Where did the year go??

This year has been crazy in a good way. Here are some highlights for the "Mediation & Law Office of Paula M. Lawhon":

1. I moved to a new office in my building early in the year to get two much-needed mediation/conference rooms in addition to my office, which also functions as a mediation room. This has made it so much easier to schedule mediations since I no longer have to sign up for the shared conference rooms in my building.

2. Early in the year, I also acknowledged my need for a full-time assistant and have been amazed at my own productivity since then.

3. Later in the year, I came to embrace my desire and ability to help people going through complex divorces and other family matters by keeping them out of court and in mediation where they can work through private financial and custody matters with less antagonism and no court involvement. This step meant fewer mediations in employment law, real estate, business, etc. in order to make room for the family law mediation referrals I received. As a former employment lawyer and civil litigation attorney, this was not what I expected. But my current practice as a family law attorney has also helped me to shift my focus into the family law arena. This has been a good shift for me.

4. Until this month, I have kept up with my weekly blog entries on mediation news and thoughts I've had about my own mediations and I also focused on writing a detailed article on settlement agreements for a legal magazine. I enjoy writing but I definitely don't enjoy the feeling I get when I haven't had the time to post a blog entry! Sometimes there's only so much of me to go around!

5. And, finally, I'd like to just say "Whoa!!!" to this end-of-year rush that's happening in what seems like all of my cases. Looks like I'm finishing up my Christmas shopping with everyone else who got bombarded with work obligations this month! I empathize with you!!

Happy Holidays to everyone! I wish everyone a peaceful new year!

More on Open Minds in Mediation

I wrote recently (here) about the necessity of all parties coming to mediation with open minds. Keeping an open mind and not foreclosing options allows the parties, their representatives and the mediator to explore creative ways of resolving the dispute to everyone's satisfaction.

We are reminded of how important an open mind is when we hear about a potential mediation being derailed when one or more parties closes off possible avenues of settlement before the mediation has even started. This is happening in Framingham, Massachusetts, in which a federal lawsuit brought against the town in Boston, charges numerous town officials and two private citizens with discrimination and a coordinated effort to rid the town of its disabled population.

The executive director of the South Middlesex Opportunity Council (which apparently filed the lawsuit on behalf of the disabled plaintiffs) is quoted in the article as saying: "A successful mediation requires both sides to come to the table with no preconditions and with open minds ... This week's Town Meeting vote [that the town's legal team should not turn over local oversight or any money in a mediation of the case] was designed to limit the results which might be achieved through a mediated settlement."

And of course, he is correct. Even without knowing all the details of the case or the specific issues, it is clear that the town is putting the settlement options available to all parties into a box they alone have constructed. These are the "rules" the town is imposing and then claiming that they do want to mediate the case. But these kinds of rules have no place in mediation. Part of the mediation process is allowing for some free thinking and the generating of options that expand the potential settlement options, not limit them before the mediation has even started.

You can read more of the details or the full article from the MetroWest Daily News here.

Divorce Mediation Live Internet Talk Show

I am always searching the Internet to grab any information I think might be helpful to those considering mediation of any type of dispute so I can post it on this blog. I came across this useful press release article regarding an Internet Radio Talk Show which discusses "Myths & Facts of Divorce Mediation." There are live Internet shows and archived Internet shows as well.

Below is an excerpt from the article or click here to go the full article which provides links to the shows:

Divorce Mediation: Myths & Facts, the first show of its kind in the country, educates and informs listeners about mediation - the legal alternative to the expensive battle of divorce litigation. Less than a year old, the show is already proving to be a tremendous success. In its first 10 months the show more than tripled its listening audience, unprecedented growth according to show producer Brian Travis. "Mediation is turning the legal system upside down as more and more people recognize the limitations and costs associated with litigation," says creator and host Philip Mulford, J.D., a professional mediator since 1990 and formerly a practicing attorney. "This show sheds light on an alternative that keeps divorcing couples out of court and saves them thousands of dollars. Despite those benefits and growing awareness, mediation is still often misunderstood and underutilized."

"Trading Dispute? Try Mediation" - WSJ

Here's a good article from the Wall Street Journal discussing mediation and arbitration in the context of trading disputes. The information WSJ provides regarding the pros and cons of these alternative dispute resolution methods applies to all types of cases and is a useful read for anyone considering mediation or arbitration. (Click here to go to this WSJ article).

Trading Dispute? Try Mediation.
By JAIME LEVY PESSIN
November 4, 2007

A recent Congressional hearing highlighted the continuing debate about the fairness of requiring investors to take disputes with brokers to arbitration rather than to the courts. Some in Congress want to change the rules.

But in the meantime, brokerage customers who feel they have been wronged also have another option: mediation. Mediation can be quicker and cheaper than arbitration -- and investors who enter mediation retain the right to proceed to arbitration if they aren't satisfied.

"The best part of mediation is you can say 'Yes' or 'No,' " says investors' attorney Phil Aidikoff.

"You're never going to get a number as high in mediation as you would if you hit a home run in a hearing," he adds. But "it takes the uncertainty out of the case."

Agreeing to Arbitrate
The paperwork you sign to open a brokerage account generally requires you to bring any disputes to the arbitration forum run by the Financial Industry Regulatory Authority, the self-regulatory body that oversees brokerage firms. Finra's arbitration forum is a court-like system in which large cases are heard by three-person panels that include one industry representative. (Small cases are heard by a single non-industry arbitrator.)

Finra and the securities industry say arbitration is a quick, fair and effective way to resolve disputes. But investors' advocates and some members of Congress say Finra's arbitration forum is unfair to investors, partly because of the presence of industry arbitrators. At the very least, they argue, investors should have the option to sue in the court system.

Earlier this year, Sen. Russell Feingold (D.-Wis.) and Rep. Hank Johnson (D-Ga.) introduced a bill to nullify mandatory arbitration agreements in consumer industries.

Investors are "compelled to use an arbitration forum run by the industry's self-regulator under industry-approved rules," lawyer and arbitration critic Ted Eppenstein testified at a House hearing on the subject in late October.

The Mediation Option
An investor with a gripe against her broker may, typically with the help of a lawyer, file an arbitration claim against the broker and/or the firm. But at any point in arbitration, either party can suggest mediation without interrupting the arbitration process.

If the parties agree to try it, they choose a mediator -- either someone from a Finra-provided list or another mediator they both trust. Selecting a date for a mediation session tends to go much faster than in arbitration, where the parties, three hearing panelists and expert witnesses all must find an acceptable date.

Indeed, mediation is much faster overall: So far this year, it took an average of almost 14 months for an arbitration claim to make its way through the system, Finra reports. Finra mediation cases during that period closed in an average of just over four months.

Before the mediation session, the mediator reviews the parties' documents, and may contact them to learn more. On mediation day, the parties might tell their sides of the story before splitting into different areas. The mediator typically goes between the sides, assessing the strengths and weaknesses of each side's case, relaying messages and possibly suggesting settlement ideas.

About 80% of the time, the parties reach an agreement, either that day or after subsequent discussions, says Ken Andrichik, senior vice president and director of mediation and business strategies at Finra. Other cases proceed to arbitration.

