Thursday, August 13

blah... blah... bows out

Regular visitors to this blog will have noticed a gradual decline in posting over the last couple of months.

Life, dear reader, has got busy and the call of the keyboard is not what it was after 1016 posts. I have decided to pack it in.

To some extent I feel this blog has achieved its aim of bringing the best of the ADR web to those who might not have otherwise sought it out. I leave you in the hands of many doing exactly that and better than I ever could.

To my blogging buddies; my apologies for not consulting you on this but I didn't want you to talk me round.

It's time for new projects and, for me, a time for family to pull together and look after our own.


Never say never, but for the moment not much new will be posted here.

We've had fun, you and me. Thanks for reading, I remain grateful that you took the time.

Tuesday, August 11

What Difference Does a Robe Make? Comparing Mediators with and without Prior Judicial Experience

An intriguing article (abstract only) in July's Negotiation Journal (Jul 2009. Vol. 25) by Stephen Goldberg, Margaret Shaw, Jeanne Brett reporting the results of two studies;

"... a glance at the rosters of some of the major mediation providers shows that between 40 percent and 60 percent of their mediators are former judges. This influx of former judges into the mediation ranks raises several questions that we address in this article:

1. Are former judges achieving success as mediators of commercial and employment disputes and, if so, why?
2. What are the characteristics and skills of those former judges who have succeeded as mediators?
3. Do former judges succeed as mediators for the same reasons as mediators who have not been judges?
4. What are the reasons why some former judges have not succeeded as mediators?


The first study, based on the responses of attorneys to questions about the reasons for the success of mediators with and without prior judicial experience, shows that the capacity of the mediator to gain the confidence of the disputants was most important for mediators with and without prior judicial experience.

Although certain process skills were viewed as important to the success of both former judges and nonjudges, in general, process skills were significantly more important for nonjudges than for former judges. The capacity to provide useful case evaluations, on the other hand, was significantly more important for former judges than for nonjudges.

The second study, based upon attorney responses to questions about unsatisfactory mediators, reinforced the conclusions of the first study regarding the importance of confidence-building attributes.

For both judges and nonjudges, the mediator's inability to gain the confidence of the parties was a major reason for his or her lack of success."


Saturday, August 8

Live Blogging from the AMINZ Conference

Today in Wellington at Te Papa, our national museum, we are enjoying the most stimulating gathering of mediators at the New Zealand Arbitrators' and Mediators' Institute Conference '09. Program here.

North Carolina mediator, attorney and author Andy Little is here as guest speaker and workshop presenter. For anyone interested in negotiating or mediating money claims, Andy is a must see and a must read is his Making Money Talk. Andy spoke on The Language of Numbers: Mediating and Negotiating Claims for Money

We have heard from NZ's great and good; His Excellency the Governor-General of New Zealand, The Hon Sir Anand Satyanand and Attorney General, Hon Christopher Finlayson and Michael Kirby, until recently, one of the seven Justices of Australia's highest constitutional and appellate court, the High Court of Australia.

More later.




Saturday, August 1

Improvisation, Negotiation and All That Jazz

Some while 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 teaching Improvisational Mediation recently - but I was alarmed to hear he had smuggled a whole jazz band in there!'

Well now
you can see it - musicians and students learning negotiation techniques by trained jazz musicians at Pepperdine Law School. But I'm back to where I was - I just don't get the connection!

Hat tip First Mediation

Friday, July 31

40 Superb Psychology Blogs

For those brave mediators who delve into this stuff, check out 40 Superb Psychology Blogs - this post from Psyblog lists forty of the best psychology blogs, chosen to give a broad sweep of the most interesting content being produced online.

The list is split into three sections: first are more general psychological blogs, followed by those with an academic slant, followed by condition specific and patient perspective blogs.

Wednesday, July 29

Lines are being blurred in modern mediation practice like never before

This blog, if you care to take a sampling of past posts, is not that of a white-hat-mediator.

That's because I believe life at the coalface of mediation practice is wonderfully confused, frustrating and often dirty, as I attempted to capture by one of my favourite past posts, rehearsing in poetry, but practising in prose.

At-the-table compromises are constantly being made by jobbing mediators, compromising on the tidy academic theories of process, ethics and skills that are pronounced in the rarefied atmosphere of our great centres of learning.

