Friday, April 25, 2008

Mediation Conferences

This spring is a great time to be a North Carolina
mediator in search of a local mediation conference.

The North Carolina Bar Association recently held the Dispute Resolution Section Annual meeting with a crowd of over 100 attendees. They learned of proposed Superior Court Mediation rule changes, case updates, international mediation, neuro linguistic programing and had a chance to discuss case scenarios with colleagues. In the group discussion on family financial mediation, the participants had a lively discussion about whether to meet with everyone together to start the mediation or start in separate caucuses. As you can imagine, there are pros and cons to each. The program received high marks in its evaluations and the program planners (of which I was one) hope that all in attendance learned something new that they could add to their dispute resolution tool box.

And, if you want more, check out New Horizons in Conflict Resolution on May 2 and 3. This conference is sponsored by the Mediation Network of North Carolina in collaboration with the North Carolina Central University School of Law Dispute Resolution Institute. It is being hosted at the NCCU Law School in Durham and promises to be an interesting discussion of current projects and ideas for all mediators and particularly for those with ties to the many North Carolina community dispute settlement centers. The program begins on Friday afternoon at 1:00 pm and concludes on Saturday afternoon.

If you attended either program send me a post with any comments.

Wednesday, April 16, 2008

Good Faith in Mediation ?

A recent business court decision is one to watch for North Carolina mediators. In Harco National Insurance Co. v Grant Thornton, LLP, Judge Ben Tennille ordered that “the parties are required to engage in mediation in good faith.” Discovery was the issue in Harco with the Court explaining that accurate information was needed about insurance coverage in order to allow for “realistic” settlement negotiations.

In Harco, the plaintiff sought policy information prior to mediation and the defendant refused. Plaintiff filed a motion to compel. In my first reading of the case, I considered that Judge Tennile was using his “plenary power” as the Judge to order “good faith” negotiations. However, his specific reference to “engage in mediation in good faith” is troubling because there is no such requirement in the enabling legislation nor in the Court rules for mediation.

I was part of the North Carolina Bar Association committee that drafted the legislation and initial court rules for the Superior Court mediation program in the early 1990’s. At that time, we looked closely at States with mediation programs, including Florida. Florida started mandatory mediation in the late 1980’s and some judges had ordered participants to “negotiate in good faith at mediation” which was contrary to the mediation rules and, as a result, several second generation lawsuits made their way through the Florida Courts. We decided not to include a “good faith” requirement in the statue or rules and to instead focus on attendance requirements. We believed that with the right people attending, the mediation process would do its work and the results would follow.

While in mediation I often hear counsel say, “they are not negotiating in the good faith,” I usually reply that “good faith” depends on which chair you are sitting in. Participants do not have to settle their case in mediation and do not even have to make an offer or counter offer; however, the process works and usually there is an effort made to get the case settled. Today, after almost 17 years of court mediation experience it seems clear that the program as devised works. Over 50% of Superior Court mediations settle at mediation and many more settle after the mediation and before trial. We don’t have second generation litigation as to “good faith” in mediation and only a few cases have made it to our appellate courts concerning the enforcement of mediated settlement agreements. We did not want to second guess mediation participants around “good faith negotiation” in 1991 and we should not do so now.

Tuesday, April 8, 2008

Connections Are Building Blocks

We are all about connectivity in our information age. It’s all very direct with cell phones, Blackberry, Palm, Bluetooth wireless, and the list goes on. Now, this type of connectivity is quite important; however, I’m thinking of a different kind of connectivity as it relates to conflict resolution and the work of a mediator.

Let me ask you to think of connectivity in terms of connections with and between people.

After 25 years of mediating a range of situations, I have seen, felt and heard again and again that resolving a dispute is about people making connections. As conflict resolution professionals (mediators) we sometimes get too focused on solving the problem and do not always take or make time to seek out connections.

Why should you seek connections? As mediator, you build relationships to build resolutions. This is so because when people make connections they can then put themselves in the shoes of the other person or group and this perspective shift, this empathy (however small to start), can create tremendous opportunity to resolve conflict.

When people can think about the conflict from the other person’s perspective, even if it’s just a little view, they can become more flexible in their own thinking and in their willingness to work toward resolution. These connections can help shift people from “you” versus “me” to “us” versus “the problem.”

One simple method to make connections in a conflict, particularly one where people may be meeting face to face for the first time, is to find out about the people participating in the mediation. Consider asking folks where they are from or about their families. Who are they routing for in the NCAA Tournament? Just about everyone will tell you something about themselves if you ask in an open and curious manner.

And, when people on the “opposite” sides of a conflict find something in common (or even an opposite). They both came from a small town. They have a 10 year old who likes soccer. One cheers for UNC and the other for the Duke. They make a connection. While these are small connections, they can nonetheless help move matters forward as the mediation progresses. These small connections can allow for larger ones as participants consider their options. Connections are the building blocks of conflict resolution.

So, next time you are mediating or in a conflict – think “connectivity.”