ADR Services

Following my tour of ADR Services' Century City office I spoke to Lucie Barron, its founder and President.

Lucie is one of the most knowledgeable hands-on experts on the business of mediation - she has a tremendous feel for her market and knows what they want from a mediator and a mediation provider... sitting in the middle between the mediator and the client she knows her job is to add value.

I have been critical of the middlemen in our industry before but talking to the mediators and Lucie it's clear that the ADR Services business model is working in the Californian context. Although she does not yet know it, I plan to ask Lucie to share some of her views on various mediation business models via this blog in the future.

Lucie was a great sport as she was not expecting me - nevertheless she sat down for coffee and did not flinch when I pulled out my camcorder.

[video]

ADR Services' panel consists of more than one hundred retired judges and forty attorney mediators with offices in Century City, San Francisco, Downtown Los Angeles, San Diego, Las Vegas and their newest office in Orange County.

In fact there is an Open House Celebration Thursday, November 8, 2007 6:00 p.m. - 8:00 p.m. to open the new Orange County Office.

Want to go? (he generously offers from NZ!) RSVP here

My talented IAM colleagues who work out of ADR Services in Los Angeles are;
Eleanor Barr
Max Factor
Jan Frankel Schau
Jeffrey Krivis
Stefan Mason
Eugene Moscovitch
Ralph Williams

Mediating at 1900 Avenue of the Stars, Los Angeles

Last Friday I was lucky enough to be taken on a tour of the Century City office of ADR Services by LA mediator, Gene Moscovitch.

Gene has just completed mediating one of the largest class-action illegal strip search cases in the US, with 160,000 class members and a settlement in excess of $25 million.

Here's Gene giving me a quick run down on the set up at ADR Services;

Next post I interview Lucie Barron, the dynamic President of ADR Services.

Virtual DR Classes in Second Life

Arno R. Lodder is an associate professor at the Computer/Law Institute of the Vrije Universiteit Amsterdam.

Arno is also director of the Centre for Electronic Dispute Resolution - an international research platform concentrating on legal and technical aspects of electronic dispute resolution.

This prof is the real deal and he's been conducting Online Dispute Resolution classes in Second Life in 2007!

I know there was a deal of interest in my previous posts about mediation in Second Life so if that was you take a look at his very interesting article;

Short Note on Virtual Law Classes: Second Life and Other Three Dimensional Visual Worlds Next Phase for Online Dispute Resolution?

"Virtual communities and virtual worlds have become popular places on the internet, with some visited even more than Google. The virtual worlds offer opportunities to Online Dispute Resolution. With the advent of the virtual worlds, virtual conflicts ask for an adequate online resolution mechanism: a virtual courtroom. Insights from Online Dispute Resolution research can be applied in developing such a courtroom. The interesting aspect about these environments is that they are electronic by nature but that they look and feel like the real world. As such they might be able to bridge the gap between online and offline dispute resolution. This paper elaborates upon the potential of ODR in three dimensional worlds. I use as an example two recent classes I gave in Second Life, and indicate the experiences relevant for dispute resolution"

And go here to listen to Arno talking to Colin Rule for Cyberweek last year.

A cross between Dr. Phil and Judge Judy

I have never seen this guy at a mediation networking lunch...

BTW, still against certification?

Transformative Mediation News

Clare Coburn of Melbourne's La Trobe Law School recently spoke Australia's National Radio where she explained the need of receptive listening in our relationships and within our institutions.

And you may care to read this piece on Love, Care, and the Inevitable Arguments: mediators can provide a welcome rational approach to realities of elder care.

And go here for the University of North Dakota's Jim Antes where he speaks about the role of a transformative mediator to empower parties to make decisions on their own and how mediation can impact the relationships between individuals and groups in family, corporate, and international
situations.

Finally, The Institute for the Study of Conflict Transformation's Fall Newsletter is just out.

Wait! Want fries with that?

