Gini Nelson\’s Engaging Conflicts

March 15, 2007

Governor Bill Richardson Signs New Mexico Mediation Procedures Act Protecting Confidentiality For Mediation Communications — EngagingConflicts.com

Filed under: Attorneys and Mediators - No Conflict Here! — Gini @ 4:46 am

red-face dial phone

Governor Bill Richardson yesterday signed the New Mexico Mediation Procedures Act, establishing confidentiality for certain mediation communications. Mediation is broadly defined to include any process that facilitates communication and negotiation between mediation parties, or promotes reconciliation between mediation parties. Mediator is also broadly defined to include any individual who holds herself out as a mediator and who conducts a mediation.

The confidentiality protection is limited, however, to mediation pursuant to mandatory court- or other governmental proceedings, or to voluntary mediation pursuant to a written contract, and includes exceptions for administrative facts (such as when and for how long the mediation occurred), for communications that relate to preventing or correcting wrong-doings, or concerning professional misconduct or malpractice relating to the mediation itself, among other exceptions.

Congratulations to the hard working and persistent New Mexico mediation community for their work with legislators and other governmental officials to effectuate this!

Click here to open a pdf copy:

nm-mediation-procedures-act.pdf

Please remember to move your bookmark to the new site: www. EngagingConflicts.com.

January 9, 2007

Engaging Conflicts In 2007 — EngagingConflicts.com

Please note the new address: http://www.EngagingConflicts.com.

In 2007, Engaging Conflicts will continue to center on issues identified by Bernie Mayer’s Beyond Neutrality: Confronting the Crisis in Conflict Resolution, Chris Honeyman’s Theory to Practice work (focusing on his new book, The Negotiator’s Fieldbook: the Desk Reference for the Experienced Negotiator, co-edited with Andrea Kupfer Schneider), and the October 2006 Keystone Consolidating Our Collective Wisdom conference; as well as my Wikis and Podcasts and Blogs, Oh My! program – use of the new social media on the internet for professional, personal and business development. I’ll provide Tips, Treats, and Tools, and talk about Health, Conflict and Stress, on occasion, too.

Some Guest Bloggers In 2007

Planned guest bloggers for 2007 include Kristine Paranica, J.D., Administrative Director and Fellow of the Institute for the Study of Conflict Transformation (ISCT) on transformative mediation and practice; and John Lande, J.D., Director of the Master of Laws Program In Dispute Resolution at the University of Missouri-Columbia School of Law, on cooperative law, as distinguished from collaborative law.

In Engaging Conflicts Today, the newsletter (subscribe by clicking in the sidebar!), I’ve planned interviews with Bernie Mayer, John Paul Lederach, Robert Benjamin, Chris Honeyman, Janis Magnuson (of Janis Publications), Diane Levin (of the Online Guide To Mediation blog), Jack Cooley, John Stephens, Ann Gosline, and Howard Gadlin, among others. And, as I said, The Negotiator’s Fieldbook, Chris Honeyman’s and Andrea Kupfer Schneider’s new book, will also be highlighted in 2007 (in both the newsletter and in the blog), with reviews, summaries and interviews.

At the new site, you’ll see the administrative categories tabbed across the topbar (Welcome, Contact, Why Engaging Conflicts?, Guest Bloggers, RSS FAQ). The first box at the top of the right sidebar lets you search the blog using keywords. You can then bookmark the blog at Technorati (use the green icon); subscribe to the blog for free at FeedBurner (use the orange icon); and then subscribe to Engaging Conflicts Today by clicking on the blue hyperlinked “Free Engaging Conflicts Newsletter!” I have fewer categories. Also, each post now allows linking with 13 different social content and social bookmarking websites, e.g., del.icio.us, digg and smarking. (If you don’t know what any of these terms and options are, spend some time in the Wikis and Podcasts and Blogs, Oh My! category!) Finally, I’ve disabled commenting, to help save the site from robotic spamming – write me privately, and I’ll respond, though.

REMEMBER: Please move your bookmark, and — try something new! — subscribe to Engaging Conflicts! If you’d like to learn more about RSS or web feeds from a podcast or blog consumer’s point of view, visit our RSS FAQ.

