Gini Nelson\’s Engaging Conflicts

July 31, 2006

Protean Negotiation: Rejecting Orthodoxy and Shifting Shapes

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 2:21 pm

One highlight for me at the Association For Conflict Resolution’s annual conference last October in Minneapolis, MN, was the workshop presented by Robert Benjamin, M.S.W., J.D., and Peter Adler, Ph.D., President and Director of The Keystone Center, entitled “Stalinist Mediation and the Protean Leader.” Proteus, a minor Greek god, was a shapeshifter and mystic, who would escape from those seeking to capture him by changing shapes. Robert and Peter defined “being protean” as “assessing the parties, the situation and the context and using alternatively or simultaneously, competitive, cooperative, moral and pragmatic tactics.”

Peter has a new article out (with the name above) on protean negotiation. It begins thus (the link for the entire article is found at the end of this post):

Ancient Imperatives

Around the world, in classrooms, board rooms, and airport waiting rooms, the theory and practice of negotiation is awash with advice. Much of it is simplistic and some of it contradictory. One writer implores us to know our bottom line. Another urges us to ignore it and focus on needs. A third says to wait until the last moment to do a deal when the situation is ripe. A fourth counsels us to get in early. At best, the many lists of “dos” and “don’ts” serve as reference points and modest road maps for certain situations. At worst, they misdirect us into thinking there is some grand unified field theory or universal paradigm that, if we master it, will carry us seamlessly through every deal and dispute.

More worrisome among the fashions of the moment is the trend towards fundamentalism in the practice of mediation and facilitation which is closely allied with negotiation theory. While there are many different styles, schools, and brands with names like “collaborative law,” “extreme facilitation,” and “transformative mediation,” most of these seem to devolve to four basic schools of thinking about how humans behave in the face of real or imagined conflict, how they negotiate, and how we might help them. One presupposes that all of us are fundamentally competitive. A second assumes we are, at core, cooperative. A third takes for granted that all of us will seek to do what is morally correct. A fourth assumes we are rational and pragmatic.

These four impulses — pursuing your own fair share, uniting with others to achieve a common end, insisting on doing what is right, and using logic and reasoning to solve practical problems — seem to have evolutionary roots that date back to our origins on the African savannah []. The impulses also lead to different theories of conflict and ideologies of negotiation and mediation that descend from, embody, and personify these impulses. but there is also a fifth way, one that acknowledges the universality and importance of all of them but is not explicitly and strictly any of them. it too have ancient roots. Let’s call it “Protean Negotiation.”

Here’s the link for the entire article: http://www.keystone.org/spp/published_works.html. The premier issue of the Engaging Conflicts Today newsletter features an interview with Peter that continues a discussion started with this post. You can sign up for the newsletter by clicking on the “sign up” link in the upper right corner at the top of the blog site.

Biography: Peter S. Adler, Ph.D. is President of The Keystone Center, which applies consensus-building and cutting-edge scientific information to energy, environmental, and health-related policy problems. The Keystone Center also offers extensive training and professional education programs to educators and business leaders and runs the Keystone Science School in the Rocky Mountains. Peter’s specialty is multi-party negotiation and problem solving. He has worked extensively on water management and resource planning problems and mediates, writes, trains, and teaches in diverse areas of conflict management. He has worked on cases ranging from the siting of a 25-megawatt geothermal energy production facility to the resolution of construction and product liability claims involving a multi-million dollar stadium. He has extensive experience in land planning issues, water problems, marine and coastal affairs, and strategic resource management.

Prior to his appointment at Keystone, Adler held executive positions with the Hawaii Justice Foundation, the Hawaii Supreme Court’s Center for Alternate Dispute Resolution (ADR), and the Neighborhood Justice Center. He has served as a Peace Corps Volunteer in India, an instructor and Associate Director of the Hawaii Bound School, and President of the Society of Professionals in Dispute Resolution. He has been awarded the Roberston-Cunninghame Scholar in Residence Fellowship at the University of New England, New South Wales, Australia, a Senior Fellowship at the Western Justice Center, and was a consultant to the U.S. Institute for Environmental Conflict Resolution.

