I was recently asked how mediators are able to keep their own "issues" out of the mediation and my answer is that I don't think they can. If a mediator is impatient or demanding or self-absorbed, how would that not come through and influence the mediation process? On the other hand, if a mediator is naturally a good and patient listener who is intuitive and can easily sympathize with many different types of people in various circumstances, that will also come into play in the mediation.
People who are in a mediation, regardless of the type of case being mediated, need to feel that they are being heard, that their needs and interests are being acknowledged and factored into the final resulting settlement. If a mediating party feels like the mediator is impatient, cuts him/her off or is dismissive of something that was raised as a concern, how is that party going to feel like the process worked to meet his/her goals?
When parties agree to mediate, they still want to feel like someone heard their side of the story and gets where they're coming from. I don't believe that mediators can "fake it" and have a client feel like they're understood if the mediator doesn't truly care or understand that party's point of view. If we have biases or judgments that prevent us from getting below the surface and figuring out where the client is coming from, and helping to communicate that to the other party, I think we are not doing our best work.
As mediators, just as in any profession, our personal history, background, personality and yes, "issues," influence our work. But maybe more so as mediators than in certain other professions, we need to continue to do work on ourselves to be the best that we can be as mediators dealing with sensitive disputes.
As we work to balance power dynamics, create a safe and trusting environment for open discussions and work to ensure that the goals and concerns of our clients are met, we need to be able to be present, focused and aware of unspoken concerns or hints and clues about what is going on below the surface of the conversation. If we are consumed by our own "issues" or biases, or unaware of (or unconcerned about) the difficulty of the situation for our clients, our clients will not be as satisfied with the process because they will not feel "heard" because, in fact, they will not have been.
Monday, October 26, 2009
Mediators With "Issues"
Monday, October 19, 2009
"Divorce is no longer one size fits all"
The San Diego News Network is featuring a Family Law blog series sponsored by San Diego family lawyer Garrison "Bud" Klueck which includes in Part I of the series:
"A good way to remember the various options that divorcing couples have is summarized in a little poem:
Litigation, mediation or collaborative law,
Divorce is no longer, one size fits all."
Part II of the series discusses various models of divorce mediation and is worth reading to understand the different ways in which attorneys, mediators and other professionals might be involved in mediation. I have included an excerpt below or click here for the full article.
Mediation is probably the most popular form of alternative dispute resolution or “ADR.” Mediation uses a neutral that assists the parties in coming to resolution of whatever disputes are between them. But unlike other neutrals, like judges or arbitrators, the mediator does not make the decision. The parties make the decision. The method, therefore, is very empowering to the people who use it. The mediator uses his or her skills, training and experience to assist the parties in coming to a productive resolution of their disputes.
In family law, there are four “models of mediation.” There is a “three-person model,” “a five-person model,” “a three-person plus model” and a “four-person model.”
The three-person model is the simplest and most popular. In the room are just the mediator/neutral and the two parties. Because the mediator is a neutral, potentially that neutral’s office personnel can prepare all the paperwork or required documents for both sides. Technically, both husband and wife or domestic partners will remain listed as being “in pro per” or self-represented on the documents going to the court. The neutral mediator does not represent either side.Read more: http://www.sdnn.com/sandiego/2009-10-14/blog/sponsored-blogs/methods-of-divorce-part-2-mediation#ixzz0UPd1MFPl
Tuesday, September 22, 2009
Divorce Mediation Interview on the Rob Black Show
I had the pleasure of being invited to join the Rob Black radio show this morning on www.talk910.com to discuss divorce mediation. Rob has a great radio show on money, finances and investments and also has a daily show on Kron TV.
Here is a link to the podcast so you can hear the show: Link.
Or go to the website and select "Listen" to today's podcast.
Here's more information about Rob's shows so you can tune in any time:
Rob Black & Your Money
Channel 4 KRON TV
"Rob Black and Your Money" is on daily at 4:00 pm on Channel 4 KRON in San Francisco. Rob is always on the hunt for financial news you can use. Audiences gain valuable information and education about what is happening in the financial world, and viewers can utilize this education to make money. To tap directly into Rob's Wall Street expertise, watch the show and try to figure out why Rob selected the stories that he did. He tries hard to make sure that every story has a lesson in it so that you can become better investors. Rob will take your calls on the news if you call 800-440-4884.
The Rob Black Show
KNEW 910 AM
Flamboyant, irreverent, over-the-top, and smart as a whip, Rob Black personifies fortune-making spirit of today's marketplace. Combining his uncanny ability to predict market winners & losers with his groundbreaking use of the callers information. Black combines market savvy, an eagle eye for brand positioning, and a unique style of fired-up energy to put audiences of the on the road to financial success. To tap directly into Rob's Wall Street expertise, give him a call on the show hotline. Rob wants to speak with you! Call toll free at 1-800-345-KNEW (5639). You can hear the show live from 10 a.m. to Noon on 910AM KNEW. You can hear the show anywhere in America via the live stream at www.910KNEW.com
Mediation: the least expensive divorce option
From the Ridgefield Press in Connecticut, family law attorney, Karen Stansbury, switched from 20 years of litigation to providing mediation services for family and civil disputes. Here are excerpts from the article
“I will no longer practice family litigation — I’ve done it for 20 years and I do not think it works,” she said. “In the traditional litigation process, parties give up control of their lives and suddenly a team of total strangers has its nose in their personal affairs and is telling them what to do. It is a truly invasive and disgusting experience.”
In 2007, she said, the Boston Law Collaborative found that mediation was by far the least expensive divorce option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation.
“The key to successful mediation is the willingness of each party to listen to the other party and to understand their different perspectives and concerns,” Ms. Stansbury said. “No one ‘wins’ in mediation. The goal is to reach an agreement that is based on fully informed decisions.”
Thursday, August 20, 2009
Mediation in Paradise
There's a part of me that doesn't want to believe there are conflicts in such idyllic places as Maui. Granted, I haven't been there in many years, but my memory (or maybe I imagined this) is of a slower, more peaceful and enjoyable way of life which exists in a lush island paradise (maybe I should go back to confirm this...). I prefer to think of it that way rather than to think there are workplace conflicts in Maui which are not easily resolved with a handshake and a smile.
But the truth is there are conflicts everywhere, even in good companies, in healthy families, in happy relationships, and yes, even in island paradises. And, when those conflicts reach a certain level, or involve legal rights and obligations, those conflicts may require the assistance of a skilled mediator to provide neutral, unbiased guidance and structure for productive discussions to help the disputants resolve their disagreements.
According to the Maui News, there are, in fact, conflicts in Maui (gasp!). Luckily, the "Mediation Services of Maui" has been granted some money for its conflict resolution program in the workplace. Here's what they have to say about the purpose of mediation in the workplace:
"In announcing the grant, Mediation Services noted that unresolved conflicts affect profitability because they can cause stress, employee turnover, absenteeism, sabotage and lawsuits. The workshops can show the cost-reducing benefits or collaborative problem-solving." (emphasis added)
"Mediation Services of Maui is a nonprofit, community-based organization established in 1982 to provide, teach and facilitate dispute resolution. It helps all age groups and in settings such as family, neighborhood, business and government. The process is meant to bring people together to find their own best solutions in a process that promotes respect, communication and peace."
Here is a link to the full article.
Thursday, August 13, 2009
"Economy causes surge in family-law mediation, collaborative work"
An article in the Journal Record today highlights the financial benefits of avoiding a costly divorce by choosing divorce mediation or collaborative law over a litigated divorce. Given the state of our economy, many couples who have decided to divorce are searching for less expensive options which will still result in a fair, complete and enforceable agreement.
This is the link to the full article written by Correy Stephenson. And below is an excerpt from the article:
"Driven by the economy, divorcing couples across the country are increasingly using mediation and the collaborative process – for a fraction of what it costs to litigate a family law case.
For couples who are divorcing and losing some of their assets anyway, cost savings is especially important, said Henry Gornbein, a partner at Gornbein Smith Peskin-Shepherd in Bloomfield Hills, Mich.
“Litigation is so expensive and clients want to keep things as cost-effective as possible, without being in and out of court every week,” he said.
Gornbein recently finished mediating a divorce, with a series of meetings and no court appearances, saving the couple “several thousands of dollars” over the cost of litigation.
“I often ask my clients, ‘Do you want to spend your children’s college education (in court) to resolve your problems, or do you want to keep the money for your family’s future?’” Gornbein said.
Although no statistics are available, Howard I. Goldstein, a partner at Rosenberg, Freedman & Goldstein in Newton, Mass., said that anecdotally, collaborative lawyers are much busier these days.
Compared to just a year ago, his firm has doubled the amount of mediation and collaborative law work in family law cases, he estimated.
“It’s really on fire,” Goldstein said.
Reducing cost
In many cases nowadays, the parties are dividing debt and not equity, which means they need to spend as little as possible to get the process done, Gornbein said.
Other ways to resolve a divorce are attractive because it is “shocking how expensive litigating a divorce can be,” said Goldstein, who just litigated a case that culminated in a two-day trial and cost his client $150,000 – and the client’s ex-wife paid twice that.
Wednesday, August 12, 2009
When Mediation Doesn't Work
Two observations: 1) I think optimism is a required personality trait for mediators; and 2) when mediation does not solve the problem, the optimistic mediator may be devastated.
Not everyone is cut out to be a mediator. Similarly, not everyone is cut out to be a teacher or a police officer or a therapist or long distance truck driver, etc. We all have natural abilities which can be enhanced with skills training and there are some things, no matter how much training we have, that we just can't be taught. I think irrational optimism is one of them. And I have to confess that I am an irrational optimist. Yes, I think it makes me a good mediator and it has some other upsides in the rest of my life that I can't complain about, but it also has a downside (that would be the "irrational" part).
As an irrational optimist, I truly believe that anything is possible in mediation despite a history between the parties of a complete
inability to reach an agreement - on anything. Not all couples are unable to reach agreements on anything. Some mediating couples just need help and guidance through the divorce process or to come up with a good parenting plan in a separation. Other mediating couples are able to reach agreements on certain things but just need some help in generating creative options for settlement and to figure out what feels fair between them. And other mediating couples are not able to agree on anything and it's often amazing that they both agreed to use my services in the first place.
So there are low-conflict couples and there are high-conflict couples and everything in between. But even the high-conflict couples are usually able to reach agreements in mediation because they were able to work together at least to get themselves to my office. This means I generally have the pleasure of working with couples who, despite a difficult situation, want to maintain some level of civility in working through their divorce and I am happy to help them accomplish that even when they have not been able to agree on anything (sometimes since well before their separation).
I think it's this irrational optimism that results in a feeling of incredulity and something like emotional devastation when one of my cases "falls out of mediation." This does not happen very often. In the last five years of solely mediating family law matters, I have had only a couple cases fall out of mediation. One of those happened this week. In fact, I have had more couples end mediation because they are reconciling than I have had couples end mediation because there was no hope of reaching an agreement.
In an earlier case, I agreed (for the first time in my 10 years as an attorney) that mediation was no longer appropriate even though an agreement had been reached. They were a high-conflict couple and they truly needed more mental health support than mediation typically provides. Although we are able to deal with the emotional aspects of divorce in mediation, some couples need far more support, which is when I recommend the Collaborative Law Process which includes a divorce coach and mental health experts as well as attorneys who all agree to stay out of court. It's not a cheap option, but it is much kinder and supportive (and yes, less expensive) than traditional litigation. Even though I agreed mediation was no longer right for them, I was still shocked that it came to that, particularly since they had reached an agreement through mediation and it was only afterward that the agreement fell apart.
In this more recent case, I'm not convinced that the couple can't continue their work together in mediation to reach a settlement but it has fallen out of mediation nevertheless. Maybe this is my irrational optimism or maybe it's what I know from practicing law for 10 years and spending more time in a courtroom than I care to remember. But if 90% of cases settle before trial, and if all along the way to trial, settlement discussions and conferences are required, why not short circuit all that pre-trial and trial work and focus efforts on reaching a settlement now? It's not easy - it's still a divorce and it's still an emotionally and financially complex situation that nobody wants to find themselves in and there are going to be ups and downs and hard decisions that need to be made. And it only works if both parties want to reach a settlement and do the work needed to get to that point.
