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Articles By: Lee Jay Berman

 

By Lee Jay Berman
It happened again. You drove with your client to the mediator’s offices, you spent 10 hours in a mediation session− often waiting for long stretches for the mediator to return from the other room, your client went through the entire range of emotions during the day, and gave and gave until they had reached beyond any “bottom line” the two of you had established, and still the case didn’t settle. Now you have that long, tedious drive back to the office with a client who is frustrated, disappointed, wrung out, maybe even angry. During the silence you know that somehow your client is blaming you. Approx. reading time: 15 minutes.  September 2014 **Also available in PDF.

“Band Whisperer’ Explains How To Keep Your Band Together”
By Lee Jay Berman
KEEPING THE BAND TOGETHER… As every musician knows, this can sometimes be tougher than a two-dollar steak. Fragile egos, clashing visions and money challenges can all put a strain on any band. To find out what can be done to help artists and bands navigate these turbulent waters, professional voice coach Lisa Popeil sat down for a chat with an expert on the subject. He’s Lee Jay Berman, a mediator based in Los Angeles who specializes in mediating partnership issues in the music and entertainment business. Known as the “Band Whisperer,” Berman gets to the heart of matter. ediation today is being done very differently than it was just five or ten years ago, and it has changed dramatically since 1995, when it was first introduced into California’s general civil litigation world.  This means that in order to successfully represent clients in mediation, advocates have to adapt, too.  What worked just a few years ago, doesn’t necessarily work today. Approx. reading time: 10 minutes. January 2014 **Also available in PDF.

"Mediation’s Evolution in SoCal: Where it has been and where it is going"
By Lee Jay Berman
Mediation today is being done very differently than it was just five or ten years ago, and it has changed dramatically since 1995, when it was first introduced into California’s general civil litigation world.
  This means that in order to successfully represent clients in mediation, advocates have to adapt, too.  What worked just a few years ago, doesn’t necessarily work today. Approx. reading time: 16 minutes.  September 2012 **Also available in PDF.

"The Funnel of Conflict Resolution-Part One: The Stages of Conflict and Opportunities for Resolution"
By Lee Jay Berman
The world of conflict can act like a funnel, in that disputes can enter from any of a variety of areas of life and can take all forms (arguments, disputes, accidents, cultural trends).  As a society, and as a mediation community, we can address these disputes at many different stages. Early intervention of conflict resolution requires that either those people in dispute are aware of mediation, or that mediators can find them early in their process.  The best way to reach people early in the dispute is through generalized public education about mediation, increasing public awareness, and making it generally accessible and available to them. Approx. reading time: 8 minutes. February 2011
**Also available in PDF.

"12 Ways to Make Your Mediator Work Harder For You" 
By Lee Jay Berman
The biggest mistake most attorneys make is not getting all of the value that the mediator has to offer, and for which their client is paying. Many attorneys won’t let the mediator get a word in edgewise, tie their hands with respect to what they can reveal and discuss in the other room, and only want to talk numbers with them after lunchtime. Then they complain that the mediator is overpaid. Most attorneys never get to see all of the skills a mediator has because they never make the mediator work hard enough to need to for their mediator to utilize those skills. Here are 12 ways to make your mediator work harder for you. If you take advantage of every one of them, you will get much more out of your mediators, your mediations, and your settlements. Approx. reading time: 7 minutes. October 2009 **Also available in PDF.

"It's Time For Heavy Metal Mediation"
By Lee Jay Berman
KISS Mediators Rock the ABA Conference: Many attendees at the recent annual conference of the Section on Dispute Resolution had to look twice when they saw one of the characters pictured here walking the conference halls. When most learned that these were actually colleagues - the question was the same: Why would these self-respecting mediation professionals play dress up? Approx. reading time: 11 minutes. **Also available in PDF.

"Impasse is a Fallacy" 
By Lee Jay Berman
I often wonder who invented the concept of impasse. Who first said, "We are stuck. We cannot go any further."? And who decided that we should give it a name, acknowledge its existence, and make it the scapegoat for all that goes wrong with a mediation?  Approx. reading time: 8 minutes. **Also available in PDF.

"Neutrals Reveal Tips With Their Opening Statements"
By Lee Jay Berman
Most mediations begin with the mediator's opening statement, much to the consternation of the lawyers (many of whom have heard them many times before) and their parties. Although most lawyers prefer to launch right into their opening statements in a mediation, the mediator's speech can be very helpful. Approx. reading time: 4 minutes. April 2009 **Also available in PDF.

