Called to Peace Making

Some experience the desire to be a mediator as a "calling." To us, the phrase "Blessed are the PeaceMakers" has particular allure. This poem by Mary Oliver expresses the idea:

The Journey

One day you finally knew
what you had to do, and began,
though the voices around you
kept shouting
their bad advice----
though the whole house
began to tremble
and you felt the old tug
at your ankles.
"Mend my life!"
each voice cried.
But you didn’t stop.
You knew what you had to do,
though the wind pried
with its stiff fingers
at the very foundations,
though their melancholy
was terrible.
It was already late
enough, and a wild night,
and the road full of fallen
branches and stones.
But little by little,
as you left their voices behind,
the stars began to burn
through the sheets of clouds,
and there was a new voice
which you slowly
recognized as your own,
that kept you company
as you strode deeper and deeper
into the world
determined to do
the only thing you could do----
determined to save
the only life you could save.

FromCallings Poetry found via this rss feed of Evelyn Rodriguez delicious tags.


Defining Mediation

"Mediation is a voluntary collaborative process where individuals who have a conflict with one another identify issues, develop options, consider alternatives, and develop a consenual agreement. Trained mediators facilitate open communication to resolve differences in a non-adversarial, confidential manner... "

Read more on this webpage from the Global Resource Development Center that also explains some of the advantages of mediation when prior attempts to resolve a dispute have failed.


Conflict Resolution Checklists

For people struggling with difficult conflicts, these checklists for intermediaries and adversaries and related articles from Beyond Intractability.org highlight conflict dynamics that are helpful to understand, as well as options for dealing with common problems in the following areas:

Organizational Conflict
Post-Conflict Stabilization
Public Policy


Structured Settlements Explained

This post from Florida Mediator provides a link to "an incredibly helpful, easy to understand article [downloaded as a PDF file] from Bloomberg Wealth Manager which objectively reviews and explains structured settlements. Well worth [pun intended!] reading."

Utah adopts Uniform Mediation Act

"Utah Gov. Jon Huntsman (R) has signed legislation making his state the eighth to adopt the Uniform Mediation Act, including a provision unique to the state that will require mediators to serve in a neutral fashion... The UMA also has been adopted in Iowa, Illinois, Nebraska, Ohio, New Jersey, and Washington. It has been introduced this year in Massachusetts, New York, Vermont, Minnesota, and Connecticut. "

Read more in this article from ADRWorld.com (free registration required).

New Jersey Upholds Mediation Confidentiality

"A New Jersey appeals court late last week gave a big boost to the confidentiality of mediation communications, ruling that a mediator is prohibited from testifying in subsequent proceedings without an express waiver from all the parties under the Uniform Mediation Act (UMA) and state rules.

The Superior Court of New Jersey, Appellate Division on Jan. 19 said the state has a strong policy in favor of protecting mediation communications from disclosure, holding and a need for testimony did not outweigh the need to maintain mediation confidentiality according to the parameters of the UMA's balancing test ( Karin Lehr v. John Afflitto , No. A-6992-03T2).

The ruling means that the UMA's confidentiality protections will stand in both civil and criminal cases, observers say. "

Read more in this post from ADRWorld.com (free registration required).


Avoid Negotiation Mistakes

"Negotiation is a difficult art as it requires managing, in real-time, both the other person's mind and your own. Here are a number of mistakes that negotiators can make...

*Accepting positions: Assuming the other person won't change their position.
*Accepting statements: Assuming what the other person says is wholly true.
*Hurrying: Negotiating in haste (and repenting at leisure).
*Hurting the relationship: Getting what you want but making an enemy.
*Issue fixation: Getting stuck on one issue and missing greater possibilities.
*Missing strengths: Not realizing the strengths that you actually have.
*Misunderstanding authority: Assuming that authority and power are synonymous.
*Misunderstanding power: Thinking one person has all the power.
*One solution: Thinking there is only one possible solution.
*Over-wanting: Wanting something too much.
*Squeezing too much: Trying to gain every last advantage.
*Talking too much: Not gaining the power of information from others.
*Win-lose: Assuming a fixed-pie, win-lose scenario."

Read more, including steps you can take to avoid making the foregoing mistakes in this webpage from ChangingMinds.org.


