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Arbitration & Mediation: Online Guide to Mediation
Blawg Review #181
By Diane Levin
For those of you who are unfamiliar with Blawg Review, allow me a brief introduction. Hosted each week by a different blogger, Blawg Review highlights noteworthy legal blogging, sharing the pleasure of discovery of insight, news, and commentary sampled across the spectrum of legal practice.
In preparation for my turn as host, I did a little research into the significance of this particular date, October 13. I turned to that sometimes unreliable, always entertaining, font of 21st century wisdom, Wikipedia, for some answers, and learned that in 1582, thanks to the implementation of the Gregorian calendar that year, October 13 did not exist in Italy, Poland, Portugal and Spain.
That’s somehow fitting for a presentation of Blawg Review that celebrates Conflict Resolution Day. Conflict, after all, can be like that. It can make us fiercely wish for entire days to vanish, and that the events that mar them vanish with them. Resolution though looks determinedly ahead; we can’t undo the past, but we can at least undo its results by the choices we make today.
Mediation? Or litigation? That’s how some might frame the choice among dispute resolution methods. With Blawg Review #181, you can have it both ways. Since I’m a mediator, half of this presentation of Blawg Review will commemorate International Conflict Resolution Day by presenting posts relating to conflict resolution, ADR, and negotiation. And, since I’m also a card-carrying member of the Massachusetts bar, the other half will review the best in legal blogging on topics other than ADR. Mediation, litigation — which do you prefer? I’ll let you be the judge (or arbitrator, if you’d rather).
However, to get you in the mood for either mediating or litigating, I invite you first to watch this classic Monty Python sketch, “The Argument”:
1. International Conflict Resolution Day: related posts on ADR, negotiation, and conflict resolution
In thinking about the significance of Conflict Resolution Day, I was struck by a post written by Bob Sutton at Work Matters, “Touch People With The Better Angels of Your Nature“, as he reflected on words U.S. president Abraham Lincoln spoke during his first inaugural address during a time when the U.S. was divided, North against South:
We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearth-stone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.
Sutton writes, “I think it is excellent advice. Nastiness sometimes leads to short-term wins, but the long-term costs are usually horrible.” If only we could all be touched by our own better angels.
You and your better angel may in fact like to attend one or more of the free events honoring Conflict Resolution Day to be held this week. Tom Kosakowski at The Ombuds Blog alerts readers that the Association for Conflict Resolution (ACR) has two free teleconferences planned: one on “Conflict Resolution, Democracy, and Policymaking: Lessons and Challenges”, and the second on “Working for Conflict Resolution and Peacebuilding: How Can I Make a Better World?”, geared toward undergraduate and graduate students. You can get more information about these and other Conflict Resolution Day events or find out how to register by visiting ACR’s web site.
If you’re interested in finding out what role the internet and technology can play in resolving disputes, then sign up for ODR Cyberweek 2008, an all-online conference featuring demonstrations, discussions, and other events exploring the application of technology to dispute resolution, negotiation, and more, running from October 13 - 17, 2008. Registration is entirely free. (Bonus for the eco-conscious: because it’s all online, you can keep your carbon footprint small.)
Last year I celebrated Conflict Resolution Day online with my friend Geoff Sharp, a barrister and mediator from New Zealand, with a special double-hemisphere edition of Blawg Review. Geoff, an accomplished blogger known for punchy, no-holds-barred posts like last week’s “Counsel, strap on a pair!“, has just been singled out for a special and well-deserved honor: he has been named LEADR Australasian Fellow for 2008-2010. LEADR is an Australasian, not-for-profit membership organization that promotes and facilitates the use of consensual dispute resolution processes. Congratulations, Geoff.
Cognitive Daily, a cognitive psychology blog, shares the results of a recent survey it conducted about a popular illusion that depicts a dancer spinning. The illusion, created by Nobuyuki Kayahara, does not, contrary to popular belief, prove whether you’re right-brained or left-brained. What makes it so fascinating is that some people perceive her to spin clockwise, some counter-clockwise, and some are able to reverse the direction in which they see her spin. I find optical illusions useful in teaching negotiation or conflict resolution skills, since they remind us of the unreliability of our senses, and that it is always possible to see things differently, even when you and I find ourselves looking at precisely the same thing.
