Wednesday, December 3, 2008

Civility and Kindness

Remember all the rules that we grew up with? Well, maybe we grew up with?

Don't talk with your mouth full.
Show up on time.
No elbows on the table.
"Yes, sir" or "No, sir"

Many people would identify the lack of civility and kindness as important aspects of our lives that are missing.

The Smithsonian Magazine highlighted the work of Professor Pier M. Forni of Johns Hopkins in promoting civility. I've not read his book, but I will.

Whether we call the issue civility, kindness, working together, or conflict resolution, all of these cultural issues result in stress and lack of community. As Professor Forni points out, we are social creatures, needing to be in community, and the lack of kindness and civility that we show each other is not only troubling from an ethical, moral, and religious points of view, but also causes great havoc in quantitative measures. Stress leads to decreased productivity at work, increased health problems, and torments the relationships we have with others. The role of conflict in the workplace, and the quantifiable damages conflict causes, is well documented and has been discussed in this blog.

As we end 2008 and look forward to 2009, let's take a moment and resolve to treat each other with kindness and civility. Who knows, maybe, just maybe, we may be the recipient of someone's kindness. Wouldn't that be nice?

Monday, December 1, 2008

A court mediator?

The (out of Ohio) writes about a program involving a "court mediator", someone who appears to be working full-time for the court system (here for six judges in four Ohio counties). The mediator's fee is paid through the court's budget, which is supplemented by a mediation fee charged by the court, according to the article.

What would the process look like if courts had full-time mediators on call, paid for by the court system, to help resolve disputes? Would the number of cases that settle increase or remain the same? Would settlement rates vary, depending upon the location of the mediation? Does it matter if the mediator is already at the courthouse, as opposed to a more-traditional method of mediation at the mediator's office?

Norwegian Copyright ADR

Norway's Consumer Council is recommending that ADR be introduced in copyright litigation so that parties can meaningfully settle cases instead of "being forced into settlement arrangements simply because they could not afford to defend legal action brought by copyright holders."

What an interesting concept--that lawsuits can be so expensive that a party feels forced into settlement simply because it can't afford the fight.

Perhaps an advantage of alternative dispute resolution methods is that it helps to level the playing field, in that the parties do not have the expense of a trial?

My experience is that the most expensive portion of litigation is the pre-trial work: getting the defendant served, discovery, and dispositive motions. After that, the trial preparation is certainly expensive, but I wonder how many people would willingly sit down pre-discovery and try to negotiate a settlement?

Thursday, November 27, 2008

Verse of the day

Above all, clothe yourselves with love, which binds everything together in perfect harmony. And let the peace of Christ rule in your hearts, to which indeed you were called in the one body. And be thankful. Let the word of Christ dwell in you richly; teach and admonish one another in all wisdom; and with gratitude in your hearts sing psalms, hymns, and spiritual songs to God. And whatever you do, in word or deed, do everything in the name of the Lord Jesus, giving thanks to God the Father through him.

--Colossians 3:14-17

Happy Thanksgiving

I'm sitting on my comfortable couch, watching the Cowboys pummel the Seahawks (24-6 at the beginning of the second half), my stomach full of food. Last night, we had dinner with some long-time family friends and some of their friends and relatives. Life is good.

Having a crazy economy, people are losing jobs, credit is hard to come by, and all the news seems to be bad, so how can life be good? Because it is. We live in a country that values freedom. We live in a country with a history of rebounding. We know that no matter how bleak things look, at some point, things will get back to normal and even get better.

We have a lot to be thankful for.

With all of the bad economic news that has bombarded us for the last several months, when I went to the grocery store this week (several times) I couldn't get in. Al of the parking spaces were taken. That must be a good sign.

I've been to third world countries where folks don't have grocery stores or easy access to things like electricity, clean water, heat, or air conditioning. If you want something to eat, you better have planted something correctly some time ago so that you could eat it today.

We have a lot to be thankful for.

I've been places where the government watches every movement you take, and where roads are full of thugs and gangs that will kill you for no reason.

We have a lot to be thankful for.

I hope and I pray that at some point today you reflected on all that you have to be thankful for. Maybe it's not your retirement plan. Maybe it's not your job. Maybe it's not the amount of money you have available to spend for Christmas gifts this year. We have a lot to be thankful for.

May you all have a very happy Thanksgiving, and may we take more time each day, not just on the fourth Thursday of each November, to stop, reflect, and think about all the people and things for which we should be thankful.

Friday, November 7, 2008

A sham arbitration?

I really enjoy Dan Slater's Wall Street Journal Law Blog. He recently wrote about a "sham arbitration" involving American Apparel and a former employee. AA agreed to pay the former employee 1.3 million dollars to settle a sexual harassment claim. As part of the settlement, the parties agreed to participate in a arbitration with a predetermined outcome so that AA could say there were no sexual advances.


The arbitration did not go forward, thankfully.

You can find the opinion from the California appellate court discussing this arrangement here.

Email negotiation

I'm old enough to remember my parents buying us a TI-994A back in the day. It was a computer that you hooked into a television, used cassette tapes for programming and backups, and allowed you to play a mean game of Pong.

How far we've come.

More and more people are using email to negotiate. I see that becoming more and more common in the legal community--attorneys will shoot off emails to each other to agree to scheduling deadlines, deposition details, and even settling cases. In my law practice, I've seen emails where folks will discuss the terms of contracts.

But should we negotiate over email? Maybe.

This issue is discussed over at the ADR Prof Blog. The problem with negotiating over email is that folks are more likely to lie in an email than using pencil and paper (and I'd be willing to bet, in person or over the phone). Citing an article in Scientific American, there's something different about email that either allows or encourages folks to lie. Students in a study lied 92% of the time in an email negotiation compared to 64% of the time using pen and paper.

Also, emailers tend to be less formal than when one drafts a letter. Folks are more willing to say whatever is on their mind in an email, while a letter encourages deliberation and thought. Can you say "Exhibit Number 1?"

Email may be a good way to confirm agreements and conversations; but as a negotiation tool, try talking to folks.

Wednesday, November 5, 2008

The perils of an attorney mediator

Can a lawyer enter into an agreement to mediate a divorce settlement, when the parties are not represented by legal counsel, and then prepare the divorce decree and other documents to effectuate an agreed divorce if the mediation results in an agreement?

That's the question posed to the Professional Ethics Committee for the State Bar of Texas.  In Opinion No. 583, the Committee answered "no."

Under the Texas Disciplinary Rules, mediation is not the practice of law, but it does constitute actions as an "adjudicatory official" meaning that the mediator acts as one serving on a tribunal in recommending or resolving of a dispute. 

Adjudicatory officials, or at least lawyers acting as an adjudicatory official, cannot agree to mediate a divorce and prepare documents for the parties, because such acts would violate Rule 1.11(b) of the Texas Disciplinary Rules of Professional Conduct, according to the Committee.  Rule 1.11(b) prohibits a lawyer who is an adjudicatory official from negotiating for employment with any person who is involved as a party or as an attorney for a party when the official is participating personally and substantially.

Furthermore, the Committee stated that if a lawyer is a mediator and chooses to act as a lawyer with respect to a particular divorce, the lawyer may represent only one of the two parties in preparing documents to implement an agreement for divorce.  This is because divorce is a litigation proceeding and in preparing documents for both husband and wife, the provision of legal services cannot be had because the lawyer cannot function as an intermediary for the parties (in violation of Rule 1.07 and 1.06 (a lawyer shall not represent opposing parties to the same litigation)).  

I find this opinion troubling, frankly.  I understand that an attorney in the role of mediator and attorney could have "undue influence" on the parties who are before the attorney/mediator in trying to effect a settlement for the earning of a fee, but there are many instances where divorcing couples do not have the financial means to pay for two sets of lawyers and a mediator, or where the issues are so limited that the economics of the case don't make sense to have two sets of lawyers and a mediator.  In those instances, it seems to me, with all due respect to the Committee, that an attorney/mediator would provide an enormous benefit to the parties, the judicial system, and the economics of the entire situation of the mediator/attorney can assist the couple in developing a settlement agreement and then providing legal assistance to the parties in drafting an agreed petition for divorce and an agreed decree of divorce.  It also seems to me that allowing attorneys to mediate the case and assist the couple with filing appropriate papers with the court would promote the good public policy of resolving disputes amicably.  