Employment Arbitration Agreements Cautions

"Lured by the dual prospects of lower litigation costs and avoiding runaway juries, most employers have seized the opportunity to require employees to arbitrate their claims and forego their right to file suit. But, rushing into arbitration is not necessarily the best bet in every situation. The paper [Agreements To Arbitrate from BNET.com] describes 10 issues employers should consider when determining whether to require arbitration or when structuring arbitration agreements."


Business Mediation & Arbitration Basics

"In an attempt to control litigation costs, many companies are looking to employ alternative dispute resolution mechanisms – commonly referred to as ADR -- to avoid the courthouse. Two of the most commonly used ADR mechanisms are mediation and arbitration. Mediation is a voluntary process through which the parties meet and try to negotiate a resolution to their dispute by using an objective third-party facilitator. Arbitration is a process that results in a binding decision that the parties can seek to enforce through the courts." Outlined in this article from Beirne, Maynard & Parsons are the basics that can be expected in a typical mediation or arbitration conducted as described in the article.

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Examples of Powerful Questions

"1. How important is this?
2. Where do you feel stuck?
3. What is the intent of what you're saying?
4. What can we do for you?
5. What do you think the problem is?
6. What's your role in this issue?
7. What have you tried so far? What worked? What didn't?
8. Have you experienced anything like this before? (If so, what did you do?)
9. What can you do for yourself?
10. What do you hope for?
11. What's preventing you from ..."
12. What would you be willing to give up for that?
13. If you could change one thing, what would it be?
14. Imagine a point in the future where your issue is resolved. How did you get there?
15. What would you like us to ask?
16. What have you learned?"

From this webpage by Carter McNamara.


Three Approaches to Mediation

"Three of the most common types of mediation are called "facilitative", "transformative", and "evaluative." Regardless of the differences, 3 core concepts are the same for each of these 3 types of mediation

-The mediator is neutral (s/he does not take sides in the disagreement).
-The process is confidential.
-You and the other side determine the outcomes.

However, the role of the mediator is a bit different in each type.

Facilitative Mediation: Facilitative mediation is based on the belief that, with neutral assistance, people can work through and resolve their own conflicts. In a facilitative mediation, the mediator will take an active role in controlling the "process." Process means things like setting the ground rules for how the problem will be solved. The mediator asks questions to identify the interests of the parties and the real issues in the disagreement. The mediator helps the parties explore solutions that benefit both parties (sometimes called "win/win" solutions). In a facilitative mediation, the mediator does not offer an opinion on the strengths and weaknesses of the parties' cases. The mediator does not suggest solutions.

Transformative Mediation: Transformative mediation is based on the belief that conflict tends to make parties feel weak and self-absorbed. Transformative mediators try to change the nature of the parties' conflict interaction by

Helping them appreciate each others viewpoints ("recognition") and
Strengthening their ability to handle conflict in a productive manner ("empowerment").

The mediator will intervene in the conversation between the parties in order to call attention to moments of recognition and empowerment. Ground rules for the mediation are set only if the parties set them. The mediator does not direct the parties to topics or issues. Instead, the mediator follows the parties’ conversation and assist them to talk about what they think is important. The transformative mediator does not offer an opinion on the strengths or weaknesses of the parties’ cases. The mediator does not suggest solutions.

Evaluative Mediation: Evaluative mediation is based on the belief that mediators with expertise in the issues in conflict can help the parties to:

Assess the strengths and weaknesses of their legal or other positions and
Work to achieve settlements. In evaluative mediation, the mediator controls the process and suggests solutions for resolving the conflict. Individual meetings between the mediator and one party at a time (called "caucuses") are a major component of evaluative mediation. The focus of an evaluative mediation is primarily upon settlement. The mediators will make their best efforts to get the parties to compromise, if necessary, to achieve a result."

Read more in this peopleslaw.org article found via this Legal Sanity post.

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Positions vs Interests in Bargaining

"A position is….

A demand, or
A proposal, or
A preferred course of action

Key features:

It is specific
It involves doing, action
A position is the “What to do”

An interest is….

The reason(s) for a position, or
A goal or objective

Key features:

An interest is more general than a position, and open to interpretation
It is not an action

An interest is the “Why” behind the “What”

Read more in this article from the UNC School of Government.


Washington's Will Had ADR Clause

From this post from Death and Taxes - The Blog:

George Washington's Will included an ADR provision...as follows:

But having endeavoured to be plain, and explicit in all Devises--even at the expence of prolixity, perhaps of tautology, I hope, and trust, that no disputes will arise concerning them; but if, contrary to expectation, the case should be otherwise from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the Devises to be consonant with law, My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants--each having the choice of one--and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.


