Negotiation Law Blog

A word to the wise about foreclosure mediation from the Buffalo News Business Today article, Fear stymies mediation.  Excerpt below. 

Timothy Walker has one message for all the homeowners facing foreclosure in Western New York: If you get a letter inviting you to come to court, don’t be afraid. Just show up.

Walker, acting Supreme Court justice, oversees the state-mandated settlement conferences locally that are designed to bring defaulting homeowners and lenders together one last time to find a solution before ordering a foreclosure sale.

His job at these one-on-one meetings isn’t to take away someone’s house. Rather, his mission is to encourage both sides to sit down and make every effort to keep borrowers in their homes.

Since the process began, Walker and his staff have convened more than 341 meetings, with nearly 100 homes saved from foreclosure by getting lenders to modify loans to make them affordable. That’s about three times the success rate downstate.

(may I offer you a second helping of Jimmy Choo shoes with your turkey?)

Before sharing Brian Solis' succinct and brilliant post the Benevolent Acts of Reciprocity and Recognition and Highlights from the Research Project on Gratitude and Thankfulness (excerpt below) I want to once again make a few remarks about what we all seek to achieve with rights and remedies (particularly in the post-scarcity society in which we too often forget we live):

1. we want rights because we are genetically programmed and culturally conditioned to be fair (remember the Capuchin monkeys who, trained to work for "money" staged a sit-down strike when others doing the same work were compensated at five times the rate as their under compensated fellows);
2. rights are meant to guarantee us equal treatment in the distribution of public benefits and resources; and, equal access to public and private accommodations;
3. remedies are meant to restore private and public resources to those who have been deprived of them because some one; group; organization or governmental entity has broken one or more rules by which we have chosen to govern ourselves; and,
4. money is a means to an end, not an end in itself and each of us desires money for the same reasons - control of our own destiny (power; self expression); access to the benefits of the social contract (1. Freedom of speech and expression 2. Freedom of religion 3. Freedom from want 4. Freedom from fear); security against an uncertain future (access to medical services and a mimimal standard of living if we become unable to care for ourselves); meaningful occupation; the opportunity to be of unique service to our fellows; love; and, joy (monetary sub-goals such as a pair of Jimmy Choo shoes are also simply a [misguided] means to achieve these ends).

I have been taken to task for being "touchy-feely" or "new age" or of insufficient value to my "market" because I say these things repeatedly in public.  My "market," I'm told, would rather be right than happy; would rather someone lose so that they can win; and, believe the only thing anyone wants is money.

I don't believe it and I am committed to holding this space as a place-marker for my "people" who are suffering.  Which people are those?  Litigators. 

The challenge of this and every year:  How do we even begin to introduce the concept that we can more easily, efficiently and effectively satisfy the true interests of our fellows-in-the-social-condition than we can satisfy one individual's demand for preeminence over another? 

On our least divisive, most-inclusive and thoroughly secular holiday of Thanksgiving, we can begin to alleviate the suffering caused by zero-sum games with gratitude -- the benefits of which are being studied by a team of researchers at my legal alma mater, U.C. Davis.

Gratitude is the “forgotten factor” in happiness research. We are engaged in a long-term research project designed to create and disseminate a large body of novel scientific data on the nature of gratitude, its causes, and its potential consequences for human health and well-being. Scientists are latecomers to the concept of gratitude. Religions and philosophies have long embraced gratitude as an indispensable manifestation of virtue, and an integral component of health, wholeness, and well-being. Through conducting highly focused, cutting-edge studies on the nature of gratitude, its causes, and its consequences, we hope to shed important scientific light on this important concept. This document is intended to provide a brief, introductory overview of the major findings to date of the research project. For further information, please contact Robert Emmons. This project is supported by a grant from the John Templeton Foundation.

We are engaged in two main lines of inquiry at the present time: (1) developing methods to cultivate gratitude in daily life and assess gratitude’s effect on well-being, and (2) developing a measure to reliably assess individual differences in dispositional gratefulness.

Gratitude Interventions and Psychological and Physical Well-Being

* In an experimental comparison, those who kept gratitude journals on a weekly basis exercised more regularly, reported fewer physical symptoms, felt better about their lives as a whole, and were more optimistic about the upcoming week compared to those who recorded hassles or neutral life events (Emmons & McCullough, 2003).

* A related benefit was observed in the realm of personal goal attainment: Participants who kept gratitude lists were more likely to have made progress toward important personal goals (academic, interpersonal and health-based) over a two-month period compared to subjects in the other experimental conditions.

