The Place of an Old Fashioned Deal Broker in the Future of Conflict Management: An Interview with Kenneth Feinberg
Robert Benjamin recently interviewed Kenneth Feinberg for Mediate.com about his career over the last 30 years. He has managed the settlement of complex and difficult claims in the wake of some of the largest catastrophic events we have faced as a society and has pioneered an approach that has altered, not only the legal landscape, but also our culture. Read the interview in this article.
Mediate.com Announces Mediation Futures Project
In Celebration of our 20th Year, Mediate.com has announced
The Mediation Futures Project. Ultimately, our goal is to develop a set of blueprints for the mediation field most effectively moving into the future. Submit your article or comment today!
Game-Playing in Negotiation and Mediation: Machiavelli’s Place At the Table
While often dismissed as irrational, disingenuous, unethical or “Machiavellian,” game playing strategies and devices are a natural and necessary part of the negotiation and mediation of difficult issues and controversies. If acknowledged and monitored thoughtfully, gaming behavior allows participants a measure of self-protection and provides a lubricant for the constructive, creative and ethical management of complex issues.
The Art and Practice of Second-Guessing Negotiated Deals
The recent exchange of "the last POW " American soldier in the Afghanistan War for five Guantanomo prisoners, reported to have been mediated by Quatar between the Taliban and the United States, has drawn scathing criticism. Beyond the politics, it highlights the unique vulnerability of negotiated and mediated agreements to second-guessing. Ironically, the secrecy and informality that often make negotiative processes work also breeds skepticism and doubt. This re-published article remains timely and relevant to an understanding by all practitioners, that negotiation and mediation are risky businesses.
Downton Abbey Negotiations: A Primer on Surviving in Turbulent Times, Then and Now
The PBS television drama series, Downton Abbey, depicting the turbulent social, cultural, and economic times in England a century ago, has justifiably captured the imagination and interest of many viewers. Less noticed is the unusual attention given to the negotiations that necessarily occurred and allowed people to endure those disruptions. Negotiation strategies and techniques are presented throughout in a thoughtful and realistic manner that makes the program relevant to present day practice and worthy of study.
From Robert Benjamin
In the last 50 years, perhaps more so than at any other time in human history, focused attention has been given to the study and disciplined practice of negotiation, mediation, and other means of managing issues, controversies and conflicts throughout the world. The importance of this development can't be underestimated for the future of the planet. The emergence and development of Mediate.com over the better part of the past 2 decades as the most recognized and long standing on-line resource, is not only reflective of this focus but has been a significant contributor. Mediate.com has deservedly earned the reputation as a primary, 'first stop' resource for both the general public and professionals. On the most basic level, the articles and resources broaden the public awareness about negotiative processes. For practitioners and theorists, Mediate.com provides an essential forum to exchange ideas, discuss issues and advance their thinking about all aspects of practice.
Love, Eros, and Negotiation
Even linking the notions of love with negotiation rubs some people the wrong way. Love, after all, should be pure and not subject to vicissitudes of business. And, negotiation, being business, many believe should never be personal. In most relationships, however, personal and business, love and negotiation are inseparable and he denial of that reality frequently and unnecessarily contribute to the end of many relationships.
Obama’s “Red Line”: The Use of Ultimatums and Strategies of Commitment in Negotiation
To many, an ultimatum -- “drawing a line in the sand” -- is a blunt, if not primitive, negotiation tactic. But it continues to serve a purpose and remains in use in the refined form of a strategic commitment. It is an evolutionary cross between the human desire to honorably defend a principle and the enforcement of a blood oath that demands a vengeful honor killing. To be taken seriously and gain credibility, a negotiator or mediator must strategically demonstrate commitment.
Lincoln Unchained: A Principled Hardball Negotiator For the Ages - Film Review
“Lincoln” is worthy of admission to the elite pantheon of excellent films, few in number, that focus on negotiation. More than merely a well-drawn historical drama, as some have characterized it, the film pushes beyond the simplistic mythology of Lincoln as the great emancipator and savior of the Union to examine the reality of what is required to negotiate difficult human events. Not surprisingly, little has changed in the intervening 150 years, which makes the film deserving of careful review by teachers and practitioners of negotiation and mediation.
Negotiation in the Shadows: A Book Review of Lean In: Women, Work, and the Will to Lead, by Sheryl Sandberg
Sheryl Sandberg is the current COO of Facebook. Her book is intended as a practical guide to the continuing challenge of overcoming the still elusive and unrealized goal of gender equality. She has all the necessary credentials to be a valuable spokesperson and to garner the outsized media attention the topic deserves. However, despite offering useful suggestions about how women can affirmatively assert themselves to be taken more seriously and obtain the positions of leadership they deserve, she fails to give any significant attention to the negotiation process and skills essential to realistically “lean in” and achieve those objectives.
Romantic Negotiations: The Prenuptial Agreement
Pre-marital negotiations and prenuptial agreements remain necessary and useful, useful, and far from seeding distrust, counter-intuitively, can create a greater sense of intimacy in a relationship. In marriage, as in any partnership, for the participants to have an early opportunity to directly discuss and negotiate the difficult issues they may well encounter, allows for the grounded trust essential for a resilient and romantic relationship to emerge.
Negotiation Theory on the Edge of the Fiscal Cliff: The Limits of Rationality
In a Washington Post article, the views of some well-regarded negotiation experts cast doubt on the quality and efficacy of the ongoing "fiscal cliff" negotiations between President Obama and Speaker Boehner, noting how much that process is at odds with the civil, rational, and principled model they purport to teach and claim is practiced in other contexts. It may, however, be their theory of negotiation that is insufficient, not only as applied to the political sphere, but in all negotiations, by failing to account for the predictable irrationality of people in decision-making.
