Resource: Beyond Intractability

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Chances are you know about this resource,– but in case you don’t: it’s invaluable.

The website is called Beyond Intractability and “I put this moment here” (to quote Kate Bush) so I don’t forget to go back and read more of the fantastic resources available.

Here’s the “Topics discussed” section, to give you an idea of the breadth available:

Topics Discussed

The modules in this knowledge base are split between theoretical topics and practical topics. Among the theoretical essays are discussions of

  • what we mean by the term “intractable,” and
  • what makes some conflicts intractable while others are not (basically, what causes intractability),
  • what causes escalation (several essays),
  • what identity groups are and why they matter,
  • what is meant by the concept of “ripeness,”
  • what is meant by justice and how it can be obtained (several essays), etc.

Among the practical topics are:

  • Negotiation strategies and tactics (lots of essays!),
  • Mediation of intractable conflicts (several essays on different approaches),
  • Dialogue,
  • Cultural considerations (5 essays),
  • Peacekeeping,
  • Peacemaking, and
  • Peacebuilding strategies (lots of essays!), etc.

The full list of essays can be found in the Browse system.

Dilemma #2 : Satisficing Parties

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Mediation is often a way of enlarging the “pie”…but what happens when you know as a mediator that the pie is significantly larger than the parties have recognized int heir agreement?

One school of thought says “leave them alone, it’s their deal!” This is fine and dandy,–except when you know that something outside of the deal is highly likely to break the deal.
Another school says, “Well, then ask them lots and lots of questions and try to see whether the issue in your head is relevant to them!” Well, that’s also fine and dandy, particularly if both parties are represented by counsel.

But, what happens when the parites are simply willing to do anything due to fatigue? What if it is clear that the reason they are satisficing is because of something you and/or your co-mediator have done or not done? How do you fix it?

I found the term and a readable explanation on the Interaction-Design website:

Satisficing

by Mads Soegaard

Satisficing describes the situation where people settle with a solution to a problem that is “good enough”.

According to Herbert Simon, people do not seek the best possible solutions to problems, but operate within what he has called bounded rationality. Herbert Simon, whose primary object of research was problem solving, coined the term ‘to satisfice’, which denotes the situation where people seek solutions or accept choices or judgments that are ‘good enough’ for their purposes, but could be optimised (Simon 1957 as cited in Kunda 1999). In the tradition of rationalistic decision-making, it was conventionally assumed that individuals seek the optimal result. Instead, as Simon argues, it is often rational to seek to satisfice in that the process of looking for better solutions/results expends resources. A better solution would thus have to justify the extra costs carried in finding it.

So, let’s open it up to a general case: what do you do when the parties “satifice”?

Do you have a definition of this concept that would work better in the mediation context?

Dilemma #1 : Conflicts of Interest, Part I

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Thanks for coming! This first dilemma is a pretty common issue, so feel free to expand or qualify the discussion!


An “actual” conflict occurs when the attorney has represented an opposing party,–for example, when a lawyer has counseled a franchisor, but is then asked to represent the franchisee against the franchisor. This exclusion extends to the entire firm under certain situations.

Advocacy vs. Neutrality

What happens when the attorney is asked to serve as a neutral between the two parties? This might happen when an attorney moves to another firm and thus no longer represents the franchisor.

From an efficiency perspective, an attorney who is already familiar to the parties would be an ideal neutral if accepted by both parties. So, why should an attorney-mediator have a residual obligation to his former client, whereas another professional serving as a mediator may not?

Mediators routinely ask a series of questions to learn just enough about the dispute to determine whether they must disqualify themselves from serving as a neutral.

This “conflicts check” is designed to protect the process: a mediator should decline service as a neutral when it would be unreasonable to expect him of her to be able to protect the mediation process from a position of neutrality.

“Neutrality” doesn’t mean that the mediator does not have a point of view, –or even a solution which s/he feels would work. Rather, neutrality in the mediation context means that the mediator is not supposed to impose his or her views on the parties,–unless specifically asked to do so.

