Mediators have no interest in justice and fairness; Charlie Irvine bites back!

Well, I'm not sure of the politics behind this exchange.

But read Charlie Irvine's response to senior academic and Honorary Queen’s Counsel Dame Hazel Genn's lecture in December 2008 ADR and Civil Justice: What’s justice got to do with it?

Hazel (can I call you Hazel?) suggests that mediation ‘is not about just settlement’ but rather ‘it is just about settlement' and helpfully comments that ’perhaps everything can be mediated and the courts can all become pubs and restaurants'. (Ed: warm beer and jellied eel please)

Charlie takes up the story; "In December 2008 I attended the Hamlyn Lecture, delivered in Edinburgh by Dame Hazel Genn. Her topic was Civil Justice and ADR, but she quickly made it clear that her main interest, or target, was mediation. I readied myself for a verbal assault, and got one, but in more trenchant terms than I had anticipated.

While there was nothing new in Dame Hazel’s litany of mediation’s failings, I was startled and a bit stung by the rhetorical flourish with which it was uttered. What’s worse, having worked myself up to overcome the intimidating ambience of Edinburgh’s Old College(the very heart of the Scottish legal establishment) by speaking up for poor little mediation, we were told there would be no questions, just a wee drink.

Well, having had the drink, and some time to reflect, I still want to come back at her. Normally one listens to senior academics respectfully, ascribing a degree of dispassionate objectivity to their pronouncements. But when Dame Hazel turned her withering prose on mediators I was riled. It was particularly galling to hear her... [read more]

Recent Robert Benjamin articles

From Robert Benjamin's Newsletter, which he describes as including a few street smart practical suggestions and miscellaneous musings from the shadow side of negotiation practice;

Cloaked Negotiation: Necessary Back-Channel, Under the Table and Surreptitious Strategies and Techniques to Make Deals Work, Jan 2009

Cloaked and surreptitious negotiation strategies are commonly used but seldom openly discussed by conflict management practitioners. This is the shadow side of negotiation that goes against the grain of the more preferred view of negotiation as a straightforward, ethically clean and rational enterprise. This article suggests the necessity and importance of those strategies in order to make deals work in the real world.

The Obama Presidency and the Future of the Conflict Management Business: The Mediative Leader and the Activist Mediator, Nov 2008

While premature to presume, there is cause to believe, or at least to hope, based on the model of his presidential campaign that the leadership style and governance of President-Elect Barack Obama will be a boon to conflict management practice and a valuable endorsement of mediation.

Conflict Mediation In The Age Of Financial Cholera: Marketing Opportunities In The Midst Of Crisis, Nov 2008

The current recession appears to be a long and deep one. Banks, businesses and people may be a bit more disposed to consider creative ways to solve financial problems especially when legal remedies are largely unavailable or ineffectual. This article discusses potential markets and suggests strategies for selling mediation.

People I Hate, Negotiation and the Presidential Election, Sept 2008

What is the "right stuff" to mediate or negotiate with people whose values you detest and actions you hate? How the current presidential election tests our principles and thinking about negotiation and lessons to be learned from history.

The Dirty, Risky Business of Negotiation: Ideology and the Risk of Appeasement, June 2008

Fighting has the edge over negotiation as the first inclination of most people when faced with conflict. Our human brain chemistry lubricates the preference for warfare and the use of force, while negotiation, by contrast, requires a willed, determined and conscious effort.

Eleven Australian Research Papers up on the web

The Australian National Alternative Dispute Resolution Advisory Council's Compendium of Research Papers (full text) presented at the 2007 National ADR Research Forum in Melbourne just up on the web;

1. THE CHILDREN AND FAMILIES IN TRANSITION PROJECT
2. TRANSFORMING MEDIATION IN THE ASIA PACIFIC REGION
3. AN ALTERNATIVE FOR WHOM? ACCESS TO ADR PROCESSES
4. THE DIVERGENCE OF COURT-CONNECTED MEDIATION PRACTICE FROM THEORETICAL ATTRIBUTES OF MEDIATION
5. LAWYERS POST-ADR: MEDIATION AND COLLABORATIVE LAW
6. STRESSORS AND COPING: WHAT DO MEDIATORS SAY?
7. IMPLEMENTING THE OPEN DISCLOSURE OF 7. ADVERSE EVENTS IN AUSTRALIA THROUGH A MEDIATION MODEL
8. FAMILY LAW: THE LAWYER-CLIENT RELATIONSHIP, PROCEDURAL JUSTICE AND THE COURSE OF THE DISPUTE RESOLUTION PROCESS
9. TRANSFORMATIVE AND FACILITATIVE MEDIATION CASE STUDIES: IMPROVING RELATIONSHIPS AND PROVIDING SOLUTIONS TO INTERPERSONAL WORKPLACE CONFLICT
10. NINE LESSONS FOR TEACHING NEGOTIATION SKILLS
11. ADDRESSING THE NEUTRALITY DILEMMA THROUGH ETHICS FOR A MEDIATION‘PROFESSION’

