Online Dispute Resolution


Recently I had a conversation with someone in regards to Online Dispute Resolution (ODR) and how the person thought it had less human interaction compared to traditional ADR methods. I responded saying I actually think instead of viewing as ‘less’ or ‘more’, it is another choice for the parties. ODR is a new form of human interaction.


It reminds me of a teaching of impermanence- nothing stays the same regardless of how much you like or dislike it. ODR has arrived because people find it useful with the growing use of the Internet and computers. It does not mean it is for everyone and it does not have to be. It is just like hybrids versions of ADR- new ones keep popping up as people's preferences change and evolve.

The variety of ADR services, now including ODR/iDR I think is reflective of the world we currently live in. Yes, we are ‘global citizens’ more now than ever but there is still that uniqueness that is present and should be acknowledged. Mediation via email or txt is str8 2 da pt 4 sum ppl & that is a good thing.

No idea what that means? No idea what the LOL image means? Embrace technology- Learn text talk here.

For others, letting some machine automate some number that is supposed to make both sides happy works for them. For the stubborn and ancient dinosaurs, there is face to face mediation still. Of course the last comment is sarcastic but my point is look how ADR has evolved. It is an example of the impermanence I mentioned earlier. As times change, it is only natural that the way we as conflict resolvers look at conflict and then appropriately adjust to the parties needs. Let’s not forget, it is their process.

Self determination (recently discussed here) is a major reason people turn to ADR. People like having a say in how issues that directly affect them will be decided. Conflict could be broken down into three levels- substantive, psychological and procedural. It is in the third, procedural, where the new world of ODR has given the parties yet another choice on how to interact with the other party.
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Court Related Mediation Study

Maria Volpe, overseer of the NYC-DR listserv, posted this great information recently that I thought many of the readers would find interesting:

To all: since research on court-related mediation programs may be of interest to some on this listserv, I am sending the following bibliography of evaluations conducted from the mid-1980s through 2006.

Best, Maria

http://courtadr.org/files/MedStudyBiblio2ndEd2.pdf From the Intro:

This bibliography brings together evaluations of court-related mediation programs that were conducted from the mid-1980s through 2006, with the addition of some earlier, seminal studies. The studies evaluate programs that cover a range of case types, including civil, family, small claims, victim-offender, workers’ compensation, bankruptcy, and appellate cases. The evaluations vary considerably in methodology: some look only at mediated cases; some compare mediated cases to cases that were not mediated; and some examine the impact of mediation on all cases, whether mediated or not.

You can join the NYC-DR Listserv [here]
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Friday News Round Up



A Network Theory of Conflict Resolution

Definitely worth a read:
Creating an "energy landscape" from networks of friends and enemies could lead to a better way of resolving disputes.

"Suppose you have two friends who detest each other. The resulting awkwardness often resolves itself in one of two ways: either you drop one of your friends, or they find a way to reconcile," say Steve Strogatz and buddies from Cornell University. They go on to add that the overall social stress in these situations corresponds to a kind of energy that relaxes over time as relationships switch from hostility to friendship (or vice versa).
Read more [here], I know you want to, especially after glancing at that exciting graphic.


Bring Mediation In House Is Cost Effective
This story has been making the rounds on a few discussion groups:
...Resolving disputes through alternative dispute resolution, as opposed to litigation, is one way that a corporation can save money. ADR can also save the corporation time because it is often less disruptive to business operations than litigation. And, when it is used to resolve disputes with customers, it can have a positive impact on customer relations. Mediation, in particular, can be an effective way to resolve customer disputes in a way that is better for everyone involved.

...The University of Pittsburgh Medical Center began utilizing mediation about five years ago as a way to resolve certain legal disputes and grievances that patients or families (the center's "customers") have with the system.
Full article [here]

Maine Adds Foreclosure Mediation
...The basic result of this law is that every person being foreclosed upon now has the right to mediation, if they so choose ("opt-in") by filling out and returning a simple form. The model program on which this law is based originated in Connecticut.
Read more [here]

Preaching To The Choir
Yes, as the headline says and I know you heard and read it plenty of times, but read it again- the benefits of court connected mediation. This one is from Reno: Click here for the article.
In all cases, the mediators use a "facilitative model," the executive director said. After assembling in a conference room, the mediators work with the parties to identify the problems and possible solutions. Unlike in court, non-monetary solutions, such as repairing or returning property, are possible. If a decision is reached, it comes from the parties.
...The center's success rate--more than 90 percent, according to its Web site--is higher than the national average, he said.


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Selective Perception


Selective Perception

One of the many ‘evil’ traits that frequently are displayed by parties in mediation is selective perception. People form their own idea of an event or situation and then anything that is said or information that arises after the fact which contradicts their opinion is dismissed or ignored.

I say it is ‘evil’ as selective perception hinders the process of getting the parties to work in a collaborative and cooperative mindset. Selective perception does not allow the party to see and understand the interests of the other party.

As the mediator it is important to realize this is being displayed. I think it is important for a mediator to know the names of behaviors and actions such as selective perception and other attribution biases listed [here]. Sure, a good mediator can help move the party away from a hindering position while not knowing the name of the act but it makes things easier knowing it because then it will be easier to respond accordingly. Step one is naming it, while step two would be properly responding.

Getting the party to open up more about their thought process behind their position can not only help display a potential selective perception to you, but it then can also be picked up by him or her- the one displaying it.

If the person does not pick up on it, and then after the other party presents their side of the event, many times, what I do is ask the first party something is along the lines of, “It sounds like party B viewed the event/situation different to way you described it. Now that you have heard his/her version, what do you think?” It might seem unnatural to ask an open-ended question but by doing it this way it diminishes the chance for a one word answer. The more they talk, the more they think about what they are saying and going to say.

A note I would like to mention is I do this with both parties. If I were to do this type of questioning with just one party it could present the illusion I am picking sides and trying to get one side to change their mind. Checking in with party A after party B has spoken (and vice versa) is a way to ensure they are effectively listening as well as opening their mind to the other side’s viewpoint. Promoting empathy is crucial to assist the party(s) move away from their selective perception. I tend to stress that understanding the other side’s point of view is not agreeing with them.
In order for an agreement to be reached in mediation, I tell them both sides have to agree. As simple and possibly silly it might sound, I think reminding the parties if an agreement is possible of being achieved, each one needs to be able to understand the other.
Enjoy and I hope this little ‘golden nugget’ helps.
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Self Determination


We all know a common benefit of mediation is self-determination. That is one of the main differences I think mediation has compared to other methods of trying to resolve your issue especially compared to litigation.