But, there's change in the air - lines are being crossed like never before - I hear it whispered over cups at conferences, I feel it in the room, I see it in myself.

Damn - even Cohen was singing about it the other night - "i
t's coming to America first, the cradle of the best and of the worst. It's here they got the range and the machinery for change..."

What are those lines?

Thursday, July 23

Yeah, I agree with this...


"Professor Roberts argues that this prevents the parties working out a settlement themselves and instead they were dependent upon the mediator. He therefore concluded that the shuttling model was at fault; causing the mediator to get caught up in trying to get an agreement. He argued that the mediator should be the sponsor of communication and not the constructor of outcomes, endorsed by the parties" [read more]

Sunday, July 5

Nice collection of articles by AIM Institute faculty just posted


By Lee Jay Berman
Most mediations begin with the mediator's opening statement, much to the consternation of the lawyers (many of whom have heard them many times before) and their parties. Although most lawyers prefer to launch right into their opening statements in a mediation, the mediator's speech can be very helpful. April 2009


By Lee Jay Berman
While many believe that mediation is a recession-proof business, the truth is that a difficult economy slows every business and practice as people have less money to pay for things. When a mediation practice slows, there are three things that mediators can do to make productive use of increased down time. They can increase their marketing efforts (attend more networking events, update websites, etc.), improve or update the administrative infrastructure of their practices, and they can hone their skills. Approx. reading time: 7 minutes. January 2009

"How to Initiate or Improve a Court Mediation Program"
By Lee Jay Berman
Question: We don't have a mediation program in our courts, and I keep hearing from people in other states what a great boost it is for mediation as a whole. How can we work with our local courts to interest them in starting (and paying for) a court-annexed civil mediation program? Answer: Taking your challenge even broader, and including those jurisdictions that already have court-annexed mediation programs in place that may not be functioning to the level everyone would like, let's talk about courts and mediation. Approx. reading time: 12 minutes. September 2008

"Getting Traction for Mediation"
By Lee Jay Berman
Question: I'm a mediator in a county where mediation hasn't been accepted or supported by our local court, and the lawyers don't seem interested in mediating cases. What can we do, perhaps through our local Bar ADR section, to help mediation gain some traction? Answer: Get ready to go to work! There are many things you can do, and frankly, the faster you and your local community of mediators implement them, the faster mediation will take hold...Approx. reading time: 6 minutes. July 2008

Bringing Oxytocin into the Room: Notes on the Neurophysiology of Conflict
By Kenneth Cloke
While people in conflict commonly refer to facts, behaviors, feelings, personalities, or events, for the most part we ignore the deeper reality that these are processed and regulated by the nervous system, and are therefore initiated, resolved, transformed, and transcended largely within our brains.

Building Bridges Between Psychology and Conflict Resolution – Implications for Mediator Learning
By Kenneth Cloke
Over the last three decades, hundreds of thousands of people around the world have been trained in community, divorce, family, commercial, organizational, and workplace mediation, as well as in allied conflict resolution skills such as collaborative negotiation, group facilitation, public dialogue, restorative justice, victim-offender mediation, ombudsmanship, collaborative law, consensus decision making, creative problem solving, prejudice reduction and bias awareness, conflict resolution systems design, and dozens of associated practices.

"Is Mediation a Pipe Dream?"
By Lee Jay Berman
In many ways, mediation is like any other profession or business, where some do well, some fail, and the rest are somewhere in between. But in many ways, mediation is unlike other professions because...Approx. reading time: 7 minutes. December 2007

"It's Time For Heavy Metal Mediation"
By Lee Jay Berman
KISS Mediators Rock the ABA Conference: Many attendees at the recent annual conference of the Section on Dispute Resolution had to look twice when they saw one of the characters pictured here walking the conference halls. When most learned that these were actually colleagues - the question was the same: Why would these self-respecting mediation professionals play dress up? Approx. reading time: 11 minutes.

"Impasse is a Fallacy"
By Lee Jay Berman
I often wonder who invented the concept of impasse. Who first said, "We are stuck. We cannot go any further."? And who decided that we should give it a name, acknowledge its existence, and make it the scapegoat for all that goes wrong with a mediation? Approx. reading time: 8 minutes.

