Poor Behavior 11: Unrealistic Expectations (5/14/12)
Vivian Scott

Impracticable approaches to projects and tasks have certainly been the topic of many a gripe session between employees. The conversation often begins with one of them busting out with, “He’s never even done this job before,” and the other person responding with, “Really! What does he know?!” Having unrealistic expectations with your staff, boss, or coworkers can easily place you in the center of such a conflict.

If you’re experiencing push-back about your expectations, try a new approach. Learn more about what’s involved in a process so you can break down the steps and then discuss the specific points that are causing the disagreements rather than getting into a back-and-forth about the entire project. If you’re not comfortable starting from ground zero, let others tell you what is possible and negotiate from there.

If you feel a coworker or boss is asking you to do too much with too little, spend time planning (and practicing) how you’ll communicate your concerns without sounding like you’re whining or trying to get out of doing work. Providing solutions that include prioritizing are always a good thing. If you’re suggesting something should go to the compost pile, talk about both the downside and the upside for letting it go so you present yourself as seeing the big picture—not just advocating for your side. And, of course, if there’s a better, smarter way to accomplish a task, be sure to share your ideas as neutral as possible.

There’s an old saying in business that says you can have things fast, good, and affordable. Problem is, the best you can usually do is two out of three so decide which two are most important to you and go forward from there. Fast and affordable may not be good; and fast and good will probably cost you more than you’d like to pay. Expecting all three each and every time may be, well, unrealistic.

Conflicts of Interest Blog by Vivian Scott

Experts (5/14/12)
Diane Cohen

The sensible use of experts is often an issue that arises in mediation. It begins with the mediator: is the mediator an expert? What is the mediator an expert in?

It then may continue to outside experts, when parties may feel the need to consult a financial, legal or mental health expert. Very often, when such experts are called in, the question arises as to what their actual expertise is in and how to tease out the parts that are the valid areas of their expertise from the parts that are educated guesses based on their experience, and lastly and most importantly: the parts that are simply their own personal opinions.

In my view, the sensible use of experts is to ask oneself a series of questions:

1 — Why do I need an expert?
2 — What specific information am I lacking that they can provide?
3 — Do I want them to convey that specific information to me so that I can weigh it myself or do I want them to make a recommendation based upon that specific information? If the latter, do I want them to tell me at each step of the way what the information is, how they are weighing it, and what their conclusions are? Do I want them to explain where they are getting the information and how reliable it is? Do I want to assess myself how reliable it is?
4 — Is the particular expert I chose able to follow my instructions and meet my needs in question 3 above? If not, how can I find an expert who will do so?

The bottom line is that an expert is not someone you throw your entire problem to and just wait for a result to pop out. An expert, when consulted appropriately, can be an extremely helpful aid to a problem. However, an expert, when consulted without care, can give you the false confidence to make exactly the wrong choice.

Mediation Blog by Diane Cohen

Judge and Mediator-- Big Brother? (5/14/12)
Clare Fowler

Judges and court-appointed mediators have an interesting relationship. ”Interesting” can be defined as big brother, incestuous, or a match made in heaven.

In an ideal world, a judge reviews the cases on her daily docket, and suggests/refers/mandates appropriate cases to her court-appointed mediator. In this ideal world, many of the cases would calmly settle. Some cases would return to the courtroom, without a settlement, but with a better understanding of the other party and the options available.

That’s the ideal world. And then there’s Kate Reed’s world.

In Kate’s world, the judge hands her a case. The judge threatens her to settle the case. The judge also tells her how he would like the settlement to play out. And in the middle of a case, the judge checks-in with the mediator, calmly pilfering sensitive and confidential information.

In the California Supreme Court, there is currently a bill in play that will change the confidentiality of information discovered in mediation. While it is hoped that everyone is on the same page for protecting a mediator and a client’s confidentiality, it is still worthwhile to check our assumptions and our goals.

I welcome further discussion on this topic–especially from those involved in drafting and reviewing the bill. It seems to me that our goal is somewhere between Kate’s world of a big brother judge and stark silence from the bench. I believe our goal for confidentiality is to:

1) enable the mediator to have sufficient information before the case to have enough facts to help the clients

2) allow the clients freedom to explore options during the mediation without being afraid that the brainstorming will haunt them during trial

3) allow the mediator protection from judicial pressuring

4) allow the mediator protection from testifying against herself or her clients.

What other confidentiality exceptions or privileges do we expect? And in designing our own ideal world, what do we hope for?

Fairly Legal Blog by Clare Fowler

How Good Emailing Can Improve a Bad Relationship (5/14/12)
Susanna Jani

Today, you are in for a real treat. Jane Henderson, Q.C., our perennially popular blogger and member of our distance mediation team, is back with another of her signature frank, but light-hearted, posts. I hope you are settled into a comfortable chair because this is one you’ll want to read to the end!

* * *

So, you have finally got a settlement and a parenting plan that you can live with. It was a long and difficult battle but it is over and time to move forward. Your Family Law Professionals have suggested that since you and your Ex are unable to communicate in person without it degenerating into a shouting match, and you can’t talk on the phone without someone slamming the receiver down, you should limit your communication to email. Or perhaps you live in different communities and have settled using distance mediation, so email is the best method of communicating.

Email seems like a perfect solution. It is written — so no shouting. It is a record — so everyone should be respectful. Writing gives one time to think about what one wants to say — so no emotional outbursts. It is right there in black and white — so no misunderstandings.

Well, maybe. If, like most of us, you have ever been on the receiving end of an email which you thought was aggressive, or have been surprised that an email which you sent offended the recipient in some way, or was completely misunderstood, then you will appreciate that communicating by email in a positive way is as much a skill as any other kind of productive communication. You likely also know that, if you and the recipient have a history of misunderstandings and antagonism, bad emails can make a bad situation even worse.

