Archive for the ‘guest bloggers’ Category

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

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.

Guest Blogger 09- Noam Ebner

October 21, 2009

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

Today’s guest blogger is Noam Ebner, Assistant Professor and Online Program Chair, Werner Institute for Negotiation and Dispute Resolution, Creighton University School of Law. You can read more about him [here].

It’s not every day that you get to see a discipline in motion. Changes in the way that academics and professional practitioners grasp themselves and what they do are usually minor and incremental; by the time major change has evolved, many of the original instigators are no longer around to enjoy it.

Watching a field collectively consider itself and begin to move, therefore, is like observing a rare natural occurrence, Or, perhaps, like being on a glacier as it shifts. You feel very fortunate to have been there to see it, and you wonder where you are now and how you make your way home.

These were some of the thoughts I had while attending the Second Generation Negotiation conference which took place on October 14-17, 2009 in Istanbul. To understand just what this special conference was about, one needs to put it in the context of the project surrounding it.

While negotiation theory is being constantly developed, one gets the opposite feeling regarding negotiation teaching, particularly at the level of negotiation training. Take any 1-2 day training conducted all over the world, by US or non-US teachers, in corporate settings, open enrollment programs or community contexts, and you will find a great deal of similarity – not only in the content delivered, but in the teaching methods used and the actual exercises that students partake in.

The living spirits behind the 2nd Generation Negotiation Project, Chris Honeyman, Jim Coben and Giuseppe DePalo, set out to explore and address this issue by bringing a large a group of negotiation pedagogy experts to bear on it. Supported by Hamline University’s Dispute Resolution Institute, the JAMS Foundation and ADR Center in Rome, they envisioned and set up a three year project with two primary products: 3 negotiation pedagogy conferences, held in Istanbul, Rome, and Beijing, and 3 books, or editions of a book, one to come out of each conference in an attempt to capture and develop the insights gained at each of them.

At the project’s first conference in Rome, participants observed a standard, run of-the-mill, negotiation training course being given to lawyers and businessman. As a participant, I was presented with a relatively simple question: ‘Here is a ‘first generation’ training, which you have all conducted many times. Given everything you know about negotiation and about teaching – is this what we should all be doing? Are we giving students what we should? Are we giving them all we can? And, if not – what do we need to change, in content and in pedagogy?’

The group – which was comprised of some of the top negotiation and ADR professors in the North American and Europe (with a handful of other countries also in the mix – Israel, China, and Australia come to mind) as well as of some of the most prolific negotiation trainers in the game – responded to these questions with a tidal wave of enthusiasm, as if they had been waiting for years to be asked just that. The beauty of the conference was the realization that we had all been looking for ways to evolve – individually and as a field – and that here was an opportunity for doing so. The output of that conference was a book, Rethinking Negotiation Teaching: Innovations for Context and Culture, which is replete with new ideas as well as with cross-national and cross-culture collaborations that would never have been possible without this program. More about this unique book, and the questions it seeks to raise and address, can be learned by reading the first chapter. Another output was a special volume of Negotiation Journal, dedicated to the same theme as the conference and comprised of articles written by conference participants.

A year and a half later – last week – we got together for the second phase of the project, the Istanbul conference. One thing that immediately stood out was that the group had expanded and diversified, with representatives from more countries participating. The second was that participants already knew the drill – and came to Istanbul with ideas for collaboration and writing that they had been stocking up on in the months that had passed since the previous book came out.

However, not wanting to let us get stuck in a rut, and practicing quite a bit of what we had all been preaching, the organizers threw participants a curve (well, we actually knew about it ahead of time, and were looking forward to it) by providing a new framework and methodology for the conference. This time, in addition to a training course for Turkish businesspeople and lawyers conducted by Ken Fox and Manon Schonewille, which incorporated some of the new ideas developed in Rome (referred to as Negotiation 2.0 ideas or elements), the conference itself went on the road, spending relatively little time inside the conference hall. Different methods, generally dubbed ‘adventure learning’, were used as new tools to learn about negotiation: The first was accompanying, interviewing and observing local businesspeople in action, exposing ourselves to their context of commerce and relationships as they shared their views on business, ethics and negotiation with us.