Mediators' rates can run from $50 an hour for a small case to $500 an hour for a large case in a big city, according to Finra. There can be forum charges as well. But if a settlement is reached, you can save some of the legal fees that would add up over an extended arbitration proceeding.

Pros and Cons
Lawyer Steven Caruso, past president of the Public Investors Arbitration Bar Association, a group of attorneys who represent investors, says a potential conflict of interest exists for mediators: "They want to do a fair job, but they're going to get more business from the brokerage firm than the claimants' attorneys." That said, he and other investors' attorneys say they know mediators that both they and defense lawyers trust.

Although some lawyers worry about tipping their hands in mediation, others say mediation gives them a chance to test their cases before bringing a weak argument to an arbitration panel.

The downside to mediation is that if the parties don't settle, mediation may just add time and expense to the process.

On the plus side, though, a mediator may be able to bring an investor's expectations back to earth. Sometimes an investor can't see that his case doesn't warrant a huge award.

Perhaps the biggest benefit of mediation is the degree of control the parties have, from picking the mediator to accepting or rejecting a settlement.

"It makes sense for even an adversary to say, 'Can we solve this in a less adversarial manner and can we keep control of the outcome?' " Mr. Andrichik of Finra says.

More Reasons for Prenuptial Agreement Mediation

As detailed in a previous post, mediation of a prenuptial agreement allows both spouses to sit together with a mediator to create an agreement regarding their marital finances while still preserving their romantic relationship. I have pasted below an article which outlines some of the problems which can arise without a prenuptial agreement. For more information on prenuptial mediation, click here. Here is the full text of the article from MSNBC titled: Love and money: Is marriage a dumb move? Money magazine on whether a walk down the aisle will hurt your finances:

Falling in love after years of building wealth can make life complicated. Tying the knot can sometimes make it worse. Money magazine takes a look at whether marriage means happily-ever-after for your finances:

Michele Mann was doing just fine on her own, thank you. She had launched a successful interior design business, which now earns her about $100,000 a year. She'd nearly paid off the two-bedroom Phoenix condo she had bought for $450,000 in 1992. And she'd amassed a handsome portfolio.

Then, two years ago, the never-married Mann, now 56, met Charles Wally, 67, a divorced retired rancher and insurance executive who lives in nearby Scottsdale, and love changed the game plan. "We were on the same page about so many things in life," says Mann. This month they'll wed.

Mann and Wally are a conventional enough couple that not getting married never crossed their minds. But these days it occurs to plenty of other couples of a certain age and wealth who are put off by the risk and inconvenience of joining two financially mature households.

It's a matter of security and ease: Had Mann and Wally simply opted to live together, for example, they wouldn't have had to deal with sorting out the ownership of two homes, deciding on a succession plan for Mann's business or protecting the inheritance for Wally's four kids from his two previous marriages.

No wonder that over the past decade the number of unmarried partners over the age of 65 has increased by 70 percent. The decision to wed or not, of course, is between you, your intended and your conscience. But you should realize that from a cold-hearted financial perspective, the U.S. tax code and Social Security rules don't necessarily come down in favor of marriage for people with a substantial amount of assets.

True, you'll automatically reap certain legal benefits from tying the knot, such as access to employee perks or a greater voice in health-care decisions. On the other hand, you may find yourself paying a significant price, from lost income to higher taxes. So whether you plan to say "I do," or "Let's not," be sure to ask yourself these questions first.

Will marrying lower your income?
You no doubt realize that if you're collecting alimony from your ex, you'll likely give that up when you remarry. But you may not have considered the effect on your retirement income. Remarry before age 60 and you'll lose any Social Security income you're entitled to from a previous marriage. Ditto for a pension. "If you're retired or one spouse is widowed, you're often better off just living together," says Kirk Kinder, a financial planner in Bel Air, Md.

But matrimony may triumph in this regard: It entitles you to a cut of your new wife or husband's pension and Social Security payment, and that sum may be larger than you otherwise would have collected. Get estimates for both scenarios from the Social Security Administration (use the "Detailed Benefit" calculator ) and your company pension-plan administrator.

Marriage can also affect the taxes you'll pay on your Social Security benefits. As an individual you can earn $25,000 a year before your Social Security benefits are taxed. As a couple, your total income can't exceed $32,000 (for more on what counts against that threshold, see "Working in Retirement: The Real Story" .)

Will marrying raise your taxes?
You may pay more income tax today if you file jointly, but much greater tax savings could come your way later. You can inherit all your spouse's assets tax-free, but an unmarried partner must pay federal estate taxes on any amount over $2 million through 2009. (In 2010 the estate tax disappears, and the exemption goes down to $1 million in 2011.)

If you plan to sell a home, you'll double how much of your profits are free from capital-gains taxes ($500,000, vs. $250,000 for a single person). Both own homes? Consider living in the place you want to sell and renting the other for two years to qualify for the $500,000 exemption, says Dallas financial planner Sean Monohan. After that, move to the home you plan to keep.

Will marriage increase your liabilities?
As a married couple, you'll usually pay lower auto insurance premiums. You may also do better by joining your new spouse's health insurance plan. As a self-employed person, Mann estimates she'll save $265 a month when she's added to Wally's retiree health insurance plan. On the flip side, being married can legally obligate you to shoulder some big expenses, such as your spouse's loan payments or credit-card debts.

Will it disinherit your kids?
If you have school-age kids, be aware that that your new spouse's income and assets will count in financial aid formulas, possibly lowering any help your children will receive. Adult children can pose a different problem: Because marriage would give your spouse first dibs on your estate, you'll need to draft a new will and possibly a trust with the help of an estate-planning attorney to keep your kids' inheritance intact.

For Mann and Wally, the hassles are a fair trade-off for building a financial future together. The couple have already made some changes to their wills - Wally is leaving Mann his house (worth just under $1 million) - and their life insurance policies. And the pair are seeking legal advice on how to handle their other assets and their estates. "On the way to the altar, there's yours, mine and ours," Mann says. "And there's trying to keep the romance alive during it all."

3 fast fixes for Mann and Wally
Choosing to marry has created some financial challenges for the couple. Monohan offers this advice for a lasting union of heart, mind and money.

Decide if the business is theirs or hers. Unless Mann and Wally sign a legal agreement specifying individual ownership, the couple would share the income as well as any liabilities from Mann's interior design business. And half would become part of Wally's estate should he die while the business is running.
Move to her house. Mann plans to sell her condo, estimated to be worth $1 million, eventually. As a single person, she can exclude only $250,000 of her $550,000 expected profit from capital-gains taxes. But if the couple live in the house for two years after they marry, they could keep $500,000 tax-free.
Use insurance for bequests. Wally wants to leave money to his four children, and Mann hopes to provide for her niece and donate to charities. They could do so by updating their wills, but a simpler method would be to make their heirs, instead of each other, the beneficiaries on each of their life insurance policies. http://www.msnbc.com/.

Keeping an Open Mind in Mediation

(Beautiful Realistic Fantasy Art "brain" image used with permission for this Open Mind article, courtesy of Elizabeth Stafford)

In a recent civil mediation with unrepresented parties, one of the parties was looking forward to the mediation and the opportunity to be able to discuss the dispute face-to-face and hear from the other party. Meanwhile, the other party was a bit less excited about the whole thing and wondered why we were here.

