Tuesday, June 24, 2008

New Mediator Standards in the Works

The NC Dispute Resolution Commission approved changes last month to the Standards of Conduct for Mediators. (I've included the full text below and comments.) These changes will be sent to the NC Supreme Court for review and approval in the Fall. On the whole these are not drastic changes; however, mediators should take a close look at III Confidentiality, sections D and E which outline when and how a mediator might report certain conduct of lawyers participating in mediation.

Here's new section D - "The confidentiality provisions set forth in A. and B., above, notwithstanding, a mediator who knows that an attorney participating in the mediation has violated the Rules of Professional Conduct applicable to attorneys licensed in this state by engaging in conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall report the violation. However, a formal complaint shall not be made to the State Bar or the Court under this section unless an informal, oral opinion from the State Bar has been obtained that the conduct in question is a violation of the Rules and that it is required to be reported under Rule 8.3 of the Code of Professional Responsibility. " This is a very high knowledge threshold, i.e., "knows" (as highlighted above) and also includes an intermediate step before any formal reporting.

I encourage mediators to review these proposed changes and offer comments either here and I'll pass them on to the NC DRC or contact the DRC directly.

The strike through and underline represent changes.

STANDARDS OF PROFESSIONAL

CONDUCT FOR MEDIATORS

PREAMBLE

These standards shall apply are intended to instill and promote public confidence in the mediation process and to be a guide to mediator conduct to all mediators who are certified by the North Carolina Dispute Resolution Commission or who are not certified, but are conducting court-ordered mediations in the context of a program or process that is governed by statutes, as amended from time-to-time, which provide for the Commission to regulate the conduct of mediators participating in the program or process. Provided, however, that if there is a specific statutory provision that conflicts with these standards, then the statute shall control. As with other forms of dispute resolution, mediation must be built on public understanding and confidence. Persons serving as mediators are responsible to the parties, the public, and the courts to conduct themselves in a manner which will merit that confidence. These standards apply to all mediators participating in mediated settlement conferences in the State of North Carolina pursuant to NCGS 7A-38.1, NCGS 7A-38.3, NCGS 7A-38.4A, NCGS 7A-38.3B, NCGS 7A-38.3C or who are certified by the NC Dispute Resolution Commission. These Standards shall not apply in instances where a mediator is participating in a mediation program or process which is governed by other statutes, program rules, and/or Standards of Conduct and there is a conflict between these Standards and the statutes, rules, or Standards governing the other program. In such instance, the mediator’s conduct shall be governed by the conflicting statutory provision, rule, or Standard applicable to the program or process in which the mediator is participating.

These standards are intended to instill and promote public confidence in the mediation process and to provide minimum standards for mediator conduct. As with other forms of dispute resolution, mediation must be built upon public understanding and confidence. Persons serving as mediators are responsible to the parties, the public and the courts to conduct themselves in a manner that will merit that confidence. (See Rule VII of the Rules of the North Carolina Supreme Court for the Dispute Resolution Commission.

Mediation is a process in which an impartial person, a mediator, works with disputing parties to help them explore settlement, reconciliation, and understanding among them. In mediation, the primary responsibility for the resolution of a dispute rests with the parties.

The mediator’s role is to facilitate communication and recognition among the parties and to encourage and assist the parties in deciding how and on what terms to resolve the issues in dispute. Among other things, a mediator assists the parties in identifying issues, reducing obstacles to communication, and maximizing the exploration of alternatives. A mediator does not render decisions on the issues in dispute.

It is the mediator’s role to facilitate communication and understanding among the parties and to assist them in reaching an agreement. The mediator should aid the parties in identifying and discussing issues and in exploring options for settlement. The mediator should not, however, render a decision on the issues in dispute. In mediation, the ultimate decision whether and on what terms to resolve the dispute belongs to the parties and the parties alone.

I. Competency: A mediator shall maintain professional competency in mediation skills and, where the mediator lacks the skills necessary for a particular case, shall decline to serve or withdraw from serving.

A. A mediator’s most important qualification is the mediator’s competence in procedural aspects of facilitating the resolution of disputes rather than the mediator’s familiarity with technical knowledge relating to the subject of the dispute. Therefore a mediator shall obtain necessary skills and substantive training appropriate to the mediator’s areas of practice and upgrade those skills on an ongoing basis.

