Archive for June, 2009

Online Dispute Resolution

June 30, 2009

Recently I had a conversation with someone in regards to Online Dispute Resolution (ODR) and how the person thought it had less human interaction compared to traditional ADR methods. I responded saying I actually think instead of viewing as ‘less’ or ‘more’, it is another choice for the parties. ODR is a new form of human interaction.
It reminds me of a teaching of impermanence– nothing stays the same regardless of how much you like or dislike it. ODR has arrived because people find it useful with the growing use of the Internet and computers. It does not mean it is for everyone and it does not have to be. It is just like hybrids versions of ADR– new ones keep popping up as people’s preferences change and evolve.

The variety of ADR services, now including ODR/iDR I think is reflective of the world we currently live in. Yes, we are ‘global citizens’ more now than ever but there is still that uniqueness that is present and should be acknowledged. Mediation via email or txt is str8 2 da pt 4 sum ppl & that is a good thing.

No idea what that means? No idea what the LOL image means? Embrace technology- Learn text talk here.
For others, letting some machine automate some number that is supposed to make both sides happy works for them. For the stubborn and ancient dinosaurs, there is face to face mediation still. Of course the last comment is sarcastic but my point is look how ADR has evolved. It is an example of the impermanence I mentioned earlier. As times change, it is only natural that the way we as conflict resolvers look at conflict and then appropriately adjust to the parties needs. Let’s not forget, it is their process.
Self determination (recently discussed here) is a major reason people turn to ADR. People like having a say in how issues that directly affect them will be decided. Conflict could be broken down into three levels- substantive, psychological and procedural. It is in the third, procedural, where the new world of ODR has given the parties yet another choice on how to interact with the other party.

Court Related Mediation Study

June 29, 2009

Maria Volpe, overseer of the NYC-DR listserv, posted this great information recently that I thought many of the readers would find interesting:

To all: since research on court-related mediation programs may be of interest to some on this listserv, I am sending the following bibliography of evaluations conducted from the mid-1980s through 2006.

Best, Maria From the Intro:

This bibliography brings together evaluations of court-related mediation programs that were conducted from the mid-1980s through 2006, with the addition of some earlier, seminal studies. The studies evaluate programs that cover a range of case types, including civil, family, small claims, victim-offender, workers’ compensation, bankruptcy, and appellate cases. The evaluations vary considerably in methodology: some look only at mediated cases; some compare mediated cases to cases that were not mediated; and some examine the impact of mediation on all cases, whether mediated or not.

You can join the NYC-DR Listserv [here]

Friday News Round Up

June 26, 2009

A Network Theory of Conflict Resolution

Definitely worth a read:
Creating an “energy landscape” from networks of friends and enemies could lead to a better way of resolving disputes.

“Suppose you have two friends who detest each other. The resulting awkwardness often resolves itself in one of two ways: either you drop one of your friends, or they find a way to reconcile,” say Steve Strogatz and buddies from Cornell University. They go on to add that the overall social stress in these situations corresponds to a kind of energy that relaxes over time as relationships switch from hostility to friendship (or vice versa).
Read more [here], I know you want to, especially after glancing at that exciting graphic.

Bring Mediation In House Is Cost Effective
This story has been making the rounds on a few discussion groups:
…Resolving disputes through alternative dispute resolution, as opposed to litigation, is one way that a corporation can save money. ADR can also save the corporation time because it is often less disruptive to business operations than litigation. And, when it is used to resolve disputes with customers, it can have a positive impact on customer relations. Mediation, in particular, can be an effective way to resolve customer disputes in a way that is better for everyone involved.

…The University of Pittsburgh Medical Center began utilizing mediation about five years ago as a way to resolve certain legal disputes and grievances that patients or families (the center’s “customers”) have with the system.
Full article [here]

Maine Adds Foreclosure Mediation
...The basic result of this law is that every person being foreclosed upon now has the right to mediation, if they so choose (“opt-in”) by filling out and returning a simple form. The model program on which this law is based originated in Connecticut.
Read more [here]

Preaching To The Choir
Yes, as the headline says and I know you heard and read it plenty of times, but read it again- the benefits of court connected mediation. This one is from Reno: Click here for the article.
In all cases, the mediators use a “facilitative model,” the executive director said. After assembling in a conference room, the mediators work with the parties to identify the problems and possible solutions. Unlike in court, non-monetary solutions, such as repairing or returning property, are possible. If a decision is reached, it comes from the parties.
…The center’s success rate–more than 90 percent, according to its Web site–is higher than the national average, he said.