Until the Committee revisits the issue, or until the Disciplinary Rules are changed, attorneys in Texas are not allowed to serve as "both a mediator between parties in a divorce and as a lawyer to prepare the divorce decree and other necessary documents to effect an agreement resulting from the mediation."

Monday, October 27, 2008

Call for sponsors for TAM Conference

I received an email this morning from the organizers of the Texas Association of Mediator's 2009 Conference. The email is reprinted below.

Dear TAM Member:
As you know, TAM will hold its Annual Conference "Mediation at Union Station – All Aboard!" in Dallas, Texas at the Hyatt Regency on February 27 – 28, 2009. We are looking forward to a dynamic conference with renowned speakers and expect a record number of attendees from across the state.

Sponsorship, contributions and donations not only reflect your ideological commitment to TAM and the field of mediation, they help TAM keep registration fees and membership dues affordable while continuing to present an outstanding conference and provide educational resources to members and the public. TAM is a nonprofit tax-exempt organization under Section 501(c)(3) of the IRS Code. Signs listing the Sponsors will be on display in the main area of the conference and we will acknowledge the Sponsors in the conference program and throughout the two-day event. TAM also gladly accepts in-kind donations.

We hope that you will consider getting "on board" and becoming a sponsor for this
important conference. A sponsorship form that includes more information about sponsorship opportunities is attached or you can complete the form and pay by credit card on the TAM website at

If you have any questions or need more information, please contact Doug Skierski at or 214-740-8756 or Melanie Grimes at or (214) 369-3690.

Changes in Texas Foreclosure Law

The Dallas Business Journal is reporting that the Texas Attorney General is proposing sweeping changes to the state's foreclosure law. Greg Abbott asked state legislators to enact the Texas Foreclosure Deferment Act. The act requires mortgage loan servicers (those are the companies that act on behalf of lenders to collect payments, issue demands, and institute litigation, if necessary) to provide homeowners with 45 days to cure loan defaults before a foreclosure sale can be noticed. This extends the current cure period (20 days) by an additional 45 days.

Lenders must also attempt to contact the borrower by telephone or in person before filing for foreclosure. Homeowners, once foreclosed, will have 30 days to vacate the property.

You can view a link to the Attorney General's press announcement here.

Thursday, October 16, 2008

A bogus mediator?

From the "truth is stranger than fiction department," the Arizona Republic reports that a man who posed as a lawyer and mediator was convicted of 23 counts of theft and one count of fraud.  The story can be found here.  

The individual had been disbarred by the states of Vermont and Maine.  He moved to Arizona, set up an office called "Divorce with Dignity" and apparently held himself out as a mediator and "legal-document preparer".  

It turns out he dated at least one client during that client's divorce proceeding, filed frivolous lawsuits against that client's husband, and seems to have charged clients a lot of money.  One client reported paying the mediator $87,000.00 in one year (must have been a heck of a divorce!).  

Sentencing will take place on November 21.  

This raises a good question.  How do you know that the mediator you have hired is "legitimate?"  I think what got this person in trouble is that he was holding himself out to be an attorney and associated with a law firm when he wasn't.  There are a number of mediator credentialing organizations out there (here's the website for the Texas Mediator Credentialing Association).  But those are voluntary and I know some mediators who do not want to join such an organization simply for cost-based purposes.  So how do you know? 

For those in Texas, I'd offer these suggestions.  The concepts may be applicable in other states as well:
  1. If the person mentions or suggest they are a lawyer, check with the State Bar of Texas, on its website, to see if the person is in good standing.  
  2. Ask if the person has taken the 40 hour mediation course established by the state legislature as part of the Texas Civil Practice & Remedies Code.  This course is not required to call oneself a mediator, but it is required for court-appointed mediations.
  3. Ask in the community--your friends especially--if they used the person.  Try to get a recommendation, in other words.
  4. Google the person's name.  It's amazing what you can find out.
In the end, I suppose it's difficult for us to know whether those we deal with are really who they say they are.  How do we know that the plumber, roofing contractor, minister, accountant, or doctor have the credentials that they claim?  

Verse of the Day

"You quarrel and fight.  You do not have because you do not ask God."

--James 4:2

Wednesday, October 15, 2008

More on Conflict Resolution Day

Here's an excellent article from the Colorado Springs Gazette about Conflict Resolution Day. You can view my earlier blog about CRD here.

Monday, October 13, 2008

Foreclosure mediation

The New York Times featured a Connecticut program that requires lenders and borrowers to sit down and mediate prior to foreclosure. Interestingly, representatives for both borrowers and lenders emphasized that the specialized mediation process is beneficial because lenders have a hard time talking to borrowers and borrowers say that lenders are impossible to contact.

Look for more states to require this type of program. Even if modification of the loan terms isn't possible, resolution may still be possible--lenders and borrowers can reach an agreement on "short sales" that will save the lender future foreclosure costs and save the borrower the hassle and expense of fighting the lender.

The cost of workplace conflict

Our good friends across the pond just released a report showing that the

"average British employee is spending more than two hours a week dealing with conflict. This adds up to the loss of more than 370 million working days a year, costing UK employers more than 24 billion pounds."

While heavy caseloads and stress were responsible for about one-third of workplace conflict, personality clashes and warring egos were responsible for almost half of workplace conflict.

Do you think that workplace conflict will increase in these economic times? With speculation (or not) of layoffs, lack of credit, financial institutions failing, and severe fluctuations in the stock market, will we see higher incidents of workplace conflict?

Mediation tactics

I just came back from a fascinating luncheon presentation by the Dallas Bar Association's ADR Committee. The luncheon was entitled "Mediation Issues & Tactics From the Plaintiff, Defense, and Mediator Perspectives". While this was a public discussion, I am not going to name the panelists' names or specifically identify their comments.

The panel consisted of an attorney who practiced plaintiff's work, an attorney (and mediator) who practiced defense work, and a full-time mediator. It was surprising to me to see the divergence of views in how to present your case at a mediation with the hottest topic being whether to have an opening joint session.

One of the attorneys listed his top ten items for a mediation. They are, in abbreviated form:
  1. Mediate as soon as possible.
  2. Always send a packet of information to the mediator. Consider meeting with the mediator before the mediation.
  3. Have an opening session and hope that both sides will lay out their case. (This speaker advocated laying your case out because everyone will know the strengths and weaknesses of the cases).
  4. Get to realistic offers and counters quickly.
  5. Listen to the mediator.
  6. Make sure the other side has adequate authority to settle the case.
  7. Bring a form of a settlement agreement with you.
  8. Talk with the other side prior to the mediation to see if they are serious about settling the case.
  9. The mediator needs to work both sides; don't be a mouthpiece merely exchanging offers.
  10. Bring someone other than the accused wrong-maker to the mediation--you will need a "clear head" to negotiate (this applies in commercial-type cases).

The other attorney raised two points:

  1. Evaluate how much you want to tell the other side in the joint session. You can describe your entire trial strategy in opening session, which this speaker thought was a bad idea.
  2. Don't have joint sessions. They are bad because they increase the emotions in the room, it results in finger-pointing, and he stays away from them.

The mediator's points:

  1. Joint sessions are critical to the success of the process. Mediation time can be reduced by having a joint session, being emotional is part of the process (but one that attorneys don't like because they are no longer in control), but the neutral facilitator's role is to allow folks to vent and get emotional. Then, they can get realistic.
  2. Mediation ought to be the "day in court" for the parties. The mediator sees more and more mediations where the parties don't get to talk and so they don't get satisfaction out of the process. Along these lines, the mediator encouraged parties to provide background information prior to the mediation so the mediator can be prepared.
  3. There's too much mediation, in terms of multiple mediations in a case as well as too many half-day mediations. Lawyers have come to see the mediation process as a mechanical process and believe most disputes ought to be resolved in three to four hours. That's just not the case.