Mediation is a voluntary process and I can't make anyone continue with something that isn't working for them. I can only wish them the best of luck and keep my door open in case there's a chance I can help in the future. Because that's the other personality trait needed for a mediator: a sincere desire to help others to get through a difficult time with as little pain and scarring as possible under the circumstances.
Wednesday, June 03, 2009
Family Court called "Needlessly Adversarial"
More good news about family law from Canada's Telegraph-Journal. Well, it's good news and bad news really. The bad news is that the family court systems in Canada seem to be as poor a place to resolve divorce and child custody issues as the family courts in the U.S. The good news is that their government appears to recognize this problem and is working on providing mediation services for couples and parents who wish to work together in a more civilized and less litigious way.
Here is an excerpt:
FREDERICTON - The Liberal government is launching a pilot project that will give families the option of using mediation services to settle disputes outside of the family court system. The announcement came on the heels of a report released Tuesday that found New Brunswick's family court system was "needlessly adversarial, frustratingly slow and much too expensive."
Here's the link to the full article: http://telegraphjournal.canadaeast.com/front/article/687434
Tuesday, June 02, 2009
Divorce Mediation vs. Collaborative Law
Here's an interesting article out of Alberta indicating that the family law attorneys in Lethbridge have moved from the traditional litigation model of divorce litigation (each party has an attorney and the judge decides everything through hearings and court trials) to the collaborative divorce model which is a team approach using mental health and financial professionals in addition to the attorneys and everyone signs agreements to stay out of court.
The article is titled "Mediation a Team Effort." However, the article is not about mediation at all but is about the Collaborative Law divorce process. Other than the titling error, it is great PR for the collaborative process, which I think of as a close sibling of mediation. Both processes allow the client to have more control over the outcome and both processes are focused on keeping the family out of court and doing what is best for the individuals and their children.
Here is an excerpt:
“It’s a client-centred process,” [Collaborative Family Law Attorney Janis Pritchard] said Monday. “And they needed more than what I could offer.” Divorce, she reminded an audience from a variety of professional fields, is more than a legal issue. Finances are at stake, too, and so is the emotional and mental health of both parties. And during all that trauma, the real needs of children caught in the crossfire are sometimes overlooked. That’s why involving people with counselling or mental health training is essential — right from the start. “They have way better skills,” she said, and helping with the client’s emotional needs may be the first priority.
And here is the link to the article:
http://www.lethbridgeherald.com/content/view/63409/26/
Thursday, April 30, 2009
Custody Litigation Damages the Children
Most parents know that custody litigation is not an ideal place for parents or children and is something to be avoided if possible. Custody litigation is both financially costly as well as emotionally costly. And while parents may recover from the financial impact of a drawn out custody battle and move on with their lives, when do the children recover from being put in the middle of their parents' fight?
As a San Francisco divorce mediator, I encourage parents to work together for the health and future well being of their children. Regardless of the status of the intimate relationship between the parents, they will always be parents. While the relationship between the parents changes, it does not change the fact that the children still need both of their parents in their lives. It can be hard to put aside anger and other strong emotions following a difficult separation, but is a task made easier when both parents are committed to putting the best interests of their children first. Working with a mediator can help make this possible.
(Tug of War image from: The Child Center and Adult Services, Inc. - Shady Grove Professional Building, 16220 Frederick Road, Suite 502, Gaithersburg, MD 20877-4022
(T) 301-978-9750 - (F) 301-978-9753 - E-mail: info@ccascounseling.org)
Saturday, February 28, 2009
SelfhelpMagazine Articles: Marriage - 10 REASONS TO TRY DIVORCE MEDIATION
I have pasted below a link to an article in Self Help Magazine that provides 10 short but important reasons to try divorce mediation. Here is the introduction to the article:
"You've decided to seek a divorce. Your nerves are frayed; the in-laws are asked pointed questions; the children are beginning to act up in all-too-transparent ways; and your pleasantness is in the midst of an earthshaking landslide. What can you do? Clearly, you can hire legal advice. But who? Here's a checklist of reasons why working with a trained mediator can often help:"
SelfhelpMagazine Articles: Marriage - 10 REASONS TO TRY DIVORCE MEDIATION
Posted using ShareThis
Thursday, January 29, 2009
Is Mediation Binding?
This is a confusing question given how mediation works. If the question is posed as: "Is an agreement reached through mediation binding?" then the answer is "Yes!"
But because the mediator is not making decisions for the parties, when someone asks the more common question: "Is mediation binding?" I have to first unravel the question in order to make sure that my answer explains that the question doesn't make sense. And when I read articles from various online sources stating that "mediation is not binding" it has a tendency to drive me crazy because that is inaccurate and misleading.
In arbitration, where an arbitrator is hired to make a decision for disputing parties, the arbitrator's decision can either be binding or nonbinding. This means that the parties in the beginning of the case decide whether the decision reached by the arbitrator (who basically sits as a judge) is going to be the final decision in the case or whether the parties will keep their right to bring the dispute to trial if they don't like the decision imposed by the arbitrator.
But mediation is different from arbitration. In mediation, the mediator is hired to help the parties reach an agreement that works for them. There is no deciding whether the agreement reached through mediation is going to be binding or nonbinding because the goal of mediation is to arrive at an agreement everyone can live with. Once the parties reach their agreement, there is an agreement and therefore an end to the dispute. The agreement reached by the parties is put in writing and signed by the parties (creating a binding contract) and is submitted to the court and turned into an order of the court (just as if the judge had made the order directly to the parties).
So, yes, an agreement reached through mediation is binding because that is the purpose of mediation. Anyone who says mediation is not binding is mistaken and most likely does not understand how mediation works.
Friday, January 02, 2009
Why Isn't Mediation More Common on TV and Movies?
Happy New Year! At a recent social event, I was engaged in a conversation with a well-educated and informed individual ("Pat") who was curious about my chosen profession as a family law mediator. Pat wanted to know more about the types of clients I work with, how people find me and how I help couples in a different way than traditional attorneys do. I explained to Pat that as a neutral mediator, I do not take sides in a dispute, but instead help couples work together in what I see as a more civilized manner than what litigation often requires.
I told Pat that the family courts require couples to "meet and confer" to try to reach informal resolution at every step along the way even in a fully contested court dispute, and that the vast majority of court cases settle before trial. I also told Pat that it made more sense to me to start couples off in a less antagonistic and more collaborative way, to start working together toward informal resolution right from the start and avoid the time, expense and stress of unnecessary litigation to get to the same point that almost all divorcing couples get to at some point which is a settlement.
My logic made much sense to Pat and Pat added that it seems couples who reach their own agreements are more likely to feel satisfied with the win-win results over the more traditional win-lose results from a court battle (although I think those results are more like lose-lose for everyone, including children who are caught in the middle of such battles!)
In asking how clients find me, (which I said is through referrals from past clients and also from attorneys and from the Internet). Pat was curious to know why we don't hear or see more about mediation in the media. Pat said that every divorce portrayed in television or movies includes one side battling the other side, both armed with attorneys and neither of the disputing individuals even talking to each other; Pat and I both searched our memories for divorce mediation having a starring role in such shows. I agreed that the traditional model of battling litigants is much more prevalent despite the fact that it does not make good sense on any level. The way I see it, a couple knows their own finances and their own circumstances and history and issues relating to their own children better than anyone so why would we not want this couple to communicate directly with each other? And why would we want a stranger (the judge) to make decisions about their personal lives rather than trying to assist the couple in finding their own solutions that actually work for everyone involved?
I recognize that circumstances surrounding the end of a marriage or partnership are generally not ideal, but my goal is to help couples who have decided not to stay together to still communicate with each other productively to get through the difficulty of a divorce in a more civilized manner and to maintain control over the decisions made about their own children, retirement plans, stock options, intellectual property, real estate, support and anything else that is related to each couples' situation.
All of this means that mediation is less dramatic than a court battle that takes a year or more and tens of thousands of dollars. Although drama makes for good television and movie scripts, it does not make for peaceful resolution of issues in most couples' divorces. So that is my theory as to why we don't see mediation much on TV or in movies. Any other ideas?
Tuesday, November 18, 2008
Gilbert Guide-Resources for Seniors
There are learning centers, expert columns, product and service recommendations and other interesting resources. As of last week, I am one of their experts, writing a column on Family Law & Mediation.
If you or someone you know has a need for information relating to seniors (health, lifestyle, legal, etc.) be sure to check it out!
Monday, October 13, 2008
Premarital Mediation can be almost ... fun
In most of the cases I mediate, my clients tell me how glad they are that they chose to mediate (whether it's a divorce mediation or premarital agreement mediation). Most of my clients also tell me how surprised they are that I was able to help them resolve issues they were not able to resolve themselves and/or how thankful they are that I made the process so easy.
Here is a thank you I recently received by e-mail from clients (names changed) who worked with me to create their own unique and balanced premarital agreement:
"Back in July you mediated a pre-nup for my now-wife, Sally, and me. Now that the wedding dust has finally cleared, I'm writing to thank you. Sally and I really felt like the mediation experience helped us not only to get our financial house in order, but to prepare for marriage in a larger sense, in that the process encouraged open communication and healthy realism. So, thank you for facilitating that. After working with you, we felt intensely glad that we did not subject ourselves to the traditional, adversarial process; little did we know that working out a pre-nup could be almost . . . fun."
Sunday, September 14, 2008
Real Estate Woes and Divorce
The current mortgage crisis has a severe ripple effect, reaching out and impacting most people's lives in some way or another. One of the impacts I am seeing as a divorce mediator is that divorcing couples are struggling more than ever to figure out what to do with the family home. Couples are continuing to live together despite their pending divorce and desire to not be living together and couples are remaining on the mortgage and the title to the house together because there is no way to split it up when a refinance is impossible and a sale would leave the couple owing money to the bank. Creative solutions are needed in these situations but it's not an easy issue for anyone.
Here is an article from the San Diego Union Tribune - "Unable to sell homes, split-up spouses stay put, postpone divorce" - which tells the stories of three different couples facing this difficult situation. The link to the full article is here and I have pasted an excerpt below:
"Getting divorced is one of life's most difficult passages, and the housing market meltdown is making it tougher. With home prices plunging and foreclosures soaring, divorcing couples are finding it harder to rid themselves of jointly owned property –and as a result, each other.
Even when one spouse is willing to buy out the other and remain in the home, tighter credit means banks often refuse to refinance mortgages on properties with little or no equity.
“They used to fight over who was going to keep the house,” ...[] “Now they're fighting to get away from the house.”
Wednesday, August 20, 2008
Therapy for Relationships, Divorce and Parenting
As a divorce mediator, I have quite a few resources available to help divorcing couples or individuals in various ways. I know great financial advisors for couples getting married or in a relationship, Certified Divorce Financial Analysts to help divorcing parties make good financial decisions in a divorce, CPAs for tax advice, appraisers for businesses and property, actuaries for pension and retirement plans, estate planning attorneys for wills, trusts and quitclaim deeds and therapists.
This last category - therapists - is so broad and so useful for couples in so many stages in the relationship continuum, that I thought I should share some of the ways couples and individuals can benefit from working with a therapist. Of course, I am not a therapist and I only give this information because I have seen and heard reports from my clients on so many of these benefits that I want to let others know what a valuable resource this might be in their lives. I also recognize the importance of both parties feeling comfortable with the therapist they are working with and I recognize that not all couples are in favor of any form of therapy. But if it has a chance of helping or saving your relationship, it just might be worth trying and finding the right therapist for your relationship.
Pre-marital: Couples can get marriage preparation counseling with a therapist. This generally includes a short-term plan of just a few sessions for the couple to gain valuable tools for healthy communication in their marriage together. I think of this as preventive counseling and it is designed for couples who might not otherwise be in counseling except for the fact that they are getting married. In other words, it's not counseling to "fix" something that is wrong; it is counseling to ensure nothing gets broken in the first place.
During the marriage/relationship- at the first sign of trouble: If a problem arises during the relationship and it doesn't get resolved and the couple is having difficulty communicating or overcoming the problem, a therapist can help get the couple back on course. I think of this as fixing a fixable problem before it becomes a much bigger problem and a threat to the relationship.
During Marriage - Beyond the First Signs: I know many couples' therapists who wish they could have started working with some couples months or even years before the couple finally ends up in their office. If the problems have become insurmountable and have affected the relationship so negatively, this presents the biggest challenge to therapists and the couple who are fighting to save their relationship when it is so far beyond the first signs of trouble.