Negotiating Happiness: Managing Peoples' Predictably Irrational Focusing Illusions. Part 2: Negotiation Strategies and Techniques
'Rationally Irrational' Negotiation Strategies and Techniques For Managing Focusing Illusions. This is Part 2 or a two part series. Where Part 1 of Negotiating Happiness suggested how most people concoct a focusing illusion of what will make them happy in life and that most conflicts can usefully be understood as collisions between peoples' differing notions of happiness, Part 2 addresses the 'rationally irrational' negotiation strategies and techniques that are necessary to shift and re-direct peoples' focusing illusions in order to more effectively settle matters in dispute.
Negotiating Happiness: Managing Peoples’ Predictably Irrational “Focusing Illusions” - Part 1
This is Part 1 of a two-part series. This first part discusses how most human beings concoct out of their 'messy' human brains, an emotional state, often labeled 'irrational,' which neuroscientists and psychologists identify as a focusing illusion of happiness. Most conflicts can be usefully understood as a collision between peoples' differing notions of happiness an often resistant to remediation by reasoned approaches. The forthcoming Part 2 will consider the 'rationally irrational' negotiation strategies and techniques necessary to manage focusing illusions.
The Natural History of Negotiation and Mediation: The Evolution of Negotiative Behaviors, Rituals and Approaches (updated)
Negotiative behavior, including negotiation and mediation, has been the primary means by which human being have survived and conducted affairs throughout history. As society has become more politically, socially and technologically complex, so too have negotiative behaviors adapted and evolved. The natural history of negotiation and mediation includes five discernible approaches and each continues to be observable and relevant in present day practice.
Negotiating With Wild Things - A Tribute to Maurice Sendak
Sendak, not unlike many experienced conflict mediators, knew it was sometimes necessary to break the rules. By engaging and joining with “wild things,” Sendak demonstrates the type of authenticity that buys a mediator credibility to establish the trust necessary to move forward.
On Negotiation, Extremism and History - Book Review of Brown's and Marriott's ADR Principles and Practice
The conflict terrain of the last 30 years is an important backdrop to a complete appreciation of ADR Principles and Practice, Third Edition, by Henry Brown and Arthur Marriott, published by Sweet and Maxwell in 2011. The authors, both from the United Kingdom, demonstrate an appreciation for the vagaries of history and gritty realities of mediation, arbitration and conflict management practice garnered from many years of life and professional experience.
Gov. Cuomo’s Excellent Negotiation: A Lesson from the Real World
While most of the attention on the recent passage of the New York Marriage Equality Act is understandably on the legal, political, social policy, and civil rights implications, the opportunity to study the negotiation process marshaled by Governor Andrew Cuomo should not be missed, especially by those who study and practice negotiation, mediation and conflict management. Cuomo’s negotiation success was less the result of reasoned persuasion and more about his strategic, flexible and effective management of people and circumstance, many of which were unexpected and predictably irrational.
Yarn and Seed Bombing: Guerrilla Art Tactics for Negotiators and Conflict Mediators
A close variation of yarn and seed bombing are the guerrilla tactics used intuitively, if not intentionally, by the best and most experienced mediators and negotiators, especially when the issues involved are complex and the parties are stuck in their positions.
Kitsch, Camp, “Fairly Legal” And The Selling Of Mediation
Now, two weeks after the debut of much hyped television program, “Fairly Legal,” that has stirred a remarkable amount of buzz---at least among professional mediators--- it might be a good time to consider the social and cultural significance and marketing value of such media events.
The Politics Of Professional Mediators: Are We As Neutral As We Pretend: A Rejoinder To Critics of ‘Obama As Negotiator in Chief’
Mediators and negotiators are, after all, human. Notwithstanding this startling observation, however, many mediators seem to feel that their claim to “neutrality’ is somehow contaminated if their professional work is brought close to any discussion of politics---even if 98% of politics involves negotiation.
Obama As “Negotiator In Chief”: A Help Or Hindrance For Professional Conflict Managers?
As President Obama negotiates his way through the myriad of difficult and complex issues, the public is observing his approach. Whether they see negotiation as the “cursed” process of the appeaser or sellout, as they have historically, or as an effective mode of conflict management that disposes people to negotiate or mediate difficulties in their own personal and business affairs, depends in large part on his example. This is a quick and dirty “arm chair” quarterbacking of his strategy---
or lack thereof.
“Mediation Is A Gamble”: A Sobering Review And Critique Of Mortgage Mediation Programs
Home foreclosures have reached a crisis level nationwide, significantly contributing to a tepid economic recovery. For perhaps the first time in history, mediation has been systematically employed in an innovative attempt to manage some parts of this crisis. Early reviews are, however, mixed. Gretchen Mortgenson, a well regarded business reporter for the New York Times wrote an article critical of the process as it is being done in Nevada, one of the hardest hit states. This article examines the professional and ethical issues and concerns by mediators practicing in large scale mediation programs.
"Views from the Eye of the Storm" Video Interviews with Leading Mediators
Mediate.com now offers our membership dozens of hour-long interviews with many of the world's leading mediators. You can watch the Complete Interviews as a benefit of your Mediate.com Premium Membership, or search interview clips at Mediate.com Video Search. Go and take a look. You will be impressed.
