Time for ceasefire between mediation and lawLast week I got a phone call from a third-year law student interested in learning more about mediation. Toward the end of our conversation, she told me that her fellow students mocked her interest in mediation practice, dismissing it as “touchy-feely, Kumbaya-singing crap”.

Despite the fact that 21st century legal practice is going to demand more of lawyers than the moot courtroom skills that the first year drills into law students, these students have absorbed the message that negotiation and problem solving hold little value for the practicing attorney. It made me wonder what exactly their law school is teaching them.

Unfortunately, this contempt for and suspicion of mediation is not an anomaly in the law, although fortunately, too, I encounter it with less and less frequency these days as more lawyers are trained in mediation and more law schools teach mediation advocacy and negotiation skills.

Mediators, however, all too often show a similar disdain for litigation, as fellow blogger and mediator Chris Annunziata pointed out just like week, forgetting that the “alternative” in “alternative dispute resolution” denotes choice, and that sometimes court, not mediation, can be the best choice for disputants.

Bridging the divide between lawyers and mediators“, a series of posts I wrote two years ago, confronted this mutual distrust. As introduction I wrote,

Although one field goes so far as to frame itself as an alternative to the other, there is in fact much overlap and common ground between these two seemingly different fields.

There is much that each can learn from the other. Knowledge of one provides a deeper appreciation for the traditions and qualities of the other.

The problem though is that all too often attorneys and mediators view each other as rivals, not partners, in dispute resolution…

My goal is threefold: to help each field better understand and appreciate the other, challenge and debunk some urban legends, and to rehabilitate lawyers and mediators in each other’s eyes.

I propose, in effect, to mediate between mediation and the law.

I think it’s definitely time to rerun this series here on Mediation Channel. Law students, lawyers, and mediators, take note:

Intro: Bridging the divide

Part 1: Valuing the rule of law

Part 2: What mediators can do for lawyers

Part 3: What lawyers can do for mediators

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mediation on youtubeIt didn’t take long for mediators to leverage the power of YouTube.  A search on YouTube for “mediation” today yields almost 4,000 results, impressive even when you take into account the fact that some of those search results include “meditation” misspelled and “Mediate“, an INXS song from 1987.

Among the video clips on mediation that populate the extensive YouTube library is this one: an enterprising mediator persuaded two clients to let the camera into the mediation room and then uploaded excerpts to YouTube, where you can see some of the negotiations involving a neighborhood dispute over a dog.

You can view it here on YouTube. Creative use of social media for marketing or the mediation profession going to hell in a handbasket? You be the judge.

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Questions before decisionsLast fall, in “A negotiator walks into a bar“, I passed along a humorous story offering lessons in problem solving that a friend happened to email me. Over the weekend, this same friend emailed me another joke, which likewise serves double-duty as a cautionary tale for negotiators.

Here it is:

A large company, thinking it was high time for a shake-up, hired a new CEO.

The new boss was determined to rid the company of all slackers.

On a tour of the facilities, the CEO noticed a guy leaning against a wall. The room was full of workers, and the CEO wanted them to know that he meant business. He walked up to the guy leaning against the wall and demanded, “How much money do you make a week?” A little surprised, the guy looked at him and replied, “I make $400 a week. Why?”

The CEO pulls out his wallet, hands the guy $1,600 in cash and yells, “Here’s four weeks’ pay, now get out and don’t come back!”

Feeling pretty good about himself, the CEO looked around the room and asked, “Does anyone want to tell me what that slacker did around here?”

For a moment, silence reigned. Then, a worker close by gathered the courage to speak up: “Pizza delivery guy from Domino’s.”

The moral of the story: ask questions before you decide, not after.

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Colors influence our ability to be creative or attentiveAccording to a study conducted by Juliet Zhu, professor of marketing at the University of British Columbia Sauder School of Business, colors can affect the brain, influencing our ability to attend to details or generate ideas. The study indicates that red increases attentiveness, and blue promotes creativity and brainstorming.

Remember that the next time you redecorate your mediation office.

