Gini Nelson’s Engaging Conflicts

“As a young person who kind of grew up as an environmentalist/feminist/hippie I’ve become very bored and un-enthusiastic about the mediation field.” — Breyer Patterson

Engaging Conflicts Today interviews Breyer Patterson who is the lead InstantAssist Administrator, a new business offering of the same company that offers Mediate.com. She has been mediating since 1997, focusing on family, business, landlord-tenant, elder and family matters. Breyer received her masters degree in Conflict Resolution from the University of Oregon in 1999. She is also a mediation trainer with the University of Oregon law school, and a facilitator at Lane Community College.

If you would like a copy of her interview, and are not signed up for the newsletter (which you can do in the sidebar on the right!), email me this week at engagingconflicts@gmail.com with Breyer Patterson in the subject line and I’ll email it to you.

By the way, I offer Breyer’s interview because I’m interested in giving more voice here at Engaging Conflicts to students and practitioners who are “younger” in the field of ADR than I am, and who might not have the “credential” and additional professional license that I have as a practicing attorney. I think it’s harder for most mediators who are not attorneys to make a reasonable living, and I would like this to be more openly discussed– as Breyer says in her interview, “…the field is very difficult to make a living at and I sure wish someone had at least given me a head’s up on that.”

Please write me (EngagingConflicts@gmail.com) if you are interested in sharing your views on this possibly as a Guest Blogger at Engaging Conflicts.

Yes, Engaging Conflicts is now featured in Guy Kawasaki’s “All Top” site featuring live feeds from “the best of the best” websites, in the law category. Guy describes the site generally as:

a news aggregation site that provides “all the top” stories for forty of the most popular topics on the Web. The headlines and first paragraph of the five most recent stories from forty to eighty sources for each topic are displayed. Alltop stories are refreshed approximately every ten minutes.

Engaging Conflicts joins these great ADR sites by colleagues and friends of mine: Diane Levin’s Mediation Channel and World Directory of ADR Blogs; Victoria Pynchon’s Settle it Now Negotiation Blog; Geoff Sharp’s mediator blah blah; Stephanie West Allen’s Idealawg;Tammy Lenski’s conflict zen; and Chris Annunziata’s CKA Mediation & Arbitration Blog.

Visit us all at http://law.alltop.com.

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two, Part Three, Part Four, Part Five]

Part Six: How Practitioners Can Add Cooperative Practice into the Services They Offer. Mediators may also be interested because they may be used in Cooperative cases.

Lawyers who want to do Cooperative Practice may use or adapt DCI’s procedures. For examples of other forms of Cooperative negotiation agreements, see the Boston Law Collaborative and the Mid-Missouri Collaborative and Cooperative Law Association’s website.

Lawyers can start using a Cooperative process an ad hoc basis, which may be particularly appropriate when the lawyers in a case have previously worked well together and trust each other. If appropriate, the lawyers might convene a four-way meeting with the parties early in the case to jointly identify issues, exchange information, and plan how to handle the case in the future. At that point, they might sign a Cooperative participation agreement if they think it would be helpful.

Lawyers may also organize practice groups to promote Cooperative Practice. Such groups can help develop practice norms and procedures and help lawyers develop reputations for cooperation.

I have been giving talks to encourage lawyers to incorporate Cooperative Practice into the “portfolio” of services that they offer. I recently gave a talk in Seattle and a CLE conference call in Colorado and Cooperative groups may develop there — in addition to the ones in Wisconsin, Missouri, and Boston.

I would be happy to talk with others interested in developing Cooperative Practice for your cases. Feel free to e-mail me at landej@missouri.edu or call me at 573-882-3914.

You can go to my website to see the other articles I have written on the subject.

This concludes John’s series. Thank you, John, for sharing this with Engaging Conflicts!

This concludes Mary Greenwood’s series based on an excerpt from Chapter 9, How To Mediate Like A Pro, published February 2008. Here are the links to Parts One, Two, and Three.

As her bio states:

Mary Greenwood is an attorney, Mediator and Author of award-winning book, How To Negotiate Like A Pro: 41 Rules for Resolving Disputes and her most recent book is How To Mediate Like A Pro:42 Rules for Mediating Disputes.She lives in Miami Beach, Florida. Her website is www.marygreenwood.com and her email address is howtomediate@aol.com

How To Talk Like A Mediator

One of the hardest jobs of a mediator is to give a good response to the parties’ concerns. After mediating thousands of cases, I have heard a lot of questions and concerns from the parties. The mediator has to give a response that informs without alienating one or both parties. Here are some responses that a mediator can make. They are not the only response but what I consider a good response.