July 27, 2006

Guest David B. River: The Genius Of Mediation

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 6:01 am

Guest David B. River continues today with part two of this week’s post. He and Rawle Andrews Jr., Esq. share their thoughts in an ongoing conversation about ethics and professional development in mediation. He and Rawle are guest blogging on alternating weeks during this discussion.

Rawle writes, “Learning to think like a lawyer enables the practitioner to sift through a maze of facts and emotions like the search for the common denominator in mathematics.” What is the lawyer-mind searching for? In his example, it is the right amount of damages in a certain case based on law rather than emotions, fault, or ability to pay. I appreciate his excitement in saying “This is the genius of the legal system.” I agree!

The genius of mediation is that it removes the third-party decision maker. It is genius because although people may say that they just want the situation over and want someone to make a decision, they actually want someone to decide in their favor. The legal answer, however elegant and well-supported in case law, may leave people just as angry as they were before. In mediation, responsibility for the outcome rest squarely on the clients (which does not exclude any type of support from legal, financial or therapeutic professionals). The clients are the ones who must squirm with the difficulty of finding an acceptable outcome, and there is no one outside the situation to convince, cajole or blame. The genius and importance of this approach is that it makes resolution possible.

This setting is wholly unique from a legal process, even though it is influenced by it. Working out beliefs about fault (in divorce, discussions of fault are a routine part of the mediation process), the human experience, pain, love and grieving are as important as understanding the legal context and finding a workable outcome. Mediators spend much of their time in ambiguity. I have received many blank looks from attorneys in mediation role plays when I say, “The truth doesn’t matter right now!”

In the midst of a mediation, my mind is busily sifting through facts and emotions, asking, “How does this argument make sense to this person? Does she simply need to express something that hasn’t been said or is her upset based on a perceived material need? Does he need to vent emotions or look at his expense sheet? How can this person give up their position while saving face? Why did he tear up just now and should I stop or let it pass? How can I challenge this person to ask for what they want without losing the other client?”

My good mediation clients are defined not by an absence of questions of fault, but their willingness to be empowered as the chief negotiator for their situation. I am merely providing grease for the wheels.

The sticky issue arises when mediation clients are not well-informed. What if the grease needed in a situation is legal information?

I’d like to address this more next time, but suffice it to say that where Rawle sees ADR as an acceptable course to take in the midst of a law degree, I’d like to see a law course or two given in the midst of an ADR degree.

Best wishes,

David

July 26, 2006

Guest David B. River: Mediation Is Not a Subset Of Law

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 1:51 pm

Guest David B. River continues today with the second of 4 conversations about ethics and professional development in mediation. He and Rawle Andrews Jr., Esq. are guest blogging on alternating weeks during this discussion.

I really want to thank Rawle Andrews for his thoughts. It is exactly the conversation I crave to have, and to have such a well respected attorney-mediator to have the conversation with is an honor.

First of all, I am totally congruent with Rawle in one of his conclusions – I have no problem with the valuable service that he and good attorneys provide. I honor it, respect it, and think it is a vital part of society. I am clear that it is a valuable service to my clients who consult with attorneys during their mediation. I in no way want to diminish the legal profession.

That said, my basic declaration in response to Rawle’s blog is this: Mediation is not a subset of law.

Rawle writes: “why resort to [alternative degree plans for mediators] if law schools simply can add a course to an already established degree plan, or attorney mediators can audit such non-traditional social science courses on their own time.”

I have trained several hundred mediators. In general, the group who has the greatest difficulty in the mediator role is attorneys. In my experience, attorneys, more than other professionals, tend to get impatient and uncomfortable with the stories and emotions people have, step over important nonverbal communications, value details and facts over human experience, and have trouble sitting in a process when the outcome seems obvious. Many attorneys simply take the training, say, “This isn’t for me” and go back to their legal practice.

