Great Question

If you get most of your work from attorneys, then Larry Bodine says here you should find your five favorites and ask them;

"What can I do to get more clients like you?"

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 employee's legitimate rights and promote social harmony'

Under the bill workplace mediation committees made up of workers and management are to be established to solve disputes at grassroots level.

Sounds like communism.

Wikipedia - should we care?

If Mediate.com is #1 for 'mediation' on Google, guess who is #2?

Well, take a look here.

Wikipedia (wikiˈpiːdi.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 resources.

But that's not my point.

With rare exceptions, Wikipedia's articles can be edited by anyone with access to the Internet and with that ability we are beginning to see corporate fingerprints in Wikipedia edits.

Yep, from the CIA to the Vatican, it looks like special interests are battling out the “facts” on Wikipedia.

So, if Wikipedia is becoming the new battleground for our hearts and minds; if people really are seeing it as the source of all wisdom, the question arises whether the mediation community should be paying more attention to who is writing up Wikipedia's mediation pages?

So who is it? Does anyone know?

With this week's release of WikiScanner that can find where Wikipedia edits originate from it should be entirely possible to find out.

But I thought I would ask first.

Thanks to Pronet Advertising's Wikipedia, Transparency, and Your Brand's Reputation Online

New Bloglines Design

I know many readers of this blog do so by RSS feed in Bloglines.

You may be interested to read your daily diet of blogs in Blogline's new design launched today at beta.bloglines.com.

David Maister on Buying Professional Services

In his latest short video gem, Maister digs deep into what it feels like to be on the other side of the fence - to be the buyer of professional services.

And you know, when clients purchase mediation services, it's quite simple.

If you want clients to trust you enough to use you, don't bother telling them how good you are - that your resolution rate is 99%, that you are a 'high rolling, high stakes mediator' - instead worry about them and their baby....[want to know more?... then watch here]

I left a comment asking David;

"....do things change when we are selling TO professional services firms, like lawyers.
I am a commercial mediator (ex NZ big law) and now I call the law firms, and specific attorneys within them, my clients.
Anything different in this situation or is it still all about the baby...?"

I will let you know if he answers.

Mediators on Acid

CEDR and ACID are collaborating to deliver a mediation theatre.

Experience the dynamics of mediation through a live demonstration, with commentary provided by an experienced CEDR mediator.

There will be two theatres both using IP case studies – one with legal representation and one without.

Hey man, sounds like fun!

Date: Wednesday 17 October 2007
Registration 4.30
Where? The UK Intellectual Property Office, Harmsworth House, Bouverie Street, London
Contact: Faith Hardman at fhardman@cedr.com

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 be a Goldilocks Zone - not too soon and not too late after the mediation - soon is not a good look - too keen, almost greedy. Late and you look disorganised.

So where's the top of the curve then, wiseguy?

My theory?... the optimum time to bill is two, maybe three/four days after the mediation; when gratitude is high - after a time for reflecting on the value of the work you have done... when the benefit of 'moving on/ruling a line/bygones...' is felt - especially with individuals. It's the waking up the morning after the mediation without the conflict being the very first thing that comes to mind that immediately gets noticed.

Plus I never get the whole 20th of the month thing. I send out my invoice in the same week as I mediate and request payment within 7 days. Organisations take longer to process the invoice than this, but anything 3/4 weeks old is soon on the radar screen.

The How...?

Well, paper is out...email is in.

A secure .pdf file oughta do it.

And include plenty of options for how the money gets to you. Cheque, Internet, credit card...and tell them when they have to pay by - which will come right out of your engagement terms* you provided by email when you first got the job, right?

I especially encourage payment over the Internet via their bank's bill payment facility. All they do is type in my account details that are on my bill and next thing I know I get an email alert from my bank telling me about the payment. See, no hands!

And if they don't pay, you can send a statement (personally, I don't bother - I just send a friendly standard email asking how payment is coming along - usually does the trick nicely). The trick is who to send it to.

Interested in learning more? Go here for this 31 page free e-book from CAD Partners called 'How to control your business cash flow...and keep some for yourself'

*I will do a future post on the top 10 things to put in your engagement terms - would anyone would like to volunteer their own as a case study?

Mediate.com is almost a teenager

Jim Melamed's tribute today to How Mediate.com Helps Mediators is well deserved.

