The First Mediation Knols!
In response to my last post introducing Google knols, the first two mediation knols were published today - one from Italy by Mike McIlwrath and the other out of Boston by Dina Lynch Eisenberg.Take a read Mike's knol - Finding an International Mediator - identifying suitable candidates to mediate an international commercial dispute.Mike is also known for his groundbreaking CPR podcasts and is Senior Counsel - Litigation, GE Oil & Gas in Florence. Florence!The knol is a teaser from Mike's...
Calling all divorce mediators: inside the mind of a divorce lawyer
When next at mediation a jaded divorce attorney collapses in the chair nearest to you, remember this has been their journey;
I am pleased that you have hired me to represent you in your divorce. I'm pleased because I need the money you and others like you pay me. I'm tired of working with people like you who are always fighting and never happy, and often unhappy with me, but I feel trapped now and don't know how I could change my practice at this point in my career without a ...
The Standing Conference of Mediation Advocates Podcast
UK's highly entertaining Charon QC is today talking to barrister, Andrew Goodman. Andrew, of 1 Chancery Lane, convener of the Standing Conference of Mediation Advocates.'We look at mediation advocacy and the work of the Standing Conference of Mediation Advocates:How does the role of the advocate fit in the current mediation market? - Is representation in mediation really necessary - doesn't it undermine the idea of party autonomy? - Can mediation representation properly be called...
A Heads Up!
Tomorrow the covers come off the final shape of IMI's Global Competency Scheme for mediators and I will post here just as soon as they do.The big Q is: whether becoming 'IMI Certified' will prove to be the gold standard for commercial mediators worldwide or will we be content to rely on local, ad hoc (or in some cases, no) accreditation/certification standards.The obvious A is: to a large extent, that will depend on what our (repeat user) consumers require of us and how many times we are asked...
Jazz Brings Mediation Alive
Some years ago I started a post with 'Yeah well, I'm not sure that I get the whole 'mediators can learn from improv comedy' thing to be honest...'But since then I have read the wonderfully refreshing Improvisational Negotiation by Jeff Krivis and talked to him about the connections between jazz and mediation. And when someone like Jeff says this is the next frontier for mediators, you better listen up.So I wasn't surprised to hear music coming from Jeff's classroom at Pepperdine where he was...
At Pepperdine the other week Bruce Edwards likened the mediation of money disputes to a space rocket on a continuum of early, mid and late stage negotiation.It got me thinking.By early negotiation you have already done your convening and opening work. You have banked the currency you earned in those phases of the mediation (rapport, trust, credibility etc) but it's not there for long and you will spend it in the forthcoming negotiation phase.By the end of early-stage negotiation you will have...
Henry Brown looks back
We all stand on the shoulders of our own Henry Browns. And one day I will tell you about mine.But for now, I imagine many UK mediators look to Henry Brown as their Henry Brown.This interview is a thoughtful look back at 25 years of life as a UK mediator.In particular, Brown makes the point that the mediation process has not dealt well with the strong sense of fairness brought to the table by the many who use it.‘We’ve got to do more work on understanding people’s attitudes...
Some interesting resources for you
1. For all court annexed mediators (like my friends on the Eleventh Circuit Court of Appeals) check out RSI's new Court ADR Resource Center2. Mediation and personal injury cases: where do we go from here? - an interesting look back and forward by Ontario silk, Paul M. Iacono.3. And new at Mediation World;>Take a look at the African Initiative for Mediation and their...
Why do insurers spend money fighting claims rather than paying them?
A recent study by Prof. Jeffrey O'Connell of the University of Virginia School of Law and Patricia Born of California State University-Northridge analyzed settlements of personal injury and defective product cases against companies between 1988 and 2004 in Texas and Florida. Their study was published recently in the Columbia Business Law Review.The report tested an "early offers" system, which encourages businesses to promptly pay injured parties their essential losses: out-of-pocket medical...
The Complex Case Class of '08
Here's the great bunch of folks I spent last week with in the mediating the complex case course at Pepperdine. That's Bruce Edwards on the left and from whom we all learnt so much - Bruce is the real deal in high stakes mediation - as well as being heavily involved in the governance of JAMS, he puts in table-time all over the US, mostly splitting himself between the tables of Las Vegas (that's mediation tables - Bruce's family only lets him mediate in Sin City if he leaves with more money than...
The legal community has learned to accept low-functioning mediation
I have had a draft post sitting on my laptop for nearly 6 months now but I haven't posted it. I'm not ready to lose half my readers yet.The working title is something like 'lazy mediators don't do joint sessions' or 'lazy mediators only meet in private'. I couldn't decide which one would offend least.And it includes such pearls as 'joint is where we do our brain surgery - anyone can be a high-priced bellhop between rooms'. I mean, it's not as if I haven't posted gently on this topic before; see ...
Winners of the Make Talk Work International Video Competition
View the winning videos (funded by JAMS) on the City University of New York Dispute Resolution Consortium website here (they seem slow to load)
Mediating f2f Holographically
Ok, when you are truly a carbon neutral mediator in future years and refuse to travel big distances to your high stakes mediations, remember you saw world’s first live holographic video feed here on blah... blah...See these guys? They are on stage together, but the chap on the left is in Bangalore, India and the two on the right are in San Jose, CA. This is now!My guess is that, within a decade, many of us will insist on mediating with 3D holographic display technology beaming up the...
2008 Lawyer As Problem Solver Award Announced
The 2008 American Bar Association Lawyer as Problem Solver Award will be presented to Tina Rasnow, Coordinator of the Self-Help Legal Access Center Superior Court, County of Venturaas as the individual recipient.The Brooklyn, New York Attorney's Office under District Attorney Charles J. Hynes, is announced as the institutional recipient [read more]
Why do so few mediators make any money?
Now that I have your attention - this is just one of the chapter headings in a new article analysing the market for private mediators in the US by Urška Velikonja, a teaching fellow in Harvard's Economics Department.Of course I would be remiss if I did not mention that the very next chapter asks Why do some mediators make so much money?In any event, it contains much interesting data on the business end of what we do, although Urška surely the footnote has had its day?Some of the money...
