Interviews with leaders and entrepreneurs who have made significant contributions to the alternative dispute resolution field

Thursday, March 09, 2006

A MEDIATOR'S GUIDE TO SCOTLAND: A conversation with Ewan Malcolm, Director of the Scottish Mediation Network

An interview with Ewan Malcolm of the Scottish Mediation NetworkHi, Ewan, and welcome to Online Guide to Mediation. It's a pleasure to have you here today. Please introduce yourself to my readers--tell us what you do in the ADR field and how it was you got started.

Hello everyone – my name is Ewan Malcolm and I am the Director of the Scottish Mediation Network (SMN), based in Edinburgh, the capital city of Scotland, in the United Kingdom. The purpose of the SMN (which is a members non-profit organisation) is to promote the appropriate use of mediation and it aims to embed mediation in to the way that disputes and conflict of all kinds are handled in Scotland.

Before I was employed to set up the full time office of SMN in 2002, for 17 years I was a lawyer in general practice. I was a partner running one of eight offices of a medium sized litigation and private client firm.

My first training as a mediator was in 1994 when I took the place of one of my partners who could not attend a commercial mediation course. I realised that I had been adopting mediative approaches intuitively. The following year, I trained as a family mediator, as about half of my work at that time was in separation and divorce. Since then I have been freelancing as both a commercial and family mediator, dealing mostly with complicated and high value disputes. In 1999 I trained as community mediator and have since then been a volunteer with Edinburgh Community Mediation Service. I also work as mediation and negotiation skills trainer.

SMN does not offer mediation or training services as we direct enquiries to our members, so I find the work I do as a practitioner in my own time very valuable background for my role as the SMN Director.

My readers come from around the globe, although many of them (myself included) are based in the U.S. All of us are interested in learning about the practice of mediation in other parts of the world. Could you describe for us the contours of the mediation landscape in Scotland?

Mediation in Scotland is developing rapidly. Family Mediation has been part of the landscape for over 20 years. We have not-for-profit family mediation services offering free child focused available throughout the mainland and islands of Scotland, all federated to Family Mediation Scotland (FMS). As a compliment to this about 50 mediators who also work as family lawyers offer a service which includes the financial aspects of separation.

The other major field of activity here is Community mediation with the first service set up in the mid ‘90s. Pioneered in the last decade by the crime reduction charity, SACRO, we now have neighbour mediation services in 30 of our 32 local authority areas. There is a mixture of paid mediation workers and volunteers.

Civil/commercial mediation has been slower to develop as we do not yet have any rules of Court (unlike our neighbours in England and Wales) requiring the parties to consider mediation failing under threat of a penalty in expenses. One of our commercial mediation providers reports handling around 50 mediations last year. We have had only one in Court mediation service in Edinburgh Sheriff Court dealing with claims valued at less than £750; mediators volunteer their services.

Soon two new pilot services will be launched in Glasgow and Aberdeen offering mediation to all litigants in the Sheriff Courts there.

Workplace mediation has been very effectively used in a variety of organisations. Human Resources professionals seem very interested in how to integrate mediation as an option.

The Education (Additional Support for Learning) (Scotland) Act 2004 provides that “Every education authority must make such arrangements as they consider appropriate for the provision of independent mediation services” to handle disputes under the Act. Now the Act is in force, local Authorities are grappling with the selection of mediation services and are looking for assurance of quality.

Peer Mediation is practiced in about 30 of the 3000 primary and 600 secondary schools in Scotland. The SMN has a grant from a Trust to employ a part time development officer to support the progress of this important work.

Environmental and Planning mediators have worked hard in an Initiative Group set up by the SMN to develop a pilot proposal for the use of mediation the context of Local Plans. The Scottish Parliament is looking at this with interest.

Broadly, the training and approach of most Scottish mediators is facilitative, what ever background they come from. (Depending on the sphere of practice, there are few prior educational or professional restrictions on who may train as a mediator.) Evaluative approaches are generally discouraged, and purely transformative practice has yet to be attempted, as far as I am aware.

In addition to mediation of disputes our colleagues working in Restorative Justice have developed both youth and adult services that bring together victims and accused/offenders to mediate the harm.

There are many different approaches and schools of thought on how to prepare individuals to become mediators. How are mediators trained in Scotland and where is mediation taught?

Most Scottish based mediation training follows the model of 50 + taught hours to ready people for practice followed by a period of shadowing prior to lead or solo work. Most services both in the public and private sectors have Continuing Practice Development (CPD) programmers along with forms of practice support like supervision and peer consultation.

We aim to list all of the trainers working in Scotland on our map of mediation services. As yet, academic institutions in Scotland are not offering courses of study in conflict resolution and mediation.