OK, take a look at:

"Two Pictures of the Future: ADR in the New Millennium" by Robert A. Baruch Bush

"Choosing to Make Choices for the Mediation Field" by Dorothy J. Della Noce

Clients are smarter, lawsuits are down

Great post this week over at Dan Hull's What About Clients?™

"... cases should be down. Litigators are like nuclear warheads; everyone has to have them--but once you start using them, everything gets expensive and screwed up. Litigators know this better than anyone..." [read more]

Music to mediator ears.

Live Blogging from the International Academy of Mediators #1

It's great to be in clean, green Portland, Oregon. The license plates say 'Keep Portland Weird' - how does that work?

And the IAM Fall conference kicked off here today.

Fear, Anger and Risk in Mediation has some great papers over the next couple of days - the session I'm sitting in right now is Motivational Interviewing - Moving Towards Resolution by Dr Kelly Lundberg, Assistant Professor, Department of Psychiatry, University of Utah.

Dr Lundberg is a leading expert in addictions and her presentation seeks to connect up what she does to turn clients around from addiction, with what we do as mediators to move people to resolution.

We are both involved in moving people, moving them to change. To give up substance abuse, to resolve the dispute, to make peace... whatever.

There are 4 stages of change:

1. Pre-contemplative - I'm not even thinking of moving/changing/resolving
2. Contemplative - maybe I want to/maybe I don't
3. Action - OK let's just do it
4. Relapse - back out of action, and go back to 1 or 2

We want people at mediation to be in the ACTION stage.

How do we get them there? Well, if they are in mediation and are pre-contemplative, we're all in trouble.

If they are CONTEMPLATIVE, and that's a good place to be heading to mediation, our job is to move them to ACTION.

Techniques to get them there include (and mediators know some of these well);

1. Concerned empathy - we know this one
2. What are your 5 most important values - how does this problem fit with those 5?
3. Develop discrepancy - I like this one and it's similar to values fit question - create a situation where they acknowledge that there is a difference between what they want and what they are doing
4. Role with their resistance - if you push, they resist
5. Change talk - get them talking about why they want to change, move, whatever

Want to know more? - sorry no links but try finding this (if I can, I'll try to get it up online as it's interesting stuff);

Lundberg, K.J. (2000). Motivational interviewing and substance abuse. Utah Neuropsychiatric Institute, Salt Lake City, UT.

Inside Annie's Head

From over at I'm Starting Over - mediation, fear and reality...

"Mediation brings out the worst in everyone.

I’m sure dealing with attorneys is even worse. I don’t know how many people I’ve talked to, who got their divorces through attorneys, and they end up screaming at each other and racking up huge bills. Then years later, they’re friends and they get together and they’re like “What were we thinking?!!!”

So I guess in that perspective, mediation isn’t so bad. But it still brings up fears. Lots of them. How am I going to take care of myself? Who will be there for me? I’m sure I’ll be fine but…. What if …. What if…

This is reality now, hitting hard. Documents. Legal documents. Cold and spelled out.

So many fears come up. The process just brings everything to a head and you end up getting all upset and it’s not because the other person is really that big a jerk - it’s just fear.

I woke up so tired this morning. I didn’t know why, but I was exhausted. After the mediation session, my future ex told me he’d been dreading this day for weeks.

We’ve worked things out to ok satisfaction and all that remains are some have paperwork technicalities to adjust.

Right now, I’m just sad. But I’ve got to snap out of it because in an hour I’ll be teaching singing and dancing to a room full of 6-year-olds.

Stone cold reality. Hits like a brick."

Another case for the mediator... the first day of the rest of her life for Annie.

Greedy lawyers blamed for lack of mediation

Call me naive, but I just don't see this in the market I work in.

Any lawyer avoiding mediation to string out a case has bigger problems than that one job and the market tends to sort them out quickly.

Blawg Review # 130

Southern Hemisphere Edition

Welcome to Blawg Review #130 South - probably the very first edition of Blawg Review produced at opposite ends of the Earth, and definitely the first from Middle Earth.

Co authored by attorney mediators Diane Levin of Online Guide to Mediation in Boston and Geoff Sharp of mediator blah... blah... in New Zealand, Blawg Review #130 South is posted at 12.01am on Monday 15 October in New Zealand, the first place on the planet to see the new day.

