The delay in those key issues gave the NHL encouragement that the Coyotes will at least play the 2009-10 season in the desert."
The delay in those key issues gave the NHL encouragement that the Coyotes will at least play the 2009-10 season in the desert."
Entrapment in the ADR world is when a party, as an individual or group, feels they must continue down a certain path because they already have invested so much in this particular choice. Examples of the investment could be in the form of time, resources, or money.
Entrapment could be present in the early stages of a negotiation and also many times is a contributing factor to the escalation of a dispute or conflict. In the book Entrapment in Escalating Conflicts: A Social Psychological Analysis defines entrapment as,"a decision making process whereby individuals escalate their commitment to a previously chosen, though failing, course of action in order to justify or 'make good on' prior investments."
Another way I like to explain the ADR version of entrapment is the party being guilty of having tunnel vision. All the party sees is one 'route' for them to take, which is the currently destructive one they are on. The best example is the person involved in litigation, and wanting to continue despite the costs rising, time lost preparing instead of being dedicating to other projects, and the decimating of what was once possibly a professional, multi-beneficial relationship with the other party.
Remember the kids show GI Joe, and the end of each episode they would give safety tips for children and end with "Knowing is half the battle." I will not go into the whole issue of how our culture always seems to reference war, fighting and battles; that's for a future blog post. The reference to the quote is great, now we know what entrapment is, now what? How do we help parties avoid it, and if they are unfortunately already imersed in it, move away from it?
Some quick tips are to assist the party to view the conflict not through the win-lose viewpoint or even the everyone loses stance. As I mentioned [here], zero-sum thinking is similar to the entrapment mindset in many ways. One, is emotions are heavily present and another is seeing things only on the level of positions. It is much easier to have that tunnel vision I mentioned when you think you have no other options.
This leads me to options. Expanding the choice of win-lose, lose-win, or lose-lose helps the party see there is a way out of what they see as the only choice. Brainstorming to create options involving both parties also helps breakdown the idea of battling against an adversary.
Before you even get to options, make sure everyone gets a chance to talk and tell their side of the story. Like I mentioned above, breaking down the idea of one option, talking together and listening together opens one's mind to other choices and the potential consequences.
Entrapment in Escalating Conflicts: A Social Psychological Analysis By Brockner & Rubin available [here] and I am sure many other places
Beyond Intractabilty reviewed the above book [here]
Today's edition is if you pressed for time to give out your most valuable tips on communication, what would it be?
Tip one: I would say listen to what others are saying, don't just 'hear them'. Listening to them gives you valuable information and when you want more, ask an open ended question. Listen more than you speak.
Tip two would be when you do speak, chose your words and how you say them very carefully.
Tip three would be do not let emotions get the best of you. Stay calm, be the peace you want to see in others! Letting emotions get the best of you prevents you from fully being present to listen effectively and even worse, you will most say things you did not want to say.
What would you say?
The Ombuds Office at the University of Hawaii (talk about a dream job!) gives out these three tips (from here):
What you say and how you say it
*Use neutral language. Describe what you saw or heard. What sights and sounds would a video cam have recorded? "Edit out" any judgment, criticism or interpretation of what was seen or heard. * Own the message. I feel, I wish, I hope, I would like to ask. Let the conversation be about your needs or values, not what is (perceived to be) wrong with the other person, or what that person did or did not do.
What you hear and how you hear it
*Try to empathize with what the other person is feeling. By offering empathy you are simply creating a connection with the person - not stating that you agree with what was done or said.
*Acknowledge and make sure you understand the information being given to you. It's often helpful to repeat what you heard to make sure you got it right.
What you do with the information
*Seek to understand the interests (needs, values, wants) of the other person. Ask for help in understanding why they are important to him or her.
*Search for common ground and a better future. Focus on what is desirable and possible now - you can't negotiate the past.
