Wednesday, April 30

Law:Alltop

Alltop imports stories from all sorts of top blogs and collects the headlines of the five most recent stories into topics like food, small business, extreme sports etc.

When you place the cursor over a headline, part of the post is displayed so that you can decide if you’d like to read it. To read the story, click on its title. To go to the home page of the site, click on its domain name.


Now Alltop is getting down to business with Law:Alltop starting with a cross-section of blogs from the ABA Top 100 and soon, hopefully, mediation related blogs.

It's a great way to read 30 of the best of the best on one page.

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

Tuesday, April 29

Of War and Negotiation

Robert Benjamin has now completed three parts of his Of War and Negotiation series.

I posted on part one here.

Go here for parts two and three

Next Part 4; From the Peloponnesian War to the War in Iraq: Why Hawks Win.

Well I couldn't admit to knowing all seven, could I?

Message From: Geoff Sharp
To: Victoria Pynchon, Mediator LA
Sent: Monday 28 April, 7.30am
Subject: Got 2 for me?

Vickie,

I'm doing a post on 'Seven Habits of Highly Useless Mediators' and I'm two short.

What would be at the top of your list?

From: Victoria Pynchon
To: Geoff Sharp
Subject: Got 2 for me?

1. shuttles numbers back and forth without a rationale

2. says trial is uncertain and expensive

3. gives an evaluation before the parties ask for it

4. tries to muscle the weaker party into giving up more than it should

5. tells both sides good news they each want to hear

6. gives up when the parties reach impasse

more?

Victoria Pynchon, Esq.

From: Geoff Sharp
To: Victoria Pynchon
Subject:Got 2 for me?

Hey, I do all those at least twice each mediation!

Great, I will credit you.

G


From: Victoria Pynchon
To: Geoff Sharp
Subject:Got 2 for me?

You DO NOT!



For more go read Vickie's priceless blog

Monday, April 28

Guest post by psychiatrist Dr Mark Lauderdale

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 People

Have you ever tried to work with difficult people who complain about everything?

And if you tried to give them a helpful suggestion for their problem, they just shot it down with a million reasons why it wouldn't work? Or, perhaps they simply negated your idea by flatly stating, "I tried that."

How can you succeed with negative people like this?

I worked with a single mother who complained loudly and bitterly about her 9-year-old daughter. It's true that her daughter was a handful, but her mother was decidedly more interested in reporting how bad things were than finding a solution.

She repeatedly fumed in helpless exasperation, "I can't handle her. She won't listen!" Furthermore, the idea of sending her daughter back to live with her father again was "totally unacceptable" and having her live in foster care was simply "unthinkable".

Now, at this point it's easy to get frustrated… but if you do, you'll simply join the ranks of all those people who "didn't understand" and "didn't help" and the complainer has even MORE to complain about.

When I'm dealing with people I recognize that I can't change some one's fundamental personality. Someone who has had years of practice being negative and being a victim of life is not going to give this up in a few short encounters with me – in the same way that you can't stop a river by wading in and trying to prevent it from flowing.

Therefore, I went WITH the flow and listened to her litany of complaints. I became very interested in hearing about ALL of the problems with her daughter's behavior. I empathized, but instead of giving her suggestions right away I asked her to describe, in detail, what she had been doing in reaction to this behavior.

She said that her daughter repeatedly ignored her when she was asked to do things… or she would outright refuse. The mother explained how she would become angry and frustrated and just give up. She agreed that this approach wasn't working.

At this point it would have been easy for me to give a solution, but I persisted, "If you keep on dealing with things this way over the next few months or YEARS, how do you think things are going to turn out?"

I had just given her MORE TO COMPLAIN ABOUT than she had ever really wanted… and she developed a painful expression on her face as she envisioned that terribly unhappy future.

NOW… I allowed her to escape from the uncomfortable situation that her complaining had created by asking the key question, "So, how would you like things to be instead?"