* A daily gratitude intervention (self-guided exercises) with young adults resulted in higher reported levels of the positive states of alertness, enthusiasm, determination, attentiveness and energy compared to a focus on hassles or a downward social comparison (ways in which participants thought they were better off than others). There was no difference in levels of unpleasant emotions reported in the three groups.

* Participants in the daily gratitude condition were more likely to report having helped someone with a personal problem or having offered emotional support to another, relative to the hassles or social comparison condition.

* In a sample of adults with neuromuscular disease, a 21-day gratitude intervention resulted in greater amounts of high energy positive moods, a greater sense of feeling connected to others, more optimistic ratings of one’s life, and better sleep duration and sleep quality, relative to a control group.

* Children who practice grateful thinking have more positive attitudes toward school and their families (Froh, Sefick, & Emmons, 2008).

There's more at the link!

Happy Thanksgiving.

I taught legal process in the context of mediating litigated cases yesterday at the American Institute of Mediation.  I volunteered my time for the singular opportunity to be a co-presenter with the brilliant Doug Noll (buy and read everything he's written; follow him on Twitter; subscribe to the RSS feed of his blog; and, listen to his podcasts and radio show) and the equally brilliant and most successful "non-lawyer" litigated case mediator in the English-speaking world, Lee Jay Berman of the American Institute of Mediation (follow him; take his Institute's courses; and, listen to whatever he has to say because your negotiation and mediation practice will improve 100% immediately).

Because Doug, Lee Jay and I spent the entire day yesterday talking about legal rights and remedies as well as legal procedure in the context of negotiating the resolution of litigation, I was once again engaged in the soul-searching that always accompanies situations challenging my loyalty to the adversarial/rights-remedies business and stimulates my enthusiasm for the interest-based, consensus building, collaborative, problem solving negotiated resolution business. 

I was looking for something else this morning when I once again stumbled over one of my favorite articles on this issue, Client Counseling, Mediation and Alternative Narratives of Dispute Resolution (Spring 2004) 10 Clinical L. Rev 833 by Law Professor Robert Rubinson.

Before giving you an excerpt that should tempt you to download the article and put it on your nightstand, I want to say this: I work on the razor's edge of my lifetime career-investment in the adversarial system, on the one hand, and my new'ish passion for collaborative, interest-based negotiated resolutions to disputes, on the other.  I spent 25 years as a warrior who rightfully took advantage of my adversary's weaknesses.  I was not a problem solver.  I was engaged in a fight to the death on a pre-determined field with rules in which I believed for causes I knew to be just.  As a result, I approach all alternatives to the adversarial process with a litigator's skepticism, wariness and world-wearyness.  There is no kumbya in me.  It is only my intellectual curiosity that survived the beating my heart took from the world-weary, cynical, grizzled old defense attorneys who taught me how to practice law (as adversaries testing my mettle) in Sacramento thirty years ago.

Sic transit gloria mundi.

The engine that drives litigation's morality tale is that conflict resolution is a contest between parties, one of whom necessarily represents good and the other necessarily represents bad.  As a result, litigation seeks to designate who has committed moral transgressions by breaching legal norms (or, from the perspective of the defendant, who wrongfully accuses others of having done so).

The Story of Mediation subverts these norms by transforming this familiar morality tale into a story of collaboration. This subversion begins through how mediation conceives of conflict itself. Implicit in the Story of Litigation is that conflict represents a breach of the norms of conduct, thereby ripping the social fabric in some way large or small. In contrast, in mediation, conflict is a norm of conduct, a necessary byproduct of humans having distinct experiences and personalities and needs. Conflict is thus not necessarily a disruption of the moral order, and, indeed, can sometimes be productive.

Mediation's normalization of conflict, however, cannot eliminate what appears to be a deep-seated human need to understand experience in terms of struggles and strivings. Humans have great difficulty perceiving events as generated by causes beyond our control - what Amsterdam and Bruner evocatively describe as an inability to see events as "One Damn Thing After Another." We must instead "shape them into strivings and adversities, contests and rewards, vanquishings and setbacks."

The meta-narrative of litigation maps these "strivings" and "vanquishings" onto the struggle of one party against another and enlists the aid of the court to vindicate justice on behalf of the wronged party. In contrast, the meta-narrative of mediation seeks to map these "strivings" and "vanquishings" onto a collaborative struggle to resolve conflict. This narrative casts all participants as players in a process - collaboration - that is focused on reaching the common goal of successfully resolving or transforming a dispute. This story has moral entailments because collaboration is accepted as a social and moral good. Unlike litigation, however, this story does not generate a binary moral universe that divides the good from the bad, but, rather, a universe that values collaborative striving to achieve common ground and resolution.

