Mediation Blogging at its Finest at Blawg Review # 171

In this week's Blawg Review, the IP ADR Blog covers the best ADR posts of the week. Because virginity is this week's Blawg Review theme, Elizabeth the First -- who brought the world Shakespeare and England an unprecedented reign of peace -- heads up the ADR posts below.





In honor of Elizabeth, I give you posts from my own ADR blog posse this week. First, we honor the newest member, Nancy Hudgins of Civil Negotiation and Mediation who has proven her bargaining cajones by negotiating the price of a bottle of "Old Raj, a distinctive gin . . . distilled with saffron [that has] a slightly orange-ish color and a different subtle but piquant taste." WWED -- What Would Elizabeth do? I think she'd negotiate with terrorists but not without first consulting Andrea Schneider at the ADR Prof Blog. If you read any Blawg Review post this week, let it be Diane Levin's Mediation Channel post All Gardeners are Optimists: What Squirrels Reminded Me about Conflict Resolution. Poetry. (cf. the summer issue of the r.kv.r.y. quarterly literary journal). Gini Nelson offers us wisdom on the Myers Briggs Indicator that will tell you everything you need to know about your "type" other than your sexual preferences. (cf. her ABA article on the same topic here). Are you a Virtual Virgin? Then run right over to Mediation Mensch's post on "Getting Virtual." Though Stephanie West Allen hails from the Renaissance rather then the Elizebethean era, anyone worried about the well-being of their parents should check out her Idealawg post Mediation Can Work in Many Elder Care Situations. We hope Justin Patten won't mind our making him an honorary ADR British Queen by linking to Human Law's post from last week: As we head into recession and a wave of redundancies does the Human Resources profession have some flair and imagination? We do have an American ADR "Queen" -- Chris Annunziata -- who will hopefully forgive me for giving him honorary ADR Queen status. Our academic readers could benefit themselves and our "on the ground" professionals by reading this week's CKA post Why Nobody Really Reads Law Review Notes here. My high school French is bad, but it looks like French mediator Dominique Lopez-Eyechenie is reporting that mediators have been deployed to the Metro to referee disputes there -- is that right Dominique? Finally, the Health Care Neutral (our last honorary male ADR Queen) talks about immunity and couldn't we all use just a little of that?

Conflict Revolution, Mediating Evil, War, Injustice and Terrorism or How Mediators Can Save the Planet by MBB Founder and President Ken Cloke

YES YOU CAN PRE-ORDER THIS BOOK NOW RIGHT HERE!

To read review, click on upper right hand corner and then on "view full screen" on the drop-down menu!



Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more free documents

Bad Faith Verdict against Mercury Insurance

For those who do a lot of pro bono work for Mercury (we don't pay no stinkin' mediators) Insurance Company, the following report might be of interest.

A Los Angeles Superior Court jury has returned a special verdict of fraud and breach of the implied covenant of good faith and fair dealing against Mercury Casualty Co. and awarded compensatory damages of $170,000 and punitive damages of $3 million.

At trial, Jo Anna Moore, Mercury's senior vice-president of claims, testified that her company had no property claim handling guidelines in effect during 2003 and 2004, a violation of California state law requiring all insurance carriers to maintain guidelines for the prompt processing of insurance claims. Moore also testified that Mercury's own internal training guidelines taught claims adjustors to "never use your top dollar to begin negotiations," to "use time as your ally," and to "remind claimants that a judge or jury would find them at comparative fault" if they sued. Moore also testified that when she became vice president of Mercury, those guidelines were "withdrawn."

For full article, click here.

Potential for SCMA to be a "LinkedIn Group" on LinkedIn

Everyone,

I received the following generous advice from a LinkedIn member this morning about group LinkedIn (social-professional online networking) opportunities. I think we should seriously consider availing ourselves of the synergies here. Quote below.

I think that grantmakers need to know good mediators to help build better relationships with grantees, and the end beneficiaries. Mediation may not be what grantmakers are best at, but they would do well to be working with professionals who are. If I am remembering correctly, the Hewlett Foundation put of lot of resources into developing the field of dispute resolution? I bookmarked Mediators Without Borders. Have you seen the groups feature in LinkedIn? You can create a group and submit a logo. LinkeIn sets up a group manager set of tools, and then you
can invite people to join your group.