Now, she was motivated. Her desire to think of a positive goal had temporarily outweighed her usual desire to seek sympathy.

She described the well-behaved child she would like to have and, with further inquiry, described the kind of positive and effective parent she would like to become.

I asked her if she would like my help to do that… and she said yes.

Within a matter of minutes she had moved from her position of being stuck in a pattern of complaining about her awful state of affairs to someone with a vision of a positive future who was entering into a working agreement to change things.

I have used this approach successfully to establish working relationships for many types of difficult people and problems.



Mark Lauderdale MD FRCPC is a psychiatrist and author of "Secrets of Dealing with Difficult People", which provides expert ideas, insights and tools for dealing with all types of difficult people confidently and effectively.

Friday, April 25

MTI is on a membership drive

MTI's (Mediation Works) new community blog signals an attempt to increase its profile via a 'New Interactive Online MTI Community'.

Listen to the community administrator, Wayne Messick, explaining MTI's plans for the Community on yesterday's 200 strong conference call here.

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 to, voluntary codes of conducts and other effective quality control mechanisms concerning the provision of mediation services.

> The Directive gives every judge in the Community, at any stage of the procedure, the right to suggest that the parties attend an information meeting on mediation and, if he deems it to be appropriate, to invite the parties to have recourse to mediation.

>The Directive enables parties to give an agreement concluded following mediation a status similar to that of a judgment by rendering it enforceable. This can be achieved, for example, by way of judicial approval or notarial certification, thereby allowing such agreements to be enforceable in the Member States under existing Community rules.

>The Directive ensures that mediation takes place in an atmosphere of confidentiality and that information given or submissions made by any party during mediation cannot be used against that party in subsequent judicial proceedings if the mediation fails. This provision is essential to give parties confidence in, and to encourage them to make use of, mediation. To this end, the Directive provides that the mediator cannot be compelled to give evidence about what took place during mediation in subsequent judicial proceedings between the parties.

>The provision of the Directive on periods of limitation and prescription will ensure that parties that have recourse to mediation will not be prevented from going to court as a result of the time spent on mediation. The Directive thus preserves the parties’ access to justice should mediation not succeed.

Following today’s adoption of the Directive, Member States will be given 36 months to convert the new rules into national law


Read more here;


European Parliament formally approved the Council’s common position on the new Mediation Directive - Get more documents

Thursday, April 24

KeepTube

I thought this may be useful to those mediation trainers who like to use YouTube videos on mediation in a training session, but who often find themselves without a broadband connection in the training room.

Well, now
KeepTube allows you to download a YouTube video and store it on your hard drive or memory stick for use whenever you want - without having to be connected to the Internet.


Simple eh?

Wednesday, April 23


Florida's "#1 Website" on ADR and a blog that hedges its bets with two titles, one misspelled, may be of interest to those that see arbitration and mediation as being in competition.

Readers of this blog that play for both teams should read National Law Journal Article Oversells Gloom and Legislation on Arbitration that begins: " Is it just us or are we sensing a tide of legal-journalism pieces prophecizing (sic) the end to arbitration?... "

Interested in mediation around the globe?

Here's the latest material uploaded to Mediation World

USA - Alternative Dispute Resolution Practitioners' Guide Thursday, 13th March 2008
Philippines - Moving on with Court-Annexed Mediation on Wheels Monday, 10th March 2008
Italy - Special Rules on Mediation in Law no. 192 of 1998 Monday, 10th March 2008
Nepal - Mediation solves cases pending long years Sunday, 24th February 2008
Malaysia - The Role of Lawyers in Mediation: What the Future Holds Thursday, 21st February 2008
UK - Civil Justice Review in Scotland Tuesday, 29th January 2008
South Africa - African Initiative for Mediation Quarterly Newsletter - December Saturday, 26th January 2008
UK - Nigel Witham Ltd v Robert Smith and Jacqueline Isaacs (No. 2) [2008] EWHC 12 (TCC) Saturday, 26th January 2008
UK - Costs penalties for delaying mediation Saturday, 26th January 2008
Belarus - Commercial law and adjustment of disputes through mediation Thursday, 29th November 2007
Russia - Bringing Mediation to Russia - Walking before you run Thursday, 22nd November 2007
Slovenia - Latest Mediation Statistics from Ljubljana District Court Monday, 15th October 2007
Switzerland - News on the Swiss Rules of Commercial Mediation of the Swiss Chamber of Commerce and Industry Thursday, 27th September
New Zealand - Guidance for ADR processes in New Zealand legislation Thursday, 16th August 2007