At the End - Decisionmaking: Some couples specifically enter counseling to get help to decide whether their relationship is beyond repair or can still be saved. Therapists can help a couple work through this and make decisions that are right for each of them and for their family as a whole.
Divorcing Couples: Therapists can help couples or individuals deal with the emotional difficulties of what is sometimes called the death of a relationship. Getting help to manage this often-traumatic experience, regardless of the reasons for a divorce, can be a very important part of the healing process.
Divorced or Divorcing Parents: Some therapists specialize in working with parents who have decided to end their relationship with each other but who must continue to have a healthy relationship for the benefit of their children. As a divorce mediator, I work very closely with parents to ensure that their children's needs and interests are met and that the parents understand how important having positive relations and communication with each other is to the health of their children. Parents who continue to work on their revised relationship as parents who are not together but are both still parents are doing their children the biggest favor of all.
Not all therapists specialize in each of these areas and it's great to find one who specializes in the area that you need help with. Many therapists have their areas of expertise outlined on their websites. If not, call them to find out if they specialize in the things you would like help with. Good luck!
Sunday, August 10, 2008
Protecting Credit During Marriage
Kathleen Pender's "Net Worth" column in the San Francisco Chronicle's Business section is one of my favorite columns. She frequently discusses issues like retirement plans/benefits, mortgages, credit, investments and estate planning that are directed to all of us and not just the Fortune 500 business people out there. She's great at taking complex issues and distilling the important pieces for regular people.
Her recent article "Protect Credit After 'I Do'" provides some very useful advice for couples to protect their credit scores once they are married. She dispels the myth that once you get married, your credit scores are combined, and she gives tips for couples to keep their accounts separate in order to not have one person's negative credit history affect the other person's clean credit history.
Although there are great tips in the article, my biggest concern is that the article does not tell readers that once you get married, your debts are joint because principles of community property apply to debts as well as assets. That means that even if a debt incurred during marriage is only in one person's name, both individuals are legally responsible for that debt. That comes as quite a shock to many people, particularly couples who have divergent ideas of how to manage money and debt.
The other concern I have is that someone is quoted in the article as saying that you should keep separate accounts during marriage so that "'The individual account is entirely under your control. If there is a divorce, those joint accounts could be in dispute.'"
The problem with that statement is that just because you put funds into a separate account, that does not mean those funds are not in dispute in a divorce, that they are not community assets and that the account is entirely under your control. If money that you earn during marriage (i.e., community funds) is deposited into an account solely in your name, that is a community asset and it does not matter who earned it or whose name the account is in - each person owns it 50/50. And, in a divorce, if you use, transfer or move around money in this kind of "separate" account that holds community money, you may be paying all or some of that back to your spouse since it is not technically your own separate money.
There are many things couples can do to set up their financial partnership together and to maintain control over their assets during marriage as well as in the event of a divorce. The smartest thing a couple can do is to get premarital legal and/or financial counseling to know what their rights and obligations are during marriage and in the event of divorce.
Thursday, July 31, 2008
"We Agree On Everything - Do We Still Need Mediation For Our Divorce?"
Answer: Maybe; and it might be a great idea!
I often receive calls from couples who have decided to work together to dissolve their marriage amicably and they are not certain whether it's a mediator or a lawyer they need to help them accomplish this goal. Because I provide both services, I explain the differences and the situations in which one might be preferred over the other.
Mediation is a great option when parties are unable to communicate and negotiate directly with each other to find a resolution of their disagreements or disputes. A mediator assists the parties by asking the right questions, directing the discussions in a productive manner and helping the parties make reasonable and rational decisions based on all the information and to reach settlement and finalize a case efficiently.
In divorce mediations, mediators usually prepare not only the Marital Settlement Agreement that results from the mediation sessions, but the mediator also assists the parties in getting the divorce action filed and finalized in the court (although attorneys are involved in reviewing and finalizing the settlement agreement).
In the case of a divorcing couple who have already agreed on how they will divide their community property assets and debts, whether, how much and for how long spousal support will be paid, and all issues regarding children (custody, visitation and support) and taxes, there may be no need for a neutral third party to facilitate discussions, but the mediator can still be extremely valuable in preparing a balanced agreement which meets the needs and desires of both parties equally instead of being drafted by one party's attorney and then getting shuffled back and forth between attorneys trying to balance it back out.
So, while a divorcing couple with agreements on all issues may not need a mediator, but may find a mediator to be quite useful in getting a fair agreement drafted up quickly, some divorcing couples with agreements may instead choose to simply use one party's lawyer to get the job done.
In that case, one party can hire a lawyer to file the divorce action and to prepare the draft settlement agreement and remaining judgment paperwork. The second party will hire their own lawyer to review and make any needed changes to the settlement agreement and will prepare that party's financial disclosures. The attorneys will gather all signatures and get the paperwork filed with the court in order to finalize the divorce.
This assumes there is agreement on all issues. If the parties discover there is disagreement on some or even just one issue, a neutral mediator can be called in for the limited purpose of helping to resolve the remaining issues and/or to draft up the agreement.
If the parties are unsure whether they have agreements on all issues, mediation is a great place to start productive and organized conversations to identify the issues and figure out where the parties are in agreement and where the parties may need assistance in reaching their agreements. Or, if the parties meet with their own attorneys first and then decide to mediate their agreement and work together collaboratively to reach their settlement, they still have that option at any time.
In divorce mediation, the couple can start with mediation before filing anything with the court, they can start mediation after the case is filed, and can also mediate their divorce whether or not the parties have their own attorneys involved in the case. Mediation can always be used as a powerful tool for the parties to stay out of court, reduce their attorney's fees and the time spent fighting; so no matter where you are in your case, mediation is still an option to be considered to help you both get to where you want to be.
**This post previously appeared in March 2007 and has been revised and updated**
If Your Contract Requires Mediation Before Court, Mediate!
If the contract you signed states that the parties agree to mediate any disputes, you must comply with that provision and mediate before you run off to file any type of lawsuit, or else your lawsuit will be dismissed. All types of contracts can have a mediation provision (which is different from an agreement to arbitrate), including real estate purchase agreements, lease agreements, employment agreements, premarital agreements, marital settlement agreements or any other agreement.
Here is a short article from the National Arbitration Forum, titled: "Failure to Comply with Contractual Obligation to Mediate Results in Dismissal of Case"
A California federal court determined that the failure to mediate a dispute pursuant to a contract that made mediation a condition precedent to filing a lawsuit warranted dismissal.
In Brosnan v. Dry Cleaning Station Inc., No. C-08-02028 EDL, 2008 WL 2388392 (N.D. Cal. June 6, 2008), Brosnan entered into a franchise agreement with Dry Cleaning Station. The franchise agreement included a provision, which required both parties to enter into mediation of all disputes prior to initiating any legal action against the other.
Thereafter, Brosnan filed an action against Dry Cleaning Station alleging state law claims relating to fraud and breach of contract. Dry Cleaning Station filed a motion to dismiss Brosnan's complaint based on Federal Rule of Civil Procedure 12(b)(6) on the grounds that Brosnan failed to engage in mediation of the dispute prior to filing their lawsuit as required by the franchise agreement.
In response, Brosnan sought a stay of the matter rather than a dismissal. The Court stated that a claim filed before satisfaction of a condition precedent, such as a mediation requirement, should be dismissed.
In this instance, there was no dispute that Brosnan did not pursue mediation prior to filing the lawsuit. Under these circumstances, Dry Cleaning Station opted for dismissal. The Court granted Dry Cleaning Station's motion and dismissed the case.
The Court noted that in contrast to mediation, where a plaintiff attempts to exhaust its arbitration remedy or raises issues not susceptible to arbitration or not covered by the arbitration agreement, a stay rather than dismissal of the lawsuit is appropriate.
Wednesday, July 23, 2008
Mediation Confidentiality
One of the first things I do in a mediation is to explain to the parties that everything that happens in the mediation is confidential unless there is a written signed settlement agreement or other signed forms that will be filed with the court from the divorce mediation case. Before the mediation even gets started, the parties sign my Agreement to Mediate, which explains more about the confidentiality of mediation and what it means.
The California Supreme Court has just issued a ruling which strengthens the laws which already protect everything said, done or prepared in mediation from being used in any type of proceeding unless everyone agrees in writing to its use.
Here is an article from the Metropolitan News Enterprise (www.metnews.com), which provides the background of the mediated dispute in that case and the actions of the mediator and the parties. The California Supreme Court held
that it didn't matter that in the court proceedings following a terminated mediation, a party had not previously objected to the use of otherwise confidential statements in the proceedings to enforce the unsigned settlement. The court held that there is no exception to the rule of mediation confidentiality unless the parties signed the settlement agreement, thereby making the agreement no longer confidential.
Here is the article and the link:
No Estoppel Exception to Mediation Confidentiality, S.C. Rules
By KENNETH OFGANG, Staff Writer
The California Supreme Court took a strict view of mediation confidentiality yesterday, unanimously ruling that statements made during the process could not be used to bind a party to a settlement agreement she did not sign.
Reversing a Los Angeles Superior Court judge and Div. Three of this district’s Court of Appeal, the high court overturned a breach-of-contract judgment against Dr. Lida Ghaderi, a Santa Monica physician.
The judgment grew out of a malpractice claim by the family of Ghaderi’s patient, Kintausha Clemmons, who was being treated by a nephrologist, who was treating her with dialysis for renal failure. Without consulting with Clemmons’ nephrologist, Ghaderi allegedly took Clemmons off dialysis, resulting in her death from severe renal failure.
Consent Form
During mediation before retired Los Angeles Superior Court Judge Robert T. Altman, Obi Amanugi—a claims specialist from Ghaderi’s malpractice insurer—obtained Ghaderi’s written consent to settle the case for no more than $125,000. The consent form provided that the consent could only be revoked in writing.
By statute, a claim against a health care professional covered by a professional liability policy can only be settled with the insured’s written consent.
During the mediation, while Ghaderi was in another room with her Cumis counsel, Robert C. Reback, the claims specialist and the insurer’s attorney, Kent T. Brandmeyer, told Altman the carrier would pay the plaintiffs $125,000 to settle. The plaintiffs accepted.
But when Altman was reducing the settlement to writing and Amanugi reported the settlement to Ghaderi, she responded, “Good, because I am revoking my consent.” Soon thereafter Ghaderi left the building, ending the mediation.
Altman, the plaintiffs, and their counsel signed the settlement agreement. No one signed on behalf of Ghaderi or her insurer.
During the next 15 months, the parties litigated the legal effect of the events that had taken place at the mediation. Ghaderi’s attorneys voluntarily turned over to plaintiffs’ counsel a copy of the consent form signed by Ghaderi, and did not object to a declaration by Altman concerning the events at the mediation filed in support of a motion by plaintiffs to enforce the settlement.
In her opposition to that motion, and in her own summary judgment motion, Ghaderi acknowledged having authorized the insurer to settle within the $125,000 limit, then revoking her consent only after being told that the settlement was orally agreed to by her insurer.
Bifurcated Trial
Los Angeles Superior Court Judge Richard Fruin denied Ghaderi’s motion for summary judgment, allowed the plaintiffs to amend their complaint to state a cause of action for breach of oral agreement, and bifurcated the trial to hear that claim first.
Ghaderi filed a trial brief, in which she objected to the admission of any evidence relating to the mediation, and argued for the first time that “[a]ny attempt to introduce evidence of discussions, purported agreements, or any form of communication at mediation or thereafter” was barred by the mediation confidentiality provisions of the Evidence Code.
Following a bench trial, however, Fruin entered judgment in favor of the plaintiffs in the amount of $125,000, reasoning that Ghaderi had given her attorneys, her authorized agents, authority to communicate a $125,000 offer to plaintiffs, and the offer had been accepted prior to any withdrawal of consent.
On appeal, Ghaderi argued that her revocation of consent was sufficient to prevent the settlement from becoming effective, and that no evidence of the events occurring at the mediation was admissible due to the principles of mediation confidentiality.
A divided panel of the Court of Appeal affirmed, saying Ghaderi was estopped to argue mediation confidentiality, since she had presented evidence of the mediation proceedings herself and had not objected to the plaintiffs’ evidence.
But Justice Ming Chin, writing yesterday for the court, said that neither estoppel nor implied waiver is an exception to mediation confidentiality because any such exception must be authorized by the statutory scheme commencing at Evidence Code Sec. 1115.