Hat tip: LEADR

Family mediators will want to get hold of the latest Family Court Review

... because the January Family Court Review (Vol. 47, Iss. 1) includes all these mediation articles;

REFLECTIONS ON THE STATE OF CONSENSUS-BASED DECISION MAKING IN CHILD WELFARE Bernie Mayer. Abstract

A GUIDE TO EFFECTIVE CHILD PROTECTION MEDIATION: LESSONS FROM 25 YEARS OF PRACTICE Marilou Giovannucci, Karen Largent. Abstract

BUILDING A CHILD PROTECTION MEDIATION PROGRAM IN BRITISH COLUMBIA M Jerry McHale, Irene Robertson, Andrea Clarke. Abstract

CHILD PROTECTION MEDIATION: THE COOK COUNTY ILLINOIS EXPERIENCE - A JUDGE'S PERSPECTIVE Patricia M Martin. Abstract

CHILD PROTECTION MEDIATION: A 25-YEAR PERSPECTIVE Leonard Edwards. Abstract

EMPOWERING PARENTS IN CHILD PROTECTION MEDIATION: CHALLENGES AND OPPORTUNITIES Gregory Firestone. Abstract

FAMILY GROUP CONFERENCING AND CHILD PROTECTION MEDIATION: ESSENTIAL TOOLS FOR PRIORITIZING FAMILY ENGAGEMENT IN CHILD WELFARE CASES Kelly Browe Olson. Abstract

Sneak Preview of Ken Cloke's new book

Excerpt from Ken Cloke's upcoming book: Conflict Revolution: Mediating Evil, War, Injustice, and Terrorism by Janis Publications

"While listening to news about the latest disasters from wars to terrorist attacks around the world, I sometimes fantasize about what would happen if, instead of dropping bombs on civilian populations, mediators by the tens of thousands were parachuted into war zones..." [read more]

Who the hell is Brother Mat and where can we report him?

In response to a call for outlandish mediation techniques by the good folks over at ADR Prof Blog this week, they got this;

Posted by Brother Mat // Jan 21, 2009 at 5:28 pm

Reality testing is an essential tool in mediation. Conceptually, a mediator invokes a sort-of reducio ad absurdum* argument with the unrealistic party. That is why I have created, Mr. Cookie Sock-Puppet Man. As you can guess, Mr. Cookie Sock-Puppet Man is a well dressed sock puppet. When I have an unrealistic party, Mr. Cookie Sock-Puppet Man suddenly appears and joins the mediation. He is gifted with penetrating googly-eyes and an endearing sock-puppet face which allows him to break through the irrational positions of the party in question by showing him or her just how absurd they are.

Some have said that Mr. Cookie Sock-Puppet Man is, and I quote, “unbelievably condescending” and “an unnecessary insult during an already difficult time.” Nevertheless, Mr. Cookie Sock Puppet Man has broken through many impasses by refocusing rage from across the table to his lovable, dopey self.

Yes, he does often wear a stylish derby.

*What, are you stupid? re·duc·ti·o ad ab·sur·dum(r-dkt-d b-sûrdm,-zûr-,-sh-)

New ABA National Clearinghouse for Mediator Ethics Opinions

Whether you are looking for mediation ethics opinions in a specific jurisdiction or analysis of an ethical standard, ABA's new online resource provides advisory opinions from 43 states to help mediators make smart choices in their practice.

The database contains a short summary of each opinion with a hyperlink to the original opinion or document issued by the state or national body.

Start your search here

Mediation Advocacy

Want something to go out to client lawyers with in the hope of getting some of their mediation work in 2009?

Try this easy to read 8 page think-piece from In Place of Strife mediator Charles Middleton-Smith: The Art of Advocacy in Mediation: exploring the role of legal advisers in mediation.

My advice? Don't just send them a link by email.

