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