Thursday, April 30

Addicted to mediator blah... blah...?

Then this little app will help you reclaim your life!

It will force you to stop, think - then and only then - proceed to blah... blah's latest posts.

Hat Tip to DailyBlogTips

Spotlight on Diane Levin over at

See what makes mediation's foremost ADR journalist tick over at

Diane's pick for the next ten years?

"Here’s what I predict.(You can come back in 10 years and let me know how I did.)

Advances in neuroscience and psychology regarding decision making and judgment will gain increasing importance for practitioners of ADR, yielding practical applications and techniques for producing better decisions.

As calls increase for professionalization and standardization of mediation practice, one state will establish formal licensing for mediators in private practice.

I anticipate in coming years that mediation will have to confront some of its demons – the fierce divide between facilitative and evaluative practitioners and between lawyers who mediate and mediators who don’t practice law. There’s a cultural divide that we ignore at our peril.

Just please don’t ask me to pick the winner of the next Super Bowl..." [read more]

Wednesday, April 29

My last word on the ABA conference

Having put some distance between me and the ABA spring get-together the other week in New York, I am left with a slight hangover.

Not because of nights out on Broadway at God of Carnage or Billy Elliot, or that $25 whiskey sour on top of the Rockefeller Centre or even slugging pints of Brooklyn Brown downtown with Jeff Thompson.

I mean, there may have been some gold nuggets buried deep inside the conference program but, for the most part dear reader, I did not find them. Rightly or wrongly the ABA Dispute Resolution Section annual conference has become a leading gathering of global mediators and I expected more than I found there.

The usual masters of mediation were in attendance, some finding new ways of saying old stuff and some, in at least one plenary I attended, being content just to phone it in.

Now, this blog likes to be opinionated, not outspoken - but I do believe I voice the concern of many. The program was tired and some presenters had no business being at the front of the room.

For instance, if I decide to invest 1.5 hours in a session on starting a mediation practice I expect to hear from people who have actually started their own mediation business, and learn more from them than 'get a good website'.

I also want to be challenged, I want to hear what's around the corner, what's ahead of the curve - why was there not one paper on what Web 2.0 means for mediators? I know one was offered.

It's time for the ABA Dispute Resolution Section to re-evaluate it's conference format and content - maybe less is more as mediation matures and the need for mediation 101 primer sessions diminish.

And maybe, just maybe, lose those cheap boxed lunches.

Monday, April 27

Unforseen business risks out of a clear blue sky

Having returned to New Zealand in the weekend, I was just back in harness today when my phone went.

An authoritative voice on the other end announced that I had been on the same plane from L.A. as a group of kids who had been on a school trip to Mexico and were now exhibiting symptoms of swine flu.

I was informed that I was now required to take some pills that were being couriered to my home as we spoke and then put myself into 72 hours (count'em 72) quarantine - I completed the mediation I had today but have had to cancel the remainder of the week.

Given this blog will be my only contact with the outside world, standby for posts from one bored blogger.

Marquette blows its own trumpet

With some justification I might add, coming in 6th in the latest D/R rankings.

In a piece entitled Dispute Resolution Surges Forward at Marquette, Andrea Schneider gives a good rundown of the D/R program at Marquette.

Saturday, April 25

Bernie Mayer's new book: Staying with Conflict - A Strategic Approach to Ongoing Disputes

I went to a session at last week's conference in New York where Bernie Mayer promoted his new book; Staying with Conflict: A Strategic Approach to Ongoing Disputes.

1. A New Direction for the Conflict Field
2. Conflict and Engagement
3. Escaping the Avoidance Trap
4. Working the Conflict Narrative
5. Communicating in Enduring Conflict
6. Using Power and Escalation
7. Agreements in Ongoing Conflict
8. Taking a Sustainable Approach to Enduring Conflict
9. Conflict Specialists and Enduring Conflict

Read more;

Video Interview with Jim Melamed

Settle It Now's Vickie Pynchon was busy at the ABA Dispute Resolution Section conference in New York last week with her new video camera.

Watch her interview with's Jim Melamed here

And here for her chat with Jordan Wallerstein, the editor in waiting of the Cardozo Law School Dispute Resolution Journal

These are great, more please Vickie!

Thursday, April 23

Playing Legos with Robert Creo

'Not long ago, I was visiting my alma mater, Washington University in St. Louis School of Law, during the traditional Friday afternoon free-beer happy hour. I noticed a group of students unloading a mass quantity of Legos from boxes. The Legos were set around a clear area in the middle of the room. It was obvious that they were ready to engage in a communal and improvisational building project.