How the Mediator Can Reframe One Party’s position.

The Mediator can change the tone of what is said to him. One side might be angry, distraught, and accusatory and say things that would solicit a negative response. Here are some examples of toning down the language.

Party: I am mad as hell and won’t take it anymore!

Mediator’s Interpretation: The other side is a little upset.

Party: He is a crook and liar.

Mediator’s Interpretation: The other side does not believe you.

Party: He did not send the item.

Mediator’s Interpretation: The party did not receive the item. Have you sent it yet?

Party: I want to quit this mediation.

Mediator’s Interpretation: The buyer wants me to close the case.

Party: The other party is the biggest jerk I have ever met.

Mediator’s Interpretation: The other party does not like what you have done.

Party: The item was smelly and filthy.

Mediator’s Interpretation: The buyer says the item was not clean and had an odor.

Party: I don’t trust him.

Mediator’s Interpretation: The buyer does not think you will do what you say you will.

Party: The seller ripped me off.

Mediator’s Interpretation: The buyer says he does not like what you did.

Party: He is just stupid.

Mediator’s Interpretation: The other party does not think you understand his position.

Party: Refurbished is supposed to be like new. This was a piece of garbage with scratches and dings.

Mediator’s Interpretation: His idea of refurbished is different from yours. He says there were scratches and dings.

Party: I would not sell my house to him if he was the last person on earth.

Mediator’s Interpretation: He has decided not to sell the house to you.

Carolyn Elefant’s was one of the first blogs I read, back in 2002 when she started MyShingle.com. She is offering a free download of a compiled collection of her blog posts called “The Lawyer You Always Wanted to Be: Inspiration for New Grads and Practicing Lawyers.” I think the points are also applicable for mediators and other conflict specialists, as they relate to the dreams and disappointments of establishing a business and being a helping professional.

As she says:

As you probably expect or already realize, practicing law can be stressful. Long hours, nasty supervisors, difficult clients and worries about making the student loan payments can put a damper on even the best of jobs. The day to day stress scarcely leaves time to evaluate where you’re going or how far you’ve come or whether you’re doing what matters to you. This collection of posts is intended to remind, encourage and inspire you to remember what matters and to become the lawyer you always wanted to be.

The article’s format makes clear it’s going to be published as a Change This manifesto (I have posted about other Change This manifestos before, e.g., here, on creativity; here on time management; here, titled Drawings That Will Change Your Life; and here, one of my favorites, on literacy). You have a chance to get Carolyn’s article now, pre-Change This release — just click below to download it. But if you go to her site here to download it by May 15, she’ll put you in a drawing for a copy of her newly published book Solo by Choice: How to Be the Lawyer You Always Wanted to Be.

inspired-solo-”The Lawyer You Always Wanted to Be”.pdf

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two, Part Three. Part Four]

Part Five: How Cooperative Negotiation Is Different From Litigation In Negotiation.

Since a Cooperative process does not include a disqualification clause as in Collaborative cases, some people wonder if Cooperative process is any different from negotiation in litigated cases.

Although many lawyers negotiate cooperatively at times, a Cooperative process can provide greater predictability and confidence than in litigation. DCI members say that a Cooperative process creates a legal culture where cooperation is the norm. Traditional litigation-oriented practice normally does not involve an explicit process agreement. In litigation, lawyers often are not sure about the other side’s intentions and each side may feel that it needs to take tough positions to protect themselves. This sometimes creates a cycle of adversarial behavior that is hard to break out of.

Although DCI members sometimes use litigation procedures (such as formal discovery or contested hearings) in Cooperative cases, these are used as the last resort and are generally intended to advance the Cooperative process. For example, one lawyer said that a party may need some “reality therapy” of hearing from a judge at a temporary order hearing and then get right back to negotiation for the permanent resolution. When contested hearings are needed, the Cooperative process can improve the quality of litigation. One lawyer said that in trials in a Cooperative cases, the process tends to be more cooperative than in traditional litigation-oriented cases.

For more information about my study of Cooperative Practice in Wisconsin, click here.