Because such divergent (but not uncommon) perspectives can derail a mediation even before everyone sits down at the same table, I spent a few minutes alone with each of the parties to talk about the purpose of the mediation and the importance of keeping an open mind and really listening to what the other party has to say. I discussed the effect that the parties themselves have on the overall mediation based on their own level of participation and engagement with and interest in the process. And I explained that an open mind is necessary for a successful mediation and resolution to the dispute, which is what everyone wants.

While I like to think I am a skilled mediator and communicator, I cannot take all the credit for the 180 degree attitude shift of the previously not-so-excited participant following our chat. Suffice it to say, he immediately relaxed and softened his demeanor, agreeing that he would keep an open mind. It was clear that this was a rationale adult who was interested in doing the right thing, and was easily reminded of what the right thing was with a little gentle prodding from yours truly.

I find that the attitude of the parties is such a key element to the success of a mediation. And I know we are on the right track when the parties themselves are laughing together and there is a certain levity in the room that has replaced the tension that first filled the room. And when the previously disputing parties walk out of the room and share a genuine handshake, I feel so proud of the parties themselves for having come so far and for keeping an open mind to allow that growth to take place.

Mediation absolves Carrbaro Alderman - UNC

I have pasted below the full article from the "Daily Tar Heel" online newspaper for University of North Carolina at Chapel Hill. The article discusses a case involving an assault charge against a public official in which mediation was effective in resolving this very public dispute.

Mediation absolves Coleman charges
By: Andrew Dunn, Senior WriterIssue date: 10/26/07 Section: CityPrintEmail

The assault charge against Carrboro Alderman Dan Coleman was dropped after a one-and-a-half hour mediation session at Orange County District Criminal Court in Hillsborough on Thursday.

Coleman, 55, had been charged with misdemeanor assault with a deadly weapon by the Orange County magistrate after an incident involving Amanda Kotecki, 33, of Durham, during which he hit her with his car at a high school track meet.

Kotecki agreed not to pursue the charge after Coleman, who is running for another term on the Carrboro Board of Aldermen, agreed to release the following statement:

"I apologize to Ms. Kotecki for hitting her with my car. I acknowledge the importance of the volunteer work she was doing in the park that day. And I recognize that when she put her hands on my car, it was out of concern for the safety of the runners.

"I thank Ms. Kotecki for her willingness to talk this through, and I thank the Dispute Settlement Center and the courts for making mediation available."

Coleman will not have to appear in court again, his attorney, Bill Massengale, said.

"I am glad it was resolved," Massengale said. "I think everyone thought (mediation) was a good idea."

The incident occurred about 5:30 p.m. Sept. 5 in Hank Anderson Community Park, according to Carrboro police reports.

Coleman called police after being stopped from driving by Kotecki, who was directing traffic during a cross country race.

Both the 911 recording and Coleman's subsequent written statement say that Coleman, who was driving his 6-year-old son to baseball practice, asked Kotecki repeatedly to let him by and that she jumped on the hood of his car when he moved forward after her refusal.

Kotecki did not release any written statements or make comments to the media.

When the police officer Coleman requested arrived on scene, he took witness statements but did not arrest Coleman.

Police supervisors reviewed the incident and passed the details on to the magistrate, John Maddry, who issued a warrant.

Coleman turned himself in to the Carrboro police station and was released on a written promise to appear in court, according to the arrest report.

Several candidates in the alderman race had tried to use the pending charges against Coleman.

Brian Voyce, a candidate in Carrboro's mayoral election, publicly asked Mayor Mark Chilton to force Coleman to step down until the charges were resolved.

Neither Coleman nor Kotecki will be able to comment further on the case, per the rules of the Orange County Dispute Settlement Center.

"It went good," Kotecki said of the mediation session. "I think Dan's got something that we agreed to say, and I think we'll leave it at that."

Contact the City Editor at citydesk@unc.edu.
(Link to article here)

Crafting an Enforceable Settlement Agreement

I was recently asked to submit an article for Plaintiff Magazine's Alternative Dispute Resolution issue. For those of you whose addresses I do not have, I have included a link to the full published article here. For those of you whose addresses I do have, you most likely received a copy in the mail.

The purpose of the article was to highlight the importance of drafting an enforceable settlement agreement as well as to detail the many "general" provisions which can prove immensely useful in negotiating the terms of a settlement.

I have included below the first few paragraphs of the published article:

Enforceability of settlement agreements is an important consideration for all of us. Whether you are plaintiff or defense counsel or mediator, our common goal is securing a settlement that satisfies you and your clients. None of us likes the idea of spending the time, money and effort to reach and draft agreements on what we think are the important settlement terms only to realize afterward that key terms were left out or left uncertain. And we shudder to think that the settlement agreements we have drafted might be held unenforceable if challenged, possibly resulting in lost clients, lost money and malpractice suits.

The California Supreme Court has wisely cautioned counsel to “be wary of ‘overly broad, loose terms in release agreements’” stating that “‘(A)ttorneys’ energies are better spent making sure that release agreements accurately reflect their clients’ intentions than in litigating what their clients really intended when they signed agreements.’” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 530).

So what can counsel do to craft complete and durable agreements which will stand up to challenge and which eliminate uncertainties between parties and counsel?
• First, have a draft settlement agreement to take with you to each mediation or settlement discussion.
• Second, remember that some “general” provisions we might not always think of as being valuable negotiation items may in fact be of value to one or more parties and may significantly impact the overall agreement or outcome.
• Third, have a solid understanding of the laws regarding settlement agreement enforcement before approving a settlement agreement.

If you are interested in reading the full text of the published article, e-mail me and I'll send you a copy.

International IP Mediation

According to the WIPO website, "The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest."

This all sounds interesting. But what I really like about WIPO is their Arbitration & Mediation Center which "was established in 1994 to offer Alternative Dispute Resolution (ADR) options, in particular arbitration and mediation, for the resolution of international commercial disputes between private parties. Developed by leading experts in cross-border dispute settlement, the procedures offered by the Center are widely recognized as particularly appropriate for technology, entertainment and other disputes involving intellectual property."

Sound interesting? Relevant to the work you do or are interested in? Click here to go directly to the WIPO Arbitration & Mediation Center to learn more.

San Dimas Paying $9 Million To Teen Badly Hurt In Car Crash

An Associated Press story (from the San Francisco Chronicle) about a mediated settlement in San Dimas (Southern California) is one of the few articles I have read about big settlements reached through mediation. (Link to story here)

Of course, we always read or hear in the news about cases settling or ongoing "settlement talks." And most people know that most cases settle before they ever see the inside of a courtroom. But I have noticed there is frequently no mention of the fact that such settlement talks occurred with a mediator or that the case settled through mediation. I even notice this when I have read in the legal news (i.e., news fit only for lawyers I think) that it was in fact a mediated settlement; but in the regular news for non-lawyers, nothing is mentioned about mediation. We're led to believe a settlement occurred with warring parties, aggressive trial attorneys and no intermediary? After months of expensive litigation? Hmmm... not likely.

Not that I feel a personal slight at this omission by newspaper or television reporters, but I do feel like the profession itself is not getting its due respect for the accomplishments of its members.

Most mediators I know believe that mediation can be useful in resolving almost any dispute. And a significant amount of a mediator's time is spent educating others about the process and benefits of mediation. To that end, it would certainly benefit not only the profession, but also the public, if news stories reported on the process used to settle the case so that people know mediation is a real option.

