, instead of a third party’s decision imposing on the same.

5. As the outcome is controlled by the parties, parties can tailor their agreement according to their wishes or their situation, and achieve an outcome which may not be achievable through court proceedings.

6. Parties are less likely to be aggrieved by the outcome of the mediation, which is agreed by the parties themselves. The problem of prolonged appeal process would not arise.

7. Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement.

8. The mediation process, and the end result of the same, is private and confidential, whereas a judgment in court proceedings is often a public record. What the parties discussed throughout the mediation process cannot be used in any court proceedings, thus the parties are at liberty to voice their standpoint freely.

The Law Society of Hong Kong and the Hong Kong International Arbitration Centre both maintain a panel of mediators for the parties to choose, while the Centre for Dispute Resolution is the most influential non-profit mediation body.

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

In the February 2010 issue of Harper’s Magazine is an essay entitled “The Serfdom of Crowds”, excerpted from You Are Not a Gadget: A Manifesto, the latest book by computer scientist, web guru, and author Jaron Lanier. You Are Not a Gadget serves as a bracing rebuttal to the loud hallelujah chorus of praise for all things internet-related. Of social networking Lanier writes,

An individual who is receiving a flow of reports about the romantic status of a group of friends must learn to think in terms of the flow if it is to be perceived as worth reading at all. Am I accusing all those hundreds of millions of users of social-networking sites of reducing themselves in order to be able to use the services? Well, yes, I am. I know quite a few people, most of them young adults, who are proud to say that they have accumulated thousands of friends on Facebook. Obviously, their statements can be true only if the idea of friendship is diminished.

These words pulled me up short. Minutes before reading them, I’d received a request on LinkedIn for a recommendation from one of my contacts. When I clicked on their profile I realized that I had no idea who they were or how I had come to connect with them. At one time accepting their invitation to connect on LinkedIn must have seemed like a good idea, because here they were in my list of connections, and there they were asking me for my recommendation.

Let’s pause there for a moment and consider what LinkedIn has to say about accepting or responding to invitations:

LinkedIn believes that when it comes to building your network, it is all about the quality of the connections and not about the quantity of connections. Your network should be centered on quality of knowledge, resources, skills and advocacy that LinkedIn can help unlock.

…Invitations are a great option to ask people to join your network. When sending Invitations, ensure that you know and trust the person you are extending the Invitation to. This is generally someone you have worked with, collaborated on projects with or maybe attended school with. These will be people that can recommend you to others and will become your first degree connections.

Looking over my list of contacts on LinkedIn, I can honestly say that among them are a few people I don’t know well at all. They are people who’ve perhaps read my blog, followed me on Twitter, or are fellow members of a professional networking site. The basis for these connections at times seems arbitrary, because social media and human nature make it easy to manufacture or claim kinship, whether it’s sharing an alma mater, a profession, a political view, or a hometown. But are all these individuals people I could recommend, based on direct, personal knowledge and with a clear conscience? To be honest: no. Some. But not all.

In the end I declined the request and removed this person from my list of connections. If this person was willing to ask a casual acquaintance to recommend them, then this was someone I did not care to be linked with any longer. But it left me asking, in accepting a LinkedIn invitation without undertaking due diligence, are we devaluing the currency of online social networking?

How many of us stop to weigh the words “it is all about the quality of the connections and not about the quantity of connections” before accepting invitations from strangers to connect? If a business networking site like LinkedIn is to have any worth, it must depend upon principled users. Otherwise the recommendations that LinkedIn urges users to obtain to complete their profile remain suspect.

Readers, do not mistake this post for a rejection of social media by a long-time blogger. I am not denying that social media have value for me – as water cooler, newsstand, and town square. They have led me to substantial, real-world friendships and allowed me to keep in touch with people who matter to me. Nor do I argue that regular, in-person contact is the sole means to establish or sustain a meaningful relationship. Email, Skype calls, instant messages, telephone time, and, yes, messages posted on social networking sites, can nurture collegial ties and friendships across distances great and small.

As worthwhile for some purposes social media may be, their wow-that’s-so-cool impact should not blind us to their obvious limits. Strip away the hype to reveal the teetering house of cards that social networking constructs of our trust. Social media can reduce to parody what is meaningful and valuable about relationships and personal connections. They can lower our standards or overpower our discernment. The entrepreneur or social media expert may be a disbarred lawyer or a convicted felon. It’s hard to tell when the light’s dazzling our eyes. But let’s remember the enduring truth in the aphorism “on the internet nobody knows you’re a dog“.

So long as trust is aspirational not dependably operational, what can any of us do? Two adages come to mind. In the words of the authors of negotiation classic Getting to Yes, “Be trustworthy, not trusting.” And, as a former U.S. president is purported to have once said: “Trust, but verify.”

As for me, I am in the process of drafting a LinkedIn policy, as I did for Twitter (although without the wiseassery). If you have one yourself, tell me about it. What guidelines have you set for accepting or declining invitations, or making or requesting recommendations? I’d welcome hearing from you.

From Mediation Channel

?My clients and I often wish we could remake our co-workers and managers in our preferred image. But, the reality is that we generally have little or no control over the words and actions of others, even if there are negative consequences for us. So, I encourage my conflict coaching clients to look at their share, however small, in a problematic interaction.

I had a chance to revisit this issue for myself while on my favorite neighborhood walk, which includes winding through a residential area and walking around the local park. Park regulations say dogs must be on leashes, but there is no enforcement, so some owners let their dogs run loose anyway.

As I was walking briskly on the park path, an unleashed dog blocked my way, and with an aggressive, stiff legged stance growled at me menacingly. My heart was pounding as the owner came up and grabbed the dog, and I told her, vehemently, that she should put the dog on a leash.

I wasn’t very tactful, which I’m sure influenced our interaction. But, her response was still illuminating. Instead of taking any responsibility for her dog running loose, she said defensively that her dog rarely reacted that way, and it must have been my “deportment” that had caused the behavior. In other words, she blamed me for her dog’s threatening behavior.

After I left the park, I decided to explore what small responsibility I might have had, even though I thought she was at fault. I realized that at my usual fast clip, I had come up on the woman and her children very quickly. Perhaps the dog had interpreted my speed as a potential attack on his human family and reacted accordingly.

I still think the dog should have been on a leash and that I should be able to walk as quickly as I want. But being right won’t protect me if another unleashed dog decides I’m a threat. I have no power to enforce the law and no superhero ability to make dogs (or people) obey me.

So, next time I approach an unleashed dog in the park, I’m going to slow way down, because my speed is the only factor I can control in that situation. I shouldn’t have to change, but, if I don’t, I could end up with the dog’s teeth in my calf.

This kind of situation comes up all the time in the workplace. Ask yourself: Are you maintaining a righteous stance about a minor issue, hurting yourself and your relationships at work? Is it really important to you? If so, why?

When the issue is truly serious for us, we need to honor our principles. But if it is something minor, we may want to ask ourselves whether it is worth the sacrifice in good will and effectiveness. Like me, you may decide it hurts less to let go of being right rather than to bite and be bitten.

From Lorraine Segal's Conflict Remedy Blog

Recently there has been a lot of controversy over illegal and legal immigration.  Although come to think of it, the controversy is not new, nor is it unique to the United States.  Most countries have significant controversy over immigration.  In addition, there are very heated feelings about immigration; and then there are equally heated feelings about the people that oppose such immigration.  All in all immigration is an enduring topic that affects all aspects of our lives.  Many times in mediation the issue of immigration status comes up and its effect on the outcome of the case. 

I have previously written about studies that show that juries are likely to not empathize with people from other cultural backgrounds.  (See my prior post People’s Biases Towards Other’s Pain Revealed in New Study).  But I would also like to address some of the more deep seated reasons some of these biases exist.  Therefore, I have researched some literature on this topic and thought I would share it with you.

One study that was presented to the American Socialogical Association addressed the issue of immigration in the context of American values of egalitarianism and the protestant work ethic (PWE).  That study concluded that Americans have historically held ambivalent attitudes toward immigrants. While they recognize that immigration is an inextricable part of the American national identity, most Americans perceive immigration as inherently threatening and, as a result, maintain various negative stereotypes about immigrants. Modern theories of prejudice suggest that the sympathy and antipathy that Americans express toward immigrants are due to two strong, but conflicting values.

On the one hand, Americans value egalitarianism, characterized by social equality, social justice, and concern for others in need. On the other hand, Americans also value the Protestant Work Ethic (PWE), an individualistic belief in hard work, self-denial, and individual achievement. The study tested the relationship between egalitarianism, PWE, and attitudes toward immigrants. The study found that that both egalitarianism and PWE  independently predicted attitudes toward immigrants, with egalitarianism associated with positive attitudes toward immigrants and PWE associated with negative attitudes. However, PWE predicted attitudes only toward ethnic groups stereotypically perceived as violating the PWE, but it did not predict attitudes toward groups thought to uphold the PWE.  Finally, the study found that close contact between the subjects and immigrants was associated with positive attitudes toward immigrants, whereas impersonal contact was not predictive of attitudes.

Matsuo, H. and McIntyre, K. , 2005-08-12 “Ambivalent Prejudice toward Immigrants: The Role of Social Contact and Ethnic Origin” Paper presented at the annual meeting of the American Sociological Association, Marriott Hotel, Loews Philadelphia Hotel, Philadelphia, PA Online <PDF>. 2009-05-25 from http://www.allacademic.com/meta/p20113_index.html

Other researchers have discussed the fact that some of the bias against immigrants is based upon inherent biases against people who we perceive to be in a different social group from our own – the so-called ‘out group bias’ – together with a similar aversion to people who are members of a social minority. Migrants usually fit both these descriptions.

Now Mark Rubin and colleagues have another, even more elemental reason for prejudice against migrants — ‘cognitive fluency’. People generally favor things that they find easy to process, as demonstrated, for example, by their preference for investing in companies with easy-to-pronounce names.  Rubin and his colleagues believe that there’s something cognitively awkward when it comes to considering migrants, and this mental difficulty biases us against them. ‘An Algerian who has moved to the United States would be more difficult to process than an Algerian who is living in Algeria,’ they wrote.

The researchers recruited hundreds of students to perform various thought experiments. The students imagined a group of people in a room and that this first group was divided arbitrarily into two smaller groups, A and B, with a minority of each group then sent to the other group. The group swappers were the ‘migrants’. The researchers balanced out the effects of out-group and minority bias by asking the participants to imagine they were themselves either in the migrating group, control group, or not involved. They next asked the students to rate the character of a typical control group member (one who stayed in his or her original group) and a typical migrant (who’d swapped groups), and then they asked the students to rate how easy they’d found it to think about members of the different groups.

Interestingly, the students rated migrating group members more negatively than control group members and this was partly because they’d found it more difficult to think about the migrants compared with the control members. A second study showed that group members who were excluded from their original group, rather than swapped to another group, were also rated negatively and described as awkward to think about.

The researchers said their finding showed prejudice against migrants can partly be explained by the cognitive awkwardness of thinking about a person who lives in one place but hails from another. 

Rubin, M., Paolini, S., & Crisp, R. (2010). A processing fluency explanation of bias against migrants. Journal of Experimental Social Psychology, 46 (1), 21-28 DOI: 10.1016/j.jesp.2009.09.006

http://bps-research-digest.blogspot.com

These studies have some direct application to the mediation and litigation world.  First, the ethnic background of a person is usually taken into consideration when considering the evaluation of the value of the case – despite the fact that in modern society it shouldn’t be so.  The reality is that people do have biases; and as these studies suggest, they are deep seated for many reasons.  The makeup of the jury is often discussed extensively as it applies to the plaintiff or defendant.  People often say that they don’t think the jury will connect with an immigrant from [name the country.]