An interesting point that was raised is the fairness of the joint session. Is the joint session "fair" when one party reveals its theory of the case and the evidence to support its theory but the other side does not? That's not a fair use of the joint session, which could leave the parties unsatisfied. The counter is that during the mediation the other side's theory and facts will come out--it will be later in the process, but it will come out.

The mediator also promoted the idea of client-to-client meetings early on in the mediation, even before proposals are made. Why go through the hours of agony if the clients (and it is their case, after all) can sit down and resolve the situation themselves quickly?

What do you think? Should we ditch or encourage joint sessions? Should we encourage clients to talk outside the presence of counsel (but with the mediator) early at the mediation?

Friday, October 10, 2008

Conflict Resolution Day...

is October 16. Since I'm going to be out of town that day, I wanted to post an announcement about it now.
Conflict Resolution Day is an effort by the Association for Conflict Resolution to increase public awareness about conflict resolution and its many benefits. We'll be seeing governors, mayors, and other officials proclaiming October 16 as "Conflict Resolution Day." ACR also provides a lot of public education about conflict resolution.
This is a wonderful opportunity to think about destructive conflicts in our lives and resolve to do something positive about them.
Happy Conflict Resolution Day!

It's raining mediation

An interesting mediation tidbit from another blogger:

The state of Iowa has a flood mediation program to help consumers and their insurance companies make sure flood claims are being handled fairly. As you may remember, there was significant flooding in Iowa this past summer, resulting in governor declaring 83 of Iowa's 99 counties disaster areas.

Nobel Peace Prize

Congratulations to former Finnish President Martti Ahtisaari on claiming the Nobel Peace Prize. While perhaps not a household name, Ahtissari, a life-long diplomat, has worked to solve international conflict all over the world, including Northern Ireland, Aceh, and Kosovo.

In the article published by DW-World.DE, Ahtissari is quoted as saying that his interest in peace mediation began as a child when his hometown was "seceded" to the former USSR during World War II.

He also noted that "mediation is 'an art' rather than an established practice."

I've seen that in my practice, both as a mediator and as an advocate for a party in mediations. One can read all of the literature about mediation and conflict resolution that they can--and I think they ought to--but the great mediators have "it". The "it" is the combination of savy, personality, temperment, skill, and experience that is rare. And, great mediators really love what they do. Peacemaking is not a job to the great ones; it is a calling.

Thursday, October 9, 2008

Does good governance act as a tool for resolving conflicts?

Yes, according to Nigerian author MJ Amachree, from Rivers State University of Science and Technology.  Good governance means many things, but it includes concepts such as popular representation, respect for minority rights, accountability, the rule of law, transparency, and due process protections. Without these safeguards (along with others mentioned in the article), the government degenerates, which can bring about conflict.  

Copper Mine Mediation

The Sahuarita Sun reports that the US Institute for Environmental Conflict Resolution, in conjunction with a private mediator, will facilitate a working group to analyze thousands of comments on the Rosemont Copper mine proposal.  The goal is to help clarify comments made by citizens for the benefit of the Forest Service.

Derailing Resolution

Here's a short, but informative article, from Linda Henman of Henman Performance Group.  She explains ten thoughts/behaviors/acts/attitudes to keep conflict productive:

  1. Successful conflict resolution depends on solutions, not winning.
  2. Have a specific goal in mind, one that you can make in just one sentence.
  3. Depersonalize the conflict.
  4. State your desire to resolve the problem at the outset of the conflict.
  5. Build on areas of agreement before addressing areas of difference.
  6. Listen to the other person before you give your own ideas.
  7. Understand, don't criticize.
  8. Avoid entrenched positions.
  9. Use specific, concrete language.
  10. Rely on facts instead of inferences.

Divorcing nicely, Canadian style

The CBC aired a documentary on a "good divorce" on January 9, 2009.  Entitled "How to Divorce and Not Wreck the Kids," the producers examine three couples going through a divorce:  one using a do-it-yourself kit, one using a mediator, and one using collaborative divorce.  The producers say that the documentary is "the latest compelling evidence to convince separating parents to keep conflict away from their kids."

Monday, October 6, 2008

An attorney, a counselor, and a lawyer...

This doesn't really have anything to do with dispute resolution, but it addresses a question I get a lot. What's the difference between the terms "attorney," "lawyer," and "counselor" ("attorney and counselor at law")?

The good Bryan Garner and his Daily Usage Tip of the Day answers this question. I quote in total from the October 6, 2008 tip:

Garner's Usage Tip of the Day

lawyer; attorney; counsel; counselor. The two most common among these, "lawyer" and "attorney," are not generally distinguished even by members of the legal profession -- except perhaps that "lawyer" is often viewed as having negative connotations. Thus one frequently hears about "lawyer-bashing," but only the tone-deaf write "attorney-bashing" -- e.g.: “Attorney-bashing [read 'Lawyer-bashing'] always will be a popular pastime.” Christopher Smith, “Injury Lawyer May Be Utah’s Best -- Bar None,” Salt Lake Trib., 7 Feb. 1994, at A1.

Technically, "lawyer" is the more general term, referring to one who practices law. "Attorney" literally means “one who is designated to transact business for another.” An attorney -- archaically apart from the phrases "power of attorney" and, less commonly, "attorney-in-fact" -- may or may not be a lawyer. Thus Samuel Johnson’s statement that "attorney" “was anciently used for those who did any business for another; now only in law.” A Dictionary of the English Language (1755).

From the fact that an attorney is really an agent, Bernstein deduces that “a lawyer is an attorney only when he has a client. It may be that the desire of lawyers to appear to be making a go of their profession has accounted for their leaning toward the designation attorney.” Theodore M. Bernstein, The Careful Writer 60 (1965). Yet this distinction between lawyer and attorney is rarely, if ever, observed in practice.

In American English, "counsel" and "counselor" are both, in one sense, general terms meaning “one who gives (legal) advice,” the latter being the more formal term. "Counsel" may refer to but one lawyer {opposing counsel says} or, as a plural, to more than one lawyer {opposing counsel say}.

There. That answers the question.

Tuesday, September 30, 2008

Day 3 of the ACR Conference

To confess, I'm back at my home base but I wanted to blog about Day 3 of the ACR Conference. The schedule was so hectic that I didn't have time to write during or after the day!

The day started off with the annual membership meeting. Discussions centered around the use of committees, malpractice insurance, certification of mediators (the family law section will be the first to experiment with this issue), the approval of the strategic plan (with a sharing of the vision statement, mission statement, and overall goals for the organization), how we can help with the foreclosure mess, and the use of civilian conflict resolvers in areas where the US is engaged.

I attended a session about "Getting Parties to the Table", focusing on how to explain the mediation process to folks. Later in the day was a session on the caucus vs. joint session in a commercial mediation. That was an instructive session because, despite two different mediators using two different approaches, the parties reached almost the same resolution to their issues. There's something to be learned there about mediators getting out of the way and being facilitators of solutions, and not imposing solutions. I ended the day with a fascinating class put on by Jennifer Kresge about "The Art of the Question." Despite the title of the seminar, it became clear that asking good questions is an art and science. A strategic question has the opportunity to create value, truth, understanding, experience, perceptions, collaboration, angst, and interest. Wow. Who would have thought?

Overall, the conference was solid. Very good presenters. Well organized. Nice to be around folks who want to promote resolving conflicts.

Friday, September 26, 2008

Day 2 of the ACR Conference

How often do you go to a professional presentation, the speakers go over time, and no one is concerned about it? No one is looking at their watches? Or PDAs?

I just attended such a presentation.