The illusion appears on your right — which way do you see her spin?
Nothing ignites conflict faster than ill-chosen words or a lack of common courtesy. David Giacalone, the poet and retired mediator who publishes f/k/a, a blog combining “breathless punditry” with “one-breath poetry”, asks, “Who are you calling ‘dearie’?“, as he examines the phenomenon known as “elderspeak” — the terms of endearment the well-intentioned use to address (and offend) elders. Scott Greenfield of Simple Justice soberly shares “A Lawyer’s Lesson About Inflammatory Rhetoric“. And Eric Turkewitz at New York Personal Injury Law Blog says, “I’m Sorry You’re A Jerk (Lawyering 101: Professionalism)“.
When mistakes happen, conflict resolution can produce apologies and reconciliation. Yet fear of civil litigation can stand in the way of disclosure and apology — although movements across a number of fields are pushing to change that. Slaw reports on “New Proposed Apology Legislation in Ontario” designed to promote accountability and patient safety, together with the speedy resolution of civil disputes, among other goals. With apologies for mistakes in mind, Richard Webb at the Health Care ADR Blog muses, “Do Doctors Confess Errors Only When Caught?”
There would probably be far less need for apologies if only people would stop using technology when drunk. Peter Black, of Freedom to Differ, points to “Drunks outsmart Google,” an article he’s written for the Courier-Mail that mocks Mail Goggles, Google’s effort to create an email tool that verifies that users intend to send an email by requiring them to correctly complete a few math problems first.
Trust is integral to negotiating or working things out. Trust gets transactions done and people talking. Charles Green of Trust Matters, and a host of an earlier edition of Blawg Review, served as host this past week to another blog carnival, the esteemed Carnival of Trust, for October 2008, where he rounds up the top ten posts that deal with trust across a range of issues, including leadership, influencing, and politics. Elsewhere on his blog Green asks, “Do Lawyers Behave Rationally?“, as he looks at the zero-sum games that a little relationship building can avoid.
Blogs about ADR abound these days. The newest addition to the steadily growing ADR blogosphere is Real Divorce Mediation, published by experienced civil litigator and mediator Nancy Hudgins, who also blogs at Civil Negotiation and Mediation, and collaborative lawyer Debra Synovec. (If you’re curious to sample the wide range of blogs devoted to ADR, conflict resolution, and negotiation, visit the blog I created to track them world-wide, ADRblogs.com.)
Speaking of global concerns, Victoria Pynchon at Settle It Now Negotiation Blog considers weighty matters affecting women world-wide in “Armed Conflict and Sexual Assault.”
At CKA Mediation and Arbitration Blog, Chris Annunziata wonders, “What, exactly, does the mediator DO?” and has some answers. But not only humans have a talent for mediation: French mediator Dominique Lopez-Eychenie, who writes the French language blog ADR-Blog de la Mediation, describes how dogs make effective mediators in work involving youths.
Arbitration was a hot topic this week among bloggers. John DeGroote, who draws on his years of experience as chief litigation counsel for a global company as he writes the blog Settlement Perspectives, gives advice on “Non-Binding Arbitration: Get Your Day in Court Without One Day in Court“. And InhouseBlog offers a comprehensive “Corporate Counsel’s Guide to International Arbitration“.
Richard D. Tuschman, writing for Florida Employment & Immigration Law Blog, considers mandatory arbitration agreements in the workplace in “Eleventh Circuit Upholds ‘Open Door’ Dispute Resolution Policy and Compels Arbitration“, and explains why he generally prefers to “duke it out in court rather than in front of an arbitrator.” And the Womble Carlyle Team at Fair Labor Standards Act Law, warns of the hidden rocks off arbitration’s coast in “Rough Seas for Long John Silver’s“, concluding that “If you … think arbitration is a preferable means of dispute resolution, consider the voyage of [Long John Silver's] through five courts… Beyond here there be dragons!”
