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"ADR Prof Blog" - 5 new articles

  1. Giving Thanks to (Facilitation) Students
  2. Some Good Questions
  3. Love: Is Mediation A Sleeping Beauty?
  4. Peace Be With You…And With You?
  5. Industry Response to Consumer Arbitration Study
  6. More Recent Articles
  7. Search ADR Prof Blog
  8. Prior Mailing Archive

Giving Thanks to (Facilitation) Students

From Bob Bordone and Rachel Viscomi (Harvard):

November 25, 2014

This fall semester this year a notable one for both of us, for different reasons and motivated by different circumstances. Bob is preparing to take his first sabbatical after sixteen years of continuous teaching in both semesters; by contrast, Rachel embarked upon teaching her first law school class. For entirely different reasons then, both of us felt some anxiety about the semester. For Rachel, with years of experience teaching corporate executives but new to teaching a semester-long class for law students, her attitude was one of cautious optimism. For Bob, ready for a much needed break, his attitude was, “Power through these three months and then a break is on the way!”

Who would have thought that now, looking back three months later, we would be thinking of the semester gone by as one of the most energizing, rewarding, and exciting experiences of our careers to date?

This year, building on the work of Bob (with the invaluable help of our colleague Heather Kulp) in the Fall of 2013, we offered for the second time (with the indispensable assistance of our colleague Sara del Nido) an expanded version of the Lawyer as Facilitator Workshop. Our purpose in designing the class was to capacity-build law students to facilitate genuine dialogue around areas of deep difference in our politics, community, churches, and even within the legal profession. We also identified a broader need to train law students in how to collaborate more effectively with each other working in groups, manage multi-stakeholder processes, and run strategy and planning meetings. The Lawyer as Facilitator Workshop convenes participants in dialogue groups related to abortion, university policies around Title IX and harassment, and trigger warnings. We also partnered with Harvard University’s largest union and its labor relations team to facilitate brainstorming sessions on topics that have consistently been points of contention in official labor negotiations.

On the surface, then, this course sounds like mostly a skill-building and practical workshop. But it has, in fact, been so much more – for us and for our students. A workshop on facilitation necessarily forces self-examination and self-challenge, and we approached the course design with that emphasis in mind. But we underestimated the ways in which that element of facilitation would create a learning “container” in the classroom for personal growth, sharing, and introspection about identity, emotions, competency, and community. Partially by invitation, but mostly by dint of courage and openness, the twelve students in our class created a place where they could not only develop behavioral skills, but also explore the inner voices that get in the way of their being as skillful in the room as they might. These inner voices might be telling them many things, including that they are unqualified, an imposter, or undeserving of the opportunity to witness and guide a group in deep conflict.

Our own experience witnessing and guiding the students as they opened up this space of incredible rigor and depth for each other and for us served as a powerful reminder of the opportunity, privilege, and honor that we have of teaching. Our work as teachers of conflict resolution, at its best, should be transformative. Conflict management is a subject area that demands cognitive and behavioral skills, but also an emotional self-awareness and courage to accompany people to terrain that can be unsettling, volatile, frightening, and often unexplored. To do that well, the best facilitators and mediators need to know how to go there themselves. And seeing our students take on this tremendously challenging work this semester was nothing short of inspiring.

Here is just a small sampling of what we have learned from our students in the course – not only about facilitation, but also about the unique role that we find ourselves in as teachers in our field:

Deep empathy, particularly for personal stories and histories, matters; it bridges gaps and creates connections. Students’ aspirations and fears – for themselves professionally and for the profession they are about to inhabit – were often central to why they chose to take this course in facilitation; and as those aspirations and fears came to the fore in class, so, too, did students’ personal stories of struggle, success, loss, doubt, tenacity, and triumph. The sharing of these stories provided a chance for everyone in the class – instructors and fellow students – to take one another’s perspective and better understand the challenge, unique to each student, of learning to facilitate a group in need of their own “container” for conversation, dialogue, or problem-solving.

In the face of challenge, students respond with deep resilience. The course offered a chance for students to facilitate during nearly every class, as well as engage in a subsequent deep and thorough review of their work. For most students, it was their first experience facilitating in a formal setting. At times, students experienced regret, disappointment, and even a feeling of being overwhelmed by the experience. We found ourselves called upon to bear witness to these difficult moments, to find ways to encourage and support them, and also to offer the coaching they needed to take the next step. But the students did the same for each other, without prompting, and wholly on their own. What impressed us most was their desire to persevere – to pick themselves up, integrate the lessons, and show up again the next time, ready for what might come their way.

