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).

A duty to disclose mediation?

A British publication is reporting that several members of the bar are not advising their clients of mediation because it will cut into the attorney's profits. Something called the Commons' Public Accounts Committee suggests that legal aid recipients are not being provided with information about mediation because the attorneys (solicitors) can obtain higer fees by taking the case to court instead of resolving it through a mediation process.

This is, indeed, a shameful practice.

An attorney owes the utmost duty of loyalty to a client. There are certainly cases and times where one must litigate a case to its final conclusion through the court system. But those cases are relatively rare. Not advising a client of the option of mediation may not be in the client's best interest. It seems intuitive that most folks would like for their dispute to be resolved sooner than later and at lower costs. Of course, attorneys need to make a living as well, but the loyalty of the attorney is to the client, not to the attorney's checking account. 

The Legal Services Commission, the organization responsible for legal aid in England and Wales, is recommending targets for cases to mediate as well as changing the fee structure for attorneys so that mediation will become a more viable economic option than the current system. Hopefully, the LSC will be able to devise a plan that will be accepted by the solicitors so that cases involving legal aid clients can be resolved through mediation, instead of through a trial.

Can a fortuneteller help resolution?

Well, this was tried in Pakistan. A fortuneteller who was friends with the Pakistani Chief Justice was brought into the mediation to help mend difference between his friend the Chief Justice and President Musharraf. 

The fortuneteller should have known better.

Although the fortuneteller was successful in predicting when the Chief Justice would be removed from office, he had no such luck (?) in resolving the dispute between the Justice and President Musharraf.

There is a lesson to be learned in this, but one that is not often used in US mediations. The bringing in of a friend--or trusted advisor--to assist one of the parties in resolving the dispute. Having a trusted advisor, someone the party believes in and obviously trusts, can help break a log jam if the advisor will provide an independent assessment of the situation. The advisor can act as another neutral in the situation, but one with a track record that the party can rely upon for good advice.

Perhaps mediators should encourage stubborn parties to pick up the phone, call their friend (or other advisor) and see if the friend can throw a lifeline to rescue the resolution of the conflict.

Workplace mediation

I've written before about the process and benefits of workplace mediation. Marketwire reports that workplace disputes are increasingly expensive to American businesses. Specifically, discord in the workplace causes:
  • 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.

Good faith in a mediation?

The West Virginia Record reported on a failed mediation effort because a party instructed his attorney to not make any offers of settlement.  According to the published report, a number of citizens hired a private investigator to investigate allegations of corruption in the West Virginia justice system. The citizens alleged that the investigator's license was suspended prior to his representation. The private investigator hired an attorney and instructed her to not make any offers, just to file a motion to dismiss the lawsuit.

More often than not, parties to a mediation take the same approach of this private investigator: come to the mediation with no offer. There are a number of reasons parties take this approach. Perhaps it's because they think they didn't do anything wrong, so why pay? Or because of the belief that if you make an offer you may be viewed as weak and you'll open up you wallet to make the claim go away.

In many instances, however, this is a counter-productive strategy. The value of mediation is getting the parties together and letting them have their respective "say" in a neutral place. Sometimes all a party wants to do is to express their view. Sometimes, a simple apology will help resolve the dispute. But the approach of "take no quarter" can be very detrimental to both sides because it leaves unresolved emotional issues, there is no guaranty that a party will have their say in a courtroom, and there is no certainty that a court will grant you the relief you requested.

Most importantly, this also brushes up along the concept that a party should participate in mediation in "good faith." What good faith means can have various definitions, and it is certainly true that a court cannot compel a party to settle a case. I typically define "good faith" as meaning that you have allocated approprirate time to the mediation, to explore all of the possibilities of settlement, and that the party is represented by someone who has the appropriate authority to enter into a binding settlement agreement.

Given the uncertainties and costs associated with a trial, it does make sense to spend some time at a mediation, explore the alternatives to trial, attempt to understand the other side's position, and see if a negotiated settlement is the best alternative to the uncertainty of the outcome at trial.