These studies start to reflect some of the issues that are underlying these ever present biases.  As noted above, many people are fighting for the protestant work ethic.  You hear of statements that the immigrants are taking all the welfare money, using the services, and forcing hospitals to close.  These complaints are directly correlated with the PWE.  This issue would be an important area to voir dire in front of a jury, especially when you have an immigrant party in a jurisdiction that has few immigrants or when less immigrants will make the jury pool.

Another consideration is to try to change the person’s focus towards egalitarianism and trying to get people to consider the immigrant as part of the greater social order or part of the in group.  In addition, it might be helpful as a litigator to try to develop facts and information that demonstrate that your particular client is trying to integrate into the greater society by learning the language, paying taxes, working hard, not using public assistance, etc.

As a mediator, this topic could be an important area of discussion.  Understanding the reasons for a particular bias is the first step in being able to overcome that bias.

From the Mediation Matters Blog of Steve Mehta.

We thought that you might be interested to listen to the Podcast entitled “How To Work With E-Mediation and Special Masters in E-Discovery Cases” by Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog and Allison O’Neal Skinner from the Alabama-based law firm Sirote & Permutt. The ESIBytes™ Podcast of about 40 minutes is available here. (no PowerPoints, but free!)

Peter and Allison will also host the TexasBarCLE Webcast “When to Use eMediation or Special Masters in eDiscovery“ on February 16, 2010 from 2-3:30pm. The Webcast is 1.5 hours and will have a good number of PowerPoint slides. (more details are here)

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

       Recently, I  came across the unpublished decision in Benesch v. Green, 2009 WL 4885215, Case No. C-07-3784 EDL (N.D. Cal. Dec. 17, 2009) (“Benesch”)(Benesch v Green ) in which the Honorable Elizabeth D. La Porte, United States Magistrate Judge, relied wholly on the California statutes and case law in rendering a decision on mediation confidentiality. It caught my interest because, although a federal case, it applied California law on mediation confidentiality.

       In Benesch, plaintiff (Fritzi  Benesch) sued her former attorney, (Sharon Green) for legal malpractice arising  as a result of a two day mediation that occurred in April, 2006. Id. at *1.

      In that former state court action, plaintiff sued her daughter Valli  Benesch Tander, her son-in-law, Robert Tandler, her estate planning attorney William Hosisington and the law firm of Orrick, Herrington  & Sutcliffe. The mediation concluded with the parties signing a document entitled “Terms of Settlement” (“Term Sheet”). Thereafter, when the defendants moved to enforce the settlement, plaintiff argued in state court that the Term Sheet did not accurately reflect her intent with regard to provisions for her other daughter, Connie Benesch. The state trial court rejected this argument, and entered an order enforcing the settlement.   Id.

      Consequently, plaintiff filed this action in San Francisco County Superior Court in July 2007 (Case No. 07-462683). Alleging diversity jurisdiction (28 U.S.C. §1332(a)), the defendant removed it to federal court. There, the matter proceeded until 2009 when defendant moved to amend her Answer (originally filed in July 2007) to add the defense that plaintiff’s complaint is barred by California’s mediation confidentiality statutes (California Evidence Code §1115 et seq.).
 

      Defendant also moved for summary judgment on this same ground: that California’s mediation confidentiality statutes “. . .precludes plaintiff from establishing her malpractice claim and defendant from meaningful defending herself. Id.
 

      As plaintiff filed a non-opposition to defendant’s motion to amend her answer, the court granted the motion.

       With respect to defendant’s motion for summary judgment, the court denied it without prejudice based on its extensive discussion of California statutory and case law on mediation confidentiality.  

       Initially, the district court noted that mediation confidentiality is protected by California Evidence Code §§1115-1128. It then noted that California Evidence Code §1122  (Evid. C. 1122  ) sets out certain exceptions, thereby making such communications admissible in certain limited situations. However, the district court found no applicable exception: none of the parties to the mediation expressly waived mediation confidentiality. Id. at *3- *4.
 

      The district court also reviewed the California decisions including Foxgate Homeowners’ Ass’n v. Bramelea California, Inc., 26 Cal. 4th  1, 108 Cal. Rptr. 2d 642, 25 P.3d 1117 (2001) (Foxgate )and Simmons v. Ghaderi, 44 Cal. 4th 570, 80 Cal. Rptr. 3d 83, 187 P.3d 934 (2008) (Simmons v Ghaderi ) in which the Supreme Court of California strictly applied the mediation confidentiality statutes “. . .even when doing so may lead to an inequitable result.” Id. at *4.  For example, the district court cited the California appellate court decision in Wimsatt v. Superior Court, 152 Cal. App 4th 137, 61 Cal. Rptr. 3d 200 (2007) ( Wimsett) recognizing that the application of mediation confidentiality to a mediation may well mean that a party is forced to forego any claims for alleged legal malpractice. Id.

       The district court then discussed the most recent appellate decision, Cassel v. Superior Court, 179 Cal. App. 4th 152, 101 Cal. Rptr.3d 501, 2009 WL 3766430 (Cal. Ct. App. Nov. 12. 2009) ( cassell-opinion) in which the petitioner sued his former attorneys for malpractice arising from their representation  of petitioner in a lawsuit. Petitioner alleges that during the mediation of  that prior lawsuit, his attorney, now the defendant, forced him to accept a settlement for far less than was acceptable to him. The issue before the appellate court was whether communications between petitioner and his counsel which occurred during the two days prior to the actual mediation and at the actual mediation in which the two of them were the only ones present and participating ( that is, neither opposing counsel nor the mediator was present) were protected by mediation confidentiality.  The majority held that such conversations were not protected. The dissent strongly took issue, noting that this holding contravened both statutory and case law. Id. at *6-*7.    

      Finding that there is a strong policy in California to uphold mediation confidentiality and that the California Supreme Court has repeatedly disapproved of “judicially created exceptions” to the mediation confidentiality statutes (Id. at *4,*7), the district court concluded:

       It appears to the Court that the reasoning of the Cassel dissent, rather than the majority, is more persuasive and true to the statutory language and the California Supreme Court’s injunction not to create implied exceptions.  See Ticknor v. Choice Hotels Int’l, Inc. 265 F.3d 931, 939 (9th Cir. 2001). (“The task of a federal court in a diversity action is to approximate state law as closely as possible in order to make sure that the vindication of the state right is without discrimination because of the federal forum. In doing so, federal courts are bound by the pronouncements of the state’s highest court  on applicable state law”.) Id. at *7.( Emphasis original.)

      Notably, without any discussion, the district court adopted and applied California statutory and case law, following the unstated principle that as this was an action under its diversity jurisdiction, state law supplied the rule of decision.  Neither the parties nor the court discussed this assumption nor whether any sort of federal “mediation privilege” or common law privilege should apply pursuant to Rules 408 and 501 of the Federal Rules of Evidence.

       Thus, whereas this decision was meant to be enlightening, it actually leaves me in the dark as to the applicable rule for “mediation confidentiality” in federal court.

      . . . Just something to think about.

From the Blog of Phyllis G. Pollack.

Last November, I posted a poll in a post titled Do you tell your clients about neuroscience? A quick poll. I appreciate the time and thought taken by those who responded.

The first question I asked was

How much information do you typically share with your clients about neuroscience? 1=Not Much, 5=Everything I Know

The responses:

It appears that only about a third of respondents are discussing neuroscience with clients higher than at a mid-level.

The responses to the rest of the questions were helpful. Some of the comments indicated confusion between psychology and neuroscience. The ideas about neuroscience were certainly not monolithic; people have varying notions of what brain science is and what it can (and cannot) tell us.

As one who shares what I know about neuroscience not only professionally, but also with my friends and family, I recommend brain talk as a facilitator of communication. Talking about neuroscience also increases self-awareness. But I am not, today, going to continue listing benefits. Instead I want to recommend a resource.

Do you want to improve your ability to discuss the brain with clients? Then I have an excellent course for you being taught by someone for whom I have much respect. I have before blogged about Bonnie Badenoch at BonP. Now I am happy to report that you can take from her a class via distance education in February.

The day-long course is for anyone who works with others. From the class description:

The live part of the class will be presented on February 19, but you can watch a recording of it online until March 8. The fee for non-credit participation is $175 if you register before February 6. Click for all the details. It's an excellent opportunity!

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

Optical illusions make ideal teaching tools in negotiation and conflict resolution training. They serve as humbling reminders of the unreliability of our senses and the conclusions we draw from the data we perceive. One of my favorite illusions is “Shepard’s Turning the Tables“, which you can view at the web site of Professor Michael Bach of Universitäts-Augenklinik, Freiburg, Germany.

This illusion depicts two tables standing near each other. The tables appear to be of different sizes, one apparently longer and narrower than the other. When you click “Run”, one table top lifts and floats, coming to rest on top of the second table, allowing you to see that the surface areas of the tables are in fact identical and match perfectly. You can reset and replay the illusion again and again.

Amazingly, despite knowing the truth about the dimensions of the table tops, your eyes still see differing sizes and shapes. I invite you to see for yourself. (I must caution those of you whose time is limited: visiting Professor Bach’s site, a collection of 86 jaw-dropping illusions, for only a minute is simply not possible. You’ll find yourself irresistibly drawn from one illusion to the next.)

For those of you interested in influences on perception and cognition, I recommend one article and two videos, all thought-provoking (for those of you viewing at work, please note that a certain four-letter word appears in both videos):

Via The Boston Globe, “Easy = True: How ‘cognitive fluency’ shapes what we believe, how we invest, and who will become a supermodel“. Globe staff writer Drake Bennett describes cognitive fluency as “[o]ne of the hottest topics in psychology today”. He reports that cognitive fluency is “simply a measure of how easy it is to think about something, and it turns out that people prefer things that are easy to think about to those that are hard.” Studies suggest that factors such as rhyming words or font style and legibility of text influence the way we process information, enhancing or hampering our ability to perform tasks or make judgments.

The outstanding blog Sociological Images posted “Chart Wars: The Political Power of Data Visualization,” a presentation by political consultant Alex Lundry, which offers a salutary lesson in “graphical literacy” and warns against the ways in which depictions of visual data can mislead or distort. View it here:

From Colin Rule’s blog, “The template for every news story you’ve ever seen“. Watch in awe to see how, in Colin’s words, “a couple edits and on-the-street interviews can transform fuzzy thinking into something that seems insightful”:

From Mediation Channel

This weekend, I had the great privilege and honor to facilitate a workshop on the subject of Managing High Conflict Personalities in Mediation. While the training went very well, there were a few participants who voiced some concerns about the strategies we discussed. These were Attorneys who mediated Unlawful Detainer and Civil Harassment cases in a Court setting. They believed that, while the content was informative and relevant, they struggled with the question of whether or not there was a truly effective strategy for managing High Conflict People during short term mediations (Mediation sessions which had a duration period of about 45 minutes or less).

I too have had the exciting, albeit painful experience at times, of mediating Small Claims court disputes. To say that they are challenging is an understatement. These sessions test every mediating muscle in your body. In my experience, many of these types of disputes do settle, however, a large portion of them do not.

As a mediator, I take my rate of settlement quite seriously (okay, perhaps a bit too seriously at times), and when faced with the same no settlement verdict, day after day, I admit it's hard not to become despondent. During my short tenure as a Small Claims Court mediator, I came to realize, however, that many of the frequent flyers in these courts, are of the same High Conflict breed as some of my other divorce and guardianship mediations. And such High Conflict people are often the reason underlying impasse.