Among the issues the mediation profession here in the U.S. has been struggling with are the articulation of qualification standards and development of models for best practices for mediators to assure public confidence in mediation services. What steps have been taken in Scotland to address these issues?

The Scottish Justice ministry has just begun to fund work in my office in the area of quality assurance. Our focus in this project is the standards of practice of mediators and the standard of mediator training in Scotland.

The fields of family and neighbour mediation have well established accreditation systems mainly with the UK College of Family Mediators (UKCFM) and Mediation UK (MUK). However, both organisations have to respond to the very different environments in England and Wales. Additionally, the distance to these organisations’ offices in Bristol in south west England make them even less accessible to those in Scotland, especially for those outside the Central Belt. Many Scottish services and mediators have indicated a desire to have a Scottish bases quality assurance organisation.

The areas of Commercial and court-annexed mediation have developed on the American free enterprise model with accreditation mostly granted by training providers. The SMN is in dialogue with the recently formed Civil Mediation Council based in England and chaired by Sir Brian Neil. There is a clear need for practice standards, especially if mediation is to spread across our Sheriff Courts.

Mediation has potential application to disputes in any part of Scottish society. It is essential that this emerging body of important mediation work is of the highest possible quality.

Colleagues at Maryland’s Mediation and Dispute Resolution Office (MACRO) are willingly sharing information about the development of Maryland’s Mediator Excellence program. Along with our links with the well resourced Netherlands’s Mediation Institute (NMI), who have Europe’s most advanced mediator registration and certification scheme, we are well placed to collaborate internationally.

We have launched a consensus building process outlined in the engagement paper which is downloadable from our website. Our expectation is that this process and system will become an example for the rest of the world.

There is no single regulatory body for all forms of mediation in Scotland. Regulation of training is not standard. Nor is there a standard set of qualifications for becoming and continuing to practice as a mediator. Unsurprisingly, this is confusing for people. If a Scottish mediation regulatory body were to be created and work, it would need to be credible, first in the eyes of the mediation community, then before the scrutiny of the outside world. It would need to measure up to modern tenets of independent regulation.

This is a sensitive area, so the work requires careful planning, skilful execution and constant communication. The amount of resource available will influence heavily the rate at which progress in the project is made.

The Scottish Mediation Network has built trust with virtually all mediation organisations in Scotland. It is in a unique position, if appropriately resourced, to create the space to host the discussions about building a regulatory structure of mediation in Scotland. There is a real opportunity to develop a solution for Scotland which could lead the way for the rest of the world.

Here in the U.S. many attorneys and judges have come to recognize the benefits that mediation offers litigants—speedy resolution, flexibility in negotiation, and autonomy in decision-making. On the other hand, some lawyers see mediation as a threat to their livelihood or question its efficacy. How does the legal profession and the judiciary in Scotland view mediation?

The law of Scotland is quite distinctly different from that of our larger neighbour to the south, England. Much of Scots law derives from principles of Roman law whereas the English tradition draws on the common law and reported cases. This difference, which was institutionalised when our Parliaments combined in 1707, has led, in my opinion, to a relatively conservative approach to change, especially from our judiciary.

Also, Judges here do not have any control of the budget for their courts. Until recently, the pressure of business on court time has not been perceived to be as great and as demanding as in other jurisdictions. This has resulted in little active encouragement of mediation from the bench.
However, this is starting to change. Our Court Rules Council is considering how mediation may be integrated into existing protocol. In mid 2005 our most senior judges devoted a 2 day conference to considering mediation.

As for lawyers, they are slowly beginning to understand the utility of mediation as an option for their clients. Once they experience the process, and get over the natural uncertainly of an unfamiliar way of working, they usually understand its usefulness. There will, I suggest, always be a few people who are more interested in personal profit rather than the best interests of their clients. However, most lawyers in Scotland are committed to their role of ethical representative so we are working to overcome their concerns base on principled caution rather than self interest.

According to its web site, the Scottish Mediation Network has set for itself an important goal: “to put mediation into the mainstream as a widely available and clearly understood first option for resolving disputes of all kinds in Scotland”. It’s a goal that undoubtedly all of us in the dispute resolution field share, regardless of where in the world we live. Please tell us what’s been done so far to achieve those goals and what steps you anticipate taking in the future.

In the last three years the SMN office has, with the support of a Big Lottery Fund grant, delivered four initiatives which will be the foundation stones for this further work. They are:


  • Establishing active connections with all the mediation services and mediation trainers in Scotland and beyond, in Europe and North America

  • Creating a website with a Map of Mediation that makes freely available information about all the mediation services in the country

  • Building consensus around Guidelines on the Practice of Mediation (Guidelines) which now serve as a baseline for the conduct of all forms of mediation in Scotland

  • Taking “Mediation into the Mainstream” Road shows to eight locations in Scotland.
The European Union adopted on 22 October 2004 a proposal for a directive of the Council and European Parliament on certain aspects of mediation in civil and commercial matters. It makes provision that member states will bring into force laws, regulations and administrative provisions necessary to comply with this directive by 1 September 2007 at the latest.

