Sigmund Freud first described transference as the unconscious redirection of feelings from one person to another. By the time most people arrive at a mediation, they have been talking past each other for a while and they are sure that the other side is willfully and wrongly ignoring the rightness of their positions. This entry was posted in ADR, CONFLICT RESOLUTION, Divorce Mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, mediator, NEGOTIATION, Uncategorized and tagged active listening, ADR, alternatives to litigation, bargaining against yourself, bargaining strategies, BRAIN SCIENCE, collaborative mediation, conflict resolution, conflict resolution training, creative solutions in mediation, divorce mediation, empathy, explain mediation, family mediation, mediation, mediation training, mediator, mediator training, negotiating, TRAINING MEDIATORS, WORKPLACE INVESTIGATION on April 22, 2016 by Roger Benson.
Impasse, a predicament offering no obvious escape, is imbedded in the vocabulary of mediation and conflict resolution and understood by many as the death of hope. When mediation ends in an impasse, it is for a reason (or reasons.) Each of the parties should make a list of the issues that they think have been resolved and another list of the issues that have eluded resolution. This entry was posted in ADR, CONFLICT RESOLUTION, Divorce Mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, mediator, NEGOTIATION and tagged ADR, alternatives to litigation, bargaining strategies, collaborative mediation, conflict resolution, conflict resolution training, creative solutions in mediation, divorce mediation, divorce settlement agreements, explain mediation, FAMILY BUSINESS WORKPLACE MEDIATION, mediation, mediation training, mediator, negotiating, TRAINING MEDIATORS on October 20, 2015 by Roger Benson.
This is the 70th anniversary of the destruction of Hiroshima and Nagasaki and the accompanying realization that we are capable of destroying ourselves. Much of the conversation about the recent agreement with Iran concerning its nuclear program revolves around “the lessons of history” and what they tell us about the future. Kierkegaard famously said, “life can only be understood backwards but it must be lived forwards.” I think that that notion is a fundamental tenant of negotiating the peaceful resolution of all human conflict.
This entry was posted in ADR, CONFLICT RESOLUTION, Divorce Mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, mediator, NEGOTIATION, Neutral workplace investigation, Workplace investigation and tagged ADR, alternatives to litigation, bargaining strategies, conflict resolution, conflict resolution training, creative solutions in mediation, mediation, mediation training, mediator, MEDIATORS, negotiating, negotiation, TRAINING MEDIATORS on August 9, 2015 by Roger Benson. Change is axiomatic; it is happening all the time everywhere in the universe and even in places that exist only in our imaginations.
There is important research going on that aims to correlate changes in our conscious mind to physical changes in our brains. Conflict resolution, in contrast, still feels faith based; we are urged to believe it because teachers or pioneers in modern conflict resolution practice or theory tell us to.
I have come to think that mediators are actually therapists but without the training, without the burden of having to use “good” science and without a clear understanding of what it means to be “unconditionally helpful.” The users of mediation expect that a mediator is going to say and do things that quickly cause people to change their behavior in ways that settle disputes. This entry was posted in ADR, CONFLICT RESOLUTION, Divorce Mediation, EEOC investigation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, mediator, NEGOTIATION, Neutral workplace investigation, neutral workplace investigator, Workplace investigation, workplace investigator and tagged ADR, alternatives to litigation, bargaining strategies, BRAIN SCIENCE, collaborative mediation, conflict resolution training, creative solutions in mediation, divorce mediation, explain mediation, FAMILY BUSINESS WORKPLACE MEDIATION, family mediation, FORECLOSURE MEDIATOR, TRAINING MEDIATORS, WORKPLACE INVESTIGATION on July 17, 2015 by Roger Benson. Daniel Kahneman’s book, Thinking, Fast and Slow, was, for me, a treasure trove of ideas about mediating.  