Now in its 12th year Mediate.com is averaging over 15,000 daily visitors, and traffic is growing at a rate of 35% annually.

What's more Mediate.com is #1 for "mediation" at Google and offers mediators and the public over 3,000 articles and resources free of charge.

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.

As Jim says 'these are meaningful accomplishments'

Structured Settlements

Although it's gobbledygook to me, I suspect our US based friends may have an interest in the Structured Settlements 4Real Blog

It claims to 'present real and relevant information about structured settlements and settlement planning issues affecting parties in claims or litigation' but it also seems to do a fairly good job at bagging the opposition with posts like;

'...To the scum that wrote the piece for Structured Settlement-Quotes.com... Structured Settlement-Quotes.com cannot deliver legitimate structured settlement quotes. The company name structured settlement-quotes.com is misleading.'

But take a look at more constructive recent posts like Don't Blow All Your Hard Work At Mediation With "Cookie Cutter" Documentation

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 be able to force another person to be hurt, degraded and demean another. Mediation is a legal form of emotional and mental cruelty..." [I have tidied up the spelling but read more here]

And this from a Katrina survivor;

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 95358-9492

Free books are only available inside the US but those of us offshore can download it for free as a PDF file.

You can also get free sound resources from Gregorio Billikopf like this one hour empathic skills seminar or this interpersonal negotiation skills seminar.

Many thanks to Colm Brannigan of Ontario for sending this my way and if you wanted to do the right thing like your Mum/Mom taught you, send an email thanking Gregorio to gebillikopf@ucdavis.edu

The Journal of the Society for Judgment and Decision Making

Open-access journals all the rage and this is the open access journal of the Society for Judgment and Decision Making.

It's a 2007 web publication and will appear 6 times a year with no access charge - for the moment anyway.

There are already 5 publications available. It won't be every one's cup of tea with titles like Now you see it now you don't: The effectiveness of the recognition heuristic for selecting stocks...huh?

But articles like these may be of more interest, if a little dense (but maybe get your computer to read them to you); Gender differences in risk assessment: Why do women take fewer risks than men?

Dispute Resolution Magazine, Summer 2007

In the latest volume of ABA's DR Magazine lurks an interesting and well thought out article.

The Din of Many Voices: news coverage, the expansion of discourse, and conflict by Philip Seib of USC's School of Journalism examines the media's discourse around conflict, in particular across the vast ocean of the blogosphere, and how those of us in the DR business might manage this environment.

Seib says;

"... bloggers represent one of the most significant new facets of conflict-related discourse. They, along with other Internet-based communicators, provide many of the new voices and viewpoints that have emerged within the past few years... From an academic standpoint, the blogosphere is intriguing in terms of agenda setting. As blogs become more widely read, their influence may increase, affecting how the public aligns its issues priorities...."

Sorry no link - if you are not an ABA D/R section member, a copy of the magazine may be obtained for $8.00 from the ABA service center at service@abanet.org

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 that.

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 World

The 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 info@mediationworld.net

Sponsors behind the site are the UK's Department for Constitutional Affairs and Foreign and Commonwealth Office

Mediation World offers • Free access to mediation developments around the world – news, articles, mediation organisations, legislation, court schemes • Free information on each country, regularly updated by leading mediation representatives in that country • Free access to a discussion forum which enables you to post questions or comments and interact with others around the world on key issues – simply register your e-mail address on the home page • Free automatic notification of news and updates on the site - simply register your e-mail address on the home page

New ADRworld Blog

Just coming onto my radar is Alternative Dispute Resolution World Reports

It's hard to tell its connections but posts are by M. Dennis Paul, Msc.D, Ph.D. and there seems to be a hook up with adrworld.com

The first post was on July 18.

Insurance Cases

This piece over at Trial Lawyer Resource Center Group Blog on Friday may be of interest to those involved in negotiating insurance cases.

Leadership in Mediation

This week I interviewed an attorney from one of NZ's national law firms for the Mediation vBlog Project and I will be posting the edited clip there soon.

The theme of our conversation was leadership in mediation - how do mediators demonstrate leadership, what's expected of us in this area and do we, when we are 'just mediators', have any 'overt authority' at all?

In the midst of all that, we strayed into my favourite area of conversation when talking with a repeat user - 'how do you choose your mediator, what's your process, what criteria do you use?'

