Facilitation Articles

Facilitation Articles

Ironically, Bush and Folger are Evaluative (5/04/15)
Sam Imperati
There is room in our field for a broad spectrum of mediation approaches. We should celebrate innovation and a greater diversity, rather than disparage the methods of others. This article rebuts Bush and Folger’s article: Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination. Their article attempts to redefine mediation in their own image. I push back at their attempt to elbow out any mediator that does not adhere to their transformative philosophy. No single approach has cornered the market on mediation, nor should it. Our collective approach to mediation should not be shackled by rigid doctrines; it should be varied and flexible, adapting to the desires of the parties we serve. This is real Self-Determination.

Conflict and Psychological Development: “Six Stages of Conflict Reasoning” (5/01/15)
Donal O’Reardon
In the 1960’s the psychologist Lawrence Kohlberg (1927-1987) listed six stages of moral development. Kohlberg says these stages can’t be jumped, you have to go through them in order. And they are universal, they apply no matter what culture you’re in. With a little thought we can link these to conflict and conflict resolution. Kohlberg’s stages don’t only tell us about a person’s moral reasoning, they also tell us what kind of conflict they get into and how we can help them to deal with it.

Good Practice Framework (5/01/15)
Katherine Graham
“Universities should include mediation in their framework for handling student complaints,” says the IOAHE – and so say all of us at CMP! The formal process is long, complex and saps everyone’s time and energy; most students with complaints about staff behaviours and attitude would prefer to talk it out, in our experience.

Applied Decision Theory (5/01/15)
Joe Markowitz
Richard Birke, a law professor at Willamette University, gave a talk at the ABA Dispute Resolution conference expressing frustration with the term "Alternative Dispute Resolution." The term is too limiting to describe the many ways that the skills of negotiation, mediation, and other forms of conflict resolution can be applied in practice.

Torch Bearers in Mediation (4/24/15)
Uma Ramanathan
Goals, predictions, vision statement. Frame it in any manner, what stakeholders are looking for is the fulfilment of the promise of mediation.

(Instrumental) Reconciliation Without (authentic) Forgiveness (and Social Justice): A Recurrent Paradox in Political Conflicts (4/24/15)
Ricardo Padilla
After a conflict between communities or nations has been led to an ending phase, political reconciliation requires that both parties be brought closer to the point they may have respect for each other’s rights and can live peacefully together. When the conflict passed through war or mass atrocity, reconciliation is especially hard to achieve. There are limits to forgiveness that may state significant barriers on the pathway to reconciliation.

Whisper, "Here's My Contact Information; Don't Accept Anything Until We've Talked." (4/24/15)
Michael Moffitt
In this morning’s Chronicle of Higher Education, an article entitled “Time to Change the Rules of Negotiation,” focusing on entry-level employment negotiations, what’s negotiable, what’s reasonable, and what’s not.

ADR is on the Rise in Employment Cases (4/24/15)
Jeffrey Grubman
While there is a long history of utilizing arbitration in the labor union context, the majority of employment disputes have historically been litigated in federal court.

And What is Your Biggest Achievement in Mediation? (4/24/15)
Martin Svatos
The MBB was founded in 2006 in order to promote mediation not only in the USA but also worldwide. Its main task is expressed in the following motto: “The only lasting peace is the one built by the disputants themselves.”

Family Mediation In The Digital Age (4/17/15)
Sherri Donovan
Twenty-first century technology will continue to impact family life and mediation. The family mediator’s awareness of the possible positive and inflammatory influences of the internet, may be instrumental in effectively identifying and resolving the modern family’s disputes. Social media, cyber abuse, the child’s computer voice, the use of a forensic computer expert and the futuristic divorce are factors to be considered in the practice of family mediation.

Always Expect the Unexpected (4/17/15)
Laura Snoke
As an attorney and mediator for many years, I have learned the most important lesson for mediation: always expect the unexpected. Whether the parties send formal, lengthy briefs, replete with numerous citations to both facts and legal authorities, or whether they simply show up at the mandated start time, there are always surprises. A good mediator must be ready to handle any situation that arises, with patience, flexibility and a good sense of humor.

Good Practice Framework (4/17/15)
Lesley Allport
Universities should include mediation in their framework for handling student complaints! The formal process is long, complex and saps everyone’s time and energy; most students with complaints about staff behaviours and attitude would prefer to talk it out, in our experience.

Ellen Pao: Reddit has Stopped Negotiating Initial Salaries (4/17/15)
Kelly Browe Olson
The Wall Street Journal ran an interview with Ellen Pao yesterday. She discusses many things, but her quote regarding salary negotiations really hit a nerve.