Selective Perception

June 25, 2009

Selective Perception
One of the many ‘evil’ traits that frequently are displayed by parties in mediation is selective perception. People form their own idea of an event or situation and then anything that is said or information that arises after the fact which contradicts their opinion is dismissed or ignored.

I say it is ‘evil’ as selective perception hinders the process of getting the parties to work in a collaborative and cooperative mindset. Selective perception does not allow the party to see and understand the interests of the other party.

As the mediator it is important to realize this is being displayed. I think it is important for a mediator to know the names of behaviors and actions such as selective perception and other attribution biases listed [here]. Sure, a good mediator can help move the party away from a hindering position while not knowing the name of the act but it makes things easier knowing it because then it will be easier to respond accordingly. Step one is naming it, while step two would be properly responding.

Getting the party to open up more about their thought process behind their position can not only help display a potential selective perception to you, but it then can also be picked up by him or her- the one displaying it.

If the person does not pick up on it, and then after the other party presents their side of the event, many times, what I do is ask the first party something is along the lines of, “It sounds like party B viewed the event/situation different to way you described it. Now that you have heard his/her version, what do you think?” It might seem unnatural to ask an open-ended question but by doing it this way it diminishes the chance for a one word answer. The more they talk, the more they think about what they are saying and going to say.

A note I would like to mention is I do this with both parties. If I were to do this type of questioning with just one party it could present the illusion I am picking sides and trying to get one side to change their mind. Checking in with party A after party B has spoken (and vice versa) is a way to ensure they are effectively listening as well as opening their mind to the other side’s viewpoint. Promoting empathy is crucial to assist the party(s) move away from their selective perception. I tend to stress that understanding the other side’s point of view is not agreeing with them.
In order for an agreement to be reached in mediation, I tell them both sides have to agree. As simple and possibly silly it might sound, I think reminding the parties if an agreement is possible of being achieved, each one needs to be able to understand the other.
Enjoy and I hope this little ‘golden nugget’ helps.

Self Determination

June 23, 2009

We all know a common benefit of mediation is self-determination. That is one of the main differences I think mediation has compared to other methods of trying to resolve your issue especially compared to litigation.

What happens when you do not get to choose the mediator? Sometimes it is a problem, but other times, no one cares.

An example of it not being an issue is in most civil court related mediation programs, the mediators follow a rotation and it is not an issue. You get whoever is up next and everyone is fine with it.

Now switch over the New York State Senate, which has been inactive for two weeks due to a ‘coup’ by the Republican Party leaving the Senate 31 republicans and 31 democrats. What does ‘even’ mean here? It means nothing is getting done. They can not agree on anything and there is no legislation even discussed.

Governor Paterson has tried to intervene by appointing two mediators, one democrat and one republican. Sounds good, right? Sounds fair, one guy from each party?

Guess again, spokesman for State Senator and sort-of Majority Leader Dean Skelos (R) said this, “This is total bulls – – -, and we’re not buying it. “

Paterson, who is a democrat did not get any better comments from members of his own party. Two noteworthy comments are:

“How does someone who is not a party to a dispute think he can pick mediators and impose them without even checking with the disputants?” asked a top Democrat who has been trying to settle the struggle.

“It looks like a governor trying to be relevant and it’s not going to move the process along.”

Again, these are people from his own party!

What could one of the reasons you might be asking for such an uproar?

This might be it:

“How does someone who is not a party to a dispute think he can pick mediators and impose them without even checking with the disputants?” asked a top Democrat who has been trying to settle the struggle.”

So yes, self determination can start with the selection of the mediator(s) and not allowing the parties can have an adverse affect, regardless of the intentions. Just ask Governor Paterson.

Quotes are from the NY Post article [here].

Keeping The Parties Informed

June 22, 2009

The mediation process is sometimes followed in the steps you had all planned out and sometimes it goes in a completely different direction. Regardless, planning ahead and making sure you have each step in your mind can be extremely beneficial.