12 Articles on Mediator Income
Given the huge response to my post Why do so few mediators make any money? (more than double the number of readers), you may find these 12 posts - all with further links into the topic - from me and others on mediator income of interest;1. Let Me Tell You Why So Few Mediators Make Money (Dina Beach Lynch)2. What UK Mediators Charge3. How To Make Money as a Mediator (And Create Value for Everyone): 30 Top Mediators Share Secrets to Building a Successful Practice4. Mediators earn $66,8005. How...
The Problem with Court Mediation
It's early in the week for another article of substance and I usually try to back end them, but this one is an exception.A new article in the George Mason Law Review by Leonard Riskin and Nancy Welsh just might scratch an itch for many of us.Is that All There is? 'The Problem' in Court-Oriented Mediation says that court-oriented mediation now reflects the dominance of lawyers and insurance claims adjusters - and one shot players are not catered for.Riskin/Welsh opine that these repeat players...
Is this OK?
Well, maybe Owen 'settlement is the civil analogue of plea bargaining' Fiss had a better crystal ball than I gave him credit for in my recent post.With news this week from Clay County, Kentucky that its crime mediation program - in which felony cases are mediated - was wildly successful.Heck, they did 19 in one day in Clay County and 12 more in nearby Boyd County, including matters of burglary, drug trafficking, theft, assault, fleeing and evading law enforcement, and manufacturing...
The gathering pace of mediator feedback online
As most readers will know from my recent posts on IMI Certification - online feedback by users of mediation is set to become all the rage.Here is an example of recent real IMI feedback on a UK mediator and, depending on how IMI's Global Mediator Certification gets on, this format may become the norm.Meanwhile individual mediators like me have sought online feedback for some years now - with mixed success I'm afraid. In my experience, it is a struggle to get qualitative feedback from commercial...
Settling Significant Cases
Continuing a thread that started with my post When families lose a loved one, do they want the cash or the courthouse? and then continued a week or so ago, Justices seek justice, not peace.The question is whether settlement is the 'civil analogue of plea bargaining'?Now, Michael Moffitt of ADR Prof Blog adds the next chapter in our journey, encouraging us to read Settling Significant Cases by Jeff Seul one time Harvard Law and now of Techlawlife and the Boston office of Holland & Knight.All ...
Too Much Information?
More than ever before it seems to me that we are reading what has historically been confidential mediation information.Most of the time, in the blogosphere at least, it's a mediation participant ventilating about the mediator, the ex or the telephone company in some form of online diary - like here - just to pull one of yesterday's examples off the wires.Harmless stuff really, and not widely read.But I'm seeing more reports that name names and give numbers - this one for instance appearing on...
Video clips from Belfast 2008 European Mediation Conference
Peace building – John Paul Lederach, Professor of International Peacebuilding, on three ways think about peace building.Women, gender and mediation in peacemaking – Antonia Potter, author of We the Women: why conflict mediation is not just a job for men, why women should contribute to resolution of armed conflict at the highest levels.[both these take a while to download]
Justices Seek Justice, Not Peace*
Just 3 years after Fisher & Ury's Getting to Yes started us on a journey most readers of this blog are yet to complete, Yale University's Owen Fiss delivered his powerful 1984 polemic Against Settlement (I'm far too promiscuous with my must reads but this is a must, must read).In it he argued that settlement was the 'civil analogue of plea bargaining'.Fiss decried the imbalances of power that he saw inherent in the mediation process as well as the absence of authoritative consent, the lack...
The Future of Civil Mediation
Sir Anthony Clarke, Master of the Rolls on The Future of Civil Mediation -keynote speech at last week's Civil Mediation Council National Conference, Birmingham, UK."... what can perhaps be said is that a horse (even a very obstinate horse) is more likely to drink if taken to water. We should be doing more to encourage (and perhaps direct) the horse to go to the trough. The more horses approach the trough the more will drink from it. Litigants being like horses we should give them every...
The Power of Mediation
Wednesday, 14 May 2008 - Former UK Foreign Secretary Douglas - now Lord - Hurd on the power of mediation in political and diplomatic conflicts.
What UK Mediators Charge
In a kiss and tell article in the latest issue of The Mediator Magazine all is revealed about UK mediators' charge out rates in The Price is Wrong"... Setting charge-out rates for mediators is a complicated and sensitive issue. In the UK the market is so oversupplied that if the number of commercial cases available were distributed evenly among accredited mediators, no mediator would be handling more than one a year. Under such market conditions, pricing is emotive, and competition sharp....The ...
Delegates at AAA Annual Meeting use electronic voting to express their views on mediator competency certification
Washington DC, May 9th 2008 - Participants at the American Arbitration Association's 2008 Annual Meeting spent two hours focusing on mediator competency certification.Presentations by Wolf Von Kumberg of Northrop Grumman Corporation, Nancy Lesser of PAX ADR LLC, Christopher Honeyman of Convenor Conflict Management and Michael Leathes of IMI were followed by a discussion.Then 12 questions, with a selection of multi-choice answers, were posed to the delegates who used individual electronic...
Dinner with a theorist?
Back in 2006 11 dinners were arranged at 11 of Boston's finest restaurants by the organizers of the Environmental and Public Policy section meeting of the Association of Conflict Resolution.At each of these dinners two worlds, one inhabiting lofty towers all across America and the other more comfortable with the dank smell of the practice coal-face, collided over appetizers and mains (and pudding for the adventurous) as they engaged in some novel ADR theory/practice dialogues.What was discussed ...
10 Great Papers from ABA's Seattle Conference
Congratulations to ABA's Dispute Resolution Section for getting its Seattle Spring Conference papers held in April online so soon (including PowerPoint presentations, handouts and papers from most sessions).Here are my picks (for a full set of papers and links go here);1. Breaking the Rules: The Truth About ConsequencesThis session will present examples of mediators choosing (or being driven to) break commonly understood rules of good mediation practice and examine the consequences. Whether...
When families lose a loved one, do they want the cash or the courthouse?