The response was enlightening -

".... if I have a strong case, I may not want a mediator who is known to be tenacious. If you are a 'never gives up' kind of mediator, I may feel you will get the other side - who I think has the weaker case - over the line too easily, with a better deal than they should get. In these circumstances I may choose a mediator who will not carry the weaker party as much, not be so problem solving, thereby making them work harder for resolution themselves and probably getting a result that reflects more my view of the respective merits..."

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 – negotiator
• Basic negotiation patterns
• The task of creating doubt about rights, goals and power
• Cialdini’s sales levers
• Persuasion and pause
• A glimpse at deception of others during negotiation
• A glimpse at deception of self and “decision traps”.
• Persuasion via “intangibles” – procedural skill and emotional awareness.

Mediators can now host their own live internet talk back radio

Now that mediators have mastered blogs, podcasts and videoblogs, we are ready to move on to host our very own talk back radio show.

BlogTalkRadio takes blogging to the next level, allowing bloggers to host a live blog show online. It's free to both radio show hosts and listeners and makes an exciting extension to the plain old text blog.

You can schedule your show up to a month in advance and listeners tune in live from the BlogTalkRadio site.

For those who want to phone in, just dial the phone number (by Skype if you want) that appears on the Programming Guide and you will be automatically placed in a queue where you are visible on the host's computer. When the host takes your call, you will be live and on the air!

BlogTalkRadio has more than 17,000 broadcasts under its belt and now carries an average of 200 shows per day, sometimes with 20 on air at once.

BTW#1, one of my IAM colleagues, Doug Noll is launching his own Internet radio show on World Talk Radio in September. World Talk Radio is a slightly different concept from BlogTalkRadio but is another viable option.

Doug's show is called Fix Your Conflicts! and he is looking looking for interesting mediator guests to talk about their practice. I will post when he is about to do his first show so we can all tune in.

BTW#2, take a look at Doug's blog that started back in May this year - Ataraxis: Solutions for Peace in Your Life; observations and lessons from a court room warrior turned peacemaker about finding peace in everyday life

Mediators May Not Disclose Information Related to Partner's Case

The new ethics committee of the ABA Dispute Resolution Section has just issued its first opinion.

The Committee opines that an attorney-mediator who learned information during a mediation that could be relevant to a discovery request in an unrelated litigation being handled by the mediator's law partner, should not disclose that information to the partner.

The Committee issued its opinion here; that since Standard V of the Model Standards of Conduct for Mediators requires mediators to maintain the confidentiality of information learned in mediation, absent a law mandating disclosure or the parties' agreement, disclosure of the confidential information would present an ethical problem [read more at ADRWorld.com - subscription needed]

Many thanks to New York attorney/mediator David White of White & Associates for the link.

Defence Mechanisms Used in the Negotiation Process

This piece from the latest edition of The Negotiation Times is worth a read as you start your week because it looks at how conflict arises at the table (as distinct from the substantive conflict the people are there for).

This kind of fits with my experience - that the chemistry on the day is every bit (more some days) as important - as to whether a consensus is possible - as the relative merits of each side's position.

"There are two ways to view how conflict can arise during a negotiation...
1. A negotiator's internal state will directly affect the interaction between the parties at the negotiation table.
2. The interaction that occurs at the table, will have a direct affect on the negotiating parties.
A conflict or dispute causes us to become defensive or offensive... Our reaction as people is complex... Here are some of the most prevalent of the defence mechanisms, used by negotiators in a conflict setting...." [read more]

Parties to mediation are blogging # 2

Following on from my recent post about mediation parties blogging....

Cory of Landover Hills, Maryland writes;

"So ... I'm typing this blog while in the middle of mediation. Yep ... that's right mediation. This is the time in which parents try to make their own decisions about the fate of their children before the judge has to do so. And I've got to tell you ... " [it gets nasty after that so no need for a link me thinks]

And you really must read this blow by blow post of a mediation between well known blogger Penelope Trunk, of Brazen Careerist and her husband of 15 years;

"...I explain how my career is going great. I tell the mediator I have a busy speaking schedule and a six-figure contract for my next book. I even talk about my blog, and the estimated 450,000 page views a month, even though you can trust me on this: Our divorce mediator from Middleton, Wisconsin does not read blogs.
At this point, I think my husband is going to tell the mediator about how he gave up his career for the kids and me and he is totally disappointed. But instead he says to me, “A lot of people I talk with say that I am being abused by you.”
I am shocked. It’s a big allegation. But I say, “A lot of people I talk with think I should get rid of you.”
That’s as bad as it gets, right there. Because the mediator interjects..." [read more]

Take some time to scroll down the many comments - there are even some from other mediators!