The Mediator in Technocracy: The Future of Conflict Management Practice
Conflict management work should fare well in the rapidly proliferating
administrative and bureaucratic maze of what is becoming known as the
technocracy. Based on a belief in the power of rational governance to
correct complex issue, a gaggle of laws have been generated requiring
constant interpretation and untold agencies which often work at cross
purposes and threaten to produce as many snafus as solutions. The only
salvation may well be the human touch of negotiators and mediators who
are able to skillfully work creatively and common sensibly outside the
bounds of traditional notions of rationality to bring about workable
Mediation In Politics And The Politics Of Mediation
The practice of mediation and negotiation in political dealings appears so obvious and inextricable so as to deny the need for explanation. So I have often been taken aback by criticisms of many of the articles I have written observing and commenting on the use of these strategies by political figures and in political or politicized contexts. Those criticisms are not mild.
Mediation and Negotiation Are Designated As Criminal Acts: Maybe It’s For the Better
Should you be a private consultant or working for an NGO, e.g., Mediators Without Borders, Mercy Corps, or the Red Cross, who might dare to meet with, provide training in mediation, or suggest negotiation strategies that might encourage a nonviolent approach to any “designated” foreign “terrorist” organization, you can now be charged with the crime of “material support” in violation of the Federal Patriot Act of 2001.
Selling Mediation: The 9 ½ Best Guerrilla Marketing Strategies and Techniques Drawn From Neuroscience
One of the primary reasons that, after some 30 years, the use and acceptance of negotiation and its first cousin mediation remain underwhelming is mediators themselves. Most continue to use reason and logic as their marketing strategy of choice. Unfortunately, logic and reason are some of the least effective techniques for convincing almost anyone of anything---especially the value of negotiation.
Health Insurance Reform: Giving The Devil His Due the Importance of Back Room Deals, Dirty Politics and Subversive Negotiation
It’s the morning after and I have a ‘hangover’ from watching the twist and turns leading up to the US Congress’s passage of health care reform. As a negotiator and mediator this theatre of real life easily competes with the staged versions and is my recreational drug of choice. The meandering of this health care legislation climaxing with the vote last night, has been a spectacle that abounds in valuable lessons and teachable moments for those of us engaged in conflict management work.
Killing Mediation: The Specialized, Professionalized And Neutralized Mediator
Developing a distinct field and profession of mediation has been a goal of many practitioners for many years. As an unintended consequence, practice effectiveness has been compromised and the integrity of mediators as ‘honest brokers” has been undermined. Specifically, mediators have sought to become more specialized in practice and become preoccupied with promulgating overwrought professional standards and ethical canons in order to seek legitimacy and acceptance on par with established traditional professions. In so doing, much of the core systemic perspective vital for competent mediation practice has been abandoned and the range of motion and creativity essential for a mediator to nurture agreements in difficult matters has been severely cropped and circumscribed.
On Becoming A Rationally Irrational Negotiator/Mediator - Part 2: The Grip of Rationalism and the Myth of Rationality
Fair warning: this part, on the origins of rationalism, will likely be hard for most practitioners to read. The demands of earning a living and being practice focused leave little time or patience for what appears to be the study of abstract and esoteric topics such as appreciating the extent to which Western history, science, and philosophy have directly shaped the basic working assumptions that under gird negotiation and mediation practice and training. Given how deeply ingrained and pervasive the influence of rational thinking is in the cultural ethos, however, awareness is essential if the rationalist thinking is to be reconsidered and modified.
Me and Joe Lieberman: Fantasy Negotiations and Little Irrationalities
Joe Lieberman, the independent Senator from Connecticut, pissed me off today. First, he is screwing up the pending health care reform legislation, and second, he is forcing me to consider my commitment to negotiation and mediation. Others seem to enjoy fantasy football or picking the perfect baseball team. My amusement, as twisted as some might find it, is picturing myself in ‘the room’ negotiating the big stuff, like health care policy ‘reform’ pending in the U.S. Congress.
On Becoming a Rationally Irrational Negotiator/Mediator: The 'Messy' Human Brain and the 'Myth of Rationality' - Part 1 of 5: The Irrationality of Being Too Rational
While professionals like to think of themselves as rational
actors; they seldom are. Often, in fact, they are 'irrationally rational."
Neuroscientists and cognitive psychologists have discovered strong evidence tthat the functioning of the human brain is 'messy' affair and all of us are prone to being predictably irrational in our decision making. This throws into serious question the basic rationalist assumptions that underpin current negotiation and mediation practice, theory and training. If reason and emotion are inseparable in our thinking, and what is viewed as rational or irrational behavior is inevitably blurred, then distinctions hamper effective and creative practice. Practitioners might do well to consider how to become 'rationally irrational.'
Jack Cooley - A Paradox of Quiet Brilliance
John W. "Jack" Cooley, died of cancer at the age of 65, on July 21, 2009, in Chicago, Illinois. He was a highly regarded mediator and arbitrator as well as an inspired teacher, theorist and writer in the field. For me, the highlight of many conferences and meetings over the past years was a quiet dinner or drink with Jack Cooley, often before heading out to listen to jazz. With his passing, we can't allow his brilliance to slip away.
Negotiators And Snipers: On Strategies For Managing Piracy On The High Seas---And Elsewhere
Few international incidents end with the successful finality and clarity as did the rescue of the Maerske ship Captain, Richard Phillips, from
the clutches of Somali pirates in mid April. Three clean kill shots
by U.S.Navy snipers settled the stand-off. Most people in the Western world felt relieved and good about the outcome. Maybe assassination was warranted. Clearly, piracy cannot be tolerated. However, the pursuit of both negotiation and assassination strategies at the same time is troublesome and may be costly in the longer term. If negotiation appears to be merely a pretext for snipers' to act, then will the trust essential for successful negotiations be lost in future negotiations?
