Keeping an Open Mind in Mediation

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

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

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

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

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

Mediation absolves Carrbaro Alderman - UNC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Crafting an Enforceable Settlement Agreement

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

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

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

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

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

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

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

International IP Mediation

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

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

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

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

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

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

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

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

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

Heated Mediation

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

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

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

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

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

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

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

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

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

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

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

Mediation for Happy Condominium Living

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

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

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

A few highlights from the article:

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

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

Mediation at Wikipedia

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

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

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

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

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

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

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

Divorce Mediation & Whether to Divide It All Down The Middle

(Photo from Flickr)

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

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

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

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

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

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

Everyone Remain Calm Part II

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

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

Everyone Remain Calm

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

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

A Win-Win Solution In Mediation & Politics

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

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

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

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

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

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

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

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

Mediation in the Entertainment World

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

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

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

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

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

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

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

Personal Injury Mediation

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

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

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

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

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

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

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

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

Intellectual Property Disputes and ADR

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

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

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

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

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

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

"Are Pre-Mediation Talks with Mediator OK?"

Answer: Yes.

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

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

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

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

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

Mediator Philosophies On Being "Green"

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

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

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

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

Recommendations for Mediators

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

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

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

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

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

"Does Mediation Forfeit My Right to Trial?"

Answer: No.

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

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

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

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

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

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