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mediator blah...blah...

Last Build Date: Mon, 08 Jan 2018 06:57:14 +0000


Want to Reconnect @ Mediation Cubed?

Thu, 01 Apr 2010 09:15:00 +0000

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blah... blah... bows out

Wed, 12 Aug 2009 20:49:00 +0000

Regular visitors to this blog will have noticed a gradual decline in posting over the last couple of months.

Life, dear reader, has got busy and the call of the keyboard is not what it was after 1016 posts. I have decided to pack it in.

To some extent I feel this blog has achieved its aim of bringing the best of the ADR web to those who might not have otherwise sought it out. I leave you in the hands of many doing exactly that and better than I ever could.

To my blogging buddies; my apologies for not consulting you on this but I didn't want you to talk me round.

It's time for new projects and, for me, a time for family to pull together and look after our own.

Never say never, but for the moment not much new will be posted here.

We've had fun, you and me. Thanks for reading, I remain grateful that you took the time.
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What Difference Does a Robe Make? Comparing Mediators with and without Prior Judicial Experience

Tue, 11 Aug 2009 01:52:00 +0000

(image) An intriguing article (abstract only) in July's Negotiation Journal (Jul 2009. Vol. 25) by Stephen Goldberg, Margaret Shaw, Jeanne Brett reporting the results of two studies;

"... a glance at the rosters of some of the major mediation providers shows that between 40 percent and 60 percent of their mediators are former judges. This influx of former judges into the mediation ranks raises several questions that we address in this article:

1. Are former judges achieving success as mediators of commercial and employment disputes and, if so, why?
2. What are the characteristics and skills of those former judges who have succeeded as mediators?
3. Do former judges succeed as mediators for the same reasons as mediators who have not been judges?
4. What are the reasons why some former judges have not succeeded as mediators?

The first study, based on the responses of attorneys to questions about the reasons for the success of mediators with and without prior judicial experience, shows that the capacity of the mediator to gain the confidence of the disputants was most important for mediators with and without prior judicial experience.

Although certain process skills were viewed as important to the success of both former judges and nonjudges, in general, process skills were significantly more important for nonjudges than for former judges. The capacity to provide useful case evaluations, on the other hand, was significantly more important for former judges than for nonjudges.

The second study, based upon attorney responses to questions about unsatisfactory mediators, reinforced the conclusions of the first study regarding the importance of confidence-building attributes.

For both judges and nonjudges, the mediator's inability to gain the confidence of the parties was a major reason for his or her lack of success."


Live Blogging from the AMINZ Conference

Sat, 08 Aug 2009 01:50:00 +0000

(image) Today in Wellington at Te Papa, our national museum, we are enjoying the most stimulating gathering of mediators at the New Zealand Arbitrators' and Mediators' Institute Conference '09. Program here.

North Carolina mediator, attorney and author Andy Little is here as guest speaker and workshop presenter. For anyone interested in negotiating or mediating money claims, Andy is a must see and a must read is his Making Money Talk. Andy spoke on The Language of Numbers: Mediating and Negotiating Claims for Money

We have heard from NZ's great and good; His Excellency the Governor-General of New Zealand, The Hon Sir Anand Satyanand and Attorney General, Hon Christopher Finlayson and Michael Kirby, until recently, one of the seven Justices of Australia's highest constitutional and appellate court, the High Court of Australia.

(image) (image)

More later.


Watch This

Thu, 06 Aug 2009 18:53:00 +0000


Improvisation, Negotiation and All That Jazz

Sat, 01 Aug 2009 07:27:00 +0000

Some while ago I started a post with;

'Yeah well, I'm not sure that I get the whole 'mediators can learn from improv comedy' thing to be honest...'

But since then I have read the wonderfully refreshing Improvisational Negotiation by Jeff Krivis and talked to him about the connections between jazz and mediation. And when someone like Jeff says this is the next frontier for mediators, you better listen up... So I wasn't surprised to hear music coming from Jeff's classroom at Pepperdine where he was teaching Improvisational Mediation recently - but I was alarmed to hear he had smuggled a whole jazz band in there!'

Well now
you can see it - musicians and students learning negotiation techniques by trained jazz musicians at Pepperdine Law School. But I'm back to where I was - I just don't get the connection!