As a mediator and former litigator, even without reading the story about the San Dimas settlement, I know that a $9 million settlement was not reached over an informal lunch or two between the attorneys or their clients. Such a settlement is almost always going to be the result of a lot of hard work by a skilled mediator as well as the attorneys and their clients. And in this case, it took two days of mediation (exhausting for everyone, I'm sure) to reach this deal. Kudos to the parties and their counsel for reaching a settlement, to the mediator for such hard work and also to the AP reporter who let everyone know this settlement was the result of mediation.

Heated Mediation

I had an observer in one of my mediations last week. Although the observer did not participate in the mediation, she has mediated cases previously and she was affected by what took place in this mediation.

This particular mediation, which was in its second session, involved a slightly heated exchange in the first hour. There was no yelling or screaming, but both the volume and tension in the room increased while this exchange took place over about 20 minutes. Because I felt this was a necessary step of the mediation process for these participants, I let the parties move through the heated exchange with only minor interruption from me until they had nothing left to say on the issue.

As a mediator who strongly believes she was born for this role, I intuitively know when - or if - to step in and refocus the parties or simply stop any harmful exchanges in mediation. And I did not feel this particular exchange was harmful. In fact, it was great to get the concerns that were expressed out on the table and it was informative for the parties and for me to see where the parties' emotions were concentrated.

After the heated exchange, I calmly and quietly discussed the concerns I had heard and guided the parties into a productive dialogue of their disputed issues. The volume and tension levels in the room decreased immediately, and I could feel the parties breathing more evenly. Once we moved into our productive discussions, the entire case quickly resolved well before any of us had expected it to.

Afterward, when I privately discussed the mediation with our observer, she confided that her heart had been racing during the heated exchange. Had she been the mediator in this case, she probably would not have had that reaction; she would have had the comfort of knowing she could - and would - guide the discussion and control the process even if she could not control the parties themselves.

I think it's the same thing that happens when my husband is not driving the car. He gets anxious because he's not able to control what is happening when he isn't in the driver's seat. He knows he can't control other drivers, but at least when he's driving he can steer the car where he wants it to go. While I'm ok letting others drive the car, I think I'm more like the observer and prefer the driver's seat when I'm at the mediation table, even if does get a little hot.

"Does the Mediator's Gender Make a Difference?"

As a mediator, I am often faced with questions from potential clients concerning my ability to be neutral when the parties include men opposing women in the case. I like to take the time to address the concerned party's specific issues before meeting with them, explaining that my job is to be neutral, to not represent one side's interests over the other regardless of anyone's gender, but to work equally for and with all parties involved to help them resolve their case.

I explain that I will not be making decisions for them but will help them make decisions they are comfortable with. If I sense some reservation still, I tell the parties that we can start the mediation as a one-hour "mediation consultation" and if all the parties are not convinced in that first hour that I do not favor one party over the other, but provide equal time and attention to each parties' issues and concerns as I have promised, then we can stop the mediation.

Although there may be mediators out there who do not have natural and/or learned skills of neutrality, I see this skill as essential for conducting fair mediations regardless of my gender or the gender of any of the parties.

If you are looking for a mediator, your goal is to find a mediator with the appropriate level of understanding of your situation and the relevant laws as well as a personal style with which you are comfortable. You may feel that certain mediators may not be best suited for your case. However, if gender is the only hold up you have in hiring that mediator, call the mediator to discuss your concern, get assurances up front, be sure they are followed through with in the mediator's actions at the mediation, and work to resolve the dispute for which you need the mediator. Good luck!

Mediation for Happy Condominium Living

Mediation can be an effective tool for helping parties to a lawsuit settle their case out of court. But many mediators are also involved in helping to prevent lawsuits from happening in the first place.

And, even in disputes that might not be headed to litigation, mediation is a great option for settling disputes (both monetary and non-monetary), opening the lines of communication between individuals with ongoing relationships (like neighbors) and promoting the enjoyment of one's living or working conditions, among other things.

An article in New Jersey's Asbury Park Press discusses the usefulness of mediation in "ensuring peace and harmony among neighbors." The article refers specifically to condominium owners, but has broad application to owners and renters of condominiums or any other living spaces.

A few highlights from the article:

"Even if they are restricted in some of the rights they would otherwise have if they lived outside of the [condominium] community, they are still likely to have neighborhood spats, encounter problems with issues that arise from regulations governing their units and the appearance of them, differences of opinion concerning the use of common property and so forth. How are these disputes to be handled?"
...
"Don't communities want to have processes in place for managing these kinds of disputes, consistent, of course, with law and community rules? Does every unresolved difference, dispute and conflict need to wind up as an "association matter" or a contest in court?"
...
"Mediation, particularly, can bring into constructive dialogue the legitimate but divergent interests that require reconciliation if there is to be reasonable agreement with respect to how and where and under what conditions people live. Agreements reached in this forum are more likely to be implemented because they have the support of the individuals and groups who, having participated, are committed to making their agreements work."
...
"But having the authority to decide is only part of the picture. It also means understanding that effective mechanisms for managing differences can strengthen the community bonds that make life in condominium communities more livable, reasonable and, for some particularly, less oppressive. Giving people an opportunity to be involved in developing the rules that govern their living arrangements, and a fair and effective process for airing differences, provides for a quality-of-life difference that can help to build and sustain community norms and values."

To read the full article follow this link.
(By the way, I haven't read the book "Condominium" - but I enjoyed the cover!)

Mediation at Wikipedia

Wikipedia - "the free encyclopedia" - is not a reference I would cite in motions to the court. However, in browsing around Wikipedia today, I see that quite a bit of information exists under the search term "Mediation" that might be useful for individuals curious about or contemplating the use of mediation.

Here is the description of "Mediation" provided: Mediation, a form of alternative dispute resolution (ADR), aims to assist two (or more) disputants in reaching an agreement. The key component of mediation is that whether an agreement is reached, and the nature of that agreement, if any, is determined by the parties themselves rather than being imposed by a third party. The disputes may involve states, organizations, communities, individuals or other representatives with a vested interest in the outcome.

Mediators use appropriate techniques and/or skills to open and/or improve

dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.

Mediation can apply in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and divorce or other family matters.