Then in 17 hours time, and still at the same time of 12.01am on Monday 15 October, Blawg Review #130 North will be posted from Boston.

This edition picks up the best of this weeks posts in the Southern Hemisphere and Diane Levin's Boston edition will cover the Northern Hemisphere. Because 17 hours is an eon in the blogosphere, we expect to pick up late breaking blawg posts from anywhere in the Boston edition.

Blawg Review #130 has an ADR bias as we salute Conflict Resolution Day but it will also mark the best of the week's blawgs and Blog Action Day - all happening this week;

1. Mediation posts in recognition of Conflict Resolution Day

Conflict Resolution Day is an international celebration held annually on the third Thursday in October. Conflict Resolution Day 2007 is later this week on October 18.

You can go here for a list of events for Conflict Resolution Day 2007 in places like Canada, France, Portugal and USA.

>The World Directory of Alternative Dispute Resolution Blogs knows no geographical definitions and truly straddles the equator as the foremost global ADR site.

The ADR Directory's newest additions are posted here and include eMediacion by AcuerdoJusto®, a blog published by an international team of professionals based in Argentina, Spain, and Chile who share a common interest in the resolution of conflict.

>So that people know they are out there (but update rarely with posts of mainly local interest) I mention blogs by the Australian Dispute Resolution Association Blog and Australian Mediation Association.

Which provides me with an opportunity to urge more mediators from the lucky country to get blogging - so where the bloggy hell are you?

>But that's not the case in South America where, in addition to eMediacion by AcuerdoJusto® we have Resolución Electrónica de Disputas, a Spanish language blog published by Alberto Elisavetsky, an international authority on negotiation and online dispute resolution from Buenos Aires whose recent post is Firma De Convenio Marco Entre Nuestro Proyecto & La Universidad Tecnologica Nacional - Facultad Regional Buenos Aires!

Alberto also posts about the Cyberweek 2007 programs this week, including 40 Sites in 40 minutes, an online tour of the ADR web on Wednesday, October 17, 3 pm Eastern (19 GMT).

>And steamy Sri Lanka is close enough to the equator for me to claim ICT4Peace in this #130 south edition. Its post this week Blogs: Spittoons for the deranged or fostering constructive debate? looks at fellow Sri Lankan blogger Java Jones' post titled Some types are more fuckin’ than others? - an examination of the timbre of expression on blogs in Sri Lanka.

>And take a look at the 10 suggestions I have for lawyers heading into mediation - prompted by a call last week from a lawyer preparing for a high stakes mediation in November. Or perhaps Mediating the sub prime mortgage crisis is more your thing.

>Then sit back and view the latest video clips up at the Mediation vBlog Project

2. From the Southern Alps of NZ across the Tasman to the vast outback of Australia, then on to the open veldt of South Africa, the sun finally rises over the vast pampas lands of South America.... comes the best of this week's blawg posts from below the equator;

>Over at Life at Work New Zealand employment lawyer, Andrew Scott-Howman, takes a look at the case of a policeman who was sacked for administering a (legal) pornographic website in The porn-loving policeman: bringing the force into disrepute?. And while you are there take in Andrew's The plight of Mr and Mrs Average or The single worker: the law’s worst deal?

BTW, this is the same author who features on a short video clip a while back over at the Mediation vBlog Project, talking about what trial lawyers want from a mediator.

>Richard Best's InsideoutLegal Blog offers a grab bag of recent posts on social media and its relevance to the legal profession.

InsideoutLegal itself, the blog's web 2.0 driven father, is probably the most frequently updated openly accessible online legal resource in New Zealand.

Among its new items, take a look at Wigley & Co’s Capping Liability in an IT or Telco Agreement, Bell Gully's Progress by Partnership Makes Sense or Minter Ellison's presentation Restrictions on Guarantees and Indemnities by Crown Entities, just to name a few.

Primarily aimed at Australasian lawyers, InsideoutLegal carries content from across the websites of leading New Zealand and Australian firms and in many cases automatically posts new articles, videos etc appearing on these sites.