November 6, 2006

Engaging Conflicts Today Interview With Ken Cloke

Today’s issue of Engaging Conflicts Today includes the conclusion of Ken Cloke’s interview, and an excerpt of my book review of his new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution. The review is being published in full today in the Colorado Council of Mediators November newsletter, and is pending publication in the Peer Bulletin, a monthly newsletter for Peer Resources Network members. If you would like to get both parts of Ken’s interview, and aren’t already a subscriber to Engaging Conflicts Today, please do two things: subscribe to the newsletter, and send an email with “Cloke” in the subject line to gn@gnconflictmanagement.com. You can subscribe through the box provided in the sidebar on the right!

October 16, 2006

Kenneth Cloke’s Locations Of Conflict and Techniques, Part Three

 

Here’s the final piece of Kenneth Cloke’s locations of conflict and related mediation techniques, taken from his new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution. Ken’s personal interview begins in this week’s issue of my newsletter, Engaging Conflicts Today — you can subscribe through the box provided in the sidebar on the right!

The remaining locations of conflict (at 71), and some suggested mediation techniques for each ‘by location” (at 78-85):

 

5. In our hearts, where attitudes become closed or open, withholding or forthcoming, self-centered or compassionate, revengeful or forgiving (heart techniques assisting people in engaging in heartfelt conversations and reaching reconciliation, such as asking direct, honest questions that encourage integrity and trust). (Note: according to Ken, this is where the greatest deficit in current models of mediation exists).

6. And in our systems, where cultures, contexts, conditions, and environments become adversarial or egalitarian, competitive or collaborative, autocratic or democratic (systems design techniques that attempt to resolve the systemic, contextual, cultural, and environmental sources of conflict in ways that can prevent future conflicts, such as using dialogue, coaching, and mentoring to alter entrenched behavior patterns).

Ken’s book can be purchased directly from his publisher, Janis Publications, here: http://www.janispublications.com.

October 14, 2006

Kenneth Cloke’s Locations Of Conflict and Techniques, Part Two

 

This continues the excerpt from Kenneth Cloke’s new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution, on locations of conflict, with suggested mediation techniques for each:

3. In our emotions, where anger, fear, jealousy, guilt, shame, and grief emanate and strive for release (emotional techniques using a subtle, sensitive, facilitative, empathetic approach, such as searching for emotional triggers).

4. In our spirits, where intentions, energy, life force, or chi become attached, intolerant, or unforgiving (spiritual techniques assisting people to move beyond resolution to forgiveness and increased mindfulness or awareness, such as asking questions that encourage responsibility for intentions, attitudes and choices).

See Monday’s post for the final two locations. Ken’s book can be purchased directly from his publisher, Janis Publications, here: http://www.janispublications.com. I’m interviewing him in the next issue of Engaging Conflicts Today — sign up in the sidebar to the right!

October 13, 2006

Kenneth Cloke’s Locations Of Conflict and Techniques, Part One

 

Kenneth Cloke’s The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution, is a book by an experienced mediator about many things, including his conclusions after many years of a rich and varied practice. Ken’s interview begins in the next issue of Engaging Conflicts Today, and he has given permission to excerpt portions of his book here — sign up for the newsletter today through the sidebar on the right!

Here’s part of his list of explanations why we get stuck in conflict, of distinct yet indivisible locations of conflict (at 71), and some suggested mediation techniques for each “by location” (at 78-85):

 

1. In our physical bodies, where stress is internalized and translated into chemicals that prepare us for aggression or defense (physical techniques that pay attention to body language, physical movement, and sensory awareness, such as using body language to counteract aggressive or defensive postures).

2. In our minds, where distinctions and judgments are formed that bolster our positions and justify aggressive or defensive reactions (mental techniques that resolve conflicts mentally, logically, sequentially, and intellectually, such as contracting and agreeing to work toward solutions).

I’ll be posting the rest over the next few days. Ken’s book can be purchased directly from his publisher, Janis Publications, here: http://www.janispublications.com.

October 12, 2006

Free Online Conflict Measure For Engaging Conflicts Today Sign-up!

We all live and work in the midst of conflicts — some big, some small; some intimate, some global; some physical, some emotional. Many of us work directly in handling conflict as part of our jobs or professions.

As I have posted earlier (see the post immediately before this one), I’m on a panel today on “marketing mediation excellence” — an online teleconference that will discuss uses of the internet for marketing. The internet is also a great and growing resource and vehicle for professional development (not just marketing development), and even the provisioning of conflict management services. (See my earlier posts about Cyberweek 2006 in the Wikis and Podcasts and Blogs, Oh My! category, or use the search box to find them — for more about online dispute resolution.)