RESPOND VIA "COMMENTS" HERE PLEASE.

Doing Well by Doing Good? A Los Angeles Mediator Speaks Up

Christine von Wrangel has published a timely article in the Los Angeles Daily Journal, For Many Mediators, Promise of Doing Well by Doing Good Remains Elusive. Because the DJ doesn't make its articles available on-line and because I have only a sideways .pdf of the thing, I'm providing it to the SCMA's readers in full here.

I suspect, however, that this article will quickly make its way onto the pages of LAMediators.org on whose Board of Governors Christine sits (nice looking web site you all!) and where many other articles on this topic reside (see here).

Los Angeles Mediators is a must-see website for anyone who continues to be interested in the on-going public discussion concering processes and procedures of the Los Angeles Superior Court pro bono panel.

Mediation: A Lucrative Career or a Ticket to the Poor House?

by Christine von Wrangel

Universities such as Pepperdine, Loyola, USC, Arizona State, Hastings, Cardoza, Colorado George Washington State, Georgetown, Harvard, Penn, as well as state and local bar associations and private mediation offices, advertise courses on mediation to hopeful future mediators. Yes, ADR is "en vogue."

Most universities and bar associations, including the Los Angeles County Bar Association (LACBA), offer several mediation courses annually. This summer alone, Pepperdine offered 16 domestic and international mediation and conflict resolution courses. Loyola offers conflict resolution courses approximately twice a year with classes of up to 35 students, emphasizing communication and how to deal with difficult people.

Almost every accredited or unaccredited university has jumped on the “mediation” bandwagon. Enrolling in these courses can cost students from $500 to well over $1,000 per course, depending on the provider. For universities, retired judges, conflict resolution institutions, government and private mediation providers, the business of offering mediation courses has become lucrative.

Marketing companies have now jumped on the band wagon, promising they can help mediators find a profitable niche in the market, provided of course they are willing to pay the thousands of dollars it takes to launch a marketing campaign.

Who are the winners in this mediation frenzy? Clearly, the providers of mediation training courses and related services.

Who are the losers? The students enrolling in these courses, because most have been lead to believe that they will be able to carve out a living as a mediator after “graduation.” And this is rarely the case.

Are these students informed that the market is already glutted with mediators? A glimpse on the internet reveals thousands of offerings in mediation, conflict resolution and related courses, trainings, and fields. Most providers charge a fee.

Is it ethical to continue to inundate the market with more mediation courses and classes, when most students who graduate face a superfluity of mediation providers, with little hope to start a successful mediation practice?

Why would people continue to enroll in mediation and other related courses despite the meager opportunities of earning a living as a mediator?

Students enrolling in any type of university courses, frequently pursue several goals: A desire to learn more about a particular subject they are interested in, a need to acquire useful skills to earn a better living, and to recuperate the costs they incurred, after having enrolled in the courses.

Do the universities and institutions offering these courses tell students the truth about the real prospects of a career in mediation? Will we continue to see more mediators struggling to survive, or continue to work for free? Clearly, the mediators donating their time at the Los Angeles Superior Court are taken for granted.

Why does the Superior Court pay every judge, secretary, clerk, and janitor, yet refuses to pay the mediators?

I took the LACBA class in 2003, to comply with my CLE requirements. During the course, the instructors represented that mediators could earn a good living, without the hassles of working in a stressful environment, such as a law office or a corporation. None of the instructors mentioned that over two thousand mediators must donate three hours pro bono for every case referred by the Los Angeles Superior Court, amounting to millions of free hours over the years. The reality is that while those mediators provide a valuable service, lawyers rarely pay the mediators.

To get chosen from the pay panel is like finding a needle in a haystack. Perhaps a couple of mediators a week may get on the pay panel where they can charge $450 for the first three hours. However, only very few mediators working for the LA Superior Court are independently wealthy and can afford to work pro bono.