Under those provisions, Chin explained, exceptions to confidentiality are “narrowly delineated.”
He cited Sec. 1122, which says that a settlement agreement or other written document prepared as part of the proceedings, may be disclosed only if “[a]ll persons...who participate in the mediation expressly agreed in writing, or orally in accordance with Section 1118, to disclosure.”
Sec. 1118 permits disclosure of an oral settlement if the agreement is recorded, all parties agree in the presence of the mediator that the agreement shall be binding, and the agreement is reduced to writing and signed by the parties within 72 hours.
Chin also noted that under Sec. 1123, a written agreement entered into during mediation may be disclosed only if the parties expressly agree or the document is used to show fraud, duress, or illegality.
The current statutes, Chin added, were adopted in 1997 on the recommendation of the California Law Revision Commission. Both the unambiguous statutory language and the commission comments, he wrote, show that the Legislature did not intend to permit “judicially created exceptions” to confidentiality.
“[B]y creating fixed procedures that allow only certain evidence produced at mediation to be admitted in later civil proceedings, the Legislature was undeniably aware that some agreements made during mediation would not be enforceable,” Chin wrote. “The statutes thus reflect a policy judgment made by the Legislature when weighing the value of confidentiality. Creating exceptions to admit evidence that does not meet statutory requirements would run contrary to legislative intent.”
The case was argued in the Supreme Court by Shirley M. Hufstedler of Morrison & Foerster for Gharderi, who was backed by the Southern California Mediation Association and California Dispute Resolution Council as amici, and by Martin R. Berman of the Law Office of James Aaron Pflaster for the plaintiffs.
The case is Simmons v. Ghaderi, 08 S.O.S. 4283.
Monday, July 14, 2008
Divorce Mediation and the Brinkley-Cook trial
I hate to sound like a broken record, but as a divorce mediator, it's hard to figure out why divorce mediation isn't the option everyone chooses in a divorce! Here's an informative article from newsday.com about divorce mediation and the unfortunate fact that New York remains one of the worst places to get divorced.
The article is "New York State lags in using divorce mediation" reported and written by MICHAEL ROTHFELD and staff writer MELANIE LEFKOWITZ. July 14, 2008
Isn't there a better way?
The salacious and rage-fueled divorce trial of Christie Brinkley and Peter Cook may have made for good gossip, but experts say it is also a perfect example of everything divorce shouldn't be: expensive, public, bruising and adversarial.
Aside from the cameras and commentary, experts say the Brinkley-Cook trial, which ended last week after the parties settled out of court, is emblematic of divorce in New York, which lags behind dozens of states when it comes to offering alternatives to knock-down, drag-out courtroom battles.
From custody to mediation to financial issues, experts say the way New York State handles divorces makes the process far worse for both parties.
Andrew Schepard, a Hofstra University law professor who specializes in issues surrounding divorce, said New York's method of handling custody, for instance, is among the most adversarial in the country.
"It puts a premium on digging up dirt on the other party," Schepard said. "It puts a premium on each side saying, 'I am better than the other parent.' That is how parents 'win' custody. What they should be saying is, 'What are my children's needs during this divorce?'"
In the area of mediation, New York lags behind most states. Judges in the state do not have the power to order couples into mediation, which can reduce costs, create less divisive outcomes and help spouses maintain better relationships with their children and each other.
Programs not available to all
Courtroom alternatives, such as early-settlement panels and giving extra attention to high-conflict custody cases, are available only to couples who live in counties with pilot projects. Statewide, the state's Office of Alternative Dispute Resolution has an annual budget of $5 million in a court system that spends $2.4 billion a year.
But though change is not happening as quickly as many advocates would like, it is happening.
For the past two years, Nassau County has offered a program called "Children Come First," in which couples whose divorces are identified as acrimonious are evaluated and referred to services such as counseling and parent education. If they can't settle their differences with the increased oversight, a trial to resolve child custody disputes is held within 30 to 45 days.
Suffolk County recently began offering voluntary mediation, in which spouses are referred to approved mediators.
"It gives the parties the total control over the proceedings, because they can then decide and guide the whole proceeding through the neutral mediator," said Suffolk Administrative Judge H. Patrick Leis III. "Litigation is definitely a difficult way to do it, because afterwards one is a winner and one is a loser."
Judged a success
Nassau State Supreme Court Justice Robert Ross, supervising judge of the county's matrimonial center, said 147 couples have gone through the pilot model court since its inception in October 2006, and 80 percent of those cases settled within four months - compared with the one to three years that such contentious cases typically take. In her 2007 State of the Judiciary speech, New York State Chief Judge Judith Kaye called Nassau's program an "unqualified success."
Focusing on custody disputes at the outset, rather than settling them at the end of a yearslong process, keeps angry spouses from using children as weapons in their negotiations, Ross said. Once the custody issues are settled, he said, financial matters often fall quickly into place.
"And that's leading to settlements at an unbelievable rate," he said. "What you're doing for children now who don't have to be exposed to the acrimony of a divorce that's pending for two years, it's a blessing."
Robert Mangi, a divorce lawyer who chairs the Nassau County Bar Association's matrimonial committee and has represented litigants in the new model court, said that his clients appreciate separating issues involving the well-being of their children from appraisals of a house or a business.
Trying to avoid a 'circus'
"Ultimately what we're trying to do is to avoid the circus that you see in the Brinkley case," Mangi said. "If we can avoid a trial where all those issues have to come out, that's a good thing."
But despite some strides, many experts and divorce reform advocates find that change has been spotty, incremental and slow. In more than a dozen other states, couples are required to try mediation before seeing a judge. In New York, only a handful of counties offer court-sponsored mediation, and even then it is optional.
Leis said some lawyers mistrust mediation because of past encounters with untrained or unprofessional mediators, who are not licensed or regulated. To counter this, he said, Suffolk judges refer couples to a list of approved mediators who have been trained by the state Office of Court Administration.
"It's like trying to turn a battleship," he acknowledged.
Lisa Hicks Yackel, executive director of the New York State Dispute Resolution Association in Albany, said her group has been advocating unsuccessfully for five years for state legislation that would require couples with custody disputes just to hear about mediation. Some lawmakers are opposed because women's advocates fear wives would get steamrollered.
Schepard said he views the Brinkley divorce trial as a lost opportunity.
"It would have been absolutely wonderful for the judge to be able to order these people to mediation or parent education," he said. "Think of the message that would have sent to the public, instead of all the salacious details."
New alternatives
Some local alternatives offered by state courts for divorcing families:
'CHILDREN COME FIRST'
A 2-year-old pilot program in Nassau County that speeds up custody decisions in highly contested cases. Couples meet with a parenting coordinator, who recommends services such as parenting education or anger management to encourage settlement. Spouses who can't settle have an expedited custody trial within 45 days. About 80 percent of the 147 families who came through the program have settled.
VOLUNTARY MEDIATION
Recent Suffolk County initiative in which couples, when appropriate, are referred to a list of court-trained mediators to help them try to work out their differences outside the courtroom.
COLLABORATIVE LAW
A Collaborative Family Law Center, in which divorcing couples and their lawyers work together to reach a settlement with as little conflict as possible, is under construction in Manhattan.
Blocking reform
Experts say divorce reform has failed in New York State because of these three factors:
Opposition from the National Organization for Women, which says its goal is to protect women who may be at a financial disadvantage in the divorce process.
Opposition from conservative religious groups such as the New York State Catholic Conference, the lobbying arm of the Catholic Church.
The lack of an organized constituency in favor of divorce reform.
"Surrendering to Mediation"-Jarndyce v. Jarndyce
I have pasted below the full text of a short and sweet article from the The Orlando Sentinel about how and why mediation works and why you might want to give it a try. But first, I'd like to provide an excerpt about the Charles Dickens' novel, The Bleak House, which is referenced in the Sentinel article, to give you the appropriate context for the Sentinel article.
From David Perdue's Charles Dickens page on The Bleak House: 'Dickens' ninth novel, illustrated by Phiz, was intended to illustrate the evils caused by long, drawn-out suits in the Courts of Chancery. Dickens had observed the inner workings of the courts as a reporter in his youth and observed that "The one great principle of the English law is to make business for itself". Bleak House is often considered Dickens' finest work although not his most popular.'
Mini Plot from David Perdue: 'The case of Jarndyce and Jarndyce, in the High Court of Chancery, has been going on for a long time. The current Jarndyce, John, owner of Bleak House, has little hope of gaining anything from it. On her aunt's death Esther Summerson is adopted by Jarndyce and becomes companions to his wards, Ada Clare and Richard Carstone. Carstone has hopes that the chancery case will make his fortune.'
'As the story unfolds it is revealed that Esther is the illegitimate daughter of Captain Hawdon and Lady Dedlock. When the Dedlock's lawyer, Tulkinghorn learns of this, and tries to profit by the information, he is murdered by Lady Dedlock's former maid. Lady Dedlock flees and later dies at the gates of the cemetery where Hawdon lies buried.'
'John Jarndyce has fallen in love with Esther and asked her to marry him. She consents out of respect for Jarndyce but during the engagement she falls in love with Allan Woodcourt. When Jarndyce learns of her feelings for Allan he releases her from the engagement and she marries Woodcourt. The chancery case comes to a close with court costs eating up all of the estate. Carstone, who has married Ada, dies in despair.'
Now that you have this elaborate context, here is the Sentinel article:
When to surrender to mediationAdrian G. Uribarri Sentinel Staff Writer
July 14, 2008
A contested inheritance sparked the surreally drawn-out case in Charles Dickens' Bleak House. By the time Jarndyce and Jarndyce was over -- generations after it began -- legal costs had devoured nearly the whole estate.
Dickens wrote the novel as a critique of the British judicial system, whence the United States inherited much of its law. More than 155 years later, much remains familiar about the old Dickensian dispute.
But today, there is at least one way to avoid the horrors of Jarndyce and Jarndyce: mediation.
The process involves a neutral party, usually an attorney, hired by you or your lawyers to steer negotiations with the other side. It's confidential and binding, and though it's not always successful, it usually works in less time and with lower costs than going to court.
"I probably settle 90 percent or more of my cases in mediation," says Richard West, a marital and family lawyer and mediator in Orlando. "Without this, the court system would be hopelessly bogged down."
West says that in mediation, parties in dispute can fashion their own solutions to problems rather than rest their fates in the hands of a judge. In Orange and Seminole counties, West says, divorcing couples can't even set a hearing without trying mediation first.
"If it doesn't work," West said, "you end up in front of a judge anyway."
Adrian G. Uribarri can be reached at auribarri@orlandosentinel.com or 407-420-6269.
Tuesday, July 08, 2008
Resolving Workplace Conflicts through Mediation
Here's an excerpt: "So what are employees supposed to do when they have problems with their supervisors but are scared of the potential repercussions of complaining about their bosses and don't want to see an attorney? One answer is mediation, a process that lets individuals resolve their problems with the help of a third-party facilitator. Unlike arbitration ... mediation relies on a wide range of techniques to identify and fix problems. These can include face-to-face dispute resolution sessions, exercises to overcome interpersonal conflicts and even novel techniques to get people behaving in new ways.
"If this sounds too "out there" for the real world, Schear points out that companies such as Coca-Cola have implemented an internal alternative dispute resolution program, and employers such as Home Depot are talking about creating similar programs ... Mediators can provide a way to handle these kinds of disputes fairly."
For the full article click here.
Wednesday, June 25, 2008
"Give Mediation a Chance"
Yes! Yes! Yes! Give mediation a chance! That's the call from business lawyer and mediator Scott Flegal (he's got one of those last names that destined him for law, just like me!) in the Nashua Telegraph (http://www.nashuatelegraph.com/) on June 12.
In his article, "Before Litigation, Give Mediation a Chance," Flegal explains how he's tried to pitch the virtues of mediation to businesses over the years: " 'In mediation, you make the rules. You control how your dispute gets resolved. You make the decisions. You're in control over your destiny! Isn't that terrific?' Eventually I noticed that it was at that moment of my pitch that people stopped listening to me and started dialing up their lawyer to have them file suit."