"Recession Advice for Mediators" 
By Lee Jay Berman
While many believe that mediation is a recession-proof business, the truth is that a difficult economy slows every business and practice as people have less money to pay for things. When a mediation practice slows, there are three things that mediators can do to make productive use of increased down time. They can increase their marketing efforts (attend more networking events, update websites, etc.), improve or update the administrative infrastructure of their practices, and they can hone their skills. Approx. reading time: 7 minutes. January 2009 **Also available in PDF.

"Choose Carefully - All Mediators Are Not Created Equal" 
By Lee Jay Berman
If a mediation is going to have a chance at success, perhaps the most important decision is who will sit in the neutral chair at the head of the table. From case to case, that decision will vary. Attorneys owe it to their clients to invest the time in investigating, strategizing and selecting the right mediator for each case ... here are 14 tips on the best ways to select the right mediator and increase your chances for a successful mediation...Approx. reading time: 7 minutes. **Also available in PDF.

"Lawyer Preparation for Mediation puts Money In Clients' Pockets" 
By Lee Jay Berman
While all good attorneys prepare intensely for arbitration or trial, it is a wonder that more fail to prepare better for mediation. As the legal community continues to use mediation as an effective case settlement tool, it is becoming clear that attorney preparation plays a vital role in achieving a favorable result. Whether dealing with hundreds of thousands or millions of dollars, shooting from the hip is too risky...Approx. reading time: 4 minutes. **Also available in PDF.

"Mediators' Opening Statements Offer Insights for Successful Results" 
By Lee Jay Berman
There is much that can be learned from a mediator’s opening – about the process, about that mediator, and about how to maximize your outcome. ... remember that aside from simply setting the tone and laying down any ground rules, the mediator is providing tips and insights into how to maximize your success in that mediation, leaving your clients satisfied with their representation and their result...Approx. reading time: 4 minutes. **Also available in PDF.

"The Advocates' Opening: Getting more for a client in mediation starts with the opening statement"
By Lee Jay Berman
There is a bright line differentiating client advocacy in mediation from other forms of client advocacy. Good lawyers know the difference and are getting much better results from mediations than those who do not make this important distinction. As the legal community evolves in the effective use of mediation as a case settlement tool, it is becoming clear that attorneys’ opening statements in a joint session play a vital role in their client’s success in that mediation...Approx. reading time: 4 minutes. **Also available in PDF.

"How to Initiate or Improve a Court Mediation Program" 
By Lee Jay Berman
Question: We don't have a mediation program in our courts, and I keep hearing from people in other states what a great boost it is for mediation as a whole. How can we work with our local courts to interest them in starting (and paying for) a court-annexed civil mediation program? Answer: Taking your challenge even broader, and including those jurisdictions that already have court-annexed mediation programs in place that may not be functioning to the level everyone would like, let's talk about courts and mediation. Approx. reading time: 12 minutes. September 2008 **Also available in PDF.

"Getting Traction for Mediation" 
By Lee Jay Berman
Question: I'm a mediator in a county where mediation hasn't been accepted or supported by our local court, and the lawyers don't seem interested in mediating cases. What can we do, perhaps through our local Bar ADR section, to help mediation gain some traction? Answer: Get ready to go to work! There are many things you can do, and frankly, the faster you and your local community of mediators implement them, the faster mediation will take hold...Approx. reading time: 6 minutes. July 2008 **Also available in PDF.

"Is Mediation a Pipe Dream?" 
By Lee Jay Berman
In many ways, mediation is like any other profession or business, where some do well, some fail, and the rest are somewhere in between. But in many ways, mediation is unlike other professions because...Approx. reading time: 7 minutes. December 2007
**Also available in PDF.

"Avoiding Workplace Litigation"
By Lee Jay Berman
Here are practical steps a company can take to handle disputes, from small workplace conflicts to litigated employment law matters, in their earliest stages. This plan is a graduated dispute resolution program companies can incorporate into their internal policies and employment manuals that deals with problems before they become escalated and emotionally charged. Approx. reading time 3 minutes. September 1996
**Also available in PDF.

"13 Tools for Resolving Conflict in the Workplace, with Customers and in Life"
By Lee Jay Berman
Conflict happens. It is inevitable. It is going to happen whenever you have people with different expectations. This makes conflict management critical, whether avoiding arguments, disputes, lasting conflict or ultimately, litigation. Conflict can be avoided if steps are taken early in a discussion to diffuse anger and facilitate communication, and it can be resolved by applying a series of thoughtfully applied steps...Approx. reading time: 12 minutes. **Also available in PDF.

