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.