Business Conflict Blog

In 1999, CPR Institute published Kathleen Scanlon’s volume Mediator’s Deskbook.  It was (and still is) a terrific book, subsequently translated into Japanese and Chinese, but alas out of print after 11 years.  James Henry, CPR’s founder and president, thought of it as “the well-thumbed paperback that every mediator leafs through on the way to the mediation.”

In the decade since Mediator’s Handbook was published, the mediation library has grown to a scale Jim Henry could not have imagined.  These include not only excellent books, like Richard Shell’s Bargaining for Advantage and Ben Picker’s Mediation Practice Guide, but casebooks like Carrie Menkel-Meadow’s Mediation, practical innovations like Steve Brams’ The Win-Win Solution, compilations like Russ Bleemer’s Mediation Approaches and Insights, periodicals like the ABA Dispute Resolution Section’s Dispute Resolution Magazine, web sites like Mediate.com, and blogs like… well, modesty forbids!

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Tags: Mediation, Teaching, Training

In his keynote address to the Section of Dispute Resolution of the American Bar Association, MIT Professor Lawrence Susskind urged that it was time for ADR professionals to get involved in the failure of meaningful discourse in American public life, and to assist people to talk to each other about deeply held beliefs.  He focused on disputes that arise “when people describe who they are rather than what they want” and outlined an approach to dispute resolution that is distinct from the familiar Fisher/Ury interest-based model.

The underlying assumptions of interest-based facilitation — that the parties have interests, know their BATNAs, will seek maximum return without unnecessary delay, and will accept an agreement whose terms are better than no agreement – don’t work when people’s values, or their very identities, at at stake.  Abortion or same-sex marriage are not interests, or even principles; they define who some people are.  When these defining values are encroached upon or attacked, what facilitation model applies?  Read more »

Tags: Culture, Mediation, Negotiation

NOTE:  The following text will appear as a chapter in a mediator skills volume to be published soon by the International Bar Association, edited by mediator Patricia Barclay of Bonaccord Ecosse Limited, in Edinburgh, Scotland. 

          Reality testing is the technique of inviting a party to adjust his perceptions of the claim.  A party may overestimate the likelihood of success on the merits, or the other side’s ability or willingness to pay.  He may have an unrealistic assessment of his alternatives to settlement.  The transaction costs of continuing the dispute in court may not have been accurately addressed.  He may not have confronted business, competitive, or psychological obstacles to a successfully negotiated conclusion of the dispute.  The purpose of reality testing is to help to eliminate those obstacles. Read more »

Tags: Mediation

While working for a company, a guy opens up a competing business and lures away customers.  He is sued by his employer for fraud and breach of fiduciary duty.  Prior to trial he participates in a mediation, that is unsuccessful.  At trial he loses and is found liable for $364,000 in damages and $51,000 in attorney fees.

What does he do?  What any red-blooded American would do — he sues his attorney in federal court for shoddy representation during the mediation. Read more »

Tags: Mediation