Check out their great site [here]
Culture, race, and ethnicity: Our varying cultural backgrounds influence us to hold certain beliefs about the social structure of our world, as well as the role of conflict in that experience. We may have learned to value substantive, procedural and psychological needs differently as a result, thus influencing our willingness to engage in various modes of negotiation and efforts to manage the conflict
Gender and sexuality: Men and women often perceive situations somewhat differently, based on both their experiences in the world (which relates to power and privilege, as do race and ethnicity) and socialization patterns that reinforce the importance of relationships vs. task, substance vs. process, immediacy vs. long-term outcomes. As a result, men and women will often approach conflictive situations with differing mindsets about the desired outcomes from the situation, as well as the set of possible solutions that may exist.
Knowledge (general and situational): Parties respond to given conflicts on the basis of the knowledge they may have about the issue at hand. This includes situation-specific knowledge (i.e., "Do I understand what is going on here?") and general knowledge (i.e., "Have I experienced this type of situation before?" or "Have I studied about similar situations before?"). Such information can influence the person's willingness to engage in efforts to manage the conflict, either reinforcing confidence to deal with the dilemma or undermining one's willingness to flexibly consider alternatives.
Impressions of the Messenger: If the person sharing the message - the messenger - is perceived to be a threat (powerful, scary, unknown, etc.), this can influence our responses to the overall situation being experienced. For example, if a big scary-looking guy is approaching me rapidly, yelling "Get out of the way!" I may respond differently than if a diminutive, calm person would express the same message to me. As well, if I knew either one of them previously, I might respond differently based upon that prior sense of their credibility: I am more inclined to listen with respect to someone I view as credible than if the message comes from someone who lacks credibility and integrity in my mind.
...It is appropriate that Japan, a non-nuclear nation and a major peaceful user of nuclear power, is serving as a mediator to eliminate distrust between nuclear-capable nations and non-nuclear states and restore trust in the NPT system.What do you think? Read the full article [here]
$68.2 Million Claim Heads to Mediation
The hope is that mediation will help build consensus and avoid further litigation that could be costly and take up more time, said Rachel C. Strickland, a New York attorney representing LandAmerica.
"I think this case is just screaming out for this kind of mediation," Huennekens said.
In mediation, a bankruptcy judge of Huennekens' choosing will first take on a claim that the Henrico-based LandAmerica filed against the exchange company.
The parent company gave a total of $65 million in loans to help the exchange company cover operating costs when investments in auction-rate securities became illiquid.
Full article [here]
Mediator Enters College & Union Talks
Contract negotiations between College of the Canyons and the union representing 450 part-time faculty members resume today, this time with the help of a mediator to work through issues involving pay and seniority rights."Hopefully the mediation works out where the district sees the fairness of both issues," said Beverly Cope, president of Part-Time Faculty United.
Full article [here]
Tamil Tigers Call For Mediation
Somewhat breaking news, the Tamil Tigers have recently admitted defeat to the Sri Lanka government and I came across this article (posted in complete due to the shortness of it):
OSLO: Sri Lanka’s Tamil Tiger rebels are willing to surrender their arms to a third party, after having conceded defeat in a 25-year civil war, former peace mediator Norway said on Sunday. “I have been in touch with the Tamil Tigers many times today,” Norway’s Development Aid Minister Erik Solheim said. “They have made it clear to us that they are ready to give up arms to the international community,” he said. reuters
The Use of Mediation in Construction Disputes
Geoff Sharp over at Mediator Blah Blah found this 40 page, 2009 report on the above title, have a look [here]
Chad Opts For UN Mediation With Sudan
Chadian President Idriss Deby has opted for the mediation of the UN, instead of the African Union (AU), to resolve the crisis between the country and Sudan.The President announced the decision while addressing thousands of his compatriots, who were protesting last week's rebel attack against Chad. Chad believes the rebels were sponsored by Sudan Both countries have traded accusations over alleged support for their insurgents.