After considering the negative impact of litigation and the potential sources of America's love/hate relationship with litigation, Flegal says: "Ironically, part of the solution to this problem may involve rebuilding that very lawyer/client relationship. As lawyers, we might be able to improve it by making sure our clients understand that while the law is almost always relevant in dealing with a dispute, it is not necessarily determinative. There may be other alternatives available to the client that could do a better job of meeting the client's most important interest than filing a lawsuit. As lawyers we must use the law to understand the relative strengths and weaknesses of the client's position. But every bit as important is the role we play in helping the client decide whether asserting those legal rights in court is the best option."
Flegal's pleas to potential litigants as well as to the attorneys who are hired to help the clients to find the right solution is well-founded. Self-determination is a cornerstone of mediation and stepping up and facing a dispute as a rational adult capable of negotiating and making informed decisions is truly a great way to resolve any type of dispute!
Wednesday, June 11, 2008
Advanced Mediation Training for Mediators
The fabulous Community Boards Conflict Resolution Services of San Francisco is well known among practicing mediators as well as many members of the community who have used Community Boards' no-cost and low-cost mediation services to resolve their disputes (which include neighbor disputes, family feuds, roommate problems, landlord & tenant disputes, parent & child issues, fences, pets, tree maintenance, vandalism, etc.).
Many mediators started their mediation training at Community Boards through their Basics of Mediation courses and became panel mediators for Community Boards. Now, Community Boards is offering Advanced Mediation Trainings which build on all the skills mediators learned in The Basics and offer strategies for both community and non-community based mediations. This means that professional mediators can work to improve their skills as mediators in their fields and interact with other professional mediators.
I am very excited about this training in part because I'm one of the trainers and I think this is a much-needed course. But I'm also excited because the Community Boards model and techniques that are taught in The Basics are so valuable in every mediation I conduct, that to be able to build on those techniques and skills as a mediator and to work with all the amazing talent at Community Boards while doing it, is really just an ideal situation for all mediators!
Here's info for the one-day course, "Advanced Settlements & Complex Mediations" (Saturday, August 16 9:00 AM - 5:00 PM)
*Advanced Settlement Strategies *Techniques for Breaking Impasse
*"Dealing with Dollars” in Negotiations *When and How to Use Caucus
*Complex Mediations *Multi-party Mediations *Managing Mediations with Third Parties
The workshops will combine short lectures, group discussions and role play practices. Additionally, there will be a BYOP (“Bring Your Own Problems”) working lunch for participants to ask the trainers for their input and expertise. The training will conclude with a “Building Confidence, Demonstrating Competence” session. Lunch is provided.
Go to http://www.communityboards.org/ and click on trainings and scroll through the Basics and Mediation Masters and Refresher Course Trainings and go to Advanced Mediation Training for more information about the course and the trainers. Or go to www.communityboards.org/advancedtrainings/asp. Happy mediating!
Monday, June 09, 2008
Divorce Mediation in the Wall Street Journal
There was a great article in the Wall Street Journal last week touting the benefits of mediation and other collaborative methods of resolution of divorce and family issues over court litigation. Here is the link to the article here.
The article highlights the lasting negative effects on children from a bitter divorce as at least one reason to keep the divorce out of court. The Wall Street Journal also sets forth some numbers that divorce attorneys and mediators know very well and that couples going through a divorce discover all too soon: The average mediated divorce costs less than $7,000 and the average collaborative divorce costs less than $20,000, while the average litigated case costs $78,000!! And that last figure is most likely a national figure since fully litigated cases in California (with battling experts, etc.) will run more like $100,000 to $150,000.
This explains why one of my favorite mediators (Rodney Johnson in Marin County) asks couples debating between divorce mediation/collaborative law or traditional representation by battling attorneys what they want to pay for - his children's college education or their own children's college education. The choice is yours.
Wednesday, June 04, 2008
Life After Divorce Mediation: eLoveAgain
Because of my work, I am always interested in finding new resources to help my clients regardless of the particular stage of their relationship they may be in. So, I was quite interested when a fabulous chiropractor colleague/friend, Dr. Laura Sheehan, referred me to eLoveAgain.
This site truly offers what it promises: "Your onestop relationship recovery guide and free e-counseling support source." The site offers events for singles, self-improvement and wellness, counseling resources, and a whole host of other goodies. Here is a short excerpt from their home page:
"You are entering a period of transition. Life constantly changes for everyone, everywhere at every moment. This site has been designed to assure you that you are not alone. Millions of people right now, at this very instant, are ending relationships and will soon begin new journeys.
We understand what it takes to trust again. It takes time, work, and a little help. We know that by connecting you to new services, ideas, and concepts you will broaden your world and ensure meaningful new experiences."
It is a truly unique site with great information and resources. Check it out!
Tuesday, May 27, 2008
Marital Mediation vs. Divorce Mediation
I have heard of mediators specializing in keeping couples together but until now I have not understood fully how it works or how it is different from traditional couples therapy. Here is a link to an article I came across about a marital mediator in Westport, Connecticut, which provides more insight into this interesting area.
As a divorce and family law mediator myself, I am always interested in providing other avenues for couples to explore to help keep the marriage together. I always ask couples if they have tried marriage counseling, whether there were aspects of the therapy that either of them found helpful, etc. As the person who meets with both individuals at the end of their marriage, and as the person who will be guiding them through their divorce, I want the couple to know that they have tried everything they could to stay together before deciding on divorce. If couples have not visited a counselor together, I suggest it if I think it might be useful (although there are times when such a suggestion is simply inappropriate, and is therefore left out of my discussion).
If anyone has been through a marital mediation process, I would be interested in hearing about it because nothing is better than finding out that a potential divorce mediation couple will not become clients because they have worked out their issues with another professional and will be staying together for the right reasons. Here is the full article:
Counselor offers different way to help heal a marriage
--------------------------------------------------------------------------------
By KARA O'CONNOR
koconnor@wiltonvillager.com
WILTON — For those couples who don't think that traditional marriage counseling is for them, Wilton mediator Susan K. Boardman has an alternative solution for them to try.
Boardman uses Marital Mediation to help couples who come to her Westport-based practice, a counseling technique that uses mediation to create new relationship behaviors and better communication and understanding, she said.
"Marital Mediation uses the same techniques as divorce mediation but the goal is different," said Boardman, who has a Ph.D in social psychology. "Marital Mediation works through conflict to try and create new ways to prevent divorce or separation."
According to Michael Becker, an attorney and accountant who specializes in divorce mediation in Wesport, there is a very small bridge between divorce mediation and marital mediation.
"I think that the goals and skill set for Marital Mediation is probably identical to divorce mediation in a way," said Becker. "They both identify and organize the problems couples are having in their relationship and help keep couples calm and diffuse conflict."
Boardman has had a private practice for the past six years as a family mediator, and has been using marital mediation for the past three years. According to Boardman, Marital Mediation comes up with a more concrete way to fix a couples problems.
"I find that in marriage couples either ignore problems or just sit on them," said the Wilton resident. "With Marital Mediation I find out what is causing the problem, like other mediators or therapists do and then make a written contract for the couple that will work out specific ways to solve the problems."
According to Boardman, there are four different areas that make up Marital Mediation. There is the perception of the problem and how to change it, coming up with a way to negotiate that problem, finding out how each person perceives themselves and the perception of the solutions to fix the problem.
Boardman says she uses different techniques for Marital Mediation such as using a "feedback loop," which is when couples will take one hour in their week to sit down and talk to each other about how they feel. She says she also uses flashcards in her sessions, with a patient talk to his or her partner and holding up a red, green or yellow card to show the emotions they are feeling at the time.
"Marital Mediation is really a different kind of therapy," said Boardman. "It lets couples test out all different ways to find a solution and ends up being a shorter process than other therapy."
According to Boardman, the Marriage Mediation process takes anywhere from two to six, two-hour sessions, which are usually completed in three to four weeks, depending on the couples' schedule. There are also various couple-related conflicts which Marital Mediation can help, such as career issues, lack of communication, intimacy issues, financial disputes and many more, she said.
"I help people develop new behavioral guidelines, rather than trying to figure out the psychological explanation of why couples act the way they do," said Boardman. "It gives couples the ability to eventually solve their own problems."
Susan Boardman's counseling practice is located at 252 Post Road East in Westport. She also has a Web site, www.maritalmediationworks.com, where visitors can learn more about Marital Mediation.
"I really believe that Marital Mediation works," said Boardman. "It's so simple and generates many options for couples, it helps couples focus on the future and stay in the future."
Thursday, March 13, 2008
Doctors & Lawyers Mediating Malpractice Claims
Here's a great article on the training process for doctors and lawyers involved in a new mediation project to resolve malpractice claims. The article is from Philly.com. One of the things that makes this so unique is that the doctors themselves are being trained as mediators, which means they are being trained to listen to patients in a whole new way. I think this is wonderful idea and can only help patients as well as doctors. (Illustration by Myron Macklin / http://www.artninja.com// Used with permission.)
Doctor-lawyer project tackles malpractice
By Stacey Burling
INQUIRER STAFF WRITER
Doctors and lawyers in Montgomery County are doing something unusual: working together.
Members of the county's bar association and medical society, along with Abington Memorial Hospital, tomorrow are launching a pilot project they hope will keep more malpractice disputes out of court.
Lawyers and doctors will work in teams to mediate conflicts between patients and the hospital or doctors. The hope is that the new approach will resolve problems more quickly and humanely, without the demonization of both sides that can occur in malpractice battles.
Whether it will save money remains to be seen. Project leaders say that is not the primary goal.
John J. Kelly, Abington Memorial's chief of staff, said he wanted to avoid the "harshness" of litigation. "At the end of the day, I think everybody walks away feeling like it's a much more productive process, and it's a healing process," he said of mediation.
"I think litigation makes everything so much more painful for everyone, and I'm not sure healing ever occurs."
Planning for the project started three years ago after a nudge from the state Supreme Court. It encouraged counties to look at alternatives to traditional court battles as doctors threatened to leave Pennsylvania because of skyrocketing malpractice-insurance rates. Not much has happened elsewhere in the state, but doctors and lawyers here pursued it because "there's got to be a better way to do things than the way we've been doing them," said Mark Lopatin, a rheumatologist, who led the medical society's part of the effort.
People on both sides say the current system is emotionally draining, even when you win.
"Clients hate courtrooms," said Robert Morris, president of the Montgomery County Bar Association. "I haven't ever had a client that wanted to get in the witness stand."
The project deals with unhappy patients and their families through a two-step process. In the first, doctors and nurses at Abington have been trained to listen to such patients and explain what happened in as much detail as possible. Project leaders say many people who sue do so primarily to find out what happened.
If that is not enough, patients can move to mediation, a process that helps them hammer out a settlement with their doctors. The mediator shuttles between the sides, bringing their positions together. Unlike a judge or arbitrator, the mediator does not decide the case. Instead, the patient and doctor - or more likely their attorneys - determine an acceptable outcome. Usually that involves money, but patients also often want an apology and assurance that steps will be taken to prevent future mistakes.
If the sides are still fighting, patients still have the option of going to court.
In this region, Drexel University College of Medicine's doctors have the longest-running mediation program. Theirs often uses a team approach, pairing lawyers who typically represent patients with those who defend doctors. Abington's new program creates even more unusual teams. A lawyer with health experience will be the lead mediator, and a doctor will be his "medical partner."
"It's precedent-setting, this project," said Jane Ruddell, a former health-system lawyer who now runs a company devoted to alternative dispute resolution. "It's really trying to change a culture."
Ruddell ran a training session last week in the bar association's Norristown office to train about 30 doctors and lawyers to be mediators. Many of the lawyers had previous experience with mediation, but the daylong program was an eye-opener for the doctors, who understood for the first time how hard and time-consuming it was to sort through strong emotion and find common ground.
In a training exercise, the doctors and lawyers were split into groups for some role-playing. Abington Memorial obstetrician-gynecologist Robert Michaelson played the mediator for one. The bar association's Morris was an angry woman with cancer, and Mark Pyfer, president of the Montgromery County Medical Society, was her even angrier husband.
The patient in the case had had foot pain, which the doctor thought was caused by a pinched nerve. The patient decided not to have surgery the doctor recommended and later lost part of her leg after the cancer was discovered.
Michaelson got into trouble almost immediately, waiting too long to separate the warring parties. He ran out of time without getting close to a settlement, but Morris, who is a trained mediator, and Pyfer, a novice, proved a good team.
"I thought she was negligent because she never paid much attention to me," Morris said petulantly.
"Dr. Reynolds can say she's sorry, but I don't think she has any idea what it's like to go through life with one leg," Pyfer chimed in. Then he asked for $10 million.