The central theme of the work is what he refers to as “cognitive illusions,” a false belief in the reliability of our own judgment that we intuitively accept as true. For an excellent review of Thinking, Fast and Slow, see Freeman Dyson’s article in The New York Review of Books, December 22, 2011. This entry was posted in ADR, alimony, CONFLICT RESOLUTION, Divorce Mediation, EEOC investigation, evaluative mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, mediator, NEGOTIATION, Neutral workplace investigation, neutral workplace investigator, role plays, Uncategorized, Workplace investigation, workplace investigator and tagged active listening, ADR, alternatives to litigation, bargaining strategies, BRAIN SCIENCE, collaborative mediation, conflict resolution, creative solutions in mediation, custody mediation, divorce mediation, empathetic, explain mediation, FAMILY BUSINESS WORKPLACE MEDIATION, family mediation, foreclosure mediation, FORECLOSURE MEDIATOR, mediation training, mediator, mediator training, MEDIATORS, negotiating, negotiation, NEUTRAL MEDIATOR, neutrality, student mediators, TRAINING MEDIATORS, WORKPLACE INVESTIGATION on June 16, 2015 by Roger Benson. Reason and Emotion provided one of the first reference points for Pete Docter’s own effort to portray the workings of the human mind in Inside Out. The longer I do this work, the more I am convinced that there is far more to it than good intentions and intuition. This entry was posted in ADR, alimony, CONFLICT RESOLUTION, Divorce Mediation, EEOC investigation, evaluative mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, mediator, NEGOTIATION, Neutral workplace investigation, neutral workplace investigator, role plays, Workplace investigation, workplace investigator and tagged ADR, alternatives to litigation, bargaining strategies, BRAIN SCIENCE, collaborative mediation, conflict resolution training, creative solutions in mediation, custody mediation, divorce, divorce mediation, divorce settlement agreements, empathetic, empathy, explain mediation, FAMILY BUSINESS WORKPLACE MEDIATION, family mediation, foreclosure mediation, FORECLOSURE MEDIATOR, mediation, mediator training, negotiating, negotiation, NEUROSCIENCE, pro se divorce, TRAINING MEDIATORS, WORKPLACE INVESTIGATION on May 31, 2015 by Roger Benson. Two words that deserve some discussion are fear and loathing, but not from the book, Fear and Loathing in Las Vegas, by Hunter S. Fear and loathing are strong words and are not very often appropriate to describe how I feel about people.  But it happens.
Like fear, one person loathing another person is a commonplace fact in the business of resolving conflict, although it is often obscured by rituals of manners and artifice. Since I am convinced that I am not alone in dealing with fear and loathing, I thought it a good idea to admit it and begin a conversation about what to do with that bit of truthiness. This entry was posted in ADR, attachment trap, CONFLICT RESOLUTION, Divorce Mediation, EEOC investigation, evaluative mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, mediator, NEGOTIATION, Neutral workplace investigation, neutral workplace investigator, Uncategorized, Workplace investigation, workplace investigator and tagged ADR, alimony, alternatives to litigation, bargaining against yourself, bargaining strategies, BRAIN SCIENCE, collaborative mediation, conflict resolution, conflict resolution training, creative solutions in mediation, curriculum, divorce mediation, divorce settlement agreements, FAMILY BUSINESS WORKPLACE MEDIATION, family mediation, foreclosure mediation, mediation, mediator training, negotiating, negotiation, NEUROSCIENCE, TRAINING MEDIATORS, truthiness, WORKPLACE INVESTIGATION on May 17, 2015 by Roger Benson. As a practical matter, I am not urging caucus conversations about Buber’s I-though or urging a resort to metaphysics in resolving conflicts.  This is for me, an admirer of Spinoza, simply another approach to engaging feuding parties in conversation about how they feel before talking to them about what they think.
This entry was posted in ADR, CONFLICT RESOLUTION, Divorce Mediation, EEOC investigation, evaluative mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, mediator, NEGOTIATION, Neutral workplace investigation, neutral workplace investigator, Uncategorized, Workplace investigation, workplace investigator and tagged ADR, alternatives to litigation, bargaining strategies, conflict resolution, conflict resolution training, creative solutions in mediation, divorce mediation, eeoc investigation, explain mediation, FAMILY BUSINESS WORKPLACE MEDIATION, mediation, mediation training, mediator, mediator training, student mediators, TRAINING MEDIATORS, WORKPLACE INVESTIGATION, WORKPLACE INVESTIGATOR on May 10, 2015 by Roger Benson.
