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Mediation On-Line

A Newsletter from ADR Resources
Volume 4, No. 11 (September 2001)


Stephen R. Marsh Picture


I will have an essay on metaphor use by Dr. Suzette Haden Elgin at titled:  Metaphor in Mediation: Mediation is a _What_?  Contrary to much rumor, Dr. Elgin is not deceased and is still alive and publishing.  I am grateful to her for th earticle.

An interesting note is that my brother-in-law is employed full-time as a mediator -- and doesn't know it.  He was assigned to troubleshoot some problems between the construction firm he works for and Kaiser.  Now he spends each day mediating conflicts between the hospital and the construction crew.  After a couple times terminating the position because "it was no longer needed" or "that guy isn't doing anything" he has become a permanent fixture in that role.  I was amused to hear my parents talk about it, since Nathan's primary employment has always been construction and no one where he works or at Kaiser has a ready term for the role he currently fills.

Finally, I was in a mediation representing a party and found myself really wishing I had a different mediator.  Jerome Levy (on the web at is my "go to" mediator for difficult conflicts and my favorite for my clients.  The funny thing was my first thought was "I wish we had bucked the judge and that I had talked the client into paying the extra fee ..." while on reflection I realized that Jerome is actually cheaper than the guy we used (who, after a rough start, did an excellent job and brought us to a great resolution).

Jerome's web site is perfect except it needs to have cost information on it.  I keep forgetting how reasonable he is.  I'd post the url for my number two choice, except he doesn't have a web page.

The Recommended Book of the Month:

The Gentle Art of Verbal Self Defense at Work by Dr. Suzette Haden Elgin.

I am trying to switch to FrontPage from AOLpress and have found the "Official Microsoft FrontPange Book" to be useful. It is really the manual that should have come with the software.

Interesting new Mediation & ADR (and other) web sites

I should note the following corrections:

1. Eastern Mennonite University is located in Harrisonburg, Virginia. They have a small campus in Pennsylvania but they're based in Virginia.

2. National Center for State Courts is based in Williamsburg, Virginia. They do have an office in Arlington, VA, and one in Denver, CO. They are not really a university, though they are an educational institution, and do have the Institute for Court Management (ICM) (see

Educational Programs / News and Book Reviews/Books/Periodicals

ADR Center, Italy’s first and largest private provider of commercial mediation services.Has their third annual International adr conference, whose final program is on-line at

I and Chris Gilbert have sent a proposal in to the ABA for a seminar at the fourth annual conference, next year in October. Chris presented this year with Jane B. Garzilli and Tina Patterson on "Attribution Theory: Cross Cultural Pitfalls and Practices" and received high evaluations.  I will post further if the ABA decides to use our proposal.

Triune is having a "back to school sale."  The "Resolving Conflict Creatively" series is currently being used by over 800 schools and community groups worldwide from Fairbanks North Star Borough School District, Alaska to the African Centre for the Constructive Resolution of Disputes in South Africa. The Box Set contains four videos, three detailed manuals, two student handout booklets and is priced at $425 (US).  For a sample of part of the series, visit

Mexico is holding its first national Congress on Mediation from November 7 -10, 2001.  If you wish to obtain more information, you can email Mtra. Amelia Iruretagoyena Quiroz. at

Now Available -- A Videotape of the 2001 Representation in Mediation Competition

This videotape captures the final round of the 2001 National Representation in Mediation Competition held in conjunction with the ABA Section of Dispute Resolution Annual Conference on April 26-28, 2001 in metro Washington, D.C. In the videotape, two teams of law students role-play as lawyers and clients engaged in a mediation. The two-hour videotape contains numerous examples of advocacy techniques, communication behaviors, and mediator skills. At the end of the role-play, both teams engage in self-analysis and are also critiqued by a panel of three judges.

This videotape is available from the Section of Dispute Resolution for $25.00. Send payment to ABA Section of Dispute Resolution, 740 15th St., NW, Washington, D.C. 20005. Fax: (202) 662-1683 Phone: (202) 662-1680 E-mail: Web:

The ACR Organizational Conflict Management 2001 Section Meeting. Taking place November 29 - December 1, 2001 in Atlanta, Georgia. "Creating Space for Learning" will offer a unique opportunity for organizational conflict management professionals. Visit thier web site at for information.


I've seen some interesting jobs at twenty-three to twenty-six thousand dollars a year.  I look forward to the day when mediation full-time jobs pay a true living wage.

Current Issues

I have had some interesting discussions.

I was working on some guidelines for how to determine if the trainer you are working with is competent.  Many of those guidelines are discipline specific.