Given the space and tools, students can be masterful at creating a classroom learning environment that fosters rigor and challenge as well as compassion and care. If this fall’s course has been a success, it is owed in large part to the atmosphere that the students helped create. Our classroom has been a “container” that has required rigor in the form of difficult exercises and detailed critiques, but also has been infused with compassion, care, and a spirit of experimentation and low stakes that has in turn promoted openness. Reflecting on the space that we managed to co-create this semester, we are keenly aware of a teacher’s tremendous responsibility in this regard: not only to foster a positive environment, but also to enable the students themselves to maintain that sense of safety, even when the material is challenging and students and teachers feel vulnerable. Indeed, while we intentionally designed the classroom to be a learning “container,” that simple intention would not itself have been enough to ensure a positive and open atmosphere throughout the semester; we relied on – and were inspired by – our students, who made the conscious decision to adopt, extend, and embody that spirit consistently.

As Thanksgiving approaches and we reflect upon our experience this fall, we are filled with a deep sense of appreciation and gratitude – for the field of dispute resolution and conflict management, for our vocation as teachers, and, most of all, for our amazing students. Working with students who struggle past challenges, take risks, and put themselves fully into their craft is more rejuvenating and refreshing than a lifetime of sabbaticals, and the most exciting kickoff to a teaching career that we could imagine. So thanks for that reminder, as we move on from the fall and prepare for what’s next.

 

Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law and the Director of the Harvard Negotiation and Mediation Clinical Program at Harvard Law School.

 

Rachel A. Viscomi is a Lecturer on Law and the Assistant Director of the Harvard Negotiation and Mediation Clinical Program at Harvard Law School.

    


Some Good Questions

In 1998, commenting on the hot controversy about the “Rand Report’s” finding that certain mediation programs did not save time or money (measured in terms of lawyers’ work hours), Professor Craig McEwen argued that it was the wrong question to ask whether “mediation works.” Critics of the Report had argued that its methodology led to a false impression that mediation doesn’t work. McEwen suggested that “Instead of asking whether mediation works or not, we need to examine how and why parties and lawyers “work” mediation in varying ways.” Craig A. McEwen, Managing Corporate Disputing: Overcoming Barriers to the Effective Use of Mediation for Reducing the Cost and Time of Litigation, 14 Ohio St. J. on Disp. Resol. 1, 3 (1998).

 

I have a similar reaction to the title of the Cardozo symposium, “Is Mediation a Sleeping Beauty?” and the descriptions of the presentations in Lela Love’s post (via Art).

 

A few caveats before I explain my thinking. I understand the value of a provocative symposium title and this one obviously captured people’s imaginations. Of course, it is very hard to capture nuances in a single sentence summary or even in fairly brief symposium presentations. The symposium articles may address some of my concerns.

 

The presenters are, indeed, luminaries in our field and many are good friends who I like and respect a lot. It sounds like the symposium was stimulating and great fun. I’m sorry I wasn’t there.

 

I agree with many of the concerns that presenters expressed. When I was in private practice, doing mostly divorce mediation, I used procedures I think they would say are desirable (if not beautiful). Some time ago, I wrote an article expressing concern about what I called “liti-mediation,” which I argued could decrease the quality of parties’ decision-making and consent.  I have written about bad faith in mediation. Like some presenters, I favor things such as the use of joint opening sessions, direct party participation, focus on the full range of parties’ relevant interests, and limitation of use of mediator evaluations as much as appropriate.

 

Considering all this, what’s my problem? (There are many theories about this but we will save them for another time.)

 

In brief, this sleeping beauty discussion (at least as described in the summary) oversimplifies a very complex phenomenon and turns it into a counterproductive morality play of good and evil. I think it is counterproductive because I think that it mischaracterizes the problems, risks alienating needed allies, and can lead to less effective strategies for solving the problems. Since I didn’t attend the symposium, I don’t know how much my concerns would apply to particular presentations (and thus the “shoe may not fit” some of them). Although my concerns may not apply to some presentations, I have heard many people in our community express these ideas.

 

First, mediation is not a single uniform thing – and it is not an actor with independent agency. The term refers to an incredibly diverse range of procedures that people use in various ways. Echoing Craig McEwen, instead of asking whether mediation is a sleeping beauty, I think it would be more helpful to ask why people use “it” in more or less beautiful (or useful) ways and how we can help people use “it” better.

 

I suspect that most of us would agree that the mediation process differs greatly depending on many factors including, but not limited to, the subject matter, the sophistication of the parties, the nature and extent of their preparation, their interests, their goals for the process, their procedural preferences, the prior relationship of the parties, any desire of the parties to have a future relationship, whether and how lawyers participate, the mediators’ general goals and preferred approaches, and the legal and mediation practice culture. So I think that we should normally avoid generalizing about mediation as if it is a single, uniform process.