What happens when you do not get to choose the mediator? Sometimes it is a problem, but other times, no one cares.

An example of it not being an issue is in most civil court related mediation programs, the mediators follow a rotation and it is not an issue. You get whoever is up next and everyone is fine with it.

Now switch over the New York State Senate, which has been inactive for two weeks due to a 'coup' by the Republican Party leaving the Senate 31 republicans and 31 democrats. What does 'even' mean here? It means nothing is getting done. They can not agree on anything and there is no legislation even discussed.

Governor Paterson has tried to intervene by appointing two mediators, one democrat and one republican. Sounds good, right? Sounds fair, one guy from each party?

Guess again, spokesman for State Senator and sort-of Majority Leader Dean Skelos (R) said this, "This is total bulls - - -, and we're not buying it. "

Paterson, who is a democrat did not get any better comments from members of his own party. Two noteworthy comments are:

"How does someone who is not a party to a dispute think he can pick mediators and impose them without even checking with the disputants?" asked a top Democrat who has been trying to settle the struggle.

"It looks like a governor trying to be relevant and it's not going to move the process along."

Again, these are people from his own party!

What could one of the reasons you might be asking for such an uproar?

This might be it:

"How does someone who is not a party to a dispute think he can pick mediators and impose them without even checking with the disputants?" asked a top Democrat who has been trying to settle the struggle."

So yes, self determination can start with the selection of the mediator(s) and not allowing the parties can have an adverse affect, regardless of the intentions. Just ask Governor Paterson.


Quotes are from the NY Post article [here].
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Keeping The Parties Informed

The mediation process is sometimes followed in the steps you had all planned out and sometimes it goes in a completely different direction. Regardless, planning ahead and making sure you have each step in your mind can be extremely beneficial.

A quick recap of the steps of mediation are (based on my training with Safe Horizon Mediation):

1. Introduction
2. Opening Statements
3. Gathering More Information
4. Developing an Agenda
5. Discussion On Interests
6. Generating Options
7. Evaluating Options
8. Writing The Agreement

The purpose of making sure you have a road map is not just to help keep you on track but also the parties. The mediation is an attempt to find a mutually beneficial solution to the dispute/conflict the two parties are having that is better than their alternative. As the mediator, not having the mindset of the proper order mentioned above could be a disaster. Not only not having them in order could be detrimental, but also forgetting certain stages can also have an adverse effect.

It is also important to let the parties know of the plan of the next few hours. No one likes not knowing the process they are involved in or the method of how things will proceed. The Office of the Ombuds at the University of Hawaii compares a poorly organized meeting to the following (note: I changed ‘meeting’ to ‘mediation’ below):

How is mediation like taking a flight on an airplane? They both need to be carefully designed to get you where you want to go…

Would you board a plane under the following conditions?
· The destination is described as “somewhere in the general vicinity of Boston.”
· The passengers are not sure why they are on this plane.
· The aircraft does not have effective radar for direction finding.
· The aircraft does not have mechanisms for dealing with unexpected turbulence.
· The flight crewmembers are not clear about their respective roles and responsibilities.
· There may not be enough fuel to land the plane. If you’re not sure you would get on a plane under these conditions, good! You may also want to create a higher standard for the mediation you are involved in


After I first read that, I found it funny because obviously one would never board a plane under any of those conditions. It could be easily overlooked giving the parties an explanation of how the mediation will proceed so hopefully this little reminder
will do just that- remind you to keep the parties informed.

The Ombuds Office uses the acronym OARR- Outcomes, Agenda, Roles and Responsibilities, and Rules as a way to properly prepare yourself and others (read more on OARR
here).

Incorporating OARR in your opening statement could help accomplish the task of ensuring the parities know how things will go. The best way I do this is via the opening statement and can easily be done in a few sentences taking only a minute. It is easy to do, but also easy to forget.

Enjoy!

read more "Keeping The Parties Informed"

News

NYC & Foreclosure Mediation on the Horizon?
NYC Mayor Michael Bloomberg recently endorsed a proposal to create mandatory mediation in foreclosures in New York City. The program he said would be based on the successful model currently in use in Philadelphia. That is the good news.
The bad news is it will require passage at the state level which currently has the NYS Senate embroiled in more-infighting-than-usual with the Senate not having an official session in days.
Read the full story [here]
here's another story going further into the Philadelphia story and how other cities are trying to replicate them "US mayors urge states to require mortgage mediation" [here]

Oslo Mediator's Conference Opens
The Oslo Forum 09 opens on Tuesday. The Forum seeks to provide diverse, frank and discreet discussions between top mediators and other key actors from around the world on major issues affecting peace and conflict today.
Full story [here]

Marquette law school to run foreclosure mediation program
The Marquette University Law School will provide mediation between lenders and residential borrowers facing foreclosure under a program funded with proceeds from a successful lawsuit against mortgage lender Countrywide Financial Corp.
Full story [here]

Mediation offers business opportunity for attorneys
The first class included 19 members, but its ranks have grown to over 500.
Florida Supreme Court Chief Justice Joseph Boyd and Florida State College of Law Dean Talbot D’Alemberte helped establish the Florida Dispute Resolution Center (DRC) in 1986 and it provided a statewide center for education, training and research in alternative dispute resolution. One of the functions of the DRC is the certification of mediators and mediation training programs. The first applicants certified to practice in the Fourth Judicial Circuit earned certification in 1991 and that group has grown from about 20 to over 500 people practicing in four different fields: county, circuit, family and dependency.

Full story [here]

'On The Move'
Respected Construction Attorneys James F. Nagle and Douglas S. OlesJoin JAMS Global Engineering and Construction Group
June 15, 2009 – SEATTLE - Respected construction attorneys James F. Nagle and Douglas S. Oles announced today that they have joined the Global Engineering and Construction Group of JAMS, The Resolution Experts, the nation’s largest private provider of mediation and arbitration services. They will be based in JAMS Seattle Resolution Center. Both Mr. Nagle and Mr. Oles have extensive experience resolving large-scale construction disputes.
Full press release [here]

United States Institute of Peace New Website Design
THE USIP has recently redesigned its website, have a look [here]. In case you forgot or for some odd reason you never read it when it was originally posted, they offer free online training certificate programs. Read more about it [here] and all about their multi-media resource section for peacemakers [here].

