Monday, December 21, 2009

Probate Mediation

I ran across an excellent essay today by Rikk Larsen about mediating the estate case. Rikk suggests that mediation is underused in the estate planning and settlement field. He makes three suggestions to increase the use of mediation in this area:

1) Convince entrenched professionals, the lawyers, financial planners and CPA’s, that mediation is not a threat but a positive team option that can help make their job easier and not diminish their billable hours.

2) Continue to work with probate courts to include mediation as a formal court approved option that judges understand and embrace. Presently only a few courts have formal programs like the one New Hampshire is introducing this year on a statewide basis.

3) Continue general marketing to the public by word of mouth, print articles, other media pieces and professional association support.

What do you think? Are courts, attorneys, and financial planners using mediation in estate settlement procedures?

Credit Cards and Consumer Arbitration

Capital One announced that is will no longer require consumer disputes to be resolved through binding arbitration. According to the Associated Press, Capital One will amend its credit card contracts starting next month.

Bank of America announced last week that it was removing the arbitration provisions from its consumer contracts. MSNBC reports here.

These amendments are subject to court approval.

We've blogged on this issue before with JPMorgan Chase & Co. as well as the National Arbitration Forum altering its practices in light of litigation. In this case, Capital One says that a class action suit naming it as a defendant did not drive the decision to eliminate the mandatory arbitration provision for its consumer contracts.

The AP reports that the class action suit, filed by Berger & Montague, alleges that major banks conspired to require card members to go to arbitration to resolve disputes.

But is this a good move? I'm not taking a position on this, but with current advancements in arbitration (including the company paying for arbitration, and not the consumer), does the argument that arbitration is more expensive (for the consumer) still hold water? Is there empirical evidence that arbitrators rule in favor of the creditors more often than the debtors? I would be interested to know what the empirical evidence suggests.

GM won't challenge arbitration

The Detroit News is reporting that General Motors will not fight legislation that requires binding arbitration. The House Bill requires binding arbitration and an appeals process for those dealerships that were shut down this summer.

Thursday, December 17, 2009

More on the Nevada Foreclosure Prject

The Mercury News is reporting that the Nevada Supreme Court swore in 75 new mediators as part of its Foreclosure Mediation Program.

The Nevada Supreme Court's website shows that more than 3,400 homeowners have requested mediation. 372 mediations have been conducted. 1,401 cases have been assigned to mediators.

We've blogged about the Nevada program before. One of the important questions, to me, is how is a successful mediation and program outcome defined?

If a mediation results in a modified loan, but the homeowner defaults a few months down the road, is that a success? I'll be interested to know the general parameters of the settlements that are reached, what percentage of homeowners and mortgage companies participate, and the satisfaction levels of the mortgage companies and the homeowners immediately after the mediation and 6 months after the mediation.

Holiday Conflict Resolution

Ah, the holidays. Times where families get together after not seeing each other for months, perhaps. Food. Football. Conflict.

Yep, lots of conflict happens during this most wonderful time of year. Here's a great story from about "Holiday conflict resolution." It's worth a read. The story is based upon a post from

The articles list nine ways to resolve family conflicts. They are:

1. Respect everyone's ideas and needs.
2. Focus on the problem not the person.
3. Build power with, not over others.
4. Express feelings without blaming others (use “I” messages).
5. Own your part of the conflict.
6. Strategize to reach mutually agreeable solutions.
7. Create options ... having only one way always creates losers.
8. Listen so people will talk and talk so people will listen.
9. Solve the problem and build the relationship.

What do you think about this list? How would you use these principles in resolving conflict during this season?

Wednesday, November 11, 2009

Lights! Cameras! Mediation?

From the "never thought I'd see this" category.

There's going to be a television show about mediators.

The Hollywood Reporter is reporting that the USA Network has agreed to a pilot called "Facing Kate." It's the story of a divorced attorney who leaves her job to be a mediator.

If this gets off the ground, we all need to spruce up our offices and be prepared for the expectation of glamor.