Instead, print it out, slap on a post-it note with something like;

Some of the money quotes include;

'Take advantage of your distance from the centre of the emotional conflict. Be mindful of the lawyer who mistakenly believes that his client is paying him to wear the client's feelings about the dispute on his shoulders'

'If by your own behaviour you permit a party to become entrenched, you will signal to the mediator that you are going to be of no assistance and effectively become one more problem to be managed'

'The old argument about ADR standing for "Appalling Drop in Revenue" simply will not work any more. In this connection, the energy which is required for a constructive mediation is unexpectedly high to people who have not been involved in it before and comes as something of a surprise. From the mediator's perspective it is a constant round of management of adrenaline throughout a lengthy period and almost without a break. For the respective teams it is sometimes a different but no less exhausting challenge'

'You have to be prepared to be focused during the early parts of the day, you have to manage your own and your client's hopes and expectations and be aware of them as they develop. There are problems about patience, about frustration, about wondering whether you are in fact hour by hour doing what you need to do to earn fees for being there. Keeping the mind directed towards positive momentum is most important'

Or, if you want something with a bit more meat, try this superb 26 page report from UK law firm Hammonds on Effective Mediation Advocacy.

When will you start making money in 2009?

As I recall it, my old law firm split used to be 1/3 for overhead like rent etc, 1/3 for salary and then, and only then, 1/3 for profit.

That is; P=R-E (profit equals revenue less expenses)

Going into a new year, this meant partners only started making money around June or later! I suspect any firm still on these metrics is struggling.

So what's an acceptable costs/profits split for the jobbing mediator?

My Scottish ancestry spoke to me the moment I left my law firm a decade ago when I realised it was my money I was about to spend on that printer, that pot plant, those paperclips - and as a result I have always attempted to run a lean operation - outsourcing where I can and being content with adequate but not OTT premises.

My challenge to solo mediators in these troubled times - start making money by the second month of your financial year - that is, earn enough from your first month to pay your practice expenses for the year and take the rest home.

Can do?

See also;
1. Flying Solo?...then don't travel coach
2. Bruce Judson's must read book for all acorns with aspirations of oak trees, Go It Alone...and its in full text on the web!

CPR Annual Awards

This blog is proud to be mentioned in dispatches at The International Institute for Conflict Prevention & Resolution (CPR Institute) Annual Awards Dinner in New York this week.

The award is all the sweeter given posts here over the years have not always been flattering of some of the larger players who lead our industry.

Honourable Mention was awarded to mediator blah … blah … and as result CPR is creating a new category for 2009 - Outstanding Electronic Media - which will recognize blogs and websites that have made an outstanding contribution to our field.

Boston's wonderful David Hoffman dominated in the Outstanding Short Article award for his Microsoft and Yahoo: Where Were the Mediators? They Help Countries and Couples, Why Not Businesses?

The Outstanding Book award went to Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond by Deepak Malhotra and Max H. Bazerman, and Challenging Conflict: Mediation Through Understanding by Gary Friedman and Jack Himmelstein.

Nancy Hudgins' review of Challenging Conflict here
Thank you to The IP ADR Blog for carrying the story here

Teaching On-Line Negotiation to Law Students

Recently up at SSRN - for the teachers amongst us - Deal or No Deal: Teaching On-Line Negotiation to Law Students by Australian academics, Sam Hardy and David Spencer.

"This article discusses and evaluates a teaching initiative conducted by the authors and their students in 2006. At the time, the authors were teaching in law schools in different States of Australia and were the coordinators of an elective subject, Dispute Resolution, in each school's undergraduate law curriculum. The two subjects had similar content but the class demographics and sizes, as well as the teaching structures and methodologies varied. The on-line negotiation exercise was a small part of the overall units, taking up about two weeks of the semester-long units, and comprising part of the students' summative assessment"

This is not everyday stuff. Does all this signal a new culture of collaborative excellence?

A reflective piece by Mediate.com's Jim Melamed as the US turns a page tomorrow - Obama, Miracle on the Hudson and a Society of Collaborative Excellence

"What are the odds of Barack Obama becoming President? And what are the odds of 155 passengers surviving a plane crash into the Hudson River?

As this pilot landed the plane without a life lost... I can not help thinking of Obama as our pilot, the world’s pilot... if anyone can land this plane, it will be Obama... And I see bigger things. I see a larger social commitment to collaborative excellence. Just as the passengers remarkably cooperated to exit the plane within 90 seconds, being courteous and effective under pressure, so I see our society evolving. While there will surely be mistakes and a good measure of pragmatism, one has a sense that Obama is leading a culture of collaborative excellence"

Mediation: Principles, Process, Practice to be launched next week

Breaking News; In a rare show of trans-Tasman collaboration, Prof Laurence Boulle of Bond University in Queensland, Australia has combined with Wellington barrister and founding president of the Arbitrators & Mediators Institute of New Zealand, Phillip Green together with Virginia Goldblatt, director of the Dispute Resolution Centre at NZ's Massey University, to write the NZ edition of Mediation: Principles, Process, Practice.