So, just what can you do with High Conflict Personalities in 45 minutes or less? I decided to come up with a list.

1. Decisions, Decisions, Decisions: First and foremost, when faced with someone who you believe might have a HCP (High Conflict Personality) you must make a decision about whether or not to proceed with the mediation, and make it quickly you must. When making this decision, you might want to consider whether or not this person might be a) too volatile and unpredictable, thus making it difficult for you to guide them quickly down the path to settlement or b) too hostile and full of rage: if someone is screaming and yelling or cursing at you and/or the other party, despite being told not to, this is not someone who is settlement-minded or even has the ability to settle in less than 30-45 min. It would probably take you a significant amount of time just to calm them down. People often ask me, "Well, how long should I let it go on before shutting things down and sending them back to their hearing?", I wish there was a hard and fast rule, but there simply is not. It is a personal choice. When pondering this decision, you might want to consider the following: How much are you willing to endure without becoming overwhelmed or too triggered? How much is the other party willing to endure at this point? Is the HCP's behavior triggering the other party to act inappropriately as well? What is it that the HCP really needs, and I am going to be able to deliver that in X amount of time?

2. Stick to Your Guns: Once you make the decision to terminate, it is very feasible that the High Conflict behaviors might escalate or perhaps they will not. Regardless, if you're besieged with a hellfire and brimstone speech peppered with expletives, do NOT, and I repeat do NOT back down from your decision to terminate the relationship. If you retract your decision, you will most certainly be perceived as 'weak' and easily manipulated in the eyes of the HCP. And this will place you in an even more precarious position if you choose to mediate with that party. If you do decide to mediate with them, make sure to set very strict boundaries with the HCP.

3. Stay in It For At Least a Minute: When any of us are subjected to extremely uncomfortable situations, we have the tendency to either fight or flight. In this instance, I am encouraging you to do neither. Since you've made the decision to stick it out, that means, you have voluntarily agreed to enter the battle zone. Some of the most incredible settlements I've witnessed, have arrived at the last hour, or in this case, the last 30 seconds. When dealing with a HCP, I often try to envision myself as a patient mother of an impatient two year old. No matter how many times you tell your child to stop doing x, y, z, you know that he will do x, y, z again. It is your responsibility to continue to hold his hand, no matter how much he squirms, gently reminding him of the 'rules' and following him around the room, watching him test them every step of the way. Once you can accept this role, things will run a lot more smoothly.

4. Settle It Swiftly: In time-crunched mediations, there is a significant amount of pressure looming over you to settle. And settle you will. Before the settlement is even finalized, I would begin writing it out on a piece of paper, repeating it back to the HCP. This decreases the chance that he or she will retract their decision or feign ignorance to what they have just agreed upon. Do not allow for any unrelated comments during settlement discussion. Be firm in re-focusing the HCP back to the task at hand. This is a very tenuous time, and one wrong statement from you or any other party, could trigger the HCP to regress back into their previous behaviors or dissolve the settlement agreement entirely. The moment you have the settlement agreement drafted and in hand, immediately shuttle the parties out of the room and back to the courtroom. I would discourage you from engaging either party in any dialogue during that time.

Now that you've received a few pointers, it is important to remember that these are simply guidelines. There is no 'formula' for dealing with these types of people or any 'types' of people for that matter. As mediators, we become experienced by trying on different hats and roles. Over time, anyone can become adept at managing HCPs, if they simply choose to get in the ring with them. Avoiding them all together or immediately terminating the session when you discover that one of the parties might have a HCP, does not do you or them any justice. Though they may be difficult at time, with the proper tools, HCPs are not impossible to manage. But more importantly HCPs do have the capacity to settle, if you can only help them tap into it.

From Erica Becks' Cure for the Common Conflict.

I recently read a healthcare conflict resolution article in FOCUS, the newsletter of the Harvard Medical, Dental, & Public Health Schools. The article begins with the statement, “Everyone in health care, it seems, has a war story about conflict at work.”

In an annual one-week intensive immersion course, Leonard Marcus, who directs the program for Health Care Negotiation and Conflict Resolution at Harvard, and his team teach conflict resolution skills to health care leaders from different organizations. The course adapts to health care the basic principles of conflict resolution described in “Getting to Yes” by Roger Fisher, William Ury, and Bruce Patton of the Harvard Negotiation Project.

Marcus discusses why conflict in the health care setting is different from conflict in other industries and reviews the ‘Four-step Approach to Problem-solving’ used in the Harvard course: “In health care, we are passionate about what we do, and that’s a plus,” Marcus said. “When passions collide, that same drive can be a source of conflict. The stakes are high–life and death, large amounts of money, big institutions, reputations. Therefore, people fight hard which, ironically, becomes an obstacle in and of itself.”

A Four-step Approach to Problem-solving

Four negotiation steps developed by the Program for Health Care Negotiation and Conflict Resolution guide minor and major negotiations in health care. The structured multidimensional problem-solving process is called “Walk in the Woods,” after a famous story in which international negotiators at loggerheads over a nuclear arms treaty went for a walk in the woods near Geneva and discovered common interests that led to new solutions.

Step one: self interests. Each participant articulates his or her view of key problems, issues, and options. They are encouraged to actively listen, question, and interact with one another.

Step two: enlarged interests. The participants reframe their understanding of current problems and possible options with a wider perspective, based on the integrative listening and confidence-building that occurred in step one.

Step three: enlightened interests. The group is ready to engage in innovative thinking and problem-solving, generating ideas and perspectives that had not previously been considered.

Step four: aligned interests. Participants build common ground perspectives, priorities, action items, agreement, or plans for moving forward. Depending on the scope of the intended objectives, at this point they recognize the tangible contributions and opportunities accomplished through the meeting.

Health care professionals at all levels who find themselves in a situation of work conflict can benefit from the “discovery of common interests” — after all, they share the overarching common interest of working together to provide patient’s with high quality care. The Harvard Four-step process can lead parties toward those “aligned interests” and enhanced teamwork.

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you.  Diane is an extremely focused, disciplined and lively writer.  She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.

Diane describes her series, Fallacious Argument of the Month, as follows:

With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.

Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position.  Remember - you need a new number and a new reason to counter that new number.  If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so.  If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.

The Appeal to Authority

Argumentum ad Hominem (this one is so irritating it can create impasse where none previously existed)

The Red Herring

Confusing Cause and Effect

The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).

The False Analogy

The Straw Man

Diane adds one new fallacious argument every month.  I'll endeavor to keep up with her.  But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant.  That's her smiling face at top.  Visit her often! at The Mediation Channel.

From Settle It Now Negotiation Blog

That’s the question we asked and the answer we discussed and debated in the most recent episode of the Cafe Mediate podcast.

Joining me were fellow New Englander Diane Levin of The Mediation Channel, London-based Amanda Bucklow of The Mediation Times, and New Yorker Jeff Thompson of Enjoy Mediation (and whose Project Bluejay is worth checking out).

Listen to the podcast at the Cafe Mediate site or get it on iTunes.

Future Cafe Mediate topics include certification, getting the best training and preparation, mediation “schools” or “styles,” getting past fear of failure, debunking persistent myths about our work, and social media best practices. Have a topic you’d like us to discuss? Leave us a comment to let us know.

Many thanks to Jeff, Amanda and Diane for engaging conversation, great spirit, and smart, collaborative thinking. I’m privileged to have colleagues like you to bounce ideas off of and spark my thinking.

From the Mediator Tech blog of Tammy Lenski.

In the movie American Pie, there is a character named Alison who always said the phrase, “one time in band camp….”  Everytime she said the phrase, she would have this whimsical lilt to her voice. Initially, the main characters ignored her (partially because of her “annoying” voice), but eventually in the series it turned out she was a very empathetic person who helped the main characters in their endeavors.  Well it turns out that Alison’s linguistic inflection have been found to scientifically make her more empathetic.

A new study has found that being able to change intonation in speech may be a sign of superior empathy?  The new study finds that people use the same brain regions to produce and understand intonation in speech.  The study also suggests that people learn by imitating through so-called mirror neurons. In other words, people learn how to speak by mirroring others’ prosody — the music, rhythm, and intonation of speech.

The study also finds interestingly that the higher a person scores on standard tests of empathy, the more activity they have in their prosody-producing areas of the brain.  So increased empathic ability is linked to the ability to perceive prosody as well as activity in these motor regions, said authors Lisa Aziz-Zadeh and Tong Sheng of USC, and Anahita Gheytanchi of the Pacific Graduate School of Psychology.

“Prosody is one of the main ways that we communicate with each other.” “If you have a pet, they basically are understanding your prosody,” Aziz-Zadeh said.

Studying prosody is actually looking at the message that is being sent from the tones, intonation, and rhythm of the words.  Studies have shown clearly that a huge percentage of communication is in the form of understanding prosody.

Based on this study, it is not clear whether empathy brings about prosodic activity or whether frequent use of prosody can somehow help to develop empathy.

However, the ability to understand communications non-verbally is an important skill in being able to empathize. My suspicions are that a person who can understand more non-verbally or through prosody will be increasing their ability to be empathetic. In other areas of communication, it has been found that mirroring can increase the ability to be liked.  There appears to be no reason why mirroring of the voice wouldn’t also create a reaction in the person who is mirroring.  More research on this will certainly be enlightening.

Journal Reference:

Lisa Aziz-Zadeh, Tong Sheng, Anahita Gheytanchi. Common Premotor Regions for the Perception and Production of Prosody and Correlations with Empathy and Prosodic Ability. PLoS ONE, 2010; 5 (1): e8759 DOI: 10.1371/journal.pone.0008759

From the Mediation Matters Blog of Steve Mehta.

As I prepared to discuss the mediator’s proposal with our executive team and the COO the next day I realized my client might have painted himself into a corner — after a good night’s sleep I was confident he would want to change his mind, but sometimes it’s not that easy.

Only Two Ways to Get the Case Settled

I debated how to settle the case that day, and there were only two ways to get it done: with my COO or without him. I could gather the facts and work to persuade the executive team over his objection, or I could get the COO to revisit his decision before the call began. The fact that I recommended the deal would carry a lot of weight with the team, but my client’s COO was his boss’s right hand for a reason. And even if I “won” this one, we had an ongoing relationship to preserve. The choice was easy.

The COO wasn’t irrational and he wasn’t a stranger to big disputes, but he had said “no” rather emphatically. While I suspected he’d want to change his mind, clear, public statements are hard to retract. I have written about the decisionmaker’s need to save face before, and the concept as articulated by Fisher and Ury certainly applied here:

Often in a negotiation people will continue to hold out not because the proposal on the table is inherently unacceptable, but simply because they want to avoid the feeling or the appearance of backing down to the other side.

My decisionmaker would want to avoid any appearance of backing down to his lawyers, to the mediator, and to his executive team. I needed to give my COO a way to change his mind.

Saving Face With New Information

There had to be a reason we disagreed the day before. As I looked through my notes to retrace our steps, I realized my COO had based his decision in part on a “fact” we learned at mediation. As he had flown home the night our mediation ended, the rest of my team had dissected the day and realized that this important “fact” couldn’t be true — an idea we had explored late in the day to keep the parties’ relationship alive just wouldn’t work.

We had found the key to get the deal done.

I called the COO in advance of the broader executive team conference call, and it was clear he was preparing for a fight. Immediately he began to justify rejecting the mediator’s proposal. At that point — before he dug in too deep — I gave him the new information the rest of the team had realized the night before. In a few short minutes we had agreed to jointly support the mediator’s proposal. A settlement of one of the company’s biggest cases ever came that afternoon.