A quick recap of the steps of mediation are (based on my training with Safe Horizon Mediation):

1. Introduction
2. Opening Statements
3. Gathering More Information
4. Developing an Agenda
5. Discussion On Interests
6. Generating Options
7. Evaluating Options
8. Writing The Agreement

The purpose of making sure you have a road map is not just to help keep you on track but also the parties. The mediation is an attempt to find a mutually beneficial solution to the dispute/conflict the two parties are having that is better than their alternative. As the mediator, not having the mindset of the proper order mentioned above could be a disaster. Not only not having them in order could be detrimental, but also forgetting certain stages can also have an adverse effect.

It is also important to let the parties know of the plan of the next few hours. No one likes not knowing the process they are involved in or the method of how things will proceed. The Office of the Ombuds at the University of Hawaii compares a poorly organized meeting to the following (note: I changed ‘meeting’ to ‘mediation’ below):

How is mediation like taking a flight on an airplane? They both need to be carefully designed to get you where you want to go…

Would you board a plane under the following conditions?
· The destination is described as “somewhere in the general vicinity of Boston.”
· The passengers are not sure why they are on this plane.
· The aircraft does not have effective radar for direction finding.
· The aircraft does not have mechanisms for dealing with unexpected turbulence.
· The flight crewmembers are not clear about their respective roles and responsibilities.
· There may not be enough fuel to land the plane. If you’re not sure you would get on a plane under these conditions, good! You may also want to create a higher standard for the mediation you are involved in

After I first read that, I found it funny because obviously one would never board a plane under any of those conditions. It could be easily overlooked giving the parties an explanation of how the mediation will proceed so hopefully this little reminder will do just that- remind you to keep the parties informed.

The Ombuds Office uses the acronym OARR- Outcomes, Agenda, Roles and Responsibilities, and Rules as a way to properly prepare yourself and others (read more on OARR here).

Incorporating OARR in your opening statement could help accomplish the task of ensuring the parities know how things will go. The best way I do this is via the opening statement and can easily be done in a few sentences taking only a minute. It is easy to do, but also easy to forget.



June 19, 2009

NYC & Foreclosure Mediation on the Horizon?
NYC Mayor Michael Bloomberg recently endorsed a proposal to create mandatory mediation in foreclosures in New York City. The program he said would be based on the successful model currently in use in Philadelphia. That is the good news.
The bad news is it will require passage at the state level which currently has the NYS Senate embroiled in more-infighting-than-usual with the Senate not having an official session in days.
Read the full story [here]
here’s another story going further into the Philadelphia story and how other cities are trying to replicate them “US mayors urge states to require mortgage mediation” [here]

Oslo Mediator’s Conference Opens
The Oslo Forum 09 opens on Tuesday. The Forum seeks to provide diverse, frank and discreet discussions between top mediators and other key actors from around the world on major issues affecting peace and conflict today.
Full story [here]

Marquette law school to run foreclosure mediation program
The Marquette University Law School will provide mediation between lenders and residential borrowers facing foreclosure under a program funded with proceeds from a successful lawsuit against mortgage lender Countrywide Financial Corp.
Full story [here]

Mediation offers business opportunity for attorneys
The first class included 19 members, but its ranks have grown to over 500.
Florida Supreme Court Chief Justice Joseph Boyd and Florida State College of Law Dean Talbot D’Alemberte helped establish the Florida Dispute Resolution Center (DRC) in 1986 and it provided a statewide center for education, training and research in alternative dispute resolution. One of the functions of the DRC is the certification of mediators and mediation training programs. The first applicants certified to practice in the Fourth Judicial Circuit earned certification in 1991 and that group has grown from about 20 to over 500 people practicing in four different fields: county, circuit, family and dependency.

Full story [here]

‘On The Move’
Respected Construction Attorneys James F. Nagle and Douglas S. OlesJoin JAMS Global Engineering and Construction Group
June 15, 2009 – SEATTLE – Respected construction attorneys James F. Nagle and Douglas S. Oles announced today that they have joined the Global Engineering and Construction Group of JAMS, The Resolution Experts, the nation’s largest private provider of mediation and arbitration services. They will be based in JAMS Seattle Resolution Center. Both Mr. Nagle and Mr. Oles have extensive experience resolving large-scale construction disputes.
Full press release [here]

United States Institute of Peace New Website Design
THE USIP has recently redesigned its website, have a look [here]. In case you forgot or for some odd reason you never read it when it was originally posted, they offer free online training certificate programs. Read more about it [here] and all about their multi-media resource section for peacemakers [here].