Here at my second day at the ACR National Conference, we just completed our keynote address by Lee Hamilton. A remarkable man who provided a remarkable address. He spoke eloquently, with passion, and with knowledge. The audience of conflict resolution professionals interrupted his speech with many rounds of applause and standing ovations. I walked away from the presentation thinking how fortunate our country is to have Mr. Hamilton serving it.

The keynote focused on lessons Mr. Hamilton learned in negotiating conflict—how to navigate partisan waters. He said there were ten points, and I believe him, but for some reason I only wrote down nine. So with due respect to Mr. Hamilton, here are the points he raised to help guide us in resolving conflicts:

Attitude. To build consensus, we have to have the attitude of working cooperatively and not confrontationally.

Commitment. We have to have a commitment to the task at hand. While we might appreciate the short term gain from tomorrow's headline, that pales in comparison to the benefits of working together for a long-term gain.

Focus on facts. Facts are tough things. But we have to focus on the facts at hand. Facts won't build consensus, but they will help narrow the gap.

Rule of collegiality. We must be nice to each other. Mr. Hamilton described that prior to the meeting of the 9/11 Commission, he had a social event at his home where the commissioners and staff got to know each other as human beings. We ought not view folks according to labels that we give them, but as human beings with backgrounds, experiences, needs, and interests. It's hard to get mad at someone you know well. According to Mr. Hamilton, the 9/11 Commission didn't have a vote that broke across party lines and he attributed that remarkable fact to the collegiality of the commission. Collegiality can mean hard work up front.

Communication. We must communicate with all of the players both in the talks and with those outside the talks. Communicate. Communicate. Communicate.

Focus on fairness and justice. There are differences between actual and perceived fairness/justice. If you walk out of a negotiation saying "I won this one," the settlement and the relationship won't last.

Compromise is necessary. Compromise can be painful, but necessary for a sustainable solution. Look at the founding of the United States—it was founded on compromise. We must work to understand the other side's view. The goal of defeating and humiliating the other side isn't acceptable. Look at today's political talk shows—they are like sumo wrestling—they may be entertaining to watch, but they are not governing.

Deal with core issues. Find out what's really important to a party and then ask how we can deal with it. Not dealing with core issues is like putting lipstick on a _______.
Agreement is not the end point. Often, the tough work is implementing the agreement.

It was a great speech that reminded us of the core issues facing those in the conflict resolution arena. It also emphasized the thought that we have an obligation to work on making agreements sustainable. During the mediation or negotiation session(s), we need to lay the groundwork for better, more cooperative relationships in the future.

Wednesday, September 24, 2008

Day 1 of the ACR National Conference

I just finished my first day at the Association for Conflict Resolution's national conference. Fortunately for me, the conference is being held in Austin, Texas, a pretty convenient drive from my home city of Dallas. After a non-eventful three hour drive down I-35 this morning, I checked into the conference hotel and ran into the president of the Dallas Chapter of ACR. We reviewed last night's chapter meeting, which was our annual civil judicial panel. Five local judges were on last night's panel discussing the world of mediation. It was a good night.

Today's pre-conference institute was outstanding. Dr. Larry Fong (from Canada, eh—he actually said "eh" several times) delivered an outstanding presentation about thinking and asking questions. One might think that thinking and asking questions ought to be fairly routine concepts for folks to grasp, particularly those in the conflict resolution field.

But most of us know folks who are not clear thinkers. And most of us know folks who may find it difficult to ask the right question at the right time without derailing communications. Dr. Fong engaged us in an exercise on developing hypotheses and questions for use in mediation. I came away from the presentation with a reminder of how critical it is for the mediator to be prepared and how important it is for the mediator to enter the mediation free of bias, that is, mediators ought to reflect upon their own role in the "system" of the mediation, and continually ask, "What am I doing to direct this process? What assumptions am I making about the participants?"

Mediators need to work prior to and during the mediation. Be on the look out for mediators who do not work hard.

I am looking forward to tomorrow. A number of fascinating seminars are being offered, and the day will start with a keynote address from Lee Hamilton, former congressman from Indiana and a member of the 9/11 Commission. Mr. Hamilton will speak on the future of American involvement in Iraq and the Middle East.

Friday, September 5, 2008

Verse of the day

"If your enemy is hungry, feed him; if he is thirsty, give him something to drink. In doing this, you will heap burning coals on his head. Do not be overcome by evil, but overcome evil with good."

--Romans 12: 20-21

Wednesday, September 3, 2008

Collaborative law kudos

A big shout-out to the Collaborative Law section of the Dallas Bar Association and the Texas Collaborative Law Council. They were featured in today's Dallas Morning News. The DBA and TCLC are presenting their fourth annual Civil Collaborative Law Training Seminar September 17-19 at the Belo Mansion (a wonderful asset of the Dallas Bar Association).

Collaborative law started out in the family law world as a way to lessen the emotional toll of typical a litigation-oriented process. In its own way, it is a form of alternative dispute resolution.

Collaborative law focuses on the interests of the clients and has built-in structures to encourage the parties to settle disputes without having to spend the time and energy required by going to court. The parties are encouraged to disclose information, not threaten to go to court, and all of that allows conflicts to be resolved without handing over your property or business to a judge or jury to determine who wins or loses (that's because trial is a zero-sum process).

Congratulations to the DBA and the TCLC on their outstanding work in helping people understand alternative methods for resolving conflicts.

Verse of the day

"May the God of hope fill you with all joy and peace as you trust in Him, so that you may overflow with hope by the power of the Holy Spirit."

--Romans 15:13

Tuesday, September 2, 2008

Got meds?

Is this a legitimate question to ask someone at a mediation?

That's a question tackled by Perry Itkin. Mr. Itkin references an article in the National Law Journal pointing out that, because of the number of Americans taking medications, jury consultants are starting to ask jurors about their medication usage.

Did you take your meds today?

Mr. Itkin notes that the Florida Rules for Mediators provides that, if a party is unable to freely exercise self-determination, a mediator shall cancel or postpone the mediation. The mediator is also to adjourn or terminate the mediation if any party is unwilling to participate meaningfully in the process.

As professional mediators, what role do we have to inquire as to the mental or psychological state of a party? Should we ask if they are on medications? Or if they should be on medications? How, as a neutral, do we evaluate if a party is free to exercise self-determination?

The Association for Conflict Resolution, the American Arbitration Association, and the American Bar Association adopted Model Standards of Conduct for Mediators. Under those model standards:
  • "A mediator shall conduct a mediation based on the principle of party self determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise
    self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes
    ." (Standard I. A.)

Standard VI.A.10 states:

  • "If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination"

What do you do to make sure that the parties don't have a difficulty comprehending the process, issues, or settlement options, or participating in the mediation when it comes to a party's psychological condition?

Thoughts on workplace mediation

We've written before on the benefits of workplace mediation. I still believe them to be true. But two items entered my stage in the last week that causes further reflection.

First, a blog post by Yusuf Salwati at IT Knowledge Exchange notes that "communication is the best conflict resolution method". Clogged communication channels are the cause for most conflicts in the workplace, including management not willing to listen (or too busy to listen) and employees not willing to come forward to express their concerns. The author suggests that employers should talk to employees and make sure that employees are not holding something back.

Second, I received a call from a prospective client about an employment-related issue. I asked if the company had an internal dispute-resolution program, the caller said "yes". He also said that there was a perception that if an employee initiated the program, that was viewed by employees as a death sentence. Using the internal ADR procedure was viewed as a quick trip to the unemployment line.

This is unfortunate.

If an employer is going to go to the trouble of implementing an ADR program, it ought to support those who want to use it. Employees need to know that the use of ADR isn't the first step to dismissal, but is, instead, the first step to greater understanding and communication. And employers ought to recognize that they can obtain good intelligence about policies, procedures, and people that can be used to improve the bottom line and company morale.

A rise in mediations

Whether or not we are in a recession is a debate best left to economists. But most of us feel like there's a slowdown of sorts. What is a business to do when the economy is down, financial pressures are placed on officers and directors, and folks owe money.