Finally, Dan Hull at What About Clients? sees just two advantages to arbitration in “Recession: Litigation, litigation, litigation–but different this time” (don’t miss Dan’s bonus practice tip).
Speaking of litigation, in “Earthcomber Sues TechCrunch Out Of Spite, Pisses Me Off Personally“, Michael Arrington of Tech Crunch tells us what he thinks about filing suit as a negotiation tactic: “…suing someone to get them to return your calls is not exactly a sign of brilliance.” And Justin Patten of Human Law predicts that financial necessity will drive more disputants to mediation over litigation.
One advantage to disputants that mediation offers over litigation is this: it allows those who are directly involved in the dispute and most knowledgeable about the facts and the issues involved — namely the disputants themselves — to be in charge of designing the resolution — rather than leaving the outcome in the hands of a judge and jury who may well know bupkes about the subject matter of the dispute. In “Supreme Court Balancing“, Patterico’s Pontifications illustrates this brilliantly, reporting on a Supreme Court case involving the use by the Navy of sonar that might interfere with the ability of marine mammals to navigate, in which Justice Stephen Breyer commented:
You are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who’s right in the case where the other side says the other side is totally unreasonable.
Yup. Exactly my point.
Just as filing suit has its limitations as a tactic in negotiation, so, too, do fisticuffs as a tool for resolving disputes. Sometimes though a punch in the nose can produce some small satisfaction (although not, as a general rule, for the recipient of such attention), as Colin Samuels at Infamy or Praise reports in his weekly feature “Thank God It’s Schadenfreude” (motto: “this week’s joy in the misfortune of others”): “Richard Fuld, the disgraced head of Lehman Brothers, was punched in the face in the office gym amid the bank’s collapse…”
I’ll wrap up this section with two final posts. As you probably know, mediators are all for bringing people together. How heartwarming therefore to note that Sweet Hot Justice is offering advice for lawyers negotiating with romance in “Online Dating for Lawyers: A Primer” — but, alas, also breaks some bad news to lovelorn litigators: “[G]uess who finds lawyers sexy and funny and cool? No one. Not even other lawyers.” (Um, gulp, but what about mediators?) On the subject of romance, Carolyn Elefant, writing for Legal Blog Watch, reports on newlywed lawyers who celebrated their wedding by spending a year traveling the globe together and reporting their adventures on their blog, One Year on Earth. (The FAQs on the couples’ site answer all questions but the one I was most interested in: how did they resolve the inevitable disputes with each other en route?)
2. Posts on law and legal issues
Now here’s the rest — posts on legal issues and ideas, the business of law, and legal miscellany.
The following posts cover legal issues, decisions, and trends in the law.
In “Before Carcieri v. Kempthorne, It?s Olson v. Larisa“The Wall Street Journal’s Law Blog reports that lawyers just might need a mediator to settle a dispute over who gets to argue a case before the Supreme Court — the lawyer involved with the case for 10 years or an attorney who’s argued 49 Supreme Court cases.
Above the Law selects as its “Lawsuit of the Day” a suit brought against cosmetics and haircare giant L’Oreal by a blonde claiming to have been traumatized when a hair coloring mishap transformed her into a brunette.
Traverse Legal shares a transcript of a radio interview on “Online Trademark Infringement: The Unauthorized Use of Trademarks as Keywords for Online Advertisements“. And Drug and Device Law reviews the “Principles Of Aggravated ? Er ? Aggregated Litigation“.
Sheppard Mullin’s Intellectual Property Law Blog explains how “Two Recent Decisions Reframe the [Digital Millennium Copyright Act] Discussion” and may well predict how hotly contested issues regarding the use of copyrighted works in user-generated content on the Internet will be resolved. Jillian Weiss of Transgender Workplace Diversity warns of pitfalls of the Human Rights Commission’s Corporate Equality Index, which rates companies on their diversity leadership with regard to lesbian, gay, bisexual and transgender employees.