This story places mediators in a role that is very different from the role played by decision-makers in litigation. Rather than being heroes of moral vindication to whom wronged parties appeal for justice, mediators promote and model collaborative striving to overcome conflict. This plays out in many accepted techniques in mediation. Mediators, for example, often seek "commitment" from participants to the process of mediation, although mediators are careful not to extend this commitment to a commitment to agree. This commitment to process is a proxy for a commitment to collaborate to seek to resolve conflict, thus incrementally moving participants away from contested litigation and towards collaborative problem solving. Similarly, mediators often "reframe" participants' statements in order to emphasize "common ground." This is also an effort to move parties away from a morally charged contest and into collaboration. Finally, mediators encourage and model collaboration through a positive message of optimism and progress towards resolution, even when (or, perhaps, especially when) impasse appears likely.

Moreover, mediation approaches the narrative movement from Efforts to Restoration of Steady State in a very different way than litigation. Whether the Steady State is Restored or Transformed constitutes what I have earlier characterized as a "fork in the road" in the Austere Definition of Narrative. The very language through which litigants seek redress of grievances - to "be made whole," "to pay your debt society" (with its implication that payment of the debt would return the ledger to balance), even the word "remedy" - implies Restoration. In contrast, mediation tends to reject Restoration as a state to which the parties (and society as whole) should or even can return. Rather, mediation seeks Transformation on the part of all disputants so that conflict is resolved.  It does so by embracing the notion that perceptions of the world (including perceptions of the actions of others) are unstable, thus enabling parties to appreciate alternative perspectives as a way to promote resolution of conflict. Mediation, therefore, does embody a plot that adheres to the narrative movement described by the Austere Definition, albeit in ways that are utterly alien to the morality tale of the story of litigation. The story of mediation can be characterized as follows:

Steady State: Whatever Each Party Views as Pre-Conflict

Trouble: Whatever Each Party Views as Constituting Conflict

Efforts: Collaborative Striving To Overcome Conflict as Modeled and Promoted by Mediator

Transformation of Steady State: A New Relationship Among Parties

Coda: Moving On

                           *                          *                        *

Continue Reading

I'd like to challenge all my favorite dispute resolution bloggers to find and post their favorite Thanksgiving Family Conflict Scenes in the movies.  Above - an era within the memory of some of us who were too young for the "key parties" but too old for the behavior depicted here.

Still, I DO remember the times, as well as the terribly unfortunate clothing and hair-styles.

I kicked off a recent Thanksgiving holiday season by having an argument with my friend and neighbor the rocket scientist about extraordinary rendition and the effect of immigrant workers on the economy. 

I knew I'd lost all sense of perspective around midnight as I continued searching for and emailing Tony articles that proved me right, while Mr. Thrifty snored softly beside me, intermittently awakening to say "I thought you said you were going to go to sleep?"

Embarrassing, but true.

A little more than a week from today, tens of millions of people will be sitting down to Thanksgiving dinner with friends and family they haven't discussed politics, sex or religion with for at least one full year.     

For those of you who find you just can't help yourself, I provide the following resources. 

First, I give you Ben Stein's Top Ten Tips for Having a Business Conversation -- appropriately entitled "How Not to Ruin Your Life." They will serve you at the Thanksgiving table every bit as well as they will save you from self-destruction at your next firm retreat.  

If you simply cannot avoid a political conversation this Thanksgiving, do yourself a favor by taking a brief look at the Public Conversations Project's Eleven Ideas for Making a Hard Conversation Work before the relatives arrive. 

Finally, as much for myself as my for readers, I give you my own personal top six tips for Thanksgiving Day conversation.    

1.  Before diving in to a spirited dialogue about the use of fetuses for stem cell research with your second helping of mashed potatoes, ask yourself whether you are emotionally ready to resist the strong pull to hit your conversational partner over the head with a turkey leg.  If not, open your mouth only to say something kind or grateful or to shove another helping of stuffing into it.  

2.    If you just can't help yourself from responding to Aunt Gertrude's (somewhat drunken) assertion that "torture is too good for terrorists," any of the following will do.

Can I pour you another drink?

Uuh huh, uh huh, uh huh

go on

tell me more

how do you feel about that?