Litigate. Or mediate earlier.

Joanne Birtwistle writes in Crain's Manchester Business that companies are doing more these days to chase debts. In addition to litigation increasing, mediation is proving to be popular and companies are using mediation earlier than they normally would.

The reasons for "early mediation" are (1) creditors want to preserve cash; (2) risk reduction; (3) improve cash flow earlier in the process; and (4) the flexibility in reaching decisions, compared to the win/lose outcome in courts.

Verse of the day

"Do not store up for yourselves treasures on earth, where moth and rust destroy, and where thieves break in and steal. But store up for yourselves treasures in heaven, where moth and rust do not destroy, and where thieves do not break in and steal. For where your treasure is, there your heart will be also."

--Matthew 6: 19-21

Saturday, August 30, 2008

Twogether in Texas

That Texas Legislature is serious about resolving conflict, especially in the marriage context.  A law goes into effect Monday for all of those who want to enjoy the benefits of marital bliss.  In addition to the marriage fee increasing from $30 to $60, couples must now go to a conflict resolution class before a county clerk will issue a marriage certificate.  The Houston Chronicle reports that if you want to get married, you and your soon-to-be spouse must take an 8 hour class that provides communication, conflict resolution, and "healthy marriage" skills.  If you take the class, the newer, more expensive fee can be waived.

Tuesday, August 26, 2008

Verse of the day

"Get rid of all bitterness, rage and anger, brawling and slander, along with every form of malice. Be kind and compassionate to one another, forgiving each other, just as in Christ God forgave you."

--Eph. 4:31-32

Monday, August 25, 2008

Verse of the day

"Let us therefore make every effort to do what leads to peace and to mutual edification."

--Romans 14:19

Wednesday, August 20, 2008

Verse of the day

"I strive always to keep my conscience clear before God and man."

--Acts 24:16

Tuesday, August 19, 2008

Verse of the day

"And my God will meet all your needs according to his glorious riches in Christ Jesus."

--Phil. 4:19

Applying a different model to the Middle East?

Does one size fit all?  Can one model for conflict resolution be applied to all conflicts?

According to a recent article from the TimesOnline, the answer is no.

In looking at ways to solve the "mid-east" issue, some have advocated that the Northern Ireland peace process should be used as a model to develop a peace process in the Middle East.  The Times points out that a new study issued by Peterhouse College's John Bew and Martyn Frampton takes the position that a one-size-fits-all conflict resolution policy may not work in all situations.  In fact, there may be times where a willingness to negotiate may not be profitable at all--at least in the world of terrorism, the authors conclude that "the willingness of a state to negotiate might encourage the terrorists to believe that their opposition are ready to concede--even when this is not the case."

In our day-to-day lives, both business and professional, do we take a one-size-fits-all approach to resolving conflict?  As professional peacemakers, do we take the time to evaluate the parties' interests and develop a game-plan and methodology for resolving that particular conflict, or do we try to make everyone fit into the size and shape of shoe that we like to wear?

Road Rage

We live in a part of town with cyclists.  All around us.  All of the time.  A couple of years ago, a law professor was convicted by a jury of either aggravated assault by threat or action when she "tapped" a cyclist who as in front of her and going too slow.   The conviction was thrown out by an appeals court because of a faulty jury instruction.

The folks at are focusing on the strained world of cyclists and drivers and how those two groups can coexist.  Parts one and two of their series can be found here and here.  Noting the deteriorating attitudes of cyclists and drivers to each other, executive editor Bill Strickland suggests that cyclists take the following approaches if they find themselves in a confrontation with a driver:
  • Apologize for anything you did wrong;
  • Personalize yourself;
  • Point out incorrect information the driver may state;
  • Cite the bottom line (i.e., it's easy for a driver to injure or kill a cyclist); and
  • Cut off the interaction.
What do you think?  Is this a good formula for helping resolve conflict between drivers and cyclists (the editors say that they use this approach with success).  What about as a model for other types of conflicts?

Monday, August 18, 2008

Verse of the day

"Do not let any unwholesome talk come out of your mouths, but only what is helpful for building others up according to their needs, that it may benefit those who listen."

--Ephesians 4:29

Sunday, August 17, 2008

Verse of the day

"If you are offering your gift at the altar and there remember that your brother has something against you, leave your gift there in front of the altar. First go and be reconciled to your brother, then come and offer your gift."

--Matthew 5: 23-24

Friday, August 15, 2008

Settling > Trial

The New York Times is reporting that it's better to make a deal than to sue. Jonathan Glater writes that a study to be published in next month's Journal of Empirical Legal Studies offers staggering statistics.

  • Defendants who proceed to trial, instead of settling, were wrong 24% of the time;
  • Plaintiffs who proceed to trial, instead of settling, were wrong 61% of the time;
  • Only in 15% of the cases were both sides right in proceeding to trial: that is, the defendant paid less than the plaintiff had wanted, but the plaintiff got more than the defendant offered;
  • When plaintiffs got it wrong, it cost them $43,000 on average; and
  • When defendants got it wrong, it cost them $1.1 million on average.

The study claims to control for factors such as an attorney's experience, rank of the attorney's law school, and size of law firm. None of those factors were as important in making a decision to go to trial than the type of case. On the plaintiff's side, error is higher in contingency fee cases; on the defense side error is higher where there is no insurance coverage.

Obviously the study's methodology needs to be closely examined. But the central tenant that parties do better by settlement than by taking the case to trial is consistent with the anecdotal comments made by practitioners.

Why are parties so wrong so often? The authors provide several possible answers (none of which can be quantified). The possible explanations are:

  • Attorneys giving poor advice to the client; and
  • Clients thinking they have a slam-dunk case.

Does the financial system for the attorney/firm provide incentives to go to trial? In other words, is a case more likely to go to trial because of the attorney's financial stake in the outcome, rather than likelihood of success (however that word is defined)?

Thursday, August 14, 2008

Peacmaking with religious brokers

A wonderful article in The Economist highlights the role of religious organizations as peacemakers. The article may be found here. Make sure to read the comments section, as well. You should also read the companion article in the Economist about the "discreet charms of the international go-between that can be found here.

Religious institutions may be best suited as peacemakers, according to the article, and it lists several instances in Latin America, Europe, and Africa.

What makes religiously-based peacemakers unique? According to the author,
  • Neutrality, impartiality, and the ability to be an outsider acting as a guarantor of an eventual deal;
  • Long-term commitment and presence on the ground;
  • Contacts with local religious leaders; and
  • Moral and spiritual authority.

I've attended a Christian-based mediation training put on by Peacemakers. It was a wonderful session put on by committed men and women. I'd recommend it. I will say that Peacemakers showed me something more than what I've found in my "secular" conflict resolution training--that it pleases God for us to live in peace with each other.

I'm not sure that all of the reasons for religious-based peacemaking are so very different than secular peacemaking. Being committed to the process, to the parties, and having knowledge are certainly common to both groups. What do you think? Are religious-based mediators better equipped to handle conflict than secular mediators?

The "companion" article is a fascinating read, also. It notes that, in the last 15 years, "military victories have resolved only 7.5% of conflicts, while negotiations have prevailed in 92% of cases....The challenge is thus not being a skillful warrior, but a skillful negotiator." Also, it notes that Kofi Annan, acting as a mediator in the Kenyan conflict, chose to have the parties work through another third party (to establish trust and calm) and had meetings at a secret location at a "game park" to avoid the scrutiny and pressures associated with the media. There are several lessons to be learned here: location matters, you need to get away from distractions, and the parties have to trust you. A mediator friend of mine will take the parties (separately) out to lunch at a nice restaurant to discuss the case and negotiations. He says that it's hard to be upset (he uses other, more colorful language) with someone when you are having a nice meal.

The power of an apology

It's hard to say "I'm sorry." Why is that? Is it a sense of ego? Pride? Fear of being seen as less than perfect?