Doctors came away from the experience understanding why the lawyers will take the lead in mediations, at least in the beginning.
"The most striking thing about this was . . . how difficult this is," said Lopatin, the rheumatologist.
Frank Murphy, a lawyer who attended the training, said it might be harder than the hospital anticipated to avoid malpractice filings and to persuade lawyers to be totally open with one another. Legal-filing deadlines, strategy, and payment agreements give lawyers an incentive to file in court and, sometimes, to stretch out the proceedings.
Advocates of mediation say it is often cheaper than court because there are fewer exhibits and medical experts to pay for.
Participants usually sign confidentiality agreements, a step that supporters say spares everyone embarrassment. The downside of the secrecy is that mediated cases create no legal precedent and leave no public record. Monetary settlements are reported to the National Practitioner Data Bank. But its information is available only to hospitals and professional groups, not consumers.
Some doctors also worry that mediation will be just one more step on the way to court. That has not been Drexel's experience. Of 40 cases that have gone to mediation, only three were unresolved.
Those involved in the Montgomery County experiment say it is more likely to give patients what they really want: early action, an apology, and information. "Patients want answers. That's what they want more than anything," said Sheila Stieritz, a former director of patient safety at Abington Memorial, who consulted on the pilot project. "And if it's something really serious, most patients want it not to happen to anybody else."
More Reasons to Try Mediation
If you've read any of my prior posts, you probably don't need more convincing that mediation is a great way to solve a dispute while saving time and money or that mediation can offer more creative solutions than the court can to deal with complex issues and problems. But in case you're still not sure mediation is worth your effort, read on for excerpts from various articles from the internet:
From the Tucson Citizen: While some parties are relieved to be introduced to mediation, Quiros said, others continue to balk. "People often feel mediation is touchy-feely or they give up control," Quiros said. "It's quite the opposite. Even though there is a third party facilitating, the control of the outcome is completely in the party's hands - there's no judge, no jury."
From the Pittsburg Post-Gazzette: Mediation is private and confidential. Most often the mediator is an attorney, knows neither party and has no stake in the outcome. Nothing said to the mediator in mediation is permissible in a court of law.
From the Harrisonburg, Virginia Daily News-Recorder: Every March, Virginia celebrates one of the most effective, inclusive and thoughtful methods of resolving conflict - mediation. Mediation is a way for people to come together and work things out. Trained mediators help people to bring issues to the table and to sort them out...Mediators simply guide the conversation without taking sides or telling participants what to do. Mediators help people through the stress, anger, confusion and suspicions of the other party to find solutions.
Business Day Interview of mediator Wahida Parker: [] At Equilaw we believe that it’s multi-tiered dispute resolution - that’s a phrase that was coined by Professor Butler. What we mean is it’s one step in the process to resolving disputes - if a mediation is not settled, and our statistics show that 80% of matters that are mediated on are settled at the mediation [] the remaining 20% then can elect either to go to court, or to go to arbitration. That is why we say it’s a multi-tiered dispute. If you say alternate that means it’s the other choice - a completely different choice - and we don’t agree with that stance.
And, from the Edwardville Intelligencer: "...people come out of [mediation] having controlled their fate and agreeing to something, rather than having a jury decide. A lot of times people think the jury was wrong, so at least [in mediation] the parties decided."
Thursday, March 06, 2008
Mediating Elder-Care, Conservatorship & Guardianship Issues
Mediation continues to grow in popularity, particularly in family related disputes like guardianships and conservatorships. I have pasted below the full article on Mediating Elder-Care Disputes from the Wall Street Journal.
Mediating Elder-Care Disputes
By TOM LAURICELLA
March 2, 2008
It's hard enough for families to navigate the complicated and emotionally charged decisions related to elder care when everyone gets along.
Throw in a family with tensions or outright hostility and it's no wonder that disagreements sometimes end up in court, an expensive proposition that can easily magnify divisions.
Another way to handle these problems is growing in popularity: mediation.
A mediator is sometimes brought in at the order of a judge seeking to settle a dispute without taking it to a jury. But elder-care practitioners are urging more families to take the step voluntarily, especially in disputes over how to handle guardianship for family members who can no longer care for themselves.
Mark Dennen's family was embroiled in nearly two years of litigation centering around guardianship for his father, then 92 years old, when a judge ordered the case sent to mediation.
"Everybody brings in all this emotional baggage and the mediator helps bring things into focus," Mr. Dennen says. "It's designed to get to a solution."
The mediation brought the legal battle to an end just months before Mr. Dennen's father passed way.
Agreement Is the Aim
The basic idea behind mediation is that a dispute is resolved through an agreement among the parties, instead of a resolution mandated by a judge or negotiated by attorneys. The role of the mediator -- usually an attorney or someone with a background in social work -- is to facilitate communication and informed decision making.
The cost of mediation varies around the country. In big metropolitan areas, it can easily cost $300 to $500 an hour, although it's possible to find dispute resolution centers that are significantly less expensive.
Robert Rhudy, a former legal-aid attorney turned mediator, has championed the use of the practice to resolve elder-care disputes in Maryland. "In mediation, everybody who is affected by the situation has an opportunity, in a neutral and confidential setting, to tell their story," he says. Whenever possible, that includes the elderly family member.
Defusing Tensions
The mediator can help ease communications among family members for whom the elder-care dispute may reopen decades-old wounds.
"Things like 'Mom always liked you better' and brothers and sisters who haven't gotten along since they were three years old come to the fore," says Mr. Rhudy.
Common candidates for mediation are disagreements between family members who live far away and a sibling who lives closer to the elder and may have a different assessment of that person's needs. Sometimes the disputes are between children and elderly family members who have their own view of where they should be living and who should be caring for them.
Mediation can be used to settle disagreements over living arrangements, how finances should be handled, who should be granted power of attorney, and even visitation rights among squabbling siblings. Agreements often specify the kinds of information, especially financial and medical updates, that will be provided to family members who live far away.
The personal nature of these disputes is what makes mediation helpful, says Forrest Mosten, a Los Angeles attorney who has been a mediator for nearly three decades. "The remedies that a court offers are very limited...but in mediation, an apology may end the dispute."
Mediation also allows for informal or even interim solutions, Mr. Mosten says. "You can try things out and see how they work," he says. For example, instead of immediately pursuing a formal guardianship, one child could become a co-signer on a bank account. "If that works, then you don't have to go any further."
There are some times when mediation alone isn't sufficient, says Nina Weiss, an attorney and mediator in Princeton, N.J. If a guardianship is in order, for instance, that must be ordered by the court system.
The mediation process for elder-care decisions can -- and most say, should -- bring in experts such as social workers, estate-planning specialists and health-care professionals who would typically be called upon as part of a court case. "The courts will recognize the same issues....It's just that you avoid the expense" of litigation, says Joseph Mahon, an estate-planning attorney in New Jersey (who isn't also a mediator).
Finding a Mediator
One challenge facing families looking for mediation help is that there is no formal licensing or credentialing for elder-care mediators, notes James Bergman, a co-director at the Center for Social Gerontology, an Ann Arbor, Mich., nonprofit group that has been a longtime advocate of elder mediation.
"Anyone can hang a shingle out and say they're an elder mediator," he says.
But there are plenty of experienced mediators, so it's largely a matter of tracking down those with experience in the area and, importantly, a mediator the parties feel comfortable with. One place to start are local nonprofit mediation groups, such as the Montgomery County Mediation Center in Eagleville, Pa., which can generally be located online. There are also state organizations, such as the New Jersey Association of Professional Mediators.
Some states have lists of mediators officially approved by their courts. And online, the Association for Conflict Resolution offers the public the ability to find mediators from among its members at acrnet.org.
Also online, Mediate.com and EldercareMediators.com offer names of mediators (who pay small fees to be listed).
Write to Tom Lauricella at tom.lauricella@wsj.com
Click here to go directly to this WSJ article.
Sunday, February 03, 2008
Mediating With or Without Attorneys
I recently worked with a mediator who very strongly prefers to mediate without attorneys present - just with the disputing parties themselves. I found this fascinating....
This mediator was recommended to me by respected colleagues for this particular type of case in which I was legal counsel for one party. So, when I called the mediator's office to find out more about her, I was a bit surprised to hear that she doesn't usually (or ever!) mediate with the attorneys present. In a follow up call, the mediator explained that this preference stems from the litigious, confrontational and hostile behavior exhibited by attorneys in prior mediations and that, in her experience, the attorneys have basically stood in the way of productive settlement discussions. Her preference to mediate with only the parties themselves was so strong that I all but negotiated with her (convincing her that my own mediator background and collegial relationship with the other party's attorney would only assist the mediation process) to get her to agree to mediate this case.
She agreed to conduct the mediation with the attorneys present. And the mediation itself was ultimately successful thanks to her unique mediation style and methods of generating creative options to meet the parties' needs. As the attorneys in the case, we did the best we could not to get in the way of our respective clients' needs and desires in reaching an acceptable and mutually beneficial settlement. In retrospect, I am confident the mediator recognized that the attorneys were able to do more good than harm although I don't know if she has actually changed her general policy.
This experience caused me to reflect on my own practice and policies regarding attorneys' involvement in the cases I mediate. As it happens, I don't have a policy to include or not include attorneys in the mediation room and instead, I leave that decision to the parties themselves. This decision needs to be made before the mediation of course. It would not be a balanced mediation if one party shows up with legal counsel and the other party has no representative.
However, I do have a policy, and an enforced provision in my Mediation Agreements, that each mediating party must have his or her own independent attorney to review any settlement agreement and provide independent advice at some point in the process. This protects both parties, enhances the enforceability of their agreement and enforces the fact that I am not acting as either party's legal counsel, but am instead a neutral, unbiased mediator in the case. Yes, these goals could all be met by having the attorneys present in the mediation, but other goals of the parties aren't always met by having attorneys in the mediation itself (including reducing costs and maintaining a friendly relationship with the other party), particularly during multiple session mediations.
Nevertheless, when it comes to my own preference regarding attorneys in the mediation room, I have to admit that I have noticed more tension, more stubborn digging into positions and less freedom for playing around with creative options in the cases I have mediated where attorneys are in the mediation. This is not to say that all of that is coming from the attorneys, but the cases and clients themselves always seem much more contentious and positions and parties more aggressive and angry when attorneys have been hired to litigate a case and for one reason or another the case goes to mediation.
This is one reason I promote the idea of getting into mediation as early as possible (even before a lawsuit or divorce case has been filed) in order to minimize hostilities as well as expenses and start out with a collaborative mindset instead of a mind set for war. Of course, this is much more feasible in a family law/divorce case, but it's still an option in many civil cases as well.
Thursday, January 10, 2008
Interested in creating your own legal blog?
I have been thinking about the fact that the time I am able to commit to updating my blog on a weekly basis is not what it used to be. It's not always easy to find the time or content that is interesting enough to post for all to read.
While I haven't yet decided on the direction this blog will take, I was interested to read a short article from fellow blogger Mark Herrmann in the National Law Journal that appeared in my Law.com Newswire this morning.
In his article, "Blogging Lessons Learned" Mark discusses the pleasures and pains of creating and maintaining a legal blog (a.k.a. "Blawg") in the form of four lessons learned and provides details with each lesson.
The first lesson: "blogging about substantive legal issues -- is hard".
The second lesson: "blogging is personally satisfying"
If you are interested in creating your own blawg, check out Mark's article.
Thursday, December 20, 2007
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!
Monday, December 03, 2007
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.
Monday, November 19, 2007
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."
Sunday, November 11, 2007
"Trading Dispute? Try Mediation" - WSJ
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.
Monday, November 05, 2007
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/.
Saturday, October 27, 2007
Keeping an Open Mind in Mediation
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)
Tuesday, October 23, 2007
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.
Sunday, October 14, 2007
International IP Mediation
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.
Tuesday, October 02, 2007
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.
Monday, October 01, 2007
Heated 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.
Friday, September 14, 2007
"Does the Mediator's Gender Make a Difference?"
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!
Friday, August 24, 2007
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!)
Tuesday, August 21, 2007
Mediation at Wikipedia
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
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
Tuesday, August 07, 2007
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.
Saturday, August 04, 2007
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!
Friday, July 20, 2007
Everyone Remain Calm
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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.