It's the first time I've become emotional reading a research paper, but an article by USC academic Gillian Hadfield got to me. Sad movies sometimes do that too, but I'm usually safe around law school publications.Maybe it was because of a mediation, only just completed, involving a young and troubled life taken. It's still raw and I just wasn't qualified to be the straw those barely functioning parents grabbed hold of.So, don't say you haven't been warned - choose a rainy Sunday evening to...
Conflict Coaching Podcast
Australian trainers, Julie Walker and Lynora Brooke, talked recently with LEADR's, Fiona Hollier about integrating conflict coaching into ADR practice.Listen here
Guest post by psychiatrist Dr Mark Lauderdale On Dealing With Difficult People
I have been corresponding with Canadian psychiatrist Dr Mark Lauderdale after being impressed by some of his writing on the Web.As a result Mark has kindly agreed to post on a topic that frustrates the heck out of many mediators - glass half empty parties. Without knowing much, I suspect, about transformative mediation or mediation aikido, Mark demonstrates once again the crossover between the our field and the behavioural sciences...How To Deal With Negative PeopleHave you ever tried to work...
Breaking News: Europe Gets It Sorted
Brussels, 24 April 2008, the European Parliament formally approved the European Council’s common position on the new Mediation Directive.The purpose of the Directive is to facilitate access to dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings.> The Directive obliges Member States to encourage the training of mediators and the development of, and adherence ...
Michael Leathes of the International Mediation Institute
Michael Leathes of the International Mediation Institute in The Hague is here in New Zealand.He's on holiday but the Wellington mediation mafia have convinced him that it would be in the interests of the tyres on his rental if he allowed us to put on a breakfast for him as he passes through our fair city next Monday.The Institute was created last year by three leading non-profit dispute resolution bodies: the Netherlands Mediation Institute, Singapore Mediation Centre and the American...
Michael Leathes of the International Mediation Institute 2
Michael Leathes spoke in Wellington today (see my Friday post).Here is his PowerPoint presentation that sets out the main points of IMI's plans for a global mediator certification;IMI-April 2008 - Get more documentsAnd here is an actual completed feedback form for a UK mediator that goes to make up a mediator's 'feedback digest' - an integral part of the certification process;IMI Feedback Form - Get more documents
What It Takes To Be A Great Mediation Lawyer
One of the worst looks for a mediation counsel is when the capacity for independent thought is lost. I see it only occasionally.This could be because the client is a bully or counsel is working from a position of greed or lack of experience.My own view is that when it does happen, it's usually because the lawyer is lazy and has failed to manage the client's expectations as the case has matured from filing to mediation.Occasionally, it's because they don't want to lose the business, but I think...
Eleven Step Foreclosure Mediation Program Model
Here for a generous resource (including a 100+ page Complete Foreclosure Mediation Program Model document) posted 11 April from the Supreme Court of Ohio if your community is grappling with your own version of the 2008 debt crisis.The model, which includes processes, forms and other documents, focuses on residential foreclosure cases and contains options to enable courts to make modifications based on available mediation resources while also meeting the needs of their communities.
Dreaming? Or living the dream?
"Hi Mr Sharp, I was given your name to call. I was wondering if you ah... had time to meet up... ah, just wanting to pick your brains about starting out as a mediator - coffee's on me... "Well, to save us all some time and money, can I just get this off my chest.And I'm sorry, there's no easy way to say it - forget about a meticulously planned start to a bold new career - forget about a paint by numbers approach - just get out there and do it, do the hard yards, make the contacts, stumble like...
Four Ways to Assure Mediator Quality
In response to a request I made of Prof Michael Moffitt over at Indisputably in my post DR Works In Progress he has now put his paper The Four Ways to Assure Mediator Quality (and why none of them work) up on the web.He gave this paper at Harvard Law School a while back.Good'onya Michael!
The good, the bad, and the ugly of negotiators
New Zealand mediator and IAM Fellow, Deborah Clapshaw shares her observations on lawyers behaving badly in mediation - published in this week's NZLawyer Magazine Online.Deborah, a leading mediator, has a sophisticated take on lawyer behaviours in mediation touching on the empathiser, the abuser, the reciprocator, the liker and all stations in between.
Bond University's eagerly awaited Dispute Resolution Centre's April Newsletter is just out!Edited by John Wade, the letter always delivers sophisticated content for the experienced mediator.There's a good article on Overconfidence at mediation and in a follow up to my popular post The Secrets of Successful (and Unsuccessful) Mediators - a completed Questionnaire for Advanced Mediators that John gives to experienced mediators in his regular Advanced Mediation Courses about what they see and do...
What a Judge needed to unlearn before he became a mediator
Nice post over at the mysterious mediatorinthemaking.com (adventures in learning the practice of mediation) about the power of the process."I had a great learning moment in my PON class last night... Our student mediator shared that not being a judge, not being able to provide any legal advice or make any decisions about the case, he was uncertain where to go.As mediators, if we reveal this all to the parties, what would they think? What power would we have?That’s when light bulbs blinked ...
My Toughest Mediation
I learn a lot when other mediators tell war stories.Here are three well known UK mediators talking about a hard day at the office....:: Andrew Paton :: Jane Andrewartha :: Michel Kallipetis QC ::
The Way Mediators Ask Questions Is Absolutely Front And Centre To What We Do
When I'm training I often hold up an ordinary object, whatever happens to be about like a stapler or a chair, and ask people to fire questions at me about it.Through that simple exercise, ahead of many others, I can often recognise the future mediators in the room.The future mediators will, instinctively, ask skeptical and conversational questions.They will be ignorant (real or professed) of the truth about that chair or stapler and they will be tentative and provisional, but their questions...
Latest UK Case On The Costs And Timing Of Mediation
My colleague Toby Gee, a barrister at Crown Office Chambers in London, has kindly provided me with a recent UK decision that has something to say on the costs and timing of mediation.The case is another in the line of cases, Halsey and Dunnett v Railtrack Plc, and said that a premature mediation simply wasted every body's time and could sometimes lead to a hardening of positions on both sides, which made any subsequent attempt at settlement doomed to fail.Conversely, a delay in any mediation...