Full story [here]
Sure, I could be talking about actual war between two armies but all too often these headlines refer to anything but actual armed conflict. It’s between politicians, feuding corporations, neighborhood organizations, civic groups and businesses. And it's not just the papers, but the people themselves use the same language.
Why is it so? Is it a part of our culture to refer many of our interactions as some sort of violent confrontation? Do we always need an enemy?
Keeping all of this in mind is important when preparing clients for mediation. It is also important if you are the mediator as you might have two parties entering the mediation thinking it is another ‘battle’ to be fought.
In preparation, it is key to let the parties know that this is not a battle, but in fact the only way for the mediation to be successful is if both are willing to work together. Butting heads, and win at all costs is for another time and place, not in the mediation room!
I must also realize just because I know this, the other parties might not be able to handle, or absorb all of this at once. Plus, certain situations like community mediation and court based mediation there is no time for you to prepare the parties. A mediator does not find out about the case until the moment the parties are walking towards you. You basically have your brief introduction to explain the joys of collaboration and that is if they are even listening to you.
This is why it is important to include certain statements in your opening remarks. Hopefully, your opening statement will help set the tone of the next couple of hours, so make sure it is fine tuned.
We have no control of the ominpresent references of war in the media, but what we do have control over doing is our best to prepare the parties to work together, and then making sure we promote that concept in the negotiation or mediation.
They are as follows (from this link here):
1. "Know Thyself" and Take Care of Self
- Understand your "perceptual filters," biases, triggers
- Create a personally affirming environment (eat, sleep, exercise)
2. Clarify Personal Needs Threatened by the Dispute
- Substantive, Procedural, and Psychological Needs
- Look at BATNA, WATNA, and MLATNA
- Identify "Desired Outcomes" from a Negotiated Process
3. Identify a Safe Place for Negotiation
- Appropriate Space for Discussion/ Private and Neutral
- Mutual Consent to Negotiate/ Appropriate Time
- Role of Support People (Facilitators, Mediators, Advocates), as needed
- Agreement to Ground rules
4. Take a Listening Stance into the Interaction
- "Seek first to understand, then to be understood" (Covey)
- Use Active Listening skills
5. Assert Your Needs Clearly and Specifically
- Use "I-messages" as tools for clarification
- Build from what you have heard - continue to listen well
6. Approach Problem-Solving with Flexibility
- Identify Issues Clearly and Concisely
- Generate Options (Brainstorm), While Deferring Judgment
- Be open to "tangents" and other problem definitions
- Clarify Criteria for Decision-Making
7. Manage Impasse with Calm, Patience, and Respect
- Clarify Feelings
- Focus on Underlying Needs, Interests, and Concerns
- Take a structured break, as needed
8. Build an Agreement that Works
- "Hallmarks" of a Good Agreement
- Implement and Evaluate - Live and Learn
Note: you can click each title, as it will give a more in depth description. For the main OHRD site, click [here].
The list of common ADR (Alternative Dispute Resolution) terms will definitely help the 'newbie' to the ADR field. However, all you old veterans of the game, giving it a glance over will do no harm either.
At the very least, it will help remind you to consider certain traits, topics, and procedures that hopefully prepare you for your next mediation or negotiation.
Below you will find a brief list of the terms. For a complete list, click [here] or the link at the bottom.
Emotional responses: Feelings curing a conflict, such as anger, fear, confusion, or elation; often contribute to behavioral and physical responses.
Empathy: The ability to put oneself in another person's position and understand that point of view.
Ground rules: the rules of conduct that govern the interactions of group members; expectations regarding interpersonal behavior.
"I"-message: A technique for expressing one's feelings assertively, without evaluating or blaming others; "I"-messages connect a feeling statement with the specific behaviors of another person and the consequences of those feelings and behaviors.
Impasse: A point at which conflicting parties feel "stuck" and no longer able to find effective solutions; often a normal phase of the conflict resolution process.
Procedural concerns: Issues that relate to the process by which a problem is addressed; one of three sets of concerns (along with substantive and psychological concerns) in conflict.