Not one to shy away from a debate, Joel Schoenmeyer at Death and Taxes provides “A Rebuttal Re. Probate Investors“, responding point by point to a reader’s reaction to one of his earlier posts.
The following posts cover the business and practice of law:
The Greatest American Lawyer confirms it: “Despite What They Say, Size Does Matter?” — at least when it comes to competitiveness. The verdict: “I’ve said it before and I?ll say it again. Large companies cannot compete.” Dan Hull and his colleagues at What About Clients? know something about that. Mark Beese of Leadership for Lawyers once wrote that “Large and regional law firms should quake at the thought of small, nimble, expert, high-service firms like Dan’s“. This week at WAC?, Holden Oliver graphically demonstrates “What your clients will do–and your firm needs to do” to thrive in uncertain economic times.
Law21 warns “You ain’t seen nothin’ yet“, seeing ominous signs ahead in tough economic times, both for corporate law firms and law students seeking loans. Of course as markets falter and economies totter at disaster’s brink, many depend upon access to information and news. The Times Online has rounded up a list of “Top ten blogs to read during the banking crisis“, naming, among others, The Becker-Posner Blog, published by jurist Richard Posner with economics professor Gary Becker.
In “Clients Are Extraordinarily Understanding“, Bruce MacEwan at Adam Smith, Esq., asks whether 19th century notions of conflicts make sense in a 21st century world: “In what other profession would going to the most qualified expert raise the hint of the shadow of the bizarre notion of ‘conflicts?’”
Robert Ambrogi at Legal Blog Watch invokes images of infamous Captain Renault and “Casablanca” with “Survey Shocker: Lawyers Hate Stress“, a report on a recent survey of 300 lawyers by staffing firm Robert Half Legal, which, in Ambrogi’s words, does little more than “round up the usual suspects” named as the causes of lawyer job dissatisfaction. (For an alternate view, Tammy Lenski at Conflict Zen offers a mediator’s take on stress.) Stephanie West Allen of Idealawg links to a law review article that reveals the path to “Finding Interior Peace In the Ordinary Practice of Law“.
Of course anyone contemplating a career move should partake of the wisdom George Lenard offers in a post on his eponymous Employment Blawg, “Staying Afloat in a Sea of Sinking Markets: Help for Career Changes During Hard Times“.
Executive Women’s Networking Blog advances a ringing defense of women’s initiatives and explains “Why Women’s Initiatives Work” when they focus on “increasing a women’s access to potential clients through internal and external networking and strengthening leadership skills through mentoring”. And The Greatest American Lawyer explains how the internet and a talent for the generation of quality content give lawyers an opportunity equivalent to — nay, more powerful than — “Standing at a Podium as a Lawyer in Front of 100,000 People and Yelling My Marketing Message“. (Prudent bloggers, however, may wish to purchase “BlogInsure: New Insurance for Bloggers“, now available, as Eric Goldman reports.)
I’ll now wrap things up with some legal miscellany:
Pink has become an almost universally recognized symbol for breast cancer awareness. Two blogs bring different thoughts to the meaning of pink, with Likelihood of Confusion contemplating Pepperidge Farm Mint Milanos in pink packaging in “Think Pink“, and Crooked Timber pondering how culture shapes the way people discuss and cope with cancer in “Pink“.
Last but not least, grieving baseball fan Kevin O’Keefe at Real Lawyers Have Blogs laments that “Presidential candidates offer no solutions to Cubs’ failures“.
This takes me to the end of Blawg Review #181. Next week Dave Gulbransen will do the honors at his blog, Preaching to the Perverted.
In closing, I’d like to give thanks to my better angels — the anonymous Editor of Blawg Review; my Blawg Review sherpa, Colin Samuels; the newest member of the Blawg Review team, Vickie Pynchon; and you, my reader.
It wouldn’t be right to salute Conflict Resolution Day without mentioning one of the world’s best known advocates for peace. Last Thursday, October 9, would have been John Lennon’s 68th birthday. Feel free to sing along:
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
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