For a long time, those in the medical profession who have made a mistake have been counseled to not apologize to their patients. The advice has traditionally been "deny and defend."

This mindset is changing.

The New York Times highlighted a significant change in the way the medical community is handling mistakes. Many institutions, such as the University of Michigan, the University of Illinois, and Harvard, are now taking the approach that instead of hiding behind mistakes, medical professions and their institutions should immediately inform the patient of the mistake, apologize, and try to correct the situation.

Those hospitals incorporating the full disclosure and apology model are finding that the number of lawsuits they are facing are down, the amounts paid to patients are down, and the better communication allows processes to be enacted so that the likelihood of the same mistake happening again are diminished.

The power of an apology--and full disclosure--has ramifications in all walks of life, not just in the medical field. Conflict resolution professionals know that a major cause for conflict, whether in the home, in the church, or in the workplace, typically starts and continues because of poor communication.

And, while it is tough to apologize, most folks are reasonable folks, know that mistakes happen (we are all human, after all), and an apology can help diffuse the anger that exists between the parties.

Of course, some legal professionals don't like apologies because it implies guilt or liability that could be used against the "apologizer" later in court, and that's a valid concern. That's why, according to the Times, 34 states have "enacted laws making apologies for medical errors inadmissible in court". Apologies should always be inadmissible in court.

I've been in mediations where I know an apology would do wonders, but folks will not issue two simple words: "I'm sorry" (okay, that may be three words with the contraction; I'm a peacemaker, not an English major). Instead, they'd rather spend months or years in court and spend thousands of dollars in fees and lost productivity than say "I'm sorry."

Certainly there may be the instance where one clearly has not done anything for which to apologize, but in my experience, conflict typically takes two to tango, and an apology, along with a good neutral facilitator, can help transform the apology into a settlement.

Verse of the day

"Therefore my dear brothers, stand firm. Let nothing move you. Always give yourselves fully to the work of the Lord, because you know that your labor in the Lord is not in vain."

--1 Corinthians 15:58

Wednesday, August 13, 2008

Verse of the day

"If it is possible, as far as it depends on you, live at peace with everyone."

--Romans 12:18

Tuesday, August 12, 2008

Litigation Costs

The Wall Street Journal's Sarah Rubenstein blogs today about a new rule being proposed by the Financial Accounting Standards Board. The proposal requires companies to provide a "best estimate of the maximum possible exposure to loss" when a plaintiff sues the company for unspecified damages.

The thinking behind this rule is that stockholders are entitled to know the risk of owning, and continuing to own, stock in a company.

Many companies who have a lot of experience in large products liability defense cases have corresponded with FASB making the case that this type of litigation cost estimate is, at best, difficult. Here's a copy of the letter.

What's this have to do with dispute resolution?

A lot.

This letter outlines the reasons why litigation is so expensive. Cases may take years to get to trial. Discovery is incredibly expensive. And the ultimate risk is found in a fundamental right in our justice system: the jury. The letter points out that in one Vioxx case, the range in value had a high of $250 million (jury verdict) to a low of $0 (overturned on appeal).

Parties certainly need to conduct some level of discovery to have a grasp of the facts and exposure a particular case provides. But the uncertainties of a verdict (whether one is liable or not) and the amount awarded puts control of one's fate in the hands of twelve folks who may or may not be your "peer." And even if you hit it big at the trial level, there's always the court of appeals that you may get to deal with.

Take control of as many of the risks as you can. Seek a qualified resolution specialist to help you manage the inherent risks in litigation.

Monday, August 11, 2008

The Office: PDAs, paperclips, and conflict

With the economy in a place where most don't want it to be, jobs are scarce and some employees may feel that they have to put up with more a the workplace than in the halcyon days of old.

Not so, according to an article in the San Francisco Chronicle.

The article quotes an EEOC mediator as "people who bring up issues may actually be more protected during layoffs."  I suppose the thinking goes that if you, as an employee, have lodged a complaint about something in your workplace, than when it comes time for the RIF, you might not be on the short list because of the possibility that your complaint was protected under law.

Of course, a great way of handling these types of disputes is through workplace mediation programs.  I've posted about the efficiencies of these programs before.

Workplace mediation is great because it improves the lines of communications, cuts down costs, and frees up resources.  Even if the mediation is post-termination (I handled one of those last month as a mediator), I found that the lines of communication were opened, information was shared, and what could have been a costly dispute (money and resources for the company, emotionally for the employee) was resolved in about 12 hours.  

Saturday, August 9, 2008

Yo, you talkin to me?

Apparently not in New York.'s Michael Rothfeld and Melanie Lefkowitz report that family law mediation in New York lags behind other states.  The article quotes Hofstra University law professor Andrew Schepard as noting that the New York system places importance on "digging up dirt" on the soon-to-be ex-spouse instead of putting the child's needs first.  

Surprisingly (to me), New York judges do not have the power to order couples into mediation.

Despite these difficulties, the article goes on to explain that pilot programs exist in several counties.  The early findings are that cases are being resolved in a few months instead of several years, children are not used as "weapons in negotiations", and divorces are less acrimonious.  

Confidentiality in mediation

The California Supreme Court ruled that statements made during mediation cannot be used to bind a party to a settlement agreement she did not sign, according to the Metropolitan News-Enterprise.  

The facts are complicated (at least to me):

  • Claim filed against a doctor.
  • Doctor provided consent to her malpractice insurer to settle the case for no more than $150,000.
  • Malpractice carrier, its attorney, and Plaintiffs' attorney agreed to $125,000.00 settlement.
  • Doctor, learning of the settlement, reportedly said "Good, because I am revoking my consent."
  • Mediator (a judge), plaintiffs, and their counsel signed the settlement agreement.  Neither doctor nor malpractice carrier signed.
  • Parties battled for 15 months.  Doctor's attorney turned over to plaintiffs a copy of the consent form signed by the Doctor.
The California Supreme Court, overturning the decision of both the trial court and the court of appeals, ruled that there was no estoppel nor implied waiver exception to mediation confidentiality.  

According to the article, under California law (section 1122 of the Evidence Code) provides that a settlement agreement or other writing prepared as part of the mediation may be disclosed only if "all persons...who participate in the mediation expressly agreed in writing, or orally, in accordance with Section 1118, to disclosure."  Section 1118 permits disclosure of an oral settlement if the agreement is made in the presence of the mediator, agree that the agreement should be binding, and that it is reduced to writing and signed within 72 hours.  Section 1123 allows disclosure of a written agreement only if the parties agree or for the purposes of showing fraud, duress, or illegality.

Qualifications for Mediators reports that New York established guidelines for court-appointed mediators.  The qualifications include:

  • 24 hours of basic mediation training;
  • 16 hours of additional training in specific mediation techniques that are case-specific;
  • Five years of legal practice or service as a judge;
  • "Substantial experience" in the types of cases referred to the mediator; and
  • Continuing legal education of six hours every two years.
What do you think of this program?  Too much training?  Not enough?  What about the "background" characteristics for a court-appointment--do they make sense?  Let me know.

Monty Python Mediation

A terrific tidbit in the Telegraph.  Monty Python's John Cleese (also in a Fish Called Wanda, Fawlty Towers,  a couple of James Bond flicks, and many other entertaining programs) recently commented on his divorce to American psychotherapist Alyce Fay Eichelberger.  

Cleese claims that he will pay his ex 900,000 pounds a year.  A veteran of divorce mediations (Cleese has gone through two), he suggested they mediate this divorce.  Ms. Eichelberger refused.  He even suggested that she pick his lawyer and he pick hers--what a novel idea!  But "she wasn't interested" according to the article.

The Cuyahoga County Foreclosure Mediation Program

The Cleveland Plain Dealer reports that record-breaking foreclosure filings led to the Ohio Supreme Court's development of a "foreclosure mediation program."  Describing the program as a "wise" and "bold" move, the editors of the Plain Dealer believe that the program can be improved by:

  • Incorporating a limited "time-out" period on foreclosure cases; and
  • Coordinating the foreclosure mediation services with other non-profit services, such as housing and budget counseling.
What do you think?  Should foreclosure cases receive a limited "time-out" period?  What about coordination with other services geared to help borrowers?