The good news is that it is not difficult to communicate productively with email if you follow a few simple rules. Even better, improved communication will likely improve your relationship. These are my Top 10 Rules for doing that:

1. Be clear in your own mind about what you want to accomplish before you send the email (e.g., You would like him/her to keep the kids an extra day …..).
2. Be direct but polite; don’t try to be tricky.
3. Start with a salutation. It doesn’t have to be formal: “Hi” and your Ex’s name is fine.
4. End with a closing: “Thanks for considering this” and your name.
5. Don’t use capitals except for proper nouns and the first letter of the first word in a sentence. CAPITALIZED WORDS IN EMAILS ARE EASILY INTERPRETED AS SHOUTING.
6. Similarly, don’t use multiple exclamation points!!!!! (unless you are conveying something the recipient will think is good news too) or question marks????? Both come across as being aggressive.
7. Stick to the necessary facts and your real question. Don’t use email to deliver a lecture, commentary, advice or instruction — unless the instruction has been specifically requested.
8. If a request is made of you in an email and you are saying “No”, you don’t have to give excuses, lengthy reasons, or say why you think the request is out of line. It is enough to say “I am sorry but I can’t help you out this time” — always accompanied by a salutation and civil closing.
9. If a time limit for the response is needed, put it in your email, but don’t ask or expect that it be immediate. Give at least 24 hours; the longer the time you can give, the better. (And don’t follow up with capitalized exclamatory requests for a response. You know s/he is going to get great satisfaction in hitting the “Delete” button.)
10. Don’t send or reply to emails in haste, unless it is a legitimate emergency — that is, someone’s health or life is in immediate danger. Take as much time as possible before you hit the “Send” button. If there is the remotest possibility that you have not said what you want to say in a civil and respectful tone, send it to yourself first. Look at it the next day and make sure it says exactly what you want in a civil and respectful way.
    Here are some examples of what I am talking about:

Let’s say you would like your Ex to take the kids this weekend because you have plans that don’t include them.

You could send this email:

Since you are always nagging me to be flexible, I am willing to trade my weekend with the kids this week for your weekend next week. But don’t drag this out. I need to know now.

Followed up a couple of hours later by:

So do you want the kids or not??????

The reply might come back as:

Of course I want the kids. I ALWAYS want the kids. They come FIRST in my life, not like in some people’s. But I have a life too and I am not your babysitter. You are supposed to be responsible for them this weekend and, besides, we have plans for next weekend. So I guess you will just have to put them first and be a responsible parent for a change.

You may now feel entitled to respond:

Well FINE!!! Just don’t expect me to be flexible when you want to make a change!!!

And so, the toxic cycle continues. Neither of you is going to feel very good about it and neither of you got what you want. Your Ex would have been happy to have the kids but didn’t want to swap weekends, so ended up without them. You are either going to have to pay a babysitter or miss your event because you asked to swap weekends instead of asking for what you really wanted, which was to have the kids go to the Ex. The tone of the emails makes any sort of discussion about options or alternatives pretty difficult.

On the other hand, you might try sending this email:

Hi Robin: Something has come up this weekend and I am wondering if there is any chance you could take the kids? I would like to swap weekends, but if that doesn’t work for you, it would still be a big help to me if you could take them this weekend. I would be glad to do the same for you another time. Could you please let me know by Wednesday? If I don’t hear from you by Wednesday, I will assume that doesn’t work for you and make other plans. Thanks, Tony

Then Robin is more likely to respond:

Hi Tony: I am happy to have the kids this weekend, though sorry that the swap won’t work for me. I expect I will need to ask you to take one of my weekends later this fall. Let me know when you will drop them off. Cheers, Robin

Or Robin’s response might be:

Hi Tony: Sorry I can’t help you out this weekend, but would be happy to do it another time. Cheers, Robin

The point is that what Tony really wanted was for Robin to take the kids this weekend. If they could do a swap, that would be a bonus. By asking in a direct, yet respectful, way Robin is more likely to agree; even if s/he doesn’t, the door is left open for it to happen another time. Neither person needs to feel that they have “lost” anything, and neither is left feeling angry or attacked. More importantly, they have had a civil, respectful exchange — the first step to a civil, respectful relationship.

In some cases, a respectful request will still result in an aggressive or hostile response. Even if this happens, don’t succumb to the temptation to reply in the same way. One of you may have to be the first to break the toxic cycle, so let it be you. It is hard to maintain hostility if it is not reciprocated.

The moral of this story is:

Don’t underestimate the power of email communication, for bad and for good. Use it wisely and you will improve communication and your relationship.

BC Distance Family Mediation Blogby Susanna Jani

How to Cure Beef in Your Apartment (5/14/12)
Brad Heckman

Folks, here’s an article in the current TimeOut New York about roommate conflicts, with tips by yours truly and my colleague Sheila Sproule, Prez of the Association for Conflict Resolution of Greater New York.

Dealing with roommates: How to resolve three common space-sharing problems.

1. Lack of respect for common areas. Whether you live with a Craigslist-sourced stranger who blares thrash metal in the living room at 2am or a high-school pal who’s suddenly stopped doing the dishes, you’ve got a grade-A roommate beef. To avoid noise issues, Sheila Sproule, president of the Association for Conflict Resolution—Greater New York Chapter (acrgny.org), recommends discussing ground rules ahead of time—ideally over drinks to keep things casual. Conflict-resolution expert Brad Heckman, who runs the New York Peace Institute (nypeace.org), adds: “Just be clear about what works for you, and ask about their preferences.”

2. Neglecting to pay rent or utilities. Both Sproule and Heckman emphasize that conversation is key. Sproule offers a few pointers, depending on whose name is on the official documents: If it’s both of you, you’re collectively liable for the missing funds, so remind the other person that the landlord could sue the two of you. If your roommate is flying solo, but you’re nervous about the repercussions, a calmly conveyed reminder might be all that’s necessary. If it’s just you, then you’re in a bind. Sproule reiterates that a direct conversation should be the first step—“maybe they’re not getting paid regularly at work, or they’re in a temporary tough spot”—but if it’s a reoccurring problem, you may need to involve your landlord. Lest things get ugly, Heckman chimes in with a couple of strategies to diffuse the situation: “Listen without interrupting, even if what you’re hearing is absolute baloney. Repeat what the person has just said, so he or she knows you’ve understood their point of view. And go easy on the venting.”

3. Playing the passive-aggressive card. This sort of under-the-radar hostility is funny only when it shows up on Post-it notes via Tumblr. In real life, it can lead to a lot of unnecessary angst. Heckman’s tip: “Give specific, constructive commentary on how you see the situation, and pay attention to your body language, so that you’re not unintentionally sending signals that you’re closed off to his or her grievances.” Sproule adds, “Be direct and cite specific examples of behavior.” The more explicit you are, the less wiggle room you leave for the other person to dodge the issue.