Have an interesting mediation or ADR related story? Send it to me at

DRC-NY Listserv Proposal

June 15, 2009

NYC-DR Listserv Proposal

The original blog posting on this issue is [here] with many comments posted within the posting

[Here] is an update on this “Web 2.Oh!?! issue

As my follow up to the recent NYC-DR listserv cavalcade of comments, I thought I would post a separate posting on Maria Volpe’s (the listserv administrator) comments as well as mine. As mentioned [here], there are two issues. The first is the people’s opinions to the original post. I will not go into this issue but rather issue two is what seems to be rocking the foundation of the listserv that has been around since 2001. Some people like the numerous replies to a topic while others feel the listserv is not the place to be inundated with dozens of emails. They signed up to get information, not people’s opinions.
Maria’s method to handle this is as follows:
Proposed strategy: Between now and the next monthly NYC-DR Roundtable Breakfast on July 2nd,
[1] Solicitation of feedback: please send me your thoughts about facilitating information exchange and discussion among those interested in dispute and conflict resolution, peacemaking, facilitation, dialogue, restorative justice, violence prevention, social justice and related fields in the New York City metropolitan area. Send your emails to me at not the listserv
[2] Feedback analysis: all responses that are sent by July 1st will be collected and analyzed;
[3] Informal discussion: after the NYC-DR Roundtable Breakfast on July 2nd at 10am, everyone who is interested in participating in an informal brainstorming discussion about options is invited to join in [by the way, the July speaker will be Camilo Azcarate, Manager of Mediation Services at the World Bank];
[4] Listserv Update: relevant information will be posted on the listserv shortly after the July 2nd meeting.
In sum, between now and July 2nd, please send me your thoughts about managing the communication process. Your feedback will be shared with the group on July 2nd. The easiest way to respond to me is to press reply or write to

My humble opinion is there is a benefit in moving the listserv to another platform. Moving the listserv to a web based platform like how a blog (but not an actual blog!) is set up I think might get everyone to a win-win resolution. Using the platform similar to a blog, everyone can sign up and receive comments the same exact way they currently do. Here is the big change. The new platform will allow people to post their comments directly to the topic. Anyone else can then post their comments to the original topic OR the already listed comments.
Still with me? (Drum roll please) and here comes my version of the win-win resolution.

Part I- you can sign up to the new format of the listserv and get only emails of new topics. This is the same as you were doing it always nothing changes.
Part II- You can visit the new format by going to a website address. You no longer have to be a subscriber.
Part III- Options of subscribing. You can subscribe to the new version of the listserv the following ways:
1) Just receive topic posts
2) Sign up to individual topics to receive notification each time someone comments.
To go further in point 2- it allows many more options. How? Here are some examples:

Logan visits the web address occasionally to see what has been posted. He gets to see news and trainings and also he gets to read some comments. He receives no emails.
Kara subscribed to the new format to be notified of every new topic posted. She likes getting up to date information on what’s going on and subscribing to the news, training and articles posted by a reliable source is important to her.
Ignatius is not signed up like Logan and during a random visit, has a really strong opinion on a topic posted. He posts his comment and moves on.

Danielle is signed up like Kara and also like Ignatius, has a really strong opinion on a topic posted. She posts her comment and moves on.
Franco is signed up to receive emails of each topic posting. One topic in particular he found interesting and posted a comment. He signed up to be notified of future comments and now is engaged in a beneficial conversation with his peers.
Veronica is not a listserv subscriber but loves the back and forth comments on a certain topic so she subscribes to that particular topic AND comments. Anytime anyone responds to the topic she will now receive an email.
Tenzin is not on the listserv found a topic of interest, found the comments interesting and now has moved on.
I have attempted to post each possible point of view, and how the new system can meet each of those view points. I believe that each reader fits into the role of Logan, Kara, Ignatius, Danielle, Franco, Veronica or Tenzin. The new proposed format even allows you to change in between those options. Real life or the old Web 1.0 does not allow that!
If this did not make sense, check this link for a chart version of the proposal.