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twitterI recently joined Twitter.  Twitter, for those of you not yet familiar with this social media tool, is a social and business networking, microblogging, and instant messaging service.

Messages sent via Twitter are short, limited to 140 characters, demanding an economy of expression of its users. Twitter is based on one simple question: “What are you doing?”  Millions of users around the globe are eager to answer, sharing with their network brief updates, news, and ideas sent via computers and cellphones.

Not surprisingly, Twitter, God help us, has come to mediation.  Mediators and clients alike are sending dispatches from the mediation table addressing a range of topics:

A Twitter member for only 7 days, I remain undecided about Twitter’s usefulness to me and plan to tell you what I think once I’ve given it a little more time. Others have ably weighed in, pro and con. If you’d like to connect with me via Twitter, you can follow me here.

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Remembering the wartime deadTo commemorate the 65th anniversary of the end of the Siege of Leningrad, photographer Sergei Larenkov overlays photos of present-day St. Petersburg with ghostly images of Leningrad during the blockade.

In these grim images, the dead trudge silently along city streets, while modern-day passersby rush along, blind to their presence. Eerie and deeply moving, these photos speak of the immediacy of the past, the suffering through war of the nameless dead.

For other posts discussing war and large-scale conflict, please see

Hat tip Boing Boing.

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The Complete LawyerThe latest edition of The Complete Lawyer, a web-based magazine focusing on quality of life and career satisfaction for attorneys but with relevance for dispute resolution professionals as well, is now available. This month’s issue asks, “What Do Savvy Lawyers Do In An Uncertain Economy?”.

The Complete Lawyer features a regular ADR column, which explores ADR from the perspective of four attorneys who mediate - me and three colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog .  The four of us alternate as writers.

This month’s column, written by Nelson and Pynchon, reminds us that “Savvy Lawyers Value Their Human Capital“.

The Complete Lawyer has a fresh new look as well, and an RSS feed to go along with it, making it easier for devoted readers to follow it.  Congratulations to TCL’s innovator-in-chief, Don Hutcheson, for making an already superb online magazine even better.

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teaching girls to negotiateRecognizing how important the acquisition of negotiation skills is for women for educational and career advancement, Carnegie Mellon University’s Program for Research and Outreach on Gender Equity in Society (PROGRESS) has developed a negotiation badge to be awarded to Girl Scouts in fourth through sixth grade who have participated in a curriculum that teaches them negotiation and problem-solving skills.

This program not only teaches girls how to ask for what they need and negotiate win-win agreements, it also encourages them to pass along what they have learned to others:

Now that you have learned about negotiation, share your knowledge with a friend, sibling, or relative. Teach them the steps to negotiation, and the importance of approach, preparation, and practice.

You can download the activity book (in PDF) from the PROGRESS web site.

You go, girls.

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round-up of mediation linksThe following articles linked to below make essential reading for the professional mediator, addressing as they do three important topics in mediation practice — reaching settlement, making decisions, and what to do with those notes.

Reaching settlement.

Giving us a ring-side seat for the final hours of a tough negotiation, Victoria Pynchon, an experienced mediator of complex commercial disputes, considers the devil in the details with a four-part series that offers a rare glimpse inside a mediator’s mind as she wrestles with demons:

Decision-making.

Perhaps one of the most important services that mediators provide is to aid clients in reaching decisions.  Attorney John DeGroote, who shares Settlement Perspectives and negotiation advice based on eight years as the Chief Litigation Counsel of a global company, makes a strong case for using decision trees to improve settlement decisions in a two-part series.  “Decision Tree Analysis in Litigation: The Basics” introduces readers to decision trees –“tree-shaped models of [a] decision to be made and the uncertainties it encompasses,” according to Suffolk University Law Professor Dwight Golann in Mediating Legal Disputes — and links to The Arboretum, a free online tool provided by mediator Daniel M. Klein for building decision trees.  In “Why Should You Try a Decision Tree in Your Next Dispute?“, John convinces the naysayers, offering persuasive reasons why decision trees make smart business sense.

Mediator’s notes — destroy or keep?

One of the ongoing debates within the mediation community concerns what to do with notes — keep them or destroy them?