B. If a mediator determines that a lack of technical knowledge impairs or is likely to impair the mediator’s effectiveness, the mediator shall notify the parties and withdraw if requested by any party.

C. Beyond disclosure under the preceding paragraph, a mediator is obligated to exercise his/her judgment as to whether his/her skills or expertise are sufficient to the demands of the case and, if they are not, to decline from serving or to withdraw.

II. Impartiality: A mediator shall, in word and action, maintain impartiality toward the parties and on the issues in dispute.

A. Impartiality means absence of prejudice or bias in word and action. In addition, it means a commitment to aid all parties, as opposed to a single party, in exploring the possibilities for resolution.

B. As early as practical and no later than the beginning of the first session, the mediator shall make full disclosure of any known relationships with the parties or their counsel that may affect or give the appearance of affecting the mediator’s impartiality.

C. The mediator shall decline to serve or shall withdraw from serving if:

(1) a party objects to his/her serving on grounds of lack of impartiality, and after discussion, the party continues to object or

(2) the mediator determines he/she cannot serve impartially.

III. Confidentiality: A mediator shall, subject to exceptions set forth below, maintain the confidentiality of all information obtained within the mediation process.

A. A mediator shall not disclose, directly or indirectly, to any non-participant, any information communicated to the mediator by a participant within the mediation process. A mediator’s tendering a copy of an agreement reached in mediation pursuant to a statute that mandates such a tender shall not be considered to be a violation of this paragraph.

B. A mediator shall not disclose, directly or indirectly, to any non-participant, information communicated to the mediator in confidence by any other participant in the mediation process, unless that participant gives permission to do so. A mediator may encourage a participant to permit disclosure, but absent such permission, the mediator shall not disclose.

C. The confidentiality provisions set forth in A. and B., above, notwithstanding, a mediator shall has discretion to report otherwise confidential conduct or statements made by a participant in preparation for, during, or as a follow-up to mediation in instances in which to a participant, non-participant, law enforcement personnel, or other officials or to give an affidavit, or to testify about such conduct or statements in the following circumstances:

(1) A statute requires or permits a mediator to testify, to give an affidavit, or to tender a copy of any agreement reached in mediation to the official designated by the statute. The mediator is required by statute:

(a) To report information, and

(b) To testify or give an affidavit.

(2) Where pPublic safety is becomes an issue, when:

(i) (a) a party to the mediation has communicated to the mediator a threat of serious bodily harm or death to be inflicted on any person, and the mediator has reason to believe the party has the intent and ability to act on the threat; A participant in the mediation has communicated in the presence of the mediator either a threat of serious bodily harm or death to any person, or a threat of theft of or serious damage to real or personal property, which, in the reasonable belief of the mediator, the participant has the intent and ability to carry out; or

(ii) (b) a party to the mediation has communicated to the mediator a threat of significant damage to real or personal property and the mediator has reason to believe the party has the intent and ability to act on the threat; or A participant in the mediation causes bodily harm or death to any person.

(iii) a party's conduct during the mediation results in direct bodily injury or death to a person.

D. Nothing in this Standard prohibits the use of information obtained in a mediation for instructional purposes, or for the purpose of evaluating or monitoring the performance of a mediator, mediation organization, or dispute resolution program, so long as the parties or the specific circumstances of the parties' controversy are not identified or identifiable. The confidentiality provisions set forth in A. and B., above, notwithstanding, a mediator who knows that an attorney participating in the mediation has violated the Rules of Professional Conduct applicable to attorneys licensed in this state by engaging in conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall report the violation. However, a formal complaint shall not be made to the State Bar or the Court under this section unless an informal, oral opinion from the State Bar has been obtained that the conduct in question is a violation of the Rules and that it is required to be reported under Rule 8.3 of the Code of Professional Responsibility.