Article 4 requires member states to “promote and encourage the development of and adherence to voluntary codes of conduct…as well as other effective quality control mechanisms.”

The European Code of Conduct for Mediators was launched at a conference held in Brussels on 2 July 2004. The SMN had already devised and adopted its Guidelines which are consistent with the European Code. Compliance with these Guidelines is a requirement for all practitioner members of the SMN. The Guidelines are an integral part of the Specification for a clinical negligence mediation pilot launched by the SE Health Department on 1st April 2005.

Thank you so very much, Ewan. It has been a great pleasure to welcome you and to introduce you to my readers.

Wednesday, September 07, 2005

THE VIEW FROM NEW HAMPSHIRE: A strategic conversation with educator and entrepreneur Tammy Lenski

A strategic conversation with Dr. Tammy Lenski It is an honor and a pleasure to introduce you to Dr. Tammy Lenski, a highly regarded leader and educator in the dispute resolution field and the founder of Lenski Strategic, LLC, a New Hampshire-based company providing ADR services nationwide, with a special focus on the unique needs of women executives and entrepreneurs.

Tammy took some time to share with us her reflections on mediation education and training, the needs of women in the workplace, and new directions for the dispute resolution field.

Hi, Tammy, and welcome to Online Guide to Mediation. First of all, please introduce yourself to my readers—tell us what you do in the ADR field and how you got started.

Hi, Diane, and thanks for the opportunity to talk with you. I run my own company, Lenski Strategic LLC, based out of Dublin, New Hampshire, and working with clients nationwide. I’m in my 8th year of full-time private practice as a mediator, trainer and negotiation coach.

I got into this work when I was a college dean and found myself in a mediator-type position quite frequently, as well as a facilitator of college-wide strategy and planning meetings. I decided to get some formal mediation training and after taking a Basic Mediation class, realized this is what I wanted to be doing all the time. So, after some figurative nail-biting and much conversation with my husband Rod, I left my job, enrolled in Woodbury College's year-long, 500-hour mediation program, and then launched my practice. Most of my initial clients were colleges and universities and I branched from there through referrals; today, most of my private work focuses in the workplace and organizational arenas.

I also mediate for the New Hampshire Probate Court, where I handle cases involving wills, estates and trusts, as well as child and adult guardianship and termination of parental rights cases.

Your company, Lenski Strategic, LLC, offers “strategy and support for women executives and entrepreneurs”. Why this special focus on women in business? What challenges are unique to women in the business world, and what strategies can help women overcome those challenges? What about men? Are there any challenges specific to them?

One of my most treasured experiences as a college administrator and teacher was at a women’s college. It’s there that I felt like I professionally came into my own and where I began working with adult and traditional-aged college women as they found and developed their voices. In the past year or so I’ve found myself drawn back to those roots and decided to formally meld those roots with what I’m doing now by focusing my private practice on the needs of women in the workplace. I want to help women learn how to tap their strengths to negotiate better for themselves and navigate workplace conflict more effectively. I know from my background in women’s education that women of all ages benefit from the kind of support that formally acknowledges and builds on “women’s ways of knowing” (with a nod here to Mary Belenky and her colleagues for the seminal work on this topic that has now grown into a whole body of literature). And I’m hearing from women in leadership positions that the relational aspects of disputes are as relevant to them as resolving the content of the dispute. I know many men care about these things too, of course, but realize that my unique blend of experiences can best be tapped by focusing on women leaders and future leaders.

As a member of the faculty of Woodbury College in one of this country’s most highly respected master’s degree programs in mediation and dispute resolution, you have a unique opportunity to mould and influence individuals who hope to initiate or develop careers in the ADR field. What kinds of preparation or foundation do people need who wish to ensure a successful future in alternative dispute resolution? What advice might you offer someone who is interested in developing her capacity to assist others in resolving disputes?

While I call myself a trainer because that’s the jargon my corporate clients know, I consider myself an educator. And I do believe there’s a difference between education and training, one that the mediation profession is starting to discern and wrestle with. I’m pretty biased toward longer and more in-depth preparation for mediators. I look at myself—and most of my students—after even 100 hours of preparation and the vastness of what I didn’t yet know is stunning. I didn’t even know what I didn’t know. And while every day is a day I continue to learn and grow, I believe that the base I got at the start created a foundation not just for professional success but also for serving clients with excellence.