PS If our sage advice doesn’t pan out — try mediation. New York Peace Institute, and our mediator friends nationwide, loves getting in the middle of roommie beefs.

The Hecklist Blog by Brad Heckman

Mediating the Four Meanings in a Message (5/14/12)
Nadja Alexander

It is often said that listening is one of a mediator’s core skills. At the same time the parties’ ability to listen to each other is equally important. Where parties’ communication has broken down to such an extent that they are unable to really hear what each other is saying, mediators can step in and assist them to listen more effectively.

How can they do this? Consider the following conflict that eventually made its way to mediation:

Dr Tooth asks his dental assistant Ms Smile to whether the appointments for the next day have been confirmed. She glares at him, picks up her handbag and walks out of the practice. Dr Tooth calls after her, ‘Well if that is your attitude to work, then don’t bother coming back.’ Not long after this episode, Dr Tooth receives a letter from a lawyer acting on behalf of Ms Smile seeking compensation for unfair dismissal. Dr Tooth calls his lawyer who suggests that the parties attend mediation.

During the mediation, the parties recount their different experiences of the event that led to Ms Smile walking out of the dental practice. Their mediator encourages them to talk through their respective experiences of that interaction with a view to identifying the different meanings embedded in their communication.

Four messages in every meaning
On one level, Dr Tooth was providing Ms Smile with information that the patient appointments scheduled for the following day required confirmation. However, Ms Smile seemed to be responding to Dr Tooth’s message at another level. The message to which she was reacting was something along the lines of: ‘You are lazy, disorganised and incompetent.’ But that is not what Dr Tooth said. Or is it?

German psychologist Friedemann Schulz von Thun has spent much of his life delving into the intricacies of interpersonal communication and helping people master the art of communicating with one another. In the course of his work, he has found that messages contain four different meanings. Let’s look at what these meanings might be from Dr Tooth’s perspective (knowing that Ms Smile may legitimately offer a different view that requires exploration at the mediation table).

Factual meaning. One of the four meanings contains factual data such as Dr Tooth’s information that the patient appointments need to be checked. The factual message is usually gleaned from the words of the person sending the message.
Self-disclosure meaning. Another meaning contains information about the person sending it — what is important to them or what they might be experiencing or feeling. For example, Dr Tooth could be communicating that he is anxious about the number of no-shows in the practice recently. Self-disclosure information can be revealed by non-verbal aspects of communication such as the tone of the sender’s voice (vocal), body language and eye contact (visual). It can be gleaned not only from what is said, but also from what is not said—the little things that we choose to include (or not include) in our message.
Relationship meaning. Yet another meaning communicates how the sender of the message — here Dr Tooth — feels about the receiver — in this case Ms Smile — and views the nature of the relationship between them. Here, for example, Dr Tooth may doubt Ms Smile’s commitment to the job and experience ambivalence in her attitude towards him as her supervisor. Receivers can be particularly sensitive to this aspect of the message and react strongly to it. Here Ms Smile is reacting to the relationship aspect of the message as she interprets it: namely, that Dr Tooth is unhappy with her work and that he thinks she is disorganised and perhaps even lazy. Relationship meanings are often sent through subliminal vocal and visual communication channels.
Request. Messages also contain a request (either explicit or implicit) to do, or desist from doing, to think or to feel something. This is the final and fourth meaning in a message. For example, Dr Tooth’s implicit request might be, ‘I would like you to organise your day so that you can confirm patient appointments as a matter of course and without me reminding you.’

What this means is that every time each one of us communicates, we are sending out many messages, some consciously and others subconsciously, some explicitly and some implicitly. Not only that, the person we are communicating with may pick up a different meaning than we intend to send, but one that is just as real. Dr Tooth may have intended to send the factual message indicated above; however Ms Smile may have heard something quite different.

So how can we as mediators help parties deal with their crossed messages?

Tips for mediators
The following points may be helpful for mediators wanting to make use of the ‘4-meanings-in-a-message’ model.
• It is essential first to get a sense of the parties’ behavioural tendencies. Notice the parties’ communication patterns from the first moment you engage with them.
• Become aware of the meanings in messages that each party tends to hear first. Do they have a strong relationship ear, picking up on what the message seems to indicate about them, or what the other person thinks about them? Alternatively they might focus on what they think the message says about the other person, for example, that Dr Tooth seems anxious about the practice. Then again, they might have a strong factual ear, tuning into the information and data with a tendency to miss the rest? Or does their request ear dominate, so that they feel overwhelmed with the burden of being expected to fulfill endless requests?
• Assist parties to become aware of the communication messages they might be missing. Make use of reframing techniques to identify different meanings in parties’ messages; ask parties to summarise and reframe themselves; encourage parties to engage directly with each other to explore the different meanings in their respective messages.

Once parties begin to make this shift and recognise different meanings in a message, it becomes easier for them to negotiate directly with each other and begin to move forward towards resolution.

Kluwer Mediation Blog

Real Knowledge is to Know the Extent of One's Ignorance (5/14/12)
Lily Ng

When given two contradictory statements, people can respond in four different ways. They can deny the contradiction, discount the information that is contradictory, compare the information and decide which is right and which is wrong, or retain the basic elements of truth in both perspectives and tolerate the contradiction.

The acceptance of contradiction is known as dialectical thinking.

Studies have shown that fundamental differences exist between people from Western and Chinese cultures in dealing with contradiction. Chinese share a tendency to approach contradiction with tolerance; by finding a “middle way” by which truth can be found in each of two competing propositions. In contrast, European-Americans favor differentiation strategies that polarize contradictory perspectives in an effort to decide which side is correct and which is incorrect. Both ways of thinking can be traced back to the basic intellectual frameworks rooted in Eastern Confucianism versus Western Aristotelian logic.

Although both forms of reasoning have their merits, these cultural differences have been shown to have profound effects on conflict management. One study showed that American participants’ resolutions of conflicts were non-compromising, blaming one side for the causes of the problems, demanding changes from one side to attain a solution, and offering no compromise in dealing with interpersonal conflicts. In contrast, Chinese respondents were much more dialectical, usually attributing blame to both sides and preferring a compromise approach to resolve the contradictions. Ultimately, dialectical reasoning may be preferable for negotiating adaptively in complex social interactions, and identifying the conditions that foster this in the negotiation context is key.