The Science Behind The Sense: Exploring Cognitive Neuroscience In Decision Making
For four days in March, some 20 professionals, a majority of them experienced mediators, but also including a doctor, a few lawyers, professors and others professionally engaged in conflict management, problem solving and decision making, gathered at Duke University for an immersion course in cognitive neuroscience. This is the kind of emerging research stuff that practicing professionals should be aware of, but all too often are not. Presented by the newly formed Master Mediator Institute, founded by Robert Creo and Monique McKay, in conjunction with Duke University faculty, and led by the Co-Directors of the Center for Neuroeconomic Studies.
Obama The Negotiator: The Strategic Use of Anger
One of the few ways to endure the current economic catastrophe is to appreciate the event as theater. As President Obama goes head to head with the Wall Street folks, one can’t help but be intrigued by how the negotiations are played out. His dispassionate, reasoned demeanor has been noted and is reassuring, but the theater of negotiation sometimes requires dramatic flair. A flash of ‘irrational’ anger might be a useful negotiation technique---even if he has to authentically fake it.
The Joy Of Impasse: The Neuroscience Of ‘Insight’ And Creative Problem Solving
Most novice and experienced conflict mediators alike feel themselves viscerally tighten in the face of an impending impasse. The prospect of the parties in a dispute becoming locked up and unable to reach an agreement raises the ugly specter of failure for the practitioner who purports to offer a better way to manage conflict. However, current studies in neuroscience suggest that frustration can be useful in fomenting creative problem solving. Practitioners might do well to encourage impasse.
Cloaked Negotiation: Necessary Back-Channel, Under the Table and Surreptitious Strategies and Techniques to Make Deals Work
Cloaked and surreptitious negotiation strategies are commonly used but seldom openly discussed by conflict management practitioners. This, after all, is the shadow side of negotiation that goes against the grain of the more preferred. view of negotiation as a straightforward, ethically clean and rational enterprise, This article suggests the necessity and importance of those strategies in order to make deals work in the real world.
The Obama Presidency and the Future of the Conflict Management Business: The Mediative Leader and the Activist Mediator
While premature to presume, there is cause to believe, or at least to hope, based on the model of his presidential campaign that the leadership style and governance of President-Elect Barack Obama will be a boon to conflict management practice and a valuable endorsement of mediation.
Conflict Mediation In The Age Of Financial Cholera: Marketing Opportunities In The Midst Of Crisis
There should be good business available for conflict mediators in the current financial mess.
People I Hate, Negotiation and the Presidential Election
What is the "right stuff" to mediate or negotiate with people whose values you detest and actions you hate? How the current presidential election tests our principles and thinking about negotiation and lessons to be learned from history.
The Dirty, Risky Business of Negotiation: Ideology and the Risk of Appeasement
Fighting has the edge over negotiation as the first inclination of most people when faced with conflict. Our human brain chemistry lubricates the preference for warfare and the use of force, while negotiation, by contrast, requires a willed, determined and conscious effort.
Of War and Negotiation: Part 3, The Allure of War: If You Want Peace, Study War
Fighting, often including war---or flight, the avoidance of conflict, are the biological and emotional responses of animals and humans to a perceived threat or attack. Neuro transmitters fired in the brain correspond with feelings of fear or anger. Neuro-scientific studies strongly suggest that animals and humans are hard-wired to fight and there is a biological basis for the allure of war. By contrast, there is no corresponding neuro-biological inclination to negotiate.
Film Review: “John Adams” - The Reluctant Revolutionary and the Negotiation of the Declaration of Independence
The difficult process and personal agonies that surround the unfolding
of most significant human events seldom survive historical redaction and
oversimplification. The story of the Declaration of Independence is an
example of an event of great complexity has all too often been reduced
to drivel more worthy of a fairy tale, or worse, twisted and contorted
by politicians to suit their purposes. The quality of the writing and
production of "John Adams" offers an important glimpse into the
difficult negotiations behind the scenes that have been largely ignored,
and the nature of leadership that was required. John Adams, who has not
shared the limelight with the other 'founding fathers,' comes to life as
he shifts from law protector to rebellious law breaker, and transforms
from citizen to leader. Not your standard hero type in look, bearing or
demeanor, it is fascinating to observe Adams, a self described,
'obnoxious' ideologue, learn to negotiate in critical times
The Guerrilla vs. The Humanist Negotiator
This provocative article discusses and contrasts a hard-edged approach to negotiation with the recalcitrant Iranian administration that is in stark contrast to the more prevalent view of negotiation as a humanistic and rational enterprise. This goes to the heart of how negotiation and mediation are practiced, not just on a geopolitical level, but in all dispute contexts.
Wonks, Shamans, Warriors, Dealmakers & The Protean Leader
History may record the current presidential campaign as a turning point in how we think about leadership, choose a leader, and approach complex issues and difficult conflicts in the Twenty-First Century. The candidates present an interesting juxtaposition of leadership styles that is seldom so apparent. John McCain is the classic warrior, Hillary Clinton is the pragmatic, technical, problem-solving wonk, and Barack Obama has cornered the role of the moral/inspirational shaman.
Escaping The Tyranny Of Professionals: Determining Fitness To Mediate?