Have an interesting mediation or ADR related story? Send it to me at mediator.jeff@gmail.com
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DRC-NY Listserv Proposal


NYC-DR Listserv Proposal

The original blog posting on this issue is [here] with many comments posted within the posting

[Here] is an update on this "Web 2.Oh!?! issue

As my follow up to the recent NYC-DR listserv cavalcade of comments, I thought I would post a separate posting on Maria Volpe’s (the listserv administrator) comments as well as mine. As mentioned [here], there are two issues. The first is the people’s opinions to the original post. I will not go into this issue but rather issue two is what seems to be rocking the foundation of the listserv that has been around since 2001. Some people like the numerous replies to a topic while others feel the listserv is not the place to be inundated with dozens of emails. They signed up to get information, not people’s opinions.

Maria’s method to handle this is as follows:
Proposed strategy: Between now and the next monthly NYC-DR Roundtable Breakfast on July 2nd,
[1] Solicitation of feedback: please send me your thoughts about facilitating information exchange and discussion among those interested in dispute and conflict resolution, peacemaking, facilitation, dialogue, restorative justice, violence prevention, social justice and related fields in the New York City metropolitan area. Send your emails to me at mariavolpe@gmail.com not the listserv
[2] Feedback analysis: all responses that are sent by July 1st will be collected and analyzed;
[3] Informal discussion: after the NYC-DR Roundtable Breakfast on July 2nd at 10am, everyone who is interested in participating in an informal brainstorming discussion about options is invited to join in [by the way, the July speaker will be Camilo Azcarate, Manager of Mediation Services at the World Bank];
[4] Listserv Update: relevant information will be posted on the listserv shortly after the July 2nd meeting.
In sum, between now and July 2nd, please send me your thoughts about managing the communication process. Your feedback will be shared with the group on July 2nd. The easiest way to respond to me is to press reply or write to mariavolpe@gmail.com

My humble opinion is there is a benefit in moving the listserv to another platform. Moving the listserv to a web based platform like how a blog (but not an actual blog!) is set up I think might get everyone to a win-win resolution. Using the platform similar to a blog, everyone can sign up and receive comments the same exact way they currently do. Here is the big change. The new platform will allow people to post their comments directly to the topic. Anyone else can then post their comments to the original topic OR the already listed comments.

Still with me? (Drum roll please) and here comes my version of the win-win resolution.

Part I- you can sign up to the new format of the listserv and get only emails of new topics. This is the same as you were doing it always nothing changes.

Part II- You can visit the new format by going to a website address. You no longer have to be a subscriber.

Part III- Options of subscribing. You can subscribe to the new version of the listserv the following ways:
1) Just receive topic posts
2) Sign up to individual topics to receive notification each time someone comments.
To go further in point 2- it allows many more options. How? Here are some examples:
Logan visits the web address occasionally to see what has been posted. He gets to see news and trainings and also he gets to read some comments. He receives no emails.

Kara subscribed to the new format to be notified of every new topic posted. She likes getting up to date information on what’s going on and subscribing to the news, training and articles posted by a reliable source is important to her.

Ignatius is not signed up like Logan and during a random visit, has a really strong opinion on a topic posted. He posts his comment and moves on.
Danielle is signed up like Kara and also like Ignatius, has a really strong opinion on a topic posted. She posts her comment and moves on.

Franco is signed up to receive emails of each topic posting. One topic in particular he found interesting and posted a comment. He signed up to be notified of future comments and now is engaged in a beneficial conversation with his peers.

Veronica is not a listserv subscriber but loves the back and forth comments on a certain topic so she subscribes to that particular topic AND comments. Anytime anyone responds to the topic she will now receive an email.

Tenzin is not on the listserv found a topic of interest, found the comments interesting and now has moved on.

I have attempted to post each possible point of view, and how the new system can meet each of those view points. I believe that each reader fits into the role of Logan, Kara, Ignatius, Danielle, Franco, Veronica or Tenzin. The new proposed format even allows you to change in between those options. Real life or the old Web 1.0 does not allow that!

If this did not make sense, check this link for a chart version of the proposal.
Everything changes. Nothing stays the same. Let’s look at this issue together and try to move forward together. The listserv in its current format I think might be part of the old way of doing things. There are many interests in such a large group. The current format is not accommodating everyone and with new technology presenting itself since the listserv’s founding almost eight years ago, why not embrace this new technology to advance our great group?
If any of this is confusing, I will happily answer any questions. Of course another option, which I think is reasonable as well, is to just leave it as is!
read more "DRC-NY Listserv Proposal"

Web 2.Oh!



Web 2.Oh!


Wow, what a couple of weeks it has been in the ADR World-Wide-Web! Over at the NYC-DR listserv someone two weeks ago posted a request for facilitators between a certain age range. This created a firestorm of response. Some were very well written and opinions from both sides were in depth. Trying to keep my opinion aside (for as long as I can), there was a noticeable amount of people on the listserv that objected to all the opinions being raised. To keep things in perspective, there are approximately 1,500 people on the list.

The web, in this case a listserv, is a valuable resource that allows many different people, from many different places to express many different opinions. When is ‘many’ too many though?

If you want to read the original message and some of the featured responses, read my posting [
here].

So how do you properly run a listserv that meets the needs of everyone? I’ll answer that very quickly by saying it is impossible to make everyone happy all the time. The listserv statement does clearly say the following:

Before going into the changes suggested by members, I wanted to look deeper into the issue. There are actually two issues the way I see it. First, the issue is the original post and if people thought it was fair to put such a limit on a request (it was age restrictions in case you old people forgot!). The second issue is I think is the massive amount of replies it received resulting in issue two- should such discussions remain on a listserv?

Perhaps the ‘Word of the Day’ is autonomy. “The Greater the autonomy we exercise, the greater the risk that our actions will be perceived by another person as impinging on their autonomy."

[1] Roger Fisher’s passage here is spot on. One side was suggesting it continue as they enjoyed the conversation. The other side, not enjoying it (to put it mildly in some cases), wanted it moved away.

Those who liked it suggested people for those who did not to simply delete the messages or subscribe to a weekly digest.