Psychological concerns: Issues that relate to the emotional well being of group members, such as safety, trust, integrity concerns; one of three sets of concerns (along with substantive and procedural concerns) in conflict.
Referent power: The power that one accrues from earning respect from others, generally associated with integrity and competence.
From the OHRD site [here]
SINCE the inception of the Mediation Service over 84 per cent disputes have been resolved through mediation.It was initially launched by the Ministry of Labour, Industrial Relations and Employment and based on the above figure Fiji’s settlement rate better than some foreign countries.“Compared to other countries like Singapore, their mediation centre settlement rate is 75 percent and other countries are about 80 percent,” Taito Waqa, the ministries Permanent Secretary said in a statement yesterday.
Full story [here]
Six years of dispute resolution for Victorian commission
The Victorian Small Business Commissioner’s office is celebrating six years of dispute resolution and has just handled its 5500th case. The office has established an alternative dispute resolution service which has involved not just local small business but national franchises.
Full story [here]
Mediation Pedagogy Coneference at Harvard Law School
If this is the first time you are hearing about this, it is safe to say you will not be attending the conference which is a shame. Don't worry though, I won't be there either but I do have some collegues attending which hopefully will be giving me a full report upon return.
What is the conference all about? from the site:
The conference will bring together academics and professional trainers of mediation to discuss teaching the skills and concepts of mediation to a variety of professional and disciplinary audiences. Our goal is to question pedagogical assumptions, share our experiences, and learn from each other. While the conference is open to the public, it will be geared primarily toward those who teach mediation.
The PON has assembled a fantastic list of presenters including Lela Love, Steven J. Brams, Ran Kuttner, Bruce Patton, and Leonard L. Riskin among many others.
Read more [here]
Labor Party Wants Court Mediation To Handle Native Title Claims
The federal coalition won't say if it will support changes to the native title system in the upper house, after Liberal senators raised concerns about giving the Federal Court more power.
A draft law passed the lower house on Thursday which would give the court a more central role in adjudicating native title claims, of which there is a backlog of about 500.
Labor wants the court to manage mediation with the aim of encouraging negotiated settlements rather than costly litigation.
Full Story [here]
Mediation Continues Over Weatherman's Sacking
Mediation between sacked climate scientist Jim Salinger and the state science company which employed him failed to reach an agreement today, his lawyer said.
Dr Salinger was sacked from the National Institute of Water and Atmospheric Research (Niwa) last month after more than 20 years service.
The high-profile scientist, whose work contributed to a Nobel prize, was reported to have been axed for ignoring a new Niwa policy against speaking publicly without prior approval...
...After the two sides met at a closed mediation session in Auckland today, Dr Salinger's lawyer Alex Hope said that no agreement had been reached but negotiations would continue.
Full story [here]
There are many different methods to identify the transformation that has taken place in order to properly explain how escalation has taken place. Rubin, Pruitt and Kim* list 5 types of transformation in social conflicts that can assist you in this process. The five are:
Light -> Heavy
The exchange starts off ‘light’ by trying to influence the other party with such tactics of verbal protest, making the other feel guilty and persuasion attempts. It becomes‘Heavy’ when physical threats and even actual physical violence become present. (A little obvious I might add)
Small -> Large
This refers to situations which started off with minimal resources being used to many being depleted. Resources can include personnel, money, and time.
Specific -> General
In this type of transformation, the situation is escalating from one or a few issues to what can be considered the relationship itself.
Doing well-> Winning -> Hurting Others
Initially, many times one party just wants things to work out in their favor. When a situation escalates, it changes from just doing well to now a competitive nature and wanting to not only win, but also to see the other side lose. The last stage of this transformation manifests when the party is possibly feeling hurt or incurring costs and wants to see the other party’s hurt and costs exceed theirs. Winning is no longer enough, and as the passage on page 21 says, it is “competition in the extreme”.