Mediating the Mortgage Mess

Much has been written about the mediation crisis in this country, particularly amongst those who provided and received so-called "sub-prime" mortgages. Essentially, money was loaned to folks who could not meet traditional lending standards. The loans provided for cheap initialpayments, and then after some period of time, the payments leaped up to a point where many could not afford the monthly payments. We are now seeing record-setting numbers of foreclosures, financial institutions in trouble, and a lack of available funds for lenders to make new loans. 

While some financial institutions initially took a hard-line approach to defaulting borrowers, the problem has become so big that many financial institutions are taking a different approach. You see, if financial institutions foreclose on all of these homes, and no one buys them at the foreclosure sale, then the financial institution has to spend money to insure the property, market the property for sale, and maintain the property (things like mowing the grass, sending inspectors to make sure windows aren't broken--you get the picture). Every dollar that a financial institution spends for these pieces of real estate is a dollar off the financial institution's already sensitive bottom line. So these financial institutions really have an incentive to keep the borrower in the home and not to foreclose.

This is where community-based mediation programs can come in and help.

Iowa, for example, is considering a plan where Iowa Mediation Services will serve as an intermediary between lenders and borrowers to prevent the foreclosures. By working together, borrowers and lenders may be able to modify the loans, allowing the borrower to have some breathing room and preventing foreclosures.

Hopefully, states throughout the union will be able to adopt similar programs. Foreclosures aren't beneficial to anyone involved, and the use of skilled mediators can help lessen the financial impact of this crisis.

It's all about trust

The Miami Herald recently profiled mediator Cindy Niad Hannah. The best part of the story, in my humble opinion, was at the end. Ms. Hannah is quoted as saying:

"You're dealing with a lot of very different personalities and there are a lot of different things going on and you don't necessarily know everything. You've got to keep everybody happy and everybody trusting...."

She's hit the nail on the head. Mediation is about negotiation, that's for sure, but deeper, it's about understanding the other side's personality and establishing trust with the other side. I know that the concept of trusting the other side is something difficult to handle, and more difficult to put into practice. After all, if you could trust the other side, you probably wouldn't be involved in a dispute, right?

Remember that trust is a two way street. The other side probably doesn't trust you either. So in negotiations and at a mediation, it's important for you to demonstrate that you are trustworthy. As you enter into the mediation, think of some things that you can do to help the other side view you as a trustworthy person. You don't have to necessarily provide big concessions at this stage; small ones will do. Provide the other side with something tangible that will chip away at their negative perception of you.

Trust is earned, as someone once said. And perhaps that is true. But trust can also be provided. Think about ways you can provide trust before your next mediation.

A workplace success story

I've posted about the need and use of workplace mediations. Karen Dorn and Cheryl Stinski published an article in the Appleton (Wisconsin) Post-Crescent about the same issue. A human resources manager asked them about ways to ease the HR manager's job because of conflict in the workplace.

The authors suggest that workplace mediation would be an answer to the problem of employees who are in conflict. There are three specific tools that these authors suggest:

  • Use "I" statements instead of "you" statements (for example, "I feel like you are always taunting me" instead of "You are always taunting me."). This changes the focus to one's own feelings and takes away the more attacking form of "you" are doing something.
  • Reframe the message. Make a negative message positive; don't assume bad things about the other person. So instead of "You are always taunting me" you could say "I feel that you are frustrated with me because I ask so many questions. But I'm just trying to understand the instructions and the timing to accomplish these tasks."
  • Restate what you heard and allow open dialog. There are numerous studies that establish that people want to be heard, and once they get things out in the open, they feel better about the situation. That makes negotiations easier. So give folks room to talk and after they talk, restate what they've said. That way, they know that you were listening.
It's always difficult to resolve a conflict between historically adverse parties. In a recent post at "In Forum News", Helmut Schmidt reported that the Fargo school board and its teachers union reached a compromise on a teaching contract. The article gives a lot of praise to the mediation process for helping the parties reach an agreement. It also illustrates two important aspects in having a successful mediation.

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.
Neighbor on neighbor disputes are all too common, and to those outsiders who don't have to live with the neighbor, the issues can seem insignificant. But to those who have to live next to each other, the issues can be huge and seem insurmountable.