"Voluntariness in Mediation: An Historical Perspective!"
By Lee Jay Berman
A dispute resolution process is either voluntary or it is not. There are many forms of ADR that are designed to be mandated. Mediation, by definition however, is voluntary. Mediation has been around in family law and community programs for over twenty years, and it has been performed by elders in villages throughout the world for thousands of years. Sometime during the mid- to late-1990's, the courts agreed that mediation might be an effective tool for settling general civil cases...Approx. reading time: 8 minutes. **Also available in PDF.

"Writing Effective Case Management Orders In Construction Defect Cases"
By Lee Jay Berman
Describes Case Management Orders (CMO's) and how they can be used in complex litigation, especially in the construction defect arena. Describes effective ways to negotiate a CMO, contains tips on language to use and to avoid, and describes how to keep control of your own litigation. Approx. reading time: 7 minutes. **Also available in PDF.

"Hands Off Mediation Confidentiality!"
By Lee Jay Berman
We mediators fought hard for confidentiality in the mediation process. Now, citing public safety concerns, national politicians are trying to take that away. They claim that settlements reached in mediation need to be opened up for the public to see. In truth, all the public agencies need to know is that a complaint has been filed. Existing laws require them to investigate such reports after only a couple of complaints. Mediation will not be effective if its confidentiality protections are stripped away. Read more to find out why. Approx. reading time 6 minutes. **Also available in PDF.

"ADR Confidential"
By Lee Jay Berman
Why is it important that mediation be confidential? This article delves into the difference between confidentiality and privacy. Insurance companies and others are anxious to know the outcomes of confidential mediations, but this may come at the risk of our personal and corporate privacy. Approx. reading time: 10 minutes. **Also available in PDF.

"Please Mister, Don't Sue Me!"
By Lee Jay Berman
Article about the state of the legal system, and why so many cases are settled prior to trial. Explains why a mediation creates a finite, facilitated settlement event that brings cases to resolution and closure. Describes mediation and when mediation should be used. It contrasts mediation and arbitration, and talks about the binding nature of each. Approx. reading time: 3 minutes. **Also available in PDF.

"Sue First, Ask Questions Later!"
By Lee Jay Berman
Article about the state of the legal system, and why so many cases are settled prior to trial. Explains why a mediation creates a finite, facilitated settlement event that brings cases to resolution and closure. Approx. reading time: 2 minutes.
**Also available in PDF.

Articles By: Kenneth Cloke

Bringing Oxytocin into the Room: Notes on the Neurophysiology of Conflict
By Kenneth Cloke
While people in conflict commonly refer to facts, behaviors, feelings, personalities, or events, for the most part we ignore the deeper reality that these are processed and regulated by the nervous system, and are therefore initiated, resolved, transformed, and transcended largely within our brains. **Also available in PDF.

Building Bridges Between Psychology and Conflict Resolution – Implications for Mediator Learning
By Kenneth Cloke
Over the last three decades, hundreds of thousands of people around the world have been trained in community, divorce, family, commercial, organizational, and workplace mediation, as well as in allied conflict resolution skills such as collaborative negotiation, group facilitation, public dialogue, restorative justice, victim-offender mediation, ombudsmanship, collaborative law, consensus decision making, creative problem solving, prejudice reduction and bias awareness, conflict resolution systems design, and dozens of associated practices. **Also available in PDF.

 

Articles By: Jack Goetz

Serving the Public: The Case for Formally Professionalizing Court-Connected and Litigated Case Mediation
By Jack Goetz
It is not illegal for someone in California to raise a sign or to place an ad claiming to be a mediator, charge fees for mediation, and engage in this largely regulated process intending to serve the public by helping parties resolve disputes. As the ninth largest global economy, California is a sizeable and an illustrative example of how the mediation field operates with in the United States as well as here the field may be moving as the occupation evolves. Young notes, “most mediators in most states...can hang up a shingle without meeting any licensing or training requirements or agreeing to be bound by any ethical guideline. **Also available in PDF.

Courtroom "Intake" Speeches For Civil Harassment And Small Claims
By Jack Goetz
The theory, as applied in these presentations, is something every new mediator learns or should learn in their mediator training. Some of the universally acclaimed principles upon which mediation is promoted as superior to litigation in resolving a dispute. While mediators responsible for making the speech may have local variations that include references to the setup of the courthouse mediations or localized process, the genesis of the speech components rests in these reasons and their practical application. **Also available in PDF.