Use a little new information the next time someone on your team needs to save face. You’ll be glad you did.

From John DeGroote's Settlement Perspectives

For a diverse group to reach consensus, at least some of the participants – perhaps all of them – have to change their minds. They come into the room with differing, often fundamentally conflicting ideas about the challenges they face. They likely disagree on how to define problems, technical methods that should be used to explore potential solutions and the options that might meet their needs for an acceptable solution.

Most also arrive fearful that change will mean loss for them – of property, influence or benefits they now possess. That fear often comes through as deep suspicion of the motives of those who propose changes while also promising to protect the interests of other stakeholders. That suspicion may have been supported by the experience of past conflict and has thus become well entrenched.

Fear and suspicion typify one dimension of resistance as a powerful non-rational factor. But there are many other types of resistance. Experts may resist because an apparently sound rational analysis isn’t supported by scientific evidence that meets their standards. Others may miss a way to relate technical conclusions to their everyday experience and won’t accept a new concept until it “clicks” in terms of their own work or community life.

There is often a tension between rational problem-solving methods and the many non-rational factors that can be just as powerful in influencing decisions. Mediators need to address both levels in order to facilitate agreement, but it is not enough to work one-on-one with resistant participants.

The group members have to face this challenge jointly and find ways to examine and present ideas that encourage a willingness to change. It’s not a matter of one side “selling” a proposal to the others. That’s the hallmark of a more adversarial negotiation in which competing proposals or offers of settlement are debated.

In a collaborative setting, all the stakeholders must respond not only to one another’s interests but also to the particular cognitive demands of each participant. To do that, the group needs some understanding of the varied ways in which people become convinced that it is safe to change their minds and adopt an approach they had never before been willing to consider.

In Changing Minds, the psychologist Howard Gardner has provided a useful outline of the different types of evidence and presentation people need before they come to a moment when thinking can change.

He identifies seven factors that influence people to adopt new ideas and beliefs. Since change comes with great difficulty, he includes resistance as one of these factors. The ability to overcome resistance usually depends on the effect of the other six, all of which should reinforce each other and make it possible for a diverse group to achieve consensus. Here is a a quick overview of Gardner’s seven factors.

• Reason: The interest-based model of joint gains negotiation exemplifies the role of reasoning and rational analysis. A careful evaluation of options by use of objective criteria establishes a problem solution that is optimal. Those responsive to carefully constructed argument of this sort are likely to be persuaded to choose the highest scoring option, even if that contradicts earlier positions.

• Research: Change can also occur on the basis of evidence that a group finds convincing. It might be formally gathered scientific data or informally reported experience. Research is a primary method of supporting rational analysis, and together these are the most common methods of persuasion used in collaborative policy processes.

• Resonance: There are many times when rational analysis and supporting research don’t result in a change of thinking. The proposal “just doesn’t feel right.” In Gardener’s terms, it lacks resonance because it doesn’t touch a level of emotion that is usually necessary to win a commitment to change. Sometimes that feeling level is satisfied by reason and research, but it usually requires other elements too. Trust in an ally who accepts the idea could do it – or the change may occur in a way that is less conscious. The new idea seems to fit the situation or just “click” even if it goes against argument and data.

• Redescriptions: This is Gardener’s term for the representation of an idea in many different formats – verbal description, numerical calculation in a spreadsheet, or picturing through a chart, diagram or visual imagery. The point is that all the different forms of representing the idea need to reinforce each other to be convincing.

• Resources and Rewards: The availability of resources to carry out one alternative instead of another could tip the balance. Ideas that seem impractical because funding or staffing can’t be found may quickly lose their appeal, that is, be less convincing, less likely to change anyone’s mind.

• Real World Events: An election that shifts the balance of political power, a natural disaster, a surge or crash in financial markets, or the arrival of a revolutionary technology – are all examples of events that can be decisive in changing minds. They can disrupt expectations about the future and shift thinking about plans and actions. That happens because events like these can register with people on multiple levels at once, rational and emotional, conscious and unconscious and open possibilities that had never before been considered.

• Resistance: The refusal to consider a change is another critical factor. As people get older, they get attached to certain ideas and ways of doing things because they’ve been effective, or perhaps because no other alternative has ever come along. Personality or training may have instilled a certain mindset and method of approaching problems, and any idea that doesn’t agree with that way of thinking can be rejected out of hand.

  Resistances can come from all sorts of life experiences and habits, but, as Gardener points out, their influence isn’t always negative. They can force a more rigorous testing and presentation of ideas until they make sense ito someone who’s been unresponsive.

These approaches usually have to work together to effect change and convince all members of a collaborative group that a particular solution is the right one.

Using all of them to organize and present new ideas helps ensure that no one will be regarded as the problem or isolated as the source of resistance simply because they are unconvinced by the methods that work well for others.

From John Folk-Williams's blog Cross Collaborate

I saw a fascinating post about negotiations and chocolate cake in a recent post by Andrea Schneider on the ADR Prof Blog.  I also want to thank Professor Schneider for bringing this issue to everyone’s attention.  The post addresses an article in the Wall Street Journal that studies the role of emotional responses after information overload.  And the truth is — it doesn’t take much to cause rational overload that then creates an emotional response.   Here is a brief excerpt from the Wall Street Journal Article by Jonah Lehrer

Mediate.com Receives Prestigious American Bar Association (ABA) Award (2/01/10)
Victoria VanBuren

Eugene, Oregon - Mediate.com, the leading mediation web site in the world, has received the 2010 American Bar Association (ABA) Lawyer as Problem Solver Award.  The award is for the use of “legal skills in creative, innovative and often non­traditional ways.” The award presentation will be on April 9, 2010 in San Francisco.

In awarding the Problem Solver Award to Mediate.com, the American Bar Association provides the following statement:

“Mediate.com has been at the forefront of making the power of the Internet accessible to lawyers, mediators and dispute resolution practitioners. Mediate.com has been developing digital products and resources that have advanced the presence and depth of the field of dispute resolution in immeasurable ways and fundamentally altered the practice of mediation by making online strategies practical and available.

“Mediate.com offers the field one of the most used information resources, replete with blogs, cutting edge articles, news of mediation and negotiation practice, as well as a place for interactive dialogue. The website is a practical tool for practitioners and helps them become more effective problem solvers.

“Mediate.com applies the technology of the internet directly to lawyers and dispute resolution practitioners. The founders of Mediate.com had the foresight to see the importance and applications of the Internet and bring them to bear on a developing field of practice. This groundbreaking website has given tools and resources to the public and to ADR professionals to do their own problem solving in virtually every field of law.”

James Melamed, CEO of Mediate.com, responded to news of the award saying that, “If ever there was a team effort, this is it.  Mediate.com is the result of more 1,000 authors contributing their best work since 1996. As a result, we are able to bring the best of mediation to the broader world.”  Mediate.com has been the #1 mediation destination site for 15 years and continues to provide world class content to consumers and professionals.

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

U.S. Arbitration And Mediation Legislative Update (1/25/10)
Victoria VanBuren

The following bills relating to alternative dispute resolution were introduced by the 111st Congress. Click on the bill number to read  its text and on the status link to find the bill’s most recent legislative action. Stay tuned to Disputing for more legislative updates!

Bills that passed:

• “An Act Making Appropriations for the Department of Defense for the Fiscal Year Ending September 30, 2010, and for Other Purposes” contains an amendment (the “Franken Amendment“) that bans funds to defense contractors who require workers (employees and independent contractors) to arbitrate “any claim under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” (H.R. 3326 ; Amendment; Senator Franken’s video is here) H.R. 3326 was signed by President Barack Obama and became law on December 19, 2009.  Final version is here and major actions are here. Also, find guest-post by F. Peter Phillips here and here.

Bills still pending:

• The Arbitration Fairness Act of 2009 would ban mandatory pre-dispute arbitration in employment, consumer, and franchise contracts. Senate version: S. 931 and Status. House version: H.R. 1020 and Status.

• The Employee Free Choice Act of 2009 would amend the National Labor Relations Act to require first mediation and then binding arbitration if both parties are unable to reach an agreement within a certain time frame. Senate version: S. 560 and Status. House version: H.R. 1409 and Status.

• The Payday Loan Reform Act of 2009 would amend the Truth in Lending Act to establish additional payday loan requirements to protect consumers. This bill prohibits a mandatory arbitration clause that is “oppressive, unfair, unconscionable, or substantially in derogation of the rights of consumers.” H.R. 1214 and Status.

• The Fairness in Nursing Home Arbitration Act of 2009 would render pre-dispute arbitration clauses in nursing home contracts unenforceable. S. 512 and Status. House version: H.R. 1237 and Status.

• The Mortgage Reform and Anti-Predatory Lending Act of 2009 would amend the Truth in Lending Act of 1968. The bill provides that “[n]o residential mortgage loan and no extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer, other than a reverse mortgage may include terms which require arbitration of any other nonjudicial procedure as the method for resolving any controversy.” H.R. 1728 and Status.

• The Labor Relations First Contract Negotiations Act of 2009 would amend the National Labor Relations Act to require the arbitration of initial contract negotiation disputes. H.R. 243 and Status.

• The Consumer Fairness Act of 2009 would treat arbitration clauses which are unilaterally imposed on consumers as an unfair and deceptive trade practice and prohibit their use in consumer transactions. H.R. 991 and Status.

• The Preserving Homes and Communities Act of 2009 would require certain mortgagees to make loan modifications, establish a grant program for state and local government mediation programs, and create databases on foreclosures. S. 1731 and Status.

• The Conflict Resolution and Mediation Act of 2009 would provide assistance to local educational agencies for the prevention and reduction of conflict and violence. H.R. 4000 and Status.

• The Agricultural Credit Act of 2009 would reauthorize state agricultural mediation programs under title V of the Agricultural Credit Act of 1987. H.R. 3509 and Status.

• The Department of Peace Act of 2009 would establish a Department of Peace that would take a proactive, strategic approach in the development of policies that promote national and international conflict prevention, nonviolent intervention, mediation, peaceful resolution of conflict, and structured mediation of conflict. H.R.808 and Status.

• The Rape Victims Act of 2009 provides that employment-related arbitration agreements shall not be enforceable with respect to any claim related to a tort arising out of rape. S. 2915 and Status.

• The Foreclosure Mandatory Mediation Act of 2009 would require lenders of loans with Federal guarantees or Federal insurance to consent to mandatory mediation. S. 2912 and Status.

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

Initiating The Dance (1/25/10)
Phyllis Pollack

      Often, during a mediation, I have asked a party if she wants to make the first offer. More times than not, especially if it is the defendant, the party tells me that she wants the other party to go  first on the rationale that it is a sign of weakness or some similar explanation for her to make the opening offer.

       In response, I often explain that just the opposite is true: she who makes the first offer often has the advantage: she sets the parameters of the negotiations as well as affecting the other party’s expectations. In sum, she has the “upper hand” or the leverage in the negotiation.

       This notion of “anchoring” was the topic of Linda Bulmash’s latest Negotiation Tips (Los Angeles County Bar Association Vol III, No. 4 – January 2010) entitled “Making the First Offer Can Be the Smart Move.”(LACBA “Negoiation Tips” (January 2010) )Ms. Bulmash notes that the best negotiators think in terms of affecting the other party’s expectations in deciding whether to make the first offer:

      “First offers act as an anchor point, drawing the other side into your suggested range. Studies have shown that 85 percent of the time, first offers correlate with the final outcomes. Even if the first offer is not within a reasonable range, it still affects the negotiation’s outcome.”