An editorial in the Canton (Ohio) Repository enthusiastically supports a mediation program that helps homeowners and mortgage companies.  The new program requires a mortgage company representative to attend the mediation.  Of the 84 mediations conducted from April 1 through June 30, 43 resulted in the homeowner being able to keep their home.

There's a lot to be learned from this program:
  • Mediation is most effective when parties are in the same room;
  • Creative solutions can be worked out to the benefit of lenders and borrowers;
  • Mediation can help reduce not only courthouse resources, but also reduce the burdens on others in the foreclosure and eviction process, such as the local constable or sheriff.

I'm here, but it's like I'm not

A very interesting article popped up on Shoosmiths' website (a British law firm) today.  A British court ruled that a claimant's position in a mediation session was unreasonable, causing the mediation to fail.  As a result, the court ruled that the unreasonable position taken by the claimant was the equivalent of not mediating the case at all.  The court decreased the amount of their award.  

The claimant went to mediation and offered to accept an award of 9 million pounds.  At trial, the claimant was awarded 900,000 pounds.  

Both parties waived their right to keep the mediation proceedings confidential.  Think the claimant would like a do-over?

Tuesday, August 5, 2008

Cool School

Cool School is an interactive computer game that teaches 5-7 year old kiddos about conflict and how to resolve it. Cool School was developed by the Federal Mediation & Conciliation Service, the University of Maryland, the University of Southern California, and the University of North Texas.

It's a neat game and the best part is that it is free. Excerpts from the press release are below, and after that is the link to download the game.

A lot of adults could learn valuable lessons from this game, as well.

A computer game designed to teach non-violence and conflict resolution skills to young children has found a home with Curriki, a nonprofit open-source educational web site that will make it freely available for downloading by classrooms and families across the United States and around the world.

The computer game, called Cool School: Where Peace Rules, features animated school characters in situations that ask youngsters, ages 5 to 7, to select an action for resolving a potential conflict, such as others crowding in line, refusing to share or treating playmates disrespectfully. The premise of Cool School is in sharp contrast to violent and often popular commercial games that can inspire youngsters to emulate physically aggressive behavior.

Developed by the U.S. Federal Mediation and Conciliation Service (FMCS) in cooperation with child development programs at the University of Maryland, the University of Southern California and the University of North Texas, Cool School was tested at school locations in Illinois. It is being made available for free downloading to teachers and families via the Curriki web site. Curriki is a nonprofit community of nearly 40,000 educators that offers free, open-source curriculum materials to teachers and schools worldwide.

Monday, August 4, 2008

Texas AG takes on a mediation foreclosure firm

While I've been an advocate of mediation to help with the foreclosure and subprime mortgage mess, I also want to advocate that mediators do so ethically.

KWTX television reported that Attorney General Greg Abbott filed a suit seeking injunctive relief against an outfit called "Abell Mediation, Inc." According to the AG, AMI made fraudulent advertisements to the effect that it could save homeowners from imminent foreclosure. Here's a copy of the AG's lawsuit. The lawsuit alleges that AMI made promises it could not keep, such as it could save homeowners from imminent foreclosure. An agreed temporary injunction was signed by the court on January 28, 2008.

According to the District Clerk's website, the Court entered an agreed order on June 5, 2008, continuing the trial date.

More on the subprime mess

The state of Iowa is a leader in using mediation to deal with the subprime mortgage mess. Tom Miller, Iowa's attorney general, is focusing on a "prevention over prosecution" philosophy in advocating for lawmakers to have parties seeking foreclosure mediate with their mortgage company to see if something can be worked out. Here's the article.

AG Miller faces a similar situation in the 1980s with the farm crisis, where farmers borrowed excessively based upon high crop prices and high food exports. When prices and demand came down, problems popped up.

The theory behind using mediation in subprime matters is similar to the thought in the 1980s with farmers: maybe the borrower can't pay back everything, but the borrower can pay back something. And mortgage companies don't benefit by having homes that are abandoned with no one taking care of them. A home owned by a mortgage company (called REO for "real estate owned") is a huge cost-center for the mortgage company.

High-conflict mediations

Deborah Lynn Zutter wrote a fantastic article outlining strategies to help mediators handle high-conflict couples. The article can be found here.

Ms. Zutter's suggestions include:

  • Maintain a healthy skepticism and suspect lying. Ask, “Is that really true?” or “What is your part in all this?” or “Tell me in detail.”
  • Avoid taking responsibility for their behaviour and set relationship boundaries. Insist that mediation participants bring the documents to you that you have requested.
  • Build a detailed agreement. Avoid ambiguity. Be careful to seek agreement on every small step along the way.
  • Develop and explain consequences clearly. Here’s an example: If Jack is late to pick up the children by more than 30 minutes, he will pay a penalty of $50 to Jane and he will miss that visit with the children.
  • Listen to fear and anger without getting hooked. Say, “That sounds really sad,” or “I hear what you are saying and I understand how strongly you feel about that.”
  • Contain emotions. Do not permit venting of emotions in joint mediation meetings. Mediators should acknowledge emotions – to assure participants that they have been heard – and then move on to another topic. Also, avoid asking “How do you feel about...?” and instead ask, “What do you think about...?”
  • Focus on tasks, thereby changing from the focus on emotions. In mediation, keep bringing the HCP back on task and encourage HCPs to work in joint cooperative tasks.
    Recognize cognitive distortions such as emotional reasoning, minimalization, exaggeration, personalization (when someone takes an event personally that has nothing to do with them) and projection (blaming others, never taking responsibility).
  • Continuously check for safety. Separation is a dangerous time. There can be one aberrant act of physical aggression at separation, or, in many cases, the abuse will continue or escalate post-separation.

These are terrific suggestions, not just for high-stress family mediations, but for other types of conflict as well. Some of my family law friends have told me how "lucky" I am that I primarily handle business disputes because the emotion is taken out of the equation. Let me tell you, business disputes may have the rubric of efficiency and economy behind them, but at their core, there can be highly-charged emotions involved.

Thanks, Deborah Lynn Zutter, for your excellent article and advice.

Homeowners Associations

Ahh, the HOA. I'm a member of one. Been a member of another. Been on the boards of both (not at the same time!). My experience is that HOAs work hard to protect the property values of the common areas of the residents by maintaining standards and making sure folks follow the rules.

The rules, however, can be complicated and hard to find. The HOA rules where I live are in very small type, are many pages long, and many of the words are smudged. Most folks, understandably, don't read the rules when they buy property in an HOA and next thing you know, they are adding onto the home or building a fence and they get a not-so-friendly letter from the HOA telling them to stop construction.

In Maryland, the Attorney General's office handles some of the complaints against HOAs. The AG's office has a special unit designed to mediate disputes between homeowners and the HOA. Here's a link to the story.

My experience has been that problems between homeowners and HOAs are the result of miscommunication. Mediation would be a terrific way to help homeowners and their HOAs to understand the interests, which can be competing, between the HOA and a homeowner.

Mediation, South Carolina Style

The 14th Judicial Circuit in South Carolina adopted procedures to encourage mediation in family and civil cases. According to an article in the Beaufort Gazette, the number of cases have increased by 33 percent in the last three years. To combat this explosion of cases, and to help the courts manage their docket, the 14th Circuit will require cases to go through a mandatory mediation program.

One aspect of this article that is most interesting, and frankly, one that I hadn't thought about before, is the impact of settlement on the court's docket. I don't mean the point that courts will have fewer trials, but that trials can be better scheduled. My experience has been that most cases settle, and some settle on the eve of trial. That impacts not only the participants in the trial scheduled for number one on the docket, but for numbers 2-4 also. Do they have their witnesses prepared to come in? Are the witnesses available if called? Do you have to release folks from trial subpoenas? There is a whole host of logistical considerations to consider.