In a ‘Web 2.Oh?’ moment, I found it shocking that in this day and age one’s email inbox could reach capacity from the back and forth responses. A certain subscriber gave the real example stating AAA tried contacting her for a case but could not as her AOL inbox was full. Just an aside, I do not suggest using AOL for work email, make the change to a service like Gmail where the storage capacity is much larger.

I wonder if any of these suggestions are done with empathy? Were people looking to continue their interests while meeting the others as well? This seems like an obvious example of a dispute with a partial basis on varying interests. Initially, I think a false consensus bias might have played a part as well.

The above comments I think applies to the other side as well. Suggesting it be moved over to a blog to continue the in depth discussion rightly solves their own inbox flooding problem. However, is there the chance the other can view this as fixing a problem that does not exist? I met the wishes of this request by posting the original posting and some responses (see it here) and as I said privately to one member via email something along the lines of, “I honestly do not think anyone will post their comments here [at the blog] as the suggestion was made not by the people commenting but rather those who do not want to read the comments. They did not ask for this and because of potentially being viewed as them being pushed here (without choice) I think they will shun it.”

That is exactly what will happen. I did receive many emails privately thanking me for posting it and there was a peak in visits to the blog (not hard to do when it is just dad and mom reading this usually) but zero public comments or discussion. Perhaps chalk a line on the ‘no one likes being told what to do’ column.

So what is the next step? Maria has made some suggestions. I suggest before reading them, ask yourself the questions I ask below and compare it to what she suggests.

Of course I cannot end this without mentioning my opinion. I am not really choosing sides but what I do want to add is this discussion I believe allows us to interact on a peer level that usually is only found, if you are lucky enough, after spending a couple of hundred bucks to attend a training or conference. This engagement is accessible to all. There is no fee charged by Maria to be a member.

There are many topics I would think would be ripe for such powerful, thought provoking responses. Caucusing, certification and hybrid models are three off the top of my head that I think are interests that would appeal to the majority of members. Is the preliminary question where should it be held though?

We are all knee deep in what we are supposed to do as professionals- stopping the cycle of verbal pushing, name calling (arguably happened) and self serving suggestions to search for a solution where everyone’s interests are met. I am the first to admit it is much easier to be a neutral than a party involved in these types of situations as there is for the most part a void of emotions compared to being involved.

Additionally I am not poking at autonomy- theirs or mine. I hope that for all those involved (bystanders too) this will allow you to reflect on what would you
do if this issue was brought to you as a third party neutral? How will you handle all the emotions? What could you do to get each side to empathize? What is each side’s BATNA? Are the relationships, on the many different levels, important?


[1] Fisher, Shapiro (Penguin, 2005 Beyond Reason) page 74
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News

More on the DRC-NY Listserv
For those of you wondering what's the latest with the current situation regarding the DRC-NY Listserv, this Monday I will be posting my proposal on how to possible find the 'win-win' situation as well as on Tuesday will be another recap of the situation. You can read the original post [here].

New Era For Mediation
THE chairman of Sale Sharks[professional UK Rugby team] has been recruited to a high-profile national panel of senior lawyers and accountants to provide a new level of corporate mediation.Quentin Smith, who has been an independent mediator since leaving law firm Addleshaw Goddard two years ago, is the only northern representative on the panel, which is headed by Lord Woolf and Cherie Booth QC.
The new body is a collaboration between the Institute of Chartered Accountants in England and Wales (ICAEW) and the mediators' professional body the Alternative Dispute Resolution Group (ADR). It will focus on issues such as contracts, intellectual property rights and lending agreements.
Full article [here]

Role For An Ombudsman?
This is not an article but rather a reflection by me. Given the recent more-than-usual craziness in the New York State Senate, would it have help, or even currently help, if there was an Ombudsman for the Senate? Could he/she been able to release a report on findings regarding the situation? Even if one was released weeks from now, would it be beneficial? The Ombuds could also serve as a confidential mediator in this situation as well. Thoughts?

Have Mediation Skills, Will Travel
10 June 2009 – The United Nations special on-call mediation team has helped respond to sticky problems all over the globe in their first year – and should do more, according to a top official at the world body.
Full article [here]

'Special Master' Feinberg to Take on Bankers
June 11 (Bloomberg) -- Kenneth R. Feinberg, who mediated disputes over compensation for damages from the Sept. 11 attacks and Agent Orange, must now separate bankers from their paychecks.
Feinberg, named yesterday as the Obama administration’s “special master” on executive pay, will have authority to regulate compensation for 175 executives at seven companies that received “exceptional” government help.

“I’m not a czar who is going to impose my will,” Feinberg, an opera fan, said while listening to Verdi’s “Nabucco” in his law office. “My mandate is to help determine compensation levels for the 175 people. I will consult with them and work with them.”
Read more [here]

Freedom of Information Office Appoints First Ombudsman
WASHINGTON (AP) — The National Archives appointed a veteran open government advocate Wednesday to be the first Freedom of Information Act ombudsman, empowered to mediate disputes between people who request data and the agencies that have it.
Miriam Nisbet, who now heads the information society division of the United Nations Educational Scientific and Cultural Organization in Paris, was chosen to direct the Archives' new Office of Government Information Services, acting Archivist Adrienne Thomas announced.

More [here]


Irish Minister To Launch Elder Mediation Program
A NEW mediation service dealing with problems of families and carers with family members suffering from dementia and similar diseases will be launched this week by Áine Brady, Minister of State for Older People.
The service is a pilot project involving collaboration between the Alzheimer Society of Ireland and Northside Community Law Foundation. Its launch coincides with an international symposium on elderly mediation which starts today in the Stillorgan Park Hotel, Dublin.

Full article [here]

Mediation Helps, Even in Jail!
Sally Garnett is hardly a cheerleader for the Santa Clara County District Attorney's Office. After all, prosecutors threw the book at her recently for "lifting" her housemate's jewelry, she says, landing her in jail for three months.
...After prepaying $63.60 for phone service from inside the jail, Garnett says the company she contracted with didn't deliver a single call. Prepaying relieves family and friends of the cost of a collect call from jail — the only kind inmates are allowed to make.
Instead of busting her, this time the district attorney's office was ready to lend her a hand with its busy but little-known Consumer Protection Unit. Its members not only fight big fraud cases in court, but also attempt to resolve consumer disputes — like Garnett's — through free mediation.
No case is too small for the six volunteers and three paid mediators...

