Archive for November, 2009


November 30, 2009

Conflict- it goes without saying we need to understand it in order to help others engage and possible resolve it. It is important to know that people respond to conflict based on their experiences and their knowledge of conflict. Their knowledge includes how they were taught how to deal with conflict.

It is important also to know however that people approach conflict based on their personalities, culture and their particular role in the dispute. Bernie Mayer, in The Dynamics of Conflict Resolution, explains how he approaches this by detailing four significant factors: values and beliefs about conflict, approaches to avoiding and engaging in conflict, styles of conflict, and the roles people are draw to play in conflict (page 26).
I Values and Beliefs: three important questions to as yourself: Is conflict acceptable; how should people behave in conflict; and is conflict solvable?
II Avoiding and Engaging in Conflict.
How people avoid conflict:
Aggressive Avoidance “Don’t start with me or you’ll regret it.”
Passive Avoidance “I refuse to tango.”
Passive Aggressive Avoidance “”If you are angry at me, that’s your problem.”
Avoidance Through Hopelessness “What the use?”
Avoidance Through Surrogates “Let’s you and them fight.”
Avoidance Through Denial “If I close my eyes, it will go away.”
Avoidance Through Premature Problem Solving “There’s no conflict; I have fixed everything.”
Avoidance By Folding “OK, we’ll do it your way; now can we talk about something else”

How People Engage Conflict
Power Based Approaches– does not always have to be violent. Includes protests, boycotts, strikes, etc.
Rights Based Approaches- done by asserting their privilege or referring to existing laws and rules.
Interest Based Approaches- what lies behind the positions? Go ahead, expand that pie!
Principle-Based Approaches (Appeals to Fairness)-
Manipulative-Based Approaches (Indirection)- can be destructive (lie, cheat, mislead, untrustworthy behavior) or constructive. Bernie adds, exploited and unempowered people often have no alternative for addressing their needs in a conflict except to use indirection or manipulation (page39).
III Styles of Conflict
Cognitive Variables
Analytical Versus Intuitive
Linear Versus Holistic
Integrative Versus Distributive
Outcome Versus Process Focused
Proactive Versus Reactive
Emotional Variable
Enthusiastic Versus Reluctant
Emotional Versus Rational
Volatile Versus Unprovocable
Behavioral Variables
Direct Versus Indirect
Submissive Versus Dominant
Threatening Versus Conciliatory
IV Roles People Play in Conflict
Decision Maker (Arbitrator)
Facilitator (Mediator)
Information Provider (Expert)
Observer (Witness, Audience)
The blog posting contains heaps of information and terms new to the ADR practitioner and terms common to the pro. Regardless of which one you are, or somewhere in between, further reading on these topics will help you as a the ADR professional help the parties you are working with regardless of your role as a neutral (mediator) or not (consultant). The book is available at many sites, including [here] at Amazon.

[News] Fund Us & We’ll Cut Deaths: NZ Mediators

November 23, 2009

Iraq Latest Crucible For Harvard Mediation
CAMBRIDGE – No longer locked in one big war, Iraq has become a land of a hundred little wars. And this promised to be one more of them, as two well-armed tribes clashed over a coveted swath of land.

One tribe brandished a promise to 2,000 acres from the current Iraqi government. The other pointed to a like promise from the regime of Saddam Hussein. Guns were raised, shots fired. There seemed no ground for compromise, beyond the familiar local remedy: blood.
But then something extraordinary happened. The tribes agreed to negotiate and, with the help of the local mayor and others, crafted a deal giving both sides enough land to meet their needs.
“They began thinking of their relationship instead of thinking about revenge upon each other,’’ said Sa’ad Al-Khalidy, one of those who arranged the intervention.
Read More]

Ombuds: Police Flouted Rules
State police body in Australia has been criticised for showing “disregard” for procurement rules and accepting gifts from suppliers.
Simon OverlandAn ombudsman’s report into IT purchasing by the Victoria Police found several examples of failure to adopt proper procurement and contract management procedures. In one instance, the report said, buyers prepared paperwork for a contract worth AUS$20.1 million (£11 million) in 24 days, instead of the recommended 10 to 18 months. [Read More]

