Elder-care Mediation Expands, Some Embarassed To Admit It


Thanks to @Dialogicmed on Twitter for pointing out this article.
I have been noticing more articles on elder-care mediation and found this one interesting and wanted to pass it along to everyone.


By Sandra G. Boodman
Special to The Washington Post
Tuesday, December 14, 2010

The elderly man became increasingly alarmed as the battles among his five grown children grew acrimonious.

His two daughters, worried that he wasn't taking proper care of himself, wanted him to move to a retirement community. His three sons balked, insisting that he was managing fine in his own home. At a family meeting their father made this jarring announcement: I'm nearing the end of my life, and you are making me so unhappy that it might be easier if I killed myself and ended the fighting.

His threat shocked the warring siblings into resolving their dispute, according to lawyer Karolyn Blume of Arlington, who was present at the meeting. Blume did not represent any of the parties but served instead as a new kind of geriatric specialist: an elder-care mediator.

I found this part interesting too:
While mediators say the demand for their services is growing - "Everyone tells me, 'I know someone who could really use you,' " one said - many participants are reluctant to discuss their experiences. None of the six mediators interviewed for this story - or others contacted through an e-mail group list - was able to find a family willing to talk about the process.

Many clients feel "there's a negative connotation to mediation," said Massachusetts mediator Rikk Larsen, who says families may be embarrassed that they are unable to make decisions on their own and need to hire a professional to help them.

Read the full article [HERE].

Has anyone else experienced people stating there is a negative connotation to mediation? How have you dealt with it?
read more "Elder-care Mediation Expands, Some Embarassed To Admit It"

Big Challenge for Mediation in Medical Malpractice: Doctor Participation.

In the article below, it makes me wonder on what level do you measure success? Is an agreement enough? Sustainable Changes? Should a mediator be concerned? Should the system design be modified?

Enjoy!

From the Wall Street Journal Blog:

A study of mediation in medical malpractice cases finds the approach has potential benefits including a lower cost of litigation and a reduction in medical errors. A key missing ingredient, however, is the doctors themselves.

The study, published in the Journal of Health Politics, Policy and Law, looked at mediation in 31 cases from nonprofit hospitals in New York City. As defined by the study, mediation is a “voluntary, confidential conflict resolution process in which an impartial third party, the mediator (or co-mediators), assists the disputants in negotiating a mutually acceptable resolution.”

...Of those cases, 16 were settled at mediation, 5 settled afterward and 10 weren’t settled. While defense attorneys were less likely to agree to mediation than plaintiff attorneys, lawyers who did participate reported satisfaction with the process, as did “plaintiffs, hospital representatives and insurers,” the study finds.

The authors write that in no cases did physicians participate in the mediation.

[Read the full article HERE]

read more "Big Challenge for Mediation in Medical Malpractice: Doctor Participation."

ACR-GNY Tip Of The Month

This month's guest blogger is Andrew J. Gerber and he offers us the ACR-GNY Tip of the Month.

Tip of the Month for December 2010: Arbitration Parties Are People Too -- Help Them Feel That Way.

When you preside in an arbitration hearing you’ll be confronting two different kinds of people: The disputing parties and the counsel who represent them. They’re different from each other because the counsel will always understand what is going on in the room, and why things are being done the way they are. But that will often not be true of the parties.

You might expect that the counsel will have briefed their clients on what to expect. That assumption could be natural but could also be overoptimistic. Or you might focus your attention entirely on the counsel because they take the lead in the action, sitting closer to you and doing all the talking. That kind of focus would be natural too, but it could diminish your awareness of the parties, subtly and subconsciously, and could lessen your sensitivity to their need to understand the process going on around them. It could also make them feel ignored or abandoned and leave them, ultimately, with doubts and misgivings about the way their interests are being disposed of.

That result would represent a failure in the process. There are things an arbitrator can do to help avoid it. Here are a few:

* Before You Start: Explain That You’re Not in Court, And What That Means. Parties may come to the hearing with misguided procedural expectations, based on prior experiences with court proceedings or from watching too much “Law & Order”. You can help them anticipate what is actually going to happen by explaining that an arbitration differs from a case in court: that the procedure is much less formal; that the rules of evidence are relaxed; and that the emphasis here is on making sure that each side is given full opportunity to tell its story. This kind of briefing not only helps the parties understand the proceeding better; it also shows them that they are being recognized individually and taken into account --genuinely, not just technically.