3 Edgy Posts Out There In The Blogosphere Today
From CResearch What about the litigation mediation creates? linking to an article that takes a systemic look at litigation about mediation.The article is by Hamline Professor James Coben who has been producing short videos illustrating mediation litigation for a while now. You will find 31 videos, organized by type of disputed mediation issue here.The second is Goals of Mediation from Civil Negotiation and Mediation's Nancy Hudgins comparing lawyers goals and mediator goals in a mediation.For...
5 Ways To Coach Parties In Mediation
I have written before on coaching in mediation asking - is it OK to coach people on how to say something or who should say it in a mediation?If I think of coaching opportunities I have had since Christmas, they have been;1. Talking to parties about who is the best person in the group to make the offer to the other side and even who they might want to look at when they do...2. That they might want to think about presenting a worst-case settlement offer first then contrasting that with their...
UN Announces New 'On-Call' Mediation Team
A quick-response UN Mediation Standby Team* has been set up by the United Nations to advise peace envoys in the field and is composed of six members, described as the “world’s best people on the topic of mediation"And I'm very proud to say that the Senior Expert Mediator appointed to the group is a New Zealander - Andrew Ladley is an academic from here in Wellington - and he has regularly been seen flying off to exotic places like Cambodia, East Timor, Jamaica and Gambia to work in...
Mediation - A 'Dishonest Kind Of Process'
In a surprise announcement this week, Jim Farmer QC - one of this country's top trial lawyers - declared, via the latest edition of The National Business Review, that while he had not attended many mediations, its emphasis on reaching a settlement above all else struck him as 'a dishonest kind of process'.He went on to say;"At one mediation I attended the mediator, who was the most eminent mediator in Australasia, put a 50c coin on the table and said to the parties, "this coin is like...
Ethical Codes and the Commercial Mediator
Over at ADR Prof Blog, Michael Moffit posts a PowerPoint presentation by Dwight Golann and Ellen Waldman on Ethical Codes and the Commercial Mediator.The underlying message is that ethical codes are clear, practice is not - ask any seasoned mediator, they'll say the same in a tired but resigned tone.Just two of the interesting angles on ethics covered in the slides include;1. Manipulation vs Reality Testing - including the use of fear - something this blog has attempted to tackle a while back...
ABA Task Force on Improving Mediation Quality
The ABA Section of Dispute Resolution's Task Force on Improving Mediation Quality completed its report in 2007 and got only average coverage at the time.But all is forgiven now that the complete 47 page report has recently been posted on the Web.On the Task Force were notables like John Lande, John Bickerman and Homer LaRue and it was established in response to concerns about poor-quality mediation services in commercial cases. The worthy aim of the Task Force was to develop proposals to...
Tammy Lenski Is On The Move
Dr Tammy Lenski announces that her blog at Lenski.com will be no more.In its place is a new site and a new direction, for both her writing and her conflict resolution work at ConflictZen.comTammy, this sounds exciting and will be just fine as long as your mediation focused writing at the wonderful mediator tech is staying right where it is.
As regular visitors to this blog will know I have, especially in the early days of writing, made a habit of posting on the nuts and bolts of mediation practice.It has always seemed a valuable space to fill.Like most mediators my standard mediation agreement, which I provide to parties to sign prior to the mediation, contains a cost sharing provision -- where the parties each pay half of my fees. No problem so far.Today I received an e-mail from a lawyer in a recent mediation asking me to...
The Standing Conference of Mediation Advocates and the Forum for Mediation Advocacy
Now that I've been a mediator for a while it's too easy to forget those early days when I was discovering mediation as an advocate in the courtroom one day, and feeling my way in a mediation the next.It sure was hard to make the switch.My head was always playing catch up, so I was still in rights mode at the start of the mediation and desparately looking for interests in the litigation when I struggled to my feet at the bar table at 10am the next morning.So, in another sign that our mediation...
Call for Nominations: 2008 ABA Lawyer as Problem Solver Award and Lawyer as Problem Solver Exercises
A message from ABA Lawyer as Problem Solver Co-Chairs David White and Woody Mosten;On behalf of my Co-Chair, Woody Mosten, and myself, I write to solicit nominations for the 2008 ABA Lawyer as Problem Solver Award and the Lawyer as Problem Solver Exercises (“LAPSE”).Each year, the Lawyer as Problem Solver Committee seeks to identify those colleagues who have distinguished themselves through a commitment to creative advocacy. Such individuals are a force for positive change through...
Hi, I'm a recovering attorney
This morning I sat through what turned out to be a crossover between a mediators' meet and the little I remember of anti-natal classes before the birth of our first child. [Where, all those years ago, we sat on the floor in our stocking feet after a hot day at the salt mines and introduced our eager first-time-parent-selves; "Hi, I'm Martin - I'm a struggling artist, my passion for art comes before everything" (ha! say goodbye to that, buddy); or "Hi, my name's Jo - I'm a foreign correspondent, ...
Agreements that stick
It truly is a lovely summer day here in Wellington, NZ.The harbour has an emerald sheen to its unpolluted waters as large luxury liners disgorge tourists in floral shirts onto our streets to spend a small part of the $18.5 billion we will earn from visitors to our shores this peak season.And it is with a bounce in my step that I make my way down the main street with a couple of days of solid work behind and in front of me, I can't help thinking how all is w... SCRRAAAATH!!Out of the blue, I spy ...
NP@PON's free newsletter for negotiation teachers
Did you know that NP@PON (Negotiation Pedagogy at the Program on Negotiation at Harvard Law School) publishes a free, quarterly e-newsletter, Teaching Negotiation, which highlights current research, new teaching materials and upcoming events, as well as offering a discussion forum for negotiation instructors?The February edition is just out today. Here's a taste of what's in it;Teaching Negotiation as Cross-Cultural Work: An Anthropological ViewSowing the Seeds of Negotiation Theory with...
Do you use your mediation resolution rate to sell yourself?
I do. Always been uneasy about it, though. Too artificial. Think I might stop.Are those who take the high road and don't, disadvantaged from a marketing point of view, do you think?
