Archive for July, 2009

ADR News

July 31, 2009

‘Justice Out Of Reach For Most’
FORMER High Court judge Michael Kirby says Australia should follow the English model of dispute resolution and encourage parties to mediate before resorting to court action, to avoid time-consuming, costly and public trials.Mr Kirby, who addressed the Institute of Arbitrators and Mediators Australia yesterday for the first time since becoming national president, said it was too costly for many people to access the nation’s “Rolls-Royce” court system, and mediation offered an alternative.”It can be quicker, cheaper, more available, more confidential and be in the hands of the parties,” Mr Kirby said in Adelaide.
Read all the article [here]

NV Foreclosure Mediation Program Gets First Request
What makes this news worthy I think it is:
1) yet another state has implemented a foreclosure mediation program
2) They are including an online interactive element to the process, ” Questions may also be directed over the Internet to”
3) The foreclosure mediation program is self funded through fees and will not require the expenditure of any taxpayer dollars. Lenders pay an increased fee for filing a foreclosure notice, which is used to fund administrative costs of the program. Homeowners and lenders will share the $400 costs for the mediators, with each party paying $200 prior to the mediation.
Read the full article [here]

NZ Wants Bigger Copyright Watchdog
The New Zealand Government has released a discussion document for public consultation that calls for more powers for the Copyright Tribunal.
The controversial Section 92A of the Amended Copyright Act was introduced by the former Labour Government last year and then suspended by the new National Government after public outcry and protests in March. The
dicussion paper leaves termination of ISP customer accounts still on the table, with the difference being that the decision will lay with the existing Copyright Tribunal rather than rights holders requesting service providers to switch off access for internet users.
A three-phase process is proposed in the document: Phase 1 allows for rights holders to file complaints with ISPs, which in turn notify customers that they’re accused of infringing copyright. If the infringement continues, rights holders can issue cease and desist orders via the ISP to its customers.

Full article [here]

JAMS Neutrals Named 2009 Power Mediators by The Hollywood Reporter
July 28, 2009 – Los Angeles, CA – JAMS, The Resolution Experts, the nation’s largest private provider of mediation and arbitration services, announced that three JAMS neutrals, Richard Chernick, Esq., Judge Diane Wayne, and Judge Daniel Weinstein have been recognized as “Power Mediators” by The Hollywood Reporter as part of their annual “Power Lawyers” Special Report. Only seven mediators were recognized for their outstanding expertise in resolving entertainment disputes.

Read the full press release [here]

Vote For Safe Horizon
Remember to vote for Safe Horizon [here]. If you are asking why, read the posting [here].

TAC, WorkSafe open to rip-offs Ombudsman finds
DODGY doctors may have been ripping off TAC and WorkSafe with excessive bills and charging for procedures that never took place.A damning report from the Ombudsman highlighted “significant flaws” in the two government controlled organisations’s could have cost Victorian taxpayers “millions of dollars”. Ombudsman George Brouwer said in his report the billing procedures at TAC and WorkSafe are “vulnerable to fraud and being taken advantage of” by dodgy billing practices. The report follows a prior ombudsman’s inquiry focusing on the former head of The Alfred Hospital trauma unit Thomas Kossmann, who was found to have billed the TAC for surgery on road accident victims he did not perform.
Read the full article [here].

Do you have ADR news you would like to submit? Email it to me @

Gates & Crowley & Heaps of Comments!

July 29, 2009

Yes, I am sure everyone by now knows all about the ‘dispute’ between Mr. Gates and Sgt. Crowley. As a police and having been in similar situations before, I really don’t think I will venture into giving my opinion… especially when so many other people have already done so!

Have a look at all the comments posted at a recent Boston Globe article in which correspondent Jack Nicas spoke with Robert H. Mnookin [here]. The article itself is actually a Q & A with Mr. Mnookin who had this to say when asked what is the best course towards a resolution between the two:

What I think would be interesting, and perhaps useful, is if they really sat down as two people, as two human beings. If they were both interested in exploring, what had happened, how did this happen, what impact did it have on each of them; that I think would be perhaps valuable. …What would be interesting on a human level to see is if they would each be willing to try to listen to each other and see the world from the other person’s perspective, without letting go of their own perspective.