I’m not saying this is universal and I’m not saying that good attorneys can’t be good mediators. I am saying that mediation skills come from a different mindset, frame of reference, ethical code and theoretical background that must continue to be defined and distinguished rather than made a subset of the legal mind.

Best wishes,

David

David’s post will continue tomorrow responding further to Rawle’s points, discussing “the genius of mediation.”

July 20, 2006

Guest Rawle Andrews Jr, Esq.: The Future Of Mediation

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 6:36 am

Guest Rawle Andrews Jr., Esq. concludes his response to Guest David B. River’s first post about ethics and professional development in mediation. David is not an attorney and his questions for us include the respective roles of mediators and attorneys, and where the risks of unauthorized practice of law are for mediators who are not attorneys. Rawle is an attorney, who also mediates. His previous posts were “The Polar Extremes of Law and Justice“, and “Mediation Training & Ethics Must Be Conjoined.”

III. The Future of Mediation.

Mediation is here to stay. The perception of its effectiveness as a tool for resolving disputes, however, depends largely on whether the parties have confidence in the experience (i.e., the integrity of the process and the mediator). It is not hard to imagine the inherent tension between mediators who are not attorneys presiding over disputes involving two or more parties represented by counsel. Beyond the education divide, the elephant in the room is that the mediator might be experienced as a neutral but the prevailing perception is that the mediator’s sphere of reference is unduly limited because he/she never sat on the other side of the table as an advocate. Fortunately or unfortunately, no alternative degree plan or Law School certificate program will change this bias that exists, to some degree, even among lawyers & Judges given the constant furor surrounding U.S. News & World Report’s annual Law School Rankings.

Although the MDP issue is alive and well, perhaps the best way to grow and nurture mediation is for like-minded ADR proponents to abandon turf wars in favor of united advocacy for expanded use of the process. For example, regardless of pedigree, neither Mr. Rivers nor I question the other’s right to serve the public or motives for doing so. If Mr. River’s expertise, as a mediator who is not an attorney, can help people in need, we can ill afford to shelve those skills because of the “packaging” anymore than we should discount the value of lawyers from a process that can be used to reduce or streamline litigation and its attendant costs. Gini Nelson has provided one such forum to accomplish this result. Our challenge, as ADR proponents, is to use it so that best practices can be shared for the greater good. Anything else, as the television commercial says, would be uncivilized.

Best wishes,

Rawle

July 19, 2006

Guest Rawle Andrews Jr, Esq.: Mediation Training & Ethics Must Be Conjoined

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 6:34 am

Guest Rawle Andrews Jr., Esq. continues with his response to Guest David B. River’s first post about ethics and professional development in mediation. David is not an attorney and his questions for us include the respective roles of mediators and attorneys, and where the risks of unauthorized practice of law are for mediators who are not attorneys. Rawle is an attorney, who also mediates. His first post was yesterday (“The Polar Extremes of Law and Justice“), it continues today, and concludes tomorrow.

II. Mediation Training & Ethics must be conjoined.

For years, ADR has suffered from a “split the baby” perception that neutrals will find a way to compensate alleged victims regardless of fault. With limited exceptions (traditionally in certain Southern states), courts of law suffer from no such backlash based on the large number of lawsuits filed every year. Some argue that Multidisciplinary Practice (“MDP”), where both lawyers and non-lawyers serve as neutrals, has perpetuated this outdated stereotype about mediation.

It appears, however, that the Ethical bypass occurs because most mediators are not active Judges. As such, advocates sometimes feel free to engage in tactics for leverage in mediation that would be unthinkable before a Judge. Until recently, civil litigators saw similar patterns in deposition practice where speaking objections could exceed the length of a deponent’s testimony. The courts responded by imposing harsh sanctions. Now, only the most extreme instances of discovery abuse are regularly reported. Of course, the foregoing example illustrates the problem because mediators cannot “crack the whip” to reign in bad behavior. Even if laws were adopted to provide such protections, however, mediators still would have to ask the courts to enforce these laws, thereby heightening the sense of “mediator inferiority” (e.g., increased litigation from a source aimed at terminating lawsuits). Similarly, a flood of Bar complaints by mediators who are not attorneys inevitably will get bogged down in unauthorized practice of law (“UPL”) questions, thus further crippling the ADR system as a whole because this would signal the beginning of the end for mediators who are not attorneys in most jurisdictions.