The Integrity of ADR Processes and the Risks of Blurred Boundaries (4/14/15)
Marvin E. Johnson
Historically, the three main dispute resolution methods used in the United States have been violence, avoidance, and litigation. Today, there are a variety of additional processes that can be used to foster the resolution of disputes. Many of these processes began gaining popularity in the early 1970s as a result of frustration with the varied human and financial costs associated with litigation.

The Medici Effect of Mediation (4/10/15)
Michael Leathes
As the Danish mediator Tina Monberg has pointed out in The Butterfly Effect, chaos theory sits at many intersections: conflict and consensus; litigation and negotiation; problem and solution; public policy and private process, art and science, servant leadership and personal leadership, and others. Mediation is both a practice and a theory, cutting across negotiation and justice, practicality and academia, needs and demands.

Litigation as Violence (4/10/15)
John Lande
Litigation is an important part of the dispute resolution system and it is quite legitimate for people to use it in appropriate cases. Litigation (including negotiation and mediation conducted during litigation) often functions appropriately without causing undue violence or other harm. People usually don’t pay as much attention when things work properly and this may be the case with litigation most of the time. But too often, unnecessary injury is a by-product.

Both Textbook and Handbook – Lisa Parkinson’s “Family Mediation” - Book Review (4/10/15)
Lisa Parkinson, Sabine Walsh
Whether for family mediators in particular, or family lawyers in general, Lisa Parkinson’s third edition of ‘Family Mediation’ is the authoritative textbook and guide that no professional adviser in family disputes should be without.

Moving from the Shadows into the Sunlight (4/10/15)
Lorraine Segal
Perhaps my biggest learning on my own journey to healing and recovery is that I have a choice at any moment, to continue to stand in a shadow of my own creation, or to change my attitude so I can move into light, trust, faith and optimism. Your attitude makes the difference.

Considering Reconciling? (4/10/15)
Dick Price
This is kind of a chicken and egg situation. Which came first, the possibility of reconciliation or choosing to use the Collaborative process?

Courts are Limited When it Comes to Problem Solving (4/10/15)
Michael A. Zeytoonian
Recently I represented a party in a dispute over some business equipment. This case would have been better resolved by the parties either directly communicating with each other or communicating and negotiating with each other through their lawyers. But before that could be done, one party opted to file a complaint in federal court and as a result, we were engaged in court proceedings.

Reaching Agreement on the Nile (4/10/15)
Larry Susskind
Egypt, Ethiopia, and Sudan recently signed a Declaration of Principles aimed at resolving an increasingly contentious dispute over Ethiopia’s ongoing effort to build the $4.6 billion-dollar hydroelectric power plant project called the Grand Ethiopian Renaissance Dam, Africa’s largest. The Declaration does not seek to resolve the larger question of how the overall waters of the Nile will be shared. The fact that the Declaration was signed is an important accomplishment. I want to look closely, though, at the ten principles spelled out in the Declaration because I’m worried that some may be difficult to implement.

Juries of Their Peers (4/10/15)
Maria Simpson
When I was in fourth grade, a few millennia ago, our teacher established a system so we could settle a lot of our own disputes. General mischief-maker, Walter, was elected judge, a decision that completely confounded our teacher, and the class was the jury. We explained our choice of Walter as judge by saying that judges always behave well, and if Walter were judge, he would have to behave better than usual. It was completely logical to us, but I’ll bet the teacher would never have seen that possibility and would have continued to discipline Walter rather than offer opportunity.

The Priming Effect of Temperature (4/10/15)
Phyllis Pollack
Roaming around on the internet the other day, I stumbled across an interesting article on LiveScience.com about the effect of temperature on our psyches. Entitled, “5 Weird Ways Cold Weather Affects Your Psyche”, the author Laura Geggel discusses different studies showing that we react differently depending upon whether a room is hot or cold. While the March 11, 2015 article discusses 5 “weird ways”, three of them are pertinent to negotiations.

That's Not How it Happened! Let Me Tell You the True Story (4/10/15)
Stephanie West Allen
How can two or more people sincerely, earnestly, and confidently have such widely divergent versions of events? As mediators, we often have heard stories from parties in which the facts are conflicting and yet no one seems to be deliberately deceiving.

Bodies at Work: Moving toward Alchemy (4/10/15)
Michelle LeBaron
The single most neglected truism in mediation, whether virtual or in person, is that it does not happen without bodies. We do not mediate with beings in other realms (unless we attach a very different meaning to mediation than is contemplated in this collection of articles on the future of our craft). Thus involving those with current corporeal substance, we mobilize to engage and reach toward understanding while literally standing our ground.