E. Nothing in this Standard shall prohibit a mediator from revealing communications or conduct occurring prior to, during, or after a mediation in the event that a party to or a
participant in a mediation has filed a complaint regarding the mediator’s professional conduct, moral character, or fitness to practice as a mediator and the mediator reveals the communication or conduct for the purpose of defending him/herself against the complaint. In making any such disclosures, the mediator should make every effort to protect the confidentiality of non-complaining parties to or participants in the mediation and avoid disclosing the specific circumstances of the parties’ controversy. The mediator may consult with non-complaining parties or witnesses to consider their input regarding disclosures. The confidentiality provisions set forth in A. and B., above, notwithstanding, a mediator may report conduct or statements made by a participant in preparation for, during, or as a follow-up to mediation in the following instances:

(1) A lawyer in a mediation is, in the judgment of the mediator, significantly impaired by the use of alcohol or other substances or by mental or physical illness, or

(2) A lawyer in the mediation displays conduct that the mediator believes to be inappropriate or unprofessional but not unethical, or

(3) A mediator who is licensed in a profession other than the legal profession that imposes requirements on its members to report unprofessional conduct of its members knows that a member of the profession has violated those standards.

F. Conduct reportable under C., D. or E., above, shall be reportable, only as follows:

(1) Conduct reportable under C. (1) shall be reported as directed by the applicable statute.

(2) Conduct reportable under C. (2) shall be reported to an appropriate law enforcement agency and to the Court, if applicable.

(3) Conduct reportable under D. shall be reported to the North Carolina State Bar

or to the Court but only after the State Bar has given an informal, oral opinion that such conduct requires the filing of a complaint with the State Bar.

(4) If the mediator elects to report conduct reportable under E. (1), such conduct shall be reported to the Lawyer Assistance Program of the North Carolina State Bar.

(5) If the mediator elects to report conduct reportable under E. (2), such conduct shall be reported to the Professionalism Support Initiative Program of the Chief Justice’s Commission on Professionalism.

(6) If the mediator elects to report conduct reportable under E. (3), such conduct shall be reported to the licensing organization or society of which the offending person is a member.

G. Nothing in this Standard prohibits the use of information obtained in a mediation for

instructional purposes, or for the purpose of evaluating or monitoring the performance of a mediator, mediation organization, or dispute resolution program, so long as the parties or the specific circumstances of the parties' controversy are not identified or identifiable.

H. Nothing in this Standard shall prohibit a mediator from revealing communications or conduct occurring prior to, during, or after a mediation in the event that a party to or a participant in a mediation has filed a complaint regarding the mediator’s professional conduct, moral character, or fitness to practice as a mediator and the mediator reveals the communication or conduct for the purpose of defending him/herself against the complaint. In making any such disclosures, the mediator should make every effort to protect the confidentiality of non-complaining parties to or participants in the mediation and avoid disclosing the specific circumstances of the parties’ controversy. The mediator may consult with non-complaining parties or witnesses to consider their input regarding disclosures.

OFFICIAL COMMENT

General

Standard III imposes the duty of confidentiality on matters relating to a mediated settlement conference. The Standard, as revised, contains some significant departures from the former version. The revised standard reflects a concerted effort to preserve confidentiality as a guide star of the mediation process while recognizing that there are some instances where there are public policy interests that supersede the need for strict confidentiality.

This Standard should be read in conjunction with other Standards regarding impartiality and the obligation of a mediator to remain neutral and void of bias.

By way of background, the revised Standard emerges from a long, detailed and thoughtful process. One concept was that mediators should have no disclosure obligations, unless a statute requires it, thereby preserving confidentiality of the mediation events as paramount. Another concept was reflected in proposals for mediators to have numerous mandatory disclosure obligations as well as some discretionary ones on the premise that, as an adjunct to the judicial system, mediation has some responsibility to the public and to the court that overrides the confidentiality mandate.

As a result of the discussions and proposals, there emerged a revised Standard that addresses a variety of situations in which a mediator is required to report conduct observed during the course of a mediation. It addresses, also, some situations where reporting is permitted by the Standard. The focus on such topics covers all mediators, not only those who are attorneys. All certified mediators have an obligation to conduct themselves in a manner that upholds the integrity of the mediation process as an adjunct to the state judicial system.

Duty of Confidentiality

Section A relates to communications with persons who are not parties or participants in the mediated settlement conference.

Section B relates to communications with persons who are parties or participants in the mediated settlement conference.

Exceptions to the Duty of Confidentiality

Section C provides mandatory exceptions to the duty of confidentiality in two situations, in each of which the mediator is required to report conduct or statements made in preparation for, during or as a follow-up to mediation.