Tuesday, November 10, 2009

What do attorneys want?

As part of my role as Communications person for the ADR section of the Dallas Bar Association, I have the privilege of attending monthly section meetings. Yesterday's meeting was fabulous.

Three very prominent attorneys and one former judge were on a panel discussing everything from the value of a joint session, ethical considerations, and mediation tips. I came away with a page full of notes.

Most importantly, to me, was the unanimous viewpoint by all three experienced attorneys that they want a mediator who will evaluate the case and be advocates for settlement. "Evaluate the case and the party's position", "hold people accountable", "help clients understand risks" were phrases that were used.

I know some mediators who agree with this position. I know others who believe the evaluative model is flawed because it takes the mediator out of a truly neutral position. What do you think? Should we do what our "customers" want and desire?

Thursday, October 15, 2009

Happy Conflict Resolution Day

To all: Happy Conflict Resolution Day!

Please take a moment to reflect upon, and promote, the use of resolving conflicts in the legal system, businesses, schools, families, and communities.

Thursday, September 24, 2009

Words from George Mitchell

George Mitchell is the current Special Envoy for Middle East Peace. Very recently, he briefed reporters about the trilateral meeting President Obama had with Prime Minister Netanyahu of Israel and President Abbas of the Palestinian Authority. The transcript of Mr. Mitchell's briefing can be found here.

Mr. Mitchell made some interesting comments about conflict resolution--regardless of one's view of the situation between Israel and the Palestinian Authority--and I'd like your comments.

The tone was positive and determined. The President made clear his commitment to moving forward, and the leaders shared that commitment.
Q: What is the importance of having initial commitments to the success of resolving conflict? How do you achieve these initial commitments?

The President told them that we cannot restart talks from scratch. That said, neither side should hold out for the perfect formula. Painful compromise by all will be necessary. This was a message that the President conveyed to each of the leaders in private as well.

Q: What are the advantages of reminding parties where they have been? And the advantages or disadvantages of taking a firm position, such as talks cannot be restarted from scratch? How do you deliver the message that "painful compromise" may be necessary to resolve a dispute?

So yes, we haven’t gotten everything we wanted, we haven’t gotten it as fast as we want it. But in conflict resolution, if one adopts the standard that one must always get 100 percent of what one seeks at every stage of the process, otherwise you’re failure, well, then of course, there would never ever be a resolution of any conflict. Painful compromises are necessary for everybody. So we are determined to proceed. We will not be deterred by – I don’t want to say accusations, but criticisms, by descriptions of failure. We believe that we are doing the right thing. We believe we have made substantial progress and we intend to continue with full determination until there is comprehensive peace in the region.

Q: Often during negotiations, one of the parties will say "we're not making any progress, we're out of here." How do you keep parties at the table during times when seemingly no progress is being made? How do you educate parties to a negotiation that resolving conflict is process, often times not a quick one?

Conflict Resolution Day Approaches

October 15 is Conflict Resolution Day, sponsored by an organization that I belong to and respect, the Association for Conflict Resolution. As Conflict Resolution Day approaches, a number of local ACR Chapters begin publicizing the day as well as local governmental units and agencies.

Here's the first article that I've come across, it's from the Maryland Gazette, announcing that Maryland's Judiciary's Mediation and Conflict Resolution Office is sponsoring a Conflict Resolution Day Student Bookmark Art Contest.

Congratulations to the Maryland Judiciary's Mediation and Conflict Resolution Office in kicking off Conflict Resolution Day, and what a great way to start--by inviting children to think about resolving their conflicts peaceably.

We'll keep posting on Conflict Resolution Day activities as they become available.

Friday, September 18, 2009

Health care

Like most folks, I'm interested in the debate on health care that is going on in this country. Being the good neutral, I'm not going to let you know my preferences.

But I got to thinking this morning on the way back from the courthouse: how would I mediate the health care debate?