Grab a feed for this wonderful clearing house for outside-2-inside counsel.

>Laws 179: Elephants and the law by Dean Knight of the New Zealand Centre for Public Law at Wellington's Victoria University examines the elephantine concept of fairness in the law.

>Occasionally updated CyberLaw is a joint venture of InternetNZ and Victoria University and its latest post Update on WHOIS looks at the 60-person WHOIS Working Group empaneled by ICANN.

>And I'll mention Dan Hull's What About Clients?™ in this edition because it has been spotted many times south of the equator with its truly international outlook on legal life - exhibited in this week's contributions to the global debate over the billable hour and climate change.

It is clear from The Billable Hour: The Way of the Happy Rich Dinosaur that Dan's clients like hourly rates. So he likes them. The hour, those excruciating 10 by 6 minute units that have been the undoing of so many good lawyers, works as a model for him to deliver "high-end services for high-end clients in a 'muscle boutique' setting" - I love that elevator pitch!

> Across the Tasman, The Australian Professional Liability Blog posts on what the NSW Supreme Court says about solicitors being immune from suit for out of court omissions.

>Lightbulb, an IP blog, says Advertising is not the only game online and has some comment on the Future of Media conference in Sydney where shocked participants heard that 'only porn or financial data works on a user-paid basis'.

>Continuing our trek west we come to South Africa's The Adventure of Strategy examines what does it REALLY mean to be a law firm partner?

Recently being named as one of the best blogs for managing partners by morepartnerincome Rob Millard's posts are ones to watch.

>Biotechnology Law, a blog for the South African biotechnology industry, posts on IT meets Biotech in AIDS vaccine research.

And then just as the sun goes down in NZ, it's time to hit the fertile plains of South America.

>Peru's Practical Legal (here for a translated into English version) recently posts The University of the Pacific undertakes new Faculty of Right and How it affects the culture to us of the pesimism?

Hmmmm...something might be lost in translation there...try La Universidad del Pacífico emprende nueva Facultad de Derecho and Cómo nos afecta la cultura del pesimismo?

3. Blog Action Day

Fitting right in with our north/south theme, Collis Ta'eed, an Australian blogger from FreelanceSwitch, is a cofounder of Blog Action Day.

On October 15th his aim is to have bloggers around the web unite to put a single important issue on everyone’s mind - the environment.

Every blogger will post about the environment in their own way and relating to their own topic. The aim is to get everyone talking towards a better future. At the time of writing there around 14,000 blogs participating reaching an audience of over 12 million.

To participate, a blog just needs to write about the issue of the environment on Oct. 15, 2007.


The Blawg Review blog has information about next week’s host, and instructions on how to get your blawg posts reviewed in upcoming issues.

10 suggestions for lawyers heading into mediation

I've just had a call from a lawyer with whom I have a large mediation coming up in November.

She asked me what she could do to prepare her client John, for what is probably going to be the most important meeting of his life.

Apart from the usual prep like identifying interests etc I advised her to:

1. In the time beween now and November try not to poison the well from which she will drink on mediation day - start 'mediating' now within the litigation

2. Prepare John to interact with me on a personal level. He needs to talk to me and should treat me as a confidant, not the enemy. Please trust me (or let me earn that trust)

3. Anticipate a predictable start to the negotiation where the other side asks for the moon and make sure John is prepared to respond in a way that keeps the dialogue going

4. Have John explain the personal side of the dispute to me, in front of the other side. Be prepared to do this early

5. Use me - make me earn my fee. Seek out my reaction to the story of the case and the negotiation moves that are unfolding. Give me a heads up on the negotiation moves John is contemplating - test them on me - I can often help

6. Acknowledge risk while expressing confidence in John's position. Make any negotiation moves credible - that means resisting the temptation to do the complete opposite of the other side's moves

7. Ask me hypothetical questions in joint session - it's a way of John gently revealing where he is without being direct (I haven't talked to John about this but what if...? what would...? imagine we...)