Monday, July 16, 2007
A Win-Win Solution In Mediation & Politics
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.
Wednesday, July 11, 2007
Mediation in the Entertainment World
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.
Tuesday, July 10, 2007
Personal Injury Mediation
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."
Monday, July 09, 2007
"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.
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.
Monday, May 21, 2007
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.
Saturday, May 12, 2007
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.
Tuesday, May 08, 2007
Explanation vs. Compensation: Medical Malpractice Mediation
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
Monday, May 07, 2007
Finding Middle Ground: Mediation
I have pasted a short article below which provides a simple but useful explanation of mediation and why it can be a better solution for many people to resolve their disputes. The article - "Finding Middle Ground" - is from the Savannah Morning News out of Georgia and a link to the article is here.
"SOMETIMES, THE parties in a dispute can work things out more amicably in a less formal situation.
That's why the decision by the Chatham County Superior Court to require mediation for much of their caseload makes sense.
Although the parties may also be represented by legal counsel at a mediation, the process allows for factors to be brought up that might not be admissible as evidence in court. Facets of a disagreement such as how a person was affected emotionally can be considered in mediation, when they might otherwise never be heard in court.
Another positive aspect is that while mediation cannot resolve questions of law, the agreements that are reached via mediation are based in equity: What the parties agree to be fair.
By reaching an agreement in this fashion, the parties need not emerge from the procedure as winners and losers, as in a court battle.
The more fluid give-and-take of mediation allows for each side to have input in the outcome, rather than a decision being imposed upon the losing party by a judge and jury.
In mediation, a neutral third party typically meets with those involved in the dispute, both together and separately, before coming to nonbinding suggestions on how to end the controversy.
While the practice - typically viewed as a method to settle arguments between unions and big business - has seen more use in civil cases in recent decades, mediation has a long history as part of U.S. law.
In fact, American settlers used dispute resolution to settle issues very early on. Historians also note that George Washington included a mediation clause in his will to settle arguments among his heirs, and Abraham Lincoln served as a mediator in a boundary dispute between two farmers.
Two simple factors keep mediation a valid part of current dispute resolution: Time and money.
It is usually cheaper for the parties and the courts for disputes to go to mediation, those involved in the dispute can find resolution more quickly, and mediated issues lighten the Superior Court's caseload, which can number in the thousands for civil cases alone."
Sunday, April 29, 2007
When Might Arbitration Be The Right Choice to Resolve Your Dispute?
I have posted prior articles detailing the differences between arbitration and mediation here and here, with the main difference being who is charged with deciding the outcome. Mediation allows the parties to create a settlement on their own terms with the help of the neutral mediator whereas arbitration involves a decision being made for the parties by the neutral arbitrator after hearing evidence and testimony.
As a trained and experienced practitioner of both arbitration and mediation, I do not hesitate to disclose my bias toward mediation as opposed to arbitration as the best method to resolve most disputes. However, I have seen the benefits of arbitration in some circumstances and will discuss these circumstances below.
I am not reluctant to make decisions for people in order to help them resolve their dispute in arbitration because I am interested in general in helping people resolve disputes. However, I am generally convinced that a better solution for everyone involved could be reached if the parties and their counsel put their heads together with a skilled mediator to widen the pool of options and get creative in figuring out how to meet the needs of all parties. A solution that comes from the parties themselves (i.e., mediation) usually feels more acceptable and satisfying to the parties because it has not been imposed - it has been mutually reached by the parties. There is no winner or loser in mediation since the goal is to create win-win situations every time. This is not the case in arbitration - in which there is typically a winner and a loser.
Although I have seen phenomenal results from mediation, it is true that mediation does not solve every dispute on the day of mediation. This may be due to many factors which are not controlled by the mediator: lack of key information, lack of settlement authority, unrealistic parties and/or attorneys, parties who refuse to actively engage in the mediation process, or other emotional obstacles to decision-making by the parties. Often mediation helps get the parties closer to where they need to be and they settle after mediation as a result of the mediation itself or the follow up calls made by the mediator.
Because mediation is not 100% guaranteed to settle the matter on the day of mediation, parties seeking finality regardless of the outcome may prefer arbitration just to have a set ending point. Many parties start with mediation because it is faster and less expensive than any other dispute resolution method and results in the most satisfaction to the parties. Arbitration or litigation is still the backup method to solve the dispute in case a settlement cannot be reached at mediation. However, some parties or attorneys choose to skip mediation and dive right into arbitration to have a guaranteed result to end the dispute one way or the other. I have three recent examples of this phenomenon in action:
1. In a personal injury car accident, the plaintiff's counsel prepared a detailed settlement demand to the insurance carrier for the defendant. The response from the carrier indicated the parties were nowhere close to seeing eye-to-eye on issues of liability and damages. Plaintiff's counsel made a strategic decision to demand arbitration right away based on the attorney's experience with the particular carrier involved. Had it been a different carrier involved, the attorney may have recommended mediation first knowing the likelihood of settlement is typically high, just not so with this carrier.
2. In the case of neighbors in a property/land use dispute, the parties were warring for so long that they refused to consider even sitting down to a mediation. This was despite the fact that the case was ideal for mediation in needing a creative and collaborative outcome and despite the fact that they all needed the dispute to be over because of the financial loss and turmoil the dispute caused the parties and their families. Instead, the parties wanted someone qualified to "choose" the winner for them. The parties were satisfied with an outside neutral person making the decision and putting the dispute to rest at last through a binding arbitration award.
3. Finally, there are times as a mediator when I recognize that decision-making itself is simply a difficult task for some people. Although I sometimes see this in neighbor disputes, I more often see this in family law matters. I often have family mediation clients ask me to serve as their arbitrator in the event that they cannot reach their own agreements. I have not had to do this as the parties have surprised themselves (if not me) by reaching agreements and making tough decisions that will affect them for the next 10, 20 or more years. And they have done this through mediation despite the fact that they were unable to do this privately without a mediator.
Although my own preference would be to stay in control of the outcome if it was my dispute, I recognize that arbitration might be the more desirable option in some cases for some people. There are situations in which arbitration is the wise choice - whether to get a guaranteed end to the dispute through binding arbitration by a date certain or to alleviate the difficult burden of having to make tough decisions and leaving it in someone else's capable hands to resolve the dispute for you. It is precisely because of these situations that I offer arbitration services despite my championing the great results that are achieved through mediation every day.
Sunday, April 22, 2007
Property Disputes Solved With Mediation
Property disputes can be resolved with less time and money through the use of mediation instead of drawn-out and expensive litigation. While some property disputes arise out of real estate purchase deals, other property disputes have more to do with property use. I mediate (and arbitrate) all types of property disputes and am called on about half of the time to mediate purchase-related disputes and half the time to mediate these other "property use" disputes.
Property use issues can include: adverse possession, boundary disputes, construction disputes, environmental contamination issues, landlord and tenant matters, and other "use" issues which can arise between a homeowner/landowner and neighboring landowners, a city, or a homeowner's association.
While real estate purchase agreements generally require mediation of any disputes (see prior post on that issue here), other property use disputes typically find their way to mediation or arbitration because of the financial cost and risks associated with court litigation.
Experienced attorneys as well as landowners, landlords, tenants, cities and HOAs also understand that there is often much more to property disputes than just who owes what to whom. Money might be a central issue in certain disputes, but there is usually much more to it than just money. More creativity is generally required to find solutions that will work for the parties' unique circumstances and disputes or that will improve the parties' ability to communicate and work productively together to find workable solutions.
Mediated solutions are not limited to the current dispute but also include figuring out how the parties can prevent and/or resolve future problems to avoid having to start down this path again. Such proactive solutions help the parties to reduce stress and monies spent in future disputes and therefore provide long-term cost savings to the parties as well as the mental health benefit!
These types of issues are not touched on - much less resolved - through the use of adversarial and contentious litigation. Mediation allows for the exploration of creative solutions that are more tailored to meet the specific needs of the parties than litigation allows for. And having the dispute resolved within weeks with mediation versus months or years with litigation is yet another great benefit!
Sunday, April 15, 2007
Mediation Tips for Attorneys
Although it is the job of the attorneys to promote and protect the interests of their clients, there are certain things attorneys can do to help the mediation process (and to help their own clients) which may differ from the strategies attorneys typically employ in litigation. These are my "tips" for a successful mediation.
Preparing For Mediation: I often see attorneys who spend considerable time preparing their clients for depositions but almost no time preparing their clients for mediation. As attorneys, we are so familiar with mediation and the distinctions between trial, arbitration and mediation, that we often forget that part of the job of the attorney is to "translate" the legal world for our clients and to prepare them for what to expect at each stage of the case, including mediation. Clients need to be prepared for the mediation process, including the environment, the level of formality/informality, who will be present, who will be making decisions, how long the mediation might take, what the role of the attorney is and what the client's role is and how the client should prepare for the mediation.
One of the best ways I know to prepare a client for mediation is to explain how litigation works in the real world. This means explaining that although offers and demands may be exchanged, each side must constantly re-evaluate the merits and challenges of their case during litigation based on new facts or information that comes to light or is viewed in a new light. Each side continually determines the potential value of the case and what the merits and challenges are of the alternatives to settlement. The case value and alternatives are not static - they are constantly changing in often unexpected ways. Trial attorneys understand this phenomenon but we need to be sure our clients understand this as well. The more the client understands the constant re-evaluation required in litigation, the more the client will be thinking realistically about a fair resolution at mediation under the unique circumstances of the case because, just like other proceedings or stages of a case, mediation often results in the discovery of new factual or legal information that significantly impacts the case; attorneys and clients must be prepared for this in order to re-evaluate their case and reach a fair settlement.
This does not mean the client must sacrifice his or her needs or interests in mediation - quite the contrary actually. Clients are frequently "stuck" at a certain mindset or settlement value based on what they have heard from their attorneys (or their friends who are not involved in the case) instead of thinking about their own interests, motivations and needs. The more realistic the attorney is up front about the value of the case and the challenges and costs involved and the constant re-evaluation that is needed, the more prepared the client will be to enter into a fair and reasonable settlement at mediation based on all of the information.
The Mediation Process: Whether your mediation is required by contract or court order or is completely voluntary, the mediation process is different from a court hearing or trial and has unique benefits for your individual client. Your clients are paying not only for the mediator's time but for the mediator's skill and experience in resolving disputes. Trust the instincts of your chosen mediator to do the job for which she or he has been entrusted to perform and to guide the process in a way that satisfies the needs of the parties on multiple levels and allows a settlement to be reached.
The mediator can use all the insights and information the attorney has to offer which can help illuminate the underlying interests of the parties, bridge gaps between the parties and arrive at an agreeable resolution. The more information you can provide your mediator, the more tools the mediator will have to work with. Feel free to talk to the mediator one-on-one with any information you think might be helpful. You can do this before or during the mediation and attorneys should prepare their clients for the possibility of this happening. As a mediator, I always let parties and their clients know that I may use private meetings with each side or just with their attorneys on occasion, and that the confidentiality of these meetings can be enormously productive in helping to get the case resolved.
Think Holistically: Your client came to you not because he or she enjoys litigation (if so, you have larger issues to deal with!). Your client came to you so that you could solve a problem for them. The question for the attorney is whether a proposed settlement is in the best interests of your client. Your client may or may not know what is in his/her best interest and relies on your legal knowledge and recommendations. The best interests of the client are not always met with discussions focused only on money. Although money-focused discussions are often a central discussion point, frequently, it is the non-financial discussions which help seal the deal.
As the attorney, you want what is best for your client and you want a settlement you can feel good about. I want the same thing; the only difference is that I want all parties and their attorneys walking away feeling good about the mediation process and the settlement that was reached based on the unique facts and circumstances of each particular case.
Tuesday, April 10, 2007
Mediation of Transactional "Disputes" - Contract Negotiation
About a quarter of the mediations I conduct are not mediations to resolve litigated disputes but are instead mediations of contract negotiations. In these transactional mediations, there is no actual dispute. In fact, the purpose of the mediation is to prevent an actual dispute from arising, causing the negotiations to break down entirely or to result in litigation.
As a mediator, I am hired to help parties work toward and arrive at agreeable terms and specific language for their contract while preserving the professional and personal relationships of the parties.
As in any mediation or contract negotiation, whether it is for a business or real estate deal, an employment agreement or a prenuptial agreement, one of the purposes of transactional mediation is to help the parties communicate productively. I work to make sure the communications do not devolve the negotiation process into an adversarial contest that damages the relationship of the parties.
