Is blogging a cry for attention?

Among the comments on the recent story of the $300k/year Harvard Law grad who burned his diploma on YouTube, was the following:

“since he is a BLOGGER, mabye he is just looking for ATTENTION.”(emphasis supplied)

I ask you, is blogging a cry of attention?  Are we bloggers simply looking for approval in the form of comments, trackbacks and link-love?

I think not.  But I may simply be deluding myself.  Now, pardon me while I post a video of me blowing up my three-piece suit, wingtips, briefcase and blackberry with an M-80 in symbolic rejection of BigLaw life.

Just a question…

Can you maintain a litigation practice and remain a successful and dedicated mediator?

I’m just wondering.  When I started this new phase in life, I decided it was best to focus exclusively on mediation in order to best serve my clients.  I saw that the most successful mediators on the larger panels practiced mediation exclusively. Maybe I should have asked that question on my market survey (which is in progress – 12 responses on counting)

Thoughts?

What, exactly, does the mediator do? Part Deux.

A few days ago, I posted the somewhat rhetorical question, “What, exactly, does the mediator do?” It was really meant as a comment on Tammy Lenski’s post, “Mediation in the mainstream: the problem of observability.”

I realized, however, that some people might actually wonder what mediators really do. I believe that the common misperception that mediators don’t really “do” anything lies in the fact mediators do not dictate, instruct, mandate, or order the parties to do anything.

Litigants choose mediation for a variety of reasons, but most in the ADR community believe mediation works because it provides the litigants their last and best opportunity to take control of the outcome of their dispute. ADR professionals will tell you that it provides litigants with a sense of autonomy, empowerment, or control; that mediation is all about self-determination. The parties agree to a solution because they become involved in the process. They are asked their opinion. The get to provide ideas, suggestions, and alternatives. Parties need to feel that they reached the solution themselves.

So how exactly do mediators help parties assess the perceived strengths and weaknesses of their positions, examine their needs and interests, discuss settlement options, and ultimately (hopefully) reach a solution?

Good mediators ask the right questions . . . which is much harder than it sounds.

• The mediator may ask questions about the case that the parties have been ignoring;
• The mediator may explore the true causes of the dispute;
• The mediator may act as Devil’s Advocate;
• The mediator may ask the parties to make tough decisions they have been avoiding;
• The mediator may have to get the parties away from tangential issues and focus on the heart of the matter; and
• The mediator may have to control heated emotions

. . . all without making either party feel like the mediator is taking sides.

As British philosopher, mathematician and Nobel Laureate Bertrand Russell once said, “The greatest challenge to any thinker is stating the problem in a way that will allow a solution.”

What, exactly, does the mediator DO?

I’ve been thinking about this issue for a while, toying with the idea of a post. I simply couldn’t think of an opening until I read Tammy Lenski’s post, “Mediation in the mainstream: the problem of observability.”

Tammy writes that while she was prepping for her mediation class at Woodbury College, she read aloud to her husband an excerpt from Daniel Bowling and David Hoffman’s Bringing Peace into the Room which delved into the perceptions of the mediator from the perspective of the participants. In a nutshell, when the parties were asked what they actually observed the mediators doing, they responded:

“Opening the room, making coffee, and getting everyone introduced.”

Unfortunately, I think this is a common perception among mediation participants – that the mediator is passive. I haven’t done any research studies but I think there are three possible explanations for this opinion:

First, many lay people are simply not familiar with mediation. They hear the words “neutral” and “facilitate”, and are told that a mediator doesn’t decide a case in favor of one party or another. They ask, “Then what, exactly, does the mediator do?”

Second, there really are some useless mediators out there. They do little else than greet the parties, offer coffee and walk around going, “They’re at $X. Are you willing to make a counter offer? You know, litigation is risky. You might lose, and spend a lot of money getting there.” Since I frequently hear complaints from clients and colleagues about these ineffectual “water carrier” and “errand boy” mediators, I know this to be true to a certain extent.

I also know some very good mediators. So the explanation that Tammy puts forth is probably equally true. As Tammy puts it, “When we’re good, when our work is seamless, and when we’re not strutting around to stroke our own egos, we and our contributions may be invisible.”

So, the question Tammy asks is, “What do good mediators do about it?”

Need we do anything? If you are a good mediator; if you provide value to the settlement process; if you manage the personalities, ask the tough questions, coax the right responses, can you really do anything else? Likely not.

I agree with Tammy that “Credible observability doesn’t come from us talking about ourselves. It comes from others talking about our work and successes.” I’ve been fortunate to have some good lawyers say some nice things about me on my website and to others. It’s a hard road to hoe, but I think you must trust that when you do a good job, the parties and advocates will remember and will spread the word.

Facilitative? Transformative? Evaluative? Whatever gets the case settled?

Geoff Sharp and Vickie Pynchon raise some interesting points in their posts today. Geoff asks, “Can settlement orientated mediators like me cherry pick from transformative process?” Vickie suggests that it is more complicated than simply using the right mediation “process.”

I’ll be frank, I know little about “transformative” mediation, and I bet few of you do as well.  According to one site linked by Geoff, transformative differs from the “other” type of mediation-problem-solving. The site explains:

The goal of problem solving mediation is generating a mutually acceptable settlement of the immediate dispute. Problem solving mediators are often highly directive in their attempts to reach this goal–they control not only the process, but also the substance of the discussion, focusing on areas of consensus and “resolvable” issues, while avoiding areas of disagreement where consensus is less likely.
* * *

The transformative approach to mediation does not seek resolution of the immediate problem, but rather, seeks the empowerment and mutual recognition of the parties involved. Empowerment, according to Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person’s point of view–to understand how they define the problem and why they seek the solution that they do. (Seeing and understanding, it should be noted, do not require agreeing with those views.) Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative mediation is to foster the parties’ empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view.