By the way, here are some comments from the article:

The best resolution would be for Cambridge PD to pay $250K to Dr. Gates. When the guy with authority has abused his power, a friendly sitdown isn’t the way to placate his victim.

I think I understand now….if you are black & prominent, you don’t have to cooperate with police or follow any police directives because you’ve endured 200 years of oppression.

You must be nuts….why not get Desmond Tutu involved in disputes over grocery coupon disputesat a checkout counter if the two argument participants are of different racial backgrounds.
Try a real job and life.

The basis of this article is flawed. This is not about getting to “yes” because no one is selling anything. Conflict resolution and contract negotiation are not the same thing. In a sales situation, when you come to terms everybody wins because what both parties want is to buy or sell something they are both willing to see bought and sold. The dignity of a respectable gentleman is not for sale. The cops screwed up. The question is not how can everyone involved understand eachother and grow as people, but what can the police do to show the sincerity of their regret over this mistake. As a lawyer, I know that these situations often come down to negotiated financial settlements in which all that is really in issue for the negotiators is price. However, a victim, in order to be compensated (and I dont know that this incident will ever come to that) should not have to try to understand his attacker’s point of view.

Escalation is not what’s needed here. Scrumming in the media, particularly on “cable news” simply adds more unnecessary gasoline this fire. How about both men displaying some common sense by actually sitting down together and showing everyone that they can get past this misunderstanding?

Again, read the full article and ALL the comments [here]

Reflective Practitioner Image

July 27, 2009

I put together this image as a follow up to this posting in being a reflective practitioner. I know sometimes being able to see a drawing helps me better understand something so I hope it helps you.


Safe Horizon

July 24, 2009

Safe Horizon Community Mediation Center which trained me in my basic mediation training sent out the following message:

Dear Colleagues: As you may know the Safe Horizon Mediation Program is part of a larger non-profit which strongly advocates and provides services, such as shelters and legal assistance, for victims of domestic violence.

Pasted below, you’ll see that the Allstate Foundation is offering a $100,000 grant to the DV service organization that receives the most daily clicks before Sept 15 as described below. If you can visit and vote for Safe Horizon as often as possible, your help will be much appreciated by SH and the people we serve.


If you can, please support Safe Horizon (you can vote once each day)- I thank you in advance!
You can learn more about Safe Horizon Mediation [here] and more about Safe Horizon in general [here].

Q & A With Steve Mehta

July 22, 2009

I recently corresponded via email with Steve Mehta, mediator and blogger, and asked him some questions about his upcoming book, 112 Ways to Succeed In Any Negotiation Or Mediation as well as some other questions on current ADR topics. Below you will find the unedited answers, enjoy!

Q: Steve, tell me, why 112, seriously, how did you come up with that amount?

It’s a good question. I knew that over the years of teaching seminars and mediation I had a lot of tips and points that could help people negotiate better. As such, there were two things that created the 112 ways. First, I didn’t want it to be the cliché 101 ways. Many writers have done101 ways to do something. So I wanted it to be more. But I also thought about how college classes are taught. Negotiations 101 usually signifies a basic course on the subject. My book simplifies the material, but is providing more advanced material than 101.
As such, for those two reasons. I came up with 112. Also, as a side note, I had over 400 negotiating points in starting the book. But I thought that would make the book huge and unmanageable. Maybe that will be in the next book.
Q: who is the intended audience for your book- the i-might-be-interested in ADR gal, the rookie ADR guy, the mid career mediator, or the grumpy veteran?

Quite frankly, everyone is the target. Obviously anyone interested in ADR would be interested in this book from the new person to the seasoned veteran like yourself. But the book isn’t just about ADR. It is targeted to help everyone – From the real estate agent to the soccer mom. Everyone negotiates. Everyone can benefit from learning how to negotiate.
The book provides real world examples that are not formal “negotiations” as a tool to show the reader that every situation is a negotiation. As an example, I got delayed on a flight home from vacation recently and was placed on standby. I used many of the book’s techniques to make sure that my family and I were allowed to get on to the next plane home, despite the fact that it was overbooked by 20 people, and my family was not on the top of the standby list.