* Get Really Specific About the Ex Parte Rule. Parties who don’t understand the rule can be offended and upset if you seem to snub them in ex parte encounters, in the hearing room or elsewhere. You can avoid this risk by explaining the rule and its importance before the case begins. Alert them specifically that you won’t remain in the room with any party or counsel without someone present from the other side (or all the other sides), and that you won’t speak with them -- even about the weather -- if you cross paths with them separately outside the room. Explain that your avoidance of conversation won’t be out of rudeness, but will actually be necessary to preclude violations of this bedrock principle of fair procedure.

* During the Hearing: Help the Parties Understand What You’re Doing. While the hearing is in progress, consider whether a lay party might not understand what is happening, and consider the possibility that a brief explanation might defuse potential suspicion or alienation. For example: The lawyers may understand your ruling fully when you respond to an objection with a terse “sustained” or “overruled”, but the parties may not. An occasional detour to explain your reason for a ruling could counteract a perception by the affected party that you are treating her/his case and counsel dismissively or unfairly.

Another example: If damage issues are addressed before liability has been determined, a lay party may interpret that as a signal that you have decided to find liability. You can allay that concern by assuring the parties that you have not, but that damages are being addressed provisionally at this point to avoid a need for a separate hearing on them.

These techniques are just examples. Others will suggest themselves if you think about the parties (remembering that they are the most important people in the room) and put yourself into their shoes. And, of course, the approach suggested here requires discretion: You may find yourself with parties whose sophistication makes it unnecessary, and it could be overdone in any case. But a judicious measure of it in an appropriate case should not add significantly to the length of the hearing, and will more than compensate for its limited use of time by its contribution to the parties’ satisfaction with the arbitration process they are paying for.

Andrew J. Gerber graduated from the University of Vermont and Yale Law School. He was the ACLU’s first legal intern, served in the U.S. Army JAG Corps, and worked as a lawyer at the American Society of Composers, Authors and Publishers (ASCAP). After private law practice in New York City he became an attorney for CBS, working mostly with its Records Group (including the Columbia, Epic and Masterworks labels) and its successor, Sony Music Entertainment. He then became the first General Counsel of Columbia House and served there until 2001. He is now an arbitrator and mediator, including service on the AAA Commercial Panel, the FINRA arbitrators panel, the New York County Part 137 arbitrators roster, the arbitration panel of the Better Business Bureaus, and the mediation rosters of the New York Supreme Court Commercial Division and the U.S. District Court for the Eastern District of New York. He also works as a consultant to lawyers on entertainment and copyright matters.

He has lectured for PLI, the New York City Bar Association, the Federal Bar Association, the Copyright Society of the USA, the New Music Seminar, and the law Schools of Cardozo, Columbia, Fordham, Hofstra, NYU, and Seton Hall. He has served as ARGNY’s Treasurer and a member of its Board since 2003. Contacts: andger@earthlink.net; 914-479-1330.

read more "ACR-GNY Tip Of The Month"

CafeMediate.com Podcast (Video!)






In this episode:

"This is the first Cafe Mediate podcast which is also a video podcast. [http://blog.amandabucklow.co.uk/2010/12/15/new-cafe-mediate-podcast-special-festive-edition/] and Jeff's ADR Hub and Community website [http://adrhub.com/]


In this episode of Cafe Mediate, regular conversationalists Amanda Bucklow and Jeff Thompson mull over the recent and upcoming developments in Europe and the USA concerning the mandatory use of mediation and explore the implications for the development of mediation generally.



With a happy wink to the festive season, Jeff and Amanda also offer their ideas on the perfect holiday gift for a mediator! What is your ideal gift for yourself or for fellow mediators?"


read more "CafeMediate.com Podcast (Video!)"

Book Review for Conflict Specialists: Discernment


For those that missed my article at Mediate.com on my book review of Discernment, it is pasted below. Do me a favor though (please), read it [HERE] at Mediate.com to let them know you liked it (they track pages and that shows popularity).