Civil Harassment Mediation: A Settlement-Friendly Environment
By Jack Goetz
The court may assign a specific case to the mediators, or alternatively, mediators may be allowed to solicit volunteers for mediation from the litigants waiting for the courtroom to start the day’s calendar. If the parties do not settle at mediation, they proceed almost immediately to their court hearing on the matter. The mediations in these matters are generally very short; 30 minutes to an hour may be all the time you have to mediate before the court calls the case. **Also available in PDF.

The Value-Added Attorney (How To Make The Most Of The Court Required Mediation Process)
By Jack Goetz
The “value-added” attorney who has chosen to make the most of the mediation process approaches it openly and conscientiously works to develop the best options for the client short of going to trial. Ultimately, those attorneys who do not pre-judge the process and instead approach it as a meaningful step in guiding the client are the ones who will reduce client error and ultimately maximize their client support and working relationship. The brief 4 point checklist making the most of the mediation process for your client is. **Also available in PDF.

 

Articles By: Doug Noll

"A Recipe for Peace"
By Douglas E. Noll
Pride is one of the great causes of conflict. It is not just the usual over-exaggerated sense of self, but also involves strong identification with a group. Read about the one way to transform conflicts based on pride and group identification. January 2006 **Also available in PDF.

"Heat and Humidity in Motown: The Role of Physical Environment"
By Douglas E. Noll
One of the simplest peacemaking techniques I teach is to change the environment. If you are in an argument or conflict with someone, try moving somewhere else. Taking a walk or finding a secluded space can work wonders. First, the time it takes to get to the space slows down the escalation process. Second, moving to a new space symbolically permits a new start to the process. December 2005 **Also available in PDF.

"Reconciliation"
By Douglas E. Noll
Joe, Martha, George and Anna had been fighting over their parents’ home and five acres for ten years. They had endured four lawsuits amongst each other, some resulting in judgments that had been enforced. Four years ago, the home burned to the ground with no insurance to rebuild, leaving a vacant lot to fight over. Each side had gone through two or more lawyers. The family had been torn apart through bitterness, anger, and strong feelings of injustice. October 2005 **Also available in PDF.

"De-Escalation The Key To Peace"
By Douglas E. Noll
De-escalation moves parties from emotionality to rationality, allowing them to make sound choices. If parties are pushed too quickly to be rational, they will balk and impasse will result. De-escalation is therefore a key element of peacemaking. September 2005 **Also available in PDF.

"Compassion"
By Douglas E. Noll

Compassion is one of the great unheralded traits of business leadership. Compassion requires you to subjugate your own need for attention and self esteem to the needs of others around you. You care and you are sincere in your caring. True compassion in the business world is very rare. August 2005 **Also available in PDF.

"Mediating The Aftermath of Terry Schiavo's Case"
By Douglas E. Noll
Terri Schiavo’s death has dropped from the news. For the family, the news trucks, interviews, and spotlights have been turned off, but the hostility, anger, and unresolved conflict must remain. Considering the 12 year conflict played out in the courts, the Florida legislature, the United States Congress and the White House, could reconciliation between the family members be possible? As a peacemaker, I think so. I also believe that until the family reconciles, personal healing will be very difficult. June 2005 **Also available in PDF.

"Talking It Out is the Path of Peace"
By Douglas E. Noll
Most people are exposed to coercion as their first conflict resolution process. What child has not been punished by banishment to her room or bed without dinner? Children quickly learn that personal autonomy is dependent upon personal power. The bigger, stronger person usually will get his or her way. January 2005 **Also available in PDF.

"Resolving Family Business Conflicts"
By Douglas E. Noll
In this article, I want to share a story about a family business conflict. This is not based on any real family business, but is so common, it could be. December 2004 **Also available in PDF.

"It's The Principle"
By Douglas E. Noll
Understanding when people have been wounded and how deep the wound has been experienced can give you insight into the conflict. Narcissistic wounds require the peacemaker to be non-judgmental and to show loving kindness and compassion. If the offending party can also be compassionate, appropriately remorseful, and empathic, the injured party can usually start on a healing journey to forgiveness. November 2004
**Also available in PDF.

"The Neuropsychology of Forgivenes"
By Douglas E. Noll
The perception of injury to our self, which is injustice, has several parts: (1) a sense of self; (2) an ability to evaluate the behavior of others as being injurious or beneficial; and (3) memory of the event to link that injury to the offending person. October 2004 **Also available in PDF.

"Bioethical Mediation: Peacemaking and End of Life Conflicts"
By Douglas E. Noll
Bioethical mediation provides a respectful way for resolving difficult medical care conflicts. It honors the interests of all of the stakeholders and seeks peace through a caring, understanding process. Bioethics mediation, although new, is another example of how positive peacemaking is finding its way into our culture, our institutions, and our daily lives. August 2004 **Also available in PDF.