Q: why read your book compared to the many other ADR books out there?

I asked myself the same question when I wrote it. How would I make it different than the other negotiating or ADR books. My book fills a void in the literature. Most books are very theoretical and take 40 pages to illustrate one part of the complex idea relating to negotiating. This is not to say that the theoretical book isn’t good. Those books make you think about the concept in general.

My book does two things: One, it puts it right in your lap in a few pages or less. You can learn something about negotiating in a few minutes. You don’t have to read the whole book to get something out of it. Second, though, the book also makes you think. You will say to yourself – that was easy. But as you think about it more, you see the multiple possibilities. It is like the art that uses small pictures of items to make a larger picture of something else.
When you look at the smaller picture, you can see exactly what it is quickly. When you step back and look at the picture in the context of the whole, you see a much larger and completely different picture that is made up of the many small pictures. As the reader thinks more about the point or reads on further, more pieces of the puzzle get put together. At any time, that one picture can be viewed in the context of the whole.
Q: please tell us about your experience as a mediator (what areas)?

I have been mediating since 1999. Since about 2002, I have been exclusively working as a full time mediator. I have mediated all types of civil litigation cases including employment, real estate, personal injury, business and elder abuse. I have also done many community mediations.

Q: OK, now that you told us your mediator experience, does that necessarily translate to being a successful author?

You never know what appeals to consumers to buy a book. I think that the experience I have is shown in the book by giving a teaching point and then an illustration from my experience about that point. I believe that life’s experiences make for interesting stories.
So I guess I hope that others will find the stories and issues interesting.

Q: What other ADR books do you recommend?

There are so many. Getting to Yes is a great starter. Getting Past No is another. Bargaining for Advantage is another. That’s just a few.

Q: How do you feel about the term “certified mediator”?

There are several issues involved. First, if you are a mediator and are successful in being able to resolve disputes or have a practice, then certification means nothing. However, to help a person get some type of credentialing it is beneficial.

A problem with certification also relates to who enforces it. If we are going to say that a mediator must be certified to practice, then will we have a regulatory organization – will it be statewide, or national. Do you need a license? If it is something for a person to put up on the wall – great. But if it is mandatory, that may create many problems.
Q: I have to ask one non-open ended question, who will win this year’s Ashes Series (I know you will have to look up what the Ashes Series is as will 95% of my readers but I am really looking forward to it!)?

First. You are right, I did have to look it up, but I had a pretty good idea of what you were asking about without looking it. My answer, after that is absolutely clear. I am a loyal subject of the United Kingdom, having been born in England, and I would have to say that England will and should win the Ashes Series in cricket.

Q: Why do you blog?
Information. To be honest blogging makes me a better mediator. I constantly have deadlines to get new content out on the blog. My view is always that you never stop learning. So writing a blog forces me to continue to be up to date and fresh. Plus, it lets me communicate in different ways with many people. I was, just like yourself, a communications major in college. I love to communicate.

Q: Any suggestions for would-be bloggers?

Do it. Find what you love and write about it.

Q: What other, if any, blogs do you follow?

Your’s, of Course and all the blogs that are on’s blog roll. I love Tammy Lenski’s blog on technology. I also like Diane Levin’s blog and finally Victoria Pynchon’s. I also like Geoff Sharp’s. But in addition, I like to read blogs on all types of topics. I get a lot of information from blogs in psychology, social psychology, philosophy, technology, and gadgets.

Q: Are you ever evaluative while mediating?

Yes. I think an effective mediator has to play different roles at different times. You should never say never. Well maybe there are exceptions, but I can’t think of it. As a mediator you should be able to use all the tools in your toolbox. That is one of the themes of the book. So being evaluative has its place.