Israel Wants Turkey Back on Board As Mediator
Minister of Industry, Trade and Labor, Benjamin Ben-Eliezer, is expected to propose to Turkey that it resume its mediation role in peace talks between Israel and Syria, in exchange for a return to more cordial relations between Israel and Turkey, according to sources in Jerusalem. The sources said that the policy was coordinated with Prime Minister Benjamin Netanyahu and the Foreign Ministry in advance of Ben-Eliezer’s departure on an official visit to Turkey Sunday evening. [Read More]

Fund Us & We’ll Cut Deaths: NZ Mediators
Mediators say they could cut the number of suicides and murders caused by marriage breakups if the Government funded mediation in child custody disputes.
Arbitrators and Mediators Institute director Deborah Hart said a mediation scheme was recommended by the Law Commission in 2003, piloted at four courts in 2005-06 and passed into law last year – but it had still not been implemented because of the cost.
Principal Family Court Judge Peter Boshier said yesterday that 18 people involved in Family Court processes had committed suicide and four others had been killed in the 13 months to last June.
Ms Hart said some of those people might be alive today if the mediation scheme had been implemented.

[Read More]

Ombuds Office Explained At Boston University
Acting on a report by the Faculty Council on Diversity and Inclusion, BU has created a new and critical position, which was filled in September. President Robert A. Brown introduced the new member of the community at this year’s University Management Conference.
“One of the most important recommendations of (the faculty council) was the establishment of the ombuds office as a new mechanism to help faculty, staff, and students bring forward issues that are negatively affecting life within the workplace of our University,” Brown told the crowd at the George Sherman Union’s Metcalf Ballroom on October 26.

[Read More]

Bars Dispute Goes to Mediation
EL PASO — The City Council will hire a mediator to try to resolve a dispute between an East Side neighborhood and two taverns.
Both bars, the Three Legged Monkey and the Wet Ultra Lounge, operate at Hawkins Business Plaza on property leased out by the city airport. Instead of terminating or amending the lease, council members voted 7-0 Tuesday to take the unusual step of mediation.
For at least two years, neighbors have complained to the city about fights, drunken bar patrons, lewd behavior and loud music from cars that park in the neighborhood. The bar owners say they have tried to work with neighbors but have been rebuffed at every turn.
Mediation, which the city estimates will cost $2,500 to $4,000, will bring everyone together. The key players are Patriot Place, the company that runs the shopping center; the two bar owners; the neighbors; and the city government.

[Read More]

(Ohio) County May Get Foreclosure Mediators
Legislation requiring Ohio’s common pleas courts to establish a mediation process for residential foreclosures was introduced into both houses of the General Assembly in recent weeks.
Mediation puts an impartial third-party negotiator at the table with both the lender and the homeowner. The goal is to encourage communication between the two parties so that each has an understanding of the other’s position. [
Read More]

Guest Blogger 09- Jose Pascal da Rocha

November 18, 2009

Please enjoy the following submission as the fifth installment of the 2009 Guest Blogger series.
Today’s guest blogger is Jose Pascal da Rocha. Honestly, there is too much to say about Pascal I wouldn’t know where to begin. For example, ask where he has been and I think the answer is, “Yes, twice.” Like my other guest bloggers, I am happy to present his submission for everyone to enjoy. You can read more about him [here].
On Panethnicity and Communication Issues

As an international mediator, I get asked many times about cultural interferences in the mediation cases I experience. As I understand mediation as assisted negotiation, I would like to explore communication issues in mediating cultural conflicts in the context of the United States of America. This is all work-in-progress as there is still a need for a mediation model that would tackle cultural sensitivity in intergroup conflicts.

Intergroup community violence remains a vital point of interest for mediations and mediators. It can be argued with Lopez and Espiritu (Lopez, D./Espiritu, Y. (1990), “Panethnicity in the United States: A theoretical Framework” in: Ethnic and Racial Studies 13 (2): 198 – 224) that even though all the major white ethnic groups gave assimilated in some way, given the current climate that exists in the US, assimilation is not a possible way for people of color. By assimilation, Lopez and Espiritu do not mean Anglo-conformity (and uni-lingual behaviors). Instead, they suggest that assimilation means complete access to political, social and economic power. Lopez and Espiritu argue that “the question of ethnicity in the US is increasingly a question of race. Recent and probably most future immigration will be dominated by non-whites. It is important to emphasize that no non-white group has ever fully assimilated into American society” (p.220). On the other side, ethnic differentiation and pluralism represent the opposing pole of the interethnic continuum (Feagin, C. (1991), “The Continuing Significance of Race: Antiblack discrimination in public places” in: Communication Monographs 51: 23-36). The term Panethnicity is defined as “the development of bridging organizations and solidarities among subgroups of ethnic collectivities” (Lopez and Espiritu, 1990, p. 198).