It stuck me how appropriate the Legos analogy is for not only for training mediators, but in the conduct of the mediation process itself...

... So Lego masters, here are some simple construction principles:

Take in all the colors, shapes and sizes

Honor creativity

Honor flexibility

Honor Improvisation

Stage and Sequence

Be open--not attached to outcome

Don't be afraid to hold back some pieces

Don't be afraid to tear down all or part of the structure

Don't be seduced by the easy path

Don't be afraid to use the unique or riskiest pieces

There will always be leftover Legos

Don't be afraid to play with Legos at any point' [read more]

2009 D/R Rankings Leaked

2009 US News Law School Rankings – Dispute Resolution

1. Pepperdine
3. Harvard
4. Hamline
5. Ohio State
6. Marquette
7. Oregon and Yeshiva University (Cardoza) - tie
10. Fordham

Thanks to ADR Prof Blog

Tuesday, April 21

Cool Britannia - public sector ADR up by a quarter

The UK Government's Annual Pledge Report 2007/08 is just out.

The Pledge Report contains a review of ADR use in government over the past 12 months.

Bottom line is the use of ADR by government in Britain has risen by 25.25% compared to 06/07.

The money quote;

'During the reporting period 2007/08, ADR has been used in 374 cases with 271 leading to settlement, saving costs estimated at £26.3 million. Compared to last year's returns ADR was attempted in more cases, (311 in 2006/07), with a slightly higher settlement rate of 72% (68% in 2006/07)' [read more]

Friday, April 17

New York

Want the Big Apple experience?

Then you should be here in my hotel room - well not too many of you as you don't get much for $229 plus taxes and tips in NYC - but, from here I can see the
David Letterman Late Show line snaking out down Broadway and around into 53rd St and I sure can hear those guys from FDNY/NYPD down on the street.

The ABA Dispute Resolution Section conference is in the closing stages with final day tomorrow - I will post some papers in the coming days.

Meanwhile, the IMI Independent Standards Commission met yesterday and today to look at IMI's work so far - a truly international grouping.

(left to right) Bill Marsh (UK), Bruce Whitney (US), Geoff Sharp (NZ), James South (UK), Judith Meyer (US), John Sturrock QC (Scotland), Chris Honeyman (US)

The Singapore Management University's new Centre for Dispute Resolution

I am delighted to break the news through this blog that my New Zealand colleague, Prof Ian Macduff (recently of Victoria University and now The Singapore Management University) is heading up SMU's new Centre for Dispute Resolution within its School of Law.

The Centre, which was announced in Singapore yesterday, will bring together top research calibre and teaching capabilities within SMU from mainstream fields of dispute resolution in commercial transactions such as arbitration, mediation and negotiation to new, emerging areas such as WTO dispute settlement, international peace negotiations, Islamic arbitration, cross-border disputes between nations and civilian conflict management.

Singapore is set to become an important hub for ADR in Asia and is signalling that intent in a number of ways, not least being the new Centre and the holding of the 1st Asian Mediation Association Conference in a couple of months time where this blog will have a place on the programme.

The conference is a product of the combined efforts of;

Delhi Mediation Centre
Hong Kong Mediation Centre
The Indonesian Mediation Center
Malaysian Mediation Centre
Philippine Mediation Center
Singapore Mediation Centre

Read more about the new Centre at SMU's website.

Sunday, April 12

Mediation goes to New York

This coming week (15 - 18 April) both the International Academy of Mediators and the American Bar Association Dispute Resolution Section are holding spring conferences in New York so expect your favourite bloggers to getting it to you live.

This blog is taking the 18 hour magic carpet ride to be in the Big Apple and I know the folks from Settle It Now will be taking the red eye across from L.A.

Diane Levin will be taking the fast train from Boston to make sure her Mediation Channel claims its rightful place amongst the many ADR bloggers gathered there and local New York City Police Department mediator, Jeff Thompson will be showing off his local beat from the wonderful Enjoy Mediation blog.

And, if you are planning on joining the party, Jeff has created a list of NYC must do's, must eat's and must see's from a native New Yorker's perspective.

Thursday, April 9

Noisy Disclosure - do you do it?

Robin Horton is a J.D. student at Harvard Law School conducting a short survey of practicing mediators for research on what has been called 'the noisy disclosure mediation technique'.

In Economic Rationales for Mediation (1994) Jennifer Brown of Quinnipiac University School of Law and Ian Ayres, then of Yale Law School, suggested that, through caucusing, mediators can help parties avoid bargaining failures by assisting parties in determining whether a zone of possible agreement exists.

