It's a risky demon to raise.Mark Rubin of Virginia is currently the only mediator serving as an advisor on the senior staff of a U.S. governor.
In this podcast yesterday Mark discusses how the tools of mediation are being applied in creative ways to the processes of government.
If you are interested in this sort of thing, take a look at legaweek.com's 2006-07 results wiki special to see what the UK law firms are earning.
The important number is the PEP (profit per equity partner). The top earners will be earning more than the PEP, but this is a good indicator as it is averaged out over all equity partners.
While some of us refugees from big law will chuckle as we recall the intolerable personal and family burden incomes like these come with, those mediators who mediate with big firm partners at the table should use PEP in their home markets to inform their own pricing.
Do some mediators scaremonger the parties at mediation in the name of reality testing?
Inspired by The Green, the environmental programming on Sundance Channel, Dina Beach Lynch poses the question: can mediation be green?
She then asks her blogging mediator buddies to take crack at the answer in their blogs. Dina has got some erudite answers; this isn't one of them.
So I guess mediation can be green if you are...
Michael Green QC a mediator from New South Wales Australia, or Rachel Green a divorce mediator from Brooklyn NY, or
Sweetwater Mediation of Green River, WY, or
the New Zealand Green Party advocating restorative justice, or
the law offices of mediation friendly firm Green & Green,
or indeed this recipe for a Mediator's Special Green Chili Enchilada
Another list by John Wade
Strategic Language Used by Mediators
An interesting collection of 45 mediator interventions with a self evaluation form.
This blog is the 5,770,818th most popular space on the web*
Yes, that's millions.
*according to an unsolicited email from a web traffic company received today
With her catholic tastes, Vickie Pynchon's Settle It Now Blog just gets better and better - bringing us interesting and eclectic reading from all over.
Need convincing...?
Just check out one of Vickie's latest posts linking to an article appearing in the San Francisco Daily Journal, Influencing the Mediator
We need to know that this stuff is being put about, with its advice to...
>squeeze the mediator into a small caucus room with a round table with no head that symbolically diminishes the mediator's authority while at the same time offering a large rectangular table to the opposition in the hope that the mediator will sit at its head, thereby increasing his influence upon them
>'having more attendees forces the mediator to read and address them all, degrading his effectiveness'...
...similar sophisticated tactical takes on the mediation process await you here including;
>How to Influence the Mediator in Private Caucus
>Predisposing the Mediator
The author advertises that "he is among the most knowledgeable mediators in the country with respect to sophisticated business and tax issues"
Need convincing?
Often times I see a mediation video on the net that I want to use for a training I have coming up. Trouble is it won't work unless I'm online and plugged into fast Internet at the training venue.
WTO has launched a debate series in superb quality video.
It will be a series of webcasting debates where experts from around the world confront major issues facing the WTO. The debates will be held on a regular basis, with advance notices for subjects and dates posted on the WTO website.
Watch the first in the series with professors William Davey, University of Illinois College of Law and John Jackson, Georgetown University Law Center debating improvements to dispute settlement understanding.
Each speaker has two minutes to make their case, followed by three and a half minutes of exchange and a 30-second summing up.
You can participate and make your views known in the online forum
Hat tip to Rob Warner
Does Seth Godin's post Three humps and a stick (on pricing) have any relevance to the way we price ourselves?
Four top UK litigators have this week launched their own mediation chambers - so says legalweek.com on Friday and will begin work there this Monday, 18 June.
The panel has been known as Independent Mediators since late 2006 but is now transforming itself into a bricks and mortar establishment to compete with CEDR and other established players in the UK, increasingly crowded, mediation market.
It includes some of UK's top rated commercial mediators. Superb operators like Tony Willis, David Miles and David Richbell (this blog featured these latter two mediators a short time ago)
5.15am
Alarm goes...
Shower - there's only one positive - it's too early for the kids to have taken all the hot water
Peck on the cheek
6.00am
Taxi toots - wakes the dog
Driver makes small talk - too early, I'm not even talking to myself let alone anyone else. I freeze him out
Empty streets; Wellington is stirring on a drizzly winter morning but greens all the way to the roundabout - a good start
Update office voice mail from the back seat with today's date and activity
6.35am
Arrive Wellington Airport, raining heavily now. My coat is back at the office.
