Law school teaches students that law is a seamless web of rules emanating from authorities like statutes and cases which they must memorize and finely parse in hypothetical cases. In real life, practitioners generally think of law in terms of Oliver Wendell Holmes’s famous definition: “prophecies of what the courts will do in fact.” Of … Continue reading The Role of Law in Legal Disputes
People often say that dispute resolution processes aren’t “one size fits all.” When practitioners are asked to opine about hypothetical problems, they often say “it depends” and they make “case by case” decisions. They are telling the truth. Lawyers make complex decisions as negotiators, litigation advocates, and mediators based on a lot of factors, so … Continue reading Teaching Students to Think Like Practitioners
The ABA Section of Dispute Resolution published three books this year that you, your colleagues, and your students might be interested in. Mediating Legal Disputes: Effective Techniques to Resolve Cases, Second Edition, by Dwight Golann. Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making, Second Edition, by Jennifer K. Robbennolt and … Continue reading Three New ABA Books Hot Off the Press!
The majority opinion in the Breslin case led me to write my piece, Courts Should Make Mediation Good Samaritans Not Frankensteins, which led the CPR Mediation Committee to sponsor a program, Consequences of Not Participating in Court Ordered Mediation: What Is Fair? I was one of the speakers, along with Lauren A. Jones, ADR Coordinator … Continue reading Charting a Middle Course for Court-Connected Mediation
Like it or not, facilitative and evaluative mediation are part of the social reality of our field. Despite the fact that these models are misleading and provide counterproductive concepts to guide mediators’ behaviors and set parties’ expectations, they are inescapable. They are standard elements in texts, courses, trainings, and general discourse in our field. They … Continue reading Reconciling Allegedly Alternative Mediation Models by Using DIY Models
This was the question I had to answer when planning a lecture. I was a speaker in a course offered by the Universidad Monteavila in Caracas, Venezuela. My wonderful colleague, Rafael Gely, organized this collaboration with Missouri’s DR Center to provide a series of speakers, including me. My Venezuelan colleague told me that I could … Continue reading If You Had Only One Hour to Describe ADR, What Would You Say?
Since writing my recent short article, Courts Should Make Mediations Good Samaritans Not Frankensteins, I have been thinking about how to maximize the substantial benefits of court-connected mediation while minimizing the risks of coercion. Most mediators, mediation program administrators, and courts are conscientious about providing appropriate, high-quality mediation services. Unfortunately, with some frequency, there have … Continue reading Proposal for Standard Explanation in Mediation
Dwight Golann just wrote a nice article about mediators’ experiences mediating on Zoom: “I Sometimes Catch Myself Looking Angry or Tired …” The Impact of Mediating by Zoom, published in CPR’s Alternatives to the High Cost of Litigation. Dwight solicited mediators’ reactions on the International Academy of Mediators listserv as well as in two focus … Continue reading Dwight Golann on a Year of Zoom Mediations
Here’s a short article you might be interested in. Using a recent California appellate decision as a jumping off point, it identifies problems with mandatory mediation and recommends that courts use good dispute system design procedures to reduce risks of creating Frankensteins – mediation that produces injustices. Of course, some courts have policies fulfilling the … Continue reading Courts Should Make Mediations Good Samaritans Not Frankensteins
Paul M. Lurie, now a retired partner at Schiff Hardin LLP, in 2013 created the Guided Choice Interest Group and its website. It established what is now known as the Guided Mediation, which was originally called Guided Choice Mediation. Here’s his description of the current process. Guided Mediation is a collection of best practices … Continue reading Paul M. Lurie on Guided Mediation
A quarter century ago, Professor Len Riskin published an article describing a grid of mediator orientiations including a facilitative-evaluative dimension. Despite critiques of this framework, including by Len himself, many mediators, trainers, and teachers still use these concepts as mediation models, expressing strong feelings that one model is good and the other is bad. These … Continue reading We Should Replace Mediation Models with a Unified Conceptual Framework
Bill Marsh, a UK mediator and editor of the Kluwer Mediation Blog, wrote a good post about key characteristics of mediators: Warmth and Competence. He suggests that these are related to mediators’ self-reflection, authenticity, cultural competence, and timing. It’s a good, concise post you might share with your students. Take a look. [Click the title … Continue reading Important Mediator Characteristics