The health care debate has all of the issues relating to a really sophisticated piece of complex litigation: opinions on all sides from authorities in the field and interesting legal issues (the Wall Street Journal has run pieces discussing the constitutionality--rather, unconstitutionality of the federal government regulating or requiring health care--see WSJ stories here and here and related stories here and here).

If you were appointed to mediate the health care debate, how would you approach the mediation? How would you try to get the parties to "settle" the issue? How would you set up the mediation? How would you help the parties frame the issues?

I'm interested in your thoughts.


Congratulations to me and Re:solutions. We just published our 100th post.

Monday, September 14, 2009

ADR and Healthcare

Here's a very interesting article by Emily P. Walker at In it, she discusses the efficiencies of ADR procedures in the health care arena. She cites a study by Chris Stern Hyman of the Medical Mediation Group that of 19 cases that were mediated, 13 reached an agreement in an average of 2.3 hours. Of the 19 cases, 11 had an apology offered by a hospital system representative, and when the apology occurred, settlement was about two and a half times more frequent then when there was no apology.

Tuesday, September 8, 2009

More on foreclosure mediations

What happens when you invite people to a party, but no one shows up?

This is happening with foreclosure mediations in the Dayton area. According to an article in the Dayton Daily News (here), of the 62 cases referred to mediation in Montgomery County, 40 homeowners failed to respond. Seven were settled, 13 are pending, and 2 were canceled.

What does this mean when almost 65% of the folks don't show up? And I think most people would conclude that mediation of foreclosure actions is designed to help the homeowners.

Similarly, in Franklin County, the administrator for its Foreclosure Mediation project is that "30 percent" of the completed mediations are keeping their homes.

In Nevada, after expecting 1,250 and 1,500 homeowners a month flocking to a foreclosure mediation program, only 10 homeowners requested mediation--during a six week period. Click here for the article.

My initial thought is that mediators need to educate homeowners about the benefits of mediation. But it may also be that the mediators aren't able to get in contact with the borrower to talk with them in the first place. Also, it may be the the borrower identifies the situation as hopeless and would rather turn resources toward starting over instead of trying to maintain what is perceived to be an impossible situation.

Regardless, mediation can be a very effective tool in helping lenders and borrowers come together and see if a workable solution exists.

Green Thinking

Andrew Winston writes in his management blog for Harvard Business about businesses like Toyota who were thinking "green" way back in the '90s when oil was at $17.00 a barrel.

Going "green"--taking steps to enhance and protect the environment--is very popular these days. My wife and I were registering for baby necessities yesterday and I was amazed at the number of baby products that were "green." I was also amazed at the number of books that are published to read to one's kid about the environment, ecology, and doing what one can to save the environment.

What about the ADR profession? Are professionals in the ADR community thinking "green"? I'm looking for input on this question because I don't have the answers. I'm thinking of more than replacing light bulbs and turning down (or up) the thermostat. What should we, as ADR professionals, be doing to go and think green? Should we? I'd like to hear from you.

Being you

How many times have we heard someone say (or that we've said), "Oh, that's just the way that I am." We usually say that when trying to explain behaviors that are not productive (or some would say annoying).

Marshall Goldsmith, blogging for Harvard Business Publishing, asks the question, "Do You Have an Excessive Need to Be Yourself?" The post can be found here.

Goldsmith's analysis, and questioning that he provided to a CEO, are terrific for mediators and ADR professionals. Part of our goal, in my opinion, is to help lead people from one place to another. This often means candid and uncomfortable conversations. But those conversations are necessary.

So the next time that we say, "Oh, that's just the way that I am," let's ask ourselves not only why are we that way, but also, what effect does our behavior have on other people? What effect do we have on people by focusing on ME instead of THEM?

ADR and the Recession

An interesting article in today's Wall Street Journal got me thinking.

What effect is the recession having on the mediation-arbitration-alternative dispute resolution markets?

The reporting by Paulo Prada and Corey Dade analyzes funding cuts in the Georgia state court system. According to the authors, the court system's funding was cut by almost 15% last year, and future cuts are expected. One state judge is reported to have said that temporary hearings (for family custody cases) are now taking 60 days to reach instead of the usual "few weeks at most."