I would love for you to subscribe to my newsletter, Engaging Conflicts Today, and there’s a box in the sidebar you can click on to subscribe. Each issue provides an indepth interview with a leader in law or mediation or in innovative business dealing with conflict issues; and more. Would you please give it a try and let me know how I can make it more interesting and useful for you? I’ve a special gift for everyone who sign up today — I will send you a link for a free, online assessment on how well you handle conflict. If for any reason who can’t sign up online through the sidebar box, please do one of the following: (1) sign up at http://www.gnconflictmanagement.com, or (2) send me an email with “subscribe” in the subject line, and with your email address, your full name and your postal mailing address in the body (email this to gn@gnconflictmanagement.com).

Would you please also pass this opportunity on to friends and colleagues you think might be interested.? Thank you!

October 2, 2006

Kenneth Cloke: Paths To Transcendence, Part Two

Last week I posted the first five of “ten paths to transcendence” identified in Kenneth Cloke’s new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution (see last week’s post for the first five and for Ken’s definition of transcendence). Here are the final five:

[Five of the] Ten Paths to Transcendence:

6. Craft a question that asks people to speak and listen directly from their heart

7. Work collaboratively to redesign and reform the cultures and systems that produced or reinforced the conflict.

8. Clarify and reinforce what was learned from the conflict, and use it to improve and evolve to higher levels of conflict and resolution.

9. Move the conversation toward forgiveness and reconciliation.

10. Design and execute a ritual of release, completion, and closure.

Ken’s book can be purchased directly from his publisher, Janis Publications.

September 28, 2006

Cyberweek 2006 Continues With Mediation Excellence Online

Over 400 people have been participating in the ongoing Cyberweek 2006 activities. I’m lucky enough to be helping with producing, promoting and presenting the three Cyberweek teleconferences, under John DeBruyn’s tutelage. John is an attorney and mediator in Denver who is fields ahead of most of us on what internet technology can do for us.

Tuesday our panel discussed the intersection of mediation, facilitation, coaching and teaching; yesterday, mediation excellence standards developing nationally, especially in Maryland and Colorado; and today’s panel discussion will include me and fellow bloggers Diane Levin Online Guide to Mediation, and and Robert Ambrogi’s Lawsites on the potential of blogs and blog-supported online activities and resources for professional development and networking. For more information go here: Mediation Excellence in Cyberspace. Participation is free and can be via either phone or Skype.

Kenneth Cloke: Paths to Transcendence, Part One

 

Kenneth Cloke’s new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution, is a book by an experienced mediator about many things, including his conclusions after many years of a rich and varied practice. Ken will be interviewed this fall and early winter in Engaging Conflicts Today, and has given permission to excerpt portions of his book here. In his book, he proposes and explores the transcendent mediation style (see this earlier post on styles of mediation, and this earlier post on his definition of transcendence). Here are the first five of his ten paths to transcendence – the final five will be posted next week:

[Five of the] Ten Paths to Transcendence:

 

1. Engage in committed, openhearted listening, as though your life depends on what you are about to hear.

2. Use a spotlight of narrow, focused attention and a floodlight of broad, sweeping awareness to clarify what is taking place beneath the surface.

3. Use dangerous empathy to search for the center of the conflict within yourself, then ask questions to discover whether the same might be true for others.

4. Use dangerous honesty to communicate your deepest understanding to others.

5. Use your heart to locate a heart space in the conversations, then open and expand it.

Ken’s book can be purchased directly from his publisher, Janis Publications.

September 26, 2006

Mediation Styles Include Eclectic

Kenneth Cloke’s new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution, is a book by an experienced mediator about many things, including his conclusions after many years of a rich and varied practice. Ken will be interviewed this fall and early winter in Engaging Conflicts Today, and has given permission to excerpt portions of his book here. He identifies seven mediation styles. There is not universal agreement about all of them, and there is dispute about some:

1. Conciliative

2. Evaluative or directive

3. Facilitative

4. Transformative

5. Spiritual, heart-based, or transcendent

6. Systems design

7. Eclectic

I’m especially interested in our thinking more about “eclectic,” or “protean” styles (see this earlier post about Peter Adler’s and Robert Benjamin’s “protean” mediation or negotiation style). People are different, circumstances and settings are different, people are different in different circumstances and settings ….