Full article [here]
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Mediate.com Certification Follow Up


Jim Melamed Responds to My Post


In a follow up to my post [here], Jim Melamed, CEO of Mediate.com replied to the questions and concerns I raised. Below, and with his permission, I am posting his unedited reply.


Enjoy!
Jeff,

A few responses:

First, what Mediate.com is doing with our new certification program is not an end-all, be-all answer, but a meaningful beginning, particularly for the private sector. Sometimes it is worth doing "something" in the right direction, even if imperfect, particularly when the leading option is doing nothing and our industry languishing or not being at its best.

Our ultimate goal is to create a context where the best of mediation is emphasized and preserved (voluntary, impartial, self-determination, transparency, disclosure, maximization), rather than mediation coming to be defined as simply another hoop, another cog, in the legal system. As there is no National Mediation Association nor an International Mediation Association to look out for the best interests of mediation, Mediate.com has found itself compelled to act. By our actions, I would expect we will break a bit of a log jam and all kinds of new, progressive geographic and practice area standards will emerge. This is all very good.
The world of mediation is so big, literally global, and also both within and beyond our traditional legals contexts of courts and administrative agencies. Because mediation is "everywhere," it is nearly impossible to try to manage the movement from a "regulatory" quality control perspective. This is one of the reasons for so much inertia for so long.

Our most powerful driving force is to grow mediation in the private sector as a wise consumer choice. Our biggest fear is that the historic gatekeepers for resolving conflict, the courts and due process agencies, will come to swallow mediation the mediation industry. Yes, we need mediation programs in courts and administrative agencies, but we surely should not force people to file lawsuits and administrative complaints just to access mediation services. It makes no sense to force people to legalize and polarize so as to gain access to publicly sanctioned and subsidized mediation services. People should additionally be encouraged to seek mediation early, on their own, without the need to resort to a lawsuit. For this, we need a vibrant private sector of mediation services.

And, in fact, there is a huge amount of mediation (most mediation I suggest) that is taking place outside of the courts. Here the goal is commonly to avoid any kind of formal legal filing. So, it is absolutely critical that we do not look exclusively to the courts to define mediation nor mediation qualification standards. We need to encourage early mediation and we need to set in place industry infrastructure to encourage those who want to be mediators (beyond the courts as well as within).

Note such recent and large scale initiatives as foreclosure mediation, mass disaster mediation, marital mediation . . . we need to continue to provide a context and encouragement for all of this wonderful growth. This is Mediate.com's goal: to grow the global mediation industry based on the intrinsic value that we "bring to the table." We should not be exclusvely beholden to courts and agencies to sing the praises of mediation.

And so, it is in this context that I see to directly answer your questions:

Yes, the Mediate.com standards set a relatively high bar. In providing a certification to those with 100 hours of mediation training, 500 hours of mediation experience (and who provide comprehensive required transparency and disclosure), we have moved the bar higher as we think the credibility of our industry requires this. This is particularly the case as many community and court programs may only require 30 or 40 hours of training and perhaps 10 cases or the like. So, yes, we are raising the bar. We think that our industry will only be fully respected when we respect ourselves and setting higher standards is a part of this.

Note that we are operating in the private sector, so our assumption is that anyone can mediate and that "the right mediator is the one the parties want." So, for example, we will continue to display all those who want to be in our directory and we continue to allow mediators to self evaluate as per our Qualifications Disclosure Program (see www.mediate.com/articles/review.cfm). All of this is in the exact same directory as will display our certified mediators.

With our new certification program, for those who meet the standards, we are, in fact, providing (literally) a "gold star," because it is our opinion that this dedication and experience deserve to be rewarded. We are assuming that there will be additional court, administrative, geographic (state) and practice area certification opportunities made available, and we applaud this. We see this as signs of a mediation industry that is maturing.

Now, as to cost, it is important that we develop a sustainable program. For certification programs to be developed and not continued would be a tragedy, and so we have sought to fund this program "on its own two feet (needs to pay for itself). You are correct that the total cost for the first year of Membership, Certification Review and Approval would be $349/yr total and then the annual renewal cost would be $249/yr total. We hope and believe that this is a most reasonable investment for those who want to be successful mediators, particularly in the private sector. We believe that Mediate.com brings huge value to the mediation marketplace and that it is a very reasonable thing for private sector mediators to be involved with Mediate.com as well as other leading mediation associations and initiatives.

One of my takeaways from Jeff's comments is that Mediate.com is well-served to continue to think of the interests of mediation students, volunteers and those getting started as well. In our "defense," Mediate.com does provide robust information (over 5000 articles and resources), video, etc., all for FREE to the entire world. Mediate.com now attracts an average of 14,000 daily visitor sessions. We are an effective bridge between private professional mediators and those who need and desire our services. It is through our membership and certification programs that we are able to fund all of this.

So, this is a long-winded answer to some very good questions. We think it critical to support private sector development of mediation, in addition to court and agency programs, and it is to help promote the best of mediation and to stimulate this private sector growth (critically including for those who are not attorneys) that we have chosen to act. We believe that it is critical that the mediation industry defines itself, at our best, rather than our being reliant or imposed upon by court or administrative definitions that to some extent threaten to turn mediation into just another docket management device.

We are learning and improving every day. This type of dialog is immeasurably helpful to Mediate.com as we seek to ever-improve. If nothing else, we hope that we have stirred the water so that more and more people can become engaged in the discussion of how mediation can be best supported on a global, society-wide basis.

Jim Melamed, CEO
for Mediate.com


read more "Mediate.com Certification Follow Up"

Attribution Bias

As conflict resolvers, we are suppose to notice the things that others can not because we are trained to do so. We are also trained in knowing the terms of certain traits, characteristics and actions. Knowing these terms does not make one smarter than the other, or display a sense of superior mediator skills when compared to others but rather I look at it as an additional tool in the mediator's toolbox.

Knowing these terms and also being able to identify them when being displayed in 'real time' is crucial as a conflict resolver. Why? One of the first tasks we are faced with is diagnosing the conflict. When looking at the circle of conflict [read more here], understanding terms such as attribution bias can help you understand the people involved and the actions they have taken.

According to Wikipedia, attribution bias is defined as a cognitive bias that affects the way we determine who or what was responsible for an event or action. Types of these biases include:

Actor-observer bias
When you do something, it is because of the circumstances of the situation but when someone else does it, it is because of their disposition.