Peng, K., & Nisbett, R. E. (1999). Culture, dialectics, and reasoning about contradiction. American Psychologist, 54, 741-754.

Lily Ng is a Master’s student in Social-Organizational Psychology at Teachers College, Columbia University.

International Center for Cooperation and Conflict Resolution

So you Need to Mediate, HELP! Now what? (5/14/12)
Patricia Porter

We all have conflict in our lives, some disputes are more explosive and destructive than others. Maybe it is a long-term conflict with your neighbor over the property line, or a parenting plan has gone awry between you and your ex-spouse, or your business partners don't like how the business is run or being run down. In each of these potential scenarios, parties are stuck in a cycle of destruction and contribute to the escalation of the dispute. YOU need help. You have heard about mediation and think it might be worth getting help before things get completely out of control. What now? Where do you find a mediator? You don't want to have to go to court or file a lawsuit. What do you need to know to hire a mediator? How does this work? How much does it cost?

Join Pattie Porter and Zena Zumeta discuss how mediation can be a valuable process in handling your conflict situation privately, confidentially, out of the court system, and give all parties a chance to speak and be heard. More importantly, it supports the parties making their own decisions on how to solve the problem and move forward.

To find a mediator check out resources such a:
Association for Conflict Resolution Advanced Practitioner Directory
Texas Mediator Credentialing Association (TMCA)
Mediate.com Directory

Listen here:

Texas Conflict Coach by Pattie Porter

The Necessity of Women-Only Networks (5/07/12)
Victoria Pynchon

This is a guest post by financial advisor Stacey Gordon, Managing Principal of The Gordon Group, a financial and HR consulting firm. Stacey is the former President of the National Association of Women MBAs.

I’m constantly asked the question, “why do women need to exclude men from their networks?”

My answer is simple. We need is a place where we can nurture relationships in a way that feels comfortable, a venue where we make the rules, and a private space that empowers us.

I dislike buzz words like “empowered” but when the shoe fits . . .

In this case, it’s psychological. When we’re not being judged by our actions, our speech, our tone of voice or our discussion of families and babies in business setting, we are able to put those perceived (and in many cases, actual) condemnations aside and get down to business.

It’s that simple.

We are judged all the time and we’d like to occasionally be in a place where we are judged less. Or at least judged on criteria that pertains to our jobs rather than to our gender.

The same is true for race or ethnic based organizations.

Unless he’s attended an all-woman’s conference, most white men have never walked into a room and questioned whether he should be there. White men have a sense of entitlement. They’re given the benefit of the doubt and the fact that they are leadership material is unquestioned.

The same cannot be said for female, Black, Hispanic, or Asians.

Ask any of them.

Continue at Forbes Woman

Settle It Now and ABC of Conflict Blog by Victoria Pynchon

Dopamine Related to Motivation? (5/07/12)
Stephanie West Allen

After reading books such as Psychology's Ghosts: The Crisis in the Profession and the Way Back, I am even more likely to see most research studies as, at best, clues, and clues only only in the material world. That's how I view this study written about below, but I post the news release here because I can never be reminded too often that we are each different; this study is another reminder that one size does not fit all.

News release from Society for Neuroscience:

DIFFERENCES IN DOPAMINE MAY DETERMINE HOW HARD PEOPLE WORK

Washington, DC — Whether someone is a “go-getter” or a “slacker” may depend on individual differences in the brain chemical dopamine, according to new research in the May 2 issue of The Journal of Neuroscience. The findings suggest that dopamine affects cost-benefit analyses.

The study found that people who chose to put in more effort — even in the face of long odds — showed greater dopamine response in the striatum and ventromedial prefrontal cortex, areas of the brain important in reward and motivation. In contrast, those who were least likely to expend effort showed increased dopamine response in the insula, a brain region involved in perception, social behavior, and self-awareness.

Researchers led by Michael Treadway, a graduate student working with David Zald, PhD, at Vanderbilt University, asked participants to rapidly press a button in order to earn varying amounts of money. Participants got to decide how hard they were willing to work depending on the odds of a

Continue reading "Dopamine related to motivation?" »

Neuroscience and Conflict Resolution Blog by Stephanie West Allen

Mediation Confidentiality: Update on AB 2025 (5/07/12)
Phyllis Pollack

On February 23, 2012, Assembly Bill 2025 (ab_2025_bill_20120223_introduced) was introduced in the California legislature. The intent of the bill was to abolish mediation confidentiality with respect to “… communications between a client and his or her attorney during mediation, in an action for legal malpractice or breach of fiduciary duty or both and in a State Bar disciplinary action, if the attorney’s professional negligence or misconduct forms the basis of the client’s allegations against the attorney.

There was much opposition to this bill from various groups and individuals. As a consequence, the state assembly judiciary committee’s hearing on it was postponed, and earlier this week, the bill was withdrawn altogether. As a result, for the present, communications between an attorney and his/her client during a mediation remain covered by mediation confidentiality and cannot be introduced in a later malpractice or discipline action to show that the attorney fell below the requisite standard of care or breached his/her duty to a client in some way.

While the withdrawal of this bill may seem like a victory to some and a defeat to others, in reality, it may be neither. The bill was withdrawn so that the issue could be referred to the California Law Revision Commission for further study. One of the quandaries is how to reconcile the aim of this bill- to allow the admission of evidence of malpractice or professional misconduct occurring during a mediation into a subsequent trial or hearing – with the waiver of the attorney-client privilege in actions for breach under California Evidence Code Section 958.

According to the proponents of AB 2025, a real issue exists regarding attorneys breaching their duties during mediation and escaping the consequences under the protection of mediation confidentiality. The proponents believe such breaches of duty occur during mediation more frequently than we would like to think or admit and so there must be a mechanism to address and remedy them. As this topic is a thorny issue, the California Law Revision Commission will now take it up. But, by doing so, the Commission may not necessarily have the very narrow focus of AB 2025; it may broaden its horizons by looking at all of the confidentiality statutes (and not just the one prohibiting the admissibility of evidence of what occurred during mediation) and create an exception much broader than AB 2025. By the time the Commission finishes, there may be exceptions to confidentiality far more reaching than simply for breaches of duty during mediation. In sum, some believe that this turn of events, in reality, is opening Pandora’s box.

