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This is an article that was co-authored and published this month by both Alternatives, the international journal of CPR and the Cardozo Journal of Conflict Resolution. This is the result of a panel that Professor Hal Abramson and I created in 2016 for the ABA Dispute Resolution conference in New York. Co-panelists and authors are friends and colleagues: Hal Abramson of Touro Law Center, Birgit Sambeth Glasner of Geneva, Bill Marsh of London and Ben Picker of Philadelphia. They are co-Distinguished Fellows in the International Academy of Mediators. I hope you find it interesting and valuable.
So much of our work as mediators is focused on listening. We go to school to learn how. We probe the psychology. We take advanced seminars in mindful listening and picking up cues and listening with our eyes and our instinct. Our weekend retreats tell us how we and disputants often stop listening because of chemical or electrical reactions in the miracle we call brain and body. We encourage each other to place ourselves in other people’s skins in order to understand their life journeys better. And too often we pay lip service to listening only to plow right back into our customary format, no matter how it might defeat “listening,” because we think we know better or because of old habits or markets demanding closure or agendas set by legal criteria and other people.
Jerry Weiss was primary author of this article recently published by the Journal of Comparative Law of the Pacific (Volume 22, 2016)/Law Faculty Victoria University of Wellington, New Zealand. His co-authors were Kimberlee Kovach and Eric Galton of Austin, TX and Tony Willis of London, UK. The article was a synthesis of a talk the authors gave in Queenstown, New Zealand in February 2016.
Avoiding the Slow March to the Middle
To be clear, the mediation is not a settlement conference, where we rely heavily on the authority and at times, muscle of the Court to get it done for us. Instead, mediation is supposed to be party directed and dominated, with different tools and strategies. It requires our active and collaborative participation and other pieces of a skill set that we are often not trained for or accustomed to.
Mediation Pointers from a Distinguished Neutral
For the past few years, I have circulated a bi-monthly newsletter that provides valuable mediation news and information for both disputants and their advocates and representatives.....I have written an introduction to each of those newsletters and the following are excerpts from these useful observations. Anybody involved in mediation and negotiation should find a thoughtful and, hopefully, validating connection to what they do.
Secrets for Settlement - How to Succeed in Mediation
Gerry Adams, of Sinn Fein notoriety, once said, "I find it ever so much more difficult to make peace than to make war." He, of course, was not the only person to have ever uttered those words. It is often the case that we take the easy course, the shortcut, by strapping on the battle gear and going at it in our courts of law with litigation and trials to settle our disputes.
Don't Be So Square
It was George Bernard Shaw who said that "the problem with communication is the illusion it has occurred."
Tipping Points in Mediation: Critical Threshholds in the Process
This article examines how a dramatic moment, event or thought can change the complexion of the dispute resolution process, both positively and negatively.
Mediation to Raise the Spirit
I, for one, do not believe in the lawyer's adage that the sign of a good settlement is where everybody walks away unhappily and bloodied, but walks away nevertheless. Rather, the sign of a good settlement is where, although we may sometimes feel a bit bruised by the process, we should all walk away feeling proud of what we have accomplished: to draw on our common strengths and interests and proudly share the experience and outcome.
Apology - Power and Impact
I have seen many fine lawyers snatch defeat from the jaws of victory by awkwardness, insincerity, missteps and downright ineptitude during the negotiation process.
Apology - The Post-Debate View
Just because lawyers – especially trial lawyers – might be wonderful at the arts related to advocacy and litigation, does not mean that their skills of negotiation or mediation advocacy are in tune with the realities of the moment.
You Never Can Tell
Our personal standards and preferences are ours; understanding that not everybody is going to embrace and manifest those standards is essential if we want to get to the core of the dispute needing resolution.
The more we deal with mediation-related processes – an inevitability in the present legal landscape – the more important it is for us to know about those processes, both myths and realities.
Slow Down, You Move Too Fast…. – A Helpful Mediation Hint
I was actually playing some old vinyl the other day. I was in a melancholy mood and needed a Sixties fix, when my old friends Simon and Garfunkel connected with my mediator mind. You know the one. “Slow down, you move too fast. Got to make the morning last….”
Timing and Its Impact on Mediation
Those who are old hands at dispute resolution, whether through litigation or its alternatives, have their volumes of war stories which tell about the importance of timing.
Becoming More Effective As Mediation Counsel
There are numerous anecdotes that relate how legally represented disputants are becoming increasingly wary of traditional means of resolving their disputes: namely, through litigation and trial.
Mediation, The Basics, Part 1
It seems that lately we hear more and more stories about clients and their feelings about being forgotten and/or lost in a legal – judicial system that is perceived as out of touch with the actual interests of the major participants: namely the parties.
Mediation, The Basics, Part 2
Neutrality and Confidentiality are key elements of the process that may be affected – or appear to be affected – by who pays.
Alternative Dispute Resolution
The overwhelming majority of filed cases are resolved by means of non-trial disposition. Recently new ideas, systems and devices through which to optimize this circumstance have emerged.