"A Recipe for Peace"
By Douglas E. Noll
Pride is one of the great causes of conflict. It is not just the usual over-exaggerated sense of self, but also involves strong identification with a group. Read about the one way to transform conflicts based on pride and group identification. January 2006


"Heat and Humidity in Motown: The Role of Physical Environment"
By Douglas E. Noll
One of the simplest peacemaking techniques I teach is to change the environment. If you are in an argument or conflict with someone, try moving somewhere else. Taking a walk or finding a secluded space can work wonders. First, the time it takes to get to the space slows down the escalation process. Second, moving to a new space symbolically permits a new start to the process. December 2005

"Reconciliation"
By Douglas E. Noll
Joe, Martha, George and Anna had been fighting over their parents’ home and five acres for ten years. They had endured four lawsuits amongst each other, some resulting in judgments that had been enforced. Four years ago, the home burned to the ground with no insurance to rebuild, leaving a vacant lot to fight over. Each side had gone through two or more lawyers. The family had been torn apart through bitterness, anger, and strong feelings of injustice. October 2005


"De-Escalation The Key To Peace"
By Douglas E. Noll
De-escalation moves parties from emotionality to rationality, allowing them to make sound choices. If parties are pushed too quickly to be rational, they will balk and impasse will result. De-escalation is therefore a key element of peacemaking. September 2005

"Compassion"
By Douglas E. Noll
Compassion is one of the great unheralded traits of business leadership. Compassion requires you to subjugate your own need for attention and self esteem to the needs of others around you. You care and you are sincere in your caring. True compassion in the business world is very rare. August 2005


"Mediating The Aftermath of Terry Schiavo's Case"
By Douglas E. Noll
Terri Schiavo’s death has dropped from the news. For the family, the news trucks, interviews, and spotlights have been turned off, but the hostility, anger, and unresolved conflict must remain. Considering the 12 year conflict played out in the courts, the Florida legislature, the United States Congress and the White House, could reconciliation between the family members be possible? As a peacemaker, I think so. I also believe that until the family reconciles, personal healing will be very difficult. June 2005

"Talking It Out is the Path of Peace"
By Douglas E. Noll
Most people are exposed to coercion as their first conflict resolution process. What child has not been punished by banishment to her room or bed without dinner? Children quickly learn that personal autonomy is dependent upon personal power. The bigger, stronger person usually will get his or her way. January 2005

"Resolving Family Business Conflicts"
By Douglas E. Noll
In this article, I want to share a story about a family business conflict. This is not based on any real family business, but is so common, it could be. December 2004

"It's The Principle"
By Douglas E. Noll
Understanding when people have been wounded and how deep the wound has been experienced can give you insight into the conflict. Narcissistic wounds require the peacemaker to be non-judgmental and to show loving kindness and compassion. If the offending party can also be compassionate, appropriately remorseful, and empathic, the injured party can usually start on a healing journey to forgiveness. November 2004

"The Neuropsychology of Forgivenes"
By Douglas E. Noll
The perception of injury to our self, which is injustice, has several parts: (1) a sense of self; (2) an ability to evaluate the behavior of others as being injurious or beneficial; and (3) memory of the event to link that injury to the offending person. October 2004

"Bioethical Mediation: Peacemaking and End of Life Conflicts"
By Douglas E. Noll
Bioethical mediation provides a respectful way for resolving difficult medical care conflicts. It honors the interests of all of the stakeholders and seeks peace through a caring, understanding process. Bioethics mediation, although new, is another example of how positive peacemaking is finding its way into our culture, our institutions, and our daily lives. August 2004

"Internal Business Conflicts"
By Douglas E. Noll
Internal conflicts are normal, predictable, and resolvable if they are addressed rather than ignored. Unfortunately, since many companies have an implicit policy of repressing or avoiding conflicts, differences in business values can roil out of control. June 2004

"The Value of Listening"
By Douglas E. Noll
We rarely have the experience of being deeply heard by others. Most of the time, others tune out while we speak. When we can listen to others, especially in deep, intractable conflicts, we learn about ourselves and our capacities for positive good. When we are listened too, we feel honest respect and appreciation. Conflict cannot exist in such an environment and harmony flourishes. December 2003