It is not hard to fathom some alternative degree plans that might serve the varied educational needs of mediators who are not attorneys, but why resort to such modalities if law schools simply can add a course(s) to an already established degree plan, or attorney mediators can audit such non-traditional, social science courses on their own time. Because there are no accredited Bachelor’s degrees in law at the undergraduate level, most lawyers majored in some other discipline before attending law school. In my case, it just happened to be a BA in Psychology. I do not believe, however, that my social science degree is no substitute for formal legal training when a client’s rights are at stake.

A law degree, for all its warts, involves developing specific analytical tools to forge new relationships and resolve disputes. While constructing an argument certainly is fundamental to an advocacy-oriented law practice, that is by no means the end all; be all of the discipline. “Learning to think like a lawyer” enables the practitioner to sift through a maze of facts and emotions like the search for the common denominator in mathematics. For instance, upon learning of a slip & fall case, all lawyers, regardless of specialty, instantly think “Torts”, and then quickly work their way through well-established, common law Negligence principles. Thereafter, as lawyers, we focus on how the accident occurred to apportion damages, if any, rather than whether the alleged victim will ever walk again and/or the alleged wrongdoer’s ability to pay. This might sound harsh, but that is the genius of our legal system. Consequently, if the trip to mediation is by force or otherwise bogged down by apportionment of fault, the mediator’s pedigree is relevant because the parties likely will have lawyers at the table. An effective mediator must be well armed to deal with this reality to avoid grappling with, among other things, the very ethical lapses that threaten the integrity of the system.

Best wishes,
Rawle

Rawle’s post will conclude tomorrow with “(3) The Future of Mediation.”

July 18, 2006

Guest Rawle Andrews Jr, Esq.: The Polar Extremes of Law and Justice

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 8:42 am

Guest Rawle Andrews Jr., Esq. begins today with the first of a series of responses to Guest David B. River’s conversations about ethics and professional development in mediation. David is not an attorney and his questions for us include the respective roles of mediators and attorneys, and where the risks of unauthorized practice of law are for mediators who are not attorneys. Rawle is an attorney, who also mediates. His first post will start today, continue tomorrow, and conclude on Thursday.

Gini, thank you for establishing this online forum to discuss conflict resolution. It is far easier to complain from the sidelines than to attempt positive change through continuous dialogue. Because our Host has been kind of enough to create a Guest Blogger’s page, my self-introduction is limited to noting that I have been a business and commercial litigator for over 15 years. In my practice, I have been fortunate to represent Fortune 500 companies, public bodies, growth firms and individuals in litigation, Bench & Jury trials, and all phases of Alternative Dispute Resolution (“ADR”).

My ADR experience includes service as a mediator, arbitrator, or advocate in commercial and employment disputes. In most instances, the participants had counsel and the mediator was an attorney or judge. More recently, however, I have been involved in disputes when the parties believed a “subject matter expert/industry veteran” was more important to the end result than the mediator’s pedigree (e.g., concerning executive employment/non-compete matters). There certainly are parallels in the Domestic Relations arena when, for example, divorce is a given but the asset allocation process is bogged down, or the fact of custody is unquestioned but visitation has to be sorted out. I am not certain, however, that these finite circumstances can be rolled out effectively across the greater legal spectrum.

Bottom line: whether or to what extent mediators who are not attorneys can effectively serve the needs and interests of adverse parties and the ADR system as a whole, when authorized to do so by law, depends largely on who the parties are and what they are fighting about at the time. The more pronounced the question of fault, the more likely that an attorney-mediator is necessary to validate the process. For ease of reference, my comments to Mr. River’s opening remarks are categorized as follows: (1) The Polar Extremes of Law and Justice; (2) Mediator Training and Ethics must be conjoined; and (3) The Future of Mediation.