Where's all this going?

Thanks to Stephanie West Allen who kindly pointed me to Penelope Trunk's post

GradDipBusStuds

By the time I finished my law degree in the early 80's I was outta there.

As I passed through Victoria University's gates one last time, I shouted over my shoulder that they should put my LLB in the post - they could find me at the beach.

I always regretted that.

When I eventually came back from the beach and got a job, my firm sponsored me for the wonderful Massey University Post Graduate Diploma in Dispute Resolution (GradDipBusStuds)....20 years of off and on study - nights when the kids were babies, lunchtimes in the firm cafe - but life got busy and I left off with one subject to go.

When I finally got back to it last year and finished the missing paper I was set on a front row seat at November's graduation ceremony.

Beaming with pride I submitted an application to register for graduation and reserved six seats (Susan, the kids, my Mum and Dad - I was forcing them all to come). I even booked my academic garb - stole, trencher - all the trimmings.

That was until a Dear Geoffrey letter arrived in late July declining graduation and advising I had for some reason completed paper 155.301 back in the early '90's that didn't count.

What I actually needed was 153.202....law and mediation! Law and what!

Post scriptum: With the assistance of my mediator colleagues and friends at Massey's Graduate School of Business Myles Stilwell and Virginia Goldblatt I hope to be in seats AA 12 - 17 on November 30 at 2pm!

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 know about "it" and they were all calmly discussing what was going to happen with the kids. I just remember one thought popping into my head: "If you aren't outraged, you're not paying attention." That pretty much sums this up...if you aren't outraged, you really don't know what's going on...and once everything comes out then I will share it all with you..." [read more]

And this again at MySpace;
"what the sh*t. Current mood: enraged
Monday I had the mediation for the divorce and I was confident that I was going to go in there and at minimal come out with a couple of alteration of my choosing and at least the same overnights with my children...The mediator continue to go back and forth taking everything that I proposed to allow her more recreational time and fighting that is great for the kids but would continue to say that it is best for me that we leave it at that and that would allow me time to myself and so on and so forth. The mediator would not attempt to show that my request for Thursday night was a valid point to be a better father with more school contact..." [read more]

This IP mediation at The Village Idiot;
"Post Mediation
The mediation was a wash...
While we were almost able to come to an agreement wherein I signed something (which allowed me to state that I was NOT guilty of anything, and was ONLY signing a piece of paper to end this fiasco), we got hung up on them paying my legal costs, which they are unwilling to budge on. And so am I...
If I were not being sued by these bastards I might almost be flattered by all the skills they think I have.
The amended response from Qwest is in line with what I expected, a location in Minnesota.
Un-fucking-believable." [read more]

And there's plenty more.

My theory? I think we are seeing blogs being used as vehicles for venting.

That does not make the confidentiality issues raised any the less, but it does make sense... what do the books say to do when a party can't contain themselves at the table?...ask them to 'just write it down for the moment and we'll get to it'

In fact one of the posts has this apology tagged on to the end of it;

"Sorry for the venting but just needed to type out my frustration... I do not plan on proof reading this so may God forgive me for the wrongful things that were portrayed in this blog"

Interesting, no?

Legal Latin

It should never darken the doors of a mediation room, but yesterday it did.

A turgid Latin maxim...

And it wasn't something simple like in rem or caveat emptor - it was... well I'm not sure what it was. So I faked it. Again.

Here is a handy little legal Latin cheat sheet from UK booksellers swarb.co.uk to stop mediators ever looking stupid again.

[click on image]

Free access to SAGE journals

SAGE is offering free online full text access to the current and back issues of the following journals for a two month period, ending 30 September.

I have highlighted those in the list that may be of interest to readers of this blog;

To access the journals, register here

Mediation to help your sex life

Well, this looked a good story for a Monday

Cybersettle Helps NYC Resolve More Claims

Law.com reports last week;

"Cybersettle, which allows for the negotiation of settlements over the Internet, has signed a new three-year contract with New York City, expanding the types of cases that may be submitted to its system. The new eligible cases include medical malpractice and subrogation claims...