The second was a direct real-life negotiation exercise, in which we spent hours wandering Istanbul’s famous bazaars and bargaining with the people who do it day in, day out their entire lives. The third was a more oblique and indirect method, in which participants made their way around the city in small groups, with certain missions or goals, with the meta-goal of examining their negotiation and decision-making processes.
These types of ‘adventure learning’ seemed to have strong effect, in shaking participants out of our regular classroom-oriented constraints. Of course, doing it in Istanbul is one thing, doing it back home with students familiar with (and perhaps not as excited by) their hometowns is quite another.
Another question to be explored is whether this type of real-life learning can only be done in an academic framework (given issues of time, motivation, perceived relevance, etc.) or if it might be done somehow in the context of an executive training course as well.

Another important part of the conference were short teaching units, in which participants presented ‘new’ teaching units developed as a result of, or through the perspective of, Negotiation 2.0 as it was conceptualized in the Rome conference and in Rethinking Negotiation Teaching. The participants taking part in each learning unit first simulated being ‘students’, learning the new content, and then transformed back to being teachers – providing feedback, critique and suggestions on content and methods.

For example, in response to the role of gender being spotlighted as a central theme emerging in Negotiation 2.0, Sandra Cheldelin and Andrea Schneider gave a unit on Gender Bias and Stereotyping. Mario Patera gave a unit expanding negotiators’ Emotional Vocabulary. Perhaps directing us eastwards towards the next conference venue, Andrew Lee and Vivian Feng Ying Yu introduced the role of cultural symbols by showing how the words or symbols used in a given culture for depicting negotiation terms affect the way negotiation is grasped and practiced within that culture. I joined these brave presenters (I say brave, as before the conference I had a mental picture of all of these people putting bulls-eyes on their chests and walking into the room to invite all of their peers to throw pedagogical darts at them. In practice, of course, it was a wonderful, enlightening experience!) in discussing E-mail Negotiation – what students need to know about it, and how we might teach it.

Towards the end of this wonderfully orchestrated mixture of novel experiential learning and classroom exposure to the first intentionally crafted elements of Negotiation 2.0, we got down to business. Themes for writing were explored, and as people discovered shared research interests with each other, partnerships were formed. Given the nature of the conference, many of these partnerships are multi-national and multi-disciplinary – promising some fascinating new perspectives.

If I thought I may have overcommitted by promising Jeff I’d blog on the conference, that can’t hold a candle to the writing commitments many of the participants took on themselves! This unique coming-together of people and ideas and opportunities was just too good to pass up.

In addition to theoretical pieces, the organizers are hoping that participants will also suggest and provide what might be called ‘operationalizing pieces’ – class activities, teachers’ guides, simulation-games, etc. – which will help make these ideas accessible to trainers looking to implement Negotiation 2.0 in the classroom. Yael Efron and I developed, field-tested and wrote up one of these pieces on the way home (it’s amazing how much you can accomplish, when your flight gets delayed and you’re stuck in the airport lounge…): A guide for trainers on how they can use the road to the training venue – whether down the block or on the other side of the world – as an adventure learning environment in which they can conduct exercises aimed at getting themselves in the right frame of mind before entering the training room.

Hopefully we’ll be seeing some of the outputs of this conference in the next few months (I’ve only scratched the surface in describing what some of these outputs may be!) and the new volume/edition in about a year. I think that when it comes out – negotiation teaching will begin to change in a very fundamental way.

I think this blog has gone on long enough – I don’t want it to run on into my trip to the final activity of this project – the May 2011 conference in Beijing. Thanks for having me, Jeff and everyone, and I’ll keep you posted!

Guest Blogger: Jessica Carter, Kiwi Mediator Extraordinaire

October 7, 2009

Please enjoy the following submission as the second installment of the 2009 Guest Blogger series.
Today’s guest blogger is Jessica Carter, Senior Advisor Mediation Practice at the Department of Building and Housing in New Zealandand you can read more about her [here].

Commands, Hints and What Lies Between

I spotted Malcolm Gladwell’s recent bestseller, ‘Outliers’ at a bookstore at JFK just after April’s ABA Conference in New York and I suspect I’ve joined a group of travellers that have happened upon it in the same way. It grabbed my attention as I browsed, on the lookout for a good read on a long journey, and it promised to tell ‘The Story of Success’.