Tuesday, April 22

John Lassey - where have you been?!

A new bright star has appeared on the horizon announced yesterday, as is appropriate, by The World Directory of ADR Blogs.

John Lassey's Mediation Stuff is full of promise and scratches an itch in the mediation blogosphere by focusing on 'the resolution of civil litigation cases – those matters where the primary motivation for the participants is money'.

John is a mediator of 15 years and a gnarly old trial attorney with 30 years in the salt mines of civil litigation under his belt. You can find him at the New Hampshire law firm of Wadleigh, Starr & Peters.

In addition to the handful of interesting posts John has written - like Ask Not for Whom the Bell Curve Tolls . . . looking at ways way liability insurance carriers approach settlement of personal injury cases - take a look at some of his articles;

1. Dealing with Insurance Company Claims Representatives (06)
2. Of Potted Plants and Personal Injury:a Contrarian View of Mediation (07)
3. Effective Negotiation and Settlement Techniques (08)

Want to join an international listserve of arbitrators, mediators and peacemakers?

Los Angeles mediator Lee Jay Berman and friends on the International Subcommittee of the State Bar of California's ADR Committee have started an email list and want you to join.

They describe it as,

'... a worldwide gathering of all who call themselves mediators, arbitrators and/or peacemakers, and who do this work, in any forum.

Please join us, for dialogue, information, networking (both professional and social), and camaraderie. This group is intended to serve as an international listserve, allowing all of us who do this work to share information, discuss policy, ask questions, ask for help, seek out training and conferences, and share news and discussion.

Originally conceived of by the International Subcommittee of the State Bar of California's Standing Committee on Alternative Dispute Resolution, this group does not have any affiliations with any single organization, including the State Bar of California.

All mediators, arbitrators and peacemakers are welcome to join the conversation.'



Any club that will accept me as a member...

Monday, April 21

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 documents

And 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

Videos of Dispute Systems Design at Harvard

Last month I reported on live blogging action from the March Dispute Systems Design Symposium at Harvard.

Well, now those nice folks at Harvard have made it so you can watch the highlights. It's just like being there and they are great quality clips;

Introduction to the theory and promise of dispute systems design by Professor Robert Bordone
>Panel 1: Dealing with the Inevitable: DSD in the Institutional Context
>Panel 2: Dispute System Design on a Global Scale
>Panel 3: DSD in Times of Crisis
>Panel 4: A Constitutional Issue: DSD at the Birth of a Nation

Friday, April 18

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 Arbitration Association.

I have posted on the IMI
before and I suspect, love or hate what they are doing - you are going to hear a lot more about IMI in the next few years.

IMI's drive for certification is generating some heat in the mediation world because, for the first time, an initiative to set global competency standards for mediators is gaining real traction. Make no mistake, future mediation consumers, especially corporates, will use the IMI standard to determine mediator competency and be pivotal in any decision to hire.

And it's this that is proving to be controversial.

Some, like leading UK mediator Tony Willis - who I respect enormously (do you know that Tony was involved in acting 'for the money' in the 1979 Iran hostage drama that lasted 444 days and it was this that set him on a mediation path) - say the IMI proposals are clunky, bureaucratic and costly and they are of the one-size-fits-all variety, making no effort to reflect different jurisdictions. Tony has labelled aspects of the venture, ‘impossibly cumbersome’ and concluded ‘it will be damaging to the profession.’