8. Don't be surprised by deceptive moves and statements - expect them

9. Let me know all of the constituents John has to consider to get to yes - not just those at the table

10. Cut me some slack - you don't want a quitter. It's 80:20 most days


Thanks to my IAM colleagues and Jeff Krivis

Mediating the sub prime mortgage crisis

When America sneezes, the rest of us catch a cold.

So, I guess many mediators around the globe are working out how to get involved in the unfolding drama of the mortgage melt down.

In my neighbourhood we have had 9 financial institutions go to the wall in the last 6 weeks. There will be more.

In the UK there has been a run on Northern Rock Bank - the first run on a bank there since 1866.

As UK's ADR Group says "The threat of insolvency is now a reality facing many businesses that simply cannot cope or do not have business strategies in place to deal with this type of situation. Aggressive or opportunistic creditors are waiting in the wings to strike"

But our UK colleagues are hard at work looking at how mediation may assist in the UK's debt bubble and resolve commercial disputes for distressed businesses.

So too are the Americans - busy looking for ways that mediation can assist the defaulting homeowner.

Enough already !

As this blog posts its 500th entry since the very first in December 2005, I am reminded why it's called mediator blah... blah...







Some early reader favourites include:
I Know Where the Bodies are Buried
Some days its a mediator's job to be the only lamp post on the street
Reframe (rė`frām)
Night Sweats (transformative mediation)
43 Million Sheep

Indisputably - the ADR Law Profs Blog

Welcome to the newest ADR blog on the block and, as far as I am aware, the first by a team of ADR professors; Andrea Schneider, Nancy Welsh, Michael Moffitt and Sarah Rudolph Cole.

Indisputably which is a member of the Law Professors Blog Network will "engage in dialogue that is both scholarly and practical, to dig into the empirical work that is relevant to ADR, and to reflect on the reality of ADR in action, for better and for worse. We will be posting on a regular basis, and we hope that you will add to the richness of this blog by sharing your reactions and comments"

Hey, great to see you guys in the blogosphere and maybe we can at last get to the bottom of why can't scholars and practitioners just get along?

Posts to date are;
Contingent fees for non-binding arbitrators?
Carrie Menkel-Meadow Visits Marquette
Are Defense Attorneys Shrewd or Overwhelmed?
The Relationship Between Justice and Status in Dispute Resolution
Supreme Court to Hear Arguments in Case Addressing Whether Parties May Agree to Expand Judicial Review of Arbitration Awards

Mediator Recommendations

News of labour negotiations some days seems to dominate the mediation airwaves and is nothing new.

But the 11 week strike by 5000 city workers in Vancouver has been a biggy - and it has ended in a mediation followed by recommendations by the mediator last Friday to settle the strike - they include a 17.5% wage hike over 5 years and a $1000 signing bonus for each union member.

But my interest is in process - without knowing the ins and outs of Canadian labour law, it seems very different to have the mediator make such detailed recommendations for settlement.

Apparently the City and the Unions agreed to an enhanced mediation process whereby the mediator would meet separately with the City and the Unions to listen to their submissions then provide them with written recommendations for settlement of the terms and conditions for renewal of the City's collective agreements.

So where's the mediation in that? Why not just call it unsafe arbitration?

Come in Vancouver...

Preparing Law Students for Disappointing Exam Results

I know many readers of this blog teach ADR and Law.

And many other readers would have, like me, wished their long ago professors to have read this San Diego Law Review article about preparing kids who have screwed up.

Hey man, you gotta walk the talk

News today of an Australian expert in family conflict resolution who murdered his elderly parents with an axe escaping a life sentence.

Stephen Alexander Harper, 44, had admitted to murdering his parents after his mother laughed about the death of his cat. Harper flew into a rage and killed his father and mother at their Abbot St home in August last year.

Always let the parties book the venue

Who said never let the parties book the venue?

It was from the sublime to the ridiculous yesterday, when this was our main room at a hundred year old hotel in NZ's tourist hot spot, Rotorua... boiling mud pools, geysers gushing hot water high into the air in the main street, we used to come here on school trips and boil eggs in the streams running through the town.