Expanding Mediation’s Future: Integrating Party Self-Determination with other Mediation Principles that can Aid Party Understanding and Truly Informed Decision Making (4/06/15)
Alan E. Gross
Bush and Folger recently contributed an article to this “Mediation Futures Project” series that advocates strongly for “Refocusing on Party Self-Determination” but also suggests that mediators should conform to orthodox Transformative Mediation practices. This partial rejoinder, while acknowledging the important contribution of the TM focus on self-determination to mediation practice, also recognizes the value of other mediation practices.

National Divorce Survey Yields Surprising Insights (4/03/15)
John Licciardello
Divorce is as popular as ever in America, with over 50% of first marriages and 70% of second marriages ending prematurely. In addition to traditional litigation couples are increasingly turning to mediation and the “do it yourself” pro se divorce process in the quest to have “successful” divorces as measured by satisfactory settlements, minimal relationship damage and reasonable cost.

Party-Directed Mediation. Another Step Towards Non-Directive Mediation (4/03/15)
Gregorio Billikopf
The contribution of two models is presented in this article, Party-Directed Mediation (PDM) and Negotiated Performance Appraisal (NPA) to deal with peer mediation and hierarchical mediation, respectively. Both models are especially useful for dealing with deep seated interpersonal conflict. Originally, they were used as organizational mediation models.

Using Mindfulness to Inform Our Responses to Conflict (4/03/15)
Ryan O'Connell
A mindfulness technique known by the acronym RAIN can be a useful tool for informing our conflict responses and transforming our conditioned, reactive conflict behaviors.

Gratitude For The Law (4/03/15)
Bill Marsh
This year in the UK we are celebrating the 800th anniversary of the Magna Carta, or “Great Charter”. Interestingly, and less well-known, this deal was mediated.

Federal Court Case Update, Filings and Firings (4/03/15)
Richard Birke
Following is the start of a new series on the JAMS ADR Blog, featuring short synopses of recent case rulings related to arbitration or ADR. We’re excited to share this information as we know this is an area that will be of interest to our readers and those in the legal industry.

Where Have All The Idealists Gone? Long Time Passing, Part II (4/03/15)
Jeffrey Krivis
Over the years, a common theme heard among litigators after a grueling case where one side loses is that there must be a better way to manage disputes. In the mid -1970s, legal scholars from around the nation came together to review ways to make the legal process more user-friendly and accessible. They concluded, among other things, that a multi-door courthouse with processes that were designed to fit the forum to the dispute might be worth considering.

Mediation: Why Distinguish Between Models? (4/03/15)
Dan Simon
This blog highlights examples of a typical conversation between mediators trying to decide the importance of different models.

How to Be a Problem-solving Superhero Without Fixing it Yourself (4/03/15)
Tammy Lenski
Years ago, a student came to my office with a problem. I was a dean at the time and I had many appointments like this in an average day. To give you a sense of what it’s like to be a dean, I’ll tell you that when I left that job to begin a new career as a conflict resolutionary, one of the good-bye gifts from my staff was a fire extinguisher “to remember the job by.”

Snap Judgments (4/03/15)
Phyllis Pollack
Snap Judgments. We all make them … and how they can lead us astray! This obvious point is made in a blog posted on March 2, 2015 on the Harvard Program on Negotiation’s blog website ( entitled “How Snap Judgments Can Lead Negotiators Astray In Negotiation Conversations” ).

Looking to the Future: Complexity, Chaos, and Making Connections (3/31/15)
Lisa Parkinson
Diversity matters! For mediation to develop in fresh and vibrant ways, we need to think and act creatively. Some of the best ideas come from making connections – for example, between mediation, sciences, and the arts – and through using these connections in practice. Bernie Mayer's article in the Mediation Futures series struck chords with me, with its references to complexity science, chaos, and the importance of adapting the ways we mediate to meet diverse needs, instead of expecting participants to fit in with the particular way we choose to mediate.

Disgraceful Example of Hard Bargaining in Plea Bargaining (3/31/15)
Cynthia Alkon
Yesterday the AP reported that prosecutors in Nashville, Tennessee “made sterilization of women part of plea negotiations at least four times in the past five years.” The cases all seemed to involve mistreatment or neglect of children and some involved seriously mentally ill defendants.

When Man First Came Down From the Trees… He Decided to Own the Language (3/31/15)
Katherine Graham
I am disappointed by the media’s return to the generic ‘he’ and ‘man’. What happened to respect and dignity? I certainly don’t feel respected when I’m told that ‘mankind’s first dwellings were…’ or that ‘a doctor feels he needs to…’. I feel my dignity is under attack when, on challenging this, I am told that a generic masculine is ‘understood’ to ‘include’ women, and that really I am making a silly, outdated fuss about nothing very important.