I was drawn to conflict management, specifically negotiation and mediation practice, where people are aided in making their own decisions in difficult situations, for two reasons. First, I’ve always been in trouble and figured I knew as much about conflict as most people I’ve ever met. The second reason follows from the first. Being in trouble, my life has involved a whole host of experts who presumed to determine my fitness and offer their ‘advice,’ perhaps more aptly described as orders or ‘you better or else’ recommendations, and I developed a healthy skepticism of professionals and other experts. So a recent posting on the New York City Dispute Resolution List-serv was troubling to me, both personally and professionally. It was straightforward and innocent enough, merely requesting “....resources and training available for individuals who work with adults with mental illness...in a supportive housing situation.” I had to think about what it was that disturbed me. What I fear are ever-growing risks of tyranny by professionals in our culture. While not intentional, screening protocols to determine capacity and fitness to mediate can be pernicious. They easily slip into becoming misguided efforts to subvert the first principle of mediation, parties’ self determination.
Of War and Negotiation: Part 2: The Passion Play - Tolstoy’s War and Peace
“Well, Prince, so Genoa and Lucca are now just family estates of the Bonapartes. But I warn you, if you don’t tell me that this means war, if you still try to defend the infamies and horrors perpetrated by that Antichrist----I really believe he is Antichrist---I will have nothing more to do with you and you are no longer my friend....”/ (1805 Book One, Chapter 1. Anna Scherer’s soiree, War and Peace, L. Tolstoy, p. 3.) So begins Tolstoy’s masterpiece with Anna Pavlovna Scherer remarking to Prince Kuragin at her soiree in Moscow in 1805, her view of the then current Napoleonic rampage through Europe that was soon to be directed toward Russia. The tone of that conversation was not so different from one I had with ‘Anne’, a modern day stand-in for Tolstoy’s Anna, at a /petite soiree---/a holiday open-house--- 202 years later and half a world away in Portland, Oregon. Most conflicts, regardless of the circumstances or context, follow the same script, be they personal, geo-political, or business disputes. In one way or another, their substance is about money, property, power and control, or truth, honor, and justice. The character casting, drawn from the original passion play, are, of course, clearly drawn between the hero/victim and the antagonist evil-doer, or Antichrist.** As a negotiator....probably not unlike an entomologist’s fascination with the behavior of ants under attack, I began to listen more closely; not so much with the particulars of the storyline, but for clues about how, if at all, it might be possible to shift and re-direct her anger and
Obama: Reflections Of A Hard Core Negotiator
On Thursday evening, January 3rd, 2008, I watched Barack Obama appear to channel Dr. Martin Luther King and President John F. Kennedy as he gave his ‘audacity of hope’ speech to his supporters after winning the Iowa Caucus. Even someone as constitutionally pessimistic as I am was moved; I wanted to take a chance and believe in the future of this country---again.
On American Arrogance: Styles of Mediation
A comment to one of my columns, “War and Negotiation: Lessons From the Europeans” drew the apparent anger and animus of at least one European, Christiana from the Netherlands (12/13/07). I found her response somewhat baffling, but the article apparently touched a nerve that is seldom discussed and worthy of discussion.
Of War and Negotiation: Lessons From The Europeans (Part 1)
This series of articles is extracted from a longer article titled, “Of War and Negotiation,” and originally developed from a keynote address presented at the European Mediation Conference in the City Hall of Vienna, Austria, September 28, 2007.
Jim Melamed is 2007 Recipient of ACR John Haynes Distinguished Mediator Award: A Tribute and Lament on the Field of Mediation
Writing this tribute to Jim Melamed is an honor, even if a troubling one. On the one hand, there could not be a more fitting recipient for this particular award, named for John Haynes, than Jim Melamed, the CEO and co-founder with John Helie of
Mediate.com. The work for which both the recipient and the namesake of this award are known highlights what has been most compelling and important about the field of conflict mediation. On the other hand, this award can also not help but highlight the ebbing of the energy that first gave rise to mediation practice and a falling away from some of the first principles. What John Haynes was, and Jim Melamed continues to be, is a tireless entrepreneur doing the critically important work of selling mediation in a culture that does not exactly welcome the idea of negotiating differences with open arms.
From Robert Benjamin
Nothing could be higher praise than to observe that the purpose and now well established and pervasive presence of Mediate.com exemplifies the highest values and importance of mediative and facilitative processes in our culture. Mediate.com offers a forum where matters of concern to anyone engaged in conflict management, from the public to the professional, can turn for an invaluable resource. It reflects the best and most capable application of current technology to our thinking and approach to dealing with the disputes and difficulties that have been around since the beginning of human kind. I am proud to have the opportunity to play a small part in the ongoing development of a truly unique and quality endeavor.
The Beauty of Conflict: Art Lessons, Lateral Thinking, and Creative Problem Solving
Viewing art -- painting, sculpture and photography -- is a valuable learning method for mediators to develop their intuitive sensibilities and problem solving ability; to learn to 'think out of the box ' and work creatively, not just talk about it. Many great artists from Titian, Gentileschi and Caravaggio in the Renaissance to Picasso, Goya and Richter in present times have dealt with the same issues presented in conflict mediation: bias, perspective and authenticity, among others. The article won the Wisconsin Association of Mediators, Mediation Journal, Charles "Chic" Nichol Award in February, 2007.
Safety Is Risky Business
There is, as Edward Tenner terms it, a ‘revenge effect,’ an unintended consequence to this relentless pursuit of safety: more conflict, greater threats, and the attraction of greater risk-taking.
Reel Negotiation: The Good, The Bad, And The Ugly Reflections Of Negotiation And Mediation In Film
The visual experience of watching movie scenes is, needless to say, a great learning tool that helps to illustrate, clarify or frame the discussion not only about negotiation and mediation, strategies, techniques and skills, but approaches to problem solving and leadership as well. Many of our favorites are listed below with brief annotations as to why and how we think they might be helpful, along with references to articles and reviews of a few movies that are especially important.