Thanks and enjoy!


Discernment (Lantern Books), the title of Buddhist nun Venerable Yifa’s new book, provides the mediator and other ADR practitioners a valuable tool to add to their ‘ADR toolbox’.
Venerable Yifa defines discernment as, “the quality of mind that analyzes and perceives accurately the nature of something and then forms a thoughtful and accurate judgment about it.” The definition can be viewed from an ADR perspective by embracing the role of a reflective practitioner to a much deeper and intense level.

Venerable Yifa describes Discernment as a two step process of seeing and acting. The first allows us as the mediator or conflict practitioner to see a situation (think case, consulting job, or coaching opportunity) fully for what it is and what all the contributing factors are that led to it. The second step allows us to then act in a way which will benefit ourselves and more importantly the clients or parties that reached out to us.

The 7 seven chapter book is just over 100 pages on a title that could at first seem overly complex and strictly for Buddhists practitioners or ADR scholars. On the contrary, Yifa once again takes an intense subject and is masterful in describing discernment making the book a wonderful read for the first time and one that you can go back to help you, pardon the pun, discern situations you might be involved in as a mediator, conflict coach, ombuds or private ADR related consultant. In each chapter, Yifa uses various Buddhist stories to explain each chapter’s titles while staying within the theme of discernment and its attributes, such as mindfulness, which comprise it. She also reflects on past experiences to show how she applied a discerning mind to her own situations. Although the stories are from Buddhist perspectives with many involving monks, and her reflections are that of a nun, the reader can easily apply the stories to their own life experiences. The stories along with Venerable Yifa’s comments are witty and practical while also possessing deep meaning. The stories’ topics include dealing with perception and bias; a reminder of how we are always learning; and how to allow others to learn and make their own choices and decisions. Those three topics have all played roles in my past mediations and I am sure for many of you in your roles.

Reading Discernment will allow you to further your practice as a reflective practitioner in the ADR field by looking deeper at your situations and see all the contributing factors while also reminding yourself your own viewpoint is a factor as well. You will be better prepared to stop and look at things from the multiple perspectives each case or situation offers us and allows you to use to your valuable ADR tools, now with discernment included, to act more compassionately.
read more "Book Review for Conflict Specialists: Discernment"

Arbitration Parties Are People Too- Help Them Feel That Way

This month's guest blogger is Andrew J. Gerber and he offers us the ACR-GNY Tip of the Month.

Tip of the Month for December 2010: Arbitration Parties Are People Too -- Help Them Feel That Way.

When you preside in an arbitration hearing you’ll be confronting two different kinds of people: The disputing parties and the counsel who represent them. They’re different from each other because the counsel will always understand what is going on in the room, and why things are being done the way they are. But that will often not be true of the parties.

You might expect that the counsel will have briefed their clients on what to expect. That assumption could be natural but could also be overoptimistic. Or you might focus your attention entirely on the counsel because they take the lead in the action, sitting closer to you and doing all the talking. That kind of focus would be natural too, but it could diminish your awareness of the parties, subtly and subconsciously, and could lessen your sensitivity to their need to understand the process going on around them. It could also make them feel ignored or abandoned and leave them, ultimately, with doubts and misgivings about the way their interests are being disposed of.

That result would represent a failure in the process. There are things an arbitrator can do to help avoid it. Here are a few:

* Before You Start: Explain That You’re Not in Court, And What That Means. Parties may come to the hearing with misguided procedural expectations, based on prior experiences with court proceedings or from watching too much “Law & Order”. You can help them anticipate what is actually going to happen by explaining that an arbitration differs from a case in court: that the procedure is much less formal; that the rules of evidence are relaxed; and that the emphasis here is on making sure that each side is given full opportunity to tell its story. This kind of briefing not only helps the parties understand the proceeding better; it also shows them that they are being recognized individually and taken into account --genuinely, not just technically.

* Get Really Specific About the Ex Parte Rule. Parties who don’t understand the rule can be offended and upset if you seem to snub them in ex parte encounters, in the hearing room or elsewhere. You can avoid this risk by explaining the rule and its importance before the case begins. Alert them specifically that you won’t remain in the room with any party or counsel without someone present from the other side (or all the other sides), and that you won’t speak with them -- even about the weather -- if you cross paths with them separately outside the room. Explain that your avoidance of conversation won’t be out of rudeness, but will actually be necessary to preclude violations of this bedrock principle of fair procedure.

