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”.

From time to time, a Guest Blogger will share voice at Engaging Conflicts. Previous Guest Bloggers are introduced here (Rawle Andrews, Jr. and David River), and here (Thomas Kosakowski).

John Lande is Director of the LL.M. Program in Dispute Resolution and Associate Professor at the University of Missouri School of Law. He teaches courses on lawyering practice, non-binding methods of dispute resolution, and dispute system design. His scholarship focuses on institutionalization of mediation in the legal system and how lawyering and mediation practices affect each other.

John has written a 6-part series for Engaging Conflicts on the growing interest in adding “Cooperative Practice” to the ADR toolkit. As he explains in his series, Cooperative Practice is related to — but somewhat different from — mediation and Collaborative Practice. As he says, “all three processes encourage parties to resolve disputes by negotiating agreement, but they have different ways of doing so.” The series will begin tomorrow.

John is a leader in following, researching and writing in this field. Previous posts about John Lande and the Cooperative Practice movement include:

• The Growing Cooperative Legal Practice Movement (April 2, 2008)
• John Lande Awarded the CPR Institute’s 2007 Award for Outstanding Original Professional Article (March 2, 2008)
• Principles For Policymaking About Collaborative Law and Other ADR Processes (May 9, 2007)
• The Future of Collaborative and Cooperative Law After Colorado Bar Association Ethics Opinion 115 (May 8, 2007)
• Collaborative Law Established, Cooperative Law Now Growing (March 6, 2007)
• Collaborative and Cooperative Law — Promise and Perils (January 22, 2007)

Additionally, I interviewed John for Engaging Conflicts Today, and share the full interview here. Here’s the pdf of that issue of Engaging Conflicts Today: Engaging Conflicts Today INTERVIEW.

And here’s the full text of the interview … Read more »

“I think the conflict resolution field must grapple with the question of why “third party neutral” expertise is not more sought after in some of the most volatile, dangerous and pressing conflict in the world today.” — Ellen Waldman

Engaging Conflicts Today interviews Ellen Waldman, who holds a law degree from New York University and an LL.M. in mental health law from the University of Virginia. She directs the mediation program at Thomas Jefferson School of Law and has spearheaded a number of grant projects relating to health care and conflict resolution. She sits on the ethics rosters of both court and community mediation centers. In the negotiation arena, Professor Waldman writes and speaks on a variety of topics, including bioethics mediation, restorative justice, dispute resolution with high conflict personalities, and therapeutic jurisprudence.

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 Ellen Waldman in the subject line and I’ll email it to you.

I’m reviewing The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, Christopher Honeyman & Andrea Kupfer Schneider, Editors (ABA 2006), through 2008 (it has 80 chapters, more than 700 pages of substantive text, and something for everyone, from novice to expert!). I’m reviewing the book because it’s hot, hot, hot. More about the book and its editors here.

Unforgiven: Anger and Forgiveness
Ellen Waldman & Frederic Luskin

Here’s the annotation from the book’s Table of Contents:
How many negotiations are reduced to a numbers game by the unthinking responses of professional negotiators who don’t recognize what is really at stake for their clients? How many negotiators frame what “should” be achieved in the negotiation, conveniently getting around the fact that the agent can’t be paid one-third of an apology? Here, a lawyer and a psychologist together examine the evidence that forgiveness may be the single most desirable negotiation outcome in many situations, when measured by physical and mental health of those involved — but that a lockstep push toward forgiveness in all disputes is neither possible, nor desirable. This chapter should be read in conjunction with Brown & Robbennolt on Apology.

These articles remind us that apology and forgiveness are complex concepts that should be used wisely. I’ll be reviewing Apology in Negotiation later in this series.

If the scientific research is to be believed, aggrieved disputants, even if they want to forgive, do not know how. But, forgiveness can be learned.

This article is not about learning how to forgive. Nor is it about the authors’ conclusion that forgiveness can give tangible health benefits and can have transformative effects on individuals locked in intractable conflict. Instead, it examines the success of two large-scale programs that sought to require forgiveness. Specifically, the authors examine research into the effectiveness of restorative justice programs in Rwanda following the genocide in 1994 and in South Africa after the end of apartheid. In short, they conclude that forgiveness cannot be prescribed as a universal panacea.

In each case, policy makers’ articulated assumptions were that more conciliatory approaches would be better for victims than aggressive prosecution of crimes or other compensations for abuse. [Engaging Conflicts note: it is also possible that policy makers assumed their criminal justice systems could not handle the massive number of claims they faced, and yet something comprehensive needed to be done, and this was a creative option.] The goal, as the authors put it, was “Trading Vengeance, Gaining Peace?”
Their more fully stated conclusion is:

Experiments with restorative justice responses to fractured communities suggest that victim forgiveness should only be encouraged after other tangible steps have been taken toward acknowledging victim suffering and healing the victim’s physical, psychic, and material wounds. Dispute system designs misperceive the pre-conditions to magnanimity when they assume offender truth-telling or apology will automatically trigger victim forgiveness. True forgiveness can only come from a basic foundation of security. Until victims’ basic physical and security needs are met, they cannot and should not be expected to extend grace to their enemies.

Ellen Waldman holds a law degree from New York University and an LL.M. in mental health law from the University of Virginia. She directs the mediation program at Thomas Jefferson School of Law and has spearheaded a number of grant projects relating to health care and conflict resolution. She sits on the ethics rosters of both court and community mediation centers. In the negotiation arena, Professor Waldman writes and speaks on a variety of topics, including bioethics mediation, restorative justice, dispute resolution with high conflict personalities, and therapeutic jurisprudence.

Frederic Luskin, Ph.D. is the Director of the Stanford University Forgiveness Projects and the author of the best selling book Forgive for Good: A Proven Prescription for Health and Happiness. He has conducted 8 successful experiments to validate his forgiveness methodology. He also is the Co-Chair of the Garden of Forgiveness at Ground Zero Project whose goal is adding forgiveness to the menu of responses to the attacks on 9/11. He holds a Ph.D. in Counseling and Health Psychology from Stanford University and is an Associate Professor at the Institute of Transpersonal Psychology.

Mary Greenwood recently shared her books with me and has consented to this series based on an excerpt from Chapter 9, How To Mediate Like A Pro, published February 2008.

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.

The series will continue with Part Two, Comments Made to the Mediator, next week.