The documented development of panethnic liaisons among people of color has been prompted by ethnic and racial violence over the decades. In the context of this environment, people of color have tended to develop their own subcultures. The insightful analysis suggests that future mechanisms for resolving intergroup conflicts will emanate from coalitions of people of color. In the short term, intergroup hostility and tensions between members of the majority and people of color pose some real problems for community mediation. The literature reveals that recurrent themes for the tension between dominant and sub-dominant groups include social inequality, economic exploitation of people of color, and the roles of class structure and law in the maintenance of racial and ethnic inequality. By understanding sources of intergroup conflict, mediators gain essential background information needed to manage this kind of conflict. However, there are major obstacles, notably in the form of resistance to third-party intervention. For example, an important challenge to cooperative problem-solving among interracial groups can be found in the mistrust that minorities tend to have of institutional representatives in general, and the police in particular. So, the overall question in this context is: How should third parties adopt an intervention posture that can address the cultural needs of disputants?

Variant Concept of Conflict
It is necessary to understand how various cultures deal with conflict. Western-style cultures document that individuals tend to view conflict as a healthy catharsis for anxiety as well as a positive mechanism for invigorating moribund relationships. The rules of fair play require that if you have a quarrel with someone, explanations are mandated. It is honest to be open about resentment and to attempt to resolve disputes. In Easter-style cultures, conflict-avoidance is the norm. Part of one’s personal goodness is measured by how well conflict is avoided and how adeptly the feelings of others are spared. Apart from other well documented differences about conflict styles, an alternate conflict resolution style is illustrated in a study on third-party intervention in the Peoples’ Republic of China. Wall and Blum (Wall, James A./Blum, Michael (1991), Communication in the People’s Republic of China” in: Journal of Conflict Resolution 35 (1): 3-20) identify that Chinese mediators are known to both the community and the disputants. No one expects the mediation to be neutral. Mediation is mandated by the court. Before a case can go to court, the disputants must attempt mediation. Mediators tend to be older, trusted members of the community, and generally women. A critical part of the intervention is the apology. Wall and Blum observe that “Mediation to westerners is a social aberration. … For Chinese, mediation is integrated within their society” (p.19).

In the US-context, mediation is assessed as resulting in improved relationships between dysfunctional conflictants. Typically, mediators see themselves as the process leaders of a structured process, ending the process with a formal agreement. This might not work for Korean-Americans. La Resche (La Resche, D. (1992): “Comparison of the American Mediation Process with a Korean-American Harmony Restoration Process”, in: Mediation Quarterly 9 (4): 323-339) indicates that they tend to see conflict as a shameful inability to maintain harmonious relationships with others. For them, conflicts are not just problems in communication, but indicative of a lack of respect. La Resche (1992) advises that if conflicts in multiethnic communities are to be handled effectively, third parties must, at a minimum, become knowledgeable about different conflict values and forums so that their response is flexible and appropriate when persons different from themselves request assistance. Mandatory mediation programs might face this very issue. Should these programs coerce people into a process that violates their cultural and ethnic values or embarrasses them? A deeper understanding of diversity is called for that goes beyond the customs that are readily manifested.