  • First, the mediator shall make a report in instances where there is a statutory requirement (such as elder care or child abuse) for the mediator to report information, to testify or to give an affidavit or to tender a copy of an agreement reached in mediation. The conduct reportable under statutory authority shall be reported as directed by the applicable statute.
  • Second, the mediator shall make a report in instances where public safety becomes an issue. The reporting obligation arises when a participant in the mediation has communicated in the presence of the mediator either a threat of serious bodily harm or death to any person, or a threat of theft of or serious damage to real or personal property, which, in the reasonable belief of the mediator, the participant has the intent and ability to carry out. The mediator must know from his/her own observation that the threatening communication occurred. Hearing it second-hand is not sufficient. The reporting obligation arises, also, if a participant in the mediation causes bodily harm or death to any person. The conduct reportable under the public safety exception shall be reported to both an appropriate law enforcement agency and to the Court, if the mediation occurs under the auspices of a Court.

Section D intentionally uses the same language as Rule 8.3 of the Rules of Professional Conduct concerning an attorney’s duty to report a violation. The same criteria applicable to Rule 8.3 apply to Standard III. Reportable conduct must be known personally by the mediator to have occurred. The reporting obligation does not arise if information comes to the mediator through others or if the conduct is only suspected to have occurred. To be reportable, the conduct must clearly raise a substantial question as to the lawyer/participant’s honesty, trustworthiness or fitness as a lawyer. Simply stated, if the conduct does not amount to lying, cheating or stealing, there is no obligation to report it. A mediator who is not a lawyer who observes conduct by a lawyer meeting the standards described here must report the conduct, even though the mediator may not be familiar with or subject to the Rules of Professional Conduct. The conduct reportable under the exception applicable to attorneys shall be reported to either the North Carolina State Bar or to the Court, but, as a safeguard against reporting that is not required and as a protection to the mediator against making a claim that is not required by the Rules, the Standard requires that the mediator first seek an informal, oral opinion from the State Bar before making a formal complaint.

Section E. permits, but does not require, mediators to report certain conduct or statements made in preparation for, during or as a follow-up to mediation.

· A mediator may report that a lawyer participating in a mediation is, in the judgment of the mediator, significantly impaired by the use of alcohol or other substances or by mental or physical illness. The conduct reportable under the exception applicable to impaired attorneys shall, if reported, be reported to the Lawyer Assistance Program of the North Carolina State Bar. The Lawyer Assistance Program is itself a confidential program, and information passed to that program will remain confidential there for use only with the professionals involved.

· A mediator may report that a lawyer participating in a mediation has, in the judgment of the mediator, acted in a manner that the mediator believes to be inappropriate or unprofessional but that the conduct does not rise to the level of being unethical. The conduct reportable under this exception shall, if reported, be reported to the Professionalism Support Initiative Program of the Chief Justice’s Commission on Professionalism. The Professionalism Support Initiative Program is itself a confidential program, and information passed to that program will remain confidential there for use only with the professionals involved.

· A mediator who is licensed in a profession other than the legal profession that imposes requirements on its members to report conduct of its members that fails to meet the profession’s standards and who knows that a member of the profession participating in the mediation has violated those standards may report that violation. Approximately ten percent of licensed mediators are not lawyers, and many of them are members of professional organizations or societies that have conduct standards. This provision permits members of such professional organizations or societies to honor their obligations under the applicable codes of conduct without fear of reprisal for having breached Standard III.

Reporting Conduct under the Exceptions - General

The Standard either sets forth to whom a report under the exceptions shall be made or defines how to determine the recipient or the process. In most instances, that will be clear.

When in doubt about to whom a report should be made, a mediator should contact the DRC staff for direction on the matter.

Reporting Conduct under the Exceptions – Section D

A special word is believed to be in order regarding reporting conduct under Section D concerning attorneys.

Information provided by the North Carolina State Bar clearly shows that this provision may present more of a scare factor than it deserves. The standard for the requirement to report conduct is a tough one, hence the requirement that the conduct be known by the mediator to have occurred. Even a strong inference that violative conduct probably occurred is not sufficient to require a report to be made. It takes personal knowledge. There is no intention to make mediators a police force for the State Bar.