I recommend it. It’s the kind of book that has a chapter or two, or a subject or two, that grab you and stay with you – ask anyone who’s read it “what part spoke to you the most?” For me, it was two aspects which related to mediation practice.

First, Gladwell suggests that it takes 10,000 hours of practice to become an expert at something, therefore a champion chess player, a concert pianist, will have dedicated 10,000 plus hours to reach their level of expertise, and most likely an Olympic athlete and an expert mediator will have done the same. That’s a lot of practice, mediators! And it resonates with the view that mediators should think of themselves as having the “beginner’s mindset” and being in a “permanent state of learning”.

Second, Gladwell’s examples of mitigated language and miscommunications on the flight deck and how this featured as a contributor to airline disasters in the 1980s and 1990s was compelling reading for a mediator. He described 6 levels of responses that people utilise in communication and ordered them from zero-mitigation (the command) to the most mitigated statement of all (the hint). In brief, they are:

1. Command (a direct and implicit instruction is given)

2. Obligation (a view or an opinion about an action is expressed)
3. Suggestion (the speaker suggests that others join in the action, leaving room to disagree)
4. Query (the question is asked and the listener can decide the action)
5. Preference (the speaker lets the audience know what they would like, without making it clear that they have to follow through)
6. Hint (the most mitigated communication of all – you can understand it if you can decode it!)

When I read this, I thought of those situations in mediation when one party uses the polite and culturally-comfortable preference or hint and another is immediately frustrated because their personal mode of communication is ‘command and control’. The commanding party expects the listener to receive the communication as it’s stated and act on it. The hinting party expects the receiver of the information to decode the meaning (possibly a longer process) and then act on what they perceive the meaning to be. A polite way of expressing your needs? Well, yes… if the parties in the room understand your intention!

I unintentionally communicated this at home for 3 years and realised I could have used Malcolm Gladwell’s book some time ago, and been more successful. I badly wanted a bass guitar for Christmas and as Christmas rolled by twice with nothing under the tree in a long case I wondered why my family had ignored my requests. I let them know my wish to learn the bass (5 – preference) and mused that it would be great to learn the bass sometime (6 – hint) until last Christmas when my son, armed with a shiny red guitar said: “Mum, you have to stop hinting and just come straight out with it! Say what you mean!” Oops, he was looking for the mode of communication that he responds to, no.1 – the command, and was frustrated by my indirect approach.

Understanding the cultural barriers which prevent (or promote) certain types of communication has implications for people who work in teams too. Outliers lives up to the expectations on its cover, and sets out a series of stories and case studies about why and how people have achieved expertise and success.

You can Learn more about the book Outliers from Gladwell’s site [here].

Guest Blogger: D.A. Graham, Princeton Ombudsman

September 23, 2009

Please enjoy the following submission as the first installment of the 2009 Guest Blogger series. D.A. Graham is the ombudsman from Princeton University and you can read more about him [here].


Human Needs Theory meets Conflict Resolution Theory

“Conflict avoidance is not conflict resolution.”- John Burton
Human Needs Theory (HNT) was developed in the 1970s and 1980s as a generic or holistic theory of human behavior. It is based on the hypothesis that humans have basic needs that have to be met in order to maintain stable institutions (societies, organizations, etc). As John Burton describes:
“We believe that the human participants in conflict situations are compulsively struggling in their respective institutional environments at all social levels to satisfy primordial and universal needs – needs such as security, identity, recognition, and development. They strive increasingly to gain the control of their environment that is necessary to ensure the satisfaction of these needs. This struggle cannot be curbed; it is primordial.”[1]

Now we know that there are fundamental universal values or human needs that must be met if institutions are to be stable. That this is so thereby provides a non-ideological basis for the establishment of policies. Unless identity needs are met, unless in every social system there is distributive justice, a sense of control and prospects for the pursuit of all other human societal developmental needs, instability and conflict are inevitable.