       ”For those of us who think we are hip to the game, savvy and sophisticated, the impact of first offers shows that we are still suggestible. As proof of that theory, participants in a college study were asked to state their Social Security number before estimating the number of physicians in Manhattan. They all picked numbers that correlated with and were close to their Social Security number.”

      ”Before deciding whether to make the first offer, ask yourself:
          

       1. What do I want to achieve by making this offer?
      

       2. Do I have enough information to make this offer?
      

       3. How do I want to affect the other side’s expectations?
     

       4. How will this offer affect the other side’s expectations?
     

       5. What kind of offers and counteroffers do I need to make to move strategically closer to my bottom line?
     

       6. Should my offer be firm or flexible?

       7. How can I propose the offers”

 

      So, in your next negotiation, instead of automatically rejecting the notion of making the first offer, take a moment and look at the long range effect of your going first: how will it affect the expectations of the other side. Will your first offer, effectively, act as an anchor so that you resolve the matter within your  range of expectations?

      . . .Just something to think about.

From the Blog of Phyllis G. Pollack.

The Mediator’s Proposal Roundtable: The Good, The Bad, The Ugly (1/25/10)
Steve Mehta

Recently the topic of the mediator’s proposal came up in a topic of conversation.  Several people had different views on how the proposal should be made, if at all.  I decided that this might be a nice topic for a Mediation Roundtable.  The format of the roundtable is that I have given each mediator 5 questions.  Each mediator’s answer will be in its original form, unedited, and together.  This will provide you with several different views on one topic in one place.  As such, I am presenting to you the topic of Mediator’s Proposal Roundtable:  The Good, Bad and Ugly.

I have been honored by the participation of several prominent mediators in the field.  The mediators are listed in no particular order:

Lee Jay Berman, President of the American Institute of Mediation. (To learn more about Lee Jay on video, click here)

Richard Webb, the Principal of Healthcare Neutral, LLC

Don Philbin, an exceptional business mediator from Texas.

And, last, but certainly not least,

Jeff Thompson, N.Y. city police officer, mediator, and famous blogger.  (To see a video on Jeff, Click Here)

1.  Do you think the mediator’s proposal has value in today’s modern mediation environment?  and why?

Jeff:  Sure it has value.  When looking through the lens of “it’s their (the party’s) process, if they want a proposal we should give it to them.”  Of course, me being me, I do not think it is that simple.  We are mediators and have to make sure we do not cross certain lines.  Main pillars of mediation include, I believe, confidentiality, informality, and self-determination.  It is in self-determination where the mediator’s proposal enters the colorful area (think sort of like the ‘grey area’ but why not look at things in beautiful colors instead?!?) of possibly crossing the line and is it still mediation?

To be short and simple, I think the mediator’s proposal is like caucusing.  It should not be relied on and be used in only certain circumstances- primarily when a stalemate endures and has the potential of breaking apart the mediation.   That is also if the mediator is comfortable with even using a proposal.  Some people, including me generally, feel it is should not be used.

For those that do use it, the ‘proposal’ I think should actually be used more sparingly than the caucus as well.  If it becomes a  frequent tool in the ‘mediator’s toolbox’ the fear I have is the parties become more dependent on the ‘proposal’ compared to generating their own options.

I think it is important also to question what your definition of the mediator’s proposal is.

I think there might be different versions floating around the ADR world.  Is it spontaneous or preplanned in the agreement to mediate?  Does the mediator write up his/her proposal before?  Is it in a sealed envelope lurking on the table the entire time as a reminder? Perhaps in the inner suit jacket pocket discreetly but ceremoniously tucked away to start the mediation off.

Lee Jay: Yes, I think any mediator technique that helps resolve a difficult case with entrenched parties has a place.  While I don’t typically use them, and caution against the over-use that some mediator practice, they are handy on rare occasion

Richard:  Yes, it has value, if used effectively to reach a settlement that would otherwise slip away.  Sometimes, parties or their counsel, despite their best efforts, cannot bring themselves to take the last step towards the
outcome that is staring them in the face. Sometimes they don’t want to “give in” or “lose.” Sometimes there is a strange reluctance to end the battle that has become such an important part of their lives. If the mediator can
help them make that final leap, that’s a good result, in my view.

Don:  Yes.  They can be effective impasse breakers late in the game.  But they can also be the right answer at the wrong time, which is the wrong answer.

2. Is the mediator’s proposal being overused or not used enough by mediators?

Richard:  I can’t say with any certainty, but my impression from my own legal practice and talking to lawyers is that it is being overused incorrectly. By this I mean the tendency of many mediators, particularly retired judges, to “size
up the case” and tell the parties “how this is going to come out in court.” Although I reject this approach as inconsistent with the true spirit of mediation, I must also admit that some cases are settled after this sort of
“mediator’s proposal” is offered. Other than this overuse, I believe mediator’s proposals are being made, but usually upon request of the parties.

Jeff: Well, (and I laugh as I type this), I don’t use it. Actually, from my recollection, I used it in an informal approach once.

In the particular situation, two parties were discussing the issue of a 5 figure sum of money and one party possibly owing the other the amount.  The two (along with my assistance of course!) narrowed it down to roughly $300 dollars difference.  As one party got up to leave, he/she said, “That’s it, we can’t work it out.  Jeff, thanks, it’s not your fault but I have to go.”

What I did was spur of the moment and asked the person to sit down.  My very brief comment included some stroking, a splash of reality testing and an unplanned mediator’s proposal.  I realized each did not want to give in so I drew (again) on a large piece of paper (by the way, the topic of including visuals is grounds for another whole discussion!) where each started, how far they each have come and how small the difference had become now.  I finally gasped, and said flat out, “Why don’t you both just split the last amount and each come $150 closer together?” After a further brief discussion, they decided… well the end does not matter, right?

Don:  Don’t know.  Since it risks impartiality and has other consequences, I leave it at the bottom of my toolbox.  I will use it, but don’t reach for that tool in round two.

Lee Jay:  It depends on the mediator.  I define the mediator’s proposal as the exact point in time where the mediator ran out of skills.  Some mediators will exhaust their entire toolbox by 1pm, others will continue to call upon skills and techniques until the wee hours of the night.  So, mediators who don’t read about mediation, who don’t take training courses or attend conferences to learn more skills tend to over-use the proposal because they just don’t have that many arrows in their quiver.  I see it also overused by mediators who think the process is all about them, rather than the parties and their lawyers.  Some mediators use it as a tool of self-importance in a way that says, “Here, I’ll resolve this for you.”

3.  What circumstances are necessary before you would consider making a mediator’s proposal?

Lee Jay: All efforts to reach a mutually agreeable resolution have failed, collaborative win-win negotiation is no longer possible, we’re just talking straight compromise and just about the money, and there is nothing that the mediator has left to do except put their own suggestion on the table.  Also, when lawyers have very difficult or proud clients, or insurance adjusters who need to go and get more authority, then the mediator’s proposal sometimes helps those clients (and lawyers) save face.  After all, when people say, “Why don’t you give us your proposal?” what they’re really saying is, “We want to move more, but we can’t find a way to do it through traditional negotiation, so we’ll move, but only to a number that you set.”  Sometimes, too, parties don’t want to give in anymore to the other party, but they will do so for the mediator or because the mediator says that they need to do so.

Jeff:  I think it is important in most cases, contrary to my approach mentioned above, to have the conversation with the parties during intake/prescreening.  Find out what their wants and expectations are.  If you come out of left field with the proposal, your good intentions could be like expecting to go for a stroll on Mount Wai-’ale’ale and not expect to get wet!

Don:  Other impasse breakers have not worked and I am comfortable that the proposal will be viewed by all parties as a workable, if not perfect, solution.

Richard: I would offer a mediator’s proposal only upon the request of both parties, and after substantial efforts to resolve the dispute through mediation. I see it as a last step in the mediation process, a way to bridge a final
impasse, based upon the efforts and movement of the parties prior to that moment.  By its nature, the mediator’s proposal leaves the mediator with no place to go if it is not accepted by both parties.

4. Do you feel that the parties (or their counsel) are taking advantage of the mediator’s proposal process?

Jeff:  I have been asked frequently the question of, “What do I think,” and other similar questions all mediators experience.  I do not have the mediator’s proposal as part of my agreement forms and it is not brought up during intake so for me, it is tough to gauge if the party is really attempting to take advantage of me or the proposal as there is no formal proposal hanging from the chandelier.

Richard:  I know there is some thought that savvy counsel are using the mediator’s proposal to leverage their client’s position; that is, intentionally mediating towards impasse rather than towards settlement with the hope that
the mediator’s proposal will be more favorable than a negotiated outcome. This was the subject of John DeGroote’s post in his blog, Settlement Perspectives:
http://www.settlementperspectives.com/2008/12/the-mediators-proposal-a-great
-tool-for-yesterdays-disputes/ ; to which I replied in my Healthcare Neutral ADR blog at:
http://www.healthcareneutraladrblog.com/2008/12/articles/healthcare-mediation/the-mediators-proposal-too-much-of-a-good-thing/ Unfortunately, I think many counsel looking for a mediator’s proposal are more lazy than savvy. They either don’t understand or are not willing to work at the mediation process as it is intended, and prefer to have some third party conform their client’s expectations to a final result.

Don:  They are under pressure to keep costs down and speeding up the process is one way to do that.

Lee Jay: Yes, I think it’s often one of two things, either it is conditioning from judges conducting settlement conferences that way that has “trained” lawyers that this is how it is done, or it is people who are averse to prolonged distributive bargaining (2-3 moves, and then they ask for the mediator’s proposal), and sometimes, that person is the mediator!

Sometimes, though, I think seasoned negotiators will play for the proposal. By that, I mean they will architect an impasse that is bracketed where they want it so that the mediator will make a proposal near the midpoint (as many mediators will do), and they will get their way. By way of illustration, if the plaintiff is at $200,000 and the defendant is at zero, the defendant may pretend to have topped out at $60,000 and see how far they can get the plaintiff to continue to reduce their demand with the hopes of setting up an impasse between $60,000 and $80,000 or $90,000, enabling them to set up a potential mediator’s proposal at $75,000 or $80,000. Plaintiffs do it too, stopping their declining demands at $135,000 or something in that ballpark to see if the defendant will come up to $100,000, setting up a mediator’s proposal at $115,000 or $120,000. This is the concern about medator’s proposals – that they can be manipulated. If we’re assuming that the mediator’s proposal is intended to pick a number (assuming all other terms have been agreed to) where the case is most likely to settle, rather than a number that represents the mediator’s perception of the “true value” of the case (like a non-binding arbitration), then we mediators leave ourselves open to being gamed by skilled actors, pretending they have run out of room to move and forcing our hand to pick a number.

5. Each mediator does things differently.  What do you think is the ideal way to introduce a mediator’s proposal into a negotiation?

Don:  Wait until the parties are close, other impasse breakers have failed, both parties want to get a deal, but neither wants to blink.  Use it as an extension of the “What if” testing – “if this case could settle for ____, would that work for you?”

Lee Jay: When the parties are absolutely stuck and they have both dug their heels in and have refused to move another inch, yet they’re counting on me to pull a rabit out of a hat to help them settle, then I generally pull the attorneys aside into a separate room or reconvene a joint session with everyone and tell them that it’s my impression that we are stuck, that nobody is willing to move any more and I’ll ask them what they want to do (usually reminding them that it is completely non-economic to go to trial over the small amount that separates them at this point). Generally, that’s when they ask or I finally suggest the concept of a mediator’s proposal. I then explain (usually just to the clients) how I do it – double blind, where neither gets to know the other’s answer unless they both say “yes”, and we discuss whether we’re going to do it right there on the spot, or whether we need to give people 24 or 48 hours to consider them and report back. I find that if we’re not going to collect their answers immediately, then giving people through a weekend is effective, so that the parties can go home, talk with spouses and others, and see the big picture perspective more clearly, in which case a $10,000 difference on a six-figure settlement takes its rightful place as minutia.