Ok, I’ll get off my soapbox now! What foundation do mediators need to be successful? I think would-be mediators need in-depth, sequential preparation in the “mechanics” of mediating, certainly, but also in reflective practice, in negotiation and conflict theory, and in understanding and working on their own conflict dynamics. By “sequential preparation” I mean that taking periodic trainings does not supplant the continuity and depth of a comprehensive curriculum.

As a leader and educator in the ADR field, and as someone who has been a part of shaping the field over the years, what trends, future directions, or new opportunities do you anticipate emerging for our profession?

I’ve been thinking about this question a lot lately, as I’m teaching a new course in “Trends and Issues” this fall. The credentialing and certification issues are going to gather steam, as will the accompanying questions those issues will raise about mediator preparation. I think Bernie Mayer, in his most recent work, has challenged us to understand that we have not yet framed this field in ways that the public finds highly compelling, and so I certainly hope we’ll continue to chew this one over.

I’m writing this a week after Katrina devastated the Gulf Coast and find myself wondering if there’s a new role emerging for folks with dispute resolution as well as crisis management skills to serve others. And as baby boomers move into retirement, I think there’s an opportunity for mediators with knowledge of geriatric issues to facilitate end-of-life conversations and planning with elders, families and care providers. I’ve been doing some of this through my probate work and see such a need developing.

Much has been written to provide practical advice or guidance for both students and practitioners of ADR. But there is comparatively little written specifically for educators and trainers—those of us who teach, coach, and prepare individuals for work in the alternative dispute resolution field. As the field considers credentialing and other efforts to professionalize the field, what is our responsibility as teachers to our students and to the field itself? At a minimum, what should training programs for mediators offer? And what can the field do to maintain public confidence in mediators and mediation training programs?

This is an important question and one that I can’t give its full due here. Let me just say that some of our responsibilities as teachers are to be honest with would-be mediators about the realities of building a healthy practice (better be a darn good mediator, have some capital and a business plan and at least as much interest in being an entrepreneur as a mediator). And we should consider how our trainings actually contribute to moving the field forward (and not just to our own bottom lines). As part of a field still struggling for public recognition and confidence, I think it’s critical that trainers and educators think hard about who we’re graduating and how well those graduates will contribute to building such confidence.

Tammy, all of us have dreams, both short-term and long-term, professional and personal. What are your long-term hopes and goals—for yourself as a professional and for the alternative dispute resolution field?

I better live ‘til I’m 100, Diane, because I have a lot of dreams still to pursue. I love the mix of college teaching and private business that I have now, and I love being part of a profession that’s still finding its way, with much opportunity for myriad voices to help shape it. So, I hope to stay on this path for as long as it excites me and keeps me jumping out of bed in the morning—which will be for a while yet, I imagine.

For the dispute resolution field, I hope we’ll spend less time on the “evaluative vs. facilitative vs. transformative vs. whatever” debate, since there’s probably room for a variety of approaches as long as they’re practiced with skill and knowledge. I hope we’ll take the energy from that kind of conversation and put it into thinking together how to prepare people well for this craft and build a profession that the public both wants to buy and has confidence in buying.

Friday, July 01, 2005

MEDIATING ACROSS CULTURES: Interview with international entrepreneur Ashok Panikkar

Interview with international entrepreneur Ashok PanikkarI am pleased to present an interview with my dear friend and esteemed colleague, Ashok Panikkar, founder of Meta-Culture, India’s first conflict management consulting group. In this interview Ashok traces his cross-continental journey as a dispute resolution professional, describes the far-reaching mission of his ambitious new enterprise, discusses the state of the ADR field in India, and shares advice on communicating successfully in cross-cultural settings.

I’d like to begin at the beginning, Ashok. Tell us how your career in conflict transformation began.

Diane, I like to say that I came into this field with more than a lifetime’s experience in generating conflict!

I started out as a graphic designer who was way more interested in the psychology and sociology of communication than was healthy for any practicing designer. My first leap into what was, for me, meaningful work was when I started Alternatives, an educational center teaching workshops in critical and creative thinking. Through designing curriculum and helping individuals and groups explore their own cognitive and creative thinking processes, I got a better sense of how we use our intellect and imagination to make meaning of the world around us.

In 1994 I shut down my design firm, Design For Fun and Money, because it wasn’t quite living up to its name! I traveled around India, the U.S. and parts of Europe for almost two years, trying to both ‘find myself’ and explore the West. Mostly I was searching for a way in which I could integrate my interest in people, the thinking process, and my somewhat ill defined, but passionate, enthusiasm for social justice and equity.