"Why Can't We All Just Get Along?"
By Douglas E. Noll
Many will recall the plaintive call of Rodney King, the man whose vicious beating by members of the Los Angeles police department was caught on video. Mr. King cried out, “Why can’t we all just get along?” The reason we cannot always get along seems to be based, in part, on our brains. December 2003

"Coercion - More Costly Than You Think"
By Douglas E. Noll
Most people are exposed to coercion as their first conflict resolution process. What child has not been punished by banishment to her room or bed without dinner? Children quickly learn that personal autonomy is dependent upon personal power. The bigger, stronger person usually will get his or her way. October 2003

"Conflict Over Styles"
By Douglas E. Noll
Conflict styles are generally not consciously chosen, but emerge as a repertoire of actions that have been learned since childhood from everyday encounters, arguments, and disputes. Most people use their full range of conflict styles to one degree or another but, depending upon the nature of the conflict, prefer particular behaviors over others. June 2003

"Restorative Mediation"
By Douglas E. Noll
In the past ten years, a number of different mediation styles and techniques have been developed. To these processes, I add a style that I call restorative mediation. Restorative mediation is a mediation process that uses restorative justice principles to guide process and measure outcome. September 2002

"A Theory of Mediation"
By Douglas E. Noll
There is no lack of debate in the field of mediation. Topics that tend to attract the most attention and vigorous discussion include mediator qualification and process outcome. What's lacking, according to Douglas Noll, is a practical theory that would bring together different views, and help both practitioners and clients. In the following article, Noll reviews existing literature to form a simple mediation theory founded on basic conflict dynamics. Noll theory provides a framework for explaining various mediation styles and outcomes -when a certain approach is appropriate and why. February 2001

"Conflict Escalation: A Five Phase Model"
By Douglas E. Noll
Conflict escalation is a gradual regression from a mature to immature level of emotional development. The psychological process develops step by step in a strikingly reciprocal way to the way we grow up. In other words, as conflicts escalate through various stages, the parties show behaviors indicating movement backward through their stages of emotional development. November 2000

"The Way of The Mediator: Honor The Contrary Position and Confront Disrespect Directly"
By Douglas E. Noll
In conflict, watch out for disrespect. If you catch yourself dishonoring the other side, re-evaluate where you are at. Very little constructive work can be accomplished as long as the feelings of disrespect persist in the conflict. One of the most important ways to demonstrate mutual respect is to honor the contrary position. September 2000

"The Dollar Auction Game: A Lesson in Conflict Escalation"
By Douglas E. Noll
This article sets the stage to learn about conflict escalation by playing a game. The game is called The Dollar Auction, and the lesson is: "Beware of entrapment in conflict escalation as it will cause you to prolong conflict unnecessarily." September 2000

"The Role of The Peacemaker: Adaptive Versus Technical Work"
By Douglas E. Noll
When the peacemaker first meets the parties, she must quickly and silently diagnose their adaptive capacity in the conflict. Adaptive capacity refers to the ability to change views, values, behaviors or assumptions.

"13 Tools for Resolving Conflict in the Workplace, with Customers and in Life"
By Lee Jay Berman
Conflict happens. It is inevitable. It is going to happen whenever you have people with different expectations. This makes conflict management critical, whether avoiding arguments, disputes, lasting conflict or ultimately, litigation. Conflict can be avoided if steps are taken early in a discussion to diffuse anger and facilitate communication, and it can be resolved by applying a series of thoughtfully applied steps...Approx. reading time: 12 minutes.

"Lawyer Preparation for Mediation puts Money In Clients' Pockets"
By Lee Jay Berman
While all good attorneys prepare intensely for arbitration or trial, it is a wonder that more fail to prepare better for mediation. As the legal community continues to use mediation as an effective case settlement tool, it is becoming clear that attorney preparation plays a vital role in achieving a favorable result. Whether dealing with hundreds of thousands or millions of dollars, shooting from the hip is too risky...Approx. reading time: 4 minutes.