Everything changes. Nothing stays the same. Let’s look at this issue together and try to move forward together. The listserv in its current format I think might be part of the old way of doing things. There are many interests in such a large group. The current format is not accommodating everyone and with new technology presenting itself since the listserv’s founding almost eight years ago, why not embrace this new technology to advance our great group?
If any of this is confusing, I will happily answer any questions. Of course another option, which I think is reasonable as well, is to just leave it as is!

Web 2.Oh!

June 14, 2009

Web 2.Oh!

Wow, what a couple of weeks it has been in the ADR World-Wide-Web! Over at the NYC-DR listserv someone two weeks ago posted a request for facilitators between a certain age range. This created a firestorm of response. Some were very well written and opinions from both sides were in depth. Trying to keep my opinion aside (for as long as I can), there was a noticeable amount of people on the listserv that objected to all the opinions being raised. To keep things in perspective, there are approximately 1,500 people on the list.

The web, in this case a listserv, is a valuable resource that allows many different people, from many different places to express many different opinions. When is ‘many’ too many though?

If you want to read the original message and some of the featured responses, read my posting [here].

So how do you properly run a listserv that meets the needs of everyone? I’ll answer that very quickly by saying it is impossible to make everyone happy all the time. The listserv statement does clearly say the following:

Before going into the changes suggested by members, I wanted to look deeper into the issue. There are actually two issues the way I see it. First, the issue is the original post and if people thought it was fair to put such a limit on a request (it was age restrictions in case you old people forgot!). The second issue is I think is the massive amount of replies it received resulting in issue two- should such discussions remain on a listserv?

Perhaps the ‘Word of the Day’ is autonomy. “The Greater the autonomy we exercise, the greater the risk that our actions will be perceived by another person as impinging on their autonomy.”
[1] Roger Fisher’s passage here is spot on. One side was suggesting it continue as they enjoyed the conversation. The other side, not enjoying it (to put it mildly in some cases), wanted it moved away.

Those who liked it suggested people for those who did not to simply delete the messages or subscribe to a weekly digest.

In a ‘Web 2.Oh?’ moment, I found it shocking that in this day and age one’s email inbox could reach capacity from the back and forth responses. A certain subscriber gave the real example stating AAA tried contacting her for a case but could not as her AOL inbox was full. Just an aside, I do not suggest using AOL for work email, make the change to a service like Gmail where the storage capacity is much larger.

I wonder if any of these suggestions are done with empathy? Were people looking to continue their interests while meeting the others as well? This seems like an obvious example of a dispute with a partial basis on varying interests. Initially, I think a false consensus bias might have played a part as well.

The above comments I think applies to the other side as well. Suggesting it be moved over to a blog to continue the in depth discussion rightly solves their own inbox flooding problem. However, is there the chance the other can view this as fixing a problem that does not exist? I met the wishes of this request by posting the original posting and some responses (see it here) and as I said privately to one member via email something along the lines of, “I honestly do not think anyone will post their comments here [at the blog] as the suggestion was made not by the people commenting but rather those who do not want to read the comments. They did not ask for this and because of potentially being viewed as them being pushed here (without choice) I think they will shun it.”

That is exactly what will happen. I did receive many emails privately thanking me for posting it and there was a peak in visits to the blog (not hard to do when it is just dad and mom reading this usually) but zero public comments or discussion. Perhaps chalk a line on the ‘no one likes being told what to do’ column.

So what is the next step? Maria has made some suggestions. I suggest before reading them, ask yourself the questions I ask below and compare it to what she suggests.

Of course I cannot end this without mentioning my opinion. I am not really choosing sides but what I do want to add is this discussion I believe allows us to interact on a peer level that usually is only found, if you are lucky enough, after spending a couple of hundred bucks to attend a training or conference. This engagement is accessible to all. There is no fee charged by Maria to be a member.

There are many topics I would think would be ripe for such powerful, thought provoking responses. Caucusing, certification and hybrid models are three off the top of my head that I think are interests that would appeal to the majority of members. Is the preliminary question where should it be held though?

We are all knee deep in what we are supposed to do as professionals- stopping the cycle of verbal pushing, name calling (arguably happened) and self serving suggestions to search for a solution where everyone’s interests are met. I am the first to admit it is much easier to be a neutral than a party involved in these types of situations as there is for the most part a void of emotions compared to being involved.