Recently, the New Jersey Supreme Court ruled that condominium homeowner associations can enforce their rules as long as the rules are not unreasonable or oppressive. The co-directors of the Center for Negotiation and Conflict Resolution at the Bloustein School of Planning and Public Policy at Rutgers examined this ruling and then asked, how do you ensure peace and harmony between neighbors. 

The condominium association at issue in the New Jersey Supreme Court case has 10,000 residents (that's right--10,000 is not a typo). To even the untrained observer, one can guess that disputes will arise when that many people are involved.

The authors suggest--and rightly so--that the process for resolving disputes is important. People need to have their interests heard, there needs to be a way to achieve resolution to conflicting issues, and the participants must want to abide by the agreement they make.

Mediation achieves those goals. Instead of having a heavy-handed authority make a decision (that perhaps no one agrees with), mediation allows the participants to have a stake in the ultimate outcome and an incentive to abide by the decision. Mediation can strengthen the bonds between neighbors, by allowing them to air their grievances in a safe, controlled atmosphere, with a neutral, with everyone there knowing that the goal is to resolve the dispute. I've seen this myself, in negotiations and settlement discussions where the parties--with very raw emotions--at the end of the day hugged each other and invited each other to dinner.

Preventative Mediation

Preventative Mediation. Workplace Mediation. Employee Mediation. Trying to get a problem resolved before heading to the courthouse. Whatever term you would like to use, Preventative Mediation is a concept that is growing in popularity.

The process has been around for a long time in universities, but businesses are starting to see the value in this system.

The theory behind it is that before disputes between employees, or between an employee and an employer get out of hand, the parties try to mediate the issues with a neutral to see if resolution can be had before someone files an EEOC charge or lawsuit.

Businesses recognize that it is costly not only to defend an EEOC charge or litigation, but the costs are multiplied when an employee leaves (either voluntarily or terminated) and a new employee must be hired and trained. If a business can keep an employee on board and resolve the dispute, both sides win. Employees feel that they are listened to and taken seriously by their employer and the employer learns important information from the troops on the ground. The employer also has happier employees and does not have to spend the time and money to recruit and train new employees.

Workplace conflict is increasingly costly to businesses nationwide. Some of the costs are obvious such as costs of defending lawsuits and responding to EEOC charges. Other costs are less quantifiable but equally expensive, including (1) wasted time (up to 42% of employees’ time is spent engaging in, or attempting to resolve, conflict), (2) bad decisions (conflict may result in incomplete or unreliable information), (3) lost employees, (4) employee sabotage, (5) work slow-downs and lost work time (e.g., use of sick days for "mental health breaks" resulting from the stress of a co-worker), and (6) lowered job motivation and hostile work environments.

In one study of exit interviews, chronic unresolved conflict is a decisive factor in at least 50% of voluntary departures; conflict accounts for 90% of the cause of involuntary terminations (except for downsizing, mergers, and restructuring).

The reason why preventative mediation works is several-fold:
  • the procedure gives the employee the opportunity to have "a day in court" with a neutral and to vent emotions;
  • a resolution is likely to emerge, but if a resolution is not reached, other options are not foreclosed;
  • the resolution is likely to be more mutually beneficial, and more creative, than one fashioned by a court, jury, or governmental agency;
  • lingering animosity is likely to be lessened;
  • the parties retain control over the outcome;
  • legal fees and other costs are modest;
  • and the procedure is private and confidential.
Obviously there are situations where an early mediation is not in one's best interest, but I believe those are the exceptions to the rule. While universities and some large companies can afford to have a mediator on staff, most cannot. That's where an outside neutral could come in and help resolve the dispute.

Happy Birthday Texas ADR Act

Twenty years ago, the Texas Legislature enacted the Texas Alternative Dispute Resolution Act. The Texas Bar Journal devoted its July, 2007 issue to the Act. 

Recognizing that having disputes heard in court can be a lengthy and expensive experience, the legislature enacted various measures to help people resolve their disputes outside of the courtroom. Generally speaking, these alternatives to court are less traumatic, less expensive, and allow for more creative solutions that having a dispute heard by a judge or jury.

The ADR Act was and continues to be a real positive development in Texas. Happy Birthday.