* During the Hearing: Help the Parties Understand What You’re Doing. While the hearing is in progress, consider whether a lay party might not understand what is happening, and consider the possibility that a brief explanation might defuse potential suspicion or alienation. For example: The lawyers may understand your ruling fully when you respond to an objection with a terse “sustained” or “overruled”, but the parties may not. An occasional detour to explain your reason for a ruling could counteract a perception by the affected party that you are treating her/his case and counsel dismissively or unfairly.

Another example: If damage issues are addressed before liability has been determined, a lay party may interpret that as a signal that you have decided to find liability. You can allay that concern by assuring the parties that you have not, but that damages are being addressed provisionally at this point to avoid a need for a separate hearing on them.

These techniques are just examples. Others will suggest themselves if you think about the parties (remembering that they are the most important people in the room) and put yourself into their shoes. And, of course, the approach suggested here requires discretion: You may find yourself with parties whose sophistication makes it unnecessary, and it could be overdone in any case. But a judicious measure of it in an appropriate case should not add significantly to the length of the hearing, and will more than compensate for its limited use of time by its contribution to the parties’ satisfaction with the arbitration process they are paying for.

Andrew J. Gerber graduated from the University of Vermont and Yale Law School. He was the ACLU’s first legal intern, served in the U.S. Army JAG Corps, and worked as a lawyer at the American Society of Composers, Authors and Publishers (ASCAP).

After private law practice in New York City he became an attorney for CBS, working mostly with its Records Group (including the Columbia, Epic and Masterworks labels) and its successor, Sony Music Entertainment. He then became the first General Counsel of Columbia House and served there until 2001. He is now an arbitrator and mediator, including service on the AAA Commercial Panel, the FINRA arbitrators panel, the New York County Part 137 arbitrators roster, the arbitration panel of the Better Business Bureaus, and the mediation rosters of the New York Supreme Court Commercial Division and the U.S. District Court for the Eastern District of New York. He also works as a consultant to lawyers on entertainment and copyright matters.

He has lectured for PLI, the New York City Bar Association, the Federal Bar Association, the Copyright Society of the USA, the New Music Seminar, and the law Schools of Cardozo, Columbia, Fordham, Hofstra, NYU, and Seton Hall. He has served as ARGNY’s Treasurer and a member of its Board since 2003.

Contacts: andger@earthlink.net; 914-479-1330.

read more "Arbitration Parties Are People Too- Help Them Feel That Way"

What's Happening At ADRhub.com


The latest issue of the Nevada Law Journal is out and it is free to view and download. Looks like some great papers, with a few I already plan to read and review later in the week. SYMPOSIUM: MINDFULNESS, EMOTIONS, AND ETHICS IN LAW AND DISPUTE RESOLUTION







After watching Ury's TED Talk, discuss it [HERE]





Nasri Barakat is a full time arbitrator and mediator who started his practice in 1994. He is fluent in French and Arabic. His areas of expertise include commercial business, domestic and international business with emphasis on insurance and reinsurance matters. He is certified as an arbitrator and umpire with ARIAS-US. Nasri is also listed on the Roster of Neutrals of the American Arbitration Association,




New York Times Blog- Andrew C. Revkin- Then I was fascinated to see that the very next booth held the antithesis of combativeness – representatives of Mediators Beyond Borders, a group that aims to help resolve the world’s most vexing, persistent fights using Kheel-style methods to break a complicated battle into manageable parts. The video above conveys the scene and includes a short interview with Alan Gross, a mediator and co-founder of the group.










More Jobs, Articles, & More!







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Yes, and: Core Concerns, Internal Mindfulness, and External Mindfulness for Emotional Balance, Lie Detection, and Successful Negotiation

I just finished reading a paper by Clark Freshman in the Nevada Law Journal. I suggest you give it a read as well as the other papers which also look interesting (SYMPOSIUM: MINDFULNESS, EMOTIONS, AND ETHICS IN LAW AND DISPUTE RESOLUTION) but I have yet to get a chance to read them.

