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<xTITLE>A Round-Up Of Must-Read Articles For Professional Mediators</xTITLE>

A Round-Up Of Must-Read Articles For Professional Mediators

by Diane J. Levin
February 2009

From Mediation Channel

Diane J. Levin

round-up of mediation linksThe following articles linked to below make essential reading for the professional mediator, addressing as they do three important topics in mediation practice — reaching settlement, making decisions, and what to do with those notes.

Reaching settlement.

Giving us a ring-side seat for the final hours of a tough negotiation, Victoria Pynchon, an experienced mediator of complex commercial disputes, considers the devil in the details with a four-part series that offers a rare glimpse inside a mediator’s mind as she wrestles with demons:

Decision-making.

Perhaps one of the most important services that mediators provide is to aid clients in reaching decisions.  Attorney John DeGroote, who shares Settlement Perspectives and negotiation advice based on eight years as the Chief Litigation Counsel of a global company, makes a strong case for using decision trees to improve settlement decisions in a two-part series.  “Decision Tree Analysis in Litigation: The Basics” introduces readers to decision trees –“tree-shaped models of [a] decision to be made and the uncertainties it encompasses,” according to Suffolk University Law Professor Dwight Golann in Mediating Legal Disputes — and links to The Arboretum, a free online tool provided by mediator Daniel M. Klein for building decision trees.  In “Why Should You Try a Decision Tree in Your Next Dispute?“, John convinces the naysayers, offering persuasive reasons why decision trees make smart business sense.

Mediator’s notes — destroy or keep?

One of the ongoing debates within the mediation community concerns what to do with notes — keep them or destroy them?

Mediators who destroy their notes typically do so because it:

  • Protects the confidentiality of mediation communications
  • Eliminates the burden on the mediator and the mediator’s resources to store and secure notes
  • Reduces the risk that the parties will subpoena the mediator later if negotiations fail, particularly if the mediator informs the parties in the agreement to mediate that he or she routinely destroys notes as a matter of practice

Those who keep their notes (and I count myself in this group) do so because:

  • Due to the nature of the mediator’s practice, parties may return for follow-up sessions after a period of time, and notes will refresh the mediator’s recollection of the case
  • Notes, with suitable precautions taken to conceal the identity of the parties, can be used to create case studies for purposes of mediation and negotiation training
  • Destroying notes could prejudice a mediator’s professional liability insurer defending a malpractice action against the mediator, potentially voiding the mediator’s insurance coverage

Mediator Geoff Sharp directs his readers to an article by Australian mediator Michael Creelman, who advocates the retention of notes in large part due to the insurance issue in “Mediators’ notes of the mediation - a mediator’s protective device“. Meanwhile, Atlanta-based attorney and mediator Christopher Annunziata offers the view from Georgia, coming down in favor of destroying notes.

Biography


Diane Levin, J.D., is a mediator, dispute resolution trainer, negotiation coach, writer, and lawyer based in Marblehead, Massachusetts, who has instructed people from around the world in the art of talking it out. Since 1995 she has helped clients resolve disputes involving tort, employment, business, estate, family, and real property issues, and serves on numerous mediation panels, including the United States Equal Employment Opportunity Commission. Training and coaching are an enduring passion -- she has taught thousands of people to resolve conflict, negotiate better, or become mediators -- from Croatian judges to Fortune 500 executives.

 

A geek at heart, Levin consults on web design and social media to professionals.  She blogs about ADR at the intersection of law, science, and popular culture at the award-winning MediationChannel.com, regarded as one of the world's top ADR blogs.  She also tracks and catalogues ADR blogs world-wide at ADRblogs.com, where she has created a community for bloggers writing about constructive ways to resolve disputes.

 

web site: http://dianelevin.com



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