Perhaps one of the most serious charges against the scheme is that these are not standards being set by mediators - but by providers such as the AAA and they will eventually create a barrier to entry for those yet to enter our field and establish themselves. This troubles me.

After a period of consultation last year draft standards have been developed and IMI is now looking for your comments here.

An Independent Standards Commission comprising '30 international thought leaders in the dispute resolution field' has now been convened to finalize the standards after reviewing all comments.

I hope to bring you some video or audio of Michael Leathes' presentation.

[disclosure - I was recently asked to join IMI's Independent Commission and have accepted deciding that I am in a better position to influence the shape of the IMI standards from inside the tent than from with out].

Thursday, April 17

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 that's the exception.

Anyway, doesn't really matter why, it always ends badly.

Much of personal injury lawyer John Day's advice in his 12 part think piece on What it takes to be a great trial lawyer is relevant here, especially these sections;

1. Great trial lawyers don’t cheat
2. They have the ability and willingness to undertake (and share with the client) a cost-benefit analysis throughout the litigation

3.
They can pull the trigger
4.
They are willing to be themselves
5. They have the courage to tell the client the truth

See also Greedy lawyers blamed for lack of mediation

Wednesday, April 16

Mediation domain names for sale

This is just in from Deborah Schick Laufer, Manager for Mediation Services at the World Bank and Executive Director of the Federal ADR Network.

It's your opportunity to buy some great dispute resolution related domain names.

Contact the seller directly at AttorneyMediator@gmail.com to express interest and make an offer.

MyMediationSolution.com
TheCreativeMediator.com
TheAttorneyMediator.com
TheMediationLawyer.com
TheMediationAlternative.com

TheSolutionToResolution.com
FamilyMediationOptions.com
MediationSettlement.com
MediationConnections.com
JDMediator.com

Tuesday, April 15

What Are Your Soft Skills?

This from the always entertaining Chuck Newton.

It's for all us refugees from Big Law and those too sensible to go there in the first place... a
ttorney-mediators will see many familiar flags.

Sunday, April 13

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.

Demand for in-prison restorative justice conferences

Interested in Restorative Justice?

Read about this project to fund restorative justice processes in NZ prisons, and how the demand for in-prison conferences is increasing with two-thirds of all requests coming from prisoners, with the rest coming from the victims.

Thursday, April 10

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 the rest of us and maybe, just maybe you'll make it.

Heck, I've been at it for 10 years and I still don't know if I will.

And before we meet, please read these short think-pieces from those who have gone before;

1. Starting a Mediation Practice (Geoff Sharp)
2. How to Start a Mediation Practice (Vickie Pynchon)
3. How to start (and not start) a mediation practice (Diane Levin)
4. How I Started My Mediation Practice Part 1 & Part 2 (Dr Tammy Lenski)
5. 30 Top Mediators Share Secrets to Building a Successful Practice (Jeff Krivis and friends from the International Academy of Mediators)

Wednesday, April 9

The changing nature of the plenary session in mediation

I couldn't disagree more with this post from Hull & Hull's usually very agreeable Toronto Estate Law Blog but what the hell, read it and weep.

"However, plenary sessions have largely changed. It is now widely recognized that allowing counsel and parties to make opening statements only inflames the situation.
... a plenary session should, in my view, consist of the following:
>A brief discussion by the mediator of his/her role as well as the ground rules for the day;
>An emphasis on why it is in the parties' interest to resolve the dispute at the mediation rather than later on within the court process;
>An overview presented by the mediator of the outstanding issues and disputed facts; and
>Constrained input from the parties..."

Then do yourself a favour and read In Praise of Joint Sessions

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.

Tuesday, April 8

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!

What next for Superman?

It's only fitting that a SuperLawyer (or at least a Top 40 California Neutral) mediates Superman's future trajectory in this IP dispute after the Court orders mediation within 60 days.