In 1996 I started working as a consultant and trainer with the World of Difference Institute, an anti-bias program of the Anti-Defamation League in Boston. This launched me into the field of diversity and cross-cultural training. Doing this work I discovered that I was at my best when dealing with “difficult” participants in workshops and that I even, somewhat perversely, enjoyed dealing with conflict.

Soon thereafter I found work as a mediator at Mediation for Results (MFR), a Cambridge-based conflict resolution program. This was a turning point in my career and it was also the greatest learning period of my life. I found that I really enjoyed the process of mediation and was able to develop my professional skills through the incredible working opportunities that came my way and the courses that I was fortunate enough to attend. Now (despite a thankfully brief break in 2004, when I worked as a corporate trainer with a large consulting company) I consider myself to be professionally saved and in a state of relative bliss.

So how did you get from there to where you are today?

MFR was, then, primarily doing landlord-tenant mediation. I soon discovered that there were great opportunities in training the staff of homeless shelters, city and state administrations and other organizations in communication and conflict resolution skills. I also found that my training clients were inviting me to mediate disputes amongst their staff, and that soon I was also being called on to help design conflict managements systems for their organizations. I was fortunate that I was able to leverage the many professional situations I came across into opportunities that allowed me to work in areas that intrigued me.

I left MFR in early 2004, to join that, earlier mentioned consulting company. This experience made apparent a few things: 1) I was far too interested in mediation and consulting to restrict myself to only training; 2) after ten years in the U.S. as a student and an employee I was chomping at the bit to start my own organization. I realized that it was obvious that there were many people and organizations that could use these relationship- and life-transforming skills. I also recognized that regardless of the opportunities in the U.S. (and despite enjoying my intellectual and social life in the Cambridge/Boston area), the place where all the action was gravitating to was Asia.

I realized that this was my big chance to create an organization that I could live with-- an organization that manifested the ideas and values that I had been espousing all these years. If I were “New-Agey”’, I would say that the confluence of events that lead to my deciding to leave MFR and the unmitigated frustration that I felt at trying to fit into a “large” consulting business was the universe’s way of telling me something! Regardless, the message got through and here I am sitting in my new office in Bangalore, two thousand feet above sea level, while you are enjoying the New England summer.

Please tell my readers about the mission of your new organization, Meta-Culture.

Meta-Culture is in the process of creating India’s first integrated conflict management group. The vision is to help people develop skills of discourse that are non-adversarial and built around the principles of dialogue rather than debate (even though there are situations where, for instance, Socratic debate can play a very useful part in helping to clarify ideas and challenge the mind). In doing so we can change the climate and culture of discourse so that individuals, organizations and societies can respond to differences with understanding and skill instead of doing so from anger, ignorance, fear, animosity or misplaced righteousness.

Our mission is to engage in or promote activities that can help advance this vision. To this end we are engaged in consulting, research and education in the areas of ADR, especially mediation; facilitation; coaching; design of conflict and dispute management systems; and consensus building. Right now our focus is to establish Meta-Culture as a sustainable consulting practice. Very soon we will be setting up a separate division that will service the NGO and governmental sectors.

To make all this happen we need to recruit and train exceptionally competent and committed people. That is our real challenge.

So here is a shameless plug: If there are any passionate and talented people out there who would like a once in a life time opportunity to help pioneer a new field in one of the most interesting and fastest growing regions of the world, just give me a buzz. This is an opportunity to not just participate in conflict transformation, it is an opportunity to transform ourselves.

In parts of the U.S., while mediation has become a better known and increasingly appealing alternative to litigation, there are still plenty of Americans who remain unfamiliar with it. What about in your corner of the world? What is the state of the dispute resolution field in India at present?

ADR and mediation are relatively unknown in this region, despite the judicial system being extraordinarily slow and often inefficient. The only form of ADR that people have heard about is arbitration. As a profession, ADR is very underdeveloped with not even a professional body to speak of. I am in discussions with another ADR organization in India about the possibilities of creating a promotional and regulatory body for conflict resolution professionals.

The good news, as my friend George Mathews who runs a successful consulting business here in Bangalore puts it, is that once folks understand the concept, the value proposition of the work Meta-Culture does is both obvious and very clear. I actually got my first client while in conversation with an industrialist at a dinner party who, after quizzing me about my work for about fifteen minutes, told me that his COO seemed locked in a very difficult conflict with the head of marketing and...could I do something to help.

Needless to say, that conversation lead to his company hiring Meta-Culture to deliver conflict management training programs for the entire management team and conduct mediation between a few sets of senior executives who were stuck in seemingly intractable conflicts. We are also developing an integrated conflict management system that they can implement across the company. This is a dream project that we were extraordinarily fortunate to get within weeks of setting up operations.

However, despite this initial success, I am under no illusions that a tremendous amount of proselytizing and education will have to be done to create awareness and acceptance of the field.

