Wednesday, June 20, 2007

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

Monday, June 18, 2007

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.

Sunday, June 03, 2007

"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.