The work of the Commission will probably take quite some time; a year or two.

So stayed tuned… this tale is not over yet.

. . .Just something to think about!

PGP Mediation Blog by Phyllis G. Pollack

Fifteen Things We Know about Environmental Dispute Resolution (5/07/12)
Larry Susskind

I was recently asked by my Harvard Law School class to summarize what we know (from actual experience) about environmental dispute resolution. I offered the following list. I'm eager to hear reactions from other scholars and practitioners. What have I left out? What have I mis-stated?

1 Environmental dispute resolution (EDR) can be used “upstream” during policy-making and planning as well as “downstream,” once disputes have crystallized over administrative decisions (e.g. permitting, licensing, funding, etc.), or even after disputes have entered adjudication.

2. EDR only works if the parties are motivated to come to the negotiating table. It is fine if they have very different motivations (e.g. no good BATNA, an opportunity to create value, a desire to improve or repair relationships, pressure from coalition partners, etc.).

3. EDR needs a process manager; ideally, a professional mediator or facilitator (but not always). This person must be acceptable to all the parties being invited to come to the table.

4. The parties in EDR must have a chance to participate in or at least approve the agenda, ground rules, selection of parties, timetable and other elements of process design before EDR begins.

5. It is perfectly reasonable, even necessary, for a facilitator or mediator to get involved in a variety of away-from-the-table activities on behalf of the group. These can include making sure that all parties are prepared properly. The mediator might also work with the parties to help them remain in touch with their actual or putative constituents throughout the EDR process.

6. EDR works best when there are opportunities for Joint Fact Finding and they are managed by a facilitator or mediator.

JFF should be highly interactive, involving all the stakeholder representatives in specifying the questions that need to be answered, selecting the experts of various kinds who will be called on to help, and making decisions about which analytical methods should be used.

7. EDR should always emphasize value-creating opportunities (and not just zero-sum choices).

8. EDR can never substitute for statutorily-mandated decision-making by public officials or agency staff. It can, however, supplement whatever formal decision-making is required by law.

9. EDR will, of necessity, take different forms in different constitutional contexts around the world.

10 EDR can rarely, if ever be precedent setting. It needs to be fitted to the unique contextual details of each dispute/conflict/decision-making process. The outcomes of EDR efforts are rarely recorded in the way court decisions are. They are not likely, therefore, to be accompanied by a legal rationale that justifies whatever agreement is reached.

11 EDR can include opportunities for confidential give-and-take among the participants even though open meeting laws, sunshine laws and other transparency requirements must be met. Transparency is the mediator’s responsibility along with an obligation to maintain promises of confidentiality. These can be balanced by allowing the mediator to carry messages between the parties and through work that is done in caucuses.

12 There are substantial advantages to creating EDR “systems” rather than treating each EDR opportunity anew. This often requires that dispute handling systems be enabled by statute or regulation.

13 The costs of EDR need not be shared equally by the parties. Each party can contribute what it can without compromising the non-partisan or neutral stand of the mediator. Funds to support an EDR effort (regardless of who provides them) should only be allocated with the support of all the participants (perhaps through the involvement of an elected executive committee of stakeholders).

14 It is possible to evaluate and improve EDR efforts. It is unlikely, however, that consistent quantitative measures of benefits and costs will be central to such assessments. Rather, in-depth case-by-case analyses – before, during and after each effort – undertaken by independent evaluators are required. These tend to focus on the satisfaction of the parties relative to their pre-defined BATNAs along with their sense of how the process "worked" given the alternative ways of handling the situation that were available.

15 Parties involved in EDR should be consult legal counsel. Court-connected EDR will undoubtedly involve parties and their lawyers throughout. The presence of lawyers in EDR, however, should not be allowed to create barriers to informal (problem-solving) dialogue among the parties themselves. Professional neutrals need not be attorneys.

Consensus Building Approach by Larry Susskind

Recent Developments in International Arbitration (5/07/12)
Victoria VanBuren
ollowing are this month’s recent developments in international arbitration law published by the International Law Office (free registration is required to view the articles). Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly Hayes

Mediators Instead of Police? (5/07/12)
Jeff Thompson

A new report, ordered after last year’s student protests on the UC Berkley campus resulting in the pepper-spraying of nonviolent student protesters that received global media coverage, has resulted in 50 recommendations over 133 pages. The report details recommendations on how to prepare and respond for similar situations in the future.

A recommendation that stands out among the others is, according to the DailyDemocrat.com:

Among the 50 recommendations, the report concluded that campus administrators should be trained in de-escalation techniques that can be used instead of sending in police.

Note that although the title of the article states “Mediators, Not Police”, the article simply mentions using administrators trained in conflict resolution as a step to be used prior to involving the police.

The use of the term “mediator” is misleading depending on how one defines what a mediator is, as most would include the wording “neutral” as part of the mediator’s role. If the mediator is also an employee of the University, could they then also be neutral?

If the answer is yes, why not then have mediator/police officers respond as well?

Approaching this from a conflict resolution professional’s perspective, the recommendation does not have to necessarily be an “or” situation but rather an “and.”

Why not have staff trained, AS WELL as specific police personnel trained in these skills to be able to engage protesters in appropriate situations? Yes, they can serve as mediators is the loose sense of the term as they can help both sides (police/administration and the student protesters) realize each others’ reasons behind their positions while then opening up more options.

This is in contrast to what is often seen as the win-lose, lose-win, or lose-lose situations that can often arise during these emotional and potentially volatile moments.

I make this suggestion not just based on theory but also from experience. As a current PhD student studying mediation and nonverbal communication, while also having a Masters in Negotiation and Dispute Resolution, I also have first hand experience of these situations where the suggestion of having police personnel trained in these skills works. It really does.

Serving in the NYPD for almost ten years, and currently as a detective in the Community Affairs Bureau, has had me and my fellow officers literally placed on the frontline of high emotionally charged situations including protests where training in conflict resolution skills has work time and again.

Why has it worked? Two primary reasons:

1 1: buy-in from the NYPD executives believing that using these skills as a critical and necessary stage in policing works.
2 2: Training: these skills only work if those using them know how and when to use.

Of course there are other relevant factors contributing to this success, including the Community Affairs officers wearing different colored shirts identifying their unique role, however the above two standout as necessary.