Ken’s book can be purchased directly from his publisher, Janis Publications: http://www.janispublications.com.

September 21, 2006

Five Philosophical Propositions on Conflict Resolution, Part Two

Kenneth Cloke’s new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution, is a book by an experienced mediator about many things, including his conclusions after many years of a rich and varied practice. Ken will be interviewed this fall and early winter in Engaging Conflicts Today, and has given permission to excerpt portions of his book here. Here’s a partial list of philosophical assumptions he makes about conflict — the earlier propositions were posted earlier in the week:

6. Chronic conflicts are systemic, and all systems, be they personal, familial, relational, organizational, social, economic, or political, defend themselves against change, even when it is essential for their survival.

7. Every conflict is holographic and systemic, so that each part contains and recapitulates the whole.

8. Every conflict reveals an internal crossroads, with each path branching and leading off in radically different directions.

9. Every conflict offers opportunities to evolve to higher levels of skill and awareness in how people respond to their opponents and problems.

10. At the center or heart of every conflict lies a pathway to resolution, forgiveness, and reconciliation.

Ken’s book can be purchased directly from his publisher, Janis Publications:

September 19, 2006

Five Philosophical Propositions on Conflict Resolution, Part One

Kenneth Cloke’s new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution, is a book by an experienced mediator about many things, including his conclusions after many years of a rich and varied practice. Ken will be interviewed this fall and early winter in Engaging Conflicts Today, and has given permission to excerpt portions of his book here. Here’s a partial list of philosophical assumptions he makes about conflict — the remaining propositions will be posted later in the week:

1. No two human beings are the same.

2. No single human being is the same from one moment to the next.

3. The interactions and relationships between human beings are complex, multidetermined, subtle, and unpredictable, if only because they involve two or more different, constantly changing individuals.

4. Conflicts are even more complex, multidetermined, subtle, and unpredictable.

5. Most conflicts take place beneath the surface, well below the superficial topics over which people are fighting, and often hidden from their conscious awareness.

Ken’s book can be purchased directly from his publisher, Janis Publications: http://www.janispublications.com.

September 15, 2006

Jim Melamed of Mediate.com Interviewed In Engaging Conflicts Today

Today’s issue of Engaging Conflicts Today is in the mail. We perhaps best know Jim Melamed through his innovative and entrepreneurial work at and through Mediate.com, which supports conflict specialists working to establish and maintain their niches. During the interview, after identifying some of his conflict resolution heros, Jim expanded on some of the programs sponsored by Mediate.com:

[T]his is exactly the purpose of the ‘Views from the Eye of the Storm’ project, to put the most capable faces on the field of mediation and to help both professionals and the public to best understand so many worthy endeavors. Leading mediators are great people doing great work and the combination is often jaw dropping. We are excited to sponsor a conference bringing together 100 of these leaders at Keystone CO Oct. 8-11, 2006, and we will also be video recording this ‘Consolidating Our Wisdom Conference’ as well. All of this is an example of our seeking to consolidate our best learning and then to use technology, both video and the Internet, to help best tell ‘the mediation story.’ I believe that these efforts are compelling.

The interview with Jim continues in Vol 1, #3 of the newsletter. If you haven’t already, please sign up today — it’s free and easy!

September 14, 2006

Why We Get Stuck In Conflict

Kenneth Cloke’s new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution, is a book by an experienced  mediator about many things, including his conclusions after many years of a rich and varied practice. Ken will be interviewed this fall and early winter in Engaging Conflicts Today, and has given permission to excerpt portions of his book here. Here’s his list of explanations why we get stuck in conflict:

Ten Reasons Why We Get Stuck in Conflict:

1.         Conflict defines us and gives our lives meaning.

2.         Conflict gives us energy.

3.         Conflict ennobles our misery.

4.         Conflict safeguards our personal space

5.         Conflict creates intimacy (even if it is only the transient, negative intimacy of fear, rage, attachment and loss).

6.         Conflict camouflages our weaknesses.

7.         Conflict powerfully communicates what we honestly feel (even while it may increase stress and emotional suffering in others).

8.         Conflict gets results (it forces others to heed us).

9.         Conflict makes us feel righteous (by encouraging us to believe we are opposing evil behaviors and rewarding those that are good).

10.       Conflict prompts change (which feels better than impasses and stagnation).

Ken’s book can be purchased directly from his publisher, Janis Publications, here: http://www.janispublications.com.