The next part describes how practitioners can add Cooperative Practice into the services they offer. Mediators may also be interested because they may be used in Cooperative cases.

John’s series will conclude next week with “How Practitioners Can Add Cooperative Practice Into The Services They Offer”.

I posted here announcing the premier edition of my column at the work-life online magazine The Complete Lawyer, distributed to some 300,000 attorneys nation-wide. The column is co-written with Vickie Pynchon, Diane Levin, and Stephanie West Allen. Here’s the newest installment of “The Human Factor,” how each of us became mediators after becoming lawyers.

The theme of this issue of The Complete Lawyer is “Focus On a Sound Mind In a Sound Body”. There’s a great intro to the issue here at the What About Clients? blog.

The issue’s theme quote is by Susan Daicoff, author of Lawyer, Know Thyself:

True intelligence requires the ability to integrate and synthesize the wisdom of the head and the heart, the Thinker and the Feeler, and the mind and the body. We are trained to “live in our heads.”

I referred to Susan’s work here when I began my series last week on MBTI applications in legal and mediation practices. Her book, Lawyer, Know Thyself, synthesized forty years of empirical research on lawyers’ personality traits and related these findings to professionalism and lawyer well being. I’ll be writing more about her findings later in the MBTI series.

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two, Part Three]

Part Four: The Divorce Cooperation Institute And How DCI Lawyers Do Cooperative Practice.

The last part of this blog [Part 6] describes why the ADR field should add Cooperative Practice to the “ADR toolkit.” This part describes how lawyers can add it to your own practices. Mediators should also be interested because Cooperative Practice often involves mediation when people have difficulty resolving disputes.

Lawyers interested in offering Cooperative Practice may use or adapt DCI’s approach, as appropriate. Although DCI uses the process only in divorce cases, it can be readily adapted in other types of cases.

DCI members normally use an explicit process agreement at the outset. The agreement requires people to: (1) act civilly, (2) respond promptly to reasonable requests for information, (3) disclose all relevant financial information, (4) obtain joint expert opinions before obtaining individual expert opinions, (5) obtain expert input before requesting a custody study or appointment of a guardian ad litem, and (5) negotiate in good faith to reach fair compromises based on valid information. Here’s the full version of DCI’s principles.

DCI members value Cooperative Practice because they can tailor the process to the parties’ needs. In Cooperative cases, they use many of the elements in Collaborative Practice – such as commitment to full disclosure of relevant information, four-way meetings, joint experts, and individual coaches. Many DCI members – including many who use Collaborative Practice – find Collaborative process to be too formal and rigid and believe that it sometimes involves more of these process elements than needed. DCI members report using them only as needed in Cooperative cases and so they believe that a Cooperative process generally produces good outcomes as efficiently as possible.

For more information about my study of Cooperative Practice in Wisconsin, click here.

John’s series will continue later this week with “How Cooperative Negotiation Is Different From Negotiation In Litigation”.

This continues Mary Greenwood’s series based on an excerpt from Chapter 9, How To Mediate Like A Pro, published February 2008. Here are the links to Parts One, and Two.

As her bio states:

Mary Greenwood is an attorney, Mediator and Author of award-winning book, How To Negotiate Like A Pro: 41 Rules for Resolving Disputes and her most recent book is How To Mediate Like A Pro:42 Rules for Mediating Disputes.She lives in Miami Beach, Florida. Her website is www.marygreenwood.com and her email address is howtomediate@aol.com

How To Talk Like A Mediator

One of the hardest jobs of a mediator is to give a good response to the parties’ concerns. After mediating thousands of cases, I have heard a lot of questions and concerns from the parties. The mediator has to give a response that informs without alienating one or both parties. Here are some responses that a mediator can make. They are not the only response but what I consider a good response.

Comments About The Other Party

Principled Party: It is not about the money but the principle.

Mediator’s Response: I understand that you believe you are right and you don’t want to go against your principles. As a mediator, I do not determine who is right or wrong. It is possible to resolve a dispute without making that judgment call. What is it that you truly want? Is it an apology or a change in policy?

Take It or Leave It Party: This is what I want and I am not budging.

Mediator’s Response: I understand you don’t want to budge from your position. Unfortunately, the other side is not budging, either, and we are at an impasse. Mediation is a give and take and there has to be some compromise if the case is going to be resolved. If the impasse cannot be broken by one of the parties, then I will have to close the mediation. Why don’t you split the difference and both parties get something?