Part of generating understanding through the use of communication, especially in these situations, includes realizing the police are not there to be against you but rather to work with you and ensure everyone’s safety.

Hopefully the University of California will consider this and others options when developing new response procedures.

Read the article [here].

Enjoy Mediation by Jeff Thompson

Don't Forget About Your Witnesess When the Case Settles (5/07/12)
John Bratt
I just reached a settlement in a case that was set for trial next week. Obviously that is great news for my client, who now has some closure on a difficult period in his life.

But memorializing the agreement and having the clerk remove the case from the docket doesn’t mean the end of my job when it comes to settlement.

I had subpoenaed three witnesses to appear for trial: an independent “bystander” witness, a traffic engineer from the State Highway Administration, and a police officer. I made sure to contact each of these witnesses as soon as the case resolved to let them know they would not need to appear. They really appreciated that I let them know. The traffic engineer in particular made it a point to let me know how often attorneys subpoena witnesses from his office and then do not let them know when the case settles. Then they travel to court for nothing.

I can’t believe that. It’s just unprofessional, and arguably violates Md. Rule 2-510(h), which states that “[a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or cost on a person subject to the subpoena.” As far as I’m concerned, not telling a witness under subpoena that the case settled and they don’t have to appear causes the witness “undue burden or cost.”

So just a reminder, when your case settles right before trial, make sure to notify the witnesses. That way you can save them the hassle and missed time from work of showing up at court for no reason. Baltimore Injury Lawyer Blog by John Bratt

GenWhy--A Site for Young International Mediators (5/07/12)
Aik Kramer

Here comes GenWhy!!!

Imagine that you grow up in a global village, where a multitude of cultures and value-systems are cosmically bound to co-exist. Now imagine that information flows at your fingertips.Your world consists of intricate systems of social relations, that you tinker with everyday of your life. You do your best to make a positive difference, but you are still human, a social organism, a species that is still evolving.

Young adults today

Young people nowadays have a bad image. They are said to be apathetic and socially disconnected. Dutch statistics show that a mere one percent of Dutch youth is a member of a political party, but does this suggest a low level of their public participation? In a word, no.

Young people today do participate in society actively, but in a world characterized by globalization, individualization, multiculturalism and digitization, this participation takes on a different form. Other generations just fail to recognize it.

Globalization

Globalization often imposes on young people a situation of information overload. The young Dutch philosopher, Rob Wijnberg, argues that the ‘apathy’ of young people towards politics constitutes a kind of self-defence mechanism. “Every day we are being inundated by world events and their tragedies, so much so that we are compelled to draw up a wall in defence.”

Their ‘apathy’ can therefore be seen as a manifestation of the realization that some conflicts simply lie outside of their control. Even basic social institutions, such as marriage or the banking industry, can collapse suddenly. In the global village the question “What is my role in society?” has also taken on a global dimension, and one that is increasingly less distinct from the local.

Individualization

Another social development putting pressure on young people is individualization. From a young age they are expected to make sensible choices and ‘plan their future’. Belgian psychologist Maria Bouverne-De Bie states: “Young people are expected to show both greater independence and a high degree of self-control. The assumption is that they are able to behave responsibly from the start. Self-control and moral responsibility are in fact prerequisites for social participation, without there being any kind of instruction as to how.”

Multiculturalism

Nowadays young people live in a society with contemporaneous (and sometimes conflicting) cultures and value-systems. The ability to deal with these differences and conflicts is an essential social skill, but how does one acquire this skill? How do you deal with the capricious forces of group-identity? How do you address anti-social behaviour when in some sub-cultures a criminal record denotes status? Please note: The difficult interaction between some subcultures and authorities isn’t so much caused by cultural differences but rather by a clash between civil and street cultures.

Dutch Author Hans Kaldenbach states the following in his book Respect!: “Youth in the street-culture have turned away from the mainstream of society. They’re convinced that authorities cannot be trusted. Politicians and the taxman are out to get you, judges favor their own social group, managers are crooks and big business wants to skin you. (…) ‘Street-culture’ represents a mixture of apathy and rebellion.”

Where are the teachers?

Young people who have become estranged from society, find refuge in a street culture that turns away from social developments but at the same time provides recognition. Group processes among youth greatly influence the formation of their identity. However, to participate successfully in society, they will have to shape their own ‘civil’ society. Until then, they will oscillate between various cultures, groups and institutions. In this learning process social skills are of the essence, but are often presupposed: young people are expected to make independent choices, be flexible and act morally, but who will show them how?

Digitization

Internet and other media are an integral part of young peoples’ social life. Networks like MySpace and Facebook give new meaning to the term ‘communication skills’. Are those who lock themselves in their rooms to engage in role playing games actually socially inactive? Dutch author Menno Hurenkamp introduced the concept of light communities to describe these new social relations. Nowadays people meet and participate in communities where it is hard for a government to ‘keep score’. Young people may not join a political party but they do join groups, sub-cultures or an digital community, often several.

These ‘light communities’ are increasingly geared towards collaboration, such as the open source encyclopedia Wikipedia or the numerous DIY-forums. Together, they generate an incredible productive power, but are hard to govern. Looking beyond the stereotypes of young people today and focusing on their individual lives, a generation emerges that truly wants to participate in (a global) society, and that has all the tools for it.

The struggle for recognition

What does it take to enable members of a community to participate effectively? Author/philosopher Axel Honneth states that recognition is quintessential. A social institution like formal legality (a legal system based on formal equality) is insufficient by itself. In the ‘struggle for recognition’ he identifies three phases and therefore three conditions for social participation: self-confidence, self-respect and self-esteem. For the development of self-esteem, recognition of the unique contribution of the individual is needed. “Whereas self-respect is a matter of viewing oneself as entitled to the same status and treatment as every other person, self-esteem involves a sense of what it is that makes one special, unique and (in Hegel’s terms) ‘particular’. (…) What distinguishes one from others must be valuable.”

Mediation (skills) as essential social competencies

Below are a number of examples of social competencies of young people in a world characterized by globalization, individualization, multiculturalism and digitization. We can now see their development of self-confidence, self-respect and self-esteem; from making choices via social competencies to participation in the form of a valuable contribution to society. Out of these competencies emerges the character and quality of a mediator. Today’s youth is a generation skilled in communication. Their early experience in making independent choices and their relativistic attitude could be the start of a new way of dealing with conflicts. They have the freedom to shape their own lives but in order to be successful and achieve recognition they must be able to solve conflicts and shape their own learning processes.