Joint Sessions: Are Lawyers Right to Hate Them? (3/31/15)
Martin Quinn
Mention holding a joint session and you are sure to provoke an argument between mediators and teachers of mediation on one side and lawyers who represent clients in mediations on the other. That dichotomy is not wholly accurate because many mediators have also abandoned the use of joint sessions.

Is This the Best Dispute Resolution We Can Do? (3/31/15)
Michael A. Zeytoonian
I suppose somewhere, some group celebrated the “win” of recapturing Syrian cities as a strategic victory. The problem was that there was nothing left to recapture. Whatever had once been there was gone. The people were either dead, injured or gone. There was no other movement.

Mediation Confidentiality Strikes Again (3/31/15)
Phyllis Pollack
Once again, an appellate court in California has confirmed the “…near categorical prohibition against judicially crafted exceptions to mediation confidentiality.” In Amis v Greenberg Traurig, LLP et al, (Issued March 18, 2015, Case No. BC 426815) (Id. at 8.), the Court of Appeal for the Second Appellate District held that mediation confidentiality precluded an attorney malpractice action from going forward.

Thirteen Days in September (3/31/15)
Joe Markowitz
Speaking of peace in the Middle East, I've been reading the new book about the Camp David negotiations by Lawrence Wright. Surprisingly, reading this account made me feel a little more hopeful about the prospects for peace between Israelis and Palestinians, the great unfinished business of the Camp David accords, even though the conventional wisdom in light of Prime Minister Netanyahu's recent re-election is that resolution of the issues in the territories is now a long ways off.

The Primal Roots of Blame, Defensiveness, and Reactivity (3/31/15)
Tammy Lenski
Handling blame, defensiveness, and high reactivity during conflict can challenge both the informal mediators and professional conflict resolvers among us. I’ve found that the “primal lens” for considering possible roots of these behaviors to be really helpful and want to share it with you.

Mediation Styles (3/30/15)
Tony Belak, William Hymes
Conflict is not unique to humans, but it can be said that the involvement of third parties in conflict, for better or worse, is a distinctly human activity and it has been around since Man began speaking and walking erect. Given this history, it is unsurprising that over time, innumerable styles, techniques and customs have come into play, and it is further unsurprising that the relative merits, and applicability of of these techniques have become the topic of scrutiny, study and academic debate.

Reflections on Mediation: Past, Present, and Future (3/30/15)
Susan Bulfinch
To reflect on the future, it is helpful to understand where we are and how we got here. This article gives an overview of mediation and suggests some directions for the future. Social media will help increase interest in the field and teaching conflict resolution at an early age may help reduce conflict at school, home and work.

Gateways and Barriers to the Widespreading of Mediation and Restorative Justice (3/30/15)
Brendan Schutte
If mediation and restorative justice are such great ideas, why are they taking such a long time to spread across communities, workplaces, and organizations? Hidden human biases act against adoption of new ideas and also act in favour of aggressive or adversarial approaches more than constructive resolution of conflict. But there are also ways to help spread ideas and good news stories and increase the chances that mediation and restorative justice will flourish.

The Future of Mediation (3/26/15)
Chris Poole
It is impossible to talk about the future, present or past of mediation without putting some sort of definition to that term. Clearly, mediation as dispute resolution has been around as long as disputes. When defined as a process that involves a designated third-party to assist in the resolution of disputes, mediation can be considered an old process.

Become a World Class Negotiator (3/21/15)
Victoria Pynchon
It's not rocket science and it's not a secondary sexual characteristic. You don't "negotiate like a man" or "like a woman." You read, you practice, you fail, you succeed, you learn.

Texas Legislature Considers Measure that Would Require Out-of-Network Emergency Room Providers to Arbitrate Payment Claims (3/21/15)
Beth Graham
A bill seeking to establish an arbitration process designed to protect patients who are treated by an out-of-network provider during an emergency room visit from being hit with hefty medical charges is currently before the Texas Legislature. House Bill 1638, “Relating to nonpreferred provider claims under a preferred provider benefit plan related to emergency care,” was introduced by Representative Smithee and filed on February 19, 2015. An accompanying proposal was introduced in the Texas Senate on March 12th by Senator Taylor of Galveston.

Conflict Transformation in TV and Movies (3/21/15)
Dan Simon
My wife and I started using movie and TV clips in mediation training after participating in a workshop facilitated by Baruch Bush and Joe Folger called Rethinking Conflict in 2008. We were so inspired by this teaching and learning tool that we picked up the ball and ran with it.

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