The developing field of Animal Mediation
Forget about cross-cultural mediation - that's chickenfeed.Shoot... what I want to do is mediate with the damn chicken - because cross-species mediation is where it's at. (So, why? - why did you cross the road?)With the rise and rise of Animal Law that is exactly where we're headed as I realised when I visited Lewis & Clark Law School in Portland, Oregon recently.Lewis & Clark, which must be one of the most picturesque law schools in the US, not only publishes Animal Law Review, the...
The Secrets of Successful (and Unsuccessful) Mediators
In my What makes a Supermed? post last year I mentioned 3 worthwhile articles.Two of them - The Secrets of Successful Mediators (Negotiation Journal, July 2005) and The Secrets of Successful (and Unsuccessful) Mediators (Negotiation Journal, October 2007) cost $29 each to download and anyway the third article - the free MATA Advanced Mediator Skills Project was as good as you'd want.Well, now you can get the two Negotiation Journal pieces summarised in one place at no cost - courtesy of the...
Robert Benjamin's Of War and Negotiation Number 2
Robert Benjamin's Of War and Negotiation #2 was posted today at mediate.com "... war and negotiation are not polar opposites, as they are so frequently presented. They inform each other as modes of conflict management and the best warriors must be effective negotiators and the best negotiators must study warfare strategies and techniques"Here for Of War and Negotiation #1But not everyone is convinced of Benjamin's recurring battle cry that now runs through his writings - "He is a very likeable ...
Aw man, I'm on holiday - don't make me work!
Hey, it was nice to be missed at the all new Mediation Channel.com and even be considered worthy of a missing person alert by Chris Annunziata.And thanks also to Vickie Pynchon, eleanorburnejones and Tammy Lenski for noticing one voice was missing from the usual chorus.Well folks, I always try to bring back a mediation story when I go bush - like this one on post-decision dissonance in Fiji or this from ZhongShan, China when we were too stressed to negotiate.So... there we were - just after...
Mediation just a quarter of the cost of lawyer-to-lawyer settlements
Apparently David Hoffman's Boston Law Collaborative has analyzed 199 of its recent divorce cases, and found that mediation, collaborative divorce and litigation all produced high rates of successful settlement.Mediation was by far the least expensive option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation
Mediators earn $66,800
Hot on the heels of yesterday's post showing mediation to be just a quarter of the cost of lawyer-to-lawyer settlements (and less than 10% of litigation) comes this recent article advising the median pay of a mediator in the US is $66,800.Apparently most mediators charge between $100 and $250 an hour but need to supplement their work with other employment to end up with a middle-class annual income.So where's the value equation?If mediators don't value what they do, no one else will.Not sure...
OK folks, I'm done.Thank you for visiting in 2007 - there are plenty of places to go on the web and you know that I am very grateful that you make here one of them.This blog is a labour of love and although the thought of doing it all again next year is daunting, energy and inspiration permitting, I will do so in the hope you will again stop by in 2008.Safe holidays and for those, like me, in a reflective mood as we close up shop for 2007 and maybe thinking that your time will come next year -...
Last Week's Impasse
An impasse had developed, the mediation was grid locked.As many had before him, the mediator hesitated outside the door and sucked in as much oxygen as he could from the stuffy hallway before turning the knob to the defense breakout room.They were an unhappy bunch. The tiredness showed. The room smelt.Funny, the mediator thought, how the parties always tire long before the mediator. Maybe because it's their money he mused.They looked up at him, expecting some simple break-through moment. There...
Not a good sign in the LA writers' strike
When parties are white-anting each other outside the mediation room, things are in a downward, and probably for the moment fatal, spiral.Confidentiality went long ago, now it's who can win the public relations contest.Here the Writers Guild of America tells us how talks broke down in the writers strike mediation last Friday night in LA and here The Alliance of Motion Picture & Television Producers gives their version.On the one hand Young for WGA says; 'As we prepared our counter-offer, at...
The elements of a sphincter-tightening mediation presentation
The title may be a little strong but How to Build a Mediation Presentation That Will Make an Insurance Adjuster’s Sphincter Tighten is worth a look if you mediate insurance cases.'Insurance adjusters have seen the worst of the worst. They see horrific injuries every day. They see “perfect” plaintiffs every day. It doesn’t move them.What do insurance adjusters care about?Insurance adjusters care about one thing more than anything in the world, even more than money.Risk.'
'Get a life' or 'Yeah, right on'
Great comment from my friend, Mr/Mrs/Ms Anonymous on my previous post about going along to a Christmas bash last week;"Geoff, the real question here is whether you as mediator should be going to a repeat user's Christmas party at all..."But I can't decide whether it is ridiculously politically correct or if there is an ethical point to be made here...
Of War and Negotiation Number 1
I know Robert Benjamin has been working on this series for a while now.Of War and Negotiation: Lessons From The Europeans (Part 1) is out now.There's more to come and it's a must read."This series of articles is, in part, inspired by and intended to pay tribute to the power and importance of the emerging European approach to conflict management and mediation practice, that is pragmatic, realistic, and relatively free of ideological trappings. In managing conflict, Europeans seem to sense that...
Mediation providers no longer add value
Here is a fascinating paper entitled Mediation Providers No Longer Add ValueIt started life as a debate in 2006 sponsored by MATA but is now reproduced as a very readable think piece and has input from notables like Richard Schiffer, Chair of ADR Group and Elizabeth Birch, founder of ACI.".... The question that is asked is whether Mediation Providers add value. So I ask myself: Is this like turkeys voting for Christmas? Are we in competition with each other? Or are Mediation Providers useful to ...
Money Mediation Number 2
In this second of two posts, I pick up last week's discussion around adversarial mediation and how sometimes, just sometimes, a mediator's reality is that parties with no prior relationship have few joint interests other than reducing transaction costs of getting to trial.And how, in these types of mediations when parties find themselves at impasse, they put a high price on finality and often look to the mediator to be more like a judge and expect them to evaluate the likely outcome at...