Additionally I am not poking at autonomy- theirs or mine. I hope that for all those involved (bystanders too) this will allow you to reflect on what would you do if this issue was brought to you as a third party neutral? How will you handle all the emotions? What could you do to get each side to empathize? What is each side’s BATNA? Are the relationships, on the many different levels, important?

[1] Fisher, Shapiro (Penguin, 2005 Beyond Reason) page 74


June 13, 2009

More on the DRC-NY Listserv
For those of you wondering what’s the latest with the current situation regarding the DRC-NY Listserv, this Monday I will be posting my proposal on how to possible find the ‘win-win’ situation as well as on Tuesday will be another recap of the situation. You can read the original post [here].

New Era For Mediation
THE chairman of Sale Sharks[professional UK Rugby team] has been recruited to a high-profile national panel of senior lawyers and accountants to provide a new level of corporate mediation.Quentin Smith, who has been an independent mediator since leaving law firm Addleshaw Goddard two years ago, is the only northern representative on the panel, which is headed by Lord Woolf and Cherie Booth QC.
The new body is a collaboration between the Institute of Chartered Accountants in England and Wales (ICAEW) and the mediators’ professional body the Alternative Dispute Resolution Group (ADR). It will focus on issues such as contracts, intellectual property rights and lending agreements.
Full article [here]

Role For An Ombudsman?
This is not an article but rather a reflection by me. Given the recent more-than-usual craziness in the New York State Senate, would it have help, or even currently help, if there was an Ombudsman for the Senate? Could he/she been able to release a report on findings regarding the situation? Even if one was released weeks from now, would it be beneficial? The Ombuds could also serve as a confidential mediator in this situation as well. Thoughts?

Have Mediation Skills, Will Travel
10 June 2009 – The United Nations special on-call mediation team has helped respond to sticky problems all over the globe in their first year – and should do more, according to a top official at the world body.
Full article [here]

‘Special Master’ Feinberg to Take on Bankers
June 11 (Bloomberg) — Kenneth R. Feinberg, who mediated disputes over compensation for damages from the Sept. 11 attacks and Agent Orange, must now separate bankers from their paychecks.
Feinberg, named yesterday as the Obama administration’s “special master” on executive pay, will have authority to regulate compensation for 175 executives at seven companies that received “exceptional” government help.

“I’m not a czar who is going to impose my will,” Feinberg, an opera fan, said while listening to Verdi’s “Nabucco” in his law office. “My mandate is to help determine compensation levels for the 175 people. I will consult with them and work with them.”
Read more [here]

Freedom of Information Office Appoints First Ombudsman
WASHINGTON (AP) — The National Archives appointed a veteran open government advocate Wednesday to be the first Freedom of Information Act ombudsman, empowered to mediate disputes between people who request data and the agencies that have it.
Miriam Nisbet, who now heads the information society division of the United Nations Educational Scientific and Cultural Organization in Paris, was chosen to direct the Archives’ new Office of Government Information Services, acting Archivist Adrienne Thomas announced.

More [here]

Irish Minister To Launch Elder Mediation Program
A NEW mediation service dealing with problems of families and carers with family members suffering from dementia and similar diseases will be launched this week by Áine Brady, Minister of State for Older People.
The service is a pilot project involving collaboration between the Alzheimer Society of Ireland and Northside Community Law Foundation. Its launch coincides with an international symposium on elderly mediation which starts today in the Stillorgan Park Hotel, Dublin.

Full article [here]

Mediation Helps, Even in Jail!
Sally Garnett is hardly a cheerleader for the Santa Clara County District Attorney’s Office. After all, prosecutors threw the book at her recently for “lifting” her housemate’s jewelry, she says, landing her in jail for three months.
…After prepaying $63.60 for phone service from inside the jail, Garnett says the company she contracted with didn’t deliver a single call. Prepaying relieves family and friends of the cost of a collect call from jail — the only kind inmates are allowed to make.
Instead of busting her, this time the district attorney’s office was ready to lend her a hand with its busy but little-known Consumer Protection Unit. Its members not only fight big fraud cases in court, but also attempt to resolve consumer disputes — like Garnett’s — through free mediation.
No case is too small for the six volunteers and three paid mediators…

Full article [here]