False Consensus Effect
Believing everyone else thinks the same way they do.

Incompatiblity Bias
Assuming your interests are are not compatible with the other party.

Sinister Bias
Thinking someone acted a certain way to purposely have a negative impact on you.

You can read about many more of them [here] and read all about the cognitive biases [here].

So you might be asking again, why bother? I am not suggesting when mediating an issue between two parties, if you see one person displaying the actor-observer bias that you call them out on it. What I think can help is by recognizing what it is that they are doing will allow you to properly decide on a method that can assist the party to move away from that bias and move in a positive direction.
This short posting by no means is intend to be a lesson on attribution biases and cognitive bias. If this has sparked your interested, I suggest researching articles and papers to gain further insight at such sites like Beyond Intractability and CRINFO.
read more "Attribution Bias"

Did You Say Certified!?!



Jump in The Discussion!

Over at Mediation Channel, there is a very good discussion going on about the issue of a mediator being certified and the term 'certified' being used.

Should anyone be using it? What criteria should be used?

I mentioned over at that site that I am in fact certified! These are the steps needed in order to get the status of being certified with the Safe Horizon Mediation Center:



  • 40 Hour Basic Mediation Training
  • 14 Week Apprenticeship (once a week for 3 hours)
  • This allows a mediator to co-mediate cases at the center.
  • Pass a video test and then you can mediate cases by yourself. The test must be completed within 3 months of finishing the apprenticeship.
  • After passing the video, you can mediate cases solo
  • After mediating 30 cases alone, you become certified!
Thoughts?

How did you become certified?

See the comments at Mediation Channel [here] and/or leave a comment below.
read more "Did You Say Certified!?!"

Should Age Matter?



Explosion of Comments!
(updated 12:48pm with more comments)

Is it ok to ask for age specific facilitators? Over at the wonderful NY-DRC listserv hosted on the CUNY John Jay servers (see below on how to join the listserv), there has been many comments on the following request:

Hi all,

We’re looking for a few good facilitators for an event on June 18, 7 pm – 10 pm, at the JCC in Manhattan. Stipends of $30 are available for facilitators, $50 for out-of-towners, and the evening’s activities include an ending food and alcohol reception.

We need:

¡P Up to 15 experienced dialogue facilitators aged 21-35
¡P Comfortable with Jewish-Jewish dialogue on controversial topics
¡P Able to read facilitator instructions and dialogue model ahead of time
¡P Able to participate in a day-of facilitator orientation at 6 pm

The New Israel Fund, Makom/Jewish Agency, Encounter and 15 other cosponsors are producing “Love, Hate and the Jewish State: A Conversation on Social Justice and Israel.” This is a 90-minute dialogue between 100 Jews aged 21-35 on the topics of social justice and Israel. Some information is below, more at
www.nif.org/leaveyourmark.

To volunteer, please contact Ben Murane at the New Israel Fund,

Many thanks,


The Problem
Too often, Israel and social justice have represented unconnected, sometimes polar, options for involvement and activism for young Jews. American Jewish Israel activists are sometimes seen as parochial and particularistic and perhaps supportive of Israeli government policies that don’t mesh well with social justice concerns. American Jewish social justice activists are seen, often by themselves, as unwelcome within established Jewish settings and unconcerned about anti-Semitism and Israel.

Moreover, there is perceived dissonance between the idea and reality of a Jewish State and a commitment to liberalism and democracy. In short, there are many elephants in the room – unspoken and controversial topics that keep these two worlds apart.

Addressing the Challenge
Makom at the Jewish Agency for Israel, in partnership with the New Israel Fund, Encounter, and other co-sponsors, is interested in opening these questions up and pursuing a dialogue between the Israel and social justice worlds. Through a “town hall assembly” in New York, we intend to provide a truly open forum in which an honest, probing and meaningful conversation can take place.

Our desired outcomes are dialogue and conversation between participants concerning the complexities of the relationship between social justice and Israel. Among other goals, we hope to provide a portrait of the multi-vocal views of this age cohort to influence policy makers in the future.

The event will take place on Thursday June 18th, 2009 at the Jewish Community Center in Manhattan, and will bring together 100 young Jews (21-40) from the Jewish social justice communities. The central activity will be small group dialogues facilitated by professional facilitators, focusing on:

¡P What are the impediments to a relationship with social justice and Israel?
¡P To what degree are the two agendas in fact oppositional or not?
¡P Are there possibilities for integration and/or exchange between the two agendas?
-- -- ENCOUNTER HAS MOVED! OUR NEW ADDRESS AND FAX ARE:(our phone number, email, and website have remained the same)


There have been many comments, some have been posted below (names have been removed):

This offer of employment limited to facilitators aged 21-35 smacks of age discrimination, which we should not support.

I think we might want to consider this reaction very carefully.Peer mediation programs that are used in a variety of settings are based on the idea that it is benficial to have mediators who are of the same group as those in conflict. One part of group identification is often age related. Additionally, in community mediation, my experience is that it's appropriate and beneficial to utilize mediators that represent the community that they serve in all it's diversity. That may mean, that at different times, a program might select mediators from a particular group. There are undoubtedly other examples of this.We can certainly choose to look at this from a legal perspective but as a long time ADR practitioner I would suggest that it's more appropriate to put this within the frame of our collaborative work.

It’s saddening that Ms. [name removed] sees the only alternative perspective as the legal one. I think she misses (or maybe dismisses) the point.

There is actually some research that is on point e.g. "Does It Matter if My Mediator Looks Like Me? The Impact of Racially matching Participants and Mediators" by Louri Charkoudian and Ellen Wayne in the Spring 2009 Dispute Resolution Magazine published by ABA-ADR. The results were complex but showed no disadvantage to parties that did not match the race of the mediator except when the mediator matched the other party. That issue of DR Mag focuses on race in DR and is co-edited by our own Maria Volpe and Marvin Johnson.

Another extensive mediator-matching study with more variables is currently in progress sponsored by Stanford University with data being collected with the assistance of the NYS OCA and Community Dispute Resolution Centers including Safe Horizon Mediation.

After the data are collected and analyzed, one of the local participants might present the results at a Roundtable with discussion of both the benefits, if any, of mediator similarity and discrimination. Perhaps [name removed] is reading this?


Hello, Friends,

The fact that the posting caused these reactions shows that the topic of neutral selection based on certain characteristics is controversial and needs to be discussed.