Why did you choose Bangalore as the place to build your business? What makes it an ideal environment for developing a project like this? (And should the rest of us think about moving our own practices there?)

Of course you should all move your practices here! I would love the company of my peers.

I moved to Bangalore mainly because it was a city I knew well. It also has some advantages given that it is probably the software capital of Asia and probably the world today. This has changed the business landscape of the region and brought an influx of the best and the brightest into this once sleepy (and once pleasant) retirement town. In addition, with the opening up of the Indian economy after four decades of being a semi-socialistic “command economy”, the local businesses and the NGO world have had to shrug off their creaky, bureaucratic ways of functioning. With the working environment becoming more complex, there is a now a greater appreciation of professionalism and a greater demand for sophisticated services.

You’ve certainly had plenty of experience as trainer, educator, and facilitator in countries around the world. At the same time you lived and worked almost exclusively in the U.S. for over 10 years prior to returning to India in March. What are the challenges you anticipate as you translate your experience in America into your current work?

One early challenge has been in dealing with a different work pace and ethic. While corporate India is quite professional, many of the ancillary services function at a rather casual pace. To someone coming from the US dealing and following up with governmental agencies, banks or even vendors and suppliers like printers and computer maintenance folk can take up a lot of your time. It can also be very frustrating. I have to keep practicing my own deep breathing to survive some of these delays and challenges. At a content and methodology level, partly because of the culture of therapy and talk shows and the like, folks in the US are, within reason, open to sharing things in classrooms, trainings or mediation sessions that might be wholly unthinkable in a more traditional and private culture.

For many people in India even addressing private issues in front of a third party may be seen as threatening or inappropriate. On the other hand things are changing in urban India and during the mediations that I have conducted these past months we haven’t encountered many ‘cultural’ reservations and when we have, we have been able to demonstrate that the benefits of following an ‘unusual’ process far outweigh the initial discomfort of trying out a different style of discourse. I would be surprised however if we don’t discover, in time, that we have to fine tune, adapt or even radically alter many of our techniques or even methodologies. At a more prosaic level, all case studies have to be localized and the situations and people described have to be those that participants can identify with.

Being away from India for ten years is both an advantage and a challenge. While there is little that I am actually surprised by, I am still able to see many things from the viewpoint of an outsider. On the other hand there is definitely some re-orienting that I have to do as I switch back to working with a population that is quite different from the one I have worked with these past ten years.

As we all know, as technology has rapidly evolved, the world has become smaller. Nations are increasingly interdependent upon each other for many reasons—economic, political, cultural. How do you see the communication and training needs of businesses, nonprofits, institutions and others changing in the future as globalization continues to move forward?

Ah, the unstoppable juggernaut of globalization! Changing forever everything in its wake—people, values, relationships, social institutions, and modes of working and living. Yet it does seem that given the rampant technological changes, the impact of “free” trade on societies, and the social and cultural changes that they bring about, many opportunities will be created for those who can help individuals and societies navigate through these turbulent times.

More than ever there is a need for those who understand and are skilled at mediating across cultures that have been thrown together, either because of economic compulsions or the seemingly magical compression of time, space and distance that many of these new technologies bring about. The need for people and organizations who can work as bridges between the commercial needs of corporations and the emotional and social needs of individuals, communities and societies will grow. The world may indeed be shaken up, and individuals and communities across the globe will continue to pay the costs of these tsunami-like changes perhaps for generations to come; however, professionally, many of us will find that our services are in great demand.

What would you suggest they do to meet those needs? Problems arise from time to time in international or multicultural relations, whether those interactions are business, political, or social. What are some of the mistakes that individuals commonly make in multicultural settings and what are some preventive strategies to avoid communication snafus?

Is there a mistake we DON’T make in multicultural settings? I have come to accept that all encounters between people are inter-cultural. I guess it may be possible that in wholly homogenous environments the person you talk to or interact with—your spouse, neighbor or cousin—can be counted on to share your sensibilities and assumptions. But are there any such places left? And with the plethora of choices and experiences that even those in a family have today, what are the chances of sensibilities or perspectives being wholly similar even amongst people who grow up together?

It is safe to presume that the assumptions we bring to the table are usually unique and generally limited to our own individual experience of the world. When assumptions collide, sparks fly and when sparks are ignited there is always a place for those who understand the relationships between sparks, smoke and fire. Enter the conflict or dispute resolution professional who knows what it means to be in a cultural cross-fire and what it takes to get out of one.

Here are some basic useful preventive strategies:
DO NOT PRESUME that the other person will understand you even if you are, nominally, speaking the same language. Especially when you think that you are speaking the same language!