If the hypotheses of this theory are correct, if there are certain human needs that are required for human development and social stability, than the solution to conflict must be the ability to create an environment in which these needs can be met. This is where Human Needs theory meets Burton’s Conflict Resolution Theory (CRT).
Professor Burton distinguishes between conflict resolution, management and settlement. Management is ‘by alternative dispute resolution skills’ and can confine or limit conflict; settlement is ‘by authoritative and legal processes’ and can be imposed by elites.[2]. Burton suggests by contrast:

“. . . conflict resolution means terminating conflict by methods that are analytical and that get to the root of the problem. Conflict resolution, as opposed to mere management or ‘settlement’, points to an outcome that, in the view of the parties involved, is a permanent solution to a problem.” [3]
By accepting the assumptions and hypotheses of the Human Needs Theory, Burton suggests that there is a need for a paradigm shift away from power politics and towards the ‘reality of individual power’. In other words, individuals, as members of their identity groups, will strive for their needs within their environment. If they are prevented from this pursuit by other identity groups, institutions and other forms of authority, there will inevitably be conflict. The only solution is for the groups to work out their problems in an analytical way, supported by third parties who act as facilitators and not authorities. This is particularly relevant when the conflict is over needs which cannot be bargained and not material interests, which can be negotiated and compromised.

If the participants in the conflict can begin to recognize their conflict as a breakdown of relationships, and that there are fundamental similarities between the antagonists, then the process of abstraction will enhance their objectivity.

The purpose of this process is to enable the participants to come to the understanding that all the participants have legitimate needs that must be satisfied in order to resolve the conflict. The other key here is to develop an analytical process to facilitate the changes required to create a system in which these needs can be met. Burton notes:

“Conflict resolution is, in the long term, a process of change (…). It is an analytical and problem solving process that takes into account such individual and group needs as identity and recognition, as well as institutional changes that are required to satisfy these needs.”[4]
John Burton, ‘Political Realities’ in Volkan, 1991, p. 20.


[1] John Burton, ‘Conflict Resolution as a Political System’ in Vamik Volkan, et al (eds.), The Psychodynamics of International Relationships: Volume II: Unofficial Diplomacy at Work. Lexington, MA, Lexington Books, 1991, p. 82-3.
[2] John Burton, ‘Conflict Resolution as a Political System’, in Volkan, 1991, op. cit., p. 81
[3] Ibid., p. 73.
[4] John Burton, ‘Political Realities’ in Volkan, 1991, p. 20.

’09 All Star Guest Bloggers

August 27, 2009

There are many brilliant ADR professionals out there (much more brilliant than me) that for one reason or another, they do not write as much as they should or blog.

A few months ago I had the idea to reach out to some of these all-stars and ask them if they were interested in being part of my 2009 roster of all-star guest bloggers. I can happily say two things:

1) I am honored that each person I asked agreed!

2) I think all the readers will be just as happy as me to be able to read unedited writings from some of the most brilliant people in the ADR field.

The postings will be on the following dates:

September 23rd D.A. Graham [read]

October 7th Jessica Carter [read]

October 21st Noam Ebner [read]

November 4th Alex Yaroslavsky [read]

November 18th Jose Pascal Da Rocha [read]

December Colm Branningan

Listed Alphabetically

Colm Brannigan

After undergraduate and graduate studies in history, Colm received his LL.B. from Queen’s University in 1981 and an LL.M. in Alternative Dispute Resolution (ADR) from Osgoode Hall Law School of York University in 2003.

He holds the designation of Chartered Mediator (C. Med.) from the ADR Institute of Canada and is a Certified Mediator through the International Mediation Institute in the Netherlands.

A former litigation lawyer, Colm has been a full-time mediator since 1999 with a wide range of experience in condominium, commercial, technology, employment, estates and family disputes.

In addition to practice, and writing articles and book reviews on ADR and ODR topics, Colm has been a participant and speaker in various dispute resolution and professional development programs and is a part-time instructor in law at Humber College Institute of Technology & Advanced Learning in Toronto.

Colm is a board member of the ADR Institute of Ontario, co-chair of its technology section and co-editor of its newsletter. He also a member of various other professional organizations including the Ontario Bar Association – ADR Section and the Section of Dispute Resolution of the American Bar Association. He is the founder/moderator of “Mediate-Canada” an ADR listserv hosted by Google Groups.