I couldn't have said it better myself; do let me call you a taxi.

3.  For the academically minded,

I have a couple of dozen articles on that issue.  If you'll give me your email address, I'll pass them along to you.

4.  For the cousin from Alabama, 

I'd love to get Rush Limbaugh's point of view on that -- please do drop See I Told You So  by the house before you leave for Montgomery tomorrow.

5.  Avoid stereotyping people from Montgomery, Alabama.

6.  As the Public Conversations Project advises,

Thinking before speaking is a good idea.

Have a great Thanksgiving and remember --Ben Franklin thought the National Bird should be a turkey! 

Think twice. 

Then think again and offer Aunt Gertrude another piece of pumpkin pie.

Click here for more Cartoon tips from Slowpoke thanks to David Giacalone of f/k/a.

While reading this opinion (or simply this post) think about Carrie Prejean's accusation that Larry King's question to her -- "why did you settle" --was "completely inappropriate" because (presumably) her thought process was protected by mediation confidentiality. 

In yet another 2-1 opinion on mediation confidentiality -- Cassel v. Superior Court -- California's Second District Court of Appeal grapples with hard facts that made bad law. 

In conversations between litigation counsel and its client, Cassel, held on the days immediately preceding mediation as well as on the day of the mediation itself, Cassel allegedly told his attorney - Wasserman - that he would be willing to accept something north of $1.25 million to settle the case.   On the day of the mediation, Cassel signed a settlement agreement providing for payment of $1.25 million.  Cassel thereafter sued his attorney for legal malpractice, alleging that Wasserman "forced him to sign the settlement agreement for $1.25 million, rather than the higher amount he had told Wasserman . . . was acceptable." (if you're interested in the 411 on mediation advocacy malpractice, see my recent post Yet Another Path to Attorney Malpractice in Mediation Proceedings:  Coerce Your Own Client)

Before trial of the malpractice action, Wasserman filed a motion in limine asking the trial court to preclude the introduction into evidence of any testimony concerning Cassel's [otherwise attorney-client privileged] communications about the sum he was willing to accept in settlement.  The trial court granted the motion, holding that these communications - undeniably conducted in preparation for the mediation - were protected by mediation confidentiality under both the plain language of Evidence Code section 1119 and the Supreme Court decisions interpreting it.

The majority on the appellate panel disagreed for the following reasons:

1.  Communications between a party to mediation and the attorney representing him in that mediation are not part of the mediation "process" if they are not communicated to either the mediator or the opposing party because California law defines mediation as a procedure in which "a neutral person . . . facilitate[s] communication between the disputants to assist them in reaching a mutually acceptable agreement.”
2. "For mediation purposes, a client and his attorney operate as a single participant."
3. Once the court collapses the attorney and client into a single "participant," there are no mediation communications among participants to protect, or, as the Court more formally stated:  they were not communications between 'disputants' and the 'mediator,' as required to come within the definition of a 'mediation' or 'mediation consultation' and, therefore, to qualify for protection under mediation confidentiality."
4. "the fact that Cassel or his attorneys may have discussed a specific dollar amount for settlement" did not necessarily make it a communication that, in the Wimsatt Court's words "are materially related to, and foster, the mediation," because "some of the communications were more related to the civil litigation process as a whole rather than to the mediation."
5. the most principled (but not necessarily correct) reason for the Court's holding: the attorney and its client were "not within the class of persons which mediation confidentiality was intended to protect from each other—the “disputants,” i.e., the litigants—in order to encourage candor in the mediation process." 
6. finally, the Court's holding:

With start of trial within two weeks, the meetings and accompanying communications between Cassel and Wasserman . . . were for trial strategy preparation, not just for mediation . . .   The crux of the communications was that Cassel wanted his Wasserman Comden attorneys to honor his wishes, but they resisted to the extent, according to Cassel, that they breached their duties to him as his counsel. Neither Cassel nor Wasserman Comden assert that the communications contained information which the opposing party (or its representatives) or the mediator provided during mediation or otherwise contained any information of anything said or done or any admission by a party made in the course of the mediation. For the foregoing reasons, we conclude that the communications solely between Cassel as a client and his lawyer, Wasserman Comden, do not constitute oral and written communications made “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation” protected by section 1119, subdivisions (a) and (b) or communications by “participants” protected by section 1119, subdivision (c).