Similarly DO NOT PRESUME that you understand their actions or words. Again, do not be fooled by speaking ‘the same language’.

ALWAYS CHECK to see if what you heard or saw them say or do really was what they had intended to communicate.

DO NOT RUSH TO JUDGMENT. If you find yourself getting upset or angry, step back and check in with them about their intentions. Especially in cross-cultural situations, because of a lack of familiarity with the other’s communication style we can find it difficult to decipher their intentions and confusions can arise about what they are trying to say.

Always BE CURIOUS about what their story might be and what their assumptions are. Asking them might surprise you.



These may seem very simple, but trust me, it is very difficult to stay in a mode of curiosity and to not be non-judgmental when you feel threatened and are upset.

Looking back at what has been an impressive career, can you think of an experience that was particularly inspiring or transformative? What made it that way?

Thank you for being extraordinarily generous but, seriously, I don’t consider my career, thus far, to have been particularly impressive. I do, however, have many inspiring experiences that I could share. Many of these are experiences during mediation, where I continue to see relationships transformed through the simple act of listening and the slow but sure dawning of genuine understanding and empathy.

I do remember an example of a difficult training in 1997. It was a mandated training for teachers and administrators at a public school in Boston that was under fire from the community and the press for a spate of racial incidents in the classrooms and playgrounds. We, the trainers, had walked into a less than warm welcome. This was a "captive" group that was determined to be uncooperative. The ones who deigned to speak to us told us that they were there because the Principal forced them but were darned if they were going to participate. They also refused to introduce themselves or do any of the ice-breaker exercises.

It took a lot of cajoling and coaxing, but we finally managed to persuade them that we were not there to judge them and that we were truly open to hearing what their story was. They then told us that they resented being asked to undergo a mandatory training and did not appreciate the implications within the community that they needed to be taught how to become “good” or “non-racist” human beings. We had to put them at ease, invite them to share their concerns and fears and respond with much empathy. We also jettisoned the agenda and came up with one that would do justice to the climate in the room and engage the staff as collaborators in a joint project. It was then that we were able to begin working towards the primary reason we were sent there, which was to help build a school environment that was respectful and where minorities could feel safe and be nourished.

It was a powerful experience and made me so much more appreciative of how vulnerable we all are. I realized the importance of being sensitive to the vulnerabilities of all parties in the room and the need to work, always, from a place of humility. It also showed me that when we respond to people with genuine curiosity and empathy, deep understandings happen and powerful connections are made. Not just conversations are changed but people and relationships are transformed. What more could any one ask for?

Thursday, June 23, 2005

ADR ALL-STARS: Dispute resolution major leaguer Ericka Gray shares strategies for success

ADR All-Star Ericka Gray shares strategies and tips for successHere’s my first ADR All-Star interview—this one with Ericka Gray, a mediator for 20 years, and founder of DisputEd, a full-service dispute resolution practice based in Boston.

Ericka, tell my readers a little bit about yourself. What do you do in the ADR field?

I run my own company, DisputEd, in Arlington, Massachusetts, that provides mediation, facilitation, consulting, training, and dispute systems design services, as well as just about anything else related to conflict prevention, intervention and management. I also teach Mediation at Boston College Law School and Suffolk University Law School, teach Divorce Mediation at Northwestern University in Chicago, and generally keep very, very busy. And, yes, I coach, mentor, volunteer, serve on professional organization boards of directors, serve on the Massachusetts Trial Court Standing Committee on Dispute Resolution, and try to have a life outside of work.

You and I are both baseball fans. We know that stats matter. Tell us how you long you’ve been mediating, what kind of experience you’ve had, and how you got into the major leagues.

My mediation career started in 1985 when I was a psychologist for an HMO. A woman called and asked the intake person if we provided “divorce therapy”. The intake person, for some unknown reason, always headed the weird calls my way. Of course I said, “Well, we haven't before, but why not? Come on in.”

That was the start of helping people figure out a better way of dealing with their conflicts. That couple ended up having an amicable divorce, figuring out a parenting plan, property division, etc., before I even knew there was such a thing as mediation.

Two years later I was employed full-time at the Burlington County Superior Court in New Jersey running a Multi-Door Courthouse (the fourth in the country), supervising more than 100 volunteer mediators, developing and managing mediation and other ADR programs in the courts, and having an absolute blast. I got that job because a friend of mine told me about it and said it sounded perfect for me - except I didn't have a law degree, which it required. I figured I'd apply anyway - what was the worst they could do - not hire me?