The ‘Truthiness’ Virus Has Infected The Conflict Management Field
‘Truthiness’--- spell check does not yet recognize the word--- is that quality of a statement, or pontification, that because it feels and sounds right is presumed and presented to be the truth. ‘Truthiness,’ as Steven Colbert (The Colbert Report) regularly observes in his biting satire of overly botoxed and perfectly coiffed media journalists in general, and twaddle spewing pundits in particular, has become the coin of the realm.
Sid Lezak: Rabbi Without Portfolio
Lezak could have been a character right out of a story by his contemporary, the great Chicago writer, Studs Terkel. An unassuming guy, who by his telling just fell into being the United States Attorney and remained through six administrations, both Democrat and Republican. He continued until his dying day to be respected by officials of every faith, race and political affiliation. He was the face of justice through some of the roughest times in our country’s history, making hard decisions and enforcing the law, without losing his bearings. For him, the rule of law was necessarily tempered by compassion and common sense. That’s what made him so exceptional, especially in this day and age. As he, himself, suggested, that’s also what drew him to practice mediation.
Film Review: Thank You For Smoking Offers An Advanced Tutorial in Negotiation Strategies and Ethics
The film forces us to focus on the nature of message ‘spinning,’ word twisting, and other communication and negotiation strategies used as much to confuse as to clarify. This is the stuff of advocating, selling, and persuading with which we are bombarded daily in our ‘infomercial’ society. In watching the movie, the viewer is obligated to separate the strategies and techniques of influencing from the purposes and ends to which they are placed in service. The fact that manipulative and deceptive strategies are used is less troubling than whether it is being done for good or ill.
Congressman John Lewis Receives ABA DR Section Lifetime Achievement Award
Congressman John Lewis, long-time Georgia representative and national civil rights leader, received the American Bar Association Dispute Resolution Section's Lifetime Achievement Award at the Section's annual meeting in Atlanta (April 2006). Read about Congressman Lewis' remarkable life and watch his acceptance speech and interview!
Has Mediation Crashed?
A story picked up from the Associated Press that was published by The Seattle Times on March 2, 2006 is titled “Oregon Teen Heads to Juvenile Detention For Pinching Another Boy’s Nipple.” Reading this, I’m already up in arms when it gets worse. It appears from the article as if this youth has been in a mediation program that required the “offender” to describe his “crime” in detail and explain his “thinking errors.” My worst fears surge forward as I conjure up images of Stalinesque tactics and a government bureau of thought police.
Interview of Stephanie Coontz
This is an interview with Stephanie Coontz on the role of negotiation in marriage, family and divorce. Stephanie Coontz is a Professor of History and Family Studies at Evergreen State College in Evergreen, Washington, and the Director of Public Education for the Council on Contemporary Families. She is the author of "Marriage, A History" (2005), "The Way We Never Were: American Families and the Nostalga Trap" (1993) and "The Way We Really Are: Ending the War Over America’s Changing Famliies" (1998).
Should We Negotiate with Hamas? Interview with Former Israeli Foreign Minister Shlomo Ben-Ami
The prevalent view about negotiation with Hamas is to take a tough stance. This is an interview with former Israeli Foreign Minister Shlomo Ben-Ami who thinks otherwise. He thinks we can do business with Hamas and we can negotiate. Here are Mr. Ben-Ami's pertinent comments drawn from a debate between him and another expert on the Israeli-Palestinian history, Norman Finkelstein, sponsored by Democracy Now, and moderated by Amy Goodman on February 14, 2006.
Character Traits Of Working Dogs And Conflict Mediators: ‘Systematic Intuition’ And Tenacity
Conflict mediators are a strange breed. The best ones, not unlike police or firefighters, are drawn to manage difficult situations and heated controversies that most other people would just as soon avoid. Interviewing close to fifty recognized conflict management practitioners and teachers over the last two years for the Mediate.Com video series, “The Mediators: Views From the Eye of the Storm,” offered me a unique perspective and the opportunity to make some observations about the shared character traits of those drawn to what may yet become a recognized field.
Our Once and (Dimming?) Future Hope for a Professional Home: Peter Adler’s Letter to the Board of ACR
This article is the second of a series devoted to the state of ACR. In the first article, “Dirty Little Secrets,” gives the background and sets context. In short, many feel ACR is in serious trouble and, if it is not already too late, there needs to be a serious discussion about ACR's future.
Dirty Little Secrets: ACR's “Girly Man” Non-Controversy
This article is the first of a series devoted to the state of The Association for Conflict Resolution (ACR).
Our Culture of Conflict: Snorts and Retorts of an Untamed Brat
I found an article in the New York Times a few weeks ago quite aggravating. It was about the boorish behavior of health club members and how incidents of discourteous and downright hostile actions were increasing. The topic is revealing, not so much in itself, but as an important microcosm within which to consider how we are encouraged to think about and handle conflicts and disputes in our culture. There is a carry over effect: how we deal with day to day disputes sets the tone for how we handle more important conflicts in our personal lives, workplaces, schools and in the world.
The Mediator as Moralist Bully
As a presenter, I’d always wondered when I would be found out—maybe this audience would discover that I was living a lie: when I was a child I had been a bully. That’s not all. There are times I could qualify for being ‘abusive,’ certainly ‘passive-aggressive,’ and even that new descriptor that effortlessly rolls off the tongues of so many of my colleagues, the “Narcissistic Personal Disorder.” That fit me too. Would they see it?
