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Mediation On-Line

A Newsletter from ADR Resources
Volume 5, #11 (November-December 2002)
From: s r marsh @ adrr . com


Stephen R. Marsh Picture


I can still say that I have been very busy, though very happy.  The every-other month routine will continue for a while.  I have a nice level of intellectual challenge in my current position (I have had twenty-two successful dispositive efforts this year and November isn't over yet.  Considering that is on twenty-five attempts, I'm winning summary judgment and similar efforts rather often.  I've always loved being a litigator).  I also go to mediation a fair amount, and I love participating in multiparty efforts.

The following announcement is being forwarded to subscribers because I think it is worth responding to:  CRInfo is pleased to issue its 2002 Call for Proposals for Internet-based conflict resolution projects. Awards of up to $7,000 are available for projects that make information about conflict resolution-related topics more readily available over the Web. Details about kinds of projects that will be considered and application procedures can be found at:

The deadline for (e-mail) proposals is 9:00 am Mountain time,

Wednesday December 2, 2002.

Essay One

About twenty years ago I was sitting in class and we were discussing debates over the ABA's model code of ethics.  It seemed obvious to me that the two sides were easily resolved into the two major styles of attorneys who negotiate (the so-called aggressives and cooperatives).  Much like evaluators and non-evaluators make attempts in mediation to define the other person's style as unethical, for over twenty years the aggressives and the cooperatives have attempted to define the other group's style as unethical.  With a 60/40 split (the rough split, though the 60% for cooperatives also includes two other styles and the 40% for the aggressives includes some false positives on the statistics for the ditherers), you would have thought the cooperatives would have won by now.

But the aggressives have more passion, and more of a desire to win, of course.

Several things fascinate me about the debate.

First, no one has yet come out with what I consider the obvious -- that they are attempting to define each other as unethical. I think if they would stop and consider that what they are fighting over is whether the other side is unethical at the core of its mindset, they might make some progress.  That they've gone more than twenty years without recognizing what they are doing astounds me.  A friend, Atticus Falcon, often comments that legal scholarship rarely comes above the sophomore level of college.  He is right, but ....

Second, that aside from the complete lack of insight, there has been little discussion of the societal role that negotiation models fit.  (I'll discuss that in essay two).  Since this goes to the real nature of government, I'd think it would have gotten more attention.

Third, that no one has explored at length the alternative models (the distractor's "no one should get hurt" does get some air time, but the idealist's "we are in it for the truth" or the analytical's "what is going on" get short shrift).  In more than twenty years you would think that there would be more exploration.

Fourth, that there has not been more discussion of the form vs. substance issues that dominate continuing education and parlor game style discussions of mediation ethics (this is what a Court says is ethical, this is what a Court says is so unethical that the results get overturned).  Yes, the typical irony and cynicism crops up over and over again (almost all the cases say that what "Defense" lawyers get caught doing is ok, what "Plaintiff" lawyers get caught doing is unethical), but what has struck me over my twenty plus years of looking at the cases is that I have yet to see one that could not have been accomplished with different language that would have gotten the same result (other than having a Court strike it down after it was all over).  

I've been meaning to address this more at length.  In the context of three figures of footnotes (I've written like that before when I've had the time), but between my wife being in school and employment, I have not had the time.

But next time you listen to an ethics of negotiation debate, ask yourself if they are debating ethics or just attacking each other's innate style.  I suggest that they will not make much progress if all they are trying to do is define the other person's internal ethos as more or less evil.  

The Recommended Books of the Month:

Well, I'm hoping that Atticus Falcon gets Planet Law School, Second Edition, back from the printer soon.  I'm recommending it on hope.

Essay Two

What does a government really do?  Well, lots of things, but its real function is to create and preserve successful markets.  The bigger and safer the markets, the wealthier a country is.  The United States owes much of its wealth to the fact that it is such a large market.  Not only does that create individual wealth (consider the difference between the level of wealth that Shakespeare reached and where Brittany Spears is -- both are entertainers, but the one has a larger market to operate in), but it creates social wealth.

The stock market works because it is relatively safe.  The SEC is justified as a governmental agency because it protects the safety of the market.  

A part of safe markets is creating a high trust environment.  The higher the level of trust, the greater the wealth and the greater overall benefit to society.

A successful market requires that capital and labor flow relatively freely, but not too fast.  (This is not the place, but if this were a longer essay I would discuss fast and slow societies, different forms of wealth, including those embodied in a richer texture of life, labor managed firms, issues of recovery and safety nets, and why a society needs dampening).  Yugoslavia's communist system was the only one in Europe that had food readily available (which I know from personal observation) because it was the only one without a centralized economy.  The major economic theorist for Yugoslavia posited that the country was not rich and smart enough for central planning, so it would have to rely on markets.

This subject is important because the issue of trust, having a rich society and the place of government goes to the government's interest in negotiation and the alternative ways to reach that goal.

A government has two competing goals in regulating negotiation.  First is to allow negotiation to support the free flow of capital and market forces.  (i.e. to allow negotiators to seek their best deals).  Second, to support the inexpensive and free flow of markets and a high trust environment (i.e. not slow things down and create costs that are associated with protecting yourself against fraud).  When you buy stocks, you shouldn't have to worry that IBM has the same problems that MCI/Worldcom had.  If you did, the stock market would grind to a halt and all the value would leave it, leading to a loss of wealth to society.  As the SEC does its job to protect us against Enrons, it increases the wealth of society.