 

I wonder if anyone at the symposium mentioned the truism that “beauty is in the eye of the beholder.” Mediations that some would call a beauty, others would call a beast and vice versa. While most of us might agree on the extremes, I suspect that most mediations are somewhere in “the middle” with much less consensus about the amount of beauty or lack thereof.

 

Although the Sleeping Beauty story provides a vivid metaphor that you might say is just a hook for discussion, it reflects a polarized vision of good and bad that I hear a lot in our community. “Our” preferred version of mediation is the virtuous, beautiful princess and the “other” version is the bad, ugly step-sister. In this fairy tale, “we” are the chivalrous heros and heroines who rescue sleeping beauty from the villain, often cast as lawyers and/or the courts.

 

In an article, I wrote, “Procedures are inanimate phenomena that should be means to ends, not ends in themselves. Yet many of us make fetishes of our favorite procedures as if they have some extra measure of goodness. These procedures are incredibly malleable and can yield better or worse effects depending on many things, especially how people use them. . . . Rather than making procedures the protagonists in these stories, we should celebrate humans and their wise and caring actions when working with conflict. This includes judges and lawyers who choose between the various procedural options (including, but not limited to, trials) to promote appropriate goals for litigants and societies. Judges can make some of their best contributions by helping design and manage disputing systems as well as trying cases. . . . Mediators and arbitrators are often heroes, helping people work through conflicts. . . . Instead of investing so much of our cultural resources in myths about our most (or least) favorite procedures, we should invest more in realistic stories honoring people who work together to make good choices in using procedures to satisfy people’s interests.”

 

Like it or not, mediation conducted in the shadow of the courts relies on the cooperation of lawyers and judges. So, purely as a matter of self-interest, we do well not to demonize or alienate them. Moreover, I think that general characterizations of them as subverters of “good mediation” are inaccurate oversimplifications of their perspectives, which are quite diverse.

 

I would start with a rebuttable presumption that lawyers and judges in a community generally are trying to perform their functions as well as possible given their perceptions of their goals in their roles and their particular practice culture. Mediators can work with lawyers in individual cases to negotiate appropriate procedures as recommended by the ABA Section of Dispute Resolution Task Force on Improving Mediation Quality. Following one of the Task Force’s key recommendations, parties and lawyers can prepare for mediation by using the “mediation guides” that the Section developed. (FYI, I was a member of the Task Force and helped draft the mediation guides.)

 

Mediators have a hard time when they work in practice cultures with norms different from the mediators’ preferences. These situations could benefit from dialogues between representatives of the different stakeholder groups seeking agreements about procedures and norms that satisfy the interests of the various stakeholders, especially the parties. In such a dialogue, mediators might ask questions such as the following: What are the interests of lawyers and courts in mediation? What do lawyers and judges think are the parties’ interests? Are lawyers open to considering that some parties may have interests in addition to resolution and maximizing their partisan outcomes? Under what circumstances would lawyers be open to using particular mediation procedures? How could lawyers and courts work with mediators to promote the most productive mediation practice culture and norms?

 

I’ll be curious to read what the symposium speakers recommend to revive their preferred visions of mediation.

 

What do you think? Email me. You never write. You never call.

 

Best,
John

    

Love: Is Mediation A Sleeping Beauty?

From FOI Lela Love (Cardozo) – dispatches from the Melnick Symposium at Cardozo – Is Mediation a Sleeping Beauty?

On November 2, 2014, at the Cardozo Journal of Conflict Resolution fall symposium, speaker after speaker asked Is Mediation a Sleeping Beauty?It was a taking stock event with luminaries from the field seeing this as a turning point in reviving core elements of mediation or succumbing to the devolution of mediation in the direction of an adversarial litigation-lite process or, at best, a settlement conference. Most thought that mediation was indeed sleeping and not all together beautiful and that action was needed to revive her.

Here are highlights from the speakers:

  • Professor Giuseppe De Palo (ADR Center in Rome, Italy) proposed mandatory mitigated mediation (mandatory mediation with an easy opt-out) as a response to the underuse of mediation throughout the European Union.  Thanks to this process, Italy leads countries in the EU in the use of mediation.
  • Kim Kovach suggested that mediation is in a coma due to its marriage with litigation in court settings, and the resulting mutant child (liti-mediation) is indeed unattractive.
  • Professor Jacqueline Nolan-Haley (Fordham Law School) described these times as a season of light with mediation’s popularity at a high point and also a season of darkness from abuse of process and confusion of the mediator’s role.
  • Professor Robert A. Baruch Bush (Hofstra University School of Law) concluded that mediation had been drawn into an intoxicating problem-solving culture—resulting in many mediators being too focused upon the “drug-like high” of settlement.
  • Professor James Coben didn’t mince words when he said that he believed mediation has turned ugly – another tool for litigators to delay and abuse the judicial system. He also described our current system for selecting mediators as an “aristocracy,” not based on mediator skill but instead on inflated reputations.
  • Professor Josh Stulberg explored whether interest-based bargaining theory, often the mediator’s privileged approach for fostering negotiation, operates to reinforce party inequalities and undermine party self-determination, contrary to the presumptively salient values of the mediation process.
  • Eric Galton blamed commercial mediators for caving in to lawyer demands to eliminate joint sessions, limit party participation, and provide evaluations.
  • Professor Nancy Welsh shifted to the fairy tale of Cinderella, arguing that as courts prioritize case closure and lawyers’ preferences over process quality or the protection of parties’ self-determination, they too often behave like the self-interested and vain stepmother. Maybe the courts can be the Fairy Godmother, though, by granting mediation the markers of legitimacy and thus enabling others to appreciate the process’ inherent beauty.
  • Professor Erez-Navot pointed to “wicked witch” elements in child permanency mediation, including reduced party participation and representatives who are more concerned with their professional relationships with judges and adversaries than the welfare of the parties they represent.
  • Professor Carol Liebman suggested candidates for Prince Charming might be: mandatory mediation (for certain cases), pay for mediators (in situations where other professionals are being paid), and adherence to core mediation values.
  • Tracy Frisch discussed several efforts of the AAA to respond crises, such as Hurricane Sandy and the bankruptcy crisis in Florida.
  • Brad Heckman shared his experience using social media to promote mediation and described the unparalleled access and exposure he found in using outlets such as Twitter and participating in TEDx.
  • Laurel Kaufer struck a positive note, finding beauty in mediation as she described the success of Prison of Peace, a nonprofit organization she co-founded that trains long-term inmates in mediation, life, and peacemaking skills.

The Journal of Conflict Resolution will be publishing a symposium edition in Spring 2015.  Many of the presenters at the symposium will be publishing articles in line with the themes discussed at the symposium.

    


Peace Be With You…And With You?

Under the heading of hard bargaining tactics gone bad (and bad lawyer advice), we can now add this story.  When a group of eight faculty members at the General Theological Seminary in Manhattan decided to stop working in order to protest their newly hired dean and president, Rev. Kurt H. Dunkle, all purgatory broke loose. Under advice of their counsel, the faculty wrote a rather strongly worded letter outlining their demands regarding the dean.  (See the nasty details of the dean’s behavior here).

Unimpressed with the tone of the letter, the Board of Trustees for the Seminary considered the letter, instead of the opening bid that the faculty intended, as a mass resignation.  They dismissed the eight faculty members (leaving the students at the Seminary with only two instructors.) In this case, the eight faculty members’ hard bargaining tactic to have their foul-mouthed, micromanaging (in their descriptions) dean dismissed ended up focusing attention on their perceived “bad” behavior rather than that of their dean.

Earlier this month, seven of the faculty members were reinstated (one of them accepted a severance package and moved on).  And only now, (finally) the faculty and board of trustees are using mediation to see if their interests can be met.

When we talk about expanding the pie, we should also be talking about shrinking the pie.  This is a great example of just that–and woe for the unlucky students. (Hat tip to my colleague Bruce Boyden for this awesome storyline)

    

Industry Response to Consumer Arbitration Study

Alan Kaplinsky and Mark Levin, Ballard Spahr attorneys writing on their CFPB Monitor blog, have offered their initial thoughts on the study of consumer understanding of arbitration agreements that my St. John’s colleagues and I recently posted.

My colleague Jeff Sovern has posted a full response at the Consumer Law & Policy Blog. I’ll just add that, in my view, Levin and Kaplinsky don’t actually address the core problem we address in our article–that citizens are being unwittingly and unwillingly forced to give up important (and constitutionally guaranteed) procedural rights. Their point–and it is the point arbitration advocates almost invariably make–is that arbitration can be better for consumers than litigation. That may very well be true, at least some of the time. (See my post on the benefits of limited consumer arbitration here.) But it doesn’t answer the right question.

The constitution guarantees a right to a jury trial in civil disputes. More broadly, the rule of law depends on access to public adjudication to enforce private rights. Citizens cannot be forced into alternative processes simply because someone has made a determination that they would in fact be better served by the alternatives. It is certainly true that citizens can choose to give up their adjudicative rights, but those choices have legitimacy only if they are knowing and voluntary. Our research suggests that consent to arbitration is seldom knowing and voluntary.

    


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