One of the ways I do this is by posing some of the most difficult questions to each party myself rather than having the parties appear to be attacking each other by asking the difficult questions necessary in most contract negotiations. Using this method of communication allows me to deflect some of the tension and defensiveness away from the parties and to minimize the adversarialness between the parties which ultimately helps the parties reach a well-thought out and durable agreement.
There is a real sense of team-work in transactional mediations that is not always present in mediated litigation disputes despite the best efforts of the mediator to foster such a sense of working together. Transactional mediation is not just contract negotiation, it is also relationship preservation and, often, improves the parties' ability to communicate productively with each other in the future.
Sunday, April 01, 2007
Mediator Move in Progress....
I am in the process of moving to a new suite of offices in my building. My regular weekly posts will resume shortly and I plan on posting some pictures of the new mediation space I'm so excited about!! Stay tuned.....
Monday, March 12, 2007
Mediation & Arbitration: Keeping Businesses Out of Court
I have pasted the full article below and also provide a link to the electronic article at sfgate.com. The February 14, 2007 article by AllBusiness.com is titled: "How arbitration and mediation can keep businesses out of court."
Litigation is an expensive, frustrating and generally inefficient way to resolve disputes. That's why alternative dispute resolution (ADR) is becoming an increasingly popular means of resolving lawsuits before trial and of avoiding litigation altogether.
ADR includes both arbitration and mediation. Although they are different procedures, their goal is the same: to minimize the expense and delay associated with litigation. Numerous public and private organizations provide both mediation and arbitration services.
Arbitration is an adversary proceeding in which parties present evidence and arguments before a third party (or panel), who then decides the dispute much like a judge would in a trial.
An arbitrator can be a judge but is more often an attorney or expert, depending on the subject matter. Usually, the parties agree on the arbitrator beforehand.
Arbitration can be voluntary, judicially mandated or contractual; and the outcome of an arbitration can be either binding or nonbinding (advisory).
In binding arbitration, the parties agree in advance that the arbitrator's decision or monetary award will be final. It's a substitute for a court proceeding and cannot be reviewed or overturned, except under very limited circumstances.
In nonbinding (advisory) arbitration, the decision is not final, but rather intended to help guide the parties toward settlement.
Many contracts today, including collective bargaining agreements and health care benefit packages, contain provisions that compel binding arbitration of disputes. In negotiating any contract, parties may agree in advance to arbitrate almost any dispute.
In mediation, a third party attempts to facilitate communication and compromise between parties in conflict. Mediation is not a legal proceeding, although it can occur during the course of a lawsuit.
Unlike arbitration, the neutral party's role is not to decide who wins but to bring the parties closer together and help overcome obstacles to settlement. The actual structure and conduct of a mediation is usually much less formal than an arbitration.
While an arbitrator's role is generally passive, a mediator may become aggressively involved in trying to settle a dispute.
Many mediators will meet privately with each side and point out the strengths and weaknesses of their respective positions. The mediator also will typically communicate settlement proposals back and forth and help the parties react to those proposals.
Mediation is almost always voluntary and cannot be imposed on the parties, although some courts may require the parties in a lawsuit to attempt to mediate their dispute before the case goes to trial.
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Using ADR
Cases suitable for arbitration include:
Construction contracts
Commercial contracts
Banking disputes
Intellectual property
Medical malpractice
Employment discrimination
Multiparty disputes
International disputes
Cases involving critical public employees, such as police officers, teachers and firefighters
Cases suitable for mediation include:
Business disputes
Partnership disagreements
Contract issues
Leases
Will contests
Employment issues
Divorce
Nonviolent crime
Negotiating arbitration
If an agreement includes an arbitration clause, negotiate the terms. For example, you might want to provide for three arbitrators instead of one or require that certain rules be followed. You can find details about arbitration and mediation rules and find professionals at the American Arbitration Association (www.adr.org).
AllBusiness.com provides information about products and services for entrepreneurs, small businesses and professionals to start, manage, finance and build a business. Visit www.allbusiness.com.
This article appeared on page C - 4 of the San Francisco Chronicle
Sunday, March 04, 2007
Mediation Styles for Participants to Consider
Mediators acquire many useful tools in learning to put their natural peacemaking and collaboration skills to good use in the field of mediation. One of the tools is the choice of style.
Although there are numerous mediation styles, there are three main ones which most mediators employ, and which many attorneys familiar with mediation are aware of. The three main styles are: Evaluative, Facilitative and Transformative. Each style is employed in different types of disputes and with different types of disputants and most mediators take skills from each of these main styles in each mediation to accomplish various goals in each individual mediation.
Many authors of mediation technique discuss these styles in depth and I will not do that here. I will just provide a brief, broad sketch of each style so that mediation participants, who are unfamiliar with particular mediation styles, can take this basic information and think about what might make the most sense for their own disputes or relationships and to discuss in more detail with their potential mediators.
In "Evaluative Mediation," the mediator hears the cases presented by each side and, without actually making decisions as to who is right or wrong, evaluates the merits of the case, evaluates the likelihood of success for all parties to the dispute if the case has to go to trial, and helps all sides get a better reality test of what the alternative to settlement will be. Evaluative mediators often have backgrounds as trial attorneys or judges and use the skills developed in those arenas to give very useful information to parties who are mediating a case that might otherwise go to trial.
In "Facilitative Mediation," the mediator hears the cases presented by each side and asks questions to get to underlying interests which may not be apparent from the surface disputes. The mediator elicits information as well as creative ideas for resolution from the parties themselves, but focuses on resolving just the dispute at hand. The focus here is on meeting the needs and interests of all parties in a way that results in a win-win for everyone instead of a winning side and a losing side.
In "Transformative Mediation," the focus is on transforming the relationship of the parties or their ability to communicate in a productive manner instead of just solving the immediate dispute. This mediation style is extremely useful in disputes in which there is a continuing relationship between the parties and mediation is being used to solve not just the current dispute but to help prevent future disputes since the parties either have a continuing business relationship or they have children together and must find a way to cooperate in a meaningful way.
This is a broad overview of these three main mediation styles. As a participant to mediation, you may wish to think about how each of these styles may benefit you. You may also see how a little of each of these styles might be even more beneficial. You can discuss these styles and what you wish to accomplish in mediation with your own prospective mediators or in pre-mediation conferences with a chosen mediator. Best of luck to you!
Sunday, February 25, 2007
Information for Students of Mediation
As an alum of UC Hastings, I recently had the privilege of participating in a "Small Firm Table Talk" in which dozens of current law students sit down to chat informally and one-on-one with dozens of solo and smaller firm practitioners. The purpose is to allow law students to explore different fields of law as well as alternatives to jumping into large firms which may not provide the career satisfaction for which many graduates are searching and which many of us have found.
In addition to speaking with students who were interested in the legal fields of employment law and family law (two of my specialties), every student who found his or her way to my table wanted to know all about my mediation practice. Some of the more common questions I received were along these lines: "How did you get started in your mediation practice and what do you recommend I do while I'm in law school to help me become a mediator later?"
One of my suggestions to students was to get involved with one of Hastings' well-respected clinical programs, the "Center for Negotiation and Dispute Resolution" which gives classroom training as well as hands on training with real cases to mediate through the "Mediation Clinic." I also recommended community-based mediation programs and trainings if the Hastings Mediation Clinic was not an option or in addition to that course and fieldwork.
As additional advice for those students, or any other potential student of mediation, I would like to guide you to mediator Vickie Pynchon's always interesting and useful blog "Settle It Now Negotiation Blog." I have pasted a short but helpful excerpt here for potential mediators and provide the link to the full article on "How to Start a Mediation Practice" so you can read more details and advice from Vickie's own experiences.
Here is the excerpt:
MY BUSINESS PLAN
When first asked for my “business plan” by someone for whom planning does not mean picking up Chinese on the way home, I had only five principles at the ready:
1) Be conscious;
2) Be teachable;
3) Be of service;
4) Always say “yes” to a mediation request; and,
5) Be the exception to the rule.
That was it.
Well, and Also, I . . . . . . gave my new business a name (duly registering it with the proper authorities), “bought” it business cards (free at Vista Print) and built it a web-site (with Yahoo’s free web builder).
Then I dove off the cliff by (gasp) quitting my day-job and
sticking out my hand to say “hi, I’m Vickie Pynchon” whether I wanted to or not;
taking every mediation class that intrigued me;
talking passionately about mediation whenever asked;
Wednesday, February 21, 2007
"Mini me" - Fun with Yahoo! Avatars
This morning I am having fun creating a cartoon version of myself using Yahoo! Avatars. Sometimes we need a bit of comic relief. Try it yourself!
Monday, February 19, 2007
Unrepresented Parties in Mediation: Is It A Good Idea?
In my last post I discussed the fact that more and more contracts have "mandatory mediation" clauses requiring that the parties mediate their disputes before arbitration or litigation can be pursued. What this means is that more people are having to decide whether or when to hire an attorney if they are not planning to file a lawsuit right away but will be mediating the case first.
The Question: Is it a good idea to enter mediation without legal representation? The Answer: sometimes yes, sometimes no.
When the dispute involves unrepresented individuals on both sides of the table, there is generally a fairly even balance of power and knowledge. A mediator can work with both unrepresented parties to ensure all of the necessary information has been disclosed and that the agreements reached are inherently fair. This is an example of when legal representation may be unnecessary for a fair result.
When the dispute involves a "sophisticated" company with decades of experience in negotiating deals (think national corporation or real estate broker) on one side and an individual who has little to no experience negotiating such deals or little to no understanding of the extent of his legal rights in the event of a lawsuit, this often results in a serious power imbalance. There is a significant chance that such a power imbalance could only be corrected when the individual has his own attorney to provide advice before, during and/or after the mediation and before any settlement agreement has been signed because the mediator cannot give such legal advice.
Likewise, with two disputing individuals, if only one of the parties is represented, there is a good chance that the same problem of power imbalance may be present. This is because only one side is being told her rights and obligations and possible outcomes in court while the other side is ignorant of the possible remedies she might have. It is likely to be an unfair negotiation which can easily result in an unfair resolution. This might not happen if that party has the same benefit as the other party of legal representation and advice.
Mediators cannot provide legal advice because we are neutrals and not attorneys in our role as mediators. Therefore, the mediator who recognizes a clear power imbalance which cannot be rectified through the open exchange of all necessary information in the dispute or through other means available to mediators (separating parties to defuse aggressive behavior or working to improve the communication skills of the parties, etc.) generally will advise the unrepresented party or the relatively "unsophisticated" individual who is negotiating with a powerful company of the importance of seeking legal representation in that situation. Some mediators may even refuse to continue such a mediation where it is clear such a power imbalance will negatively impact the unrepresented individual.
Some parties come to mediation without attorneys but they have an attorney they are paying on an hourly basis to give advice before the mediation or to review the settlement agreement after the mediation. In fact, it is a requirement I have in divorce mediations that the parties get independent legal advice prior to signing the settlement agreement. This way everyone is assured that the agreements reached and settlement terms agreed to are fair to all parties and their own attorneys. Divorce cases involve specific complexities which, in my mind, require independent counsel's involvement, at least before the agreement is signed. This is not always the case in other civil disputes.
Some mediating parties consult with an attorney throughout the mediation process but don't bring their attorneys to the mediation itself. This can work very well in a case where the legal issues are not too complex and the dispute is more fact-based. The parties may choose to call their attorneys from the mediation and run potential agreements by their attorneys and get legal advice during the mediation in this way. Other parties only consult with an attorney to review the proposed agreement. Sometimes, the extent of an attorney's involvement in mediation just depends on how much money the party was able to scrape together from the change jar to pay for a portion of the mediation and several hours of the attorney's time. The more complex the legal issues or power dynamics, the more it makes sense to get and keep attorneys on board throughout the process.
The flexibility of the mediation process is one of the things I love the most about mediation as a dispute resolution method. Whether or when to bring in independent attorneys depends on the nature of the dispute, the complexity of the issues and possible remedies, the relative sophistication of the parties and their interactions together as well as what the parties themselves are comfortable with and what the mediator sees as a fair negotiation.
Sunday, February 11, 2007
Mediation as First Required Step in Contract Disputes
It is increasingly common to find "mandatory mediation" clauses in contracts. This is true whether the c