Mediators who destroy their notes typically do so because it:

  • Protects the confidentiality of mediation communications
  • Eliminates the burden on the mediator and the mediator’s resources to store and secure notes
  • Reduces the risk that the parties will subpoena the mediator later if negotiations fail, particularly if the mediator informs the parties in the agreement to mediate that he or she routinely destroys notes as a matter of practice

Those who keep their notes (and I count myself in this group) do so because:

  • Due to the nature of the mediator’s practice, parties may return for follow-up sessions after a period of time, and notes will refresh the mediator’s recollection of the case
  • Notes, with suitable precautions taken to conceal the identity of the parties, can be used to create case studies for purposes of mediation and negotiation training
  • Destroying notes could prejudice a mediator’s professional liability insurer defending a malpractice action against the mediator, potentially voiding the mediator’s insurance coverage

Mediator Geoff Sharp directs his readers to an article by Australian mediator Michael Creelman, who advocates the retention of notes in large part due to the insurance issue in “Mediators’ notes of the mediation - a mediator’s protective device“. Meanwhile, Atlanta-based attorney and mediator Christopher Annunziata offers the view from Georgia, coming down in favor of destroying notes.

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ADR blogs among top law blogsAvvo Blog has pulled together an automatically updating list of the top 300 law blogs, ordered by their traffic ranking on Alexa, a web traffic information site.

Mediation Channel made the cut, along with these outstanding ADR blogs:

Hat tip to my neighbor just up the road, lawyer and blogger Bob Ambrogi, whose high-ranked blog, Robert Ambrogi’s LawSites, also made the list.

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Outlandish mediation techniques Last week ADR Prof Blog posted a zany request to mediators, asking them to share their most outlandish mediation techniques.

It got me thinking. The most outlandish thing I’ve done during a mediation had to have been this: I was mediating a multi-party dispute involving a bunch of guys who towered enormously over me. Things got heated, and suddenly in unison they erupted from their chairs, shouting angrily at each other.  Operating totally on instinct (and adrenaline), I climbed onto the table, stood up, and yelled at the top of my lungs, “Don’t make me stop this car!” They all cracked up, and in a few minutes they were talking settlement.

Addendum: My buddy Geoff Sharp, a commercial mediator in New Zealand, alerts his readers that ADR Prof Blog’s request attracted the attention of a mediator known only as Brother Mat who, tongue-in-cheek (or at least I hope so), shares an unorthodox tool for reality testing: a sock puppet.

What’s the most outlandish technique you’ve deployed along the road to yes?  Let the nice folks at ADR Prof Blog know.

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Online petition seeks use of conflict resolutionConflict resolution expert and social justice advocate Kenneth Cloke has created an online petition requesting that U.S. President Barack Obama promote the use of conflict resolution both domestically and internationally.

Dispute resolvers, peacemakers, and ADR professionals are encouraged to add their signatures to a growing list of supporters.

This five-point proposal asks that Obama implement the following steps:

  1. Create a cabinet level ombudsman office or department of peace and consensus building to work proactively to prevent and minimize conflicts
  2. Build mediation, consensus building, diversity, and democratic conflict resolution processes into every proposal for change, whether domestic or international
  3. Invite representatives of international institutions, governments, and community organizations to attend a conference to discuss how to improve conflict resolution competencies and encourage collaborative problem solving around the world
  4. Request that the United Nations initiate a global effort to train diplomats and national representatives in conflict resolution, and incorporate in all treaties a clause requiring signatories to mediate and arbitrate disputes.
  5. Initiate a program and a fund to support conflict resolution professionals in serving in trouble spots around the world and help people prevent, resolve and recover from conflict.

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our better angelsChange has come to the White House.  Among the signs: the new White House blog, which affirms the commitment of the Obama administration to three core principles: communication, transparency, and participation.

Among its first posts was this one, proclaiming a National Day of Renewal and Reconciliation:

We are in the midst of a season of trial. Our Nation is being tested, and our people know great uncertainty. Yet the story of America is one of renewal in the face of adversity, reconciliation in a time of discord, and we know that there is a purpose for everything under heaven.