Cultural Empathy
When culturally diverse parties are part of a third party intervention, mediators might assume that they need to examine their own assumptions about the nature of the conflict and how the disputants need to be approached. This perspective is consistent with the education of most mediators, aimed at remaining sensitive to disputants’ needs. In cross-cultural conflict, an appropriate course of action for mediators is not to see themselves as settlement-driven experts, but as students eager to learn about the tensions between the disputants’ underlying notions, motives and the surface of the conflict. Furthermore, it is likely that usual strategies for eliciting discussion and for engendering cooperation may fall short in such a mediation. In addition, the ethnicity and gender of the mediator plays a significant role in the conflict. More often than not, a legacy of unfair treatment has socialized racial and ethnic minority disputants to expect failure in every interaction with dominant group mediator. Powerlessness is defined as the feeling that one is “controlled, manipulated, and trapped” (Hecht M., Larky L.K., and Johnson, J.N. (1992): “African American and European American Perceptions of Problematic Issues in Interethnic Communication Effectiveness” in: Human Communication Research 19 (2): 209-236, p. 215). Mediators should be aware that their relationships with these disputants are much more complex than they might initially seem. In many cases, the court-appointed mediator is clearly a gatekeeper for institutional power. Donohue (Donohue, W. (1991): Communication, Marital Dispute and Divorce Mediation. Hillsdale, N.J: Lawrence Erlbaum) already noted that “this official, court-connected status gives mediators considerable power because they are inside the system that will ultimately decide the outcome” (p.7).

A Model for Understanding Cultural Differences
First of, a definition for culture that is sensitive to conflict has to be established. Nadler et al. (Nadler, L./Nadler, M./Broome, B. (1985): „Culture and the management of conflict situations“. In: Gudykunst, W./Stewart, L./Ting-Toomey, Stella (Hrsg.): Communication, Culture and Organizational Processes. Beverly Hills, C.A.: Sage: 87-113.) define culture as “the system of socially created and learned standards for perceiving and acting, shared by members of an identity group” (p.89). The key to this definition is its focus on identity groups. These groups set the standard for determining what counts as acceptable or unacceptable, cooperative or uncooperative communications. Whenever outsiders lack access to these standards, they risk miscommunication and expanded relational distance. Further, Nadler et al. (1985) contend that culture impacts conflict in three ways: how it is conceived, how it is conducted, and how it is resolved. This conceptualization is particularly useful because it emphasizes that culture affects the way in which people interpret differences, how they communicate to manage those differences, and how they create options for resolving those differences. Apart from Geert Hofstede’s (Hofstede, Geert (1989): „Measurement of individualism-collectivism.“ In: Journal of Research in Personality, 22: 17-36) well-known model of Cultural Differences, involving notions of Power-Distance, Uncertainty, Individualism, and Masculinity, mediation models bear some interesting potentials. Hofstede’s method of differentiating cultures is useful for mediators because it provides a language for understanding cultural biases in the various kinds of models mediators use to assist disputants. Three mediation models have interesting interactions with Hofstede’s method.

A first model is the mediation control model, or “med-arb model” (McGillicuddy, N. B./Welton, G. L./Pruitt, D. G. (1987): „Third-party intervention: A field experiment comparing three different models.“ In: Journal of Personality and Social Psychology 53: 104-112). In this model, mediators can become arbitrators if they believe that the parties have deadlocked and remain unable to create an agreement on their own. This model exhibits some interesting cultural biases based on Hofstede’s dimensions. First, people from high power-distance cultures might prefer this model because it takes a fairly autocratic approach to mediation, at least when it turns to arbitration. In fact, they would probably prefer that the mediator turn more quickly, rather than less quickly, to arbitration, particularly because they value conflict avoidance. People from high-power distance cultures look to a centralized authority to make a decision (e.g. Russia). Second, the mediator control model offers both comforting and troubling features to people from high uncertainty avoidant cultures. The troubling feature is that disputants are required to control agreements. This lack of structure, and the need to remain flexible in building creative solutions, creates a great deal of uncertainty about both the mediation process and outcome options.

Arbitration offers more structure about how outcomes will be determined and thus might prove more attractive to people who despise uncertainty. On the other hand, mediation might offer a comforting aspect to people from high uncertainty-avoidant cultures. Uncertainty about the process leades to uncertainty about the effects of the dispute on the relationship. Third, the mediator control model conforms to valued features of collectivist cultural orientation (such as China, Korea, South-Africa in parts). Fourth, the mediator control model’s emphasis on achieving task objectives suggests more of a masculine cultural priority. Feminine orientations value more expressive tasks. Yet, any mediation process aims at achieving the more feminine virtues of building a nurturing, affiliative, helpful communication context. But, the emphasis on solving the problem, particularly when the disputants know that the mediator can arbitrate or force a solution when deadlock appears likely, suggests the mediation control model to be more masculine oriented. The mediator can address these cultural issues from a number of perspectives, most of which involves more time listening to disputants’ concerns and perspectives.