The dangers I see with mediators’ proposals, other than the manipulation described above, is that some mediators mis-use them by offering them too soon when the parties are too far apart and aren’t yet invested in them, or that mediators use them in most every case, where they become predictable, opening the mediator up to further manipulation.

Mediators’ proposals have a place and time, like every other tool that mediators use. And different mediators will use them at different times. It’s just important to remember when using a mediator’s proposal that the right answer at the wrong time is indeed the wrong answer.

Richard:  To me, the mediator’s proposal comes only upon request of both parties, when it is clear to the mediator that settlement will not occur otherwise. I differentiate this from a mediator’s brainstorming proposals and reality
testing, which can be used early and often, in that the mediator’s proposal carries with it the mediator’s sense of judgment and credibility. It is to be used sparingly.

Jeff:  As already mentioned above, perhaps the standard should be the proposal is discussed prior to the mediation.  Of course there are acceptations to the rule but I think that instead of it actually being a rule, it is more like a guide for the mediator.  Also, I think the idea of even bringing it up should depend on the type of case you might be mediating.  Would a mediator’s proposal be more likely in a case between two former partner attorneys compared to a mediation over a type of quality of life issue such as a noise dispute between neighbors?  Sure, I think so, but then again, using the analogy of everything is different shades of different colors, I think everyone will find out for themselves, and find their own ‘color’ and groove which is most comfortable for their mediation style.  One final thing I would add is I think one’s training affects their use of the mediator’s proposal as well as their background (i.e. an attorney or arbitrator).

Thank you all for your wonderful contribution to this topic.

From the Mediation Matters Blog of Steve Mehta.

Mediator Questions Or What Mary Knows (1/25/10)
Arnold W. Zeman

Last February, I published a post entitled, Where is the mind situated?, that suggested that such a question already presupposes the type of answer that will be given, viz. that the mind is a thing, a substance, with a physical location in space.  Instead of this materialist or physicalist conception of the mind, an alternative is proposed by the law professors quoted in the post that views the mind in terms of an array of abilities or processes.  I remarked that this type of theorizing resonates with ancient Buddhist psychology.

I recently came across another post on the website, Talking Philosophy, that, at least at its outset, refers to a philosophical argument that adopts much the same view:

In his paper Epiphenomenal Qualia Frank Jackson invites us to consider the imaginary case of Mary, kept in a monochromatic room from birth and who, presumably out of boredom, spends her time becoming acquainted with all that neuroscience can tell us  regarding the mechanisms that underlie our experience of colour vision. Mary herself has never seen a red object, but when it comes to the physical facts that attend such an experience, she knows them all. What, Jackson asks, would happen were she to be released from her room and to see a red object for the first time? Would she learn something new? Surely she would: she would learn what the experience of seeing a red object is like. But in that case would it not follow that, since she already knew all the physical facts about “seeing red”, what she learns must be a “non-physical fact” (a fact not present in the developed neuroscience of colour vision)? And if there are such “non-physical” facts does it not follow that physicalism is false?

The significance of this counter-argument for me as a mediator is the power of questions and preconceptions to structure what is seen or concluded.  We find what we look for, or so goes the old saying.  To put it in grammatical terms, mind  may not be a noun but rather a verb, not a name for a thing but a doing or acting in the world.  The question then becomes who exactly is carrying out this doing or acting, a question that resembles a Zen koan.

Again, quite apart from the philosophical and neuroscientific interest in this issue, it raises the problem of the extent to which a mediator’s questions may direct the parties in the process.  Such a directive influence may undermine the parties’ self-determination and autonomy to have the conversation they want to have, in the way they want to have it.

From Arnold W. Zeman's blog

Learning The Language Of Mediation: What The Fly Heard (1/25/10)
Tammy Lenski
“I would love to be a fly on the wall of a real mediation.”

Learning the language of mediation: What the fly heard

Many of my mediation students have said that to me and I don’t think there’s a mediation trainer or professor alive who hasn’t heard something similar – for good reason.

Notes mediator and trainer (and one of the trainers I first took Basic Mediation from 14 years ago) Sandi Adams, “I have heard many newly trained or beginning mediators ask to observe or listen to ‘a real mediation’ so they might get a better understanding of what exactly the mediator does and says to assist parties in a session. ‘How do you learn mediator-speak?’ they ask.” Roleplays only get you so far.

Opportunities to observe highly skilled, seasoned mediators in action are rare for fledgling mediators, though. So in 1998, Sandi compiled a concise book of examples from her own years of practice – examples of what a mediator might say in each stage of the mediation, in response to typical dilemmas and needs in a session, in response to tricky moments, and to do our work of supporting the parties, helping them negotiate, and attending to the process.

I’ve handed out print copies of What the Fly Heard: What Mediators Say Behind Closed Doors for many years in my mediation trainings. It’s not available in print at this time, but since I get multiple requests each month from mediators who want to observe my sessions or would like advice about how to say something, I approached Sandi about making an e-book version available here. She graciously agreed and I’m pleased to announce it’s now available from me (purchase link is at foot of this article).

The book has nine chapters with examples of mediator language that’s helpful – and language to avoid:

1. Listening in on the Mediator’s Opening Statement
2. Things Mediators Say to Clarify Information and Parties’ Interests
3. Flies in the Ointment – Sticky Comments to Avoid
4. Eavesdropping on Issue Checklist and Agenda Setting
5. Mediator-Speak During the Negotiation Stage
6. You Could Get Burnt – Don’t Fly Near These
7. Say What? Finalizing Any Agreements and Agreement Writing
8. Closing Statement Statements
9. Flypaper – Don’t Get Caught in These Traps

About Sandi Adams

Sandi Adams, MSCM, has been working in the field of conflict resolution since 1982. Her work includes providing direct services of mediation, facilitation, conflict coaching, and conflict resolution, mediation, negotiation, and facilitation trainings. She is also an ADR Advisor for FEMA, and is on the roster for mediating ADA complaint cases.

Previously, she was director of the Mediation Training Program at Woodbury College in Montpelier, VT and Friends Conflict Resolution Services in Philadelphia, PA, and taught at University of North Carolina-Wilmington.

She holds an M.S. in Conflict Management from George Mason University, has been an associate editor of Peacemaking in Your Neighborhood: Mediator’s Handbook, 2nd ed., and has published articles in a number of journals and magazines.

Purchase What the Fly Heard: What Mediators Say Behind Closed Doors here.

From the Mediator Tech blog of Tammy Lenski.

Fallacious Argument Of The Month: The Appeal To Authority (1/25/10)
Diane J. Levin

Each month, in pursuit of better arguments and improved public discourse, I highlight a different logical fallacy. This month I invite you to consider the irrelevant appeal to authority.

People of a certain generation perhaps recall advertisements for Sanka decaffeinated coffee in which actor Robert Young, known for playing a doctor on a popular seventies television drama, Marcus Welby, M.D., warns against the health risks caffeine poses and recommends Sanka to TV viewers.

In Chapter 6 of his popular work, Influence: The Psychology of Persuasion, Robert Cialdini describes the influence this particular ad wielded in shaping the coffee purchasing decisions of its audience:

From the first time I saw it, the most intriguing feature for me in the Robert Young Sanka commercial was its ability to use the influence of the authority principle without ever providing a real authority. The appearance of authority was enough. This tells me something important about unthinking reactions to authority figures. When in a click, whirr mode, we are often as vulnerable to the symbols of authority as to the substance.

The well-worn, now comic phrase “I’m not a doctor, but I play one on TV” has its provenance in ads such as this one. But our automatic reaction to authority is no laughing matter.

Clever speakers understand how easy it is to manipulate the public’s deference to perceived experts, using the appeal to authority to disarm our reason in their efforts to persuade us to their point of view. The appeal to authority may assume several forms, including its best known, the irrelevant appeal to authority (invoking an authority figure on a subject on which the authority figure is no expert, such as the Sanka ad). To gird ourselves against such manipulations of our reason, we should perhaps heed the advice of sixties-era protest signs: Question Authority.

By the way, if you’ve enjoyed this series on fallacious arguments and want to learn more about the application of logic in everyday life, there is no better resource than Robert J. Gula’s Nonsense: Red Herrings, Straw Men and Sacred Cows: How We Abuse Logic in Our Everyday Language. It’s available in print and also for free downloading in PDF.

From Mediation Channel

Mediation In Healthcare: Interview With Healthcare Neutral Richard Webb (1/25/10)
Holly Hayes Bovio
I recently conducted a Q & A via email with Richard J. Webb (pictured left) who writes the Healthcare Neutral Blog. Mr. Webb is a graduate of Yale University (B.A., cum laude, 1975) and the Duke University School of Law (J.D. 1978).  His additional alternative dispute resolution training currently amounts to 177 hours of classroom time, including 60 hours of advanced mediation courses at the Straus Institute for Dispute Resolution at Pepperdine University in Malibu, California.  He has received a peer review rating of AV from Martindale-Hubbell, and has been recognized as a New Jersey SuperLawyer in the field of healthcare law.

1. On your website, Healthcare Neutral ADR Blog, you state, “the effective use of ADR in healthcare disputes requires combined expertise in both the process of dispute resolution and the subject matter giving rise to the conflict.” Can you talk more about that?

Some would argue that ADR is primarily about process and communication skills, so that a neutral, particularly in mediation, need not know anything about the substantive issues underlying the dispute in question. In the healthcare field, I strongly disagree. (Note that I am referring here to disputes in which the healthcare context is important, and not to disputes that transcend the industry setting, e.g., a zoning dispute involving construction of a hospital’s parking garage.) The complexity of the legal and regulatory issues as well as the business landscape require the neutral to have subject matter expertise if evaluative techniques are to be used effectively. The credibility of the neutral with the parties also depends upon developing confidence in the neutral’s judgment, something that is difficult when the neutral can’t even speak the parties’ language. On the other hand, neutrals with health law expertise but no meaningful training or experience in ADR add little to what the parties and their counsel already have in the room. Remember, too, that efficiency is a major goal of ADR, one that is difficult to reach if the neutral requires on the job training in the process or the subject matter.

2. What was your inspiration for moving into the healthcare ADR field?

About ten years ago, having been in legal practice for twenty years, I became increasingly disenchanted with the traditional litigation process as the “standard” or “accepted” means of resolving conflicts. I began to study ADR developments and took some courses, and soon realized that my field of practice, healthcare law, was fertile ground for the use of ADR. While continuing my legal practice, I then charted a course of ADR training and experiential opportunities that culminated in forming Healthcare Neutral, LLC in 2007.

3. What have been your greatest challenges in the healthcare ADR field?

Healthcare ADR remains a relatively new field, and many of the parties in a position to utilize ADR have yet to embrace it. With the exception of some “mature” markets around the country, achieving engagement as a neutral requires not only convincing parties that you are a qualified neutral, but first getting them to understand why they should use ADR at all. This is the main reason I write my blog: to build awareness of the subject and my commitment to it. Of course, with that comes the challenge of time – there are only so many hours in the day.