They opined that caucusing can avoid bargaining failures because parties are often willing to disclose privately to the mediator possible concessions that they would be reluctant to disclose directly to the opposing party. Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).

They found that, without explicitly violating confidentiality, a mediator’s imprecise disclosures can help parties navigate toward a resolution of their differences.

The purpose of Robin's survey is to examine the extent to which this “noisy” communication is practiced and whether practicing mediators consider it to be appropriate and effective.

Robin, I'm interested in the concept that such disclosure can occur 'without explicitly violating confidentiality'. If you willing, why not add a question to your survey about the perceived ethics of this technique...

Go on, take the survey here.

Wednesday, April 8

Prof Laurence Boulle appointed to lead the Mandela Institute

Prof Laurence Boulle, a great friend of all of us here at blah... blah..., is taking leave of absence from Bond University for two years from July.

Laurence has been appointed Director of the
Mandela Institute for Global Economic Law and Issy Wolfson Professor of Law at the University of the Witwatersrand in Johannesburg.

This is a wonderful appointment for one of ADR's favourite sons in this part of the world. We will (temporarily) miss his leadership.

Laurence will remain contactable through his Bond email.

Tuesday, April 7

If you belong to any of these organisations get your skates on

If you belong to one of these organisations you have 84 days to qualify for IMI certification and why wouldn't you?

Experienced commercial mediators are able to gain IMI Certification via the Experience Qualification Path, and include your Mediator Profile on the IMI Web Portal, without undertaking a test, if you belong to any one of these;

ADR Institute of Canada (ADRIC Chartered Mediator)
AMINZ (AMINZ Mediator Fellow)
BBMC (BBMC Accredited Mediator)
CIArb (CIArb Mediation Fellow)
IMAQ (Certified Mediator - Route 1)
LEADR (LEADR Advanced Mediator);
mediationcenter a/s (MC Certified Mediator)
NMI (NMI Certified Mediator)
ACB Group
ADR Chambers Canada
ADR Center
ADR Services Inc
AAA Mediation
CEDR Solve Direct
Core Mediation
CPR Institute
WIPO Arbitration and Mediation Center

[read more]

Monday, April 6

A snapshot of Core's mediations

For our Scottish cousins, this Scots Law Times piece from John Sturrock QC, Chief Executive of Core Solutions Group, taking a snapshot of growth of mediation over the last two years in Scotland.

Some stats from 130 mediations handled by Core Mediation 07/09;

> 72 law firms involved - many firms multiple users, 12 firms 10+ meds/several 20+)
> 200+ indivual solicitors involved - four solicitors 47+ meds
> 30 counsel/barristers have been in 20 meds
> 23 meds had no lawyers (usually workplace)
> 250 parties - 70/30 split - organisations/individuals
> 30 of the 130 were employment meds
> 40 meds involved public bodies or not for profits
> 20% involved insurers
> 80 meds featured commercial disputes
> Of those 80 commercial disputes - 40+ were contractual and 40+ were property, construction, conveyancing related
> 40% were pre-litigation mediations
> 130 meds took 181 days - 75% complete within one day
> 10+ meds were multi party (3+ parties)
> Res Rate around 75/80%

Thanks for sharing John!

Sunday, April 5

Mediation’s Bum Rap

Lovells' partner Neal Moglin makes the case for mediation in the heady world of reinsurance at the 16th Annual Insurance Insolvency & Reinsurance Roundtable to be held April 22 in Scottsdale, Arizona

Saturday, April 4

Come on down, Mr. Lee Jay Berman!

Lee Jay Berman has a movie actor profile picture and, coming from L.A, no doubt mediates most of Hollywood's troubles away as well.

He is one of the most active mediators out there and recently founded the American Institute of Mediation.

Take a look at this email from Lee Jay that came across my screen this week as part of a mediators' list serve discussion on neutrality.

We now have new mediator speak; mutual partiality.

How's this for dynamic, innovative thinking?

'When I think of neutral, I think of a car revving as loud as it wants to, but with no ability to move forward.

When I think of impartial, I think of driving the car down the middle of the road and keeping it from going too far to either side.