I.e. a law professor who talks on ADR ought to know the law that controls arbitration.  A psychologist would not be expected to cover that, but ought to know about family dynamics in mediation (something I would not expect out of a law professor).  A sociology program ought to cover more than just the shuttlecock method of mediation and should provide some basics on facilitating the resolution of public policy disputes -- while public policy disputes are really not part of a 40 hour course.

Or, in terms of negotiation, a law professor is competent if they can cover aggressive and cooperative negotiators (and good enough to win a national competition).  A conflict resolution professor ought to be able to name the five models of negotiation.  The difference is that lawyers pretty much end up with one or the other of the two listed modes, human beings tend to use all five.

It is fairly easy to come up with simple litmus tests.

The discussion moved to how to tell if a mediator is competent.  I find it impossible to come up with a simple litmus test.

Also, violence avoidance is important.  In that line, I would quote from an e-mail I received.

Steve, this thank you note is long overdue. Thank you for your help in opening up new avenues for me.

I am a lawyer who has re-tooled into mediation. A couple years ago I was asked to teach mediation skills to the young offenders here in Calgary, Alberta as a volunteer. I agreed. As I was putting the course materials together, Columbine happened, and I received your newsletter on resources for dealing with youth violence. You referenced the work of Dr. Suzette Haden Elgin. I immediately went out and bought the two books you referenced. They changed my life. And my work.

Reading Dr. Elgin's work and speaking with her, I realized that the kids did not need to learn to strategize new ways to resolve problems as much as they needed to learn how to defend themselves against taunts and verbal attacks. If they could prevent the verbal abuse from escalating, physical fights would be avoided. I started with the Conflict Response Model and how to look at conflict in a new way, with how the brain processes information, with active listening skills, and added the Gentle Art of Verbal Self-Defense. I later added a module on how to deal with anger (your own and others'). In the teaching the course, I developed the program now known as FistFree Language™.

Dr. Elgin has been a tremendous support and resource with this program. I now have a shelf of her materials. What an excellent writer! and insightful linguist!

The program works well with young offenders. In fact, they are asking for more.

I've also developed a course for airline flight crew and ground crew to deal with air rage. And I'm developing a pre-mediation course to help people re-focus and be able to hear better and communicate their own needs better.

I've started a website, but it is still in its infancy, at

Submissions to

As always, I am interested in any submissions or articles anyone would like to have posted on the web -- and I am glad to be able to point them out in this newsletter.  I prefer to post material as you have written it, with no editorial changes by myself.  I should also note that I am changing my service provider, so that is the best e-mail address to use to reach me.

With my best regards, I remain,

Sincerely yours,

Stephen Marsh
Additional material is included in the on-line version.
If you are curious where the term/name Ethesis comes
from, visit

Back issues at

If for some reason you wish to be removed from my periodical mailings please let me know. If I'm sending anyone extra copies or sending it to anyone who shouldn't be getting it, please let me know. This e-mail mailing list is supposed to be limited only people who would be interested and who have subscribed.  Thanks for your patience and help.

Post Script (the "extra" material for the on-line version).


I also appreciated your analysis. I liked the "basic principles" principle. I think there may be others around eg trust building that could be explored. Also the use of paradox. Eg if people are told they dont have to settle then it removes the pressure to settle - and they are more likely to do so.

One comment is that there ought to be a differential between the role of the advocate/lawyer, and the mediator. the one that i utilise is the diff between analysing a case (ie strengths and weaknesses) and evaluating - ie what is the percentage of winning? - that is an advice giving function - whilst the former is information giving on which the party can make a wise decision.  

It is not "peekaboo" mediation- but does describe the costs and risks of litigation and contrasts same with outcomes poss at mediation. (Eg litigation is about the past; provable facts and legal rights - mediation can do all that plus - allow for the present and future; the parties perception of the facts - provable or not, or even real or not; and of course needs and interests)

Arguably there is a risk if the analysis leaves something out - but the intervention is not much more than a summary anyway, and can be reality checked with the parties so they take responsibility, and the "value added" is to empower them with better tools to make their own decision. It can be done in caucus or plenary session.

It gives credence to the presence of lawyers, and by inference frees the mediator to do their thing without legal over-interruption.

So everyone present gets treated with respect.

The name of "analytical" mediation as a compromise between "pure" and "evaluative" is suggested.  I have just never seen it identified like this in any writings. Maybe I've missed something.

After all if one gives advice there is the risk of being sued for negligence - why would a mediator take that risk w/o necessarily the returns lawyers can generate to pay insurance? or anyway? When a lawyer is present to take that job on?