Mediators should be mindful that there is a difference between a false statement of material fact or law and statements frequently made in negotiations regarding a party’s intentions and values regarding a claim. The former would be a violation of the Rule 4.1 of the Rules of Professional Responsibility. As Comment [2] of the Comments to Rule 4.1 recognizes, however, the latter would not be a violation. Whether a statement should be regarded as one of fact can depend upon the circumstances.

Should a reporting obligation arise under this exception to the confidentiality requirement, Rule 8.3 of the Rules of Professional Responsibility states that the report goes to the State Bar or to the Court. Standard III requires the mediator as a first step to call the North Carolina State Bar to inquire about the process for reporting unprofessional conduct that might violate the Rules of Professional Responsibility. The mediator should present the scenario anonymously and as a hypothetical question. Then, only if the response indicates that the conduct should be reported, the mediator would provide the details necessary.

Licensed attorneys who already have the obligation to report under Rule 8.3 of the Rules of Professional Responsibility have no additional obligation under this Standard because they may be serving as mediator; the obligation is the same. A lawyer-mediator who makes a report to the State Bar in fulfillment of the obligation that s/he has under the Rules of Professional Responsibility fulfills the obligation to make a report under this Standard.

There is a very real distinction between a “report” required to be made under Standard III and a “complaint” made under the Rules of Professional Responsibility. The Standard requires that the first step be the seeking of an informal, oral opinion from the State Bar. If the informal opinion received is to the effect that no further action need be taken, the reporting obligation under Standard III has been met. This first step is designed to be a safeguard in two respects. In those circumstances, the lawyer whose conduct was in question is not faced with a disciplinary investigation, and the attorney-mediator has the comfort of knowing that s/he has not failed to report a violation. All confidences are maintained by this process. If, however, the informal opinion received is to the effect that the conduct reported is a violation of the Rules of Professional Responsibility that requires a complaint against the lawyer to be made, the attorney-mediator shall file the complaint with the State Bar, and doing so fulfills the obligations undertaken both under Standard III and Rule 8.3.

IV. Consent: A mediator shall make reasonable efforts to ensure that each party understands the mediation process, the role of the mediator, and the party’s options within the process.

A. A mediator shall discuss with the participants the rules and procedures pertaining to the mediation process and shall inform the parties of such matters as applicable rules require. A mediator shall also inform the parties of the following:

(1) that mediation is private;

(2) that mediation is informal;

(3) that mediation is confidential to the extent provided by law;

(4) that mediation is voluntary, meaning that the parties do not have to negotiate during the process nor make or accept any offer at any time;

(5) the mediator’s role; and

(6) what fees, if any, will be charged by the mediator for his/her services.

B. A mediator shall not exert undue pressure on a participant, whether to participate in mediation or to accept a settlement; nevertheless, a mediator may and shall encourage parties to consider both the benefits of participation and settlement and the costs of withdrawal and impasse.

C. Where a party appears to be acting under undue influence, or without fully comprehending the process, issues, or options for settlement, a mediator shall explore these matters with the party and assist the party in making freely chosen and informed decisions.

C. If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator shall explore the circumstances and potential accommodations, modifications or adjustments that would facilitate the party’s capacity to comprehend, participate and exercise self-determination. If the mediator then determines that the party cannot meaningfully participate in the mediation, the mediator shall recess or discontinue the mediation. Before discontinuing the mediation, the mediator shall consider the context and circumstance of the mediation, including subject matter of the dispute, availability of support persons for the party and whether the party is represented by counsel.

D. If after exploration the mediator concludes that a party is acting under undue influence or is unable to fully comprehend the process, issues or options for settlement, the mediator shall discontinue the mediation.

E.D In appropriate circumstances, a mediator shall encourage inform the parties to seek of the importance of seeking legal, financial, tax or other professional advice before, during or after the mediation process. A mediator shall explain generally to pro se parties that there may be risks in proceeding without independent counsel or other professional advisors.

V. Self Determination: A mediator shall respect and encourage self-determination by the parties in their decision whether, and on what terms, to resolve their dispute, and shall refrain from being directive and judgmental regarding the issues in dispute and options for settlement.