On this Inauguration Day, we are reminded that we are heirs to over two centuries of American democracy, and that this legacy is not simply a birthright — it is a glorious burden. Now it falls to us to come together as a people to carry it forward once more.

So in the words of President Abraham Lincoln, let us remember that: “The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”

It is enough to move even an atheist like me to say, “Amen.”

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No soap, radioThose of you who grew up in the U.S. may be familiar with “no soap, radio“, a prankster’s joke.  When I was a kid, it was the kind of gag that older kids would pull on younger ones. The prankster and her accomplices — a group of sixth graders for example — would approach their mark — a younger sibling in the fourth and fifth grade perhaps — and offer to regale him with the funniest joke ever.

In the version popular in my hometown, the joke went something like this:  “Two elephants sitting in a tub were taking a bath together. One elephant says, ‘Hey, pal, pass the soap.’ The other elephant replies, ‘No soap, radio!’”

On cue, the prankster and her accomplices begin to laugh uproariously.  The younger kid surreptitiously glances at them, not sure why his older sibling and her friends are laughing.  Puzzled and uneasy, but not wanting to appear unworldly (meanwhile wondering anxiously whether ‘radio’ might be some kind of sexual slang), the younger kid begins to laugh, too, hesitantly, then with more conviction.  The prankster and her friends suddenly stop laughing, and maliciously one asks, “Hey, kid, what’s so funny?”  The younger kid stops, sensing too late the undercurrent of cruelty.  The air is charged with it, as a shameful silence hangs.  The older kids explode with laughter again, and in triumph the prankster shouts out the real punchline, “If it’s so funny, then explain it to me!”

Like a home-grown version of the experiments in social conformity conducted by Solomon Asch in the 1950s, it’s a prank that exploits a strong fear and an equally fierce desire: our fear of looking stupid, and our desire to belong.  Unfortunately, when you don’t ask, the joke’s on you.

It takes courage to admit when we don’t know something, and courage as well to ask.  As the proverb says, “The one who asks questions doesn’t lose his way” — or, for that matter, look like an idiot on the playground. It’s a grade school lesson that all of us should heed.

(Photo credit: Emiliano Spada.)

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Mediation Train the Trainer Institute BostonIf you’re an experienced mediator who wants to master the essentials of effective mediation training, please join me in Boston for the Mediation Works Incorporated Train the Trainer Institute, on Thursday, February 26 and Friday, February 27, 2009.

I’ll be teaming up with mediator, trainer, and ombuds Charles Doran, MWI’s executive director. This program covers:

  • Program Design and Marketing - How to define and meet the needs of participants; staying focused on goals and outcomes; the logistics of putting on a successful training; programmatic and administrative issues; internal and external program promotion; translating experience into basic concepts that trainees can internalize and practice; delegating pre- and post-training responsibilities within the training team; designing and analyzing diagnostic forms.
  • Delivery - Presenting concepts with impact; selecting and using different delivery media; how to be a facilitator, leader, coordinator (all at the same time); setting up the room; facilitating skill-building exercises; fostering group participation and self-reflection; coaching role-plays and providing feedback to trainees; dealing with difficult participants.
  • Evaluation and Follow-up - Designing effective feedback and evaluation methodologies; delivering feedback to participants during and after the program; incorporating lessons learned into future programs; and more.

The highly interactive, hands-on program will be held at the historic Union Club on Boston’s Beacon Hill, at 8 Park Street.

Registration and more information is available at the MWI web site. I hope to see you there.

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Negotiation justice for womenOn January 9, 2009, the U.S. House of Representatives approved two bills that would remedy paycheck discrimination.  One, the Paycheck Fairness Act, would eliminate gender-based pay disparities.

What is especially significant about this Act is that it would establish a grant program to fund training for women and girls in negotiation skills. Section Five of the Act provides:

An entity that receives a grant under this subsection shall use the funds made available through the grant to carry out an effective negotiation skills training program that empowers girls and women. The training provided through the program shall help girls and women strengthen their negotiation skills to allow the girls and women to obtain higher salaries and the best compensation packages possible for themselves.

