Simulated Interaction

Having recently got my first mediation rehersal gig I'm getting interested in Simulated Interactions as a way of forcasting how high stakes mediations may run.

And its reasonably accurate too.

Worth a read this weekend...

A must read is Prof. Paul Mullens' (Monash U) lecture notes on 'Persistent and Abnormal Claiming and Complaining'

This is one of the few works in the area of persistant litigants.

In a previous post I attempted an anecdotal description of a Quer·u·lant ['kwer-(y)-lent' - abnormally given to suspicion and accusation].

Recently, more querulous behaviour is presenting at health sector mediations I'm involved in.

Paul Mullens categorises claimants as:

THE NORMAL CLAIMANT
>Aggrieved
>Seeking legitimate redress
>Able to negotiate and accept reasonable arbitration

THE DIFFICULT CLAIMANT
>Aggrieved
>Sense of being victimised
>Over-optimistic expectations of compensation
>Difficult to negotiate with and rejecting of all but their estimation of a just settlement
>Though persistent, demanding and occasionally threatening will ultimately settle albeit still complaining of injustice

THE QUERULOUS CLAIMANT
>Excessively preoccupied with supposed transgression (on a quest) - obsessive and pedantic concern with detail
>Focus more on the "principle" and on injustice than on substantial nature of supposed injury
>Seek vindication and retribution not just compensation and reparation
>Inflexible and rigid at one level, constantly adding to and refraining grievances at another level
>Grievance continues to grow, often recruiting those who attempt to arbitrate to the objects of resentment and even litigation
>Disproportionate and inappropriate anger
>Themes of being victimised, being ignored, being lied to, being fobbed off, being humiliated ...read more

Being Sued ?...Learn Empathy

We're even teaching empathy now.

"Emotional errors cause [medical malpractice] claims. Compassion helps control them…

The majority of patients who sue feel deserted, devalued, misunderstood, and kept in the dark. They want respect, information, and empathy...

Your staff can learn to make empathy visible..."

Emotional what!? Learn how?!

Enough With The Mediation...

...ever wanted to know your IQ without having to share with some guy with a clip board who's going to wonder how you got this far?

TRY THIS

Worth a read this weekend...

Take a look at this fabulous piece of (unscientific) research drawn from 10 busy UK mediators by the folks at MATA.

Cut and paste so you can keep it in your back pocket for when you get stuck.

Meet the Fockers

Some days I'm more invisible than others, like today (not really today as I wanted to create some distance before posting)... when I overhear things in mediation that shock.
So what does happen when you overhear stuff that you don't want to hear in a mediation (not that you shouldn't hear or that somehow puts you in an ethical dilemma -that's easy)

...but that you really don't want to hear - either because its nasty/distasteful/probably got an element of low level dishonesty about it/reflects badly on apparently decent folk. Or all of the above?

It's sort of as if they break the contract they have spent the day painstakingly assembling with you.

Sure mediators need to build trust with parties (audio)

I hear that all the time, 'build rapport and trust with the parties' but hey! the parties so need to build trust with the mediator too.

Its not a one way street, we build with them; they build with us.

And it hurts on some level when that trust is fractured, especially in those mediations when there's a lot of me on the table.

Like this time a struggling CEO fell out with the Board and we sweated all day (at his insistence that money was not the fix here) on the relationship.

I dreamt I was dreaming

He was on the opposite bank and the dirty water was raging between us.

He was racing up and down, yelling obscenities and looking for a point to cross by himself.

There was none that he could see.

It was too dangerous.

Then I see myself building a bridge, out of nothing - out of stuff lying around - maybe even given to me by others, the target of his fury.

Then I helicopter up and see I'm on an island in the middle of the stream and its the people who are on opposite banks from each other.

So there's a third side to the river? And I'm a bridge builder - is that what I have become?

And my 'nothing', closer up, turns out to be something after all.

I've had dreams before.

The Future Is Now

I have posted before about the panel of 10 intrepid ADR explorers being assembled by the NZ Office of the Domain Name Commissioner to start a journey into the mediation unknown...

Who will boldly go where no other NZ neutral has gone before (sound of gramophone needle across vinyl)...and who will do no/nada/nix/zip face2face mediations when resolving domain name disputes.

Based on the UK domain name system Nominet, mediation will instead be via wire, by phone primarily: one-on-one shuttle supposedly, by conference call hopefully.

With a finish date a nano second (ok, 10 days) after the dispute lands on the unsuspecting mediator's screen and with a flat, swings and roundabouts per mediation fee there is no room here for malingerers.


It's likely a tussle for use of the bit of cyberspace named 'www.climatescience' between the Climate Science Coalition and Greenpeace NZ might be the first domain dispute seen by the new DNC dispute resolution service.

Men in Black

There was shouting at the table today.

Most unusual.

Not a bad thing as it turns out.

It's usually seen, I think, as a sign of weakness in commercial negotiations.

Like there's a code - suits don't lose it, even when the going gets tough.

When they do, they seem to relinquish leverage along with it.

We're talking to ourselves

The truth hurts but Robert Ambrogi is right when he says over at Legal Blog Watch that...

'As important as blogs are to other bloggers, academics and journalists, they have yet to become important or even routine sources of information for most rank-and-file lawyers and legal professionals.

No question, blogs drive important conversations. But these conversations are outside the earshot of most practicing lawyers. For them, traditional forms of legal writing remain their main sources of information. Perhaps the only sure way to open the conversation as broadly as possible is through the convergence of new media with old.'

That's in the context of The American Lawyer's rave about blawgs this week that said;

'The most compelling, cutting-edge, honest legal writing being produced in this country today is happening on the Internet, and the crop improves daily... it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print.'

Worth a read this weekend...

When the going gets tough... do's and don'ts for mediators
May 2006, by Karl Mackie, Mediator and Chief Executive of CEDR UK

and

The future belongs to mediation - and its clients
January 2006, Eileen Carroll, Solicitor, Mediator and Deputy Chief Executive CEDR UK (this is an excellent think-piece)

Tech News

For the latest high tech news pop on over to Tammy Lenski's groovy MediatorTech or Adriana Linares' hip I [heart] Tech.

But hey, this blog does low tech well.

After much whiteboard work (too much to write up for testy, done-in parties today) this mediator asked them to proceed to the board with a marker and sign it, then took out his Treo 650, snapped the agreement AND THERE ON THE SPOT emailed a close-up glossy 6 by 4 photograph to all at the table...cool!