Mediating Family Violence

Out today in the latest issue of the Mayhew-Hite Report on Dispute Resolution and the Courts Mediation Can Work for Juvenile-Perpetrated Domestic Violence: A Second Look at Family Violence Mediation is sure to be a controversial piece.


Ohio State University Moritz College of Law student Paige Schweitzer argues that disputes involving domestic violence by children against parents are not benefited by traditional adversarial adjudication.

Schweitzer suggests that mediation of these disputes in a safe, structured environment can provide benefits to children and parents that would be unavailable in litigation, since it shifts the focus from blame and denial to the development of conflict-reducing strategies for the children and parents.

Monday, April 7

Four New Mediation Blogs

It rained all weekend down in our corner of the globe, so we sat by the fire as winter arrived. I surfed the web without wires. The dog snored. And I found four new mediation blogs in varying states of repair.

While there are too many adds for my taste - including one for the ladies from CatchHimAndKeepHim.com - the first blog I found is the MTI Community Blog from Mediation Works.

The second new blog is from James South, CEDR's Director of Training, who works in many different countries around the world to establish mediation in diverse civil justice systems.

James' (who is a New Zealander!) has recently been in Pakistan working with mediators there and he is keeping a diary of his experiences at his new blog.

Related: Mediation Project Design in Developing Countries

The third is the fledgling Malaysian Mediation
by Chan Kheng Hoe of Kuala Lumpur - a mediator on the panel of the Malaysian Mediation Centre.

The fourth new blog is The ZapaBlog - Mediation, Negotiation, and Fast Business from Brandon Krieg of Michigan that appears directed at small business.

Saturday, April 5

Yeah well, this says it all...




Bond Newsletter

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 at mediations.

Tuesday, April 1

Amanda Bucklow on how to make mediation agreements stick

Amanda Bucklow, who I introduced to readers of this blog recently with the launch of her Mediation Times, has usefully commented on an old post of mine about making mediated settlement agreements more durable.

She says;

'Hello Geoff This is a question I have pondered a great deal recently and in doing so I had two thoughts or even insights:

Firstly, if you are a good mediator then you necessarily build excellent rapport and trust. Yes? If so, then it is likely that the negotiated deal, even after exhaustive reality checking, 'feels right' to the parties at the time and in relation to your (the mediator's) presence. I say this because I believe that the presence of the mediator positively provides an environment where courage and hope are likely to flourish.

The result is mutual respect and even warmth and appreciation at the achievement of a settlement. (The kiss!) It is hard not to respect people who find the courage to do something they thought they never would. There is a change when we leave the parties to get on with it. On their own they can forget their new found courage and perhaps feel less certain without the comfort of the mediator's presence which they had during the decision making process. This can lead to a reversion to previous mental states - generally doubt.The parties may also believe that whilst we are there we are somehow 'controlling' the behaviour of the other party and keeping them 'honest'. Thus, they fear any change or tweaking to the agreement and may start to doubt again.

The second thought was this:
I frequently observe an addiction to the conflict! I can't tell you how many times I have wondered what parties (and lawyers!) will do when this is all over! So, many years ago I decided that if I had a sense of that as a possibility, I would spend some time with the party (or parties) talking about what they will do next. Even to the point of putting together a plan. I generally do this during drafting.As in biological life where there is no life unless there is conflict, for some they do not feel quite 'alive' unless they are in a conflict. It defines them as people.

I have said what I do in this case. What I do in the first case is encourage the parties to include a clause in the agreement which says that in the unlikely event that there are difficulties in finalising and implementing the agreement, the first port of call is the mediator. This also gives me the invitation to call or email at my instigation, to ask how things are going and if they need any further input from me. I also make a point of getting everyone's contact details at the same time. And then of course I make sure I do call or email.The other benefit is that my 'presence' is enshrined in the agreement - like a virtual guardian.I think it makes a difference!'