In South Asia monkeys are sometimes trapped by placing food in a secured vessel with a small opening. Long Island Divorce Mediation Center offers customized payment packages tailored to the individual needs of our clients. Long Island Divorce Mediation Center has offices conveniently located in Westhampton Beach and Melville, New York. For more information about how Long Island Divorce Mediation Center can help you resolve your family law issues including successfully mediating a divorce settlement agreement please contact us for a free consultation. Attorney Bauer is a Fellow in the American College of Trial Lawyers, AV-rated in Martindale-Hubbell, and a Member in the National Academy of Distinguished Neutrals. Attorney Bauer has appeared before the United States Supreme Court, United States Court of Appeals for the First Circuit, United States District Court for the District of New Hampshire, New Hampshire Supreme Court, all New Hampshire trial courts, and New Hampshire administrative agencies. In his keynote address at the 2009 conference of the Association for Conflict Resolution, Wallace Warfield discussed the difficulty of attempting to certify mediators when the role itself has become a moving target. Numerous models of practice have evolved, each redefining the practice and emphasizing different skill sets. Mediators in the public policy field have adapted the practice not only to new thinking within the profession but also to new demands from conveners, stakeholders and the wider public. While basic elements of the impartial mediator role persist through all these adaptations, the field has also embraced influences from many other sources.
Many mediators may find such changes and influences completely irrelevant to their work, and that’s to be expected.
One such effort of the 1990’s came out of a project jointly sponsored by the Hewlett Foundation and the National Institute for Dispute Resolution.
Impartiality – Effectively maintaining a neutral stance between the parties and avoiding undisclosed conflicts of interest or bias.
Generating options – Pursuit of collaborative solutions and generation of ideas and proposals consistent with case facts and workable for opposing parties. Managing the interaction – Effectiveness in developing strategy, managing the process, and coping with conflicts between clients and representatives. Substantive knowledge – Adequate competence in the issues and type of dispute to facilitate communication, help parties develop options, and alert parties to relevant legal information.
This list could be expanded to include skills in communication, cultural diversity, negotiation, process skills and many others.


As Bernard Mayer points out in Staying with Conflict, people often need impartial help to engage with each other constructively over the long term in situations of conflict that cannot be resolved with finality through a single agreement. In recent years, this need has pushed far beyond dispute resolution into the field of collaborative governance. Under the policies of the Obama Administration, numerous constituencies around the country as well as internal activists within government agencies have been pushing to make the work of federal agencies more transparent to the public. These are long-term trends that will pull public policy mediators and facilitators into new forms of practice that we can’t now predict.
In the face of so much dynamism, general certification on the basis of a narrow conflict resolution model can only serve to limit the imagination of practitioners.
Certification programs to meet these more limited needs are already in existence and serve an important need for such specialized areas of practice as court-related ADR, farm debt and foreclosure, mortgage finance or consumer issues. Requirements like these make sense, but trying to certify all practitioners under a universal set of qualifications would be counterproductive in the public policy field.
About Cross CollaborateCross Collaborate is a resource to help build capacity in public policy collaboration. Helpful Blogs & Other WebsitesPlease visit the links page, Helpful Sites for a list of excellent blogs and reference sites.
They expect, no, they demand, that the mediator make the other side see the light using their most powerful arguments. The case settles at mediation or it doesn’t and, if it doesn’t, mediation is said to have failed, to have ended in an impasse.
All too often, the parties wind up stuck, frustrated, out of time and angry because within the time allotted critical questions cannot be answered and essential information is missing.
The second list is often surprisingly short and can form the framework for a plan to provide the relatively small amount of additional information typically necessary to push the negotiations over the finish line. But the past is a towering obstacle for us to overcome before we can even consider today and look ahead to the future. Humans are constantly changing, from the neuronal level, to the way we feel, to what we think and how we behave.
We should, however, have a way to challenge ideas, to come up with new ideas, to test them. When couples go to a psychologist to save or end their marriage, they expect the therapist to point out to them behaviors that stand in the way of a peaceful (enough) outcome and strategies to achieve their goals. The understanding has to be based on a reliable matrix for arranging the facts and the reasoning so that the working hypothesis actually applies to the conflict at hand. However, his explanations of how we create the various illusions are so plausible and compelling that we can use them in the dicey business of pointing out to someone that their argument is irrational.  Kahneman’s ideas are hopeful and their power does not derive from making someone wrong or bad. Those of us who help others resolve conflict are not immune from the fear, it is in the air.  In fact, we are often the intended object of the behavior designed to provoke fear. Loathsome behavior also goes on in many negotiations, most often directed across the table but, at times, aimed at the person at the head of the table. When a monkey slips his hand inside to grab the food, it soon discovers that its clenched fist is too large to pull out through the hole.