And here is a detailed table of contents at Wikipedia with interesting information under each category/link. Check it out:

Contents
1 History of dispute mediation
2 Mediation and conciliation
3 Mediation in the franchising sector
4 Mediator education and training
5 Mediator codes of conduct
6 Accreditation of ADR
7 Reference links
8 Uses of mediation
8.1 Native title mediation
9 Philosophy of mediation
9.1 The Uses of Mediation in Preventing Conflicts
9.2 Responsibilities Regarding Confidentiality in Mediation
9.3 Legal Implications of Mediated Agreements
10 Common aspects of mediation
11 Online mediation
12 Mediation in business and in commerce
13 Mediation and litigation
14 Community mediation
15 Competence of the mediator
16 When is mediation suitable?
16.1 Factors relating to the parties
17 Mediation as a method of dispute resolution
17.1 Safety, fairness, closure
18 Post-mediation activities
18.1 Ratification and review
18.2 Official sanctions
18.3 Referrals and reporting obligations
18.4 Mediator debriefing
19 Mediator roles and functions
19.1 Creating favorable conditions for the parties' decision-making
19.2 Assisting the parties to communicate
19.3 Facilitating the parties' negotiations
20 Functions of the parties
20.1 Preparation
20.2 Disclosure of information
20.3 Party participation
21 Choice of mediator
21.1 Values of mediation
21.2 Mediation with arbitration
21.3 Mediator liability
21.4 Mediators' liability – in Tapoohi v Lewenberg
21.4.1 Liability in the United States
21.5 Without-prejudice privilege
22 Mediation in politics and in diplomacy
22.1 One of many non-violent methods of dispute resolution
23 Mediation and industrial relations
24 The workplace and mediation
25 Conflict management
25.1 Measuring the effectiveness of conflict management
26 Confidentiality and mediation
27 Global relevance
27.1 Fairness
28 Bibliography
29 See also
30 External links

Divorce Mediation & Whether to Divide It All Down The Middle

(Photo from Flickr)

One of the greatest benefits of divorce mediation is that although the laws regarding division of community property are generally clear (i.e., 50/50 for everything acquired during marriage regardless of whose name it's under), the parties themselves aren't required to follow those laws when entering into mediated settlements. While this is one of the same benefits of mediating civil disputes as well, it is sometimes harder for divorcing parties (or their attorneys or mediators) to take full advantage of this aspect of mediation whereas civil attorneys and mediators are generally more open to such alternative/creative options for resolving cases.

Because of the complexity of the Family Code, many gray areas can arise in divorce, including how an asset is characterized (separate versus community property), or how the asset is apportioned (e.g., what portion of the home or 401k is separate property and what portion is community property). Where there is disagreement between the parties regarding the facts or where the law could support different arguments despite an agreement on the facts, mediation is the ideal method for resolving these differences amicably and without litigation.

However, even in cases where there is little disagreement over the facts and little gray area for the parties to disagree about, mediation works very well for parties whose idea of fairness and equity may be different from the law.

The universe of options for resolving the financial issues arising out of a divorce are virtually limitless. In order to achieve their own version of fairness, parties can agree on a separation date that is different from what the court would decide. This one decision influences major issues such as characterization, apportionment and even spousal support.

Parties can decide that an asset (such as a 401k, for example) is going to be one party's separate property despite the fact that there may be a community portion and a separate portion because of the contribution of earnings to the 401k during marriage. Or parties can decide that although stocks were awarded to one spouse prior to marriage, and would therefore be considered separate property, because the parties lived together and supported each other in the same manner as they did once married, that it is more equitable to consider those stocks a community asset. Or that just a portion will be community property. Or a party can decide to waive his right to reimbursements he might be entitled to under the law because that's what feels right to him.

As the mediator in a divorce case, I discuss the relevant laws and how the local courts rule on certain issues but I do not ever give legal advice to my mediation clients. I require my mediation clients to obtain independent legal advice before signing the settlement agreements. When they meet with their attorneys (if they are not present at the mediation), each party already understands their rights and options and feels good that the agreement they reached is fair and equitable for their unique circumstances even if it is quite different from what a judge might order.

Everyone Remain Calm Part II

In my last post, I wished out loud for a poster of the "Everyone Remain Calm" sign for my office, thinking it would help set the tone for the mediations I conduct here without being too serious. With the message as well as the Transamerica Pyramid in the background, the sign is perfect for my practice.

Lucky for me, my brother Daniel, a graphic designer, happened to read that post and is now sending me my own version of the sign, blown up to a small poster size to hang in my office. Thanks Daniel!

Everyone Remain Calm

This is the advertisement on my favorite classical music radio channel's website. Every morning when I get to work, I open the KDFC website (www.kdfc.com) to get that calming music streaming into my office all day. And every morning, when I see the "Everyone Remain Calm" sign, I think "That would be a great sign for the office."

I work to keep a calm environment in my mediation practice and my law practice so that rationality instead of emotions will prevail. I guess I'll have to figure out a way to blow this up to poster size and frame it for each of my conference rooms.

A Win-Win Solution In Mediation & Politics

Mediators like to talk about win-win solutions in theory. And in practice, a win-win result is the goal of mediators boiled down to its nicely cliched essence.

Mediators are trained to draw information and ideas out of disputing or negotiating parties that will help to put a deal together that works better for all the parties involved than any other possible solution could. Sometimes the options for settlement truly are limited to the division of a set thing (money or time or something else), in which case we spend our time in mediation working out how big each party's piece of the existing pie will be. Both parties have to compromise or give in a little (or a lot) in order for each side to be satisfied just enough to seal the deal. But the results of such a tug-of-war usually are not satisfying and the process itself is emotionally similar to litigation.

That's not the way most mediators like to work. We prefer to spend our time expanding the pie that is to be divided. We ask questions and explore ideas in order to increase the options available to the parties so that the parties can walk away feeling stronger and more confident in their new partnerships or newly developed concepts or settlements instead of war-weary from an all-day tug-of-war over a single item over which nobody wants to budge.

This is what I was thinking about when I read a Newsweek article by columnist Anna Quindlen, in which Ms. Quindlen proposes to Hillary Clinton that she "Make it your business to persuade Barack Obama to be your running mate." In searching the Internet on this topic, I see this is not the first time this has been suggested.

Here's what else Ms. Quindlen says:
"But [the Clinton-Gore ticket] was nothing compared with the excitement that would ensue if you eschewed your customary caution and asked Obama to join you in creating the first real 21st-century ticket. It's not simply that with one fell swoop you would solidify the two largest blocs of Democratic support, but that the historic nature of the pairing would galvanize the race and make any Republican slate seem so same-old. Every politician likes to talk about a new era. The day the Clinton-Obama ticket is announced would really be one for the history books."

What a great idea for the Democrats (regardless of my own leanings, or yours). I wondered why I had not thought of that as a creative solution to the issues both of these candidates are currently facing. The idea is a bit out of the ordinary even though in searching the Internet, I see others have previously made this suggestion and support groups are forming. This would clearly be a compromise of sorts for both candidates but it quite obviously solves the problem of having two relatively strong candidates with neither one over-wowing their constituents on their own and being closely enough aligned in their values and beliefs that they could strengthen both of their positions by joining forces. (Click here for the full Newsweek article.)

This kind of thinking is exactly what we strive for in mediation. Remember, it's still a compromise and for this to work, it would involve both individuals having to swallow a bit of their own egos, but that's nothing compared with neither of them succeeding because of the perceived weaknesses each has on her and his own.

Great ideas like this are usually something thrown out in mediation as a casual, maybe offhanded remark by the mediator, or an attorney or party, that gets picked up and twirled around by someone else in the room and suddenly everyone starts looking around the room as the "aha!" moment descends because we're all thinking at the same time: "Aha! This is the perfect solution! Now why didn't I think of that??" This is a great example of a win-win solution.

Mediation in the Entertainment World

Evel Knievel and Kanye West are attempting mediation. This from an Associated Press article found in Comcast's online news (Link to full article here) this week.

Knievel filed a trademark infringement lawsuit against West whose rap video shows West, in full Knievel regalia, riding a motorcycle which was "visually indistinguishable" from Knievel's signature bike on which he performed his famous daredevil stunts back in the day (His son carries on the legacy, but Evel himself is retired with a banged-up body from all the stunt riding).