Few -> Many
What began as just one versus one or a few against a few snowballs into many on each side. When a party feels the situation is turning against them, many people tend to search for others on the outside to join with them.
As a mediator, diagnosing the cause of the escalation is important as it will help you understand the ‘big picture’ of the situation that brought the parties to you. You can also say this allows you to see the interests behind the positions. Rubin, Pruitt and Kim add a list of conditions that encourages conflict.
The list includes:
* Periods of rapidly expanding achievement
* Ambiguity about relative power
* Invidious comparison
* Status inconsistency
* Weakening normative consensus
* Zero-sum thinking
* Communication among group members
* The availability of leadership
Learn more about them from the book [here]
As conflict resolvers, knowing this list helps as after identifying the condition(s), we can help the parties see what has not worked in the past (the conditions listed) and brainstorm ideas on how to possibly do things differently in the future. Note, as a mediator, you do not have to 'call out' the condition to the parties. Simply knowing them can help you then help the parties.
An example is Zero-sum Thinking. This win-lose thinking of the me-versus-you mentality results in at least one party not being happy and relationships being strained, potentially beyond the point of repair. Assisting parties to consider options not including this zero-sum mentality (expanding the pie) not only promotes an atmosphere of collaboration and empathy, but also the possibility of a win-win resolution.
If you are interested in learning more about this, I suggest you click the link listed above or see below for the full information.
* J. Rubin, D. Pruitt, and S.H. Kim, Social Conflict (New York: McGraw-Hill, 1994)
From the site:
What is YADR?
CPR is pleased to announce the launch of its "YADR" Group - Young Attorneys in Alternative Dispute Resolution. The purpose of the group is to expose young attorneys to in-house counsel in the international ADR practice area.
Through periodic seminars and networking events, participants will gain an insider's look at the role of ADR systems and practices in corporations and multi-national organizations. They will have an opportunity to meet and collaborate with in-house counsel and experts in the ADR field to analyze and hone techniques, processes, and systems to improve commercial conflict resolution efforts around the globe. >> Read Press Release
Kudos to CPR for creating this. Hopefully they will get a strong showing for their first event set for June 2nd in New York City.
The information is as follows:
Click [here] for the PDF invitation file
Inaugural Networking Event
Tips from the Trenches in a Tough Economy:
Insights from In-House Counsel About Today's Priorities and What It Means for Young Attorneys Going Forward
Michelle H. Browdy, Vice President and Assistant General Counsel, IBM Corporation
Melanie Lewis, Director, Solutions, Coca-Cola Enterprises Inc.
Duncan MacKay, Deputy General Counsel, Northeast Utilities
Beth Trent, Legal Director, Schering-Plough Corporation (Invited)
Dana MacGrath, Senior Counsel, Allen & Overy and Chair of YADR Group
Tuesday, June 2, 2009
6:00 pm - 7:30 pm
Panel Discussion with Networking Cocktail Reception to follow
Allen & Overy LLP
1221 Avenue of the Americas
New York, NY
Cost: FREE of charge
Please RSVP by May 20 to Julie DeSarbo at firstname.lastname@example.org or at 646.753.8231
An independent committee recommended today that Harvard University create a public-safety ombudsman and take other steps to mend the at-times rocky relationship between the campus police force and the diverse community it patrols.
The committee, appointed by Harvard President Drew Faust in August after some black students and staff complained of racial profiling by the predominantly white police force, said in an 81-page report that more work needs to be done to create a welcoming, safe, and open environment for the Harvard community.
Full article [here]
NSW, Australia- The New South Wales Government wants to make it easier to resolve civil neighbourhood disputes over issues like fences and noise.
Attorney-General John Hatzistergos says only a small number of civil disputes are decided by a judge, but people still spend a lot of time and money preparing for court.
He has released a discussion paper on the issue which suggests alternatives to resolving civil disputes, including free legal advice and mediation.
Submissions on the discussion paper close at the end of the month.
