Showing posts with label Civil Mediation. Show all posts
Showing posts with label Civil Mediation. Show all posts

Wednesday, May 12, 2010

When there's not enough time in the day...

....something needs to give. Having not posted an article since December, it's safe to assume that posting blog articles has been one of the things I had to put aside in order to meet all my other obligations.

I realize I am far from alone in this dilemma; we all have too much to do and not enough hours in the day to get it all done. And good luck trying to have a balanced life when children, added work responsibilities and other demands eat up what's left of our time!

I feel a huge sense of responsibility for the cases I work on with my clients. I like to think that is one of the things that sets me apart from some other attorneys or mediators since I take my work (but not myself!) very seriously and want to give 100% to each and every client I come into contact with. And I want to provide information to others (via this blog, for example) who are not sure where to start whether they are planning to be married and want guidance with a mediated premarital agreement or whether they are trying to find a neutral mediator to help get them through the difficulty of a divorce or custody matter.

And although I'd like to post articles more frequently, I have to weigh what needs to be done and how much time I have in which to accomplish it. I generally decide that with the limited time I have when I'm not in mediations (with two in one day, there's not much left of me!), I need to use that time to get thoughtful and comprehensive agreements out to clients and complete their cases as promised.
Since the purpose I have in working as a full-time mediator is to help as many people as I can with the highest level of quality and professionalism, I have to resign myself to the fact that I just can't post as much as I'd like. I'd better get back to work now, but I will continue to post when possible!

Monday, October 26, 2009

Mediators With "Issues"

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.

Tuesday, September 22, 2009

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, 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.

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."

Thursday, July 31, 2008

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.

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 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:


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.


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.


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 or 407-420-6269.

Tuesday, July 08, 2008

Resolving Workplace Conflicts through Mediation

The San Francisco Chronicle ran an informative and timely piece this Sunday on the benefits of mediation to resolve conflicts in the workplace. This is timely given the difficult economy we are facing and a resulting lack of job security for most of us which might prevent employees from speaking out about conflicts that affect their work.

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.

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 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 / Used with permission.)

Doctor-lawyer project tackles malpractice
By Stacey Burling


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."

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 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.

Sunday, November 11, 2007

"Trading Dispute? Try Mediation" - WSJ

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

Trading Dispute? Try Mediation.
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.

Saturday, October 27, 2007

Keeping an Open Mind in Mediation

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

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

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

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

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

Mediation absolves Carrbaro Alderman - UNC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Contact the City Editor at
(Link to article here)