In the video, West's stunt goes wrong (intentionally) but not in the same way the actual stunt by Knievel went wrong originally in 1974. In defense of the claims against him, West claims the video was a satire and is therefore allowable and not an infringement of the Evel Knievel trademark.

This is a great case for mediation, and apparently the parties and their lawyers think so too. Without being an expert on trademark laws, it's easy to see that both sides have plausible positions and a court decision could easily go one way or the other after both sides have spent considerable time and money.

My instinct tells me that Knievel and West could do themselves a big favor by sitting down together and talking about where they're each coming from and working out a solution between them. They should be able to do this informally - maybe even in a phone call with just the two of them on the line. But because they each have advisors on top of advisors, it's likely that a more structured setting is needed so that the advisors can participate and protect the interests they're paid to protect.

In mediation, everyone will discuss their legal and non-legal positions and productively work towards a solution that solves everyone's problems so everyone walks away happy.

Mediation is not just about compromises nor is it about both sides walking away equally unhappy, although sometimes that's what it takes to get a dispute resolved when there are no other options. Most of the time though, I find if the parties come to the mediation table to work out a deal that fits the situation, a deal that works for everyone will result from the hard work and effort.

Personal Injury Mediation

I am reprinting several articles which I posted about 10 months ago but which seem to have disappeared from my table of contents:

Here's an example of a recent personal injury mediation from a serious car accident (with some details changed to protect the privacy and confidentiality of the parties and the mediation):

The parties at the mediation were the injured woman (the plaintiff) and her attorney as well as the insurance carrier and the attorney appointed by the insurance carrier to defend the driver against the plaintiff's claims of serious personal injury from the car accident. The driver was not present because the insurance carrier and its attorney were there to represent his interests and they had the authority needed to make the decisions. (This is why we pay for car insurance.) The plaintiff was seeking almost $1 million in damages.

The parties had submitted mediation briefs with the facts, claims, defenses, medical claims and out-of-pocket costs, medical liens from the health insurance company and information from the carrier's accident reconstructionist.

After a joint session with brief openings by the attorneys, separate caucuses were held to discuss with the plaintiff her demand for financial compensation of her injuries and costs and to discuss with the insurance carrier its position on the driver's liability (including questions of comparative fault for the plaintiff's own actions) and what it was willing to pay for this claim.

Both parties had chosen to mediate this case in an effort to avoid a costly trial which would include expert witness testimony on accident reconstruction, toxicity and other issues, and would also consume at least a week or two of trial time, significant attorney's fees and costs in preparing the case for trial, and uncertainty in the outcome.

There were uncertainties for both sides which made mediation a great alternative to trial. A jury might: a) sympathize with the plaintiff for her injuries and emotional suffering and award the plaintiff an amount in the hundreds of thousands of dollars; b) compensate the plaintiff for her medical costs but nothing else, since she had made a full recovery; or c) see this as just an accident, with both parties to blame for the collision and award nothing. The jury would probably do something in between "a" and "b" and all the parties were aware of this.

This uncertainty, as well as the ability to resolve the case months, and sometimes years, before the parties will ever get to trial, and get a solution which satisfies the parties, is one of the reasons this personal injury case and many others like it, are resolved in mediation. The parties, their attorneys and the mediator work together to come up with solutions everyone can live with and that's what happened in this case. The plaintiff was compensated for her medical costs and for some of her emotional distress. The carrier was out a significant amount of money but which was far less than it could have paid in attorney's fees and costs to defend the case as well as whatever verdict was returned by the jury. Everybody was able to close the case and move on with their lives, satisfied that compromises were made and satisfaction was achieved.

Intellectual Property Disputes and ADR

Mediator and blogger extraordinaire Vickie Pynchon specializes in helping parties resolve their often sophisticated and highly technical IP disputes through alternative dispute resolution means (mediation and arbitration). She, along with her fellow IP mediators, host the new "IP ADR Blog" which I recommend for all attorneys and parties with IP disputes.

The articles written by Vickie and her colleagues explore the use of ADR methods to avoid litigation of IP disputes. They also explore the unique universe of IP laws and the systems and people found in that universe. And from time to time, they also write about the field of ADR in general.

I have copied a portion of the text of one such article, If Litigation is War, Are Mediators Pacificists? from the IP ADR Blog blog and pasted it here and encourage you to browse their other insightful articles:

"Many mediators see themselves as "peacemakers," particularly those litigation-weary mid-life attorney-mediators who have grown cynical and dispirited by the daily mud-slogging, troop-deprived, bicker-battling that even (or particularly) high-stakes litigation can descend to.
Some of us see ourselves simply as negotiators and strategists -- people who can advise, coach, importune, shutter, sway and sometimes rock 'n roll the parties into a better resolution by way of agreement than they could ever achieve by way of suit.

But don't mistake us for peaceniks. We understand the uses of power and are often dismayed that one side has failed to deploy a sufficient number of battleships or the right type of troops to justify the concessions demanded.

No. Mediators are not pacifists. At our best, we are diplomats, wise to the ways of war and familiar with the battlefields' terrain. Eager to listen for the needs and fears lying just below the surface of the parties' positions. Here to help."

"Are Pre-Mediation Talks with Mediator OK?"

Answer: Yes.

As a mediator, I am neutral and not biased in favor of or against either party. And even though I know this, I spend quite a bit of time and effort ensuring that the parties know this from my words as well as my actions.

I therefore do whatever I feel is appropriate to maintain my neutral stance to ensure that neither party feels there is an imbalance in my favoritism. I favor all parties. It can be a delicate balance to maintain, but I see this as part of my job as a mediator.

There are no rules that prohibit "ex parte" communications with a mediator. Most people familiar with mediation know that it is ok to have private conversations with the mediator during the mediation but many are unsure whether it is ok prior to the mediation. It is just as acceptable prior to a mediation as it is during the mediation, provided that the mediator feels she is maintaining her neutral role. The mediator may limit the information she wants to know prior to a mediation, and if she does, it is only to maintain her ability to see both sides of the dispute in an unbiased way before knowing all the facts and issues.

So when you call - if you are the attorney for a party or you are the party yourself - to talk to a prospective mediator to make sure this is the right mediator for you, you should be able to discuss the basics of your dispute and get to know the background of the mediator a bit more without feeling you are breaking any rules.

However, if you are calling a mediator who also does arbitrations and you are interested in arbitration services, keep in mind that the rules are quite different. In a mediation, the parties are making their own decisions with the help of the mediator. In an arbitration, the arbitrator is making decisions for the parties (just like a judge) and is not allowed to have private conversations with the parties or counsel either before or during the arbitration.

Mediator Philosophies On Being "Green"

I've been tagged by fellow mediator and blogger Vickie Pynchon (Negotiation Law blog) to post my thoughts on being environmentally conscious - or "green" - as a mediator. This tag started with another fellow mediator Dina Lynch's Mediation Mensch blog.

If you're like many people, you may be wondering what mediation has to do with being green. My answer is that it has everything to do with being green, provided that being "green" means more than just recycling and striving to eat locally and organically produced foods. Although I do those things, they are quite unrelated to my practice and my calling as a mediator.