4. Could you talk about the evolution of healthcare mediation over your 30 years of legal practice in the field?

I have noticed a few things. First, the use of ADR provisions in all types of agreements written in the field has gone from being an exception to the rule. Lawyers (myself included) 30 years ago looked suspiciously at ADR provisions because they threatened to take what we thought were clearly written contract provisions and turn them over to some unknown neutral, rather than allowing a judge to simply apply the law we all knew. Experience with some real judges’ decisions and the frustrations arising from the litigation process opened our minds. In this same period, the ADR movement grew to include a core of dedicated academics, trainers and practitioners who presented the notion of ADR as a real alternative to courtroom litigation. Having said this, there remains some distance to go before ADR is not only recognized in the drafting of agreements, but also truly embraced by the legal community. For example, the bulk of “healthcare mediation” today occurs in the form of post complaint settlement conferences. These are useful, but don’t reach the potential benefits that mediation can offer.

5. Is there a particular style of mediation, in your experience, that works best in healthcare?

I assume you refer to what’s often called facilitative v. evaluative v. transformative mediation. Any given case may call out for one of these techniques to be used primarily, but in general, I find that elements of all three have value in most mediations. The art is in when to employ them. In this regard, healthcare disputes are no different than any other.

6. How might the new Joint Commission standards, regarding a hospital Code of Conduct, impact ADR or mediation in healthcare?

A new Joint Commission standard targeting disruptive behavior went into effect last year. It requires all hospitals to have in place a code of conduct that will define the scope of acceptable behavior by all hospital personnel (including medical staff), and provide for a process by which unacceptable behavior will be addressed. A separate, new Joint Commission leadership standard requires hospital boards, medical staff and senior management to develop a process to manage conflict among these leadership groups and implement it when needed. Both initiatives effectively mandate an “alternative” dispute resolution process. This is a great development for healthcare ADR.

7. Are there instances in healthcare when you think mediation is not appropriate?

Very few disputes, in or outside of healthcare, would not benefit from mediation. One that comes to mind is a case in which one (or both) of the parties needs a judicial determination to establish a precedent, or some form of relief that the parties cannot create by agreement outside of a judicial forum. Fortunately, these are few and far between.

8. Can you speak to the trend toward “apology” in healthcare?

A number of healthcare institutions around the country have experimented with and adopted programs of claims management built on the idea that early identification of treatment errors, disclosure to patients, remediation of bad practices and appropriate apologies can substantially reduce the number and cost of malpractice claims. This coincides with a movement within the healthcare field, generally, towards internal “transparency” as an essential element of quality improvement. Implementation of “I’m sorry” programs require a significant commitment by several stakeholders, including hospital boards, management, doctors, nursing staff and insurers, but they hold great promise. Mediation and other ADR processes are crucial to the success of these programs.

9. What do you think the future holds for healthcare mediation?

I think the future is bright. It will take time, but the economics of healthcare will not sustain the present role of our courtroom litigation model. Furthermore, healthcare reform will create tremendous pressure for change in many aspects of healthcare delivery and payment. With that will come conflict, as the players seek to hold on to what they have and better position themselves for what lies ahead.

10. Are there internet healthcare mediation sources you can recommend?

Yes. Many of them are linked at my blogsite (here). Recently, the American Health Lawyers Association established the Rita D. Brinley ADR Resource Center, found here.

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

Family Mediation Pilot Gets Mixed Results (1/25/10)
Jeff Thompson


Stats, Standards & Surveys!

This article I think is worth reading for many reasons- and beyond just for family mediators. Issues such as saving, accrediting mediators and determining success is not limited to court mediations surrounding family issues.


I'll start with the last sentence as I know it raises the most emotions in ADR folk:

a survey carried out by the Civil Mediation Council showed widespread support for its moves towards accredited training for mediators, the establishment of a register of mediators and clear quality standards.

Also, I must admit I do not often read the comments by readers, but for this article I was glad I did because there is heaps of information there as well:

So it cost over £3 million more to administer the scheme than it saved! How many people could have been helped using this huge sum of money. Also I would question the effectiveness of a partial settlement using mediation.

Feedback from another reader:

It’s a very short article and there are issues that need to be made clearer:• the mediators are not trained to a high enough level to be really effective, and certainly they are unable to either detect or deal with the "loonies" (the implacably hostile) who inflict so much harm upon the children as they fight it out over many years.

• the ongoing involvement of the family lawyers is usually unhelpful – mediation is robbing them of their revenue stream after all. There are no sanctions for refusing to mediate.

• a 28% settlement rate in hostile courtroom surroundings is not be sniffed at.

• how much money did the 28% save the court service - where did this £3m figure come from quoted by Jacqueline Emmerson??

In short, I think given all of the above, the results are actually positive given the zero development that has been attempted in terms of exploiting the potential of mediation and raising the quality of mediatiors.

Read the full article [here].

From Jeff Thompson's Enjoy Mediation Blog

Downsizing Resentments At Work (1/25/10)
Lorraine Segal

Is resentment poisoning you at work? I have witnessed clients, parties in mediations, and colleagues filled with resentment toward a co-worker, supervisor, or employee. Sometimes these feelings persist for years, only expressed indirectly, with inevitably negative consequences on the individuals, their productivity, and their leadership skills.

This theme is vividly explored in the movie The Upside of Anger, which I watched on DVD recently. The husband of the main character, played by Joan Allen, leaves her without a word for another woman, taking only his wallet. She is filled with rage and resentment that consume her life, pushing away her daughters and anyone else who cares for her.

Three years later, (spoiler alert) because of a construction project on a wooded lot behind her house, workers uncover an old well and find her husband’s body at the bottom. He apparently went for a walk, fell in the well, and died. The woman is in shock. The bitter story which determined her life for three years and which was the excuse for drunken outbursts and universal nastiness, turns out to be based on a fiction. Her husband never willingly left her at all.

Although this story is more extreme than most of our experiences, many of us do something comparable in the workplace. We tell ourselves stories from our limited perspective about what others have done to hurt us. But, these stories are frequently oversized fictions as well.

The facts didn’t change when the wife found out the truth. But her perceptions of what had happened were turned upside down.  Similarly, at work, we can easily think someone else is doing something to us, but if we don’t like or understand the other person, we may be as far off the mark as Joan Allen’s character was about her husband. Rather than assuming a colleague is trying to harm or anger us, we would be far better off withholding judgment and giving them the benefit of the doubt.

If we can learn to calmly check out our perceptions through observation, neutral questions, and listening, we may often find the other person had no malicious intent; he or she just did something that seemed right to them, unaware of its impact on us. Of course, co-workers, bosses, and employees don’t always have good motives, but we attribute bad motives so many times unnecessarily. Because bitterness and resentment diminish our well-being and effectiveness, we benefit greatly when we are willing to entertain alternate interpretations and, hopefully, downsize our resentments before they permeate our work and our lives.

From Lorraine Segal's Conflict Remedy Blog

Moving Fast, Going Slow: Implementing The Open Government Directive (1/25/10)
John Folk-Williams

Deadlines are fast approaching for federal agencies to complete the initial tasks under the Open Government Directive. Publishing new data sets, opening websites, completing longer-term Open Government Plans, and dozens of others.

But notably missing is any deadline or deliverable addressing changes in agency cultures and processes. Yet every day those basic dimensions of government life influence managers and staff to resist new levels of openness. Nevertheless, staff are soon expected to:

• take initiative in sharing information and creating more extensive opportunities for public involvement “throughout the decision-making process” and especially in relation to “core mission activities;”

• embrace and experiment with new and unfamiliar internet technologies to open access to information, elicit public feedback and increase accountability to the public;

• regularly collaborate and partner with people and organizations outside of government; and

• generally “strive to incorporate the values of transparency, participation, and collaboration into the ongoing work of their agency.“

Like many bloggers, I’ve been emphasizing the need for changes in federal agency culture in order to achieve the broad goals of the OGD. Pointing to the need for culture change, however, shouldn’t imply that it’s all up to federal employees to act differently and think in more collaborative terms.

This level of change has to start with the whole system. Federal staff now live with agency cultures that often encourage them to look first at the risks of change rather than its opportunities and to choose the safety of established procedure rather than the uncertainty of innovation. Are those values changing under the influence of the Open Government Initiative, even without guidance from the OGD?

At a recent workshop on implementing the Directive, a group of federal officials brought up important cultural change issues. Despite their awareness of these problems, though, much of what they said reflected familiar assumptions about how to get things done. They seemed to convey a double message, urging innovation based in new values while imposing restrictions rooted in the old. That reflects the problem of the Open Government Initiative as a whole – trying to create a new collaborative culture by relying on current procedures and values that work against such change.

The January 11th workshop was the second in a series intended to open the process of implementation to collaborative discussion. Over 200 representatives of government agencies, open government advocates and consulting firms got together to review the early phase of agency responses to the Directive. (There’s an excellent collection of videos and background information of the workshops at the Open Government Playbook wiki site.)

The federal agencies represented were primarily the IT and public participation offices that are playing a lead role in developing the internet tools and interactive sites that the OGD requires. They showcased some of their promising work-in-progress as well as projects that are already up and running. They also brought up some of the hard problems they run into when trying to get managers and staff to embrace innovation.

One of those problems is fear. Many officials say they’re concerned about the potential misinterpretation of data by the public. Speakers mentioned that the fear of data “misinterpretation,” however, is often fear of disagreement or potential embarrassment. They urged their colleagues to think of this differently – as an opportunity to explore differences that could lead to improvement. That would mean regarding the public as a partner rather than a threat.

They also pointed to a fear of experimenting with new approaches and urged that staff develop a mindset that permitted a cycle of testing, failure and improvement. Trying new methods often involves failure, and one of the purposes of public testing and review is to gather ideas on how to make constructive changes.

It’s refreshing to know that many agencies have innovators urging new attitudes of openness. Those are important voices in any change process. The problem is that the system currently makes the fears they identify as reasonable responses to prevailing norms and values. That reality came through in other statements and presentations.

There were concerns about moving too fast, since other directives would doubtless follow, and about the lack of specificity in definitions and expectations. How far can we really go in openness? What’s the standard to guide our choices? The culture encourages an attitude of waiting for detailed orders from the top. Creativity and independent thinking don’t fit well in this system. It’s dangerous for your career if you get out in front of leadership and established policy or have your name linked to mistakes and failed projects.

These realities make people cautious, and that means implementing a sweeping new directive is likely to happen very slowly. Deadlines will be met, but the products may be sketchy, echoing general principles and laying out timelines of generic planning steps. That’s a common problem with government but another sign that speed and career safety do not go hand in hand.

At the very least, a new set of performance standards will be needed to make it safe for staff and managers alike to experiment and take a lead in innovative forms of collaboration. Those standards would also have to be modeled in the day-to day behavior and attitudes of leaders and managers at all levels.

The messages to federal agencies and staff, then, are contradictory. On the surface, the OGD says, move fast, but the culture of the system says, go slow.

Continuing to create expectations of rapid change through directives and the miracle of internet technology is bound to lead to disappointment.

From John Folk-Williams's blog Cross Collaborate

More On ‘Bad Faith’ Mediation In Texas (1/25/10)
Holly Hayes Bovio

In the Winter edition of the Texas Mediator, Susan Schultz calls for the “mediation community to engage in communal reflection” regarding the passage of the bad faith section of Texas HB 2256 which requires the mediator to report “bad faith mediation”. Overall, the bill provides a procedure for mediation of out-of-network health benefit claim disputes. (read more here)

In her article, ‘Bad Faith Mediation: Bad News for Mediators’, Ms. Schultz states, “while the new law may be a positive step toward the use of dispute resolution processes generally, it raises particular concerns with its structure of the mediation process” raising the following questions for mediators:

“What are the fundamental values of mediation? How do we safeguard these values? What have we done to educate the public/what more could we do? How do we educate legislators and staff members? What are our resources? Are we using them efficiently?”