Money Mediation Number 1
In this piece I try to cover a topic in two consecutive blog posts which I would not normally attempt but for an important discussion at the recent LEADR conference in Wellington and continued across the Pacific a couple of weeks later at the IAM Portland gathering of commercial mediators.There was much talk at our gatherings of the grim reality of what we commercial mediators do - as opposed to what we teach in mediation school and what we read as part of our continuing skill development...
What Makes A SuperMed?
What makes a mediation super-hero?And who qualifies?Is it technique or style? Ask Ken Cloke and he will say you are the technique.Is it acquired or does it come from within?Is it art or is it a science?Why does she get all the work when he gets none?How come the most unlikely people have superb practices? To meet them outside the mediation room they are too flaky/too egotistical/couldn't listen to their own grandmother without interrupting.Yet keep get them inside a mediation room and they are...
It's always a good week when someone, somewhere asks how come judges can leave the bench for retirement at the mediation table?And it's especially good if you have often wondered out loud (How wrong can you get? and Great on paper, crap at the table) what skills used for judging can possibly complement those needed for mediation.One of the best think pieces on this is still the 2005 Judicial Ethics and Judicial Settlement Practices: Time for Two Strangers to Meet But hey, you can't argue with...
Please Read This!
From mediation's leading insurgent, Robert Benjamin: A Tribute and Lament on the Field of Mediation - out today @ mediate.com and it's a must read.I don't know where he's coming from when he says;"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...
Boston Mediators Respond
In response to my post yesterday on Robert Benjamin's lightning rod article A Tribute and Lament on the Field of Mediation Dr Tammy Lenski says;"I and other colleagues had dinner with Robert a few weeks ago when he came to be a guest speaker at Woodbury, where I teach mediation. Part of the conversation evolved into lamenting about the number of mediators we know who print brochures and try to get on panels as their primary (sometime only) practice-building efforts. There was also pondering...
Transformative Mediation News
Clare Coburn of Melbourne's La Trobe Law School recently spoke Australia's National Radio where she explained the need of receptive listening in our relationships and within our institutions.And you may care to read this piece on Love, Care, and the Inevitable Arguments: mediators can provide a welcome rational approach to realities of elder care.And go here for the University of North Dakota's Jim Antes where he speaks about the role of a transformative mediator to empower parties to make...
Following my tour of ADR Services' Century City office I spoke to Lucie Barron, its founder and President.Lucie is one of the most knowledgeable hands-on experts on the business of mediation - she has a tremendous feel for her market and knows what they want from a mediator and a mediation provider... sitting in the middle between the mediator and the client she knows her job is to add value.I have been critical of the middlemen in our industry before but talking to the mediators and Lucie it's ...
Blawg Review Number 130-SH
Southern Hemisphere EditionWelcome to Blawg Review #130 South - probably the very first edition of Blawg Review produced at opposite ends of the Earth, and definitely the first from Middle Earth.Co authored by attorney mediators Diane Levin of Online Guide to Mediation in Boston and Geoff Sharp of mediator blah... blah... in New Zealand, Blawg Review #130 South is posted at 12.01am on Monday 15 October in New Zealand, the first place on the planet to see the new day.Then in 17 hours time, and...
Live Blogging from the International Academy of Mediators
It's great to be in clean, green Portland, Oregon. The license plates say 'Keep Portland Weird' - how does that work?And the IAM Fall conference kicked off here today.Fear, Anger and Risk in Mediation has some great papers over the next couple of days - the session I'm sitting in right now is Motivational Interviewing - Moving Towards Resolution by Dr Kelly Lundberg, Assistant Professor, Department of Psychiatry, University of Utah.Dr Lundberg is a leading expert in addictions and her...
10 suggestions for lawyers heading into mediation
I've just had a call from a lawyer with whom I have a large mediation coming up in November.She asked me what she could do to prepare her client John, for what is probably going to be the most important meeting of his life.Apart from the usual prep like identifying interests etc I advised her to:1. In the time beween now and November try not to poison the well from which she will drink on mediation day - start 'mediating' now within the litigation 2. Prepare John to interact with me on a...
Mediating the sub prime mortgage crisis
When America sneezes, the rest of us catch a cold.So, I guess many mediators around the globe are working out how to get involved in the unfolding drama of the mortgage melt down.In my neighbourhood we have had 9 financial institutions go to the wall in the last 6 weeks. There will be more.In the UK there has been a run on Northern Rock Bank - the first run on a bank there since 1866.As UK's ADR Group says "The threat of insolvency is now a reality facing many businesses that simply cannot cope ...
Common sense trumps law in mediation every time
The plaintiff side ran a very, very narrow and technical legal argument.They argued that a court would never - read my lips - ever - find that the plaintiff contributed to its own loss as a result of a fraud, notwithstanding the fraud by the defendant's employee went undetected, in large part, because of the plaintiff's woeful back office systems.And they had contributory negligence cases to die for - even a House of Lords decision bang on point - which go down big here... apparently the Law...
Psychological traps in negotiation and other wisdom
Go here for these superb one line sound bites describing each of these psychological traps in negotiation... Partisan perceptions∗ People tend to "see" what they expect and wish to see, and what is in their self-interest to see.Judgmental overconfidence∗ People mostly place unwarranted confidence in their own prediction about future events / People usually underestimate the importance of what they do not know.Loss aversion∗ People tend to attach greater weight to prospective...
Sharpening Your Skills: Negotiation
Not a bad resource to refer clients to if you're asked - from Harvard Working Knowledge yesterday - Sharpening Your Negotiation Skills, that includes these links -Negotiating in Three Dimensions by James SebeniusNegotiating When the Rules Suddenly Change by Michael WheelerFour Strategies for Making Concessions by Deepak MalhotraFive Steps to Better Family Negotiations by John A. Davis and Deepak Malhotra
International Mediator Certification
ABA Journal Law News - October 2007 - The International Mediation Institute announced it's getting closer to establishing the first global mediator certification.The word is that a law degree likely won’t be mandatory, but a certain amount of experience in a specific area will be. And there will probably be several certifications rather than just one.The IMI is based in The Hague and was formed in April 2007 by the American Arbitration Association, the Singapore International Arbitration...