So, in addition to all of the well-known benefits of mediation, here's another to add to the list. Mediation allows courts and the parties to firm up their dockets.

Mediation saves money

A study by the Centre for Effective Dispute Resolution, a British-based non-profit organization, calculates that mediation saves British businesses £1 billion (US=$1.9 billion) per year in wasted management time, damaged relationships, lost productivity, and legal fees. Since 1990, savings are £6.3 billion (US=$12.4 billion) while costs of the program (that is, mediator fees) are only £8.2 million (US=$16.1 million). Here's the article. A copy of CEDR's report can be found here.

What a bargain!

As mediation is becoming more and more common place in the US, the UK and elsewhere, institutes such as CEDR are able to put pencil to paper to analyze the benefits of ADR. While so many of the benefits are non-economic (such as better work-place relations, improved communication skills) and hard to quantify, studies such as CEDR's gives dispute resolution professionals another way to market their practice: we can save folks money. That's something any CPA or MBA can appreciate.

CPS Mediation in Dallas

Check out this opportunity for Child Protective Services-focused mediation: El Centro College in Dallas, Texas will hold training from 10:00 a.m. until 6:00 p.m Aug. 9, 10, 16, and 17. Please call 214-860-2260 to enroll.

June Cometh

That's the marketing campaign for SMU's football program this year. For those in the North Texas area, the arrival of June Jones as SMU's new head football coach was shocking and symbolized new energy into that once storied program.

You might recall that Coach Jones led the University of Hawai'i to a BCS bowl last year.

Coach Jones is revered on the islands and rightfully so. He led a team and program from near obscurity to national prominence.

But when he left, the University of Hawai'i claimed that Jones breached his contract.

Coach Jones and the University are in negotiations to resolve the dispute. An article from the Honolulu Advertiser can be viewed here. The University of Hawai'i is seeking just over $400,000 in liquidated damages from Jones for allegedly terminating his contract prior to its expiration date. Jones' side claims that the (now) former athletic director promised that the contract's restrictions would be dropped if Jones honored the final two years of the contract. According to university sources, mediation is on-going.

Sunday, August 3, 2008

Irish eyes are mediating

Ireland's Law Reform Commission recently issued a lengthy report advocating that conciliation and mediation should be put forward into legislation with mediators being trained and accredited.  See the article in the here.  

The LRC's report is stunning in some respects.  The recommendation for accreditation is one that is somewhat controversial in the United States.  And, while Ireland provides it citizens with a right of access to the courts (and litigation must be available for them), the report states that mediation and conciliation ought to be seen as the final place for resolving disputes.

The article goes on to point out that the European Commission issued a directive on mediation and Ireland must implement the directive by 2011.  There is a dispute whether the directive applies to cross-border disputes, only.  Maybe they can hire a mediator to help on that one.

Funeral home mediations?

No question that death is a stressful event.  Not so much so to the person who has passed, but for the family and perhaps, friends, who remain and must make very quick decisions at an emotionally charged time.

The lack of estate planning and discussing one's desires before one passes is a major cause of this stress.  However, even the best thought-out plans may not be enough.  What type of coffin?  Cremation or burial?  Oh yeah, what about music?  And who will be the pallbearers?

Pam Vetter, in American Chronicle, recently, well, chronicled the story of Stephanie West Allen, a mediator specializing in mediating disputes before, during, and after funeral planning.  

Frankly, I think this is great advice.  Everyone ought to have an updated will, a durable power of attorney, a medical power of attorney, and an advanced directive.  I've seen situations where families are torn apart because decisions on how one's last days are to be spent, or how the funeral should be conducted, were not communicated with family members in a clear, thoughtful way.  These end of life decisions are capable of destroying the family for generations.  And that's unfortunate.  While I think it would be incredibly difficult to have a mediator step in during the funeral decision-making process because of timing issues, perhaps a mediator can be used well before that happens to help facilitate the discussion amongst the family members and to promote communication within the family.  Who knows, maybe having this type of dialogue early enough will not only promote a better death experience (that sounds strange, doesn't it), but it may also promote better communication while everyone is around.

Association for Conflict Resolution Annual Conference

Please make plans to attend the 8th Annual Conference for the Association for Conflict Resolution.  The conference is a terrific event.  This year's keynote speaker is Lee Hamilton, former congressman from Indiana and current president and director of the Woodrow Wilson International Center for Scholars, as well as director of The Center on Congress at Indiana University.  Mr. Hamilton also co-chaired the Iraq Study Group.

This year's conference promises a wide-range of training and sessions with presenters and participants from all over the world.

And it's in Austin, at the Hilton Austin.  

More on home foreclosures

Linda Stamato wrote an excellent article in NJ Voices about the foreclosure market.  Ms. Stamato points out that while the state legislature is debating various "solutions" to the foreclosure mess, cities and nonprofit groups are filling in the void.  The city of Elizabeth developed a program to help people facing foreclosure by helping them sell their homes.  It's a matching program where first-time homebuyers locate affordable homes, other people are prevented from going into foreclosure, and pre-qualified mortgages are arranged through nonprofit groups.  Ms. Stamato also highlights what other states are doing to battle the historically high levels of foreclosures.  New York, Iowa, Georgia, and Connecticut all have programs requiring parties to a foreclosure to mediate first.  

I've written before that foreclosures are a failure for everyone:  the homeowner and the mortgage company.  A trained neutral could be very beneficial to helping the homeowner and the mortgage company reach creative solutions--and solutions that are better than having to force thousands out of their homes and having mortgage companies hold millions of dollars of properties until the next buyer comes around.  

A more rational and relaxed tone

Great news out from the Bankok Post.  William Roth reports that Cambodian and Thai foreign ministers reached a decision to reduce troop levels near Preah Vihear temple.  The dispute of ownership of the temple was resolved in 1962 by the International Court of Justice, which issued a ruling that the temple belonged to Cambodia.  So the dispute between Cambodia and Thailand over troop levels, among other issues, has been going on for over forty years.

Mr. Roth's report indicates that these two countries have not agreed to a neutral to help them resolve these issues, but at the same time, Mr. Roth advocates for the use of a neutral.  The strengths that a neutral brings to international negotiations include:
  • Propose ideas that the parties couldn't put forward on their own.
  • Disaggregate issues to find a solution.
  • Find solutions that respect the interests of the parties.  
  • Changing reality from a zero-sum game to one that satisfies the interests of the parties.
It is amazing that the benefits of a neutral in international disputes are the same as in the inter-personal disputes so many conflict resolution specialists face daily.  Whether it is a set of fresh eyes or simply the ability to help the parties understand and develop creative solutions to reach each of their interests, the involvement of a neutral can be greatly beneficial to helping parties reach resolution.  Even after forty years.

Are too many lawyers mediating?

The answer is yes, according to the Dean of the South Texas College of Law. In an article printed in the Southeast Texas Record, Dean James Alfini suggested that the high number of lawyers acting as mediators is eroding the "core spirit" of the Texas Alternative Dispute Resolution Act. 

The Texas ADR Act, according to Dean Alfini, was designed so that parties can talk face to face before a neutral third party to resolve a dispute. With so many lawyers acting as mediators, the parties aren't getting an opportunity to tell their side of the story directly to the other side, according to Dean Alfini. Instead, the attorneys representing the parties are the ones doing the talking and the deal making with the mediator.

It goes without saying that a mediator should not act as a decision-maker. But I've found in a number of circumstances the parties have been so hurt by the other that they don't want to speak to the other side, so the mediation process of using separate caucuses does meet the need of the hurt party--they get to tell their story to a neutral. It's like having their day in court, and that ability to express what happened to a neutral (instead of the other side or their own attorney) can have a tremendously meaningful effect.

We should listen to Dean Alfini, and make sure that the mediation process is focused on the parties, and that the parties are the ones who make the solutions, not the attorneys (or the mediator).