Saturday, August 9, 2008
- 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.
- 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.
- 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.
- 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.
Tuesday, August 5, 2008
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
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.
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.
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.
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.
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.
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.
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
- 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.
- Quality control problems
- Lack of productivity
- Employee turnover and increased training costs, and
- Employee sabatoge
By sending mediators into the workplace, businesses can actually decrease their costs and improve productivity. It's important that mediators not only mediate on-going disputes, but can train employees on how to deal with disputes (which are bound to happen) in constructive, instead of destructive, ways. This proactive approach can have vast long-term benefits for the employer's bottom-line and the employee's quality of life.
The first is that the parties came to the table with conciliation on their mind. While the article doesn't describe why the school board and the teachers came to the table with this attitude (perhaps because both did not want a third party to make decisions for them), the article does make clear that a "sense of collaboration" made the mediation successful.
The second point is that the mediation panel was, apparently, able to break down smaller issues from the larger ones, so that the overall structure of the teachers' contract would not be destroyed. By reducing the issues, the parties were able to tackle those issues without opening the door to other issues that had already been decided. The mediators were able to allow the parties to continue their momentum toward resolution.
These are two very important lessons to be learned. Unfortunately, we can't always have both sides come to the table with a conciliatory attitude, but a good mediator can work hard to promote that philosophy. A good mediator can also analyze the issues so that the parties can continue to work towards a result that satisfies all of them.