But speaking to this particular notice for right now, it said that the activity was a “dialogue between 100 Jews aged 21-35 on the topics of social justice and Israel ” and that they were seeking “experienced dialogue facilitators aged 21-35” who were “comfortable with Jewish-Jewish dialogue on controversial topics.”

I think it’s fair that the sponsors believe that facilitators in roughly the same generation as participants might have commonalities with them that could foster engagement. Furthermore, I thought the organization was remarkably sensitive in not requesting facilitators who were Jewish. Rather, they asked for people who have a comfort level with relevant Jewish topics.

To me, the more compelling discussion is the ethical response to a party who requests a particular kind of neutral – or requests not to have a particular kind of neutral – based on prejudice. This does not appear to me to be the case here, but clearly there’s room for discussion on the issue.



I've been reading the posts on this topic and am of so many different minds that I haven't yet developed a firm point of view. I do know that I feel comfortable about my ability to meet the challenge of building trust regardless of how the parties self-identify or their initial assumptions about me as a 64 y.o. white woman.
That somewhat useless bit of information said, I think Judy makes an important point in the discussion and wonder how the parameters of this facilitator request differ from what is provided in peer mediation.

My first reaction to the original posting, and all of the previous comments, was, "As trained and experienced facilitators, our FIRST and PRIMARY responsibility is to create and ensure an environment, in which all participants feel safe enough to express themselves, candidly." Of course, this may be easier said than done; and how do we effectively measure the "safeness" of the environment, "we think" we create. Hmmm!

While the pool of facilitators should reflect the population served; it is most important that each facilitator earns the trust of the participants--regardless of whether the facilitator shares the "same" or similar "demographic" characteristics. As professional facilitators of "assumption busting," we need to be careful not to, also, ASSUME narrow or stereotypical constructs about the facilitator-group participants relationship.

I am an African American woman, I am very often asked to facilitate groups of people--in which there are NO African American participants. Such situations have even included--on several occasions--facilitating extremely sensitive, "difficult conversations" about feelings and beliefs about race and ethnicity, in which there were no African American participants. In many instances, the groups have invited me back, time and time again--so they must have felt safe. (Also, I routinely use anonymous evaluation forms, for feedback.) These opportunities have heightened my awareness about a facilitator's responsibility to create a safe environment--in which participants can say WHATEVER is on their mind--without the fear or concern about being judged. These instances have also created opportunities for me to check-in with myself, about any "assum! ptions" or prejudices I might be feeling and projecting. It is important to give participants permission and opportunities to challenge our "objectivity."

Recently, I facilitated a group of nearly 300 people, in another country, and there was NOT ONE black person present--although, there were other people of color. I do not know what the participants were expecting, of me, but I knew that I had to earn their trust and help them feel safe and comfortable. The outcome of the sessions were amazing! Participants experienced major "breakthroughs" and "revelations," which they shared.

I'm letting it all hang out here--I am 63 years old, and yesterday, I was blessed to work with a group of high school students; and to "connect" with them, on so many dynamic levels--using music, artwork, game theory, collaborative brainstorming, candid discussions, and--most importantly--TRANSPARENCY! That is what I believe professional facilitators DO! (or should do.)

Intergenerational dynamics have become a special interest of mine; and I have been blessed to facilitate workshops on this topic for ACLEA (Int'l Assoc. of CLE Professional) and the 2008 ABA Annual Conference. I am pleased to be facilitating a workshop, entitled: Building Bridges Across the Great Intergenerational Divides: Opportunities for Intergenerational Collaboration..., at the June 25th Annual ACRGNY Conference.
www.acrgny.org

One of the things I LOVE most about being a professional facilitator--especially of very "difficult conversations"--is that it challenges me, to be honest with myself and with others--in so many ways, and on so many levels. It challenges me to continuously learn and relearn.
So, perhaps we need to challenge our own assumptions and the assumptions of others, about our services. Isn't it wonderful to be engaged in such dynamic work!

.. I am often asked how can I, a white-jewish 35 year old write a dissertation on and provide expertise on adolescent african american innner-city girls... I do it the way and the why of what you described.. More so, at 28 I was the youngest, jewish and white woman to ever teach at spelman college- a historical black womens college.. I was told by most of my students that I could and still do understand them more than most of their black professor.. I am still close with a cohort of 6 of them and it has been 5 years..I do a lot of diversity work also and where I recognize the importance of having folks identify with someone of their identity/racial group.. I also know that we all can do the work and connect with all folks.. Its a gift to know how to connect.I am often the only white woman doing work with all black children and it is wonderful for them and me..So, I appreciated your comments and concur with them..

Is there a way that the onslaught of e-mails on this topic can be stopped. The "reply all" response permits dozens of e-mails to crowd our computers. I think the message has been received and appropriately commented on.

Mr. [name removed]-- Thank you for starting the discussion. Whatever the conclusion(s), raising the issue was a good thing to do.

these comments added:
As I initiated this conversation by raising the issue, I would take issue with the suggestion that the issue was unfairly limited to age discrimination. The initial solicitation did not state that it excluded non-Jews or any other protected group. It did not state that one had to be Jewish; one only had to be comfortable with a Jewish-Jewish dialogue. That would be a legitimate consideration and not discriminatory, as many non-Jews would not have been excluded on that basis. For example, at SafeHorizon, mediators handle disputes that may involve religious, gender or nationality issues on a routine basis, without regard to the affiliation of the mediator. But, the stated age requirement was per-se discriminatory. I chose to raise the point on the list because I felt (I hope correctly) that the list, and this one in particular, should be sensitive to the issue. The list itself is not censored, and our gratitude to Maria for facilitating the list is boundless. No finger is pointed at her. She does not monitor the postings and leaves it to us to adhere to the principles of our callings. That is how it should remain.

Well, as a 59-yr old goy, I thought it was hilarious that a posting seeking young Jews to facilitate a discussion between Jews about the Jewish State should offend someone because of the "young" aspect. Nu?