Bonus Question:
Q: finally, tell us when your book comes out, and how can we purchase it?
The book launches officially on a widespread release on August 1. It has been in limited release earlier and is now in all major booksellers and online booksellers such as Amazon and Barnes and Noble. You can also go to the book’s website,

I wanted to also take the time to thank you for your interest in the book and in asking me these questions. It has been a pleasure.

Communication Needed Now More Than Ever

July 20, 2009

Two people who I have had the pleasure to have worked with previously and whom I consider friends landed in Jakarta this past Friday, only a day after a terrible terrorist attacked at a hotel that killed 9 people and at least 41 injured.
Zach and Deborah, both of Consensus, are there (from their twitter site), “Preparing to go to Indonesia for Search for Common Ground: effort to stave off radicalization of prison inmates.”
I received this message from their colleague– Michael Rosenthal, CEO, of Consensus:
July 17, 2009 (Jakarta, Indonesia)…Consensus, a conflict resolution firm that is a member-constituent of the U.S. Department of State’s Overseas Security Advisory Council, landed in Jakarta this morning in an effort to reduce the threat of further violence and terrorism through radicalization of disenfranchised Indonesians. They arrived in the wake of two terrorist bombings in Indonesia’s capital city.
“Terrorist acts like these remind us of the need for peace building efforts,” said Consensus CEO Michael Rosenthal. “They are designed to scare [the public] away, to abandon our objectives, and to change our course. Instead, they strengthen our resolve.” The firm will begin its efforts, which are being funded by the British Government, this weekend.
I wish Zach and Deborah luck and safety during their trip. You can follow their endeavors at their twitter site:
Photo (Xinhua/Reuters Photo)

ADR News

July 17, 2009

Mediator Offers Neutral Opinion During Divorce
A news release crossed my desk last week saying that many couples separate at the end of the school year.
Well, that got my attention so I read on and soon found myself immersed in an e-book on mediation…

If you are going through a separation or divorce and are overwhelmed by the considerations, this book is a good place to start. In plain language Zutter covers all the tasks facing you and makes sense of it all. Even if you don’t choose mediation, the book is still a great resource for laying out the process.
Read more [here]

UN-AU mediator suggests resumption of Darfur Peace
KHARTOUM, July 15 (Xinhua) — The joint mediator of the United Nations (UN) and the African Union (AU), Djibril Bassole, said on Wednesday that he had put forward to the parties of the conflict in the western Sudanese region of Darfur to resume the peace talks in August in Doha, capital of Qatar.
“I have provided a proposal to hold the next round of negotiations in August…”

Read more [here]

‘Hate Ads’ Go To Mediation (Tasmania/Australia)
Tasmania’s anti-discrimination tribunal has called for mediation in the case between Timber Communities Australia (TCA) and human rights campaigners Martine Delaney and Peter Power.
…Delaney and Power jointly allege that the TV ads, attacking Green Party policies, demonised same-sex couples and intersex people by, amongst other things, associating them with the international symbol of harm, poison and death, the skull and cross bones.
Read more [here]

Funds To Go Towards Mediation
Local judges will have a new tool available to them in the battle against truancy, as Howard County commissioners voted unanimously Monday morning to increase court filing fees to pay for a mediation program targeting non-attendance.
The program, run by Lubbock-based Dispute Resolution Center and funded with grant money, recently popped up on the county’s radar during a meeting between local law enforcement officials, according to County Judge Mark Barr.

Read more [here]

Political Rivals in Honduras Accept Mediation
WASHINGTON (AP) — Both sides in Honduras’ leadership crisis on Tuesday signaled willingness to forge a diplomatic solution to the deadlock over the fate of President Manuel Zelaya, who was ousted last month in a coup.
Zelaya and interim Honduran leader Roberto Micheletti agreed to accept Costa Rican President Oscar Arias, a Nobel Peace laureate, as an international mediator.

Read more [here]

Debt Mediators Australia Say, “Bank Fees Push People Into Bankruptcy”
A Stafford debt mediation business has claimed bank dishonour fees are pushing people into bankruptcy.
Figures released from a Debt Mediators Australia online survey have revealed two-thirds of people in financial stress struggle to make repayments because of financial institutions’ dishonour fees.