"The Advocates' Opening: Getting more for a client in mediation starts with the opening statement"
By Lee Jay Berman
There is a bright line differentiating client advocacy in mediation from other forms of client advocacy. Good lawyers know the difference and are getting much better results from mediations than those who do not make this important distinction. As the legal community evolves in the effective use of mediation as a case settlement tool, it is becoming clear that attorneys’ opening statements in a joint session play a vital role in their client’s success in that mediation...Approx. reading time: 4 minutes.

"Mediators' Opening Statements Offer Insights for Successful Results"
By Lee Jay Berman
There is much that can be learned from a mediator’s opening – about the process, about that mediator, and about how to maximize your outcome. ... remember that aside from simply setting the tone and laying down any ground rules, the mediator is providing tips and insights into how to maximize your success in that mediation, leaving your clients satisfied with their representation and their result...Approx. reading time: 4 minutes.

"Voluntariness in Mediation: An Historical Perspective!"
By Lee Jay Berman
A dispute resolution process is either voluntary or it is not. There are many forms of ADR that are designed to be mandated. Mediation, by definition however, is voluntary. Mediation has been around in family law and community programs for over twenty years, and it has been performed by elders in villages throughout the world for thousands of years. Sometime during the mid- to late-1990's, the courts agreed that mediation might be an effective tool for settling general civil cases...Approx. reading time: 8 minutes.

"Choose Carefully - All Mediators Are Not Created Equal"
By Lee Jay Berman
If a mediation is going to have a chance at success, perhaps the most important decision is who will sit in the neutral chair at the head of the table. From case to case, that decision will vary. Attorneys owe it to their clients to invest the time in investigating, strategizing and selecting the right mediator for each case ... here are 14 tips on the best ways to select the right mediator and increase your chances for a successful mediation...Approx. reading time: 7 minutes.

"Writing Effective Case Management Orders In Construction Defect Cases"
By Lee Jay Berman
Describes Case Management Orders (CMO's) and how they can be used in complex litigation, especially in the construction defect arena. Describes effective ways to negotiate a CMO, contains tips on language to use and to avoid, and describes how to keep control of your own litigation. Approx. reading time: 7 minutes.

"Hands Off Mediation Confidentiality!"


By Lee Jay Berman
We mediators fought hard for confidentiality in the mediation process. Now, citing public safety concerns, national politicians are trying to take that away. They claim that settlements reached in mediation need to be opened up for the public to see. In truth, all the public agencies need to know is that a complaint has been filed. Existing laws require them to investigate such reports after only a couple of complaints. Mediation will not be effective if its confidentiality protections are stripped away. Read more to find out why. Approx. reading time 6 minutes.

"ADR Confidential"
By Lee Jay Berman
Why is it important that mediation be confidential? This article delves into the difference between confidentiality and privacy. Insurance companies and others are anxious to know the outcomes of confidential mediations, but this may come at the risk of our personal and corporate privacy. Approx. reading time: 10 minutes.

"Avoiding Workplace Litigation"
By Lee Jay Berman
Here are practical steps a company can take to handle disputes, from small workplace conflicts to litigated employment law matters, in their earliest stages. This plan is a graduated dispute resolution program companies can incorporate into their internal policies and employment manuals that deals with problems before they become escalated and emotionally charged. Approx. reading time 3 minutes. September 1996

"Please Mister, Don't Sue Me!"
By Lee Jay Berman
Article about the state of the legal system, and why so many cases are settled prior to trial. Explains why a mediation creates a finite, facilitated settlement event that brings cases to resolution and closure. Describes mediation and when mediation should be used. It contrasts mediation and arbitration, and talks about the binding nature of each. Approx. reading time: 3 minutes.

"Sue First, Ask Questions Later!"
By Lee Jay Berman
Article about the state of the legal system, and why so many cases are settled prior to trial. Explains why a mediation creates a finite, facilitated settlement event that brings cases to resolution and closure. Approx. reading time: 2 minutes.

"What is Peacemaking?"
By Doug E. Noll
Peacemaking is a complicated concept because peace can be defined in so many different ways. When we speak of peace, we understand it in two ways. First, there is negative peace. The second way of understanding peace is as positive peace.

"Ten Principles of Peacemaking"
By Doug E. Noll
I use the term peacemaking to describe the values and processes involved in transforming difficult and intractable conflicts. Ten principles of peacemaking guide me in my day to day work with conflicts.