A. A mediator is obligated to leave to the parties full responsibility for deciding whether and on what terms to resolve their dispute. He/She may assist them in making informed and thoughtful decisions, but shall not impose his/her judgment or opinions for those of the parties concerning any aspect of the mediation.

B. A mediator may raise questions for the participants to consider regarding their perceptions of the dispute as well as the acceptability of proposed options for settlement and their impact on third parties. Furthermore, a mediator may suggest for consideration options for settlement in addition to those conceived of by the parties themselves.

C. A mediator shall not impose his/her opinion about the merits of the dispute or about the acceptability of any proposed option for settlement. A mediator should resist giving his/her opinions about the dispute and options for settlement even when he/she is requested to do so by a party or attorney. Instead, a mediator should help that party utilize his/her own resources to evaluate the dispute and the options for settlement.

This section prohibits imposing one’s opinions, advice and/or counsel upon a party or attorney. It does not prohibit the mediator’s expression of an opinion as a last resort to a party or attorney who requests it and the mediator has already helped that party utilize his/her own resources to evaluate the dispute and options.

D. Subject to Standard IV. E. above, if a party to a mediation declines to consult an independent counsel or expert after the mediator has raised this option, the mediator shall permit the mediation to go forward according to the parties’ wishes.

E. If, in the mediator’s judgment, the integrity of the process has been compromised by, for example, inability or unwillingness of a party to participate meaningfully, inequality of bargaining power or ability, unfairness resulting from non-disclosure or fraud by a participant, or other circumstance likely to lead to a grossly unjust result, the mediator shall inform the parties of the mediator’s concern. Consistent with the confidentiality required in Standard III, the mediator may discuss with the parties the source of the concern. The mediator may choose to discontinue the mediation in such circumstances but shall not violate the obligation of confidentiality.

VI. Separation of Mediation from Legal and Other Professional Advice: A mediator shall limit himself or herself solely to the role of mediator, and shall not give legal or other professional advice during the mediation.

A mediator may, provide information that the mediator in areas where he/she is qualified by training and or experience to provide, raise questions regarding the only if the mediator can do so consistent with these Standards. information presented by the parties in the mediation session. However, the mediator shall not provide legal or other professional advice. Mediators may respond to a party’s request for an opinion on the merits of the case or suitability of settlement proposals only in accordance with Section V.C. above.

VII. Conflicts of Interest: A mediator shall not allow any personal interest to interfere with the primary obligation to impartially serve the parties to the dispute.

A. The mediator shall place the interests of the parties above the interests of any court or agency which has referred the case, if such interests are in conflict.

B. Where a party is represented or advised by a professional advocate or counselor, the mediator shall place the interests of the party over his/her own interest in maintaining cordial relations with the professional, if such interests are in conflict.

C. A mediator who is a lawyer, therapist or other professional and the mediator’s professional partner or co-shareholders shall not advise, counsel or represent any of the parties in future matters concerning the subject of the dispute, an action closely related to the dispute, or an out growth of the dispute when the mediator or his/her staff has engaged in substantive conversations with any party to the dispute. Substantive conversations are those that go beyond discussion of the general issues in dispute, the identity of parties or participants and scheduling or administrative issues. Any disclosure that a party might expect the mediator to hold confidential pursuant to Standard III is a substantive conversation.

A mediator who is a lawyer, therapist or other professional may not mediate the dispute when the mediator or the mediator’s professional partners or co-shareholders has advised, counseled or represented any of the parties in any matter concerning the subject of the dispute, an action closely related to the dispute, a preceding issue in the dispute or an out growth of the dispute.

D. A mediator shall not charge a contingent fee or a fee based on the outcome of the mediation.

E. A mediator shall not use information obtained or relationships formed during a mediation for personal gain or advantage.

F. A mediator shall not knowingly contract for mediation services which cannot be delivered or completed as directed by a court or in a timely manner.

G. A mediator shall not prolong a mediation for the purpose of charging a higher fee.

H. A mediator shall not give or receive any commission, rebate, or other monetary or non-monetary form of consideration from a party or representative of a party in return for referral or expectation of referral of clients for mediation services.

VIII. Protecting the Integrity of the Mediation Process. A mediator shall encourage mutual respect between the parties, and shall take reasonable steps, subject to the principle of self-determination, to limit abuses of the mediation process.