September 12, 2006

The Crossroads of Conflict, by Kenneth Cloke

Kenneth Cloke’s new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution, speaks from a transforming perspective to conflict resolution;in his book, he urges a goal of transcendence. Ken will be interviewed this fall and early winter in Engaging Conflicts Today, and has given permission to excerpt portions of his book here. I’ll start with some easy pieces — some of the basic definitions he uses:

Resolution … means working through the content, or underlying reasons for conflict, and abandoning the old ways of thinking and behaving that led to them. Transformation means altering the contour, form, or shape of the conflict, both within the parties and in their relationships, communications, and perceptions of the issues over which they are fighting. Transcendence means moving beyond form and content to change the context, system, environment, and meaning of the conflict. This implies that the parties have learned how to evolve, outgrown, or rise above what was keeping them stuck, and are now ready to handle a higher level of conflict and order of resolution.

Ken’s book can be purchased directly from his publisher, Janis Publications: http://www.janispublications.com.

September 5, 2006

Only Law Can Provide the Finality We Crave; Mediation Can Assist With Speedy Resolution To a Conflict

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 5:24 am

The dialogue between mediator David B. River and attorney mediator Rawle Andrews Jr., Esq. concludes today with Rawle’s post.

Like David River, I have really enjoyed this spirited exchange regarding the proper role of mediation and mediators in the dispute resolution process. Gini, I thank you again for your vision and courage in creating this website.

Although mediators might not see eye-to-eye on every nuance of Alternative Dispute Resolution (ADR), it is no stretch to declare at this point that most neutrals (regardless of pedigree) want to help adverse parties resolve their differences before a full blown trial or evidentiary hearing on the merits. As I am sure many long-time servers will recall, the opening questions for this Law and Mediation discussion centered around: (1) what mediators are best equipped to facilitate mediation; (2) the type of training, formal or informal, necessary to be an effective neutral; and (3) how mediators who are not also attorneys might avoid some of the pitfalls traditionally associated with ADR (i.e., unauthorized practice of law) when being of service to adverse parties.

As most readers know by now, I firmly believe that the Law (and the proper recognition of its role in all forms of dispute resolution) is critical to fully answering these questions. We are well past the days of Locke, Voltaire and Jefferson when we could speak philosophically about yielding to the Law’s will. We all know by now that we must follow the Law, or suffer the consequences if we fail to do so. At the same time, in crafting my various responses over these weeks, I have tried to be mindful of the delicate tightrope that all mediators must walk in trying to maintain the peace long enough to help adverse parties find and hold common ground. At the end of the day, however, if the peace is to be lasting, the participants must have the assurance of Finality, regardless of whether they find a resolution via mediation or the courts.

This truism of Finality, like the age old chicken and the egg theory, really starts and ends with how the parties appeared for mediation in the first instance. I am not aware that anyone has ever threatened to mediate an opponent “all the way to the Supreme Court”. So, it is fairly certain that in most, but not all instances, mediation is an “after-thought” that arises either because one party has already initiated a legal proceeding against the other, and mediation was either mandated by some other body (e.g., the Court Order or Statute) or the advocates for the parties suggested that the matter be discussed with a mediator before litigating half-cocked.

The fact that mediation is an “after-thought” does not denigrate its importance or utility. This is just an every day fact of life. The parties know it, if they have ever heard of mediation in the first place; veteran mediators know it (even if they are hesitant to acknowledge the fact publicly); and the Courts, with overcrowded dockets and dwindling resources, certainly know it, thus explaining the push for mandatory mediation around the country. If the converse were true, I suspect Hollywood would have created some prime-time drama or reality show by now that centers around mediation. It has not happened to my knowledge, and likely never will because that is just not where we are as a society. We want finality in life and in art, and life certainly seems to imitate art in the dispute resolution world, be it in the boardroom, courtroom or on television.

Consequently, the questions we have grappled with over these weeks start and end, in my view, with what did the complaining party really hope to gain by filing a legal action against the alleged wrongdoer in the first place. Regardless of any mixed-motives, an overriding reason likely is that the complainant believes that he or she has been slighted and wants to end the wrongdoing. Although mediation might help in this regard, it does not, and in fact, cannot guarantee the finality that comes from a court order. Mediation is all about resolution; and the introduction of what might be, in the context of judicial proceedings, excess facts and/or emotion can only complicate the system and imperil well-intentioned mediators who are not attorneys in the process. This is true even in cases where mediated settlements are breached, which happens quite frequently. In these situations, the only recourse left to the parties is to go back to court for a ruling.