Read more [here]

Cool As A Cucumber

July 15, 2009

Cool As A Cucumber

Practice what you preach. Be the change you want to see in others. Change starts with you.
The above statements are all commonly heard throughout our ADR lives. Today, I suggest reflecting on them in the capacity of being “Cool As A Cucumber”. Before and during heated exchanges or outburst in a negotiation, as the negotiator and possibly more importantly as the mediator, displaying a calm and cool demeanor has the ability to de-escalate the situation.
Based on personal experience it works. It works in violent confrontations, neighbor disputes, and co-worker misunderstandings (plus everything else!).
Methods I use to try and prevent myself from getting caught up in a heated exchange is preparing for what to do if someone tries to bait me, make accusations or be confrontational. Preparing myself helps diminish the opportunity for negative situations to arise as I firmly believe exhibiting a cooperative and collaborative approach is contagious. I remind myself to remember to respond not react.
In Beyond Reason: Using Emotions as You Negotiate, Fisher and Shapiro mention possibly options to cool your emotional temperature.

Below are a few examples[1] :

– Slowly count back from ten.

– Breathe deeply three times, in through your nose, out through your mouth.

– Pause.

– Allow yourself to sit comfortably in silence for a moment.

– Ask yourself what is at stake for you.

– Adopt a relaxed position: sit back, cross your ankles, let your hands rest on your lap or table.
– Let upsetting or offensive comments fly by and hit the wall behind you.

For those interested in learning and possibly practicing more breathing and relaxation techniques, within the next month I am going to post a brief introduction to meditation and some simple exercises that anyone, regardless of religious preference, can use to help be mindful during their mediations and negotiations while also acknowledging the emotions that are present in both yourself and the other party(s).
If you find Fisher and Shapiro’s tips helpful, I suggest purchasing their book to get the full list mentioned above as well as other powerful advice for handling emotions during negotiations or mediations.

For those interested in more meditation practices and techniques, check back at Enjoy Mediation or feel free to email me [] and I would be happy to give tips that have worked for me as well as books I recommend.

Finally, who would ever have thought a cucumber would be in your ADR toolbox? Now you will never look at a cucumber the same way again!

[1] Roger Fisher and Daniel Shapiro, Beyond Reason: Using Emotions As You Negotiate (New York: Penguin Books, 2005) 150.

The Reflective Practitioner: Do I Understand Myself?

July 13, 2009

The Reflective Practitioner: Do I Understand Myself?

Are you a reflective practitioner? There are many benefits to the various types of conflict resolvers- mediators, negotiators, conflict coaches, conflict skills trainers, ombudsman, etc.

Before going further into the benefits and examples of how to be a reflective practitioner, I think it is best to define it. At a recent lecture I attended given by Bernie Mayer*, he mentioned a reflective practitioner is someone who looks back on an interaction and tries to understand what you did. You check to see if there is a disconnect between your actions and the theory. The theory is that which explains how certain actions in similar situations will result in either harmful or beneficial results for you, the other party(s) or a combination of both (see image below).
A powerful comment Meyer said still distinctly stands out from the other powerful comments he made during the talk: It is in this disconnect that lies a wealth of learning.
The only way we can obtain the benefits and wealth he refers to is by taking the time to stop and reflect. What have we learned in the books and training and how does that compare to what we had just done? Are they both in sync or is there a disconnect?

An example of that reflection is during a negotiation I was involved in with a group of protesters. The leaders of the group, which totaled several hundred people including women and children, told me they wanted to march to a certain area that was off limits while knowing the result would be the protesters being arrested. They told me that was their ‘final decision’.

I could have walked away, letting them maintain their autonomy and stick with their choice. However, I decided to continue to negotiate with them by first taking a deep breath and then a few more letting everyone have an opportunity to self reflect in that current moment. Then I asked many reality checking type questions among other tools in my mediator’s toolbox. Ultimately after many stressful minutes that felt like hours, a successful resolution was achieved with no one being arrested and some of their interests still being met.