Since 2004, the city has used Cybersettle to attempt to resolve auto accident, sidewalk and other personal injury claims. Under Cybersettle's format, the city and its adversaries submit offers and demands confidentially over the Internet, and whenever an offer exceeds the demand a settlement is reached, with the plaintiff getting a bonus of half the difference between its demand and the city's higher offer. If the city's offer does not meet the plaintiff's demand, the two sides have the option of going to another round of bidding.

In a ruling last week, the U.S. Court of Appeals for the Federal Circuit ruled in Cybersettle v. National Arbitration Forum, 1092-07, that Cybersettle's patent protects its system of allowing multiple bidding rounds"

Still scoff at the suggestion that a mediator machine will take your place in years to come?

Well, look at the little ticker under the photo at the Cybersettle homepage that gives latest settlement amounts with time and dates...

Gotta' future proof your practice. Now!

Update - great post on topic by Stephanie WestAllen over at idealawg - If you have the mediator, why do you need the software?

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 The Third Side.

"The Third Side is a way of looking at the conflicts around us
from the larger perspective of the surrounding community"

Q : Why did the banana go out with the prune?

A : Because the banana couldn't find a date

For more hilarity take a look at John Cooley's 2004 thought piece The Joke Model Of Creative Thinking featured this week over at Gini Nelson's Engaging Conflicts

What Ego?

Well, I guess I needed a phone call like this today to keep my feet on the ground - especially after returning this morning from a tour of the country and three successful mediations under my belt.

At 4.41pm a lawyer rang to ask me if I was available for a mediation on 14 August but quickly went on to say that he 'hoped not' - as while his corporate client wished to appoint me and had instructed him to telephone, he had a strong preference for someone else!

Text-to-Speech for Mediators

Lately I have been experimenting with text-to-speech software to work out if it has any potential for my practice.

Originally, my aim was to get a machine to do my on screen heavy lifting - especially reading those dense PDF academic articles.

The free TTS application I use is called Natural Reader and it reads directly from MS Word, Outlook, the Internet, PDF files etc. This is important because some applications make you cut from the article and paste into the TTS application.

But there's more for the mediator. Text-to-Speech can;

1. read email or articles to you

2. read articles to your colleagues and clients when you send the sound file to them - I'm experimenting to see if clients would prefer sound files of my standard premediation documents (I don't think they do).

3. have your computer read a long article to itself while you are out, then download it to your iPod and listen to it later when you are driving home.

4. have your computer sit in your chair at the head of the table and read your opening to the parties, allowing you to come in late and maybe injecting more life into it than you on your 1625th mediation... the possibilities are endless.

Two of the most popular TTS applications are;

NaturalSoft (free and $ versions) Demo here

TextAloud (link is suspect - but it has free and $ versions)

And TTS voices have come a long way in the last few years. Try these; Mike Crystal Audrey (again these links seem to work then not work)

Don't like the way they sound? - plenty more here plus all manner of languages available.

Crikey!... there's even an Australian drawl

The Case For Mediation In The Defense Of Complex Commercial Litigation

Spotted by Christopher Annunziata in the August issue of The Metropolitan Corporate Counsel an article titled The Case For Mediation In The Defense Of Complex Commercial Litigation.

I'm not as polite as Chris...have a read of this, then read more nonsense here if you can take it;

"The Critical Importance Of Selecting A First-Rate Mediator...It is equally essential that the mediator be motivated by ego and additional fees to obtain a resolution... An effective incentive for a mediator is where an agreed upon significant bonus, in addition to the hourly fees, will be paid if the mediation results in a resolution.

Additionally, it is important to ensure that the mediator is willing to communicate to the parties that he or she is, in effect, functioning as an arm of the court at the outset, and is, thus, obligated to go to all necessary ends to resolve the matter.

An effective mediator exercising this role might threaten to report parties to the judge for non-cooperation (i.e., insistence on unrealistic resolution amounts), run the mediation for consecutive ten-hour days, or demand that parties bring in their respective CEOs to meet with him or her if the process gets bogged down" [my emphasis]

There is however some wisdom in the same issue at Strategies For Successful Interaction With ADR Neutrals