Interestingly, even some appellate courts have instituted mandatory mediation programs in the United States. In these instances, the mediator almost always is a lawyer who works for the court, and the discussions with the parties (or their representatives) focus more on the strengths and weaknesses of the parties’ legal positions than the emotions that carried the dispute into the courtroom. Here again, the question is whether the parties can find common ground before the court of appeals enters a final order. There is nothing binding about this process. Mediation, even at this stage in the case, simply reflects a judicial temperament to balance the appellate court’s scarce resources with the parties’ need for finality. When the parties believe they have something to lose (or the question on appeal is acknowledged to be a close call), late stage ADR can work. However, if the appellant (i.e., the party filing the appeal) has already lost at the trial court level, there is little hope that additional “talk” on appeal is going to resolve the problem absent full briefing and, if permitted, oral argument before the court of appeals.

In closing, I must reiterate my belief that mediators (regardless of pedigree) act at their peril if they attempt or allow the mediation process to mirror a “fact-finding” process. The more facts (or emotions) on the line, the more strident the parties can become in their positions. Unfortunately, the more entrenched the parties become, the harder the mediator has to work to keep them together. All too often, the only velvet hammer left at some stage in the mediation discussions is to remind the parties of the very real threat of protracted litigation and all its attendant uncertainties if the dispute cannot mediate to a resolution. I have not seen anything over the past several weeks to dissuade me from this view.

For attorney mediators, placing this “hammer of litigation uncertainty” on the table is not a problem because Law (or a misunderstanding about legal rights) typically is at the core of the process. If mediators who are not attorneys can avoid this “Elephant in the Room”, it appears that they are the better for it. If they cannot, however, I see no end in sight to the very real concerns like those expressed in David River’s opening presentation: “In my private practice, without a J.D., I constantly walk the line of ‘unauthorized practice of law’… .” I do not believe David’s plight is a permanent obstacle; rather, it appears to be a problem of choice to either adhere and conform to the Law or knowingly straddle an uncertain fence.

Best wishes,

Rawle

This concludes the wonderful exchanges between my guests, David and Rawle, at least for now. Both generously shared their limited time and honest views with us, and I thank them. Both also have agreed to “stand by” for future posts. Please email me with questions you may have for them, or ideas for what you would like to see discussed. The “Engaging and Transforming Series” continues tomorrow, and on successive Wednesdays thereafter.

September 4, 2006

Engaging and Transforming Conflict — Different Conflict Orientations

Bernie Mayer in his influential book Beyond Neutrality: Confronting the Crisis in Conflict Resolution, differentiates between two orientations to conflict — engaging with it, and using it to seek transformation in the disputants. By the title of this blog, you could correctly guess that I think first of engaging, not transforming, conflict. In my judgment, Bernie’s conclusion is true in most circumstances: “I believe effective conflict interventions can result in the transformation of individuals and groups, but I do not think that there is any way to take this on as a primary goal of a conflict specialist without imposing our values and purposes on disputants.”

Mediator David River and attorney Rawle Andrews Jr. conclude their guest posts tomorrow (search the Those “Other “Conflict Specialists category for their 6+ week exchanges) – at least for now. Reread them, and the comments to them, with Bernie’s different conflict orientations in mind. Share your comments, publicly in the blog, or to me privately! In the meantime, on Wednesdays, I’ll continue the series on transformative mediation. It may help those of us more focused on engaging conflict to better understand the perspectives of our colleagues more focused on transformation. I hope it educates us all in helpful ways. In addition to facilitating Kristine Paranica, J.D.’s guest posts, I’ll excerpt parts of Kenneth Cloke’s new book, The Crossroads of Conflict: A Journey Into the Heart Of Dispute Resolution. Both Kristine and Ken will be interviewed this fall and early winter in Engaging Conflicts Today, as will Bernie Mayer.

August 24, 2006

Social Cooperation With the Law Is Foundational To the Power of the Law and Not the Other Way Around, By Guest David B. River

Filed under: Attorneys and Mediators - No Conflict Here!,Ethics — Gini @ 12:03 pm

Mediator David B. River responds to attorney mediator Rawle Andrews Jr., Esq. as they continue their dialogue about the respective roles and ethical obligations of mediators and attorney mediators.