Self-Righteous Party: Why should I apologize? He is the one who is wrong?

Mediator’s Response: Sometimes an apology is an easy and cheap way to resolve a dispute. Just because you apologize does not mean that you are taking anything away from your position. You can honestly say that you are sorry for the confusion or misunderstanding. An apology can go a long way to help the other party feel good about the situation. However, an apology must be sincere or it will make things worse.

Self-Righteous Party: I have done nothing wrong.

Mediator’s Response: I don’t like to think in terms of who is right or who is wrong. That is not the way to get something resolved. Let’s look at some solutions that would resolve this situation.

Self-Righteous Party: He made the mistake. Why should I suffer?

Mediator’s Response: Mistakes do happen. To err is human. I don’t think he did it on purpose. This gives you a chance to me magnanimous and understanding.

Judgmental Party: It is not fair that I give something up.

Mediator’s Response: Mediation is not about fairness or getting even. Both parties have to be willing to compromise to find a solution.

Disinterested Party: I really don’t care if this gets resolved. It is the other side’s problem.

Mediator’s Response: The other side is motivated to resolve this situation. Can you think of anything the seller could say or do that might change your mind?

Angry Party: He makes me so mad.

Mediator’s Response: I know you are upset. However, mediation is not going to be successful if the parties let their emotions interfere with resolving the dispute. Let’s concentrate on what you want to settle this dispute. Would an apology make a difference?

Judgmental Party: The other side lied.

Mediator’s Response: I know there is a misunderstanding between the parties. Whether he did it intentionally, I have no way of knowing. I suggest we give him the benefit of the doubt and let’s move forward.

Disappointed Party: She does not know how to communicate.

Mediator’s Response: I know that you did not receive any emails from her. Is it possible your spam filter blocked her emails. What do you want to tell her now? Let’s move forward and see if we can communicate.

Defensive Party: Yes, I did make a mistake, but she overreacted.

Mediator’s Response: I am glad you admitted your mistake. Maybe she did overreact, but she was very upset. Would you be willing to apologize to her? Sometimes an apology can go a long way to help start some dialog.

Defensive Party: She is making a mountain out of a mole hill.

Mediator’s Response: I know you think that she is making too much out of this. However this is very important to her and she can’t help how she feels. Try to put yourself in her shoes. Is there any way you can make her an offer?

Unforgiving Party: I want others to see his feedback. I don’t want to withdraw it.

Mediator’s Response: I understand what you are saying and it is your choice. However, you are missing out on an opportunity to have your feedback withdrawn, too. If you don’t care if your feedback remains as well, then I will close the case.

The series will continue with Part Four, How the Mediator Can Reframe One Party’s position, next week.

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two]

Part Three: Cooperative Practice And Why Some Parties May Prefer It To Collaborative Practice

Cooperative Practice is relatively new and provides a desirable alternative for some parties. The Divorce Cooperation Institute Wisconsin started offering it in 2003. The Boston Law Collaborative and the Mid-Missouri Collaborative and Cooperative Law Association began offering it in 2005.

Although a Cooperative process is often used in family cases, the lack of a disqualification agreement makes it attractive in non-family cases. For example, the Garvey Schubert Barer law firm offers a form of Cooperative Practice called Win² (Win Squared) in labor and employment cases.

Parties may prefer a Cooperative process over a Collaborative process when they:(1)trust the other party to some extent but are uncertain about that person’s intent to cooperate, (2) do not want to lose their lawyer’s services in litigation if needed, (3) cannot afford to pay a substantial retainer to hire new litigation counsel in event of an impasse, or (4) fear that the other side would take advantage of the process, particularly in cases involving serious domestic abuse. Of course, parties may prefer mediation if they want a third party to manage the process or they may prefer a Collaborative process if they want the security provided by the disqualification agreement.

I discussed these issues in more detail in an article I co-authored with Gregg Herman entitled, “Fitting the Forum to the Family Fuss: Choosing Mediation, Collaborative Law, or Cooperative Law for Negotiating Divorce Cases.” You can go to my website to see the other articles I have written on the subject.

John’s series will continue next week with his study of “The Divorce Cooperation Institute And How DCI Lawyers Do Cooperative Practice”.