As a person of a certain advanced age who loves facilitation opportunities, I too was frustrated enough to write, back-channel, to Rabbi Weintraub. She kindly respond much as she did to the list noting that some groups, such as abuse victims, may be more comfortable with facilitators drawn from their own group or gender.. Patricia Barnes makes a similar point about peer mediation, and it is common practice for heterosexual divorce mediation to use co-mediators of the two major genders. In my own facilitation practice, I have recruited colleagues of color to complement my white face by co-leading groups with me at predominantly minority settings. We certainly wouldn't sanction restricting an apartment building to whites, or taverns to men on the basis that it would maintain comfort for the existing white tenants or male patrons; however there is a plausible argument for using neutrals representative of the population being served. However before making a determination based on "hearsay" and general impression e.g. "young Jews often describe not feeling safe talking freely about Israel with older Jews", I believe it is incumbent upon organizers of program like the one described below to at least try to gather some systematic data. In this case, it would not be difficult to select a small sample of representative young Jews who sign up for the program and ask them for facilitator preferences if any, fear about "safety" etc. etc. Without evidence, the "fears" may be in the minds of the organizers. In addition mixing groups and facilitators may result in positive change and tolerance especially with trained facilitators who is likely to accept and reflect all views that are expressed. In the absence of research other than impressions or anecdotes, I believe the default would be to at least allow some "differently aged" facilitators to ply their neutral trade. This could even be an opportunity for research with the old and young facilitators each collecting identical evaluations which would then be evaluated and published right here on this list.

I am running out of room for my email This conversation should be moved to a blog

Someone earlier suggested you take this conversation to a blog, I wholeheartedly agree.

So, leaving it off at that last comment, if you so choose to continue it here, just click 'comment' below, it's free and easy to do. You don't have to register or anything like that, just a name and email... Enjoy!

Join the above mentioned listserv [here]

Visit the Dispute Resolution Consortium website [here]



read more "Should Age Matter?"

ADR News


IMI Mediator Blog Roll

Yes, Diane does have the best blog list on the planet at ADR Blogs but that does not mean no other site can have a list too, right? IMI (International Mediation Institute) has a nice, global list [here].
Also, you have less than one month to finish your profile to become IMI certified under the current format. After that, the process will be much longer so don't wait! Visit their site [here].

Euro-JAMS
I forgot to mention this last Friday and thanks to Tom at Jaffe Associates for reminding me.
NEW YORK/ROME – JAMS, the premier mediation and arbitration provider in the United States and ADR Center in Italy announced an agreement to form what will be known as JAMS International ADR Center to provide mediation and arbitration of cross-border disputes and training services worldwide. The first JAMS International ADR Center will have its offices in Rome and New York with additional hearing locations in Geneva, London and Brussels. JAMS plans to establish a network of international centers to provide the same high quality services for which JAMS has become known.
Read more [here].
Obama, The Mediator-in-Chief
Barack Obama hopes to turn another page. Instead of domestic issues like race relations, the Mediator-in-Chief steps deep into the throes of Middle East diplomacy today.
Obama seems most himself when tackling a big issue. He identifies the big problems, affirms angst and points out the failings on all sides (that all sides can tolerate being pointed out). He sets a flag on common ground. He talks of bold outcomes but favors incremental action. We know the script and cadence...
Read more [here]
Pilot Project to Test Mediation in Family Court
FREDERICTON - The Liberal government is launching a pilot project that will give families the option of using mediation services to settle disputes outside of the family court system.
The announcement came on the heels of a report released Tuesday that found New Brunswick's family court system was "needlessly adversarial, frustratingly slow and much too expensive."
Read more [here]
Mediators Slam Plan to Close Center
Mediators across the country are condemning the Justice Ministry for its plan to close the National Center for Mediation and Conflict Resolution at the end of June, in accordance with a decision reached by the previous government. The Knesset Constitution, Law and Justice Committee has called for the ministry-based center, which oversees some 25 public mediation centers throughout the country and has been in operation for 11 years, to remain open. The Justice Ministry has agreed to reconsider the matter.
Many of the conflicts the local centers resolve have to do with divorce
Read more [here]
Parade Seeks Mediation in Confederate Flag Flap
The Veterans' Day parade, a 47-year-old tradition in Homestead, is in limbo.
On Thursday morning, officials from the Homestead/Florida City Chamber of Commerce's military affairs committee unanimously voted to defer making any decisions on continuing or disbanding the popular event.
Instead, the executive board of the committee, known as the MAC, has accepted an offer of mediation by the U.S. Department of Justice's Community Relations Service, said Jeffrey Wander, who chairs the committee.
The impartial federal group assists communities in resolving conflicts related to race, color and national origin.
''I think this is the best course of action,'' Wander said. ``To cancel a parade offhand would dishonor the veterans.''
The parade has grown controversial after the Sons of Confederate Veterans marched with the Confederate battle flag on Nov. 11. The Miami-Dade chapter of the NAACP, along with members of the former Homestead/Florida City Human Relations Board, have called for the flag to be banned.
Read more [here]


read more "ADR News"

New Certification Program


Mediate.com Announces Certification Program

I am sure many readers already know about this as either a) you also read other blogs and/or b) you read mediate.com.

Below I will post a roundup of all the coverage it has received, as well as opinions. The only comment I have is from the Q & A (first link below). Setting aside the issue if it is needed or worthy, I wonder why, that it is only going to be available to a very limited amount of people? Why not have a few tiers?

As Jim admits, of the 3,000 mediators listed in the site's directory, only about 500 would be accepted... and that is if they even apply. If the concern is how certain groups (the court programs are used as an example) are not staying true to the ideals of mediation, what impact will this program have if only a small group of mediators receive this certification?

Staying with the issue on court based mediation, I would think most are volunteer mediators. How many would want to pay the fee to become a Mediate.com member (as required to apply for certification) and then another fee to become certified? How many volunteers would meet the 500 hour requirement? Another thought that comes to mind is that the parties in court based mediations do not even get to choose the mediator.

Enough of me and my questions. Does anyone else have any? I know no program (yet at least) will be the complete package to solve all the issues and problems in the mediation world. My intention is not to be hard on this new program. If anything, it has sparked my interest and that is what made me think of these questions.

Onto the web round up of coverage:
* The announcement from Mediate.com
* The top 3 bloggers- Diane, Vickie and Geoff asked Jim Melamed, CEO of Mediate.com some questions about the new program [here]
* Organizational Ombuds Blog (in depth review, worth a read)
* Mediation Channel (announcing it)
* Ombuds Blog (nice bullet points)
* Negitiation Law Blog (same as the first link)
* Mediator Blah Blah (Geoff broke the news first)
read more "New Certification Program"

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