Confessions of a Tamed Cynic -- Review of The Moral Imagination by John Paul Lederach
The Moral Imagination struck a number of my most sensitive nerves. By the time I finished reading and had taken some time to consider the scope and depth of this work, I was appreciative (and not a little envious) of John Paul’s optimism, especially because it was not borne of naïveté or rooted in some ‘cockeyed’ ideology of how people should be. Rather, Lederach works with the realpolitik of the situations in which he is engaged without allowing his thinking to be constrained by fatalist notions that nothing can change.
Schindler v. Schiavo: The Real Negotiation for Your Soul
We like our fights clearly drawn so we can choose sides in the resulting crusade. This is a Passion Play, if ever there was one. The script follows almost to the word the original of the torture and crucifixion of Christ. The innocent sacrificial victim is known. All the rest of us have to do is decide who we are: the Roman persecutors or the Christian protectors. Of course, what’s a Passion Play without the betrayers, in this case, those would be anyone who might counsel negotiation.
Hotel Rwanda and the Guerrilla Negotiator
Hotel Rwanda should not be missed by anyone committed to the study and practice of negotiation and mediation of conflict. While in the docudrama genre along with “The Killing Fields” (1984), and “Schindler’s List (1993), this film is unusual in that it pays careful attention to the negotiation process in the most difficult of circumstances. The backdrop is the 1994 ethnic strife that took place in Rwanda when the ruling Hutu tribe slaughtered, mostly by the use of machetes, some 800,000 Tutsis over a 100 day period.
The Strategic Use of Art in Problem Solving
“Cognitive art” includes images as basic as graphs, tables, guides, instructions, lists, and directories and as complex as maps, diagrams and even abstract representations. Largely taken for granted, the utility and sometimes downright beauty of these displays often provide a visceral level of understanding and clarity that is otherwise unobtainable through mere verbal communication. Nowhere is that is more apparent than in the field of conflict management where issues are often complex and unwieldy and resist easy description.
From The Horses Mouth: On The Nature Of Equine And Human Negotiations
If you are among those who have no interest, fascination or appreciation of horses, and can not fathom what possible relevance these beasts might have to a better understanding of negotiation, read no further; this column is not for you. If on the other hand, whether from near or afar, the power, grace and downright beauty of these animals holds your gaze and fascination, then you might be drawn to consider what is to be gleaned from studying not only their physical presence but their nature as well. We humans have more in common with horses than we might think.
Swindlers, Dealmakers and Mediators: A Brief History of Ethics in Negotiation
Stripped of all the lofty purposes and noble intentions in which we seek to enwrap ourselves as professional mediators and conflict managers, what we are at core are dealmakers. There have been third parties involved in brokering business deals, treaties, and conflicts since the beginning of time but only in recent years have we begun to formalize and professionalize that role. And while we would like—or need—to believe we are making the world a better place as peacemakers, that is not always how middlemen and collaborators have been viewed through history.
Style Wars And Other Little Hypocrisies
If we do our work well as mediators, we ask clients hard questions, why won’t we ask them of ourselves? I have concerns about lawyers who appear to want to legalize mediation beyond recognition, mediators more intent on being spiritual guides than engaged third parties, and mediators so preoccupied with party self determination that they offer little useful leadership. Along with others, those discussions are likely to be difficult but necessary, but with our skills should be manageable without personal attack.
The Art of Jackson Pollack and the Artistry of John Haynes: Harnessing the Natural Energy of Conflict on the Mediation Canvas
Few who had the opportunity to observe John Haynes mediate disputes would deny his artistry. His elegant presence, accented by bow tie and British accent, and framed by graceful hand motions, were suggestive of a shaman drawing evil spirits out of tortured souls. He died in 1999 but we would do well to summon as much of his stage presence as we can through in his books and video tapes. John had a sense of timing worthy of the best Shakespearean actor. And like all great actors of the theatre, he was able to draw from the other cast members of the drama at hand---the parties---their best performances. He knew how to reach behind a person’s defensive posturing and release the closeted fears that stiffened their words and made their lines sound hackneyed and wooden. He would be the first to admit that he was playing a role, and saw nothing disingenuous about that. For, there was never a question of his authentic compassion for and tenacious dedication to the people enmired in a dispute.
Negotiation Fables For Children And Adults
Sometimes fables can be necessary and useful. But if they lull us into a false sense of security or competency, that can be risky business.
Dogs As Conflict Mediators
I stumbled upon the value of canine co-mediators quite by accident. Some years ago, both my dogs were present in a session with two Ph.D. psychologists in the throes of a divorce. Since then, there have been countless other examples revealing their talent as conflict mediators.
About Rules: Between Don't Ask-Don't Tell and Zero Tolerance
The heart of mediation and facilitation practice is about where to draw lines, and when to 'hold' or 'fold' in the stringency of rule formulation and application. Managing that tension takes place in the terrain between principled adherence to 'zero tolerance' and the necessary pragmatism of 'don't ask, don't tell'. It is not an easy place to be. At one extreme, is the murkiness of no rules where little is clear, and at the other extreme, the risk of unwarranted optimism that rules will make all things clear. Not surprisingly, there are no clear rules, only choices.
The Problem With “Peace”: The Art Of William Kentridge
The term peace is thrown around lightly and allowed to slip by as an innocuous social convention. But there is a hidden and real risk of some consequence. Not only does the expression disguise a deep and abiding hypocrisy, perhaps more perniciously, it distracts us from the immediate hard work that needs to be done to survive daily conflicts. Managing disputes and aiding in the settlement of controversies has little to do with bringing about peace on earth. Pretending otherwise, can be unhelpful, if not downright harmful.
The Geo-political Factor In Negotiation
Consider the prospect that people in their daily negotiations take their cues from how they see conflict managed on the national and international stage.