Hat tip First Mediation(image)

40 Superb Psychology Blogs

Thu, 30 Jul 2009 19:54:00 +0000

(image) For those brave mediators who delve into this stuff, check out 40 Superb Psychology Blogs - this post from Psyblog lists forty of the best psychology blogs, chosen to give a broad sweep of the most interesting content being produced online.

The list is split into three sections: first are more general psychological blogs, followed by those with an academic slant, followed by condition specific and patient perspective blogs.

Lines are being blurred in modern mediation practice like never before

Wed, 29 Jul 2009 01:04:00 +0000

(image) This blog, if you care to take a sampling of past posts, is not that of a white-hat-mediator.

That's because I believe life at the coalface of mediation practice is wonderfully confused, frustrating and often dirty, as I attempted to capture by one of my favourite past posts, rehearsing in poetry, but practising in prose.

At-the-table compromises are constantly being made by jobbing mediators, compromising on the tidy academic theories of process, ethics and skills that are pronounced in the rarefied atmosphere of our great centres of learning.

But, there's change in the air - lines are being crossed like never before - I hear it whispered over cups at conferences, I feel it in the room, I see it in myself.

Damn - even Cohen was singing about it the other night - "i
t's coming to America first, the cradle of the best and of the worst. It's here they got the range and the machinery for change..."

What are those lines?(image)

Yeah, I agree with this...

Wed, 22 Jul 2009 22:13:00 +0000

"Professor Roberts argues that this prevents the parties working out a settlement themselves and instead they were dependent upon the mediator. He therefore concluded that the shuttling model was at fault; causing the mediator to get caught up in trying to get an agreement. He argued that the mediator should be the sponsor of communication and not the constructor of outcomes, endorsed by the parties" [read more](image)

Nice collection of articles by AIM Institute faculty just posted

Sat, 04 Jul 2009 17:55:00 +0000

"Neutrals Reveal Tips With Their Opening Statements"By Lee Jay BermanMost mediations begin with the mediator's opening statement, much to the consternation of the lawyers (many of whom have heard them many times before) and their parties. Although most lawyers prefer to launch right into their opening statements in a mediation, the mediator's speech can be very helpful. April 2009"Recession Advice for Mediators" By Lee Jay BermanWhile many believe that mediation is a recession-proof business, the truth is that a difficult economy slows every business and practice as people have less money to pay for things. When a mediation practice slows, there are three things that mediators can do to make productive use of increased down time. They can increase their marketing efforts (attend more networking events, update websites, etc.), improve or update the administrative infrastructure of their practices, and they can hone their skills. Approx. reading time: 7 minutes. January 2009"How to Initiate or Improve a Court Mediation Program" By Lee Jay BermanQuestion: We don't have a mediation program in our courts, and I keep hearing from people in other states what a great boost it is for mediation as a whole. How can we work with our local courts to interest them in starting (and paying for) a court-annexed civil mediation program? Answer: Taking your challenge even broader, and including those jurisdictions that already have court-annexed mediation programs in place that may not be functioning to the level everyone would like, let's talk about courts and mediation. Approx. reading time: 12 minutes. September 2008"Getting Traction for Mediation" By Lee Jay BermanQuestion: I'm a mediator in a county where mediation hasn't been accepted or supported by our local court, and the lawyers don't seem interested in mediating cases. What can we do, perhaps through our local Bar ADR section, to help mediation gain some traction? Answer: Get ready to go to work! There are many things you can do, and frankly, the faster you and your local community of mediators implement them, the faster mediation will take hold...Approx. reading time: 6 minutes. July 2008Bringing Oxytocin into the Room: Notes on the Neurophysiology of Conflict By Kenneth ClokeWhile people in conflict commonly refer to facts, behaviors, feelings, personalities, or events, for the most part we ignore the deeper reality that these are processed and regulated by the nervous system, and are therefore initiated, resolved, transformed, and transcended largely within our brains.Building Bridges Between Psychology and Conflict Resolution – Implications for Mediator LearningBy Kenneth ClokeOver the last three decades, hundreds of thousands of people around the world have been trained in community, divorce, family, commercial, organizational, and workplace mediation, as well as in allied conflict resolution skills such as collaborative negotiation, group facilitation, public dialogue, restorative justice, victim-offender mediation, ombudsmanship, collaborative law, consensus decision making, creative problem solving, prejudice reduction and bias awareness, conflict resolution systems design, and dozens of associated practices."Is Mediation a Pipe Dream?" By Lee Jay BermanIn many ways, mediation is like any other profession or business, where some do well, some fail, and the rest are somewhere in between. But in many ways, mediation is unlike other professions because...Approx. reading time: 7 minutes. December 2007"It's Time For Heavy Metal Mediation"By Lee Jay BermanKISS Mediators Rock the ABA Conference: Many attendees at the recent annual conference of the Section on Dispute Resolution had to look twice when they saw one of the characters pictured here walking the conference halls. When most learned that these were actually colleagues - the q[...]