A. A mediator shall make reasonable efforts to ensure a balanced discussion and to prevent manipulation or intimidation by either party and to ensure that each party understands and respects the concerns and position of the other even if they cannot agree.

B. When a mediator discovers an intentional abuse of the process, such as nondisclosure of material information or fraud, the mediator shall encourage the abusing party to alter the conduct in question. The mediator is not obligated to reveal the conduct to the other party, (and subject to Standard V. D. above) nor to discontinue the mediation, but may discontinue without violating the obligation of confidentiality.

If a mediator believes that the actions of a participant, including those of the mediator, jeopardizes conducting a mediation consistent with these Standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

Wednesday, June 18, 2008

Summer Reading !

What’s on your reading list this summer? Of course, you have the required mystery or spy thriller to take to the beach, but what are you reading to enhance your work as a mediator? (By the way, you can report such reading to the NC DRC as part of your CME reporting!) So, what’s it going to be? Here are a few classics for your consideration.

The Promise of Mediation, Bush & Folger, 2nd edition, Jossey Bass 2005
You will be surprised that there are aspects and techniques of transformative mediation that you will find useful in mediating most any type of case – even a litigated matter.

Getting to Yes, Fisher & Ury, 2nd edition, Penguin Books 1991
I know this is the old stand by, but when did you read it last? It’s a quick read and may offer you some insights you missed in your first reading long ago.

Frogs into Princes, Bandler & Grinder, Real People Press, 1970
This provides great insight and a glimpse into the foundational concepts of neurolinguistic programming. The book is actually a transcript of a training program including descriptions and discussions of various exercises.

I hear what you say, but what are you telling me? The strategic use of nonverbal communication in mediation, Madonik, Jossey Bass 2001
This is another NLP book that offers concepts to build rapport with mediation participants. I will warn you that the first part of the book is slow going, but picks up considerably when reviewing the application of concepts to mediation.

Thursday, June 12, 2008

Don't Get Mad - Stay Neutral !

I’ve had a few recent conversations that cause me concern on the issue of mediator neutrality. In a workers’ compensation mediation, it seemed that negotiations were moving right along, an agreement was reached and then, while drafting the agreement, the defendant wanted a credit for payments made under a long term disability plan while previously they said no credit was to be taken. This “change” made the claimant’s counsel mad and, apparently, the mediator got mad about it too and shared anger with the employer and its counsel. In fact, the mediator got so mad that the mediation ended abruptly at impasse.

So, why am I concerned? While we mediators certainly do everything in our ability to help participants reach an agreement, sometimes things change when we least expect it and in a manner that creates strong feelings. I believe that for us as mediators, there is no room to get mad at one side or the other. Even when they do things that make the participants mad ! We are supposed to stay “neutral” and to not show bias. If we as mediators react with anger, we are no longer neutral, we are showing bias and we can no longer be effective as a mediator.

These thoughts are also supported by an NC DRC Advisory Opinion from last year (8/10/07 ) which admonished a mediator for moving away from neutrality by confronting counsel at mediation. In that situation, the mediator felt that counsel was not being truthful and a confrontation ensued. The opinion states: “A mediator should not compromise his/her neutrality by overtly accusing a party of being untruthful during mediation or by using language tantamount to such an accusation. A mediator should not confront a party in a hostile or abusive manner. Such actions compromise the mediator’s neutrality. A mediator should not use profane language during mediation even if the parties or their lawyers are using such language.” Here’s the full opinion.

My point is that even if you are mad on the inside, you can’t show it – you have to roll up your sleeves and figure out how to help get the agreement put back together. Thus, mediators, don't get mad - get to work!


Monday, June 9, 2008

Summer Mediation Education

If you’re looking for mediation education opportunities this summer, consider the programs offered by the Global Negotiation Insight Initiative. I attended a seminar, the Beyond Yes Dialogue led by Erica Ariel Fox and Mark Thurston, in March 2007 and was asked in that dialogue to consider in new ways the notion of conflict and my role as a mediator. Erica and Mark are both gifted trainers and I’ve also had a chance to attend a conference program offered by Ken Cloke. You can’t go wrong with either of these programs. Let me know if you go!