Mediation may be interesting, challenging, and meaningful for the individual, society and many professionals. Many mediators pride themselves in creating a more harmonious, peaceful society. Yet only few mediators have succeeded to establish a practice which allows them to not only spread harmony and piece but also earn a comfortable living.

Dynamics of Group Decision Making

Click here to see the video.

From Vol. II, Issue 2 of Imagine! with thanks to the ADR Diversity Blog for the link!

when the group is confronted with an issue that their accepted wisdom cannot address, then they begin to talk. They start to look at the topic from many different perspectives. There are complaints and suggestions, discussion of what has been tried and failed, arguments about alternative ways to pose the questions, and so on.

Kaner calls this process the "Divergent Zone", where the group diverges from the initial question in order to address it fully. After a while, so much has surfaced that some in the group begin to get nervous. There can be calls for "process check" and the facilitator may wonder if things have gotten out of hand.

When people start to think about all of what they have said, it just doesn't seem likely they will be able to wrap it up. This, says Sam Kaner, could be called the "Groan Zone", in which the group really has to grapple with all the aspects of the problem, all the parties involved, and so on. Here is where workshops can easily collapse, because facilitator and group lose their nerve.

The challenge is to know when and how to converge -- to bring the many themes and concerns together into an agreement that the group can discuss. This process of pulling a wide variety of points towards a decison point Kaner names the "Convergent Zone". Here the group carefully seeks a way to formulate what has to be decided.

Finally, the group grapples with the decision as they have agreed to state it. It can be as simple as yes / no or as complex as pages of detail. This phase of making the agreement is the "Closure Zone".

What Sam Kaner does for us here is to offer a way of seeing a meeting in which new material arises, differences are discussed and conflict occurs, not as some aberration to be deplored, but in fact a normal, manageable process. The group can anticipate when and why it will be difficult. Naturally no clear process can guarantee a quality outcome, but it can indeed free a group from fear of wasting their time and energy in pointless struggle.

Quote of the Month

“We do not live in glass houses (houses have walls); we live on glass microscope slides ... visible and exposed to all,” writes [Dov Seidman, founder and C.E.O. of LRN, a business ethics company]. So whether you’re selling cars or newspapers (or just buying one at the newsstand), get your hows right — how you build trust, how you collaborate, how you lead and how you say you’re sorry. More people than ever will know about it when you do — or don’t." -- The Whole World is Watching by Thomas L. Friedman, New York Times.

LACBA Launches One Minute Negotiation Tips

(photo by Jon Lucas)

LACBA ANNOUNCES THE LAUNCH OF LINDA BULMASH'S E-NEWSLETTER “ONE MINUTE NEGOTIATION TIPS”

Have you ever walked away from a good deal because an agreement could not be reached….or wondered whether you paid too much… or accepted too little…or felt so rattled by the other side’s hardball tactics that you lost sight of your main objectives? Have you ever negotiated a great deal but can’t figure out why you succeeded so that you can replicate the “win” again?Now you can be a negotiation winner.

Now you can stop yourself from paying too much, settling for too little, losing the deal you want or letting the other side get the upper hand. Never again will you show up at mediation or a negotiation wondering how to handle the mediator or the other side.

ALL ATTORNEYS negotiate on a regular basis: Litigators negotiate to settle cases; Real Property and Business Attorneys negotiate terms of the transaction; Tax Attorneys negotiate with taxing authorities; Family Law Attorneys negotiate when cases are sent to mediation.

You get the idea. But who has time to take a negotiation class? LACBA is offering an alternative, “One Minute Negotiation Tips”, written and edited by Linda Bulmash, Esq. a full time professional mediator and ADR Services and a negotiation expert.

This free member publication will be delivered to you by email, once a month. One Minute Negotiation Tips will be more than just a newsletter; it will be a forum for discussion sharing of ideas and asking questions. If you have a negotiation tip that you would like to share, you will be able to submit it for future publication.

If you have a question or a hypothetical you would like to pose, we encourage you to submit it.For more information regarding this new service, please contact Joanne Williamson, LACBA’s Director of Internet Services at jwilliamson@lacba.org.