Deal or No Deal: Improving the Odds of Successful Mediation

Thu, 02 Jul 2009 04:56:00 +0000

(image) I have posted before on Don Philbin's masterpiece The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation published in vol 13 of The Harvard Negotiation Law Review and a serious piece of work.

Don is now conducting an hour long ABA teleconference and live audio webcast
Deal or No Deal: Improving the Odds of Successful Mediation on Tuesday, July 14 at 1pm Eastern (12:00 PM Central/11:00 AM Mountain/10:00 AM Pacific).

'The panel will discuss the results of empirical studies of decisional errors in litigation comparing last settlement positions of parties who failed to settle to outcome of trial as well as explaining who did better; who did worst; and what was the cost of the error. They will also describe the techniques, such as graphically depicted outcome scenarios, that can be utilized during mediation to overcome psychological barriers to settlement'

Expanding the Mediation Pie

Wed, 01 Jul 2009 23:31:00 +0000

(image) Just posted today is Expanding the Mediation Pie by Michael Leathes, Director of The International Mediation Institute;

"As professionals gingerly tiptoe on the road out of recession, their travel bags need to be packed with new gear. Considered unfashionable in the past, the winds of economic hardship have blown in former style icons. Left on a hanger in the Old Economy are the hackneyed notions of “s/he who dares, wins”, “no risk, no reward” and Dum Pendet Rendet. Replacing them are 10 powerful drivers of politics,business and society - Responsibility, Transparency, Authenticity, Trustworthiness, Certainty, Competency, Humility, Sustainability, Simplicity and Frugality. If leading stakeholders in the field embrace them all, mediation will grow, everyone will gain." [read more]

IMI Registrations Top 1,000 Worldwide

Wed, 01 Jul 2009 23:20:00 +0000

(image) July 1; IMI completed its Experience Qualification Path on June 30 2009. Over 1,000 experienced mediators from 35 countries took the opportunity to register on the IMI portal during the EQP period [read more]. (image)

The International Journal of Conflict Management is free all week

Tue, 30 Jun 2009 05:30:00 +0000

(image) The International Journal of Conflict Management will be free to access online this week.

Simply visit the journal’s homepage and access the content through the table of contents.

Logo poll results

Wed, 24 Jun 2009 22:35:00 +0000

(image) Thanks to all those who took the time to vote on my Old vs New Logo Challenge.

Here are the results.

Jeff Thompson even gave me some options - he's a clever cookie;



Dinosaurs walk amongst us

Wed, 24 Jun 2009 09:28:00 +0000

Today a lawyer told me to write him a letter as he did not believe in email.

He should watch this video played at Sony's Executive Conference this year.

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By popular demand

Mon, 22 Jun 2009 10:13:00 +0000

I have had a number of emails about my last post where I mentioned a law firm breakfast I had last week to chat about 10 suggestions I had for lawyers heading into a mediation.

Here are the first 5;

I've just had a call from a lawyer with whom I have a large mediation coming up in late November.

She asked me what she could do to prepare her client John, for what is probably going to be the most important meeting of his life.

Apart from the usual prep like identifying interests etc I advised her to:

1. In the time between now and November try not to poison the well from which she will drink on mediation day - start 'mediating' now within the litigation

2. Prepare John to interact with me on a personal level. He needs to talk to me and should treat me as a confidant, not the enemy. Please trust me (or let me earn that trust)

3. Anticipate a predictable start to the negotiation where the other side asks for the moon and make sure John is prepared to respond in a way that keeps the dialogue going

4. Have John explain the personal side of the dispute to me, in front of the other side. Be prepared to do this early

5. Use me - make me earn my fee. Seek out my reaction to the story of the case and the negotiation moves that are unfolding. Give me a heads up on the negotiation moves John is contemplating - test them on me - I can often help

Thanks to my colleagues at the International Academy of Mediators

TheTriumph of Soft Skills

Sat, 20 Jun 2009 05:36:00 +0000

(image) I sat in for a chat about mediation at a Big Law breakfast this week (juice, muesli, black coffee) and we talked about the evolving face of the new lawyer as well as 10 things lawyers should do in mediation.