The only trouble is the whole place smells like rotten eggs.

So where was I... oh yeah, and this was our breakout room

And a bonus - the hundred year old hotel had a carpet of equal vintage and is a nice addition to my series 'carpets upon which I have mediated' in an effort to prove my theory that the carpet upon which the drama plays out is, in part, determinative of the outcome;

Psychological traps in negotiation and other wisdom

Go here for these superb one line sound bites describing each of these psychological traps in negotiation...

Partisan perceptions
∗ People tend to "see" what they expect and wish to see, and what is in their self-interest to see.
Judgmental overconfidence
∗ People mostly place unwarranted confidence in their own prediction about future events / People usually underestimate the importance of what they do not know.
Loss aversion
∗ People tend to attach greater weight to prospective losses than to equivalent prospective gains.
Endowment effects
∗ When something belongs to us, we tend to attach a greater-than-market value to it because it is ours.
Reactive devaluation
∗ People often devalue a proposal received from someone perceived as an adversary, even if the identical offer would have been acceptable when suggested by a neutral or an ally / A concession that is actually offered is valued less than a concession that is withheld.
Scarcity principle
∗ Opportunities generally seem more valuable to us when their availability is limited.
Anchoring and adjustment
∗ People who hear high or low numbers as initial starting points are often affected by these numbers and unconsciously adjust their expectations in the direction of the opening number.
Attribution bias / Similarity principle
∗ Most people tend to believe others are like themselves / We tend to trust people who appear more than less similar to us.
Fundamental attribution error
∗ There is a common tendency to ascribe other people's behavior to their personality rather than to the situation they are in.`

And if you're impressed by that, you will surely flip over this treasure trove of 20+ one page negotiation think pieces that are just the thing for your mediation resource folder - from Swiss consultancy, Sumbiosis.

They range from;

Alliances to Animosity to Manipulation to Nonverbal to Trustworthiness to Turnaround

Hat tip to Jean Poitras

Common sense trumps law in mediation every time

The plaintiff side ran a very, very narrow and technical legal argument.

They argued that a court would never - read my lips - ever - find that the plaintiff contributed to its own loss as a result of a fraud, notwithstanding the fraud by the defendant's employee went undetected, in large part, because of the plaintiff's woeful back office systems.

And they had contributory negligence cases to die for - even a House of Lords decision bang on point - which go down big here... apparently the Law Lords say you can't steal from an innocent then, when you're caught, blame the victim saying that they made it too easy for you to do so.

Hmmm... actually that might have a logic to it.

But the plaintiff's CEO got it - he knew blind freddy could have driven a truck through his systems. He couldn't go into an open courtroom and argue that his publicly traded company had no responsibility based on a House of Lords case no one in his world would take the time to understand.

Once he understood the architecture of the argument he didn't care what the case said or what the five lawyers in the room said the case said - the laws of his marketplace were far more powerful, and he knew it.

Latest Mayhew-Hite Report out today

The Ohio State Journal on Dispute Resolution's most recent issue of the Mayhew-Hite Report on Dispute Resolution and the Courts is out today.

The lead article is an interview with Dale Crawford, a former judge and now a law firm partner. While on the Bench, Dale was able to gain a unique perspective on what prompted litigants to settle cases or embrace alternative dispute resolution.

There also looks to be a good article if you are involved in the health care DR field - Mediation in the Health Care System: Creative Problem Solving

But probably the most interesting and controversial piece is by Seth Linnick, a 2008 J.D. candidate at The Ohio State University Moritz College of Law - Solving the Nonlawyer Mediator Dilemma: The Need for Flexible Unauthorized Practice Standards

So, you want to retire and mediate?

This is an interesting post from the rather mysterious apo mechanes theos negotiation blog.

Once you have read it, come back here and tell me -

1) what are the tell tale signs of a mediator who has stopped bringing "enthusiasm and personal service and intensity to the table"? and

2) what mediators should do once they have "lost all of their other legal skills and contacts and have no where else to go, nothing else to do".