Another model is the interventionist model. It emphasizes a fairly powerful mediation role. Developed mostly for divorce mediation, this model assumes responsibility for the best interests of parties not represented in the conflict. As a result, the mediator evaluates the disputants’ options, creates appropriate options, and otherwise ‘moves’ parties into the “right” direction. There is no option to chose arbitration in a moment of deadlock. Yet, the mediator exercises a great deal of control over the process and must guard against developing an adversarial role with disputants. In regards to cross-cultural concerns, the mediator must ensure a full understanding of the mediator’s role and a full hearing of the issues dividing the parties.

In the Disputant control model, mediators try to facilitate an agreement between the disputants that they control. Unlike the mediator control model, the mediator has no option for arbitration in the event of a deadlock. And, in contrast with the aforementioned interventionist model, the mediator has no interest in protecting anyone potentially affected with the outcome. The mediator simply helps the parties create whatever agreement they feel is appropriate. This model is used frequently in community settings, such as neighbor disputes, in which the agreement only bears on those parties with few others affected. The mediator remains less autocratic in controlling outcome. This model still places parties in a context that promotes uncertainty because divisive issues are addressed openly and parties with a conflict-avoidant behavior might find this discomforting.
The Relational development model focuses less on a specific task and more on addressing such relational problems such as trust, control, and affiliation. Typically, mediators use this model as a preliminary step in support of some other mediation model that seeks to resolve nonrelational issues. The mediator in this model seeks open communication between the parties to explore the relational divisions and how parties might put them aside to focus on legal issues, for instance. Relational mediation ends when the disputants feel that further progress is no longer possible. This model is likely to reduce power distance between the mediator and disputants. Parties seeking to communicate under these kinds of authoritative conditions should find this model the least satisfying. Typically, mediators exercise little process or outcome control. But, because it does not promote discussion, however, parties cannot easily avoid conflict. Compared to the other aforementioned models, this model concentrates more on a collectivist orientation because it looks to maintain group relations as a first priority. By promoting relational development, this model also supports many of the feminine qualities of being affiliative, nurturing, helpful, and expressive.

Mediating intergroup conflicts will become more challenging as we approach the next century and the US becomes more ethnically, and thus relationally, complex. New immigration since 1965 has both facilitated and hindered the development of panethnic consciousness. Mediators must remain current on issues of changing cultural diversity to function effectively. For example, mediators can make a judgment about the degree of stakeholding for disputants based on several criteria. Is the culturally different disputant a temporary sojourner or a permanent stakeholder? Is the relationship between the disputants temporary or long term? What do both parties have to gain and to lose in the mediation? How critical is face-saving to disputants participating in mediation? The conflict-avoidant party will be likely to clam up and secretly decide not to comply with the settlement. Mediators should be wary that silence is not an agreement. If parties refuse to participate, a possible strategy might be to slow down the process and caucus separately with both parties to learn their positions. In all cases, the mediator must remain especially observant and attentive to individual needs, without falling into the “cultural trap”. Finally, mediators express cultural empathy by carefully assessing their own intervention values to see whether they are appropriate for this conflictant and for this context of mediation.

About the author:
José Pascal da Rocha is a Professor and International Mediator. He is teaching at Columbia University, M.Sc. in Negotiation and Conflict Resolution and the Southern Federal University of Rostov in Russia. Furthermore, he is active as a negotiator in diverse type of environments, from Corporations to Conflict zones across the world. He has published on mediation and gender and diversity. He can be reached at and


November 13, 2009

Sudan-“US Not Playing Role of Mediator”
Sudan criticised the renewal of economic sanctions by “mediator” US on Khartoum on Sunday, saying the move ran counter to Washington’s role to mediate between north Sudan and the country’s semi-autonomous south. “America claims it works as a mediator and is playing a positive role in solving Sudan’s problems, and at the same time it renews its sanctions against us,” Mustapha Ismail, an advisor to President Omar al-Beshir, told reporters in Cairo.
[Read more]