My clients do not hire me (or if I may generalize) any other mediator in this market to “foster empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view.” Mediators are hired to help parties reach a resolution.

That does not mean, however, that the techniques and theories of transformative mediation cannot be useful. Again, I am learning on the fly here, but what I have read so far about transformative technique does not seem revolutionary. A little “touchy-feely” maybe, but clearly not as mutually exclusive as the “founders” would like you to believe.

What I find somewhat amusing is the fact that a field (mediation in general) that promotes self-determination, communication, openness , collaboration and problem solving can be so fragmented and territorial. I, for one, will not reject a useful technique because it does not promote some ideological goal. Mostly because I have no ideological goal. I’m there to help the parties and if that means they want to “transform” their relationship, more power to them.

Prof. Murray Responds to Vickie Pynchon (Sort of).

Over at Settle It Now, Professor Murray has obfuscated the issue responded to Vickie’s thoughtful commentary on his polemic, Privitization of Justice.

I’ll try to be frank without sounding like I’m making an ad hominem attack on the Professor.

Prof. Murray’s vague comment simply confirmed the belief that I had of him and his piece in the first place – his problem with mediation is not one of justice or due process (substantive or procedural).   It is ideological.   Murray’s comment that having mediation

provided by private professionals rather than public servants increases the likelihood of economic influences playing a larger role than they would in a purely public institution,

sounds like the beliefs of a old fashioned, 1960’s liberal who hasn’t met a problem the government can’t solve for us.  Or more accurately, he hasn’t met a problem that private enterprise can fix.  (As an aside, what happened to “Ask not what your country can do for you . . .“?)

It does not sound like he wants to reform the process.  Instead, he sounds like he wants to put it back into the hands of the people that drove litigants to seek alternative dispute resolution in the first place – the judicial system.

Why?

I can’t answer that question.

The point that I think Prof. Murray misses is that judicial review is wholly appropriate when a judge or a jury wrongly decides an issue of fact or law that affects the liberty or property rights of another; but it is not appropriate when parties freely enter into a negotiated agreement.

People should be free to make “bad” decisions.

What might seem “bad” to you is “fair” to me.  Who better to make that call -  the party herself or some government apparatchik?

Would he also suggest that non-facilitated settlement agreements be reviewed by the courts as well?  Pro se parties or parties represented by ineffective counsel may agree to enter into really “bad” agreements.  Who is providing “judicial oversight” of those agreements?

As for the “kind of insidious corruption that undermines the integrity of private dispute resolution”, i.e., mediators who might influence decisions in the hope of obtaining future business, mediators don’t “make” deals.  Sure, some mediators exert more “pressure” than others.  In the end, if the market learns that Jane or John Mediator exerts more “pressure” on plaintiffs than he or she does on defendants (or vice-versa), that will sort itself out.

My $0.02 on the “corruption” of the civil justice system by mediators.

In his most recent post, Geoff Sharp calls for further comment on Prof. Peter Murray’s polemic, The Privatization of Civil Justice, published in the summer edition of the American Judicature Society’s Judicature magazine.  I have not yet had the opportunity to read the entire article, but Geoff quotes liberally here, and Vickie Pynchon discusses it at length here and here.

Based on these excerpts, it appears that Murray claims that private dispute resolution mechanisms such as arbitration and mediation erode the civil justice system because arbitrator and mediators handle cases in a self-serving manner without the benefit (?) of any oversight.

I had written a lengthy piece excoriating Professor Murray’s article (and to an extent, Professor Murray), which I now realize is quite unfair, since I have only read the excerpts published (well within the bounds of Fair Use) by Geoff.  So, I will throw my support behind Vickie, whose thoughtful commentary my own comments echoed.  I will simply say that I am deeply offended by his characterization of mediators as money-grubbing whores who would prostitute their beliefs solely to generate repeat business.

Remember.

On this 7th Anniversary of the tragedy of September 11th, I offer only a short post.

Remember.

-Thomas E. Franklin / The Record – (Bergen County NJ)

Fr. Mychal Judge, O.F.M. – we miss you.

Couldn’t have said it better myself.

From the Long Beach Post (via Marvin Schuldiner’s Sanns Mediation blog) comes the following comment on mediation:

During my tenure as a lawyer, I found the mediation process to be more effective and rewarding than the litigation process. It gave the litigating parties a sense that they were “having their day in court” without the drawbacks of actually being in court.

This is one of the main reasons I became a mediator. Mediation provides the parties the only real chance to fully and meaningfully participate in the litigation process.

What’s in a Name?

Fellow Mediator-blogger-teacher Dina Lynch Eisenberg does an interesting job examining exactly what makes a good name for your mediation business.  Dina’s own practice started with a deeply personal (but in my opinion, not terribly descriptive) name and transformed to a more descriptive but more institutional sounding name.

Personally, I chose a fairly conservative name because I market my practice to lawyers, who are, by and by, a conservative bunch.  The ones I surveyed preferred the name CKA Mediation (CKA being, of course, my initials) to anything more “fanciful” (like some of the examples in Dina’s post) and they preferred the very professional, but more conservative logo seen on my webpage. You go with your market.