Huh??????  Because separate caucus mediation communications between attorney and client about the sum the client is willing to settle the case for are not communicated to the mediator or the opposing party during the mediation (especially if the attorney fails to communicate the client's expressed wishes?) they cannot be considered "communications made 'for the purpose of . . . a mediation consultation"??

This is perhaps the most convoluted reasoning of any appellate opinion in memory.  I'd prefer a decision that just came right out and said something along the lines of - sure the communication falls squarely within the language of the confidentiality statute, but we don't think it ought to apply where a client is suing his attorney for duress in the course of a mediation proceeding.  The Court is justifiably worried about saying that because the Supreme Court has repeatedly cautioned the lower courts not to make court-crafted exceptions to mediation confidentiality.  (See Simmons v. Ghaderi) 

Intellectual dishonesty never got any court anywhere near the goal of justice.  This might just have been the case that made the Supreme Court relent and say, "o.k., in this extremely narrow circumstance, we'll permit an exception to the statutory provision."  If the Supreme Court refused to budge, this case just might have persuaded the California legislature to make a few necessary exceptions to mediation confidentiality.  Now, unless the appellate court reconsiders and follows the wisdom of the dissenter, Californians won't be given the opportunity the common law creates to "course correct" the law-making process to meet the challenges of unintended legislative consequences.

As the dissent correctly observes:

In the end, the majority‟s analysis of section 1119, subdivision (a), seems to be founded primarily on its concern that protecting private communications between a client and his or her lawyer under the rubric of mediation confidentiality may shield unscrupulous lawyers from well-founded malpractice actions without furthering the fundamental policies favoring mediation. That may well be true; but, respectfully, it is not our role to make that determination. Rather, it is for the Legislature to balance competing public policies and to create an exception to the statutory scheme governing mediation confidentiality where it finds it appropriate to do so.

For those more interested in Prejean than in mediation confidentiality, here's an analysis of the Prejean/King dust-up with the Prejean money quote:  "I don't see anywhere in the Bible where it says you shouldn't get breast implants."

And if you think mediation can't be as dramatic as courtroom "gotcha" moments, here's the proof that anything at all can and does happen in those "confidential" rooms:

It was reported by TMZ.com, who broke the story of the lawyers' gambit, that the lawsuit was settled within seconds of the sex tape being shown to Prejean. Just to make the episode even more embarrassing for the 22-year-old, her mother was also attending the meeting at which the tape was shown.

Description of the X-rated Perry Mason moment here.

Do remember that California law only precludes parties from:  (a) introducing confidential mediation communications into evidence; and, (b)  obtaining evidence of those communications in discovery.  Although sub-section (c) of section 1119 broadly provides that  mediation communications "shall remain confidential," no one to date has suggested that disclosure of those communications gives rise to a cause of action in favor of any party opposing their disclosure to the general public.   

After the jump, my colleague on the IP ADR Blog Mike Young of Alston Bird (Mike's Labor Law Blog here) gives the Cassel opinion a triple huh?????  Nice work, Mike!

Continue Reading

Thanks to google translate (daily destroying God's work on the Tower of Babel) I can bring you this mediation war story (loosely and imperfectly translated from a German mediation blog that I'm sorry I've lost the link to).

Before the trial of a wrongful termination case, the parties meet to mediate.  In separate caucus, the employee tells the mediator that he is working for a competitor.  The employee shares his concern that the revelation of his new employment could make him liable to his former employer for breach of the employee's non-compete obligation.  In a separate caucus with the CEO, the chief executive reveals that the  true reason for his failure to provide the contractually required advance warning of discharge was his fear that the discharged employee would learn of the CEO's on-going affair with his secretary, threatening the destruction of that valued relationship.  Back in joint session, the mediator adds "non-compete waiver" and "immediate departure" to the brainstorming white board.  The litigation promptly settles.

These are the party "interests" we're always talking about  -- one -- the affair -- that is strictly "irrelevant" to the legal proceeding and one whose revelation (working for a competitor) could result in a counter-claim for breach of contract and fiduciary duty against the employee and a cross-action against his new employer for tortious interference with contract and prospective economic advantage, as well as potential causes of action against both of them for the theft of trade secrets. 

If the mediator urges the CEO to exchange a waiver of the non-compete clause for the continued secrecy of his affair, has the mediator crossed the line from neutrality to advocacy?  If and when the company learns the former employee was working for its competitor at the time the case was settled, will it attempt to rescind that agreement on the ground that it was procured by fraud (the concealment of facts material to the waiver)?  And what are the duties of the company-attorney?  Doesn't the affair create a conflict of interest between the company and the CEO?  Does the attorney have the duty to inform the Board of Directors that its Chief Executive is waiving a valuable right in order to keep a relationship that is surely toxic to the conduct of the company's business a secret?