But how I see my role is what I call Mutually Partial. I see myself as a coach for each participant, helping them get as much of what they came for as I can. I am partial, when caucusing with the plaintiff, in helping them strategize to maximize their take-away, and to make sure they're getting EVERYTHING they came there to get (non-economic, emotional, closure, big picture of their life, etc.). I am partial when working with plaintiff's counsel to get what s/he wants (money, reputation, referrals, etc.). I am partial when caucusing with the defendant as I help them to strategize how they play their given hand of cards, evaluate their risks, consider their overall big picture and making sure they have what they need in their file to support the settlement they're authorizing. I am partial when working with defense counsel to ensure that they strategize and counsel their client well, that they look good, and get a settlement that they can recommend at the end of the day. I help people find their reasons for doing what they need to do to settle. I serve as a negotiation coach more than a message carrier. I lend my expertise and creativity as I offer them options and choices. I clarify for them all what's going on in their negotiation from my neutral view. Basically, I help everyone come out of it OK. Years ago, the Daily Journal, California's legal newspaper, wrote a story about me they titled, "Painless Mediation", and that was really accurate.

So, I am not neutral. I never claim to be. If I were neutral, I could not offer them as much value as I do. I just offer it mutually.

I am very active as a mediator. I am engaged, involved, moving, coaching, suppressing what will hurt the negotiation, emphasizing what will help it, making active choices about who to meet with in what configurations so that I can build a bridge for settlement between the most reasonable people in each room. I select ambassadors from each side to meet - usually counsel, but not always - and I move things forward.

Lately, I feel like most of my mediations are being snatched from the jaws of failure at the last minute. I think that if I wasn't as active and mutually partial, more of them would not settle. And in the commercial world in which I work, in a highly competitive Los Angeles marketplace, success is defined by helping them get to the finish line.

I know this may sound cold to the purists. But as Ken Cloke would say, I mediate dangerously. I take risks. I also
Harness the Power of the Master Mediator and practice Heavy Metal Mediation and believe that Impasse is a Fallacy. In my world, neutrality, in its purest sense, interferes with my effectiveness. Mutual partiality is appreciated by the parties. And to be truthful, they usually need the help!

OK, I'm braced... let me have it!

Lee Jay'

Friday, April 3

The Great UK Mediation Training Con

Today's kick-ass piece from Matthew Rushton is worth a read - here's the money quote;

'Mediation doesn't need any more well-intentioned dupes, and training mediators has failed to grow the market. Training organisations might delude themselves into believing they're churning out the next generation of stellar mediators. They're not. When the bell goes and the pupils leave, they've just added a bunch more to the crowd of faces abandoned, unwanted, at the school gates.

Furthermore, while any available mediations are seized by wannabes who have no realistic prospect of building a practice, those with real talent and flair will never gain the experience to fulfill their potential. Making money from those without a hope of practising is an ethical issue; shafting mediation's future at the same time merely adds to the burden
...' [read more] is giving it away all of April!! has opened its wonderful treasure trove (aka Video Center) to everyone for April.

The easiest jump off point is here.

2 new articles over at CPR

1. Why Should Businesses Hire Settlement Counsel? by Kathy Bryan, President and CEO of CPR.

2. The Movement Toward Early Case Handling in Courts and Private Dispute Resolution by John Lande from the University of Missouri School of Law.

'Dispute system design theory, practice, and research should incorporate the “earliness” of conflict management as an explicit and important element...'

Selling ice to eskimos

A real smart short practice article from niche PI mediator, Philip Hesketh over at The Mediator Magazine;

Box Clever: Marketing Mediation to Personal Injury Lawyers - Personal Injury lawyers do not have a dispute resolution problem. They have been resolving disputes for years. They get results. ....Negotiation, backed up with litigation and trial if necessary.

I think it is probably a waste of time and effort attempting to persuade Personal Injury lawyers to try mediation as a method of dispute resolution. They don’t need it.

Personal Injury lawyers do however have a problem with profitability. They only get paid some months after the case has settled. They carry expensive disbursements. They are taxed on work in progress. It is lock up and it is a real problem... [read more]

Thursday, April 2

ADR clauses force parties to the table

They came to mediation today because they had to - there was a mediation clause in their contract.

They both felt press-ganged into being at the table, but what to do? They can't do litigation until they've done mediation and it did seem like a good idea when the lawyers drafted it two years ago.

But today it threatened to sabotage the mediation, just when they needed it most.

My M.O. has always been, 'they'll come round once we get underway' but today it continued to be the elephant in the room far longer than was good for us.

As an increasing number of commercial contracts contain an increasing number of ADR clauses and as more people find themselves in mediation because them, mediators will need to develop effective interventions to deal with this particular animal.

Any suggestions?

Wednesday, April 1

An interview with Kofi Annan

On a day when a Kiwi got the #3 spot at the UN and found herself in charge of one of the world's largest conflict management programmes as head of the UNDP it's appropriate to highlight an interview with Kofi Annan on his mediation of Kenya's post election crisis that captures best practices in mediation and reflects on the experiences of senior mediators.