Wrongful Death, Assets Case Goes to Mediation
A pair of lawsuits filed against a Berea man over a December auto accident that killed one man are headed to a mediator following an order issued in Madison Circuit Court.Sandra Isaacs, the widow of Jason Isaacs, had filed a wrongful death suit against Elmer Ray French, 71, and a second suit against French, his wife and French Family Trust LLC over the alleged hiding of assets.Madison Circuit Judge William G. Clouse issued a pair of orders Oct. 8 sending each case to a mediator after Isaacs’ attorney had requested mediation in the French Family Trust case and French’s lawyers requested mediation in the wrongful death suit.
[Read more]

First EU President to be a Mediator?
Brussels – German Chancellor Angela Merkel said Friday the European Union’s first president would need to be a skilled mediator.
‘Of course it needs to be a person with special abilities,’ the chancellor said after a summit of EU leaders in Brussels.
‘To immediately understand the opinion of each member state in short conversations, to implement it fully and still not provoke a row – that is what we wish of the EU president.’

[Read more]

Md. gov mulling foreclosure mediation legislation
ANNAPOLIS, Md. — Maryland Gov. Martin O’Malley says he’s looking into legislation to require some effort at mediation “before the machinery of foreclosure and eviction starts up.”
[read the tiny article here]
More on this:
The pileup of foreclosure cases glutting local courtrooms has exposed a growing problem with the legal system: There just aren’t enough lawyers to go around for all the struggling homeowners who need the help.
Now, advocates for expanded legal aid – services that provide lawyers for those who can’t afford to hire their own – are appealing for reforms at both the federal and state level.
The idea seems to be gaining traction in Maryland. Last week, Gov. Martin O’Malley introduced new legislation that would make mediation mandatory. The bill would require mortgage companies to participate in renegotiations of loan terms with homeowners before resorting to the legal process of foreclosure.

[read more]

Making Unhappy Customers Happy
Have you noticed how the recent calamities have brought out the worst in people—notably, people in government?
A report adapted from Guidelines for Effective Complaint Management published by the Office of the Ombudsman in New South Wales, Australia, has closely examined the psychology behind complaints from the transacting public.
[read more]

Good Job Ari!

November 9, 2009

Great job Ari!

Honorable Mention was awarded to Ari Fontecchio of the Benjamin N. Cardozo School of Law for his essay entitled “Naming, Framing and Taming: Why Timing and Emotional Intelligence Really Matter in Crisis Intervention.

Ari interviewed me months ago on how I, along with the entire NYPD Community Affairs Bureau, used various conflict resolution skills during the emotionallly charged Tibetan Protests in New York City during the Spring of 2008.

Below is an exerpt of his paper. You can read the entire paper (which you should!) [here] and read the official announcement [here].
The Boskey Dispute Resolution Essay Competition honors the memory of James B. Boskey, humanitarian, Seton Hall University law professor, and mediator, who became known and beloved world-over for his publication of The Alternative Newsletter, a resource guide on ADR published quarterly.
The Boskey Dispute Resolution Essay Competition is a project of the ABA Section of Dispute Resolution’s Law Schools Committee, learn more. The Essay Competition is chaired by Professor Jean Sternlight, Saltman Professor, UNLV Boyd School of Law & Director, Saltman Center for Conflict Resolution.

From the paper (starting at page 20)
A. Protests
In March 2008, Tibetan protesters gathered outside the Chinese Consulate in Manhattan,
echoing cries in Lhasa, Tibet to end occupation by the Chinese government.94 During a month of protesting, the crowd ranged from 500 to 1000 protesters, and in its most escalated moment,
protesters broke through police barricades, throwing rocks through windows of the Consulate.95
Remarkably, using integrative techniques such as framing, matching, and re-framing, the New
York Police Department in conjunction with its Community Affairs Bureau (“CAB”) brought the
protest to a peaceful resolution, completely avoiding escalation to a riot.96
Jeff Thompson, an NYPD officer in the Special Projects Unit of the Community Affairs
Bureau and an expert in cultural outreach in the Tibetan community, was on the front lines.97
Prior to the conflict, Thompson had begun building relationships within the Tibetan community,
which helped him and other CAB officers recognize the ways in which the protesters framed the
conflict. Thompson’s relationships with the Executive Boards of various Tibetan organizations
and with monks and monastics from the spiritual community helped him identify the
stakeholders during the conflict and teach him about the deep-seated historical conflicts between the Chinese and Tibetan cultures.98