I. The Polar Extremes of Law and Justice

Although the psychic aim of dispute resolution is “Justice” for all, there is no real correlation between law and justice in our common law system of jurisprudence. The Law represents an authoritative source of limitations on conduct; not expansive rights (hence the terms, loophole or legal technicality). There are numerous situations when legal niceties trump the morally correct result. One seemingly harsh example is the Statute of Frauds. Although this “Get it in writing” doctrine is well established in contract law, a Court of Justice in Europe or Latin America presumably could find for an alleged contract victim who did not reasonably rely on the alleged wrongdoer’s conduct. While appealing at some level, legal decisions based on emotion rarely serve the greater good because trust in the system is eroded, and there is no way to establish workable precedents for resolving future disputes.

Ultimately, who is “authorized” to resolve disputes is governed by state or federal law. When permitted by law, I believe mediators who are not attorneys can serve the interests of adverse parties in ADR when: (a) the parties are predisposed to mediation (i.e., no real question of fault); and (b) facilitative mediation can be utilized to guide the parties toward a settlement they create. On the other hand, when the parties come into mediation “kicking and screaming”, the parties and the ADR system are better served by neutrals with formal legal training and experience so that directive mediation can be utilized in trying to resolve the dispute (i.e., the mediator explores the range and likelihood of possible legal outcomes with the parties in trying reach an amicable solution).

Best wishes,

Rawle

Rawle’s post will continue tomorrow with “(2) Mediator Training and Ethics must be conjoined.”

July 13, 2006

Guest Blogger: Rawle Andrews Jr., Esq. On Ethics

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 8:50 am

Rawle Andrews Jr. of Andrews & Bowe, Washington, DC, was honored as the 2006 Pro Bono Lawyer of the Year by the District of Columbia Bar Association. In addition to his law practice, he is an American Arbitration Association Neutral. Rawle will guest blog about ethical issues alternating with Guest Blogger David B. River, with bi-weekly posts over a two-month (or so) period, beginning on July 17th, 2006. Please read more about him and his practice in his Guest Blogger page in the right-hand column of the blog!

Looking forward to your posts, Rawle!

July 11, 2006

Guest David B. River: What is the correlation of law to justice? Who is “authorized” to resolve disputes?

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 8:57 am

Guest David B. River begins today with the first of 4 conversations about ethics and professional development in mediation.

First of all, I’d like to thank Gini for developing this blog and generating conversation about the future of the field! I’m looking forward to contributing to the blog and to the conversation it generates.

A little bit about me (which sets the framework for future articles): I have been a full-time, non-attorney mediator for the past 11 years, first in school and community mediation at the non-profit New Mexico Center for Dispute Resolution and then as a private mediator, focusing primarily on divorce. Six years ago, when I moved out of the non-profit realm into Diane Neumann & Associates in Boston, I began to tackle how I might “professionalize” myself as a divorce mediator. The standard answer was to obtain a degree in either law or psychology/therapy. To explore the prospect of a law degree, I took the LSAT and interviewed attorneys and law students about what I might gain. What I found was very little in regards to my interest in conflict resolution. The legal system, after all, is based on the ability to build an argument. I respect that, but had spent my schooling, training and career thus far getting my brain beyond positional argumentation. In regards to the substantive legal issues of divorce, I was surprised to find out that most attorneys learn the law “on the court” and not in law school. In other words, it appeared that a law degree would be three years training my brain to think a particular way that I didn’t want to think.

So, I took the second route and entered an MSW program at Boston College. The information on human development and behavior was applicable, but the professional conversations had nothing to do with mediation – probably less than law school. After one semester (and with a 4.0 GPA mind you!), I left that program. Against all advice, I entered a Dispute Resolution Master’s program at UMass Boston. The caution: I would spend 2 years obtaining an unknown degree that would do little to increase my professional stature. However, every class and conversation met my interests – dispute resolution theory and ethics, the dynamics of public policy disputes and intervention, strategies for reconciliation after war – and I put my time and energy there.