Examples of mediation skills as social competencies:

Self-reflection (on content, emotion and intention);

Making independent choices;

De-escalation and meta-communication in conflict situations;

Solution-focused thinking and acting;

Shaping one’s own learning- and group processes.

In these social competencies we clearly see a shift from specialist skills to a type of ‘process-thinking’ that is typical in mediation. Young people have to adjust to a social system that increasingly requires flexibility. Here the mediator steps in as a role model. Mediation skills provide these social competencies and therefore mediation empowers young people.

What does Generation Why do?

Generation Why, based in Haarlem, the Netherlands, has established a platform and center of expertise for young mediators. Firstly, by creating a website and digital community. Secondly, by opening a real life peer-mediation office in the public library of Haarlem. There we collaborate with public and private institutions on practical solutions to the typical challenges of the global village.

With the use of mediation skills young people can make choices, shape their collaboration and even participate in social institutions. This not only strengthens their current position in society, but also provides the platform for ownership of public institutions in future. To do this, we make use of the positive force of peer mediation -mediation by and between peers. Peer mediation has emerged from the field of education, where it has amply proven to be an effective tool for empowerment.

Peer mediation in the public arena

Generation Why wants to apply peer mediation beyond the field of education. Even group processes that sometimes lead to destructive behaviour can be a source of productivity. Peers share a perception of the environment; within a peer group young people can share experiences and learn from one another. In the (peer) mediator they find a mentor and a role model.

Because of this target audience, this adolescent form of peer mediation will be aimed less at traditional mediation and more at individual conflict skills and group processes. Peer mediation gives young people the tools to ‘stand up for themselves’ by making use of their own motivation and their need for recognition and finding their own solutions and outcomes.

Are you a mediator?

With its platform Generation Why supports young mediators, and through its website enables them to become more visible. Also, Generation Why wants to facilitate this ‘light community’ of young mediators by organizing various kinds of activities. Generation Why is convinced that in future mediators will fulfill an important role in solving social issues. Peer mediators are, by definition, in step with their generation and can help make complex social conflicts involving youth and young adults manageable again.

Generation Why Facebook Page

Generation Why Blog by Aik Kramer

It's All in the Delivery (4/30/12)
Phyllis Pollack

One of the major tools in a mediator’s toolbox is “persuasion.” Either through training, experience and/or intuition, a mediator learns tactics that can be used to “persuade” a party to compromise and settle a dispute.

My friend and colleague, Maria Simpson Ph.D., defines “persuasion” as “. . .helping people agree with us through the use of logical argument.” She goes on to explain:

“We point out the positives of our positions and explain why they outweigh the positives of the other position. Notice that I started with the positives of the other side’s position, not the negatives. Starting with the negatives or even dismissing the other position will be perceived as disrespectful. . . .”

As we all know, simply pointing out the positives of each position does not usually result in a resolution. More times than not, the other party will defend her positives by outlining the negatives in the persuader’s position. In response, the persuader will have to address the negatives, hopefully showing that the other party’s position has more and stronger negatives, yet do so in a respectful manner.

But oftentimes, “persuasion” does not work. The logic, rationality and clarity of the persuader simply does not sink in. So – Plan B comes into play – the subtle or not so subtle use of “pressure”. The problem with the shift to “pressure” is that it is often delivered in a loud tone, laced with anger, frustration and force. Both the tone and language used are often argumentative, thereby making the listener, (aka the other party) defensive – her “fight or flight” response kicks in as she now feels she is under attack. Consequently, the “pressure” tactic will backfire.

My colleague, Ms. Simpson, suggests that if one must shift to pressure, do it with a light touch – stay calm, quiet and respectful in your delivery. This reduces defensiveness and may even produce trust to the point that the party will be open to what you are saying.

Ms. Simpson’s Two Minute Training tip resonated with me because I had just concluded a difficult “lemon law” mediation in which the plaintiff refused to listen either to counsel or to me. Her counsel strongly recommended settling the case, urging that it was not a strong case for trial; in fact, counsel advised that plaintiff had only a very, very slight chance of winning. When counsel determined that plaintiff was hearing “but not listening,” she implored my help. First, I tried the art of persuasion, discussing the facts of the case as both plaintiff and defendant saw them (obviously – the views were different!). Plaintiff shrugged off the opposing views, asserting she was convinced she would win in spite of what her counsel just told her. So, I shifted to the use of “pressure”, using a quiet respectful tone laced with empathy (as with a “difficult” person). Plaintiff continued to shrug me off, stating she was ready to go to trial. To both her counsel and me, she simply was not listening: she was tuning us out completely.

After a few hours of this, her counsel terminated the mediation, feeling we were getting nowhere! We said our good-byes and she and her counsel left.

But then – a strange thing happened. A few hours later, I received a phone call from defense counsel stating that plaintiff had come around and made a reasonable demand. Within 48 hours thereafter, the case settled for a reasonable sum.

Evidently – plaintiff was “listening” after all. What I and her counsel had said – had sunk in! And, I would like to believe that the delivery – in a quiet, non-threatening respectful way had a lot to do with it!

So. . . how you say something is often more important than what you say!

. . . Just something to think about!

PGP Mediation Blog by Phyllis G. Pollack

ODR and Napoleon: World Conquest (4/30/12)
F. Peter Phillips

No sooner had Colin Rule addressed my students at New York Law School but we met each other again in Washington, DC, where he was on a panel on online dispute resolution at the Annual Meeting of the ABA’s Section on Dispute Resolution. Colin’s seven years with EBay/Paypal, combined with his new start-up Modria, have turned that sparkle in his eye to a glint. He sees the future, does Colin, and it doesn’t include lawyers — or the law.

EBay, Paypal and Modria offer consumers the opportunity for redress in high-volume, low-value disputes. While the lawyers parse out class action arbitration and the intricacies of distinguishing recent Supreme Court decisions, Colin Rule is just going ahead and getting it done. Here’s how:

Online, it’s entirely possible to enter into a transaction in which an English buyer and a Polish seller arrange for the sale of goods to be shipped from Brazil or America. If that transaction goes awry, what court has jurisdiction? What law prevails in the deal? Who would represent these three entities, and where, and when, and how do they get paid?