281-762-6868 Valikonis Mediation Center 210 South Third Street Richmond, Texas 77469 Ph. At Long Island Mediation Center, a couple works with an experienced attorney mediator to reach a written agreement resolving their family law issues without ever needing go to Court and pay an attorney to represent them in a court appearance. Our goal is to get our client’s through the mediation process as quickly and cost effectively as possible. He has mediated over 2,000 cases, presided over 3,000 mediation sessions, and handled several dozen large arbitrations. In his litigation practice, Attorney Bauer concentrates in the areas of civil rights litigation, employment litigation, and other complex civil litigation in federal and state courts and administrative agencies.
He was an NCAA wrestler in college, and now enjoys more leisurely activities such as gardening, travel, and LSU football.
University of Baltimore School of Law (Cum Laude) 1979 - Baltimore, MDNortheastern University 1976 (Post-Graduate Work) - Boston, MAB.A. Pinning down a set of qualifications and certifying competence based on a single definition of practice could have the effect of stifling innovation in a dynamic field. There are evaluative and facilitative styles of approaching dispute settlement, problem-solving and transformative models, as well as methods for dealing with identity-based and cross-cultural conflict, to mention just a few. From an initial focus on mediation of isolated disputes, practitioners moved to policy formation, rule-making, planning and the facilitation of collaborative approaches to complicated regional, even global problems.
Public involvement, participatory planning, organizational development, change management, among many others, have provided techniques for reaching agreement and finding common direction among stakeholders on larger scales through innovative group processes, like Open Space Technology, Future Search and Appreciative Inquiry. The world of conflict and agreement-seeking looks very different to a mediator handling hundreds of court-referred cases a year, each demanding resolution in a single session, and a public policy mediator who might be managing a handful of projects, each involving dozens of parties, extensive public participation and lasting six months to a couple of years.
It has produced several attempts to define the essential skills of a mediator and a lot of debate over methods for evaluating and testing those skills. Known as the Test Design Project, it produced Performance-Based Assessment: A Methodology for Use in Selecting, Training and Evaluating Mediators.
But it represents an effort to find the common denominator that can apply in all settings where conflict resolution is facilitated by a mediator.
That might seem obvious enough for a field that’s been identified as “conflict resolution” or “alternative dispute resolution.” In fact, though, as often discussed in this blog, the public policy field has more diverse needs for the services of mediators and facilitators of consensus building processes. There may not be any dispute at all but rather a complex problem or condition that requires collaboration for management over time. Public agencies are recognizing more and more that delivery of services and other public functions require collaborative networks of public, private and non-profit groups. Participatory and collaborative efforts are important components of this Open Government Initiative, and opportunities should expand greatly for practitioners skilled in consensus building.
It could also quickly become irrelevant as the demands of evolving needs force new adaptations. The needs of many other fields for practitioners with specialized knowledge are met by competitive review of experience and track record without resort to standardized certification. And if the mediator reports that the other side still refuses to surrender, transference sometimes happens and the mediator is suddenly seen as an ally of the enemy. That’s not to say that deadlines and limitations are not valuable tools to force people to make an honest effort to reach an agreement.


There is also the matter of emotions, which animate the way people behave and which take time to change. The moment after our political and military leaders and the rest of the world saw the consequences of what had happened, everything changed. And in the present circumstance these references amount to not much more than what the Romans called haruspex, auguring the entrails of birds believing that they (the entrails) would reveal the future.
That is why every mediation eventually arrivers at, “now what?” People arrive at the bargaining table dragging behind them years, decades, centuries and millennia of insults and injuries, betrayal, oppression, wars, with their attendant cruelties and tragedies, and the list goes on and on. Conflict begins with a “selfie,” a story we create to explain why we are right and the other guy is not.
They expect that the psychologist’s suggestions for change come from an accurate, science-based assessment of the problematic behaviors that helped create the controversy.