The negotiation strategies and techniques they see practiced by so called master negotiators in the management of issues and conflicts throughout the world seep into the thinking and approach of negotiators and mediators everywhere.
On Sex And Negotiation: An Editorial
Effective negotiation often requires the seductive charm of sex, the nurturing and support of good parenting, and the ability to connect with people and hear their meaning through or in spite of their words.
The Authenticity Requirement And The Necessity For Deception In Negotiation: The Paradox
Be it in a game of poker, politics, personal relationships, or professional dealings, one is effective player or performer in direct correlation with their ability to present themselves as authentic. Trust, integrity and most other noble virtues are gauged by the appearance of authenticity----so, ironically, is the ability to effectively deceive or “con” someone.
Terry Waite: A Study In Authenticity
Terry Waite, is a hostage negotiator of international fame who knows both sides; after gaining the release of hostages in Libya, he himself was held hostage by a militant group in the Middle East for five years. The personal resolve and bearing that saw him through both situations offer important lessons worthy of note by all negotiators.
Gut Instinct: A Mediator Prepares
Mediation is commonly touted as a rational enterprise. Most people—and many mediators--- see it as essentially head stuff where parties come and reason together. As the field matures and mediator qualifications are considered, invariably training regimens focus on legal, psychological and financial knowledge. Some would go so far as to require degrees. Those credentials are useful. However, my fear is, that formal education and training are being given an undue emphasis and tending to displace the development of intuitive abilities and instinctual understanding.
Mediation As Theater And Negotiation As Performance Art
Regardless of context, every conflict is a Passion Play of sorts, be it a divorce or business dispute This view offers some insights into the nature of conflict and the role of the mediator.
The Script For September 11-The Real Movie
On that Tuesday morning, I woke up to NPR and heard the words, ....plane....World Trade Center....Pentagon....crash... terrorists..., and like most people, could not quite comprehend what was happening nor the catastrophic enormity of the event. It felt like I came in late to a movie— a bad movie.
Despite our rage, not out of moral or humanistic belief but from practical experience, we also recognize that our anger unleashed will make the situation worse. The violence— at last count, some 6,714 innocent civilians missing or dead---– cannot be left unanswered. Conversely, we also know that doing what seems most simple and obvious will make matters far worse. It leaves us twisted and confused and stuck on the horns of a profound dilemma.
The Uniform Mediation Act: A Trojan Horse?
For some, congealing a uniform understanding of mediation practice and standards gives a long-desired sense of symmetry and legitimacy that purports to fend off the chaos and confusion of multiple views and disparate statutory schemas that looms over the field. Overall, that purpose is not without some merit. Yet, some skepticism remains over the ramifications and implications of the UMA. Is the Act like a Trojan Horse, holding within its' belly foreign agents poised to descend on the field?
Mediators as Peacemakers: The Revenge Effect
The revenge effect holds special potency and poignancy for mediators. If a mediator presumes to teach nonviolence and purports to seek peace, then if peace and nonviolence do not come about, the result may be an intensified sense of despair and more conflict.
The Ethics of Ethics
This is the inaugural column of what is to be a regular feature at www.mediate.com,
The Ethics Forum. Because Mediate.com has become an important resource and
much frequented location in the conflict management community, it seemed only
appropriate that there be a regular place dedicated to the discussion of professional
and ethical concerns and issues of practice. I am honored to be the first editor of the
On Being Too Fussy About Values In Mediation: Consider The Hedgehog And The Fox
The origins of the mediation profession are anchored in the practical necessity
of managing disputes. But mediators, as all human beings, have a need to imbue their work with special
meaning--it is part of our evolutionary biology and psychology. Undergirding practice with value structures can be beneficial
and give greater focus and depth to our everyday work, but there are risks.
The Movies- Constructions Of Reality And Sources Of Metaphors
You can still go to movies for pure entertainment
and "escapism," but don't disregard the impact of
movies on our culture and miss the opportunity
to draw from them lines, meanings, and
metaphors that are useful in your mediation
The Natural Mediator
I think that what many say the character traits of
a good mediator should be are not what they
actually are. In contrast to the conventional belief of which
traits make a good mediator, I
have distilled four important attributes of the
The Risks Of Neutrality - Reconsidering The Term And Concept
As mediators, we seem to be drawn to the word
"neutral" as a descriptive term for what we do
and as a conceptual frame for our professional
role. Beyond the theoretical discussion, however,
there are some very practical risks for mediators
to consider in continuing to describe themselves
Guerilla Mediation: The Use of Warfare Strategies in the Management of Conflict
If mediation is seen as appropriate only when parties exhibit a collaborative, cooperative and humanistic demeanor, then mediation will apply in only a tiny number of disputes.
A Critique of Mediation, Challenging Misconceptions, Assessing Risks, And Weighing The Advantages
Parties are often confused and fearful of losing their rights and
being taken advantage of. Lawyers frequently believe their clients
will be at risk, and they will lose business. Courts must be
sensitive to monitoring fairness and the rule of law, and moving
cases. Mental health professionals like the concept of settling
conflicts in a less adversarial manner, but they are concerned for
their clients well being and often confuse mediation with
counseling. And, mediators run the risk of overselling themselves
and the process and sometimes are not clear about their role as a
mediator as opposed to a counselor, lawyer, or other expert.
Mediation as a Subversive Activity
Mediation is inherently at odds with the established legal system.
Mediation was originally conceived and borne out of the
circumstantial necessity to give disputing parties a way around
being intruded upon by courts, lawyers or other professionals who
otherwise presumed to know better for them and their children
what they should do.