Note, this is the entire article, the link is [here]
Program Readies Inmates 'Reunions'
HAGERSTOWN, Md. A unique program geared to preparing prison inmates to reunite with their families and loved ones upon release has spread to Washington County.
Following models already in place at prisons in Baltimore and Jessup, Md., the Washington County Community Mediation Center started arranging "re-entry mediation" sessions for inmates at Maryland Correctional Training Center, a medium-security men's prison south of Hagerstown, said Valerie Main, executive director of the Washington County center.
Full Article [here]
Voters Turn Down Mediator
ESSEX — Before humans first stepped onto windswept Conomo Point, it served as a natural divider between Essex Bay and Essex River; since the town of Essex took control of the land, it has had a similar effect on its residents.
Voters at Monday night's annual Town Meeting were divided in ways other than numbers — 73 opposed, and 59 in favor — when asked if selectmen, along with the tenants of Conomo Point, should retain the services of a mediator to discuss the future of town-owned land north of Robbins Island Road.
Full article [here]
Mediators In Israeli-Palestinian Peace Process
In a message sent to an international meeting in support of Israeli-Palestinian peace held in Nicosia, the U.N. chief emphasized that the Quartet, which includes the United States, the European Union, Russia, and the U.N., remains, are firmly committed to the goal of a two-state solution.
...Tony Blair, the Quartet's current special envoy, has said that the mediators will adopt a new strategic plan, while the U.S. President Barack Obama pushing for the establishment of a Palestinian state, has he met his Israeli counterpart Simon Peres in Washington.
Full article [here]
So, I was at an all day training the other day and got to put on my other-uniform-that-hopefully-I-will-never-ever-have-to-put-on-for-real.
The Following are the basics with the training:
- * The outfit is incredibly uncomfortable
* It's definitely not one size fits all
* I sweat ALOT in it
* If the situation calls for the outfit to be put on, it's safe to say that ADR skills are not the highest priority.
I have been a practitioner of mindfulness for over a dozen years and have been fortunate to engage with great individuals such as the Dalai Lama, Thich Nhat (coined the term Engaged Buddhism) and John Kabat-Zinn.
Nancy and Debra recently blogged about mindfulness and its seven components:
read it all [here]
Tammy refers to Zen Mind, Beginner's Mind (we all have read this, right?) and ends with the following question:
If you were to take off your expert’s hat (I know, there’s self-comfort in your expertise), what would you do to adopt a Beginner’s Mind? In what ways could you unbundle your skills to serve clients in new ways?
Read more [here]
Stefanie has blogged heaps on the topic of mindfulness and you can check [here] if you do not believe me.
Finally, there's not much left to the imagination wondering if the following blog has anything to do with mindfulness and mediation- Conflict Zen.
So what does mindfulness even mean? I define it as simply being alive in the present moment- Not overly worry about the future as well as not letting your thoughts be consumed with past actions.
As a mediator, in order to be successful, I think it is imperative for one to be mindful. No, I am not saying you have to be Buddhist as mindfulness is not limited to Buddhism. It is something (like other terms such as love and compassion) which I believe transcends religion.
How do I promote mindfulness in the mediation with the parties? I ask them to try and not interrupt the other party (I mention that I promise everyone gets an opportunity to speak). Not only do I say that, but I then ask them to listen to what they other person has to to say, not to just sit there waiting for your chance to talk.
Where else does mindfulness come into play during mediation? How about breathing and relaxing? You can say you are 'alive in the present moment' but instead you are tense because you just received a double parking summons or worrying about getting home in time to make dinner which might not allow you to be at your mediating best.
As always, I do not want to go too in depth. If I have sparked some interest, let me know and at the same time, check out some of the above links for more information at the other blogs.
Shari Barnes, conflict resolution facilitator, said the number of complaints received rises every year but this year's 25 percent jump is the largest increase ever. It has been available to university staff members since October 2000 and to faculty members since May 2005, she said.