In this way, Thompson and his colleagues had already fashioned a strong third side99 that they could leverage during the large-scale conflict to come. Additionally, this network of relationships familiarized Thompson and his fellow officers with the Tibetans’ concept of cultural identity, or their attunement frames.100 This armed CAB with the ability to mirror and match the protesters’ frames even as tempers flared in front of the Chinese Consulate.

For example, during the protest, Thompson spoke into the megaphone using Tibetan phrases and prayers,101 demonstrating an ability to match the Tibetans’ cultural awareness. This technique of matching proved so effective that over the course of the twentytwo day conflict, protesters came to endearingly call Thompson “om mani padme hum,”102 the introduction to a prayer Thompson repeated to demonstrate cultural understanding.103 Once he had successfully matched the protesters’ attunement frame, he was able to move towards reframing the conflict towards de-escalation and eventually to resolution.
To do so, Thompson and his colleagues brought in high-ranking monks to stand beside them during the protest’s peak where police barricades were breached.104 While protesters had a tendency, at first, to view CAB as an opposing stakeholder in the conflict, having monks by the
sides of the officers send visual cues of neutrality, which had a calming effect on the protesters.
By enhancing the strength of the third side, Thompson and his colleagues were more likely to be
viewed as neutral mediators—standing next to spiritually revered monks—rather than firstperson negotiators, hostile to the interests of the Tibetans.

Ultimately, through the efforts of CAB and other NYPD officers, a resolution was reached where a highly respected monk sang a prayer of solidarity over the megaphone, and at its conclusion, the crowd agreed to disband.105

The critical aspect in reaching this resolution was the officers’ ability to convince the
protesters that Thompson and his colleagues were not entirely stakeholders, or negotiators
representing the city, but that they were mediators at the core of a strong third side, an extension of the mediator. The officers’ ability to contain the protest and prevent a riot, can be traced in no small part to their ability to time this transition between roles, and to wait for a moment of crystallization where taming the conflict became possible through properly matching the protesters’ attunement frame.

94 Chronology: Day-by-Day Record of Tibet Protests, REUTERS, Mar. 20, 2008, available at
95 Thompson, supra note 3.
96 Id.
97 Id.
98 Id.
99 The third side in this case was comprised of numerous stakeholders in the conflict, including the police department, patrol officers, various Tibetan groups and an entire hierarchy of monks and monastics from the spiritual community.
100 See supra text accompanying notes 52-57.
101 Specifically, Thompson repeatedly recited, “Om Mani Padme Hum,” a well known Tibetan chant for inner peace.
102 The meaning of this mantra is difficult to translate into English, but its effect is to calm those who speak and hear it, “invok[ing] the powerful benevolent attention and blessings of Chenrezig, the embodiment of compassion.
Viewing the written form of the mantra is said to have the same effect.”, Om Mani Padme Hum: The Meaning of the Mantra in Tibetan Buddhism, (last visited Apr. 20, 2009).
103 Jeff Thompson, supra note 95.
104 Id.

Web 2.0 Archive!

November 6, 2009

Did You Missed the ODR Cyber Week
Web 2.0: Going From Oh? To Know!

Well, You are in luck as the archive has been posted below.

You can forever listen to me (Jeff Thompson) moderate a panel of the web’s best ADR professionals:

Diane Levin (
Victoria Pynchon (
Tammy Lenski (
John Ford (editor,

You can hear them discuss blogging, writing articles, Twitter, Skype, and other web technology!

They explain how and why they do it (successfully!), the benefits and how it is has helped them.

Learn tips and skills that can help your practice too!

The event was co-presesented by & Centre For Peace & Social Justice, Southern Cross University, Australia.

Also, a special thanks to the Werner Institute at Creighton University.

You can view the 1 hour broadcast in it’s original format [here].

Guest Blogger 2009: Alex Yaroslavsky

November 4, 2009

Please enjoy the following submission as the second installment of the 2009 Guest Blogger series.

