Collaborative lawyer and ADR professional David Hoffman, in an op-ed in the Christian Science Monitor, asks, “Microsoft and Yahoo: Where were the mediators?“

David makes the strong case that mediation could have made all the difference, getting these digital technology giants to yes:

In the Microsoft-Yahoo negotiations, a mediator could have helped in several concrete ways.

First, since disagreements about the price of a company usually turn on financial predictions, mediators can help the parties structure creative options for mitigating their risks. Acquisition agreements often contain “earn-out” provisions that award benefits to the seller if the deal turns out to be a winner for the buyer. Without any investment in the outcome, mediators become “honest brokers” who can advance such ideas without the perception that they are seeking an advantage based on secret knowledge.

Second, a mediator can help the parties obtain neutral and independent opinions – as opposed to the potentially partisan opinions of the parties’ hired experts, lawyers, and investment bankers.

Third, a “mediator’s proposal” can test the waters of compromise. Let’s say the mediator asks each side to tell the mediator – on a confidential basis – whether they would accept a deal at $35 per share. This protocol means the mediator will report the answers only if both sides say “yes.” Thus, each side can take the risk of saying yes because the other side will never know unless they, too, have said yes.

Considering that mediation is “assisted negotiation“, it’s time for all of us who mediate to draw attention to the fact that mediation is not just for settling cases on their way to court or already in litigation — mediation makes sense whenever people want to negotiate better and smarter.

Read the rest of David’s commentary here.

Susan Jacoby, the author of The Age of American Unreason, a polemic on anti-intellectualism in the U.S., has accused Americans of a lack of global awareness. There is indeed evidence to support her views: a geographic literacy study conducted by National Geographic in 2006 found that six in 10 Americans ages 18 to 24 cannot locate Iraq on a map of the Middle East.

Even more depressing is the news that “fewer than three in 10 of those surveyed think it is absolutely necessary to know where countries in the news are located. Only 14 percent believe speaking another language fluently is a necessary skill.”

In an effort to build global knowledge and increase geographic literacy among American youths, National Geographic has created My Wonderful World, with tools and resources for parents, educators, and students.

Interested in more sites and online tools for increasing global knowledge or improving your ability to interact with those of other cultures and countries? Check out these posts from the Mediation Channel vaults:

“New world (view) order: Web site promotes culturosity and intercultural awareness”

“Online game tests knowledge of world geography”

“Geography has made us neighbors: the importance of geographic literacy in the 21st century”

“Internet as mediator: web sites provide online resources for building community and conversation”

Brevity, said the Bard, is the soul of wit.

If you seek proof of the truth of that maxim, then look no further than What About Clients?, one of the very best of the legal blogs. Irreverent, edgy, and smart, with a keen international focus, What About Clients? has long made the case that in a flat world, savvy American lawyers eager to retain their competitive edge must look beyond U.S. borders and across the seas for news, ideas, and business.

Practicing what it preaches, WAC? recently assumed a new name (What About Paris?) and a new slogan (”News and ideas on clients, customers, business and law around the globe”). What remains unchanged of course are the crisp writing, dangerously sharp ideas, and the extensive list of international blogs in the site’s sidebars.

In a speech in March, U.S. presidential candidate Barack Obama initiated a national conversation about race. He reminded Americans that “that your dreams do not have to come at the expense of my dreams; that investing in the health, welfare, and education of black and brown and white children will ultimately help all of America prosper”.

It’s a hard conversation to have. But one web site is pushing people to keep talking.

Exploring Race, a forum hosted by Chicago Tribune editor Dawn Turner Trice, gives Americans a chance to bring race out into the open. Trice writes,

We have a moment in history to have a national discussion about race. We should seize it and try to mine it for what it’s worth. I want this to be a safe place where people of all races can explore their views and biases, openly and honestly.

You can learn about race etiquette, use the prejudice compass to get your bearings on your own biases, or simply join the conversation.

If we are fortunate, mentors await us along our path, reaching out a hand to guide us when the road grows rocky or shining a light on the way ahead. Later our lives lead us miles and years from our own beginnings. In keeping our eyes on the path ahead, it’s easy sometimes to forget to look back and remember the ones who steadied our steps.

I received an email this week that reminded me how important it is to stop and look back, to recall our mentors and the difference they made to our work and our lives. The email was from my friend Ericka Gray, who shared with her colleagues reflections and memories on learning of the death of a champion of ADR and justice, whose wisdom and encouragement influenced the direction of Ericka’s own life. I thank Ericka for allowing me to share her message with a wider audience:

Dear friends and colleagues;

I just learned of the recent death of my first mentor in the field of ADR, retired judge Martin L. Haines. I wanted to share my knowledge of him with you.

