Gini Nelson’s 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: 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 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”.

            

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: Collaborative Practice And Why Some Parties May Prefer It To Mediation

Collaborative Practice is generally a very good process. It offers a valuable alternative for parties who want lawyers to manage the process and to start negotiation from the beginning of a case. The disqualification agreement provides comfort for parties who want a barrier making it hard to use litigation and security that Collaborative lawyers will not plan how to use the process against them in court.

The Collaborative movement has developed detailed practice protocols as well as an infrastructure of professional standards, local practice groups, trainings, and publications. Many Collaborative groups normally use an interdisciplinary model in which it is expected that parties will use individual coaches and joint child development and financial experts. Collaborative Practice is thus particularly desirable for people who want a highly-defined process which may regularly involve multiple professionals.

For more information about Collaborative Practice, visit the International Academy of Collaborative Professionals.

Like mediation, Collaborative Practice is not for everyone. Despite great efforts to use Collaborative process in non-family cases, very few parties or lawyers have been willing to use the process outside of family law. Some parties do not want to use a process in which they risk suddenly losing their lawyer - especially since the other side can unilaterally “fire the other side’s lawyer” by terminating the process. Some parties may also prefer a process that does not have relatively prescribed procedures and that may encourage them to use more professionals than they would like.

John’s series will continue later this week with “Cooperative Practice And Why Some Parties May Prefer It To Collaborative Practice”.

            

I came across these International Dispute Negotiation podcasts recently on the International Institute for Conflict Prevention and Resolution’s (CPR) website. They address hot topics in cross-border commercial conflict resolution. New ones are added every Friday. Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas, is host. Michael is based at his company’s headquarters in Florence, Italy and represents his division in disputes world-wide, including work in negotiations, mediation, and arbitration.

Recent podcasts include:

• Offshore Litigation Work in India — This controversial method of reducing litigation costs in common law systems, like the US and UK, send legal work to India.
• How to Effectively Use Mediators with interview featuring Prof. Dwight Golann from Boston’s Suffolk University Law School.

Tomorrow’s podcast is “The Arbitration Tribunal of Barcelona”.

Click here for more information.

            

Publisher Don Hutcheson has added an ADR column to online work-life balance journal, The Complete Lawyer. The column is The Human Factor and it is written by me and my fellow bloggers Stephanie West Allen of idealawg and Brains on Purpose, Victoria Pynchon of Settle It Now Negotiation Blog, and Diane Levin of the Mediation Channel. You can meet us in the first column in which we introduce ourselves to The Complete Lawyer’s readers.

            

Peter Adler is one of the conflict specialists I respect most. Earlier posts about his work are posted here and here. He has a new, particularly timely article at Mediate.com that bears reporting: 12 Questions for Hillary Clinton, John McCain, and Barack Obama on “Eye-of-the-storm” Leadership.

These are Peter’s questions to the Presidential Candidates:

1. What Is Your History of Bringing People Together?
2. Who Are Your Best Examples of Leaders Who Brought People Together?
3. On Which Issues Will You Immediately Seek Bipartisan Support, and How Will You Get It?
4. Who Will You Have To Partner With To Achieve Your Objectives?
5. On Those Top Issues, How Will You Determine Whether You Compromise or Stand Firm?
6. How Specifically Will You Relate Differently With Countries At Odds With the U.S.?
7. What Specific Kinds of Arrangements Do You Think Can Be Brokered In the Middle East?
8. What Is Your Dominant Leadership Style, and Why Are You the Right Person At This Time?
9. What Is An Example Of Your Intellectual Flexibility, Your Ability To Shift Your Views In Response To New Information or Changing Conditions?
10. In What Ways Should America Change Its Role In the World, and How Will You Mobilize Americans To Support That Shift?
11. What Mistake Made By Previous Presidents Are You Most Eager To Avoid?
12. How Will You Handle That 3 A.M. Call?

Here’s Peter’s article.

            

“Being righteously right leaves absolutely no space for collaboration, for communication, for skillful conflict resolution, let alone for true relationship.” — Daniel Bowling

Engaging Conflicts Today interviews Daniel Bowling, ADR Program Staff Attorney for the US District Court for Northern California, and co-editor and co-author of Bringing Peace into the Room: The Personal Qualities of the Mediator and their Impact on Conflict Resolution (Jossey-Bass, 2003). He co-founded the first mediation organization in South Carolina, the LowCountry Mediation Network. As Executive Director of SPIDR, he managed the merger among SPIDR, AFM, and the Conflict Resolution Education Network, and served as the first CEO of ACR. He is working on a new book on Mindful Mediation.

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

            

Please note Diane Levin’s blog’s new name and home: MediationChannel.com. She’s one of the best of the ADR bloggers…. and one of my favorites. I interviewed her in the past for Engaging Conflicts Today, and she continues to provide, as she puts it, “the latest news, info, and ideas (not to mention the odd offbeat story) about mediation, negotiation, conflict resolution and the law”.

            

This is one of Guest Blogger Ombuds Thomas Kosakowski’s posts in his series “10 Things Lawyers Should Know About Ombuds”, part of the Engaging Conflict’s Taking Peacemaking Public series. His Introduction and point #1 are posted here, point #2 here, point #3 here, point #4 here, and point #5 here.

6. Ombuds Avoid Formal Processes

Ombuds provide only informal dispute resolution. They do not investigate, arbitrate, adjudicate or otherwise participate in any formal resolution process whether internal or external to their organization. Complainants are not required to use the ombuds services before beginning a formal process and doing so does not provide any advantage. Instead, Ombuds provide informal assistance by listening to their visitors, identifying issues, developing options for resolution, facilitating dialog and mediating disputes.

This is not to say that ombuds will not discuss formal options for resolution. Indeed, ombuds are an important resource because they offer a safe place for individuals to raise and consider a range of approaches to a particular situation. Ombuds thus have an obligation to be knowledgeable about the policies and procedures of their organization. If informal efforts fail and an individual decides to pursue a formal process, an Ombuds make a referral to the appropriate resource. However, the Ombuds will not participate in any subsequent formal proceeding as a witness, advocate, monitor or any other way.

The willingness to participate in formal processes marks a fundamental difference between classical and organizational Ombuds. Because classical Ombuds participate in formal processes, they are often mentioned in court decisions as parties or important percipient witnesses. Generally, case law involves classical Ombuds more often than organizational Ombuds. Unfortunately, the critical distinction between Ombuds is not mentioned by the courts (or inadvertently mischaracterized). Therefore, when doing legal research attorneys should be careful to understand what type of Ombuds was involved in a particular case.

Tom’s series will continue in the new year.