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”.

            

As Tammy Lenski at Mediator_Tech says:

Success leaves clues: the mediator interview series

Tammy Lenski interviewed me earlier this week. Indeed, she and I exchanged interviews– here’s the link announcing her interview in Engaging Conflicts Today.As she says in introducing my interview:

Success Leaves Clues is my occasional series of interviews with interesting ADR professionals who have effectively navigated the intersection of technology use and ADR practice-building.

Gini Nelson and I re-connected a few weeks ago and agreed to exchange interviews, and I’m delighted she’s agreed to be profiled for this series. I first met Gini in person a few years ago at the Minneapolis ACR, when I attended a terrific workshop she lead on the neuroscience of conflict. I’d been teaching a grad course for years that integrated that topic into the course and was curious what Gini might add to my thinking about it. She was a dynamic presenter with good content and I’ve followed her blog and newsletters ever since.

Gini’s an active user of the web, as you’ll see in her interview below.

For the rest of the interview, here’s the link.

            

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”.

            

A friend and colleague recently forwarded to me a September 2004 article Malcolm Gladwell did for The New Yorker on the MBTI and other personality tests that employers may use (Personality Plus: Employers Love Personality Tests. But What Do They Really Reveal?). I respect and use the MBTI as a tool in my law and mediation practices. Indeed, I am a “qualified administrator” of the instrument, which is a “controlled instrument” whose access and use is regulated as further defined by its publisher:

Certain assessments published by CPP are available only to users who have appropriate training and credentials, and who adhere to the principals of proper use, including knowledge of assessments and their applications.

The classifications are based on The Standards for Educational and Psychological Testing (published by APA, AERA, and NCME and available here). The Standards is written for the professional and for the educated layperson and addresses professional and technical issues of instrument development and use in education, psychology, and employment.

I believe understanding and using concepts and tools relating to the MBTI benefits attorneys, mediators and other conflict specialists. I posted here about a workshop I gave last year for the New Mexico Mediation Association on using the principles in communication. Other uses include helping clients get through misunderstandings based on type differences, identifying blind spots in the problem-solving process based on type, using type concepts to bridge cultural and gender differences by focusing on type similarities, and understanding one’s own type to better identify the kind of practice one wants.

Use of this psychological type analysis is better studied in the legal field than in the mediation practice context. The most notable law-related works are University of Florida Law Professor Don Peters’ article, Forever Jung: Psychological Type Theory, the Myers-Briggs Type Indicator and Learning Negotiation, 42 DRAKE LAW REVIEW 1 (1993); and Florida Coastal School of Law Professor Susan Swaim Daicoff’s book, Lawyer, Know Theyself: A Psychological Analysis of Personality Strengths and Weaknesses, American Psychological Association (2004). Direct works are slowly showing up in the mediation practice context, such as with Sondra S. VanSant’s Wired For Conflict: The Role of Personality in Resolving Differences, Center for Application of Psychological Type, Inc. (2003).

Gladwell, whose work I generally very much enjoy, makes good points, and I agree with much that he says. I’ll discuss his points as I continue this series exploring MBTI applications. At the same time as I appreciate his points I would reframe this discussion somewhat differently. Hence, this series. My thoughts, which I will expand on over the upcoming weeks, include:


1. No one field can explain human behavior to the exclusion of other considerations. I started out focused on sociological explanations (my BA and MA studies). Later, I got interested in psychology. Later, I got interested in the neurosciences. It’s no one of them. It’s all of them (and more, most likely).
2. Each field that has a role, it’s explanations are also affected by the other fields — it’s not additive, it’s complex, and synergistic.
3. Most people don’t want to deal with complexity, or don’t have the education or time to deal with complexity, and end up (over)simplifying, especially for explanations of how and why humans act as they do.
4. Every tool (whether sociological, psychological, or a theory about neuroscience) can be used by people who are not the most skilled or wise about its use, and can be misused.
5. Any explanation, or explainer, that/who doesn’t recognize the above, is suspect.

My thoughts also include, about MBTI:


1. Gladwell doesn’t discuss scientific principles of validity and reliability, as applied to the various instruments. I know the MBTI purports to be statistically valid and reliable, and I know it is characterized as a “controlled instrument” by the American Psychology Association, I think it is. You have to be “qualified” (includes some training in statistics) in order to administer the instrument.
   
2. I believe many who administer and/or give the workshops on the instrument have not done the more in depth study and followed the evolving theory about MBTI. Maybe they got qualified 10 years ago and just got into ruts. I had the inclination to study it in some of its more complex forms, because they made the most sense to me. At the same time, most people don’t want the complexity, don’t hear or remember the complexity, and can (rightly for them) conclude the instrument is not valuable, or is of limited value. It’s a tool — you have to practice it and then get not only good, but wise, in using it.
   
3. I also believe many who administer and/or give the workshops are wrong and/or are not understood by the participants on some practical points about the MBTI. Many friends have told me they’ve been given it by their employers, and they were not told some of the points I emphasize. I would disagree with some of Gladwell’s characterizations about what the MBTI is supposed to mean. (I also would put some different light on the mother-daughter development of the instrument. It is, to me, a much more interesting story than he reports, with broader implications — it could also be told in a way that makes his telling of it sexist and overly-dismissive of at home, independent researchers, especially women in the first half of the twentieth century.)