Also lawyers here tend to be shy about talking costs with their clients. i often get "I'll have to check with the office whats on the computer time records" when I ask them (in caucus).  But a party will need to know what fees are at mediation stage to ensure they dont end up with a debt - and it also clarifies what will be left over for them after fees are paid. They also need to know the costs of going further - is the case economic - often a deal breaker.

I find that an agreement to pay legal fees (i do mainly enmployer/employee cases) takes a lot of pressure off excessive claims - from the lawyers point of view secured payment of present fees from an affluent employer may well be preferable to uncertain payment for a much larger amount much later and then promptly only if the litigation is successful. Because they are dealing with a client who is out of work. It can also backfire. "I wont pay that xxxx a cent. Its only because of him that this case is being brought!"

My other comment is that people need to vent - and the other side to hear them. The most mellifluous advocate is not as authentic as the voice of the complainant. I dont caucus as a rule until this has happened. it discharges one of the basic needs - to hear and be heard. After that shuttling works OK. There are exceptions - eg some harrassment cases. But i suspect you know all this.

Basically I work through all the non monetary issues first - then people can be rational about realistic money. Ie the zen of "crossing the last gap" is to find out what money is the metaphor for and deal with that first. Ergo money doesnt have to carry any baggage.

Of course there are several articles if not books in all of this. I hope I have explained enough of what I mean.

Mr. Marsh,

Thank you for directing us to your essays, and for the effort and thought you put into them. My comment is on your essay on typology and analysis of trends and fits between types and paricular situations. (in a sense your essay on dr studies was also a typology and analysis essay, this may be a type of thinking you enjoy or believe needs doing).

As a mediator and trainer in conflict skills and mediation, I have been assisted in your analysis of what kind of work suits what kind of situation. In describing the situation, the expectations and at least conscious preferences of the parties are important features.

Yet I have too many stories of helpful cross-category work to make quite as much of the categories as the typologies -- useful as I too find them -- or perhaps more correctly, to be satisfied with differentiating the categories, or even with choosing which are best for which situations and types of conflicts. This is not asking that your essay do what it seems not to have been aimed to do. It is suggesting a further task for all of us: I suggest we spend some energy on describing those skills and mediator actions which are found helpful in many or even perhaps every mediation; what mediator qualities and actions seem to help make any or all of the methods work well (in the situations in which those methods are otherwise appropriate)?

For I, likely as many others, have experienced situations in which as mediator I complied with the expressed strong preferences of parties (counsel) about the process (within my limits, declining the most directive or evaluative forms and offering a needs-based explanation for my substitution of a more facilitative or pure process format) -- complying on the surface while underneath wondering whether or when or how the mediation might show itself as needing some of the needs-based discussion or empathic work. I tell trainees that the counsel might indeed have left the mediation feeling reinforced in their belief that "it was all about the money" and the money bargaining with a little shuttling was all that had been needed, and that the more "processey" mediator was really off base. The named parties might perhaps recall the few minutes we spent, after the counsels' money bargaining stalled, discussing the contruction project, the goals of each disputant, their images of themselves as capable and honest professionals, and recall that only after the feel of the meeting had shifted were the counsel able to return to the numbers bargaining and to conclude a deal.

My experience in those cross-border events suggests my one challenge, to the way we use your typology. You list the basics of any mediation as trust building, careful listening, etc. My point is one I raised at a final comment period in the Postal Service training a few years ago (and one I raised as a Clniical Psychology graduate student as well): There tends to be an excess of "product differentiation" in most of the method labeling and description; that is, the methods have more in common than is usually recognized when the focus is on telling them apart or describing what is new, or what differentiates one method from another -- and those features they have in common are likely highly related to what makes any of them work well (when they do work well). Since much of the approach description is done as part of "sales" efforts by practitioners, with some professionals plugging for the advantages of what they [think they] are doing, this is natural and expectable. But with that being the main mode of method discussion (not, however, in your essay), we may lose the great benefit which careful analysis of what features of mediator behavior help make any method serve disputants to the fullest of its potential (gladly granting the points you make about choosing an appropriate pattern for the particular situation). I suspect we will find much in common when we do that analysis -- and that such findings -- if we pay attention to them -- will help us focus our personal and professional improvement and our training efforts and the service that any and all of the types of mediation and related services provide.


- Number of gun owners in the USA: 80,000,000

- Number of accidental gun deaths per year (all age groups): 1,500

- Accidental deaths per gun owner: 0.0000188

- Number of physicians in the USA: 700,000

- Accidental deaths caused by physicians per year: 120,000

- Accidental deaths per physician: 0.171

Statistically, doctors are approximately 9,000 times more dangerous than gun owners.

Fact: Not everyone has a gun, but sooner or later everyone has a doctor.


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