Congress has at last recognized and aims to remedy a problem that women themselves have long been aware of: that social barriers prevent women from negotiating effectively.

(Hat tip to Concurring Opinions.)

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ADRblogs.comI’ve just added three great blogs to the World Directory of ADR Blogs @ ADRblogs.com, my ongoing effort to track and catalogue blogs around the globe that cover ADR, negotiation, and conflict resolution. It’s my great pleasure to welcome:

If you have a blog you’d like to submit for inclusion in ADRblogs.com, please let me know. Read the submission guidelines and then get in touch.

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Knowledge is powerKnowledge is power in any negotiation. Skilled negotiators prepare carefully, taking time to identify their key interests and their alternatives if no deal is reached (in negotiation parlance, their “BATNA” — their best alternative to a negotiated agreement).

These negotiators understand that that’s just one side of the equation. It’s not just enough to know your own alternatives; you also have to know the alternatives your counterparts are weighing. It protects you from making poor decisions at the negotiating table.

In “Nudge, Shel Silverstein, Smart, and Negotiation,” Joel Schoenmeyer, who blogs at Death and Taxes, recounts a snappy anecdote about a negotiation over royalties to show what happens when you don’t bother to do your homework about the other guy’s BATNA. Go read it — it’s got a great punchline.

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Although I hate to admit it, I’m actually old enough to remember the days when the family doctor made house calls.

Childhood ailments brought visits from our kindly, joke-cracking pediatrician who would arrive with his black bag, his stethoscope slung around his neck, as if he’d stepped straight out of a Norman Rockwell painting. How I longed for those days when my own kids got sick, as has anyone else who has waited endless hours in a cramped waiting room with a screaming toddler with an ear infection and a raging fever.

Now a group of mediators stands ready to revive a dying tradition. A press release that made its way into the stack of Google alerts in my inbox this morning announces that a mediation practice in New Jersey is now providing at-home mediation services to divorcing couples.

More power to them for coming up with an innovative way to attract and serve clients.  Personally, though, I’m not sure that this is such a great idea. I think there’s a lot to be said for mediating on more neutral territory. The marital home is all too often both battlefield and asset in contention.

Perhaps these mediators have some ambivalence themselves about these new services. In its last paragraph, the press release declares that the mediation practice offers “a free consultation … in the martial home” (emphasis added).

Typo? Or Freudian slip?

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The Carnival of Trust

Welcome to the January 2009 Carnival of Trust, a monthly review of posts that explore the most essential ingredient in all our relationships, business and personal.  Charles H. Green, CEO of Trusted Advisor Associates, and an expert on trust in business relationships, is the creator of the Carnival of Trust, and I am deeply honored  that he extended an invitation to me to serve as host this month.

That trust is vital cannot be doubted, as even a casual glance at newspaper headlines makes plain. From the Bernie Madoff scandal to the impeachment of Illinois governor Rod Blagojevich to the refusal of U.S. banks to account for the money they received in the recent Wall Street bailout, it has never been clearer that trust matters — and matters a lot.  Violations of trust hit hard, whether public figures and national interests are at stake or between private citizens behind closed doors.

But these events that have unfolded on the national stage affect people locally.  It is at that level that trust is experienced — personally, immediately, intimately.  It’s that view at the ground level that this Carnival of Trust is dedicated to.  The 10 posts that I have selected all share something in common.  It’s their ability to capture, up close and personal, the meaning of trust — its significance, its bestowal, its loss, its redemption.  They bring us face to face with trust — and our individual and collective responsibility to preserve and protect it.

Trust in Sales and Marketing

Taking us on a journey of trust  is a blogger identified only as Steve, who documents his and his wife’s strategies for creating and building wealth on a single income at MyWifeQuitHerJob.com.  He asks and answers the question, “Should You Trust Your Customers?” through three compelling real-life examples drawn from the online business he and his wife run. To find out whether trust triumphed, read his story.