And, final thoughts include:


1. So, explaining or predicting human behavior is complex, a protean mix (hard wired, affected by the physical environment, affected by the social environment of cultures/societies, affected by family, affected by peers, affected by dysfunctionalities in any of them, affected by healthy versions in any of them.
   
2. I use the MBTI as a starting point, and when important I look at it/the person/the situation more closely, even very closely. It’s part of the working hypotheses I view the world with, at least some of the time. I don’t say it’s the only or even the best explanatory/predictive tool. It is one of the best for me, as a starting point — but then you have the person in the particular situation, for the particular purpose, etc. I think different people will prefer different tools.
   
3. Individuals vary in individual psychological health, experiential wisdom, courage and leadership. No one type is better than the other, there are healthy and unhealthy individuals among all types, wise and not wise among all types, courageous and not, etc.
   

I intend to post to this series weekly. I will appreciate your thoughts so please write me in the comments or privately!

            

This continues the series based on Mary Greenwood’s book –an excerpt from Chapter 9, How To Mediate Like A Pro, published February 2008.From Chapter 9, How To Mediate Like A Pro, published February 2008. Here is the link to Part One.

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 Made to the Mediator

Righteous Party: Just decide who is right or wrong.

Mediator’s Response: That is not how mediation works. A mediator cannot decide who is right or who is wrong. In mediation, the parties decide what is right for them and how they will resolve the case. I only work as a facilitator and I do not weigh the evidence and determine who should win.

Suspicious Party: You are taking his side.
Mediator’s response: I am by definition a neutral third party. Sometimes I play the devil’s advocate and give the parties a reality check or suggest different alternatives. However, that does not mean I am taking sides.

Uncertain Party: What would you do?
Mediator’s Response: Generally I don’t like to give my opinion because it is really the other party’s opinion that counts, not mine. However, since you asked me, I would give the other side the benefit of the doubt.

Impatient Party: This is taking too long and is a waste of time.

Mediator’s Response: I know you think this is taking too long, but we are following a process. Sometimes this can take time, but it cannot be hurried.

Unsatisfied Party: You don’t know what you’re doing! Where were you trained?

Mediator’s Response: I am doing my best and I am always open to suggestions. I am not sure why you are asking the question, but I am certified by the Florida Supreme Court in County Mediation and have conducted over 6000 mediations. Not all mediations are going to be successful. It often depends on whether both parties are willing to work on finding a solution.

Annoyed Party: You don’t understand.

Mediator’s Response: Maybe I don’t understand. Can you try one more time to explain your position? Maybe I am missing something.

Party wants to quit: I don’t want to continue the mediation.

Mediator’s Response: Mediation is by definition a voluntary process and you can decide to discontinue the mediation at any time. Do you want me to try one more time to see if we can resolve this or do you want me to close the case now?

The series will continue with Part Three, Comments About The Other Party, next week.

            

I came across Michael Iva’s article 100 Ways to Kill a Concept: Why Most Ideas Get Shot Down at ChangeThis recently. It says:

So, you’ve got an idea. A big idea. But will your idea take flight? Not if you let your concept be killed by all the usual excuses you hear from your managers, your bosses, your spouses—excuses motivated by fear or possessiveness. In this wide-ranging manifesto, Iva offers you ways to persuade someone to embrace your idea, to not be swayed by negative responses, and to utilize your creativity.

Most people are afraid of or resistant to change and consequently, “kill” new concepts. Sometimes it is others’ concepts, sometimes it is their own. The “100 ways” are common responses to proposals for something new that can stop even considering them further, e.g., “It can’t be done”, That’s been done before”, “It’s not us”, “Yes, but”, etc.

The article is on creativity and how to get past the “100 ways”. Read more »

            

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.

Part One: Introduction

There is a growing interest in adding “Cooperative Practice” to the ADR toolkit. Cooperative Practice is related to – but somewhat different from – mediation and Collaborative Practice. All three processes encourage parties to resolve disputes by negotiating agreement, but they have different ways of doing so.

In mediation, an impartial third party helps parties to negotiate an agreement. In Collaborative Law, at the beginning of a case, lawyers and parties sign a “participation agreement” to negotiate in good faith and disclose all relevant facts. The participation agreement includes a “disqualification” clause which provides that if any party decides to litigate, the Collaborative lawyers are disqualified from representing the parties, who must hire new lawyers if they want representation in litigation. The formal difference between Cooperative Practice and Collaborative Practice is that Cooperative Practice participation agreement does not include the disqualification provision.

Each of these processes has advantages and disadvantages. I do not suggest that Cooperative Practice is necessarily preferable to the others. Rather, I think that some parties may prefer it in some cases – and that it is useful for the dispute resolution field to include this in the “toolkit” of desirable processes. At the end of this series, I will describe how individual practitioners can add Cooperative Practice to the set of services you offer – and how it can be useful for mediators.

Mediation generally is a very good process. Many parties like it because it is managed by an impartial party who may diffuse adversarial tensions when both parties (or none of the parties) are represented by lawyers. It is very flexible and has been used in virtually every kind of dispute. Some people may prefer another process, however, for several reasons. In some situations, the parties may each want lawyers to manage the process and would not feel secure if a mediator is primarily in charge. Mediation may not be appropriate when one party wants to take advantage of a power imbalance and a weaker party does not have a lawyer. Abuse of power may be a particular concern in cases involving serious domestic abuse. In the litigation context, mediation is often used late in the case, after much time, money, and emotion have been spent, so some parties may want a process that focuses on negotiation from the outset.

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