Below I have highlighted some sections which stood out for me:

(370) All told, it is a promising story, and I have no doubt it may work for some
people. Yet therein lies our problem. Riskin’s theory returns to the question
that confounds negotiation scholarship, negotiation teaching, and negotiations
themselves: How much are we alike and how much do we differ?22 Scholars,
including Shapiro, Fisher, Ury, and Patton (the latter three being co-authors of
the second edition of Getting to Yes), cite both contemporary psychology and
ancient Buddhism for the idea that “we” are very much the same.
......Although the core concerns approach may help solve many dilemmas and
conflicts, this Article also offers other guides both to test whether the core
concerns really do facilitate more productive emotions, or otherwise facilitate

Part II is the section I enjoyed particularly:

Part II introduces “external mindfulness,” a variation on Riskin’s mindfulness
approach. Through external mindfulness, parties learn to recognize the
predictable physical signs of particular emotions, both in other peoples’ faces
and in their own physiological responses. These physical and physiological
signals can then help parties determine whether their appeals to the core concerns
make emotions better, make no difference, or even make them worse. In
this way, external mindfulness complements the core concerns approach while
safeguarding parties from the approach’s limitations.

I loved this 'shot' he takes at the "folklore" mediation teaching and training method of some:

Before we compare different strategies to work with emotions—direct vs.
indirect, core concerns and mindfulness vs. other approaches—it is worth
reviewing how emotions affect negotiation. Elsewhere, I have contrasted the
folklore on emotion with the conclusions of modern science and research.33
The folklore approach comes from “insights” and “expertise” and “wisdom”
that practitioners and scholars believe and teach. As in diverse disciplines, this
received “wisdom” turns out to have little or no support in serious study.34 On
the one hand, folklore makes several limiting assumptions:...

Finally:

Given this importance of emotions, Riskin’s sympathetic reference to Shapiro
and Fisher’s claims that it would be too “daunting” to become aware of the
“many” emotions43 merits a closer look. Before accepting this argument, we
should consider questions such as: Can one learn to improve awareness of his
or her own emotions and the emotions of others? What are the benefits and
costs of learning this kind of awareness? And, of course, how do these costs
and benefits of learning emotional awareness compare with the costs and benefits
of learning how to work with the core concerns? (Of course, it need not be
a competition: I urge every negotiator to learn both the core concerns and
external mindfulness.)

This is where my interest is sparked based on how important I believe nonverbal communication is and the impact it has in mediation.

With the great important Clark and others put on emotions, I put equal importance on nonverbal communication as that is how I think emotions (and feelings) often are expressed by the parties and the mediators. If you want to know the emotions know nonverbal communication.

Read the abstract of his paper [here] and download the pdf file [here]

Read more on the latest journal issue [here].
read more "Yes, and: Core Concerns, Internal Mindfulness, and External Mindfulness for Emotional Balance, Lie Detection, and Successful Negotiation"

Nevada Law Journal: Mindfulness, Emotions, Ethics in Law & Dispute Resolution


The latest issue of the Nevada Law Journal is out and it is free to view and download. Looks like some great papers, with a few I already plan to read and review later in the week.


SYMPOSIUM: MINDFULNESS, EMOTIONS, AND ETHICS IN LAW AND DISPUTE RESOLUTION

original link here: http://scholars.law.unlv.edu/nlj/vol10/iss2/

Volume 10, Issue 2 (2010)

Front Matter


Notes

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A Mediator At The Climate Bazaar (MBB!)

Kudos to Mediators Beyond Borders (of which I am a member!) and board member Alan Gross:

He gives a great explaination on how mediation can be involved in climate discussions, watch below and read the article.... then leave a comment here!




New York Times Blog- Andrew C. Revkin

...I was engaged in a discussion with Monckton about his views of climate science and some disputes we’d had over stories I’d written when Brad Johnson, a climate blogger and editor at the liberal Center for American Progress, walked by – creating one of those volatile moments, as if matter and anti-matter had come a bit too close for comfort.