What this means from an outside view of the ethics debate is that the aggressives and cooperatives are both right.  Not to mention, the ditherers' (aggressive's want to win, cooperatives want to cooperate, ditherers want to not be hurt) viewpoint is actually legitimate, for what it is worth.

One of the best ways to reach the objectives of society and of the competing mindsets is to teach people how to negotiate and how to understand the styles of others.  How to say what they feel a need to say in ways that do not reduce trust or increase the transaction costs of negotiation.  (If you think of society as a machine, transaction costs are like sand in the gears.  Negotiators should act like lubrication, not more sand).

Again, this should be a three figure footnote essay.  It will eventually get there.  But if you think of regulations as being aimed at increasing the efficiency and safety of markets, you are well on the way to a setting for analyzing the ethics of negotiation and mediation that has an external, objective framework to measure it against. Not to mention it can add some interesting force to many social justice issues.  (i.e. equal pay for equal work -- fairness is a trust issue, equality is a free flow issue. Our society as a whole is wealthier and stronger if people are paid the same for the same work regardless of sex, age, race, religion, etc.  Making reasonable accommodations for the handicapped results in higher societal wealth).

In understanding this, I owe my Gene Jacobs a great deal for the pragmatic comments he made in explaining what appeared to be pure idealism.  Gene felt that not only did we have a duty to make the world a better place, the world would only be a better place if what we did to help others succeeded.

Interesting new Mediation & ADR (and other) web sites

Educational Programs / News and Book Reviews/Books/Periodicals

A new periodical is on-line at -- and I realize that I have mentioned the Rutgers Journal twice.  It deserves a double mention.

The Bond School's newsletter remains at  I need to find a suggested name for the e-mail header that doesn't make me think it is a newsletter devoted to disputes over bonds (and perhaps stocks).  Interesting issue when a program's name (named for an individual) has a well established common use.  Imagine if Berkeley's law school were "Bolt Hall" instead of "Boalt Hall."

December 4-6, 2002
Greg Conference Center, Bryn Mawr, Pennsylvania
Leaders: Sandra Janoff and Marv Weisbord
Sponsored by: Future Search Network

New Book on DR Ethics from the ABA Section of Dispute Resolution is Available:  Dispute Resolution Ethics: A Comprehensive Guide, edited by Phyllis Bernard and Bryant Garth and published by the American Bar Association Section of Dispute Resolution .  I've requested a review copy and will post more when I've received it and can comment.

Mediator Network, (MN) and Mosten Mediation Centers, Inc. (MMC) jointly announced that Mediator Network is purchasing Mosten Mediation in consideration for an undisclosed amount of stock. That is an interesting development.

The Bargaining Book is available for $15.95 including standard shipping. To order, call FPMI at 256-539-1850 and mention code BBFN0902. This book, based on Title VII of the Civil Service Reform Act of 1978, covers the requirements that are essential to successfully negotiating a collective bargaining agreement or an agreement being negotiated during the existing term of a basic agreement.  I may request a review copy.  If I do, I'll review it at greater length.

For a useful series of updates on employment and other dispute resolution news, send an e-mail to subscribe to the service run by "Deborah Laufer" <>  The material is assembled by Deborah Schick Laufer, Director, Federal ADR Network,, Phone: 301/JUSTICE, Fax: 301-587-8584.

The Southwest Conflict Resolution Network (The NET) is excited to announce our next speaker: Linda Swindling, The Peacemaker.  Their meeting is on November 20, 2002 at the SMU-In-Legacy campus in Building 3, Room 120, at 7:00 p.m. until 9:00. Attendance is open to all who are interested in Dispute Resolution. If you are not a NET member, feel free to attend and invite yours friends and associates. The room will be determined based on anticipated attendance, so please respond to this email if able to attend. Texas Attorneys: They have requested two hours of Continuing Legal Education (CLE ) for this meeting.  "Board SWCRN" <> is the person to contact for more information.

Southern California University of Professional Studies (SCUPS) has a Masters of Science in Law with a concentration in Dispute Resolution program that is entirely distance-learning.

Current Issues

In a way, employment for conflict resolution professionals is always *the* current issue.  While the ICAR listserve at George Mason is the number one place to go. the Columbia Missouri LLM program newsletter contains more and more employment information.  View it at

Also, while the ABA wasn't interested in having my new proposal for the San Antonio conference, the AOM solicited me for a panel in Seattle.  I'll be at both next year.  August 3, 2003 for the Seattle panel I'll be on.

Also, there will be a IJCM Special Issue on Teaching Cases and Simulations

Do you have a negotiation case or simulation that you have been using in class which you would like to see published? If so, the International Journal of Conflict Management will be producing a special issue called Teaching Negotiation: Case Studies and Simulations. We are looking for cases and simulations of all lengths and types, but in all cases there must be a detailed teaching note. The teaching note should provide an outline of the expected class discussion, what questions can be used in class, what lessons are expected to be drawn from the case, and what (if any) conceptual material can be used in the discussion or debrief. Please e-mail submission to Ray Friedman at Vanderbilt University, care of Barbara Haselton (Barbara.Haselton@Owen.Vanderbilt.Edu). Send the case or simulation and teaching note in one Word file. Submissions are due by December 31, 2002.

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.  The above e-mail address (without the spaces -- inserted as a spam block) is the best e-mail address to use to reach me, though I sometimes am not able to check my e-mail for 3 or 4 days.

With my best regards, I remain,

Sincerely yours,

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