Yeah I know, most folk who read this blog are just back in harness after a long lazy summer.
Well, me and my blog are off to sit under a tree on a Pacific Island after a cold winter.
Well... not just me and the blog, get a life!...actually my best mate, the kids, the dog...
Hmmm, maybe the blog won't fit after all and you probably can't fly with them these days anyway, so yeah, no blog - or dog for that matter.
See you in a while crocodile.
I thought it only happened in role-plays.
I was wrong.
'The threatened walk out is a beginning mediator’s worst fear. After all, how can you continue a mediation session if one party walks out?...The good news is that the threatened walk out is generally more of a cry for help than it is an actual desire to leave the mediation session. Once you understand what the threatened walk out is about, there are things you can do to help make sure it doesn’t happen... [read more]
I came home in bad weather on the plane today seated next to a colleague.
Rather than my usual trick of listening for changes to the pitch of the engines (and hoping the young guy up front has given the stick to the old bloke with the gravelly voice beside him) we had an animated debate about coaching parties in mediation.
I don't mean conflict (preventive) coaching, I mean during the mediation itself... as I think I am being asked for strategic advice as mediator more than I used to be.
Is it OK to give it? Is it OK to get it?
Is it in the role description of a third party neutral? Is it legal advice? Can you stay in the middle if you are assisting one party at his/her/its invitation and not the other?
I am mostly asked about 2 things;
1. 'how can we trust the other side/have the other side trust us', and
2. 'how can we take positions/make concessions in an appropriate way'
And I do coach on these and other aspects in many mediations -- I'm OK with that, my friend was not.
I often ask parties to practise their next play and to rehearse their response to the spectrum of reactions they may get back.
I often seek to persuade lawyers to omit or at least reframe a speech they are about to make and discuss how they might best say it, sometimes asking how they can give less of a speech, and more of a dialogue or how the message can be got across less defensively or, on one occasion, more aggressively.
The hard part is coaching when you have not been invited to do so. Should you and how do you?
I know being tentative works here, offering up suggestions without a lecture, its the Mary Poppins' spoonful of sugar go down-wown approach.
Check out Conflict Coaching – When It Works And When It Doesn't and Mediation Coaching: A Form Of Conflict Coaching
The first of the godwits arrived here yesterday.
Run ragged after working their passage over the non-stop 11,000km flight from Alaska, Christchurch rang its bells to guide them in, as it does every year.
Spring. Good for the soul, renewing even.
And I got to go gardening in the afternoon, courtesy of some sensible lawyering - good counsel, in the old fashioned way...wonderfully compassionate to clients in a bind, but appropriately detached.
Not forever trying to squeeze the pips and content to leave just a little extra on the table so no one felt taken.
And quick.
Can't get response from seller
In a mean fight?
A while back I posted on the thorny debate around mediators and subject matter expertise.
Lela Love of the Kukin Program for Conflict Resolution at Benjamin N. Cardozo of Law in New York City and co-author of the "Intersection of Evaluation by Mediators and Informed Consent: Warning the Unwary" investigates the popular notion in some quarters that a mediator must have expertise in the subject of the debate.
'This article will explore principles to guide mediators in responsibly performing their duty of ensuring that parties give their informed consent prior to a mediator jumping into a requested evaluative or decisional role. In articulating principles and guidelines, we will have to answer: What should be said to parties? When should it be said? How can consent be given?'
And this is the kicker - should a mediator providing legal analysis be held to the same standard of care as a lawyer providing legal advice to a client?... depends, but generally, damn straight they should.
While we are on the subject of SME, those of us mediating IT disputes may find some take-away mediator questions in this July 06 article 'What to Do When an IT Contract Hits Your Desk –20 Key Questions'
Congratulations to Diane Levin over at Online Guide To Mediation who is about to put up her 400th post.
With 75,000 new weblogs created every day, non bloggers may not realise how much noise there is out there and the buzz bloggers get when we are read by a largely unseen and silent audience.
Diane's first post was January 12, 2005 and look at how much off and online effort has gone into her 400 wonderfully generous posts since - for instance, this well researched post on mediator certification.
With quirky posts like 'Mediation is not 'meditation' with a typo' or more serious pieces like 'What to look for in basic mediation training' the Online Guide has now attained the exalted position as a must read blog for mediators and is the acknowledged leader of our small blogging community.
Along with the groundbreaking, see and be seen at, Directory of ADR Blogs and the ADR Blog Web Ring the Online Guide continues to set the standard for things mediation online.
'The most compelling, cutting-edge, honest legal writing being produced in this country today is happening on the Internet, and the crop improves daily... it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print.'
The American Lawyer 'Blawgs on a Roll'
3. Permitting settlement negotiations to begin prematurely - prior to permitting the parties to vent or prior to risk analysis and reality testing. [Thanks to Stephen A. Hochman for the list - the links are mine]
1. Failing to get the right people at the table.
2. Failing to explain the mediator's role as "agent of reality."
4. Failing to orchestrate the negotiations by discouraging "out of the ballpark" offers or demands or by discouraging moves that send the wrong signal.
5. Failing to recognize that unrealistic expectations must be lowered gradually.
6. Being evaluative (a) too early or (b) in a joint session.
7. Failing to suggest ways to avoid reactive devaluation of sensible settlement proposals for the adversary.
8. Believing "bottom line" offers or demands (see also Michael Wheeler's Is that really your best offer?)
9. Failing to "test the waters" before making a mediator's proposal.
10. Being impatient or failing to be persistent or giving up prematurely
Yeah well, I'm not sure that I get the whole 'mediators can learn from improv comedy' thing to be honest...
Call me old fashioned, but I have just sat through a talk on what skills to bring to the table by a mediator/academic who, according to a flowery CV, "mostly teaches"; ergo - who mostly does not mediate.
Am I right or am I right?... if you're gonna talk about this stuff for money, it seems to me that you gotta do this stuff for money.
Chris Honeyman takes a look at the whole misconnect between academics and practitioners in his Theory to Practice Project - Here there be Monsters;
'Do your parties ever exhibit reactive devaluation? Has loss aversion ever impeded one of your agreements? If these basic conflict resolution concepts sound familiar, give yourself a pat on the back.
But if you have never heard of them, don't worry - you're not alone and you're not at fault. The fault lies with the relationship - or more accurately, the lack of relationships - between the people who study conflict resolution and the people who practice it....
Why do scholars and practitioners continue to ignore each other? Why haven't scholars and practitioners gotten along?
It seems there out some good reasons and some not so good'....[read more]
I have taken a bit of off-line flack over my 'L.A is la la' comment in my last post.
I didn't mean to offend, sorry.
Jeff Kichaven's 14 August Daily Journal Newswire article What Attorneys Want in Mediators and How To Provide It is a good piece.
Having recently surveyed 50 'top-flight' lawyers, this is what he found...
'[lawyers] ask one another whether mediators are good at figuring out ways to explain things to their clients that work better than the ways the lawyers were able to devise on their own - right-brain functioning, not exactly most lawyers' stock-in-trade. It is not logic. It is not argument. It is not debate. Call it psychology, call it persuasion, call it empathy, call it what you will. It's the ability to get on wavelength with people quickly, sincerely and meaningfully.
And it's the talent that you need to earn the big bucks.'...[read more]
Subscibe to the Daily Journal
Check out Jeff's web site and tell me if this ain't a piece of cyberspace marking the confluence of Alan Shore's 'L.A. la la' and ADR.