Instead, I have an idea of what it means to be green in the broader scheme of things and it is succinctly set forth in the Ten Indian Commandments. This framed list sits in my office where I can see it every day and be reminded of my own personal philosophies with respect to the people around me, my communities, myself and the earth. The Commandments are less related to the very small amount of Native ancestry I have and more related to how I live my life and what I have chosen to do as a profession. I hope you find these to be helpful reminders in your own lives:

The Ten Indian Commandments
1. Treat the Earth and all that dwell thereon with respect
2. Remain close to the Great Spirit
3. Show great respect for your fellow beings
4. Work together for the benefit of all mankind
5. Give assistance and kindness wherever needed
6. Do what you know to be right
7. Look after the wellbeing of mind and body
8. Dedicate a share of your efforts to the greater good
9. Be truthful and honest at all times
10.Take full responsibility for your actions

Recommendations for Mediators

Mediators rely on the positive recommendations from their mediation participants in order to get new mediation clients. Most mediators simply cross their fingers and hope that their existing and past clients are saying good things about them. This only really works when there are attorneys involved in the case.

Attorneys talk to each other about their successful mediations and who they recommend to mediate different types of cases. When attorneys prepare to mediate their cases, one of the first things they do is exchange an informal short list of mediators they would like to have involved to help resolve the case. Inevitably, there are mediators on the other attorney's list with whom the first attorney is unfamiliar. That attorney will then call around to his or her colleagues to get information on the unknown mediator(s), asking questions such as: Is she a strong mediator? Is she sympathetic? Is she creative? Is she persistent? Is she knowledgeable in this area of the law? Did the parties and attorneys feel it was a fair process? etc.

However, non-attorneys typically do not have the benefit of calling around to their colleagues to get such information. Instead, I often have unrepresented parties who are interested in my mediation services first ask me for recommendations as to my neutrality and fairness. I have at times felt comfortable asking individual parties to provide a direct reference to prospective parties. However, that is not a good long-term solution and I am not comfortable having previous mediation participants contacted by numerous people or on an ongoing basis. I strongly feel that is asking too much.

To help unrepresented mediation participants as well as attorneys representing their clients, I now include as part of every mediation, a post-mediation report card which asks each participant and attorney to provide feedback on the mediation, my mediation style, my ability to communicate and work well with diverse individuals and complex financial or coverage issues and my ability to help resolve the dispute to everyone's satisfaction.

I know some mediators have long employed a request for written feedback from each mediation as part of their ongoing policies. Until now, I have thought that was a bit awkward. I now realize it is not asking too much for this one-time written feedback and instead saves everyone the time and inconvenience of being contacted over and over by individuals wanting to hear the participant's feedback on my mediation services. So - thank you.

"Does Mediation Forfeit My Right to Trial?"

Answer: No.

I have pasted below a Question and Answer article which appeared in The San Francisco Chronicle a few weeks ago (but which originally appeared in 2006 since the author Robert Bruss was on vacation). This Q&A helps to explain that an agreement to submit a dispute to binding arbitration does involve waiving the parties' right to a court trial but that submitting a dispute to mediation (an entirely different process as detailed here and here) does not waive any such rights to a court trial or even to arbitration of the dispute. Read on...

By Robert Bruss, The San Francisco Chronicle
Q: In a recent article, you said it is not wise to sign a binding arbitration clause in a real estate sales contract. But I am confused how a person can agree in the contract to mediation of disputes, as you suggest, but not agree to binding arbitration if a dispute later arises. What alternative do you suggest to expensive court action?

A: A buyer or seller cannot be required in a real estate contract to agree in advance to binding arbitration, giving up their constitutional right to a jury trial, right to appeal, and court rules of evidence, without initialing or signing an arbitration clause in the sales agreement.

But many printed real estate sales contracts include mediation of disputes clauses, which do not require signing by the parties. However, mediation does not forfeit any legal rights, as does binding arbitration. If a party does not want to mediate disputes, which might arise, he can just cross out the printed mediation contract clause.

As I have often said, agreeing in a real estate contract to mediate future disputes is a good idea. It often saves costs, compared with court litigation, and mediation usually succeeds or fails within a day or two.

However, I recommend buyers and sellers not forfeit their legal rights by agreeing in advance to binding arbitration of future conflicts that might arise. If a dispute later arises, such as a home buyer discovers a serious defect that the seller allegedly failed to disclose, after the buyer sues the seller and mediation doesn't work, then the parties can agree to binding arbitration rather than a court trial.

Mediation or Arbitration of Attorney-Client Fee Disputes

Fee disputes between attorneys and their clients can arise when 1) there is no retainer agreement detailing the agreement for services, or 2) the retainer agreement is not clear and results in misunderstandings or 3) there is a disagreement over the services that were or were not performed by the attorney.

The State Bar and local Bar Associations have Mandatory Fee Arbitration Programs under which attorneys and clients have their fee dispute arbitrated by one or a panel of three arbitrators. There is a small administrative fee to the client and attorney for this service, but the arbitrators provide their time pro bono as a much-needed service to the legal and non-legal community.

The downside of Mandatory Fee Arbitration is the same as the downside of any arbitration. The client and attorney are not there to communicate with each other, work out a win-win solution or to figure out what can be done to satisfy everyone's needs. Instead, the client and attorney spend much time preparing evidence and witnesses for arbitration, they spend the better part of a day at the arbitration hearing and then they receive a decision by a neutral arbitrator or panel deciding the result of the parties' dispute.

While many disputants feel they have had "their day in court" by going through the Mandatory Fee Arbitration process regardless of the outcome, I am always left feeling that we could have spent time in mediation exploring options and interests and creating unique results which would allow both the client and the attorney to walk away with what they need - whether that is additional legal services, money repaid or reimbursed or other arrangements that everyone can feel good about.

Some clients and attorneys who are aware that these disputes can be mediated, will do so knowing they still have the option of arbitration if the matter is not resolved in mediation first. Some attorneys include provisions for mediation then arbitration of any fee disputes to alert clients to this option. I think this is such a good idea that it's included in my own attorney-client retainer agreements.

Labor Negotiation of Teacher's Contract through Mediation

Labor negotiations have long benefited from the use of mediation to help satisfy the needs of everyone involved and break an impasse.

This past week, school teachers and the public school district in Livingston, Missouri made use of mediation to reach an agreement on the terms of the teacher's employment. It is often amazing to me that a dispute that parties have been unable to solve on their own for a year or more (or ten months in this case) can often be resolved to everyone's satisfaction in one day in the hands of a skillful mediator.

The full two-paragraph article appears below in brown text and a link to the article is here.

"Mediation session results in contract for Howell teachers"

After a nine-hour mediation session on Tuesday, the Howell Education Association and Howell Public School district reached a tentative three-year agreement, covering the current school year through June 2009.

The parties resolved issues that spanned the past 10 months, agreeing upon working conditions, salary, and medical coverage for the duration of the contract. The two parties’ agreement expired June 30, 2006; the district’s teachers have been working without a contract since that time.

Explanation vs. Compensation: Medical Malpractice Mediation

Medical Malpractice lawsuits involve strong emotions on both sides of the case. On one side is the injured and frightened patient whose family is horrified at what the patient has gone through or, in some cases, is dealing with the death of their family member. On the other hand is a hard working, competent doctor with a solid reputation in the community who is frightened of losing his license and ability to support his own family and who may or may not know why - or whether - something went wrong when the patient was in his care.