In “Lessons Learning from Improv“, marketing consultant John Moore of Brand Autopsy pauses to reflect on what 18 weeks of improv comedy classes taught him personally about everyday business life — important lessons he generously shares with his readers about fellowship, mutual support, and the value of trusting others to achieve success.

In “What’s Your Hook?“, Meredith Liepelt, a consultant specializing in marketing for women entrepreneurs, offers small business owners advice courtesy of ice cream purveyor Baskin-Robbins: give potential clients a free taste of your services to help them build confidence in you and your ability to serve their needs well. Liepelt demonstrates step by step the effect of the free sample on one prospective client.

Trust in Leadership and Management

Albert Schweitzer once wrote, “”No human being is ever totally and permanently a stranger to another human being. Man belongs to man. Man is entitled to man. Large and small circumstances break in to dispel the estrangement we impose upon ourselves in daily living, and to bring us close to one another, man to man.” That’s the message of an untitled post on the blog of Robert Bruner, Dean of the Darden School of Business at the University of Virginia.  He exhorts the Darden community to remember how important ethics and reputation are to creating a sustainable legacy for the future.  He calls on every member of that community to take personal responsibility for encouraging others to do what’s right, to speak up when others err, and to make a commitment to serve as a living example of the ethos of trust.

Professional coach Christopher Edgar at Purpose Power Coaching wonders, “Do You Distrust Others, Or Just Yourself?“  Describing the struggle of one of his clients to come to terms with her own inability to trust herself, Edgar uses his client’s story to bring to life the lesson that trusting oneself is closely linked to success in business.

Trust in Strategy, Economics and Politics

Rushworth M. Kidder at Ethics Newsline wants to know whether “Fighting Ponzi with Ponzi?” is a sustainable strategy in the wake of recent revelations surrounding Bernie Madoff. He sees lessons from the Madoff scandal for the current economic crisis and persists in asking the hard questions: “Are we at risk of becoming a nation of Ponzis? Are we building today’s bailouts and stimulus packages to guarantee a working economy tomorrow — or are we, like Ponzi, paying current dividends out of our children’s capital?”

Scott Greenfield, who blogs at Simple Justice, laments the demise of civic responsibility with the rise of an alarming cost-saving trend: “Cash & Carry Law Enforcement“, where citizens are charged for police and fire emergency services. Greenfield delivers a powerful civics lesson: “The fundamental concept of the common good means that we, as a society, sacrifice a little for the benefit of the whole.”

Trust in Advising and Influencing

In “The Workplace as Moral Testing Ground“, Mark Brady, blogging at The Committed Parent, writes movingly of the important responsibility that parents, teachers, and others who mentor the young hold for the development of children as moral beings, and with unflinching self-honesty reflects on his own youthful errors.

Sam Sommers, a blogger at Psychology Today, recounts an eye-opening experience on an elevator to warn of The Power of Us, the irresistible influence that shared identity in a group can hold over us, swaying us in our judgments when we interact with someone who belongs to the same group that we do. He cautions, too, that “usness” — shared affiliations of culture, privilege, or class — can place obstacles in the path of women and minorities.

This has been a difficult winter so far for folks like me who live in New England.  An ice storm in December left numerous communities without power, some for many days.  For some, the response of utility companies was frustratingly inadequate as people were kept literally and figuratively in the dark.  Conflict resolution expert Tammy Lenski, herself without electricity for over a week in her New Hampshire home, brings the voice of personal experience to dispense wise advice for “Crisis communication and the impact on conflict, anger” at Conflict Zen.

This brings us to the end of the January 2009 Carnival of Trust.  I thank you for joining me.  At a time when trust is imperiled, perhaps we’d be prudent to heed the words of 19th century humorist Finley Peter Dunne who wrote, “Trust everybody, but cut the cards.” Yet I’d like to end on a more hopeful note with the following observation from Ralph Waldo Emerson:

“Trust men and they will be true to you; treat them greatly, and they will show themselves great.”

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©Copyright 2005-2008 Diane J. Levin. The material on this blog is provided for informational and educational purposes only and should not be construed as legal advice or as creating an attorney-client relationship. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.