They are on to it. They know what their clients are looking for.

Just like the wild, wild west, where eventually gun slingers became an endangered species, so too with one track lawyers.

Instead, we now need rounded skills and the youngsters I spoke to are well on their way.

As I said in a previous post;

"If you are a young lawyer under the tyranny of an old lawyer, do yourself a favour and read The New Lawyer: How Settlement is Transforming the Practice of Law underneath the desk during your lunch break (you get one of those, right?)"

See CPR's take on it

Mediation Logo

Wed, 17 Jun 2009 05:44:00 +0000

(image) Having just posted my 1,000th post for your reading pleasure my dear reader, I hope I have earned the right to ask for something from you in return?

If so, would you please give me a simple thumbs up/thumbs down on this new logo I'm thinking of adopting (my old one appears at the bottom of this post);

[New Logo]


marginwidth="0" marginheight="0" src="" frameborder="0" width="222" scrolling="no" height="222">Take the poll

Free Poll by Blog Flux

[Old Logo]



From Zero to Hero

Tue, 16 Jun 2009 08:41:00 +0000

(image) I get my best insights into how lawyers see mediators when I occasionally share a ride to the airport with one of them after a mediation (yeah I know, but I always check with the group and then only if we have got a result).

Today, unprompted, my colleague shared with me and the cab driver that the most impressive thing about a mediator who's on their game is the ability to go from a standing start to 100kph on the facts that the lawyers have lived with for months - and once there, to apply some rigour before bottom-lining the big points to focus the parties on what's important to their decision some hours away; legal, factual and especially commercial.

My rather lame response, before letting him pay, was to admit to being a speed freak (just in case I was in his sample group, which he was not good enough to volunteer).


Mediation – an integral part of our litigation culture

Thu, 11 Jun 2009 02:26:00 +0000

8 June 09 - Speech by Lord Clarke of Stone-cum-Ebony, Master of the Rolls - Mediation, an integral part of our litigation culture

Littleton Chambers Annual Mediation Evening, 8th June 2009

Hat tip to Current Awareness

P.S. Stone-cum-Ebony ??!(image)

Rethinking Negotiation Teaching

Tue, 09 Jun 2009 08:04:00 +0000

(image) When I met Chris Honeyman in New York recently he was excited about his new book (well not his alone exactly. His co authors are many).

He was excited because not only was his book a winner, it was going to be available at a very reasonable price in hard copy ($26) or chapter by chapter online and free from Hamline University School of Law.

This is a significant free resource available to all - well done Chris. I hope many follow you down this road and you and you team get the kudos you deserve.

With chapters like I'm Curious: Can We Teach Curiosity? and We Came, We Trained, But Did It Matter? or Death of the Role-Play, Rethinking Negotiation Teaching: Innovations for Context and Culture is a must read for all ADR academics and trainers.


MediAsian has a good roundup of the AMA Conference

Mon, 08 Jun 2009 03:00:00 +0000

(image) A great new blog on the ADR block (and one of the first to be seen out of Asia), Prof. Ian Macduff's MediAsian has a very useful summary of the take-homes from last week's 1st Asian Mediation Association Conference in Singapore.

Ian, the Director of the new Centre for Dispute Resolution at the Singapore Management University and a friend of this blog, is a very thoughtful academic and experienced practitioner (Sri Lanka, Italy, Geneva and other parts) - grab a feed to MediAsian and sit back for rare insights into Asian mediation and dispute resolution from an Asian insider.

Three Things to Be Against ('Settlement' Not Included) - a Response to Owen Fiss

Fri, 05 Jun 2009 10:35:00 +0000

Just out.

Three Things to Be Against ('Settlement' Not Included) - a Response to Owen Fiss (May 30, 2009) Fordham Law Review, forthcoming.

From Michael Moffitt of ADR Prof Blog and University of Oregon. Anything Michael writes is worth your time.

"... compare the sloppy reality of settlement in practice with the sloppy reality of litigation in practice..." [read more](image)

Images from the 1st Asian Mediation Association Conference today in Singapore

Thu, 04 Jun 2009 10:37:00 +0000

[click on the title of this post to read more...] [...]