Jessica Carter

Jessica Carter is Senior Advisor Mediation Practice at the Department of Building and Housing in New Zealand and a practising mediator. She is responsible for developing and monitoring standards of mediation practice, building and implementing mediation training programs, and advising on new mediation initiatives and developments for a large mediation team in New Zealand’s public sector.

Jessica is active in mediation, conflict management, negotiation, coaching, delivering training and dispute system design. She is a member of the Australian and New Zealand LEADR Panel of mediators, the Asia-Pacific Mediation Forum, the Association for Conflict Resolution (ACR), the American Bar Association Section of Dispute Resolution and delivered a Paper on raising mediator quality in New Zealand’s public service at the 2009 Conference in New York. Jessica has completed mediation and negotiation programs at Harvard Law School, a Master of Dispute Resolution in UWS School of Law in Sydney, and attended the International Ombudsman Association program for mediators at the United Nations Office, Geneva.

Jose Pascal Da Rocha

José Pascal da Rocha, JD, is a freelance mediator. He has developed his practice in international mediation.. His practice reaches from resolving humanitarian conflicts in Africa, commercial dispute resolution in the United Arab Emirates to the project management of a center for conflict resolution in Southern Russia. He teaches mediation at several universities, such as the Columbia University, New York, the Southern Federal University of Rostov, Russia and Military Academies of NATO forces. He has published on international mediation as well as diversity management, critical thinking and reflection.

Noam Ebner

Noam Ebner is a negotiation consultant and trainer, an attorney and a mediator. He divides his time between his home and office in Jerusalem and his teaching, training and consulting activities abroad.

He manages Tachlit Mediation and Training, which deals with a wide spectrum of disputes, ranging from business partnership dissolving to employment disputes and divorce mediation.

Noam has been on the faculty of Sabanci University since 2003, teaching the practical aspects of negotiation and mediation in the Graduate Program on Conflict Analysis and Resolution in the Faculty of Arts and Social Sciences.

Noam is a Senior Fellow at the United Nations’ University for Peace in Costa Rica ( and teaches in the Werner Institute’s Graduate Program on Negotiation and Dispute Resolution at Creighton University’s School of Law (

D.A. Graham

D. A. Graham is the University Ombudsman at Princeton University.

Before arriving at Princeton University, D. A. was the Student Ombudsman at San Diego State University for two years. Prior to that, he served as a U.S. Navy Chaplain participating in Operation Iraqi Freedom. In 2001 D. A. received the Military Chaplain’s Association Chaplain of the Year Award for service with the U.S. Marine Corps. He is a graduate of the University of Alabama, where he earned B. A. degree in Speech Communication in 1990 and was the Founding President of the Alabama Student Society of Communication Arts (ASSCA). He also was selected as the first Student Ombudsman for the University of Alabama in 1994. D. A. attended the Interdenominational Theological Center in Atlanta, GA, where he received his Master of Divinity degree in 1998. During this time he served as a Resident Director at Morehouse College where he received the Student Advisor of the Year Award. While stationed in Okinawa, Japan he received his Master of Human Relations degree from the University of Oklahoma in 2002 with a specialization in Mediation/Negotiation. D. A. is a member of The International Ombudsman Association (IOA), The Association for Conflict Resolution (ACR-GNY) and The American Society for Training & Development (ASTD)

Alex Yaroslavsky

Alex Yaroslavsky, NCM is the founder of Yaro Group, LLC – a dispute resolution consultancy specializing in workplace conflict resolution. Yaro Group’s services include executive coaching, training, facilitation, communication process analysis and electronic brainstorming.
Since 2000 Alex has been working with major clients in the financial services industry, including Citigroup, HSBC, Merrill Lynch, U.S. Trust and WestLB AG. His experience includes resolving commercial, organizational and cross-cultural disputes.

Alex teaches Dispute Resolution at the John Jay College of Criminal Justice and is a mediator with New York City’s Civilian Complaint Review Board. He is also a member of the FINRA and the New York County Lawyers’ Association mediation and arbitration panels. Alex was one of the first mediators to become certified by the New York State Dispute Resolution Association in 2009.