My initial response was from that core, human place. I mourn the loss of life and the injuries. I imagine the fear of those in the immediate area. I wonder if I know, or anyone I know knows, the mediator or any of the participants. My heart goes out to the mediator, Ira Schwartz.

Then I think about how this will play out amid the current debate about the role of guns in our society.

But then I imagine the critical questions this raises for those of us in the ADR field.

• As neutrals, what are our responsibilities?

• For those of us involved with court ADR programs, what are our special responsibilities?

I reflect on my roots in this field. Back in the 80s, when I learned to mediate I was taught to sit near the door in case I needed to get out and I was taught how to establish the kind of authority in the mediation that made it a “safe” place to deal with conflict. I remember joking with my mediation colleagues about the sense of invincibility that mediators can feel when we are so wrapped up in the mediation process. (No doubt youth had something to do with that sense of invincibility, too.)

Later that decade, I ran a community mediation program and trained new mediators. The first hurdle they had to clear was whether they were “safe” in mediation. Could they sense when tempers were rising and allow the expression of emotion, but still maintain a safe environment? Did they know what to do if a party came to mediation with a baseball bat or even a gun? They needed to understand so many things, but as a foundation they had to understand how to keep the situation physically safe for themselves and the parties.

Since then, society and mediation have become more complicated; some might argue more violent. But some of these complications are good. We have learned how to address domestic violence, decide when mediation may or may not be fitting, and figure out how to adapt mediation when warranted. For those of us working in court ADR, many of our cases are handled within courthouse security, although that would not have helped the situation in Phoenix.

As mediators and court ADR professionals, what does this event in Phoenix teach us?

First, mediation is inherently dangerous. People in conflict are often at their worst. We need to accept that so we can build systems that keep it as safe as possible.

Second, we need to follow safety steps in every mediation. We need to sit near the door and have a protocol in case something happens. When we sense that one party may be dangerous, we need to end the mediation and give the other party time to leave ahead of the potentially dangerous party. We need to value safety above getting resolution or any other values, even when we might feel invincible.

Third, screening is not a luxury that only family mediators can afford. Just as we have learned that preparation can help the parties be more likely to reach agreement in mediation, we can use those preparation interactions to spot any potential safety issues and address them with the parties before the mediation.

These are just the beginning of what we can do as mediators. (And if there is anything that recent events have reminded us, it’s that we cannot stop every potential violent act from transpiring.) What do you do to keep your mediations or your mediation programs safe?

As regular readers know, on Just Court ADR RSI staff members discuss current issues in court ADR, bringing fresh information and unique perspectives to these topics. This blog is one of the many methods we use to disseminate information on court ADR in pursuit of our mission to strengthen justice by enhancing court ADR systems through expertise in program development, research and resources. We are so grateful to you, our loyal readers, for making this blog such a success. Thank you!

RSI’s Vice Chair, Terry Moritz, and I were on hand when CPR presented its 30^th Annual Awards for Outstanding Scholarship in ADR in La Jolla, California, on January 17, 2013. I accepted the award on RSI’s behalf.

For additional information about the awards, please see the CPR Institute’s press release here. Congratulations to all of this year’s winners.

About CPR Institute

CPR Institute is a nonprofit think tank and alliance of global corporations, law firms, scholars, and public institutions dedicated to the principles of commercial conflict prevention and alternative dispute resolution. It works to educate and motivate General Counsel, their corporations, and law firms around the world toward an increased reliance on alternative forms of dispute resolution rather than litigation. For more information, please visit www.cpradr.org.

We at RSI thank all of our readers, and especially those who comment, for your support and your interest. We will do our best to continue to merit your time and attention.