Today’s guest blogger is Alex Yaroslavsky. Alex is the all-rounder ADR professional as he is the founder of the Yaro Group, teachers at CUNY John Jay, mediates with CCRB and is a member of FINRA and NYCLA.
Not enough? Read more about him and the other ’09 All-Star Guest Bloggers [here].


Yesterday I received a call from a woman who had been enthusiastically pursuing a career in mediation, until words from one of her friends filled her with trepidation. In short, the friend warned:

“There are non-lawyer mediators who have “successful” practices but the ones I know of are social workers or therapists and the mediation is generally an offshoot of their practices. The problem with many is that they don’t have the financial or tax expertise so there are significant gaps in their work product.. … I do remember one story from years ago which had a dry cleaner moonlighting as a marriage counselor/mediator after hrs. No doubt it was spread by disgruntled and unemployed lawyers and therapists but was repeated in all the bars and nightspots to demonstrate the lack of regulations in the field.”

In actuality, one does not have to be an attorney to be a mediator. However, it is important to develop a specific mediation niche or expertise when starting a mediation practice.

To use a medical analogy, becoming a doctor is not enough when developing a practice. A successful practitioner will often develop expertise in a specific area – both for the purpose of developing a deeper knowledge, as well as to be able to attract patients who are looking for someone who deals with their ailment.

As the mediation field matures, specialization will become more common among mediators. And, of course, it makes sense to specialize in an area with which one is already familiar. So, a social worker might become a family-centered mediator, while a contract attorney might focus on contract disputes within their mediation practice, etc.

Two key questions for anyone starting a new practice is “How do I attract new clients?” and “How do I mediate disputes successfully?” The answer to the first question is “marketing.” A contract attorney who decides to branch out into mediation will most likely have an easier time attracting mediation clients because s/he is already known to people who have contract-related disputes. However, a constitutional attorney may have a challenge in attracting commercial mediation clients, despite having a stellar reputation in her/his field.
As a non-attorney entering the mediation field one should consider their most likely client base, as well as how her/his previous experience might be highlighted as relevant to mediation. For example, a nurse with geriatric care experience might want to pursue an elder-care mediation practice as opposed to a divorce mediation practice.

The second question rests on one’s reputation, which is largely based on performance. This is where the comment about knowledge of financial or tax matters might be relevant to a specific type of practice. For example, while it is not necessary to be a Trust & Estate (T&E) attorney to mediate a dispute involving family members who are fighting over an inheritance, it is very helpful for the mediator to be familiar with T&E concepts (e.g. GST: Generation-Skipping Tax), as well as the legal implications of various ideas that might come up in the course of a mediation.
This is somewhat of a double-edged sword because a good mediator has to strike the right balance of knowing enough to understand the relevant concepts, but not to force her/his opinions on the parties (some would even say that a mediator should not offer any opinions at all, regardless of her/his expertise).

Most parties will not appreciate this distinction, which presents an opportunity for the mediator to educate potential clients about what questions to ask a mediator. Some may choose a field expert, others a [mediation] process expert. As long as the mediator properly sets the clients’ expectations, parties may not mind bringing the mediator up to speed on the details of their case.

The mediation field has not yet caught up to other professions in the area of certification, peer review or public awareness. This lack of industry-wide standards allows anyone to call themselves a mediator without having to prove their qualifications. And as this issue is being addressed by the field, the “unqualified mediator” issue can be put to rest.

Mediators should be evaluated on the basis of their training, depth of experience, and effectiveness during a session. A profession or vocation are not good proxies for determining if a mediator is good. A recent article in the New Your Times makes this point.

Two of the best ways to develop your mediation skill set are to find a mentor who will help you develop your skills and find a grass-roots organization that needs volunteer mediators. Mediating community cases will enable new mediators to develop their own style, hone their skills and help establish their reputation.In summary, to become a successful mediator, follow these steps:
Invest in reputable mediation training

Volunteer in a community dispute resolution center

Determine your mediation niche and develop an appropriate marketing plan

Draw on your current expertise and professional network to begin your practice

Leave your clients feeling well-served by your work

As with any business, it will take several years to develop a solid practice, but if you enjoy the work, the field offers a great deal of promise and opportunity.