Wednesday, January 31

Are we selling cars now?

You be the judge...this pitch found at Mediate This!

"Reformed "Killer" Divorce Attorney Reveals Her Closely-Guarded Divorce Mediation Secrets In Free Audio Series - Create A Peaceful Divorce And Save Thousands Of Dollars!
Fill in form to the right for FREE Audio, to discover
· How to stop fighting with your "ex"!
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Tuesday, January 30

mediator blah...blah... finds a spot at

Fly On The Wall

Want to ride side saddle on some guy's journey to a mediation with his neighbour?

Take a quick look at a fairly introspective blogging effort @ Andrew Ferguson dot NET (Rejecting Your Reality and Substituting My Own Since 1986)'s;

1. first Going to Mediation
2. then Mediation Postponed
3. then Mediation Date
4. and hold on to your hat for the mediation set for 6th February.

...stay tuned

Monday, January 29

Ohhhh man...

As I observed a while ago - mediation is a contact sport, you gotta wear a cup.

But, this is really beyond the pale.

I went to my Friday mediation in Feilding, one of NZ's most picturesque rural towns, and parked my car (well, I might say) in the law firm's visitor car park (see, we really are 10 years behind, we still have those) and I came out to this!

So, if you are a suspected farmer sporting dirty blue overalls and a 70's moustache, who drives a blue pick-up truck, can't reverse to save yourself and happens to read mediation blogs, please leave your insurance details in the comments section of this post.

Thanks Hayseed #@*!

Friday, January 26

Risk analysis in mediation

Gut instinct, sloppy guesswork and grey hair no longer seem to be enough in complex, high stakes mediation.

Mediators (and mediation lawyers) need to get better and more scientific about analysing risk in mediation.

Often times the BATNA for each party is a trial but they need to have more than an optimistic hope the judge will see it their way on the day, more than an educated guess at what might happen with a following breeze, especially when it seems that lawyers are increasingly afflicted by optimistic overconfidence as to the likelihood of success.

So is it time for an objective tool to sit along side our hard won, but unscientific, judgement?

The trouble is the available tools all seem to be absurdly mathematical combining elements of diagnostic and predictive reasoning about uncertainty using risk maps - aka Bayesian networks, probability tables and statistical simulations.

... and since this mediator achieved 26% in the last high school maths exam he ever took, I hate doing this stuff on the run on the whiteboard.

So here are some key resources to take for a spin;


1. Making Better Litigation Decisions Through the Use of Decision and Risk Analysis is a helpful starting point

2. Litigation Risk Analysis and ADR is a very thorough piece and would make a good 'are you interested in this?' email to repeat mediation lawyer clients

3. Prof. John Wade's simple risk analysis; How much pressure, advice and risk analysis should a mediator offer?


4. TreeAge Software demo (be patient as this takes a while to load)

5. Agena

6. Litigation Risk Analysis

Free trial downloads;

7. TreeAge

8. AgenaRisk

Wednesday, January 24

Geeez, I love the passion in our profession

This post from aspiring mediator, Eliesheva at lizrael update, a blogger poet from Jerusalem, Israel;

When I grow up

I'm in love.

It hit me today, like a club, like an enormous brainstorm.

I want to be a mediator.

Obviously, this was something I thought I want to do. I thought I could do.

But as of today, I know: This is what I will do.

I want to help people communicate. I want to help people express themselves and understand their opponents. I want to bridge experiences and thought processes. I want to show people how to bargain, how to negotiate, how to realize their dreams to the best of their ability while realizing their disputant's needs and dreams. I want to help people 'take into account'. 'Walk a mile in another's shoes.

I'm so in love!

...and this post yesterday;

Mediation on the brain

...I can see myself sitting at the table, talking to participants, focusing on language, the whole thing. Sure, I used to see myself in a lot of places, but I never really believed it.

They were fantasies.

This could actually work.

Of course, it'll take a lot of work. Not just career-wise, but personally-wise.

A mediator will never be absolutely neutral but a mediator does need to be confident, stable and very, very patient...

Tuesday, January 23

While we are on the whole aligning goals thing...

... ever noticed how nieces and nephews will run an errand for you, if you ask at bedtime?*

When Goats - sorry, I Mean Goals - Align

My nephews and nieces gave me a goat for Christmas.

I mean, I have always been in love with the idea of a goat, but the only time I actually had one was in 1977 when I dropped out of first year law.

I lived in a cottage in the wine country and went into my local op-shop for kitchen utensils and came out with a goat called Whitney.

Whitney took to sleeping on the bottom of my sleeping bag and survived on a diet of laundry that was occasionally strung up on a low hanging wire and boxes of smokes.

But I've moved on.