He taught me to always challenge the status quo when the status quo wasn’t good enough and to always question things that I thought needed questioning. At my interview to become the director of the 4th multi-door courthouse in the US, he asked me what I thought my job might be. I responded, after having listened to his ideas, that it was to challenge the court system to do better and to make people think about things differently. I was hired even though I wasn’t a lawyer, as the job supposedly required. After working for him for several months, I revisited the question of my job and told him I thought that it was my job to cause some sort of trouble at least weekly. He smiled, thought for a moment, and said that he was inclined to agree. His eyes sparkled as he added that he often caused trouble and it seemed that he had the most fun when he was doing so. Since he wrote many controversial decisions and was known to routinely be questioned by those above him, he truly enjoyed what he did! I resigned when he announced his retirement since I couldn’t imagine working there for anyone else.

Judge Haines was an incredible man who had the respect of all, even those who didn’t agree with him. He was truly a gentleman. I will miss him. He has left an indelible mark on my soul and encouraged my passion for pursuing justice in both process and outcome for all. I wish that you all could have known him.

Is there a mentor you’d like to thank? Let them know while there’s still time.

The internet always astounds me for the richness and diversity of the resources it makes available to anyone with the time and the curiosity to discover them.

Consider my latest web find: Social Innovation Conversations. Its motto proclaims its mission: “reinventing the world together one conversation at a time”.

Described as “an open and collaborative online platform for cross-sector and multidisciplinary learning for social change”, Social Innovation Conversations was launched to achieve an ambitious and inspiring goal:

From the pandemic of AIDS, to challenges posed by climate change, to substance abuse and global poverty, our world is faced with increasingly complex and pressing social and environmental challenges. While knowledge, tools, and technologies to develop innovative solutions exist, channels are still needed to reach the people who could use and apply them to social problems.

Social Innovation Conversations’ mission is to expand the reach of important and valuable knowledge to people who otherwise wouldn’t have access to it by recording and sharing the spoken words of thought leaders in all sectors and disciplines and offering listeners a multi-stakeholder perspective on the world grand challenges and social issues.

Teachers and students of negotiation will want to tune in to a recent podcast: “Myths and Truths About Negotiation“, a lecture by Margaret Neale, Professor at Stanford Graduate School of Business. The five negotiation myths that are in for busting are:

1. Making the first offer is risky
2. Perceptions about dividing the pie
3. Honesty is the best policy
4. Emotions at the negotiation table are your enemy
5. I had no choice so I said yes

There is other knowledge worth exploring at Social Innovation Conversations — as you will discover for yourself.

Alltop, a newly launched news aggregation site described by founder Guy Kawasaki as

an ‘online magazine rack’ that displays the news from the top publications and blogs

has just added eight mediation blogs. They are:

• My blogs, Mediation Channel and World Directory of ADR Blogs
• CKA Mediation & Arbitration Blog (Chris Annunziata)
• Conflict Zen (Tammy Lenski)
• Engaging Conflicts(Gini Nelson)
• Idealawg (Stephanie West Allen)
• Mediator blah…blah… (Geoff Sharp)
• Settle It Now Negotiation Blog (Vickie Pynchon)

You can see us all at http://law.alltop.com.

I feel deeply honored to have both my blogs selected for inclusion in this “best of the best”. To Guy Kawasaki, Kathryn Henkens, and Will Mayall, thank you for finding a place for mediation blogs on Alltop. And congratulations and best wishes on Alltop’s launch!

Make your mother proud by paying a visit to Blawg Review #158, hosted by The Mommy Blawg (”the intersection of mommyhood and the law”) in honor of International Midwives Day.

Blawg Review of course is the weekly review of the best in legal blogging, hosted each week by a different blog.  Next week’s host is the Whistleblower Law Blog.

Speaking of mothers, if you live in the U.S., don’t forget to call yours on Sunday — it’s Mother’s Day.

This is easily one of the best, all-time great quotes about mediation:

When we begin our mediation training and practice, we often hear (and speak) of the magic of mediation. When it works, it truly is wondrous. It’s easy to see why a mediator feels like a wizard with supernatural powers, enabling lambs to lie down with lions. Based on my experience in the realms of magic and mediation, here is my hope.

Once upon a time, if you could take a cup of water, put it in a box, push a button, and make that water boil — without raising the temperature inside the box — you’d have a miracle on your hands. Ditto for talking to someone, or even seeing them in real time, on the other side of the planet — or even in outer space! How magical is that! And yet, thanks to technology, even the youngest child is jaded by these daily experiences.

My fondest wish is that our social evolution keeps pace with our technological progress, so that the peaceful resolution of disputes will similarly become as commonplace as microwaves and mobile devices. Then it will no longer seem that mystical forces -or card tricks, or magic pennies — are needed to bring together the bitterest of enemies for a common purpose.

From Jerry Lazar, a mediator by day and magician by night, who explores the magic of mediation at his delightfully titled blog, Fight Nicely.