"Internal Business Conflicts"
By Douglas E. Noll
Internal conflicts are normal, predictable, and resolvable if they are addressed rather than ignored. Unfortunately, since many companies have an implicit policy of repressing or avoiding conflicts, differences in business values can roil out of control. June 2004 **Also available in PDF.

"The Value of Listening"
By Douglas E. Noll
We rarely have the experience of being deeply heard by others. Most of the time, others tune out while we speak. When we can listen to others, especially in deep, intractable conflicts, we learn about ourselves and our capacities for positive good. When we are listened to, we feel honest respect and appreciation. Conflict cannot exist in such an environment and harmony flourishes. December 2003 **Also available in PDF.

"Why Can't We All Just Get Along?"
By Douglas E. Noll
Many will recall the plaintive call of Rodney King, the man whose vicious beating by members of the Los Angeles police department was caught on video. Mr. King cried out, “Why can’t we all just get along?” The reason we cannot always get along seems to be based, in part, on our brains. December 2003 **Also available in PDF.

"Coercion - More Costly Than You Think"
By Douglas E. Noll
Most people are exposed to coercion as their first conflict resolution process. What child has not been punished by banishment to her room or bed without dinner? Children quickly learn that personal autonomy is dependent upon personal power. The bigger, stronger person usually will get his or her way. October 2003 **Also available in PDF.

"Conflict Over Styles"
By Douglas E. Noll
Conflict styles are generally not consciously chosen, but emerge as a repertoire of actions that have been learned since childhood from everyday encounters, arguments, and disputes. Most people use their full range of conflict styles to one degree or another but, depending upon the nature of the conflict, prefer particular behaviors over others. June 2003 **Also available in PDF.

"Restorative Mediation"
By Douglas E. Noll
In the past ten years, a number of different mediation styles and techniques have been developed. To these processes, I add a style that I call restorative mediation. Restorative mediation is a mediation process that uses restorative justice principles to guide process and measure outcome. September 2002 **Also available in PDF.

"A Theory of Mediation"
By Douglas E. Noll
There is no lack of debate in the field of mediation. Topics that tend to attract the most attention and vigorous discussion include mediator qualification and process outcome. What's lacking, according to Douglas Noll, is a practical theory that would bring together different views, and help both practitioners and clients. In the following article, Noll reviews existing literature to form a simple mediation theory founded on basic conflict dynamics. Noll theory provides a framework for explaining various mediation styles and outcomes -when a certain approach is appropriate and why. February 2001 **Also available in PDF.

"Conflict Escalation: A Five Phase Model"
By Douglas E. Noll
Conflict escalation is a gradual regression from a mature to immature level of emotional development. The psychological process develops step by step in a strikingly reciprocal way to the way we grow up. In other words, as conflicts escalate through various stages, the parties show behaviors indicating movement backward through their stages of emotional development.  November 2000 **Also available in PDF.

"The Way of The Mediator: Honor The Contrary Position and Confront Disrespect Directly"
By Douglas E. Noll
In conflict, watch out for disrespect. If you catch yourself dishonoring the other side, re-evaluate where you are at. Very little constructive work can be accomplished as long as the feelings of disrespect persist in the conflict. One of the most important ways to demonstrate mutual respect is to honor the contrary position. September 2000 **Also available in PDF.

"The Dollar Auction Game: A Lesson in Conflict Escalation"
By Douglas E. Noll

This article sets the stage to learn about conflict escalation by playing a game. The game is called The Dollar Auction, and the lesson is: "Beware of entrapment in conflict escalation as it will cause you to prolong conflict unnecessarily." September 2000 **Also available in PDF.

"The Role of The Peacemaker: Adaptive Versus Technical Work"
By Douglas E. Noll
When the peacemaker first meets the parties, she must quickly and silently diagnose their adaptive capacity in the conflict. Adaptive capacity refers to the ability to change views, values, behaviors or assumptions. **Also available in PDF.

"What is Peacemaking?"
By Doug E. Noll
Peacemaking is a complicated concept because peace can be defined in so many different ways. When we speak of peace, we understand it in two ways. First, there is negative peace. The second way of understanding peace is as positive peace.  **Also available in PDF.

"Ten Principles of Peacemaking"
By Doug E. Noll
I use the term peacemaking to describe the values and processes involved in transforming difficult and intractable conflicts. Ten principles of peacemaking guide me in my day to day work with conflicts. **Also available in PDF.





 
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