Practical guides to negotiating in China
Last week on the Conflict Management Division Listserv* Roger C. Mayer, Professor of Management at The University of Akron put the word out for any short, practical guides to negotiating in China and got this nice collection of online articles from Kim Foster (the first one is open access but 2 - 4 require $);1. Negotiating into China: the impact of individual perception on Chinese negotiation styles Author(s):Zhenzhong MaInternational Journal of Emerging Markets; Volume: 1 Issue: 1; 20062....
Take A Skill-Pill
So this looks cool...Skill-Pill is a short burst of bite sized skills delivered by video to your cell phone, blackberry, video iPod or smart phone just before the big event to get you in the zone.Going into a big negotiation or mediation? Take a 2 minute skill-pill in the taxi on the way.Demo here
Live Blogging from the LEADR Conference in NZ
Mediator friends and colleagues John Hardie, Pele Walker, Deb Clapshaw, Nina Khouri and new kiwi, David HoffmanToday is our first full day of one of the most important gatherings on the Australasian mediation calendar.Yesterday afternoon we heard from David Hoffman on Mediation and the Meaning of Life, after which 10 of us gathered at my home for an early summer BBQ (above). So many top mediators in one room!Today I spoke to both Mike Lind and Jim Melamed by video from the UK (2am) and the US...
More on dispute resolution in Second Life
Continuing the series on DR in Second Life...The people behind Second Life, Linden Lab, have announced today that from hereon in a dispute resolution known as “binding non-appearance-based arbitration” is available for disputes of less than $10,000.00 between Linden Lab and the Residents in Second Life.They describe it as "... a legally binding procedure administered by a private organization. This means that the arbitrator’s opinion on liability and damages may be entered as...
The Paradox of Accepting One's Share of Responsibility in Mediation
Just last week I posted Eat toast in bed - go to sleep with crumbs on the tricky matter of the mediator raising party responsibility for the conflict in which that person now sits directly across from the mediator.So you can imagine my unease when I stumbled across an article a couple of days later in the most recent edition of PON's Negotiation Journal called The Paradox of Accepting One's Share of Responsibility in Mediation by Jean Poitras, Associate Professor of Conflict Management at HEC,...
A conversation with two movers and shakers of the DR world - Mike Lind and Jim Melamed
One of my welcome duties at the LEADR conference this week is to conduct a couple of interviews.And I am doing this by a turbo charged video link, as you might expect from the 'Future Tech Stream Convener' (I do hope I get a name badge with that title).Barring any technical snafus, I am looking forward to conversations with two of the movers and shakers of the DR world - with Mike Lind, Managing Director of ADR Group, Bristol in the UK and with Jim Melamed of Mediate.com, Eugene, Oregon.They...
A conversation with two movers and shakers of the DR world - Mike Lind and Jim Melamed, part 2
As I said in my last post profiling UK's ADR Group MD, Mike Lind, one of my welcome duties at the LEADR conference this week is to conduct a couple of interviews by video link.In addition to talking with Mike, I am hooking up with Jim Melamed, one of the founders of Mediate.com... in fact we have just celebrated Mediate.com's 12th birthday with Mediate.com is almost a teenager.So, Jim needs no introduction and I suspect if readers of this blog are prepared to travel so far into the bowels of...
Eat toast in bed - go to sleep with crumbs
In two mediations recently, I ever so gently broached the subject of responsibility.The first mediation was a construction defect case, the second - a joint venture dispute.In private with the claimant party in each case, I wondered out loud what measure of responsibility they might factor in for their part of the dispute they now found themselves consumed by.I explained this may be important when evaluating any proposal on the table later in the day.In the construction defect case I enquired...
AAA Unveils Enhanced Mediation Servies & Procedures
Sept. 4, 2007 - The American Arbitration Association has introduced significant changes to its mediation services, including revising its Mediation Procedures to provide a new pricing structure that lets parties file a mediation case with the AAA at no cost... [read more]
PON gives back
In the nicest possible way, I have always been a little underwhelmed when sifting through Harvard's Program on Negotiation online space - given what a towering influence PON is on our field.There always looked to be a mountain of good stuff there but it was all under lock and key.But, that was then. This is now.Take a look at all this outrageously generous, freely available Harvard resource;1. PON Webcasts (video)2. PONcast (have a recent article from the Negotiation newsletter read to you)3....
From Geoff Sharp
Long before the rest of us spotted the power of the Internet for our
field, James Melamed and John Helie were there, building an asset that is
now so central to hundreds of successful mediation practices.
Wikipedia - Should We Care?
If Mediate.com is #1 for 'mediation' on Google, guess who is #2?Well, take a look here.Wikipedia (wikiˈpi¢°di.ə) is the second most visited site from Google searches and, as you would expect from the Internet's largest reference site, the collaborative online encyclopedia includes an extensive entry for mediation.And other than being a little Australian centric, it's there or there abouts, but has room for a lot more detail - and in particular some good links to mediation web...
The growth of mediation in China
Nestled beside a post advising that reincarnating Tibetan Buddhas must obtain Chinese Government approval in future comes this interesting post on Monday over at China Briefing Blog on the growth of mediation in China.Labor disputes in China are rising quickly with an annual growth rate of 27.3 % - so something needs to be done.China is looking to deal with the crisis by a bill strengthening mediation so as to 'help fairly solve labor disputes without going to court and thus safeguard...
Comments on Spirituality in Mediation
My last post on spirituality in mediation attracted 3 great comments from leaders of our mediation community's online discussion deserving their own post.First read my last post and Colin Rule's post to which I link, then these comments will make more sense. Its the kind of conversation YOU need to participate in;Michael said...There are two concepts people confuse, including most game theorists:1. Coordination, a conflict which require only that some people coordinate their activities, but not ...