Anyway, this time it's a win/win. The goat is in Africa.

It's perfect; I have a goat, of which I am very fond, but someone more deserving gets to milk it, smell it and sleep with it.

It's a great result that addresses interests nicely thanks to Oxfam.

How Cool Is That?

This piece 'Muslim Cleric, Airline Successfully Mediate in New Zealand' from the first bi-monthly complimentary issue of Mediation News for the 21st Century, a newsletter service provided by

But what's so groovy is that you can see the Chief Mediator of the NZ Human Rights mediation team talking about this exact case over at the Mediation vBlog Project.

...that's convergence folks!

'Muslim Cleric, Airline Successfully Mediate in New Zealand
The New Zealand Human Rights Commission illustrated the success of its dispute resolution program which since 2002 has focused on mediation by detailing a number of cases, one of which resolved claims against an airline by a Muslim religious leader who was removed from a plane as a security risk for spending ten minutes in the toilet in ritual ablutions before take off. The airline ultimately gave the cleric a written apology and financial compensation for missing his presentation at an overseas conference, and instituted cultural awareness training and other changes to prevent recurrences. Overall, the Commission reported that discrimination complaints are up 11% over the previous year.
New Zealand Herald (December 9, 2006)'

Friday, January 19

How wrong can you get?

In Time for Two Strangers to Meet (no link but at 21 Ohio St. J. On Disp. Resol, 569, 2006), the Honorable John C. Cratsley proposed a rule that would prohibit any judge directly involved with mediation or settlement efforts from presiding over that case at trial if settlement attempts didn't work out.

Sounds sensible, and obvious. And avoids blurring the lines.

Responding to Cratsley's article, the Honorable Dan Aaron Polster argues in The Trial Judge as Mediator that a judge who takes an active role in mediation or settlement activities should not be barred from trying the case, assuming it would be a jury trial.

An interesting debate and one that we should be concerned about.

Hey, thanks WAC?

Dan Hull's wonderful What About Clients? has listed mediator blah...blah... amongst their favourite non US blogs.

If you are looking for new material that's on the up, take a look at WAC?'s list for your new year's diet as "...each expands and adds to the Conversation about Law and Business..."

Tuesday, January 16

Corporate Gift Giving

It has been interesting watching the recent exchange of views over the International Academy of Mediators list serve on the ethics of receipt of Christmas gifts by mediators sent by grateful law firms.

Some thought it was fine, others thought items should be sent back, or at the very least disclosed. Still others said it depended if it was a bottle of wine or front row tickets to the Boston Celtics.

I have to say, my problem was not an overwhelming flood of pre Christmas goodies.

But it did make me question the wisdom of my now annual gift giving to lawyers from a mediator grateful to have made it through another year with bread on the table.

Over the last 3 years I have sent a Christmas mediation tip attached to a matching present.

I will leave you to figure out which card goes with what item;

What is the ethics of this?

Monday, January 15

One day they'll tap me on the shoulder and tell me I'm faking it

Please take a look at this honest post on 'Attorney Identity' over at Selected Issues in ADR - a blog that Vickie Pynchon writes for her Straus Institute spring employment ADR class.

Many of us will recognise the story here.

It's a brave piece.

Sort of related: Advice to a Young Professional by David Maister

Sunday, January 14

Absolutely no direction in 2007 but here's an idea - first up let's kill all the lawyers*

In Jack Cooley's wonderful Creative Problem Solver's Handbook which is choc full of mediators' suggestions for breaking impasse, some suprises lurk.

Here's one from an 'attorney/mediator';

'the mediator swears in the parties, so they are somewhat more concise in their statements and provides a little more formality for the hearing'


More to come.

*Bill Someone

Absolutely no direction in 2007

As I return to my desk to read the first blog posts of 2007, I nod at the wisdom of my favourite blog authors and their promise of exciting posts to come over the next 12 months.

Although I went to great lengths to seek out wise counsel on my recent journey
into Asia, I am afraid I have absolutely no idea where this blog might take us all in 2007.

But having sat at the feet of a Master, I am not sure that it matters...

...after all grasshopper, its all in the journey.

Sunday, January 7

A Postcard From Hong Kong

Some great interviews with key players in the international mediation scene in China and Hong Kong... coming soon to The Mediation vBlog Project when I get back to New Zealand, including;

>Christopher To, Secretary General of the Hong Kong International Arbitration Centre
>Jody Sin, Civil Litigator and Council Member of the Hong Kong Mediation Council
>Roy Cheng, Mediator and past chair of the HKMC Commercial Mediation Group
>Raymond Leung, Mediator and Founding President and Honorary Governor of the Hong Kong Mediation Centre