In my private practice, without a J.D., I constantly walk the line of “unauthorized practice of law” and am aware that the mediation profession lacks solid ground. My professional unease gives rise to certain questions – some global and some specific:

  • What is the correlation of law to justice? Who is “authorized” to resolve disputes?
  • How does a lack of solid professional ground for mediators affect mediation ethics?
  • How can the mediation field develop authority without being co-opted by established professions?
  • Is a new form of legal training needed for mediators?
  • How will the art and distinction of mediation be nurtured and grown without losing integrity?

Over the next few months, I’ll be posting entries to this blog in pursuit of these questions, and I look forward to the conversation that I hope it generates.

Best wishes,

David

July 5, 2006

Stress Can Make You As Much As 32 Years Older Than Your Calendar Year!

Filed under: Health, Conflict and Stress — Gini @ 11:25 am

Lots of things in life are stressful. Conflict is stressful for most of us. According to the RealAge site, stress can add up to 32 years to your calendar age, in terms of the health of your body. Indeed, RealAge cites better management of stress as the #1 one to grow younger, i.e., to reduce unnecessary aging of your body. Self-care and health tools protect and strengthen us while we work or live in conflict.

RealAge posts its “Top 12” strategies for healthier lives at http://www.realage.com/research_library/12ways.aspx. #4 is “Reduce Stress — In highly stressful times, your RealAge can be as much as 32 years older than your calendar age. By building strong social networks and adopting stress-reduction strategies, you can erase 30 of those 32 years of aging caused by stress.”

I’m giving away one free copy of The RealAge Makeover — Take Years Off Your Looks and Add Them To Your Life, by Michael F. Roizen, M.D., to one lucky subscriber of my free, email newsletter, Gini Nelson’s Engaging Conflicts News — please sign up here: http://gnconflictmanagement.com. Please tell your friends and colleagues who might be interested in signing up, too! Deadline for sign up is Thursday, July 13, 2006. Good luck!

FREE OFFER #1 EXTENDED! BOOK DRAWING AND GINI NELSON’S ENGAGING CONFLICTS NEWS!

Filed under: Health, Conflict and Stress,Tips, Treats, and Tools — Gini @ 10:52 am

[Ah, summer vacations and spam catchers help us! However, they can interfer with tight deadlines! The sign-up period is extended through Monday, July 17th!]

Conflict is stressful! Poorly managed stress is bad for our health and our quality of life! For great self-care advice with on-point science behind it, RealAge is one of my favorite resources — it rates better stress management as the #1 most important way to “grow younger” (i.e., not age unnecessarily). I’m giving away one free copy of The RealAge Makeover — Take Years Off Your Looks and Add Them To Your Life, by Michael F. Roizen, M.D. — sign up for free, email delivery of Gini Nelson’s Engaging Conflicts News by Wednesday, July 12, 2006, to be entered in the drawing. Sign up at http://www.gnconflictmanagement.com or send me an email with “Free Book” in the subject line, and your email address, your full name and your postal mailing address in the body (gn@gnconflictmanagement.com).

Please pass this opportunity on to friends and colleagues you think might be interested. Thank you!

Oh, and … good luck!

Guest Blogger: David B. River On Ethics

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 8:41 am

David is on the Board of the New Mexico Mediation Association, and is a full-time mediator in Santa Fe, New Mexico while finishing up a Masters Degree in Dispute Resolution with the University of Massachusetts. He’ll guest blog about ethical issues mediators face with bi-weekly posts over a two-month period, beginning next week. Earlier, I posted a link to David’s article, In Pursuit of Justice: Lawyers and Mediators Negotiating Identity (see the March 31, 2006 post titled “Those ‘Other’ Conflict Specialists ….”). The article will be published in the Vol. 5 No. 1, Winter 2006 issue, Family Mediation Quarterly — but here’s an updated link to the full article on his website: http://www.rivercadiz.com/Articles/FamilyMediationQuarterly-InPursuitofJustice.pdf

Looking forward to your posts, David!

Blog at WordPress.com.