Mediator Invoicing - the Bell Curve of Gratitude
I'm not sure that you would find this in an accounting text book but my theory has always been that there's as much in the when and how you invoice, as in what you invoice.The When?...For me, it's not before the mediation - prepayment in my market is seen as a trust issue, even with new clients. So we don't do it here in NZ.And it's not at the mediation either. This happened the other day and I felt like I belonged to the oldest profession instead of one of the youngest.But there does seem to...
Mediation does NOT work
... at least according to these folk at the sharp end;Marie1958 says yesterday over at LA Legal that..."Court ordered mediation should be taken out of our judicial system. It is a legal form of verbal and emotional abuse.It should be abolished from our legal system. When all it causes is pain and emotional despair, what is the point... When our court system does not understand what goes on outside of the court room, and in everyday life.Mediation is just a legal way for a very angry person to...
Copies of Helping Others Resolve Differences - Free!
Gregorio Billikopf from the University of California has generously advised that he has a limited number of free copies of his book Helping Others Resolve Differences to give away!To obtain a copy just send: 1) $1.99 worth of USA stamps (it has to be stamps), and 2) a label with your mailing address. UC provides the envelope.Send the stamps and return label to:Helping Others Resolve Differences, c/o Gregorio Billikopf, University of California, 3800 Cornucopia Way # A, Modesto, CA...
The Placebo Effect
"The physician's belief in the treatment and the patient's faith in the physician exert a mutually reinforcing effect; the result is a powerful remedy that is almost guaranteed to produce an improvement and sometimes a cure" Skrabanek and McCormick, Follies and Fallacies in Medicine, p. 13.Sometimes, like today, my job is simply to convene - the parties will do the rest.The trick is to recognise what the prime role is on any given day - then to stay out of the way.Gary Fitzpatrick taught me...
Mediation World now live!
Finally the wrapper has come off a unique global mediation resource sponsored by the UK Government for governments, courts, businesses, lawyers, mediators, and NGOs...Welcome to Mediation WorldThe site needs country content urgently so if you want to be involved and keep your country's page updated, then apply to become a Country Representative by emailing to email@example.comSponsors behind the site are the UK's Department for Constitutional Affairs and Foreign and Commonwealth...
Persuasion in Negotiation and Mediation Article by John Wade
Prof. John Wade's latest article on Persuasion in Negotiation and Mediation is fresh out today.Typically, it's 30 something pages are brimming with generous take-aways.John provides a framework for common patterns of behaviour and persuasion observed in high conflict negotiations in civil and family disputes, often including legal representatives.The article sets out:• Some introductory boundaries to the topic of “persuasion”• A composite model of a persuasive lawyer...
Parties to mediation are blogging
With all the talk lately of jurors blogging - like in this California Court of Appeals case where a juror's blog resulted in the conviction and sentence of 36 years being voided - I got to wondering if parties to mediation are doing the same thing.And guess what? They sure are. Especially those mediating because of marriage breakdown.This yesterday at MySpace;"Gratuitous Update. Current mood: busy... I was sitting in mediation with him, his attorney, my attorney, and the mediator, all of whom...
CEDR's Annual Review 2006
CEDR's Annual Review 2006 is just out. Highlights include;1. CEDR arranges three mediations every single working day of the year - not a bad effort in this age of over hyped mediation stats2. CEDR has a annual turnover of £4 million from dispute resolution provision and training services3. CEDR had its 12,000th mediation referral in 2006 and mediated over 650 major cases4. 284 new mediators were trained by CEDR in 2006 and over 2000 lawfirms, corporations and government offices called on...
Milestone UK mediation case said to be wrongly decided
A senior High Court judge last week criticised the Court of Appeal’s thinking on mediation in the key decision of Halsey v Milton Keynes NHS Trust, which he said was ‘clearly wrong and unreasonable’Mr Justice Lightman said that the use of mediation is being stifled by the Court of Appeal’s decision in Halsey, in which it laid out that parties could not be forced into mediation and that the burden for ‘proving reasonableness’ over refusing to mediate is not on ...
The Third Side
I briefly touched on Harvard's Third Side Project a while back.3S truly is worth an in-depth look.Perhaps meant more for the consumer than the professional neutral, this website is nevertheless a wonderful resource.Take a poke around the awesome 3S website and even download some free wallet cards or a Third Side One Day Workshop (Download Facilitator's Guidebook / Download Participant's Guide).Or perhaps try 3S tools. Or even watch a video of William Ury addressing a conference on the role of...
IAM Wires Running Hot
One of the best things about being invited into the International Academy of Mediators circle of trust is the email traffic.Frenetic conversations regularly flare up and then subside only to ignite again as someone joins the party late.Here's one that is hot right now.The initial email on Friday read:"Eighteen months ago, I mediated an employment case involving a claim by Plaintiff Smith using Plaintiff’s Attorney Jones against Company Alpha.Last month, I was retained to mediate another...
Do you need to "like" your client to do a good job?
Yeah for sure, it's a curly one and it's posed by Dan Hull over at WAC? yesterday - Do you need to "like" your client to do a good job?
His answer does not disappoint: "In our firm, the answer is absolutely yes. Color us spoiled, and even unlawyer-like--but we refuse to represent clients we do not like and respect. Screw the money. We'd rather sell women's shoes, be full-time lobbyists, or take up careers as street people..."
Hmmm, I get that the roles of attorney and neutral are poles apart but it's a question we should ask ourselves as mediators - do we need to like the parties to do a good job at the table?
If we find we do not like a party, should we decline to continue? If we don't like them, how can we give them the service they deserve?
Disclosure my dear blahblah reader; this mediator got into a wee bit of hot water a while back when a party felt the vibe was not quite right and through his counsel, unexpectedly called that elephant in the room.
He was quite correct though, I thought his client was an A1 jerk - just didn't like him, nothing I could put my finger on - just not my type - and I don't like the whole passive/aggressive thing, but that's another post.
We got over it and we got to Yes, but it was unpleasant.
Turning it around, I am convinced I do a better job for people I like - people I connect with - people whose values I can share. But does that mean we can't mediate for people we don't like?
Let me leave it there to see if anyone picks this up.
Meantime, take a peek at David Maister's What We Hate About Those People - it deals with the interpersonal relations between professionals and their clients.