What does this mean for ADR professionals? I'd suggest it means opportunities.

It seems that we're told from day one in our training, and almost all of us market ourselves and the ADR process as a methodology that is cheaper, more efficient, faster, and more creative than the court system.

Now is our opportunity to prove that what we say in our training and marketing materials is true.

As ADR professionals, don't we have an opportunity--and perhaps an obligation--to assist those who are trying to access the court system to help them resolve their disputes in a less expensive, more efficient, and quicker way instead of waiting for overworked and understaffed courts to reach the case? Why can't we step in early and help folks discuss and structure the temporary orders in family cases? Why can't we help parties who are in the midst of a discovery dispute? Why can't we help the parties to resolve all of conflicts that occur during litigation, instead of just focusing on the final resolution of the entire case?

I'd like to know your thoughts.

Wednesday, August 12, 2009

The Mediator who isn't an Attorney

I was reflecting this morning about some of the conferences and professional meetings I have attended in the last year. In almost all instances--except those that are for attorneys only--there is a debate about mediators who don't have a law degree. The debate centers on how mediators should identify themselves.

In one of the professional organizations that I belong to, some members will introduce themselves as "non-attorney mediators." Others in that same organization express outrage at such a description.

I can't think of another profession that describes its members by what they are not: "Hello, I'm a non-doctor plumber." Or a "non-engineer architect."

There is no question that mediation, and mediators, derive a great deal of work from and through the legal system. Having judicial appointments is a good way to obtain cases. Having professional relationships with attorneys is a good source for business. The courthouse is a natural place for disputes and opportunities for resolving disputes.

But should people be identified as "non-attorney mediators?" What are the pros and cons of such a label? I'd be interested in your thoughts.

Monday, July 27, 2009

Nevada Foreclosure Mediation in Effect

Pursuant to state law and Supreme Court rules, the Nevada Foreclosure Mediation Program is underway, having received its first requests for mediation. Click here for the story from KTNV.

The large number of foreclosures in Nevada prompted the state legislature to adopt Assembly Bill 149 this year, which establishes a mediated foreclosure program for owner-occupied residential properties subject to foreclosure notices (only those filed after July 1, 2009). The Nevada Supreme Court adopted rules for the program. The Nevada Supreme Court's foreclosure web page may be found here.

Some interesting aspects of the program:

  • The establishment of a new fee of $50.00 to pay for the program;
  • Mediation will occur within 90 days of the date the lender records the notice of default;
  • The list of mediators includes senior judges, Supreme Court settlement conference judges, and other designees;
  • Mediators must be an attorney licensed to practice law in the State of Nevada or otherwise "experienced" (defined as having 40 hours of classroom and role playing and 10 meditations as a co-mediator or solo mediator);
  • All mediators must participate in a four hour training in mortgages, deeds of trust, promissory notes, loan modifications, and Nevada foreclosure law;
  • Mediators are paid $400.00, paid equally between the parties and the fee is nonrefundable.
I am looking forward to seeing the results of this program and whether the number of foreclosures decrease, what percentage of loans are modified, and what percentage of modified loans subsequently go into default.

Friday, July 24, 2009

The Future of Consumer Arbitration

The future of consumer arbitration is uncertain with this week's developments.

Let's start with the National Arbitration Forum. NAF is (was) set up to arbitrate disputes between consumers and credit card companies. Earlier this week, NAF agreed, as part of a settlement with the Minnesota Attorney General, to cease administering arbitrations of consumer credit card disputes as of July 24, 2009. Versions of the story and settlement can be found here and here.

As part of this fallout, the American Arbitration Association announced that it will not participate in consumer-based arbitrations until new guidelines can be developed. Here's the Wall Street Journal's story and here's the release from the AAA.

On Wednesday, JP Morgan Chase announced that it would no longer engage in arbitration for credit card disputes and was examining its consumer contracts. Here's the link to that story.