(With thanks to Vickie Pynchon who makes magic of her own at Settle It Now Negotiation Blog.)

Giving whole new meaning to the phrase “you be the judge”, People’s Court Raw invites anyone with a dispute and a video camera to upload their argument, notify the “defendant” by email, and then let the web-surfing masses vote on who’s right.

Boasting that People’s Court Raw “is the ultimate democratic tool”, spokesperson and media personality Harvey Levin (no relation) urges visitors to “let the world finally prove you right…” with this “ultimate argument ender”.

As of this posting, cases include a dispute over a boyfriend’s back hair; a workplace quarrel about a co-worker who belches; and a domestic spat that results when a husband can’t get to sleep because his wife snores.

Hat tip to Colin Rule.

Test your ability to distinguish genuine smiles from fake ones at BBC Science. You’ll get your results when you’ve finished, plus a discussion of why most people do a bad job at spotting fake smiles.

To put your ability to read faces to a different challenge, check out “Let’s face it: test your understanding of facial expressions” from the Mediation Channel vaults.

You can also test the sex of your brain, or amuse yourself with a full array of other online psychological tests and surveys.

(Hat tip to Cognitive Daily.)

Photo credit: Sanja Gjenero.

We mediators play midwife to decision making. We patiently assist in an arduous and sometimes painful process while parties labor, struggling to make the right choices in difficult circumstances. We strive to ensure that those who weigh those choices are able to reach rational decisions based on accurate and complete information.

But just how rational are the decisions that people make, whether at the mediation table or anywhere else? How much control do any of us really exert over those choices?

A new book has some surprising answers and explains why it is that we are more susceptible than we realize to the vagaries of our own minds and vulnerable to the forces of emotions and social norms. Predictably Irrational: The Hidden Forces That Shape Our Decisions, written by Dan Ariely, a behavioral economist, the Alfred P. Sloan Professor of Behavioral Economics at MIT’s Sloan School of Management, and a visiting professor at Duke University.

As much fun as the book (and of course more interactive) is the Predictably Irrational web site. Don’t miss the Demonstrations page with cool optical illusions and games you can test yourself with.

“A Sound Mind in a Sound Body” is the theme of the latest issue of The Complete Lawyer, an online magazine covering professional development, quality of life, and career issues for attorneys published by Don Hutcheson. It explores ways to reduce stress; a look at nontraditional careers; and the link between mind and body for better quality of life.

The last issue of The Complete Lawyer introduced “The Human Factor“, a column focusing on ADR from the perspective of four attorneys who mediate - me and three talented colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog.

In our latest Human Factor column, the four of us describe the different paths that led us from law school to the practice of mediation.

Recently I compared Blawg Review, the weekly review of the best in legal blogging, with a box of chocolates. You never know what you’ll reach into the box and pull out, particularly since each week a different blogger plays host, sampling many different posts across a wide range of topics.

Blawg Review #156, hosted by Benjamin Duranske at Virtually Blind, covers virtually everything you could want to know about virtual worlds and the brave new world of virtual law, and includes a short discussion on ADR in virtual worlds to resolve the disputes that inevitably arise wherever there is human interaction.

Meanwhile, Michael Fitzgibbon, a Toronto-based attorney, honors the Canadian National Day of Mourning at Blawg Review #157 at Thoughts from a Management Lawyer. It is a day established in memory of workers killed or injured in the workplace and in renewal of the pledge to make the workplace safe.

In a punchy headline, the ABA Journal sums up the message a U.S. Supreme Court justice has for his critics in “I’m Conservative, But Not Biased, Scalia Says … So Get Over Bush v. Gore“, a story about Scalia’s recent interview with the TV news magazine 60 Minutes.

As I read the story, I thought back on other controversial cases in which those critics questioned Scalia’s ability to be impartial. For example, there’s the infamous duck hunting trip with Cheney, when a case involving the Vice President was pending before the Court. Despite Scalia’s insistence that “I do not think my impartiality could reasonably be questioned”, folks who understood something about the subtle tools of persuasion weren’t so reassured. One of those tools, reciprocity, is what creates a powerful sense of obligation when we receive a gift from someone else.

What makes bias so pernicious is that all too often we are blissfully unaware of our own. I’m guessing that maybe all that certainty is simply evidence that Scalia has fallen victim to one of the most pervasive of cognitive errors, overconfidence bias, which explains why a large majority of us place ourselves in the statistically impossible top percentile when it comes to things like driving skills, intelligence, negotiating abilities, even humor. As two Cornell University researchers put it, most of us are unskilled and unaware of it (PDF).

Scalia is undoubtedly conservative. But unbiased? Given how blind we all are to our own biases, this makes a good case for settling before trial; it’s tough enough being at the mercy of our own cognitive errors. Why be at the mercy of those of the judge, too?