The following article - "People don’t want compensation. They want explanations" - appears in The Herald out of Scotland and is pasted in full below in brown text (link to article here). The article highlights the benefits of mediation in resolving such cases with a particular focus on the much-needed exchange of information that helps both sides of the dispute understand where the other person is coming from and to help reach resolutions of the dispute. To help draw your attention to some of the key information I found in this somewhat lengthy article, I have bolded some of the text, none of which was bolded in the original:

‘People don’t want compensation. They want explanations’
When something goes wrong during medical treatment, then the consequences can be devastating for all concerned. Patients and their families, who may suspect mistakes have been made, want answers. But, if there is a risk of court action, doctors may be advised not to say too much.

The stakes are high, as the potential cost of litigation against the NHS runs into hundreds of millions of pounds every year. In England, the NHS Litigation Authority pays out around £560m annually in clinical negligence claims, while the theoretical cost of all outstanding claims against it is valued at a staggering total of £8.22bn.

In Scotland, cases are dealt with by the NHS Central Legal Office, and pay-outs have been limited to less than £10m a year - compared to £40m a year in Wales. This disparity has prompted the Scottish Consumer Council to question whether patients here face greater barriers to taking cases to the courts and call for further research into levels of compensation.

In a report, the SCC highlighted that patients who may be entitled to compensation may have to contend with a lack of information, advice and support and the high cost of bringing a case. The report added that the adversarial nature of court proceedings "can affect an important on-going relationship with a health professional".

Mediation, where cases are referred to a third party who aims to open lines of communication and help the parties agree a solution, has been billed as a more effective way forward.

A report published by the Royal Society of Edinburgh in 2002 recommended that the CLO should pilot mediation, mirroring work being done by the NHSLA in England, where alternative dispute resolution - which includes mediation - is used in 96% of cases.

Two years ago, the CLO set up a three-year pilot project to evaluate whether mediation would help. But as the project enters its final year, mediators and the consumer lobby question whether the pilot is working, as so few cases are being referred.

According to the original remit, only cases where the NHS would be prepared to make a payment to settle the case out of court - and with a value higher than £10,000 - would be suitable. In reality this meant only 10 cases a year could be referred to a mediator.

It is understood that the actual number of cases referred has fallen even short of this figure. A recent CLO newsletter highlighted a "perceived reluctance" by pursuers to embrace mediation. "Consequently, the take-up rate has been minimal," it added.

Ewan Malcolm, director of the Scottish Mediation Network, says the CLO project has limitations because of its narrow remit. "The number of cases suitable for mediation was estimated to be 10 each year. This figure was based on the average of 150 cases that result in a settlement of more than £10,000 each year and the 60 of these cases where a court case had been started.

"Where there is an intention to settle and the cost of starting court action has already been incurred, it seems more likely that solicitors will negotiate a settlement figure in the traditional way.

"While this exchange between professions is efficient it does not usually offer the patient the opportunity to understand and question what went wrong. Mediation has a much wider utility in the NHS for disputes and conflicts of many forms."

Malcolm adds that many other countries use mediation to resolve clinical negligence disputes, and patients often welcome the opportunity to understand more about what has gone wrong.

"Mediation is a well-established option for settling clinical negligence claims in a number of English-speaking countries. Patients find that mediation offers a sensitive way to explore difficult issues and helps to bring an early conclusion.

As well as settling the financial claim, mediation can result in important things such as an explanation, an acknowledgement and a reassurance about changed practice.

"Once they have used mediation, clinicians and managers like the fact that in at least eight of every 10 cases, the case will settle without court action. They also get a chance to speak openly with the patient about something that has been hanging over them."

Sarah O'Neill, legal officer with the Scottish Consumer Council, adds: "We are very much in favour of mediation. Our general policy is that the courts should be a last resort as it is much better to resolve disputes informally. Research shows that compensation is not the first thing that people are looking for - they want an apology and a reassurance that the same thing won't happen again."

John Sturrock QC, chief executive of the Core Solutions Group, whose Core Mediation division is one of Scotland's leading mediation providers, says it offers a different approach to the adversarial court system.

"A mediator can bring individuals together in a structured environment and help to open and maintain lines of communication," he says. "The mediator can enable those with a stake to express themselves, to be heard and better understood and to move on to find a forward-looking outcome.

"Where maintaining or renewing relationships is of importance, the non-adversarial setting can reduce antagonism and avoid escalation while building collaboration and achieving practical results."

Sturrock believes it could be of much wider benefit to the NHS. "The NHS is a vast organisation employing large numbers of staff with a huge customer base which inevitably leads to disputes of many kinds and at many levels," he says. "There is a need to embrace mediation at all levels and to incorporate it into thinking and language."

As mediation can produce quicker results, it addresses one of the key frustrations for complainers - the length of time taken to resolve problems. "Complaints could be dealt with in a more open manner from the outset, with information and explanations to complainers creating a culture where mistakes can be learned from - to the benefit of all."

He adds: "In clinical negligence claims, many claimants are not motivated by financial compensation. Some may be seeking an explanation, acknowledgement, reassurance or change in practice.

"A cultural change which allows clinicians to say sorry' without that being construed as admission of liability would be beneficial."

Core solutions worked in one case with the family of a mother who died in hospital after a routine operation, leaving her husband and two children. A case relating to concerns over the decisions and procedures adopted by health workers was proceeding towards a court hearing six years later. Mediation took place over one day in a series of private meetings between the parties and their representatives.

It was agreed that a sum of money would be paid to the patient's family and that the husband could discuss procedures with the hospital. Mediation brought closure and certainty for each of the parties and avoided a lengthy court hearing with the related stress, expense and unwanted publicity.

Sturrock says that mediation could also be useful in resolving disputes that arise between health professionals.

At present, patients who are unhappy with the way their complaints are handled by the NHS can take the issue to the Scottish Public Services Ombudsman. The ombudsman, Alice Brown, has called for legislation to enable public bodies such as the NHS to be able to apologise when mistakes are made - without the apology being treated as an admission of liability or negligence.
Brown told The Herald: "Health complaints that come to my office can often involve high levels of emotion, particularly if they are about a situation where someone has died. Relatives are usually looking not for financial compensation but are simply seeking an explanation of what went wrong, acknowledgement of their feelings, an apology and assurance that the same thing will not happen to someone else."

A spokeswoman for the CLO concedes the use of mediation has been limited so far, but adds that the NHS and patients appreciate its value.

"The Sehd Scottish Executive Health Department and the CLO have been engaged since 2005 in a mediation pilot in clinical negligence actions in an endeavour to reduce the number of actions which have to proceed to a formal proof in court.

"While in the normal course, proposed settlements of most claims and actions will be resolved by negotiation between the solicitors representing the parties, there are instances where the quantification of the action can appear to be intractable.

"In such instances, the opportunity to be able to use the services of an independent mediator may facilitate the unlocking of the disagreement. While the use of mediation in such actions has been very limited so far, nevertheless its availability is appreciated both by the NHS and patient representatives."

12:33am Tuesday 1st May 2007: The Herald Online