Ideally, one would find out about a conflict before beginning the mediation session. But, what happens when the conflict 1) is apparent but not actual or 2) arises well after the mediator has begun providing services as a neutral?

Subject Matter Expertise

Many clients (attorneys included) believe that a good neutral needs subject matter expertise. The rationale is that when an attorney mediates a dispute within her area of specialization, she brings a lot of knowledge and experience which can benefit both parties. The benefit comes in terms of time, trust and in the process of fashioning durable agreements.

The downside is that one party may come to feel that the mediator is taking sides, particularly when a party is made to feel that his position is untenable or ill-advised. Once a mediator is asked to be evaluative, this is bound to happen, even when ‘evaluation’ results in splitting the baby.
Further, there are many ways to impose one’s point of view. The sarcastic question, the question that presumes an answer, question numerosity, partiality in eye contact, agenda bias, insistence on examination of legality…these are all ways in which neutrality can be compromised. The mediator may not know it, but the parties will sense it.

My gut tells me that evaluative mediation is perfectly appropriate, but that the mediator actually has to work harder to ensure that the parties adopt any resulting agreement as their own. When the parties have counsel, this is easier, but still an issue because counsel are human too: anyone can be overwhelmed by the charisma of a distinguished neutral. What do you think?

When the mediator has a solution in mind, it is psychologically difficult to allow the parties to reach a solution that works for them. This is especially true for people who come to mediation from positions which allow them to impose their will upon others. The obvious case is the judge who transitions from the courtroom directly into mediation, yet fails to appreciate the fundamental principle of self-determination. Lawyers, doctors and other professionals whose value is measured by the quality of their opinions also struggle with this problem.
Conflict in this context is different from the type of problem faced by lawyers serving as advocates. Lawyers are almost always ethically forbidden from representing clients in cases of actual conflict…so what do you think:

  • When should mediators decline to serve as neutrals?
  • When should the parties be advised of an apparent or actual conflict?
  • What did you say to your co-mediator when you think there’s an apparent conflict?
  • How do you as a co-mediator help balance out an apparent conflict?

Books for Review Page : Spam

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Thank you all for your input!

It looks like this is going to be a good idea after all,–I’ll send out notices to some of the other mailing lists, and blogs, etc.

If you’re all the places I am, chances are there will be duplication, so I apologize in advance in you keep hearing about this blog and think “Enough already!!”

Book Review Page

I’ve started a static page on the blog for books that anyone can review. Click the appropriate link on the right under “Pages.”
If there is a book you have already reviewed, feel free to send in the link and I’ll add it to the list of links to help guide others who want to write reviews. If you are free to republish the review, it can certainly be published here.
If you have a review/comp copy, please let me know and I’ll try to matchmake a reviewer! If I cant get someone to write a few hundred words, I’ll review it myself.

As for copyrights, the only thing you agree is that “A Mediator’s Dilemma” has a non-exclusive, on-going right to publish or excerpt anything submitted.
There are no plans to “monetize” this blog other than through Amazon, so please accept gratitude of the community as compensation. I don’t expect even the Amazon lins to add up to much, if anything. The links are equally a way of providing more reviewer comments for reference.
Word count: well, that’s up to you. This blog entry has an approximate word count of 303. This sample article from Mediate.com has a word count of 1,636, and this one from Community Mediation Center has a word count of 200.

Spam

To try to limit the amount of spam received, please register before you comment. The folks who run the server have installed some tools to prevent spam, but the best way is simply to have everyone create a user account. If you need to adjust the permissions, please let me know.

As always, thanks for tuning in, and feel free to e-mail me with any questions rmullen [at] mullenmediation [dot] com.