Then I was fascinated to see that the very next booth held the antithesis of combativeness – representatives of Mediators Beyond Borders, a group that aims to help resolve the world’s most vexing, persistent fights using Kheel-style methods to break a complicated battle into manageable parts.

The video above conveys the scene and includes a short interview with Alan Gross, a mediator and co-founder of the group.


He said the group, which has projects from Israel to Zimbabwe to Pittsburgh, was there to try to convince delegates to the talks to include language in any draft agreement that calls for mediators to be applied. Here’s the language proposed by the group:

[Read More Here]
read more "A Mediator At The Climate Bazaar (MBB!)"

Podcast #10- International Negotiation Simulation


Find more music like this on ADRhub Werner Institute


Episode #10

All-Day International Negotiation Simulation



Join host Jeff Thompson and Masters Degree candidate at Columbia University's School of International & Public Affairs (SIPA), Regina Jun. They discuss an all day negotiation simulation event with graduate students performing in the roles of the various stakeholders involved in the current drug war going on in Mexico.

This unique, full day negotiation simulation allows students to take the theory they have learned and apply during a realistic, intense setting. Regina explains how the event was put together, the participants and how professionals will be observers and providing feedback during multiple sessions during the day.

Subscribe to the new series by click the image below:



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How Far Can A Smile Go?




How far can a smile go?

I enjoy running. I enjoy mediating. I enjoy meditation.

I think my mediation practice benefits from the other two. Meditation helps me focus and running helps me stay focused while multi-tasking. I will run a certain distance, usually 1 hour, and while doing so it gives me time to be mindful of ‘just running’ while also discerning a variety of topics (the usual- will Tibet ever be free, why isn’t soccer as popular in the US, will there ever be a unified certification scheme for mediators, etc.).


While running today one of the things I recalled was how much I enjoy nodding, smiling, and waving to my fellow runners. I run from my apartment to a running path along the water (really a bay- Little Neck Bay for those interested in stalking me) and often I will do one of those nonverbal gestures to my fellow runners. More times than not, the other person will smile, nod or wave back.

This form of reciprocity literally makes me happy and gives me an extra step to my run and just makes me feel happy overall. Timeout for a second- if this is too ‘touchy feely’ for you please keep reading as 1) I really do attempt to make a point here and 2) it is connected to mediation and conflict resolution.

Admittedly sometimes the person does not smile, nod, or wave back and for a second or two I think to myself, “Maybe no one has ever done that to them so perhaps they will return it next time or even better- they will do it first… or they might not ever do it.”


At that point I am a good twenty feet past them anyway and I am thinking of something else. I do enjoy people smiling back but for those that don’t, it does not bring me down. Sometimes, I admit like today, people not only do not reciprocate the smile/nod/wave but they actually look at me with a snarl like I have two heads or a have booger on my face (really, I wiped my face thinking if that was the case today). Thankfully, my face was clear of blemishes and it actually made me smile as it brought me back to reflecting on my mediation practice.

Think about how you, as the mediator (ombudsman, or conflict coach), and how you greet your party(s) for the first time in person. What do you say? Now think about all the nonverbal cues- gestures, posture, and appearance- what message are you giving them? Are you creating an environment that is friendly? Do you even think about creating a friendly environment? Are you building trust and making them feel comfortable and at ease with the space you have provided?

Not everyone smiles and not everyone should smile given the current state of their teeth (joking!). Seriously though, not everyone smiles or makes jokes. I am not suggesting you do that but rather take a moment to reflect on what you do and do you think it is making the person feel comfortable? Often, when I am mediating in the courts with one pro se party (representing themselves/without an attorney), I try to make sure they feel comfortable.

Think about it- there are 3 people in the room. Me, the mediator who has mediated hundreds of cases, the attorney who probably has two dozen cases scheduled that day alone, and the other person who has never been to court before, has never been to mediation either and probably does not really know what it is (or isn’t).

What do I do?

I do smile.

I use open handed gestures.

I lean towards them when speaking to them.

During the ‘introduction to mediation’ statement I ask them a few times if they have questions. Does it make a difference? I think so. Often, like smiling to my fellow runners, I believe it creates a friendly environment and makes things easier. Other times I get that look like there is a booger on my face and I carry on anyways.

Enjoy!
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