Here’s info from the Global Negotiation Insight Initiative website.


The Summer Learning Forum of the Global Negotiation Insight Initiative

Omega website

June 29, 2008 - July 4, 2008 Rhinebeck Campus: Rhinebeck, NY (US) Tuition: $1,250 (does not include accommodations or commuter fee) Course: SM08-2405-391 Tuition discounts are not available. Continuing education credits available. Formerly hosted at the Harvard Negotiation Insight Initiative at the Program on Negotiation at Harvard Law School, these two extraordinary programs guide us in the art of negotiation in a variety of settings, from our personal lives to professional, social, legal, economic, and political settings. Both sessions are led by internationally acclaimed faculty.

Upon completion, participants will be able to:

  • Define negotiation and recognize its pervasiveness in daily life
  • Classify common patterns in negotiation and explain why people often get stuck
  • Analyze their general conflict tendencies in light of the negotiation framework
  • Evaluate their own role in conflicts as they take place and design a more constructive way to behave
  • Empathize with people who have different negotiation styles from their own
  • Advocate for their own interests and needs in a productive way
  • Listen effectively to others
  • Collaborate with others to solve problems together
  • Formulate action plans to improve their skills after the workshop

Choose one of the two tracks at time of registration:

Track One Beyond Yes™: Negotiation Mastery From the Inside Out.

The Beyond Yes™ process, originated at the Harvard Negotiation Insight Initiative, moves beyond reason and emotion to access a deeper wisdom inside each of us. This program helps us build personal mastery in negotiation both at work and at home. We explore together the interface of "being" and "doing" so we can use clear insight and skillful means in our professional and personal lives.

Faculty

Erica Ariel Fox teaches negotiation at Harvard Law School and is the founder of the Harvard Negotiation Insight Initiative. Recognized as a pioneer for integrating great wisdom traditions and spiritual practices into the negotiation and conflict field, she works with business and public sector leaders around the world as a partner of Mobius Executive Leadership.

Mark Thornton
has studied insight traditions from a number of wisdom masters for the past 25 years and applies these practices in everyday business situations. Author of Meditation in a New York Minute: Super Calm for the Super Busy, Thornton teaches corporate leaders meditation practices to enhance performance and deepen their satisfaction on the job and in their personal life.

Track Two Mediating Dangerously: Building Conflict Skills for Difficult Times

Every conflict takes place not only between individuals, but also within a context, culture, and environment. This workshop focuses on applying conflict resolution techniques to difficult social, economic, political, legal, and organizational issues. We learn tools and techniques that every professional can use to facilitate breakthroughs in conflict. We also explore avenues for expressing global citizenship in these difficult and confusing times.

Faculty

Kenneth Cloke, director of the Center for Dispute Resolution, is a mediator, arbitrator, consultant, and trainer specializing in resolving multiparty conflicts and designing conflict resolution system for organizations. He is author of several books, including Mediating Dangerously: The Frontiers of Conflict Resolution; Resolving Conflicts at Work: Eight Strategies for Everyone on the Job; and Resolving Personal and Organizational Conflicts: Stories of Transformation and Forgiveness.

Monday, June 2, 2008

Mediator Pro Bono Project

The North Carolina Dispute Resolution Commission (DRC) recently issued an Advisory Opinion concerning the formation of a panel of mediators by the North Carolina Bar Association Dispute Resolution Section (DRS) for pro bono services for clients of North Carolina Legal Aid. Here's a link to the opinion - DRC Advisory Opinion.

This is a laudable project for the DRS. Additionally, the disclosure requirements adopted by the DRC opinion appear designed to maintain mediator neutrality while allowing mediator discretion as to fees for the “other side.” At the same time, mediators should carefully consider how and on what basis they will charge the “other side” in a pro bono case. While this is clearly stated and a process in place as set by the mediated settlement conference rules, i.e., a party may petition for relief from the mediation fee through the Court, the Advisory Opinion allows that each mediator may handle fee payment from the “other side” on a case by case basis.

As the DRS moves forward with this project, perhaps it should consider incorporating a “standard” approach to address fees with the “other side” in its pro bono project. Creating uniformity and consistency would provide mediators with clear direction and keep the mediator firmly in the middle of the process and not in the middle of the mediation fee!