As posted on Disputing (read the post here), Texas mediators operate under the Alternate Dispute Resolution Procedures (Chapter 154) of the Civil Practice & Remedies Code which provides in Section 154.053(c) that “[u]nless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.” Reporting bad faith mediation is in direct conflict with the Code under which mediators operate in Texas.

Ms. Schultz refers also to the subchapter of the Texas ADR Procedures Act devoted to “impartial third parties”. She asks, “How does the mediator build trust among the parties and maintain impartiality when the mediator is also tasked with reporting bad faith based on each party’s conduct? Making the mediator the watchdog for bad faith is not consistent with impartiality.”

What are the next steps in the implementation of HB 2256?

The Texas Department of Insurance (TDI) states in its ‘Implementation Plan for the 81st Legislative Session’, it is required to “adopt rules re: complaint form and processing”. TDI held a public meeting on September 9, 2009, regarding rule making for the bill and is working on a draft rule. On its website, TDI provides information regarding ‘Mediation for Out-of-Network Hospital-based Health Care Provider Claims’ and lists eligibility criteria to request mediation. (read more here)

The Chief Administrative Law Judge of the State Office of Administrative Hearings (SOAH) is charged with appointing a mediator from a list of qualified mediators maintained by SOAH. Mediators are randomly assigned to cases unless the parties select and agree upon another mediator. (read more here)

In the long term, concern with the bad faith section of HB 2256 is that without appropriate feedback from the ADR community, this section may be copied into other bills and may become standard procedure. Ms. Schultz asks, “Questions abound: What should we do?” We welcome your thoughts on the question of the long-term impact of the bad faith section of HB 2256, ways to safeguard the fundamental values of mediation and how to educate the public and legislators/staff members about those values.

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

The Use And Abuse Of The Joint Session (1/18/10)
Michael P. Carbone
Traditionally, mediations of litigated cases begin with a joint session in which the mediator invites both sides to explain their case. The mediator moderates the discussion to insure that each person has an opportunity to speak without interruption. Time may also be provided for rebuttals or to pose questions to the other side.

Recently we have seen a preference on the part of many lawyers to change the model so that the joint session is either abbreviated or eliminated. The reasons for this preference appear to be twofold: a desire to save time by avoiding restatement of positions; and unpleasant experiences with joint sessions that have not been properly managed.

Admittedly, there may be sound reasons for avoiding a joint session in some cases. If there is a high level of animosity or tension, it may be unwise to start with all participants in the same room. The joint session may have to be omitted or at least put off until later in the day. Omitting it should not be done routinely, however, because it provides important opportunities.

Make an Effective Opening Statement. The joint session is your opportunity to make an opening statement, in which you can accomplish several things.

     • Speak directly, but politely, to the other side.

     • Address your remarks to the opposing party and not just to counsel. Prior to the mediation all communications will probably have gone through the filter of opposing counsel, who may put his or her own spin on them. Hearing directly from you should be more effective.

     • Talk in a realistic way about what a fact finder is likely to conclude from the evidence, not about what “really happened.” You may not change the other side’s mind, but you may be able to get them thinking about how a trial would play out.

     • Acknowledge any weaknesses in your case rather than waiting for the other side to bring them up. Explain how you plan to deal with them if the case has to be tried.

     • Give an effective reply, especially if you represent the plaintiff. You can use this time to summarize the arguments made by the other side, showing that you listened carefully to what they had to say, stating where you agree, but pointing out where you disagree.

     • If your client presents well, and especially if he or she has not previously been deposed, the joint session will be a good opportunity to let the client speak.

Engage in Direct Dialogue. The joint session presents an excellent opportunity for parties to talk across the table and to see what their disputes really are all about. Parties usually seem quite sure that they know what the facts are, but facts are almost always in dispute. A direct exchange of opposing views will allow everyone to focus on the differences. By contrast, having the mediator shuttle between caucuses in an attempt to explain differing versions of the facts is far less effective and wastes valuable time. So long as all of the participants are interested in having a civilized conversation, a dialogue about the facts can be a very productive exercise.

Deal With Emotional Obstacles. A person who has had a strong emotional reaction to what has happened to them comes to the mediation wanting to be heard by the other side. The joint session can be the best means to that end, and for most parties it will be as close as they get to a day in court.

If you are on the other side of the case, you may not be anxious to hear the other party complaining or blowing off steam. Still, until the emotional obstacle has been removed, any progress toward an agreement will be difficult at best. Though it may test your patience, you should probably sit and listen politely.

Apologize. The value of an apology should never be overlooked. It may not settle the case by itself, but it can go a long way. An apology is not an admission of fault and should not be viewed as a sign of weakness. It is just an expression of empathy for what the injured party is feeling. Apologies must be sincere and not self-serving, and they are best given in person rather than through the mediator. A joint session, or else a special caucus, is the right setting for an apology.

Set the Tone. The attorneys’ statements in the joint session can set the tone for a productive mediation. They should be powerful, but low-keyed. You want to project an air of quiet confidence rather than a sense of righteousness. As in the position paper, the emphasis should be primarily on facts, rather than on legal theories or accusations.

Above all else, you must express your willingness to settle. Agreements are much easier to reach when the other side can see that you have the right attitude and that you are willing to take their point of view into account.

Present More Information. Joint sessions can be used more than once during the course of the mediation and for more than one purpose. The mediator may discover information in caucus that needs to be given to the other side, and that can best be communicated by reconvening all participants.

Make an Agreement. Sometimes parties can actually negotiate their agreement across the table. These cases usually involve business disputes in which the parties are sophisticated negotiators, accustomed to dealing directly instead of going through an intermediary. The principals rather than the lawyers will often take the lead. When the parties are not represented by counsel, it is not unusual at all to see a case settled in joint session.

An Important Caveat: Avoid Abuses. You must avoid threats, offensive remarks, and rude behavior. The use of words such as “lie,” “cheat,” “defraud,” and “malicious prosecution” is counterproductive. When you are tempted to use the joint session as an opportunity to intimidate the other side or to put them in their place, ask yourself again: Who is your audience? Will these tactics make them more inclined to see things your way? Or will they just harden their resistance? There is a line between “venting” and being abusive toward the other side. Expect the mediator to intervene if that line is crossed.

From Michael P. Carbone’s Mediation Strategies Blog

Think With Your Head And Your Heart! (1/18/10)
Phyllis Pollack

      Have you ever made a decision because it “felt” right? That is, you can’t explain the rationale or logic behind how and why you decided what you did, but deep in your “gut”, you “know” you made the “right” decision simply because it “felt” right.
 

      It turns out that you are not alone. All of us have made such decisions because we are “wired” to decide things, using not just our rational and logical brain, but our emotional brain as well. Our most “logical,” and “rational” decisions are emotionally based.
 

      All of this and more is explained in a book that I just finished reading entitled,  How We Decide by Jonah Lehrer (Houghton Mifflin Harcourt 2009). In it, Lehrer explains that we do, indeed, use emotions to make decisions.
 

      How? Each of us have dopamine neurons. These are the molecular source of our feelings. (Id. at p. 47). It is the release of the dopamine that makes us feel good; it is “chemical bliss”, flooding the brain with a “feel – good chemical” (Id. at p. 61). To achieve this “chemical bliss” on a repeat basis, we will engage in the behavior that causes it, again and again. Similarly, to the extent that these neurotransmitters tell us to be wary, we will listen to them and avoid similar situations in the future: The dopamine neurons immediately stop firing and as a result we experience a negative emotion. (Id. at p. 47) which “teaches” us – not to do “that” again!
 

      In short,

      “Dopamine neurons automatically detect the subtle patterns that we would otherwise fail to notice; they assimilate all the data that we can’t consciously comprehend. And then, once they come up with a set of refined predictions about how the world works, they translate these predictions into emotions.” (Id. at p. 48).   

 
       Thus, they will get excited by predictable rewards and get even more excited by unpredictable rewards:

      “The purpose of this dopamine surge is to make the brain pay attention to new, and potentially important, stimuli. Sometimes, this cellular surprise can trigger negative feelings such as fear. . . .

      “Most of the time, the brain will eventually get over its astonishment. It’ll figure out which events predict the reward, and the dopamine neurons will stop releasing so much of the neurotransmitter. . . .” (Id. at p. 60).

       For example, as Lehrer explains, suppose you have to make a decision on whether to purchase a stock. You review all the financial data but cannot keep it all straight, much less process all of the information. But you have to make a decision – and so you do so – based on what “feels” right. In truth,

      “. . . your emotions will ‘reveal a remarkable degree of sensitivity’ to the actual performance of all of the different securities. The investments that rose in value will be associated with the most positive emotions, while the shares that went down in value will trigger a vague sense of unease. These wise yet inexplicable feelings are an essential part of the decision-making process. Even when we think we know nothing, our brain know something. That’s what our feelings are trying to tell us.” (Id. at p. 48).

       The author goes into a lot more detail than I am able to in this blog: it is quite fascinating and has taught me that even the most “rational”, and “logical” decision is emotionally based.
 

      During a mediation, I sometimes implore the participants to “think with their heads, not with their hearts.” After reading this book, I will no longer do so as I know this is impossible: sometimes our best decisions are emotionally based!
 

      . . .Just something to think about.

From the Blog of Phyllis G. Pollack.

Do Attorneys' "Get In The Way" Of Mediator Assisted Negotiations? (1/18/10)
Victoria Pynchon

The not so secret opinion among mediators is that attorneys make settlement more difficult.  Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators  tend to say "mediation would great if it weren't for the lawyers."

Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.  

I can't say lawyers are a problem because:  (1) they're my job; and, (2) they're "my people" in the "tribal" sense.  A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know.  And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.

It was therefore no surprise to see a recent Harvard Negotiation Journal article (thanks to Don Philbin of the Disputing Blog and his indispensable ADR Toolbox) that one group of academics has asked whether attorneys have a Negative Impact . . . on Mediation Outcomes.

Let's start with this particularly widespread canard from the article:

Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client  (citations omitted).  Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client].   In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1

Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach.  What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?

Here's the bottom line assessment (please read the article yourself to draw your own conclusions).

The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.

Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.

So the Myth Busters of this study conclude that attorneys:

1. don't "significantly affect the settlement rate" /2
2. don't significantly affect "the perceived fairness of the process";
3. don't significantly affect "the parties' level of satisfaction with the agreement; and,
4. don't significantly affect the "parties' level of trust that the agreement will be honored."

This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.

What did litigants report to the authors of this article?  They indicated that attorneys adversely affected mediation outcomes in two ways:  (1)  they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."

Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.

Please read the article for proposed solutions to the reconciliation issue.  As to the remainder of the study's findings, I have this to say:

1. whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group.  Our "reality," especially as it appears in a group setting, is "co-created."  See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world."  Id. at 218.)
2. try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved. 
3. who is therefore responsible for the good and who responsible for the purportedly bad results of mediation?  That's easy:  EVERYONE IS.

That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all.  Remember your University philosophy class? Thesis, Antithesis, Synthesis.  We need people willing to state the negative to problem solve it positively.  The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command. 

If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).

The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to [us] to write [our] own book. Paul Auster, The Decisive Moment from The Art of Hunger.

The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).

Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.

Joseph Campbell - The Power of Myth, with Bill Moyers, as quoted in Derek Parrott's Blog.

Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the  way, we can't credit credit nor bear all the responsibility for anything.  We are all capable.  We are all accountable.  And we all contribute something to the whole.

So we can stop pretending to be better than we are now.  We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do.  We're part of the team.  We're in it together.  Isn't that good news for the New Year?

And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.

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1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."

2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.

From Settle It Now Negotiation Blog