This book, co-authored by three of the most respected academic practitioners Down Under, is to be launched next week when Prof Boulle is visiting Massey and my pick is that it will continue to be the bible for all things mediation in Australasia.

"The book, aimed at teachers and students of mediation, legal practitioners, mediators and court officials, looks at how mediation fits within the legal system in New Zealand... It is a second edition updated to reflect the rapid development in mediation over the past ten years including the growth and diversity of mediation practice and development of theory"

Regular readers of this blog may recall I took a box of Laurence's other book, the very readable Mediation Skills and Techniques, with me on assignment to Kuala Lumpur a while back and I was mobbed by students wanting more.

Take the poll - are you intending to certify with IMI in 2009?

Strong feelings about IMI's global certification initiative? Get a load off - leave me a comment.

Read the latest on IMI Certification here

Can you grandparent in via IMI's Experience Qualification Path ? Find out here

IMI's website here

Video resources for family mediators

A nice set of quality videos on all aspects of family mediation from mediator John Speigel of Rockville, MD (John uses instructional video site monkeysee.com to present these client resources and does a great job with it)

Videos in the series:
What is divorce mediation?
What is the goal of divorce mediation?
Is mediation only for people who can get along?
What are the benefits of divorce mediation?
How can I begin the mediation process?
What happens if we cannot agree during mediation?

Bad economy a boon for pre-suit mediation?

Last year I asked whether more litigation = more mediation? (and at the risk of being an I told you so, pointed out in January 2008 that the light you could see at the end of that annual tunnel was a train, stupid)

Here's one take for January 2009; Bad economy a boon for pre-suit mediation?

"With the economy crimping corporate legal spending, Allen Smith, a partner with the law firm SettlePou in Dallas, has noticed that clients are more receptive to early mediations of commercial disputes"

Should you keep your mediator notes?

I don't and I even say that in my engagement information.

But Australian attorney mediator, Michael Creelman, has had concerns about this and sees it as a professional indemnity issue in his piece Mediators’ notes of the mediation - a mediator's protective device

"A practice appears to have been built up, at least from anecdotal evidence, of mediators destroying their notes following mediation. It is submitted that this practice could eventually be the downfall of those particular mediators" [read more]

How to salvage a summer holiday

Given my last post you are forgiven for expecting this entry to come from a remote Andean valley or beamed out from atop Machu Picchu which, btw, is rumoured to have gone wireless.

But no, this post comes to you from my kitchen table in New Zealand, having aborted the summer expedition to South America and Easter Island after 5 days of wait and see as sickness ravaged our family ranks.

But in keeping with tradition, and as difficult as it is when you haven't gone anywhere, I will try to draw an ADR related story from our annual family holiday.

Like this one on post-decision dissonance in a Fijian tropical paradise or this from ZhongShan, China when we were too stressed to negotiate, or walking with 19 million others at Shanghai Post earlier this year, or even this post from last summer when we were trying to cross a back country road/rail bridge...

"...there we were - just after Christmas - on a main highway at the bottom of the South Island of New Zealand and crossing a one-way road/rail bridge. I remembered it from my own childhood, when Mum and Dad took us on a road trip in the family caravan... I eventually got to the head of the line of rubber-neckers half way over the bridge, only to observe two beefy looking high context campers facing each other off, both red from the sun and the conflict" [read more]

So as you read this I sit here alone, unwinding our summer break and negotiating (badly) its salvage with all those who made it possible in the first place, including;

>LAN Chile, who say the air tickets are 'no reembolsable, estúpido'

>the Santiago and Lima hotels along with the Santaigo walking tour folks, who say the same thing in English but more politely

>the travel insurance company, who seem to have talked to the airline, say we were 'stupid' to purchase non refundable tickets

>the travel agent, who says I told him to book the non refundable tickets

>the boarding kennels, who say Buster is booked in for all of January and who will take a lien over him if it all gets nasty

>my sister-in-law, who is geared up for a summer holiday at our family bach while we are away and threatens something similar to the kennels if we change that

>the paperboy, who took a week to stop delivery and will take 2 weeks to start it up again, by the looks of it

> the rapacious bach owner at Wainui Beach, where we are now going to chill out, listen to our Spanish tapes and read our South American guidebooks

> and last, and most difficult, two sulky teenagers, both of whom are now on the mend and bored, who can't see how night time curfew applies on holiday.