Different Worldviews

I have really enjoyed the conversation with Rawle over the last few months, even though our back and forth posts don’t always seem to make much contact. I think this reflects that we are speaking from different views. Something Rawle said – “anarchy reigns in the absence of laws” – reminded me of my studies in nonviolent action. Specifically the writings of Gene Sharp in his discussion of power:

    One can see power as self-perpetuating, durable, not easily or quickly controlled or destroyed. Or political power can be viewed as fragile, always dependent for its strength and existence upon a replenishment of its sources by the cooperation of a multitude of institutions and people – cooperation which may or may not continue. The Politics of Nonviolent Action: Part I, 1973, p. 8.

I sense from Rawle’s posts that he sees the law as a powerful force that keeps order. I, on the other hand, tend to see the law as one outcome of social order and cooperation – it reflects our broad social agreement and relies on social cooperation to function. In other words, I see social cooperation with the law as foundational to the power of the law and not the other way around. Civil disobedience has shown that without cooperation, the law has no power.

The Law relies on the power of authority and sanction. It is functional when people respect and obey the law (authority) or see that the consequence of violating the law is more costly than obeying it (sanction). However, it can fail to deliver justice because people use many other sources of power. A few examples: the power of resources (time and money) allows people to “work around the law,” find loopholes, hire a superior lawyer, outspend their opponent, etc. The power of knowledge and expertise may give one party an unfair advantage over the other. The power of nuisance – simply willing to keep fighting – can cause an opponent to give up simply because it isn’t worth the fight. In many cases, knowing how to use the “’orderly’ resolution of disputes” provided by the courts gives people with abundant resources, knowledge and expertise an enormous advantage that has nothing to do with the intent of the law.

From this viewpoint, mediation is distinct and works with the fundamentals of social functioning – agreement and cooperation. Since it relies on voluntary participation, it must use an entirely different set of tools than authority or the threat of sanction, and therefore may be useful in places where the law does not hold sway or is actually a barrier to justice.

Skillful mediators draw people into a cooperative process not out of their authority or because they can force people into it, but because they respond to the real needs and interests of people in conflict and allow an honest negotiation based on a specific reality rather than broad legal precepts. Agreements reached may or may not have any relationship to a legal outcome in the minds of those parties involved in reaching an agreement.

So, here are the interesting questions to me: Does mediation pose a threat to the law? To justice? To social agreement? If Additional Dispute Resolution (ADR) techniques continue to grow, what will be the impact on our social understanding and functioning?

More on this next time.

Best wishes,

David

Rawle Andrews Jr., Esq. will respond next week.

August 23, 2006

Transformative Mediation and The Conflict Resolution Center

The fascinating exchange between David River and Rawle Andrews Jr. will continue shortly. In the meantime, I’ll start posts concerning transformative mediation, another “flavor” of mediation. The Conflict Resolution Center (CRC) is the Administrative Office for the Institute for the Study of Conflict Transformation (ISCT). Kristine Paranica, J.D., Director of the Conflict Resolution Center, serves as Administrative Director and Fellow of the ISCT. Kristine will also be a Guest Blogger, and will be interviewed in Engaging Conflicts Today this fall.

This is from the CRC’s website:
ABOUT THE CONFLICT RESOLUTION CENTER

Conflict Resolution Center homeNorth Dakota , the Peace Garden State, is home to a unique organization whose staff and volunteers offer support and training for those people committed to fostering understanding and peace. The Conflict Resolution Center, located on the campus of the University of North Dakota, is a non-profit community mediation and training organization. The CRC was established in 1988 by a group of UND faculty and staff in order to provide mediation services to the UND campus community. Since its inception, it has expanded its services to meet the growing conflict management needs of its clientele. It now also offers conflict management training/education, mediation training, and facilitation. The CRC is the only community mediation and training center in North Dakota, South Dakota, and Montana. Its mission statement: To transform the fundamental human experience of conflict by fostering greater understanding and peace.

The CRC is the Administrative Office for the Institute for the Study of Conflict Transformation (www.transformativemediation.org ). The ISCT is a national think-tank supported by a consortium of universities including the University of North Dakota, Hofstra Law School, Temple University, and James Madison University. Kristine Paranica, Director, serves as Administrative Director and Fellow; member James Antes, Ph.D., serves as Fellow; and member Daniel Bjerknes serves as an Associate of the Institute. The Institute provides the premier resources for the theory and practice of Transformative Mediation in the world.

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