In Colin Rule’s world, the law takes a back seat — or, a step further, it sleeps in. Instead, the parties communicate through the internet, advising what the buyer wants and what the seller is prepared to do. This dispute resolution process is an “alternative” to nothing — no court and no law is involved.

The driving energy is a shared concern for the integrity of the online marketp[lace. Users must trust the efficiency of the marketplace — buyers and sellers equally — and have an interest in disputes being acknowledged and resolved efficiently.

Indeed, according to Colin, people who have filed disputes with EBay use EBay more frequently than those who have not. And 6,000,000 disputes a year get filed and resolved.

No “judicial backlog,” either.

Dispute resolution without the law? O brave new world, that has such creatures in it!

Business Conflict Blog by Peter Phillips

Beyond the Numbers: the Client, the Court, and Dispute Resolution (4/30/12)
Diane J. Levin

He was a widower and a grandfather. He arrived at the mediation with his attorney and one of his adult daughters for moral support. The trial date loomed, and the judge had urged both sides to come to the table to settle this tort case.

After the accident, he could no longer babysit his grandchildren because he was not able to lift them. An amateur musician since boyhood, he was unable to sit at the piano for more than 10 minutes, which meant he could no longer practice the complex classical pieces that he had loved to play.

Before the mediation, the lawyers had swapped numbers but remained miles apart.

The defense attorney began the mediation by sincerely offering his sympathy and concern to the plaintiff, and telling him how appreciative he was that the plaintiff was willing to come to mediation. But there was no getting around the fact that this was a money case. A “Getting to Yes” feel-good ending, with a creative settlement with monetary and nonmonetary elements that would produce mutual gain and value, was probably not possible.

Liability and damages were of course disputed. Witness testimony conflicted. The plaintiff’s attorney had explained to his client the uncertainties that trial presented. Based on the statistics the attorney had compiled, the odds favored the defense by a wide margin.

For the defense, a recent court decision had left precedent shaken; at least one issue would have to be litigated. The defense attorney considered the risks and concluded that removing the uncertainty through settlement served his client best.

Through the exchange of numbers and the reasons supporting them, each side gradually worked their way closer to each other. During the penultimate round, I sat in the conference room with the plaintiff, his daughter, and his lawyer as he weighed the latest offer. The defense lawyer waited outside.

The plaintiff looked at the number his lawyer had written down on his pad of yellow paper. “Is this what I’m worth?” he asked. The case file sat on the table between us. He pointed to the docket number on the file. “I’m just a number to the court and to him,” he said, gesturing to the waiting area outside the door where the defense lawyer sat.

He pulled out a battered old wallet; from an inner fold he carefully withdrew photos of his grandchildren. The photos were creased and bent at the edges, smudged with fingerprints from regular handling. He placed them on the table in front of me. “I can’t get down on the floor and play my own grandkids, “ he said, his voice breaking. “When they get older, I won’t be able to sit with them on the piano bench and teach them how to play music like my own grandfather taught me.”

He pointed again to the number on his lawyer’s pad of paper. “Do you mean to say that I’m only worth this? How can my pain and the diminishment of the quality of my life be worth so little in the eyes of the law?”

I listened closely to this man struggling with the limitations of the Law, and the loss of enjoyment of life he was coping with. I worked with the three of them – man, daughter, lawyer – to explore not just the money issues but the emotional and personal elements that were present, and talk through the difficult decisions to be made.

His daughter put her arm around his shoulders. His lawyer explained patiently, not for the first time, how the law values personal injury claims, about the difficulties and burden of proof, about the risks of trial, and how all that must be calculated in assessing an offer. Such cold calculations and so many constraints. I felt infinite respect for him as he weighed his choices.

In the litigated case, it can be all too easy to forget those standing directly at the heart of the dispute, the ones affected directly by its outcome. For the professionals perhaps these calculations – statute, case law, damages, risk – are part of the daily routine. Putting a price on human suffering is part of the commonplace business of law. Yet for ordinary people the law – the Law – can seem cold, as rigid and unfeeling as the stone columns of the courthouse. The Law reduces unfortunate events and their impact on human life into their numerical equivalencies.

At the dawn of the modern dispute resolution movement in the U.S., it was not for nothing that Dean Roscoe Pound of Harvard Law School called upon the legal profession to transform its institutions of justice and adjust its principles “to the human conditions they are to govern”, “putting the human factor in the central place”. Neglecting to do so comes at a cost – eroding confidence in the law, in justice, in settlement.

Mediation fortunately has the capacity to put the human factor front and center. I can still see the defense lawyer, holding in his hands the dog-eared photos of the plaintiff’s grandchildren, before proposing the final figure that settled the case.

Kluwer Mediation Blog

Conflict is Inevitable. War is Not. (4/30/12)
Christianna Gozzi

Anthropologist Douglas P. Fry debunks the commonly held belief that war is an inevitable force of human nature. Through his research of 87 internally-peaceful and 76 externally-peaceful societies around the globe, Fry makes a deeply compelling argument that war can be eradicated and peace maintained if society reorients itself on a few fronts. These include “enhancing crosscutting ties; recognizing interdependence; promoting new values, attitudes and beliefs; implementing overarching levels of governance; and expanding the use of conflict management mechanisms.” These factors must act in concert and require support at multiple levels of society.

Fry’s research demonstrates that humans are capable of many forms of conflict prevention, resolution and management—most of which are non- violent. War is merely one option amongst “avoidance, toleration, negotiation, and third party settlement procedures” and Fry argues that societies can and should shift focus so that third party conflict management is favored over violence and war.

This research also provides empirical support for the capacity of communities to shift from violent to non-violent forms of dispute resolution and give up war entirely. The Waorani bands, for example, chose to give up war when presented with an alternative reality—a life with the potential for peace and living without fear of violent death.

Conflict resolution practitioners can work to design conflict management procedures which are practical, efficient and usable at every level of society, thus increasing the probabilities that humans will chose a non-violent system over war.

Fry, D. (2006). The human potential for peace. Chapter, 20, Enhancing peace. Oxford, pp. 247-263

Christianna Gozzi is the Assistant Director at the Advanced Consortium on Cooperation, Conflict and Complexity (AC4) at Columbia’s Earth Institute.

International Center for Cooperation and Conflict Resolution