Personality Styles Affect Negotiations

"Not everyone negotiates from the same point of view. People have different stakes in a negotiation. Determine what issues concern the other party the most. Also, know what your style is like so you can best prepare to negotiate a win-win situation.

The following are the four major personality styles, and how to recognize these types:

1. Connecters: This type is down to earth, friendly and very people oriented...When dealing with this type, be open, honest, and start with some small talk...

2. Networkers:...The more they like and trust you, the more flexible they will be...They want to see the big picture-so hit on your key points first, and then bundle your small points together...

3. Producers:...These people tend to shoot straight and not mince words...Producers look for the best possible deal and pride themselves on their ability to get what they want...These people love the thrill of the negotiation, and you will disappoint them if you cannot present a compromise.

4. Analyzers: This type may...may remain more non-emotional during a negotiation....The best way to handle analyzers? Give them the facts... Analyzers require space in order to make a decision, and accuracy is most important to them."

Read more in this article from lifeintheusa.com.


Ten Positional Bargaining Tips

"1. Your power lies in your walk-away alternatives. Make sure that you have real, viable options that don't require an agreement...
2. Do not disclose your walk-away alternatives...
3. Figure out the walk-away alternatives of the other parties...
4. No offer is too high. Any offer is valid provided you can present objective criteria that prove each term of the offer fills to some extent the underlying needs of all parties.
5. Don't react emotionally...[to] tactics intended to intimidate, rush, draw out discussions, or otherwise derail the focus from underlying needs and mutual gain...Draw attention back to substantive interests and options...
6. Remember that all the needs presented are not of equal importance...
7. Listen...
8. Know the authority of each person in the room...
9. Analyze concessions...
10. Never be bludgeoned into splitting the difference..."

Read more in this article from batna.com.

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False Assumptions Lead to Wrong Conclusions

Regarding negotiations, "the best defense against a poor assumption is good preparation. Thorough knowledge of your topic, your goal, your strategies and objectives, your company, yourself, your opponent, his company, and the issues relating to the task at hand is the best way to insure your assumptions are reliable...

During your preparation separate what you know and what you assume to be the case. Then focus your conversation on validating your assumptions. In addition to using the preliminary casual discussion period to build a good working relationship or to create a healthy environment within which to negotiate, do not miss the opportunity to uncover false assumptions."

Read more in this how-to-negotiate post.

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Tips for Avoiding Litigation

"Litigation is merely one tool used to attain specific goals, which may be achieved more efficiently by other means...and it is sometimes the best approach for resolving a dispute. For purposes of this article, though, we discuss some of the common reasons why disputes often result in litigation, which, had they been properly managed, could have been avoided...

Depending on one's perspective, any number of reasons can be listed to support an argument that litigation should be avoided. In this article, we list the five reasons...

1. Cost Control...
2. Risk Avoidance...
3. Distraction...
4. Damage to Business Relationships...
5. Public Relations...

Why Does Litigation Happen?

Some of the manageable reasons...

1. Stubbornness/Pride
2. Lack of Knowledge/Understanding
3. Passion/Emotions
4. Failure to Communicate
5. Greed

Five Common Sense Ways to Avoid Litigation

1. [Follow] The Golden Rule...
2. Improve Communications...
3. Analyze your company's historic performance to determine what activities typically result in getting you into litigation
4. Rapidly respond to potentially threatening developments in their earliest stages (i.e., don't sit on it
5. Incorporate risk shifting and litigation alternative provisions into your business practices

Many business disputes will be either directly or indirectly related to contractual instruments. Hence, one powerful way to avoid litigation is to include litigation avoidance provisions within your contractual instruments. [Numerous examples of such provisions are provided in the article]

Read much more in this article by Brit T. Brown.

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Common Myths and False Truths about ADR

"7 Common Myths:

1. Arbitrators Split the Baby.
2. You Can’t Mediate Until Discovery Is Completed.
3. Asking to Mediate Is A Sign of Weakness.
4. Mediation is Simply Free Discovery.
5. Arbitrators Don’t Apply the Law.
6. Mediation is Just a Waste of Time and Money.
7. Mediation Just Delays the Ultimate Trial of the Case.

3 False Truths

1. Arbitration is Quick and Cheap. Yes, but…
2. A Mediator is a Mediator is a Mediator.
3. Arbitration Awards are Non-Appealable."

Read more in this article by Judith Meyer