Well, they saw it my way, and it was a great match. I was on the American Bar Association Multi-Door Courthouse speaking circuit with Melinda Ostermeyer and Kimberley Kovach, and, along with Larry Ray, we went around the country to various conferences talking about the concept and the realities of operating such programs. When the judge I was working for was going to retire and I was getting a divorce, I started looking at getting out of New Jersey. So, I asked around, and Margaret Shaw, who was hanging around my courthouse doing some research, told me about the startup Middlesex Multi-Door Courthouse (MMDC) in Cambridge, Massachusetts. I faxed my c.v. that day, and the next week I was on a plane to Boston for an interview.

And so I moved to Boston, where I knew no one, for a job that had 18 months of funding. I mediated just about every type of civil case there was which at MMDC. Well, funding kept getting extended but it was always iffy and I finally said enough was enough and headed on over to Endispute, which later became JAMS. At Endispute, Eric Green, Paddy Moore, Jack Wofford, Larry Susskind, Carmen Reiss, Marjorie Aaron, and a cast of characters you wouldn't believe were mediating a variety of disputes, ranging from major environmental issues to personal injury cases to land use to construction to employment to intellectual property. It was a high-end boutique ADR firm with the best of the best and I was thrilled to be there. In addition to mediating, I was developing their training programs and putting some structure in the professional services side of things.

I must say, the opportunity to learn from such amazing talents probably can't be duplicated today. To be able to co-mediate with Eric Green? Just incredible!

Anyway, as happens to companies, Endispute began rapid expansion and became a bit overextended. Investors came in and soon enough, Endispute became JAMS (which stands for Judicial Arbitration and Mediation Services). Suddenly, the focus became hiring retired judges as independent contractors and settling personal injury cases—volume, volume, volume. What a culture clash.

So, I left to become the Executive Director of the Academy of Family Mediators. Now, talk about a job! A board of 12 volunteers, all mediators, all with different backgrounds, styles, beliefs, experiences in business, etc. I signed a 3-year contract and served as Board members such as Robert Benjamin, Peter Maida, Don Saposnek, and many others came through. Talks started with the Society for Professionals in Dispute Resolution (SPIDR) and other organizations about a merged ADR organization at the instigation of the Hewlett Foundation. At that point, I went out on my own, starting DisputEd.

So, to answer the question about how I got into the majors, the answer is that I've been in the right place at the right time, taken advantage of opportunities, and gotten to know a lot of people in the field.

We mediators love trading war stories (while of course at the same time honoring the confidentiality of our clients). What was your most memorable case ever? And how did you get it to resolution?

Oh my, this is tough since there have been so many memorable ones. And, some of the most memorable ones didn't get to resolution. Lots of them involve animals for some reason - the slaughtered goat hanging from the front yard tree was one (religious reasons but the neighbors weren't really happy about this - resolution was to move future slaughtered animals to the backyard tree and make sure that some type of fence or other covering surrounded it so the neighbors couldn't see it).

The pig bite case was another. Then there was the pet goose that was attacked by a neighbor's dog and needed hundreds of stitches but lived. The neighbor just laughed when asked to pay for the vet bills and did not want to mediate. You know, people are just so interesting and come up with all sorts of weird and unusual ways to get themselves into conflict. So, these will have to do for now or I'd have to write a book.

Lots of people want to get into the mediation business. Many are called, few are chosen. What advice would you give to all those sweet young things out there who want to make it in this field?

Mediation is a BUSINESS just like any other business. Not only that, it's an entrepreneurial business. There is a very limited pool of jobs available and a huge pool of potential applicants for these jobs.

Most people who make it have several things in common: 1) They're good! 2) They have an entrepreneurial spirit 3) They understand that a start-up mediation practice takes capital, marketing, networking, lots of hard work, lots of hours, paying your dues, and no one's going to hand you paying business. Any new business generally takes from 3-5 years to show a profit. 4) Build on your strengths and your current knowledge and skills set. If you're a human resources director, for example, you might concentrate on mediating workplace conflicts and marketing to fellow HR people, rather than trying to establish a practice mediating land use disputes. And 5) Hope for a good dose of luck. Look for opportunities. They don't come looking for you!

Okay, most important question: How do you think the Red Sox are going to do this year?

This is an easy one. If they don't get their bullpen in order, they just aren't going to do it. Come on guys, get some real relievers and closers! Embree? Halama? Don't make me laugh.

WELCOME TO ADR ALL-STARS

Welcome to ADR All StarsWelcome to ADR All-Stars, a special feature of Online Guide to Mediation, the web log with an alternative dispute resolution focus.

From time to time I'll be publishing interviews with ADR all-stars--those individuals who:

  • have gained iconic status in the dispute resolution world;
  • have contributed greatly to the advancement of the field;
  • or are taking ADR practice in bold, new directions.
(Or who don’t necessarily meet any of the above criteria but just tell one heck of a good story.)

My first interview will feature ADR legend Ericka Gray.