Straight through to the Koru Club, having obtained a boarding pass via my laptop last night
Regular shoe clean on the Koru shoeshine machine (the receptionist tells me for the umpteenth time only me and local politician Winston Peters use it)
Review litigation papers over an average cup of coffee in a quiet corner of the lounge
7.00am
Go to security, I'm in luck - the line is short - the guy having a bad hair day in front has enough change, keys and assorted metal objects to get to go inside a booth with an 800lb gorilla
7.10am
Flight NZ406
Front window seat 2A, slight chop at 23,000ft
Decline a mineral water
Continue my review of the papers - woman in 2B keeps peeking - I put her off with a withering look.
Power nap until the engine pitch changes. For a moment I think the pilot has knocked the on/off switch and my heart rate spikes - it gives me the adrenaline hit I need
8.00am
Gentle landing against the odds as from the pilot's voice he sounded like a learner. A quick disembark - time to grab breakfast at the Auckland lounge - I like their fruit toast
8.30am
My regular driver Graham is waiting amongst a gaggle of drivers with name boards
Hit the Auckland traffic; it's slow despite going a sneeky back way
Awake now, we talk about Graham's latest family drama - no real answers I'm afraid
9.15am
Drop off at a cafe, a block away from the law firm venue
Draft my opening over a second (real) coffee and do my usual back of my pad 'standard lumps and bumps' analysis and mediator predictions for the coming day
9.45am
Arrive at the law firm and change the room around. Whistle up a whiteboard and 3 different coloured pens. Can't find an eraser, I'll have to use my hankie again
10.00am
Mediation
12.45pm
Break for lunch - because of private discussions with each party, I get to eat my emergency muesli bar kept in my bag for such occasions
1.15pm
Reconvene
2.20pm
Resolution not looking likely
I text home and say I probably won't be late
3.30pm
Someone blinks and we get back on track
6.00pm
We are writing it up, some tax wrinkles emerge but we iron them out
7.00pm
Handshakes all round and the room empties quickly
I indulge myself for just a moment as that feeling all mediators live for settles on my shoulder
Ring a taxi - Graham has gone home to sort things out
While I'm waiting, I use my Treo to take a photo of the boardroom carpet for my rather flaky series of posts on 'carpets upon which I have mediated' and hope no none is looking
7.15pm
Taxi arrives
I sort out the file in the back seat and return email and voice mail - great, some new jobs
I text family cellphones to say I'm late/I'm tired/I love them - expecting some a like message and some sympathy. I get a reply saying 'k dat's kul' from my 13 year old, no one else bothers.
8.00pm
I make the 8pm flight, front window seat again but this time have the luxury of a vacant one beside me
I decline the mineral water in favour of a half hour sleep
9.00pm
On landing, an effusive and high pitched 'thank you for flying with Air NZ' speech - not that there's any real choice
Line of 50 taxis to choose from. I walk to the top of the queue, while the guy behind me takes the closest car prompting a sharp exchange between rival taxi companies
9.30pm
In the gate.
Dog goes nuts - kids underwhelmed - Susan has a smile
Someone kept dinner for me. I reheat it.
On the couch for the last half of Boston Legal with anyone who will join me - a bit like the opening frames of The Simpsons
Gotta' love it...
video
So tell us about your day?
I'm delighted to be witness to the birth of a new resource to our mediation online world.
The very first issue of La Trobe University's Conflict Resolution Research Centre Conflict Resolution e-Journal is just out and I even recognise some of its early stars.
NZ's own Rob Warner of Standards NZ has authored Performance measurement considerations for dispute system designers – what gets measured gets managed, what is managed can be improved
And LA's own Victoria Pynchon has authored The cost of a thing is the amount of life which is required to be exchanged for it: the subjective experience of money in the settlement of a wrongful burial practices case (see Vickie's blog post on the same topic)
This is a serious academic resource and all articles are to be the subject of academic or professional peer review.
One request - where can those interested subscribe by email or feed to the e-journal? I could not find anything.
A great resource today from Bill Waters' Campus ADR Tech Blog on the Dynamics of Group Decision-Making
Images from out there on the road today... The depressing picture hanging in the passage outside our room that encouraged two of the parties to have a similar reaction at around 4pm...
The well worn table from the mediator's chair (with the extremely effective video phone allowing an overseas party to fully participate)....
The horrendous flight home through a winter storm in a wee two engine plane...
During the Cold War, CIA operatives considered Moscow to be the most difficult assignment - a mistake there could get you killed (who knows - after the week that was, they may revert to the same view).