For the second hour of conflict, my neutral gave to me two succinct summaries

And a round table with a great view

For the third hour of conflict, my neutral gave to me three paraphrases

Two succinct summaries

And a round table with a great view

For the fourth hour of conflict, my neutral gave to me four mirrored feelings

Three paraphrases

Two succinct summaries

And a round table with a great view

For the fifth hour of conflict, my neutral gave to me five aspirin

Four mirrored feelings

Three paraphrases

Two succinct summaries

And a round table with a great view

For the sixth hour of conflict, my neutral gave to me six tested realities

Five aspirin

Four mirrored feelings

Three paraphrases

Two succinct summaries

And a round table with a great view

For the seventh hour of conflict, my neutral gave to me seven caucuses

Six tested realities

Five aspirin

Four mirrored feelings

Three paraphrases

Two succinct summaries

And a round table with a great view

For the eighth hour of conflict, my neutral gave to me eight explored BATNAs

Seven caucuses

Six tested realities

Five aspirin

Four mirrored feelings

Three paraphrases

Two succinct summaries

And a round table with a great view

For the ninth hour of conflict, my neutral gave to me nine fresh perspectives

Eight explored BATNAs

Seven caucuses

Six tested realities

Five aspirin

Four mirrored feelings

Three paraphrases

Two succinct summaries

And a round table with a great view

For the tenth hour of conflict, my neutral gave to me ten brainstorms

Nine fresh perspectives

Eight explored BATNAs

Seven caucuses

Six tested realities

Five aspirin

Four mirrored feelings

Three paraphrases

Two succinct summaries

And a round table with a great view

For the eleventh hour of conflict, my neutral gave to me eleven cookie breaks

Ten brainstorms

Nine fresh perspectives

Eight explored BATNAs

Seven caucuses

Six tested realities

Five aspirin

Four mirrored feelings

Three paraphrases

Two succinct summaries

And a round table with a great view

For the twelfth hour of conflict, my neutral gave to me twelve resolved issues

Eleven cookie breaks

Ten brainstorms

Nine fresh perspectives

Eight explored BATNAs

Seven caucuses

Six tested realities

Five aspirin

Four mirrored feelings

Three paraphrases

Two succinct summaries

And a round table with a great view

• Anchoring
• BATNA
• Courthouse steps

“Anchoring” is the strategy of initiating negotiations with a position that is very favorable to one’s own interests. Negotiators don’t start with their bottom line. They anchor the negotiations with a position that is as favorable as it can be without poisoning the discussion. Some may argue that the leaders on both sides missed the part about not poisoning the discussion, but they certainly have anchored at positions that are favorable to them.

“BATNA”, or best alternative to negotiated agreement, reminds negotiators to consider what will happen if they do not reach agreement. Political pundits on both sides have argued that letting the automatic changes take place may be the best outcome for their side, at least in the short run. Indeed, as each side looks at this situation strategically, they must consider what would happen if they drove over the fiscal cliff. Similarly, lawyers and their clients weigh their chances in court, and beyond trial, at appeal.

That brings us to “Courthouse Steps.” Judges and lawyers bemoan the cases that settle on the eve of trial – on the courthouse steps – just as the citizenry is bemoaning the ongoing conflict about the fiscal cliff. But cases don’t get settled until there is pressure, often time-pressure, to settle. Indeed, one of the benefits of mediation is that it brings the pressure to settle earlier in the process – usually putting the courthouse steps far before the courthouse. As much as there is hand-wringing in the media because an agreement has not yet been reached regarding the fiscal cliff, mediators are not surprised. We regularly see agreements get worked out at 5:00 after a long day of mediation, or when one party’s lawyer needs to leave for the airport.

Perhaps the next ABC should be “Dance.” In a negotiation, there is a certain dance – an exchange of offers and demands – that is expected. Those who try to short-circuit the dance by starting close to where they want to end or by making large, unreciprocated moves can find themselves shortchanged in the settlement.  This concept is related to anchoring, but it continues throughout the negotiation. We see it play out in the fiscal cliff negotiations as each side begins to accept the other’s central demands. Revenue increases and spending decreases are now on the table for both sides.

While this all may look familiar and understandable, that doesn’t mean it is optimal. Some core Getting to Yes principles seem to be left out of the fiscal cliff negotiations. We do not see much “focus on the problem, not the people.” We see “objective criteria” not be very objective. Nonetheless, a little understanding of how negotiation works sheds considerable light on the fiscal cliff process, no matter where one stands on the political spectrum.

For two years, Heather worked with RSI and the Center for Conflict Resolution (our affiliate organization) to improve access to justice for poor and low-income disputants by developing and improving court ADR systems. We are very proud that Heather’s fellowship marked the first time the Skadden Foundation supported a project focused on alternative dispute resolution.

Heather did a great job at RSI. During the fellowship she became a nationally recognized expert in foreclosure mediation. Not only did Heather write her familiar blog posts and studies of many aspects of foreclosure ADR – from administration and funding to statistical reports and studies of ethical quandaries – she also consulted on foreclosure mediation program design in four Illinois judicial circuits, and on a national level with nine states, Washington, DC, the Department of Justice and the Uniform Law Commission.

But Heather’s work was about more than foreclosure mediation. She worked on small claims and child custody and visitation mediation in Illinois studying, developing and supporting programs. She also studied small claims mediation referral models from all 50 states to determine which referral systems fit best in which contexts. Watch for a blog post about the study in the coming months.

Heather is leaving sizeable shoes to fill. In the meantime, we wish her the very best at Harvard. They are lucky to have her.