The disconnect between the theory of me allowing them to stick with their choice and the actions I took contradicting that theory provided me with a wealth of information and knowledge.
The lesson I took away after reflecting on that particular situation was that knowing theory is imperative for a practitioner. Equally important is as a practitioner, you must try the theories out for yourself to see how they work in actual situations. Of course other theories come into play in my example such as ‘is a final decision ever final?’ but the point I want to stress is the way to grow as a reflective practitioner is through this analysis.

Going back to Meyer’s talk, he discussed some “Hallmarks of a Reflective Practitioner”:

• Self observant.
• Having the ability to deconstruct our actions
• Integrate our espoused theory and theory in action.
• Travel the theory-action result loop
• Humility.

Meyer’s talk reminded me that in order for me to be a successful mediator, it is crucial for me to be a successful reflective practitioner. Including the tips mentioned above into my practice are part of the process in ensuring that I have understood myself.

(click to enlarge)

* 2009 Summer Residency at Creighton University’s Werner Institute on Negotiation and Dispute Resolution Masters Program

ADR News

July 10, 2009

NYPD Cricket Featured on CNN
From Wednesday’s post [here], see the video at the bottom (just press play)

When Not To Negotiate
Mediation or negotiation in family disputes, while attractive in principle, can often be ineffectual, and at worst, counterproductive. In the 1989 film, The War of the Roses, Barbara and Oliver Rose were in such extreme conflict over their dream house, they eventually killed each other. Only judicial intervention could have stopped the carnage.
The importance of dealing with divorce in the best possible way when one-third of Australian marriages fail is clearly crucial to the well-being of the community. Over the past 25 years, family disputes in Australia have been increasingly resolved through mediation and negotiation, rather than litigation. Since the mid-1990s, “Alternative Dispute Resolution” (ADR) has become the most common way to resolve family feuds.

Read more [here]
Candidate Touts Mediation Experience
Democrat Michael Allen of Santa Rosa says he’s best qualified to succeed Noreen Evans in the State Assembly because he has been a member of State Sen. Patricia Wiggins’ staff since 2007.
…Allen said his background as a “community mediator specializing in conflict resolution and interest-based negotiations” also makes him a good choice to bring solutions to Sacramento.
Read more [here]

How To Be Your Own Mediator
After you vent your side of the story, retell the story from the other person’s point of view.
Here is how to do this. Choose a specific conflict with one other person. Particularly useful is selecting a person who you blame for the current poor working relationship. Now, find someone else who you can confide in to be a listener and do the following exercise.

Read more [here]

Bid To Halt Soccer World Cup Strike
Mediation efforts are under way in South Africa in a bid to end a national strike which has brought construction at 2010 World Cup sites to a halt.
Some 70,000 workers downed tools on Wednesday demanding a 13% pay rise but employers are only offering 10%.
Construction companies have described other union demands as “unacceptable”.

Read more [here]

Georgia Gov Appoints Mental Health Ombuds
Governor Perdue Wednesday announced a new position to help Georgia fix its broken mental health system.The Mental Health Ombudsman will investigate complaints of abuse and other concerns.Jewel Norman’s resume includes running a psychiatric hospital for children and teenagers. She also advocated for mental health legislation for the State Department of Human Resources. As Ombudsman, Norman will provide checks and balances for Georgia’s new mental health agency.
Read more [here]

Retired No More!

Congratulations to Hon. Harry Sheppard (Ret.), a retired Alameda County Superior Court Judge, for recently joining JAMS. Retired life just was not meant to be!

“While on the bench, Judge Sheppard was a ‘go-to’ judge for resolving complicated cases. He is known for his fair and even temperament, thorough knowledge of the law, and extraordinary work ethic and preparation,” said Chris Poole, JAMS President and CEO. “We are pleased that he is joining our Northern California panel.”

“I have always enjoyed problem solving as a judge, and I look forward to working full-time as a JAMS arbitrator and mediator,” said Judge Sheppard.