But perhaps Inside Out will provide some visual metaphors that will help us understand our own emotions, empathize with others and better ways to think about and resolve conflict.
We are also asked to convey bargaining gambits deliberately designed to provoke fear in others.
Here, too, how we deal with our reaction to loathsome behavior is rooted in acknowledging that the behavior is repulsive or disgusting to us, whether we are observers or objects.
The monkey will remain stuck clinging to the food until someone comes along and captures it. Additionally, your attorney mediator can draft and file in the appropriate court all of the documents necessary fora court to issue a Judgment of Divorce.
Third party real estate appraisals, pension evaluations, business evaluations can be obtained by our client’s should they determine they are necessary to resolve their matrimonial issues within the mediation process. Mediation and conflict resolution practitioners have also added new dimensions of understanding to these fields.
Each of these efforts has produced interesting lists identifying the most important knowledge, skills and abilities required for effectiveness in this demanding field. The report proposed general measures of competence for mediators as well as a methodology for performance-based assessments as predictors of successful practice. Its success in doing so, however, only underscores the limiting nature of a certification process intended to cover the entire field. Those needs have reshaped public policy practice to such an extent that the resolution of disputes is no longer the only goal.
This is especially true of the so-called wicked problems that likely transcend the authority of any single agency and can only be dealt with by collaborative efforts among multiple institutions, often combining the public, private and NGO sectors. Donald Kettl and other observers have been dubbed this the era of networked governance, and professional expertise is often needed to help produce agreements for collaborative action. It’s true, of course, that a core of skills in working with groups to resolve differences and build consensus will always be essential. States have generally chosen not to create general certification requirements but instead have authorized rosters of mediators who meet certain training criteria. When they see mistaken thinking, they are alert to the psychology that explains our journey off the road and into the ditch of unreason. However, such deadlines and limitations would have greater efficacy if they were agreed to after everyone (including the mediator) understood better the nature of the controversy and the obstacles to a negotiated agreement. Is there a more efficient and economical way to deal with a claim that cannot be settled at an initial mediation than to declare an impasse and return it to the court’s docket?
People frequently react to all of this by throwing in the towel, abandoning constructive problem solving and reverting to fighting.
Julius Caesar talked about auguring in his Commentaries (I took 4 years of high school Latin and that is about all I remember) and Shakespeare makes reference to auguring in his play Julius Caesar.
Yet, I think it is universally understood that those memories and the emotions they provoke cannot be ignored or dismissed or treated as if they did not exist. And we have negotiated with some extraordinarily difficult, dangerous and even evil individuals, many of who would not fare well with a deck of Rorschach cards. The couple also expects the therapist to be impartial; that is, not an advocate for one person or the other and focused on their goals and objectives. The science is not there yet that might create a “how to” manual for doing the work, but those of us involved in helping people resolve conflict must be prepared for (and be excited about?) the science that is coming our way.
386 (1987), which is the seminal case on police "release-dismissal" practices in the United States. There is a rich exchange going on among them that will continue to serve as a source of innovation in the field. They also have the skills and patience to help people puzzle their way through difficult problems without resorting to shame and blame or succumbing to the temptation to substitute their values and interests for those of the people they are there to help.
They fail to make use of what their hard work has produced and leave without creating an agenda for dealing with the issues that kept them from a settlement, including a commitment to meet again after the passage of a reasonable period of time, to allow for calm reflection, and have another go at it.
And yet, in spite of that fact, we have managed to keep in mind Fisher & Urey’s wonderful construct, the BATNA**, and kept alive the possibility of a more peaceful world. They also expect more than a “one trick pony” approach that relies on a single one size fits all therapeutic method. At some point, we may have a basis on which to evaluate what we do and know what works and what does not. The needs for quality control of specific forms of mediation can be met within the context of programs requiring just those skills. But until they are acknowledged and dealt with, there is no possibility of breaking the grip of the past and constructing a path forward. When two people disagree, change has to be intentional and directed so that the change makes enough sense to the parties that they are willing and able to alter their behavior. We teach children to understand how water boils but we have little science to offer when it comes to understanding why siblings fight with each other, why their parents get divorced or how they should deal with a difficult boss when they grow up.



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