Free Review Copies of Culturally Sensitive Conflict Style Inventory

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Submitted By: Ron Kraybill

Free Review Copies of Culturally Sensitive Conflict Style Inventory

English and Spanish versions available

Riverhouse ePress announces the release of free review copies in English or
Spanish of Style Matters: The Kraybill Conflict Style Inventory. The
inventory is a recently developed five-styles-of-conflict inventory used by
mediators, organizational consultants, and conflict resolution trainers
worldwide to teach personal conflict resolution skills.

Like the widely-used Thomas Kilmann Conflict Mode Instrument and a number
other inventories, Style Matters is based on the Mouton-Blake Grid. However
Style Matters adds a unique feature making the instrument culturally
sensitive.

Users as diverse as the Canadian Defense Force, a law school in Australia,
and numerous state and federal agencies have adopted Style Matters.

The 22 page instrument sells for $3.95 per copy in quantities of one hundred
or more. A free trainers’ guide is available on the web. Trainers and
consultants may request a free review copy in PDF form, by sending a note
indicating their organizational affiliation to
 StyleMattersOffer at RiverhouseEpress.co…. A link to download a PDF file will
be forwarded in response.

For more information and comments by existing users go to
  -->

What Do You Think?

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Please use this area to share your thoughts about how to make this blog better!

Are there fixed pages that need to be added? Posting categories?

Whatever you think will make this blog better, please feel free to let us all know by posting here!

Thanks!

Great Read #1 : Unstuck

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Subtitle: A Tool for Yourself, Your Team, and Your World

Authors: Keith Yamashita & Sandra Spataro

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This is a Great Read because it provides a quick and easily digested process for working your way out of any problem.Sure, the focus is on organizational problems, but the steps are intuitive and the breadcrumbs are well defined. The authors take the reader as found and walk through what to do if you’re at identified junctures in your stuck-ness.

Which of the “serious seven” have ever applied to you in the middle of a mediation??

  1. overwhelmed
  2. exhausted
  3. directionless
  4. hopeless
  5. battle-torn
  6. worthless
  7. alone

The answer for most of us is “all of the above”! It’s a cute little book, a little larger than a big index card and something you can take with you and use to recharge on a break!

Welcome to The Mediator’s Dilemma!

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First of all, thanks to the Harvard Law School for making this space available. The idea of a blog on this topic hosted in this space is exciting!

A difficult mediation often causes a mediator to continue pulling tools out of the toolbox until it’s empty. This blog is designed to collect wisdom on the dilemma’s faced by mediators as they strive to maintain neutrality in working with difficult mediation sessions.

The Challenge of Neutrality

The ability to maintain an aura of impartiality is a mediator’s stock in trade. Without it, the mediation session devolves into a nothing more than a directive discussion. Sometimes that’s what most of the people in the room desire, but normally, they want a neutral person to assist them reach a workable peace.

The “mediator’s dilemma,” therefore, is the challenging mediation, the mediation that leads to a week’s vacation. It occurs when the mediator, no matter how skilled, reaches the bottom of her mediation toolbox, and begins to think about divine intervention.

It doesn’t take long to stumble upon this type of mediation, whether in role-play or real life. It is the mediation where:

  1. The mediator has failed to properly center himself before attempting to work with the parties
  2. Something happens within the mediation to pull the mediator off center
  3. The mediation environment creates bias

Ordinary Examples:

1) The mediator was unable to sleep the night before a mediation.
2) The manager of an employee uses an ethnic slur that involves both the mediator and the opposing party.
3) The mediator knows the proclivities of the judge assigned to the case strongly favors one party.

In the case of the prisoner’s dilemma, the person with the best information (the interrogator) intentionally hides the information from the prisoner to create sufficient pressure to obtain a confession. In the mediator’s dilemma, the mediator often has to withhold information from both parties (“I’m tired,” “I’m offended” or “I know you’re going to lose at trial”), to maintain their perceived neutrality.

I’ll make my own shameless plugs later, but for now, I simply invite you to participate in this blog, post your on-topic comments, trackbacks and other networking tools to make this truly a place for open discussion of mediator neutrality.

If you’d like to post your own articles (re-posts are fine!), please let me know!