Anyway, back then, to handle the threat, the CIA's most seasoned Russian hands developed informal rules of engagement called the 'Moscow Rules'.
During a recent trip to Washington DC, Bob Creo visited the International Spy Museum and came across these same rules, now declassified.
In his 13th installment of his Master Mediator web column over at CPR he makes out the case that the rules apply equally to mediators as to Moscow spies.
So, whether you are mediating in Havana or Pyongyang...
1. Assume nothing.
2. Murphy is right.
3. Never go against your gut; it is your operational antenna.
4. Don't look back - you are never completely alone.
5. Any operation can be aborted. If it feels wrong, it is wrong.
6. Maintain a natural pace.
7. Lull them into a sense of complacency.
8. Build in opportunity, but use it sparingly.
9. Float like a butterfly, sting like a bee.
10. Don't harass the opposition.
11. There is no limit to a human being's ability to rationalize the truth.
12. Technology will always let you down.
13. Once is an accident. Twice is coincidence. Three times is an enemy action.
Bob Creo's new book Alternative Dispute Resolution described as a "comprehensive treatise" (Bob's not kidding - its got 1,200 pages of text and 400 pages of appendices!) is available here and seems a particularly relevant commentary for the Pennsylvania ADR practitioner.
This post just out from the Law Librarian Blog advising that arbitration ranked third behind mediation and early case assessment as the most preferred form of alternative dispute resolution.
A recent survey by the International Institute for Conflict Prevention & Resolution found that;
'The U.S.-based attorneys that we surveyed overwhelmingly embrace mediation as the most powerful method to resolve complex business disputes outside of court, citing “cost savings” and “speed” as the primary reasons for their preference. Law firm respondents were more concerned about the risks of confidentiality and that mediation would convey weakness than were corporate lawyers.
Surprisingly, a major hallmark of mediation, that it alone provides the ability to maintain and improve relationships despite a dispute, scored low in importance for corporate counsel' .
Aside from the obvious good news, two things that disappoint -
1) are we not yet over that weakness thing? I think most sophisticated operators are, and
2) cost is still the primary driver to mediation, when we all know it offers so much more
In fact ALL of cost savings/speed/confidentiality/reduced discovery/finality rated higher as motivators for mediation than maintaining relationships and improved results - the very two things we mediators put up in lights when selling!
Read more : CPR's Survey on ADR Trends (first quarter 2007)
"Do you believe in Med-Arb?" I asked a colleague today.
"Hell yes, I've even seen it done" she replied conspiratorially - as if we were talking about modern day witches or UFOs.
How such a bastardized process gets any traction in our wonderful profession is beyond me, but you be the Judge.
So how does it work when people arrive at the mediation table with a bundle of venomous letters and emails in their satchel?
Then they proceed to have the most constructive and cathartic conversation I have heard in a long time...
It's too easy to demonize others when you don't sit down with them face to face, and it's too hard to if you do.
The 9th LEADR International Dispute Resolution Conference is to be held in my home town of Wellington, New Zealand on 19 - 21 September.
We really hope you can come.
David Hoffman and the Governor General of New Zealand, His Excellency the Honourable Anand Satyanand and me can.... so Where The Bloody Hell Are You?
Register online
Preliminary Conference Programme
What's on in Wellington in September 2007
Another in the series - 'carpets upon which I have mediated' - to test my theory that the carpet upon which the drama plays out is, in part, determinative of the outcome.
Last week;
Monday - a gentlemen's club
This is a good piece on listening from the latest issue of Law Practice Today.
It makes more sense than the usual patter about active listening.
The same post has some good stuff on the power of sound (your tone) - good mediating is often in the how, not in the what - and the power of the body (your body speak).
All 3 might be a bit of a stretch but you may find one that interests you...
1. Worth a read if you are a commercial mediator and visit the dark side on the odd occasion;
Heavy Metal Mediation - Real Tools for the Real World of Commercial Mediation by LA mediator Lee Jay Berman who has an office on Wilshire Boulevard (man, have you any idea how cool that address sounds to someone in the middle of winter down here in a corner of that world map on your wall?)
2. Worth a read for a lawyer looking for the path back;
Collaborative lawyering - some preliminary thoughts for Australia by John Wade Bond University, Sunny Queensland.
Related: Colorado To Ban Collaborative Family Law?
3. Worth a read because we all know that anything Frank Sander writes is going to be time well spent in our favourite chair;