With two major arbitration outfits leaving the field, and one major creditor leaving the field, what will the future look like?

While hard to tell, my initial thought is that consumer credit card disputes will be filed in courts instead of arbitration forums. That means more work for judges with heavier caseloads and more opportunities for mediators who will have access to these types of disputes that they didn't have before.

It may also lead to a larger break-up of mandatory arbitration of all consumer disputes, not just credit card disputes. There are a number of critics of arbitrating the consumer dispute (as well as a number of supporters)--too many to list them here (hint: Google "consumer arbitration unfair" for about 101,000 hits on the subject; "consumer arbitration unfair" yields about 130,000 hits). An excellent analysis of the pros and cons of consumer arbitration can be found here, a report by the Searle Center at Northwestern University Law School.

Tuesday, April 14, 2009

Workplace conflict equals lower productivity

The title of this post is likely not surprising: when there is negative workplace conflict, the workplace suffers. We all know that, or at least sense that, from our everyday workplace lives.

A recent study from the Harvard Business Review quantifies the cost of workplace conflict (the authors use "rudeness" and "incivility" in the workplace, instead of "conflict"). I encourage you to read the report.

The report, which is based upon a study of "several thousand U.S. managers and employees" found that, because of workplace rudeness and incivility:
  • 48% of employees decreased their work effort;
  • 47% decreased their time at work;
  • 38% decreased their work quality;
  • 66% said their performance declined;
  • 80% lost work time worrying about the incident;
  • 63% lost time avoiding the offender; and
  • 78% said their commitment to the organization declined.

These are staggering numbers. Just imagine if I could tell you, as a manager, that I could increase your employee's work quality by 10%--would you be willing to listen? I'm sure you would. Now look at these numbers again not in negative terms, but as opportunities to increase job satisfaction, company loyalty, and employee performance. If you had a conflict resolution procedure in your work force and could slash these percentages by 10%, how much more effective, and profitable, would your workplace be? How many more satisfied employees--and customers--would you have?

How different would our workplaces be if we learned to manage conflict, and channelled that negative energy into positive, creative ways to improve productivity and commitment to the organization?

Wednesday, January 28, 2009

Foreclosure rules

Another article about courts implementing rules for residential foreclosures. Click here for the article.

Is mediation killing big law firms?


According to this blogger, one of the reasons leading to Heller Ehrman's demise (you can view its website here, which doesn't contain fancy graphics, just the firm news about its bankruptcy filing) is that within a 45 day period in 2007, Heller lost 25% of its litigation work due to settlements.

You don't have to be a managing partner to know that's bad news for a firm's bottom line (unless you are on the plaintiff's side of things and obtain a big settlement in favor of your client).

Settlements are tricky creatures. From a firm perspective, a settlement means that there are no more billable hours. So no more firm revenue. From a client perspective, settlement means certainty as to its future budget, a conclusion to uncertain outcome in court, and creativity in how the case is resolved.

This inherent, well, conflict, between the firm's bottom-line financial pressure and the client's goals has always been something that confronts me.

With the proliferation of alternative dispute resolution, and fewer and fewer cases going to trial, will we see a demise of big firms--because too many settlements in a quarter can zap the firm's cash flow?

Mediating dog bark cases

Ever heard your neighbor's dog bark. And bark. And bark.

Or was it your dog?

Arizona is sending dog bark cases to mediation, according to this article.

Having handled a dog-barking case before, I know that these cases are ripe for mediation and resolution by sitting down with your neighbor, instead of fighting with your neighbor.


Ohio Foreclosure Mediation

A judge comments on the benefits of mediation of foreclosure-related cases. A copy of the article can be found here. Judge Joseph Schmenk noted that both borrower and lender can come out ahead by mediating these types of cases, instead of trying them.

Foreclosure Mediation

The American Bar Association published an excellent web page devoted to mediation of residential foreclosures. You can view the site here. Currently, ten states have developed legislation relating to mediating these types of disputes.