And what of the reputation of the mediation process itself?  Is there something unsavory going on here - something that is both "outside the law" and outside the principled reason communications in mediation proceedings are protected by the law as confidential, i.e., to encourage party openness rather than to permit party deception?

These questions should interest everyone involved in the mediation process and should trouble the sleep of mediators everywhere.  Because our process is conducted in secret, it is prone to abuse unless we - its practitioners - guard against deception and continually ask ourselves whether our interventions are in keeping with our obligation to be impartial.

Here are questions that we should ask ourselves whenever something in the back of our mind or a corner of our heart is telling us we might be doing more harm than good.

• If I were permitted to, could I share my decision with everyone?
• Is it legal?
• How does the decision make me feel about myself?
• Who does this decision negatively impact?
• Why am I making this particular decision?
• Have I clearly defined the problem requiring a decision to be sure I'm addressing the correct issue?
• Does this decision serve the company or me personally?
• Is the decision based upon facts consistent with fair play?
• Is the decision consistent with organizational values and culture or my own personal system of ethics?
• Is the decision fair and balanced to those it impacts?

from Ethics:  the Conscience of Decision Making

Community mediation in Iraq?  You betcha.

Some successes are small. He described one mediation between two families: one household with young girls built a privacy wall that blocked sunlight from reaching the neighbor’s house. They had argued for months, and were close to blows. A mediator helped them cool down, and get away from their hardened positions. They came up with a solution: The family that built the wall paid for a skylight for the neighboring house.

See Iraq latest crucible for Harvard mediation - negotiations solve tribal disputes at the Boston Globe.

As Ken Cloke mentions in the slide show posted yesterday, these dispute resolution mechanisms are scaleable - the same process works on neighbor disputes as it does on disputes among nations.

(cartoon generously provided by the brilliant Charles Fincher at LawComix)

O.K., I'm MUCH TOO CLOSE to this case but nevertheless intrigued by the following comments in the Recorder's recent article, Judge Puts on the Brakes While Heller Sides Mediate.

Judge Dennis Montali has canceled the first hearing on a liquidation plan in the Heller bankruptcy, pending the outcome of mediation talks between former shareholders and creditors.

Heller's creditors and at least four groups of shareholders appeared for their first mediation conference on Friday before Judge Randall Newsome for the U.S. Bankruptcy Court for the Northern District of California.

J. Scott Bovitz at Bovitz & Spitzer, a mediator in the bankruptcy mediation program in the Central District of California, said Montali is essentially telling everyone to stand down and cease fire.

"The man can read the tea leaves as good as any bankruptcy judge I know," Bovitz said.

"I speculate that Judge Newsome has told Montali there is some potential common ground in this case and we need more time to sort it out," Bovitz said. "I don't anticipate a long delay, because Newsome is not a patient fellow. That makes him an excellent mediator." 

Thanks to Diane Levin of The Mediation Channel for passing along Six things I'd Change about Mediation from the U.K.'s Mediator Magazine.

At present, if the total number of civil mediations were shared out evenly among accredited mediators, on average, mediators would manage fewer than one mediation a year.

Astonishingly, there are now half as many mediators as there are independent barristers in the UK. Even so, training organisations proliferate - and are encouraged to do so - and more mediators are accredited each week.

Let's be clear: this is a scandal. 

If 3% of trained and accredited mediators get any work as a mediator, I'd be surprised. The excuse that training mediators is a good way to spread the word about mediation, to my mind, stinks. Ripping off everyone who shows an interest in mediation - it hardly needs saying - is no way to grow the market. This brings me to the third thing I'd change: we must accept that there is no connection between training mediators in greater numbers and the throughput of cases in greater numbers.

As a post-script to that point, I should add that some organisations have already changed tack. Faced with the moral dilemma of taking money and delivering absolutely nothing, or ceasing to train until demand has risen to merit it, some organisations have a new wheeze. This is mediation as - and I quote - "a life skill." Life skills, in my view, belong to the fashionable genre of self-help and bring mediation into the orbit of New Age spirituality, bioelectric shields, energy cocoons and magic crystals. I find the life skill argument disingenuous and mildly embarrassing. This is a direction from which mediation should turn sharply away.

 

Read entire article.  Rinse.  Repeat.  Comment here.