Monday, October 26, 2009

Try Something New

I was at the beach last week on Fall Break with my family. We had our canoe and paddled the sound. Then my 11 year old son mused, “Can we take the canoe into the ocean?” My first thought was “no way” and then I thought more about it and came to “why not!” The challenge was figuring out how to get the canoe from the sound to the ocean several blocks away.

We figured that out pretty quick. Just stick it into our CRV, with it sticking out the back and walk with it to the beach. Then my son and I carried it to the shore. And then we headed into the ocean. It was pretty calm so we made it through the breakers and then out into the ocean. On our return we tried to ride the waves in, turned a bit and then capsized and unceremoniously dumped onto the shore. We were fine except for being wet! So we did it again and again and again. On the fourth try we rode all the way in!

In your next mediation try something different. Do something adventurous. Instead of thinking “no way” think “why not!” Give your idea a try. Taking risks as a mediator, with planning and ground work completed, usually leads to opportunity.

Wednesday, October 14, 2009

Mediators Gone Wild !

If you mediate workers' compensation claims in North Carolina (or any type of claim for that matter) - DON'T TESTIFY (#%***!!) about what happened at mediation!

Two recent cases from the North Carolina Industrial Commission spotlight mediators behaving, in my opinion, badly! It's not quite "girls/boys gone wild;" however, we as mediators must protect the integrity of the mediation process, must maintain the confidentiality of the mediation and should follow the rules!!

So, what's this rant about?

In Simpson v Sutton Masonry, IC 569582, 9/9/09, the IC determined whether a mediated settlement agreement and the subsequent compromise settlement agreement included an agreement to pay for certain medical care if the care was not provided by NC State Vocational Rehabilitation. As part of the IC's determination, the mediator testified about his interpretation of the mediated settlement agreement. This is beyond the scope of the mediator role. The parties and their attorneys can provide this information when the NCIC is reviewing an agreement for enforcement. In fact, by NCIC rule, the mediator may only testify as to who was present and, if an agreement was reached and signed, that the agreement was signed in their presence. That's it. No more. Don't do it.

As for the second case. It's even more of a mess.

In Allred v Exceptional Landscapes, Inc., IC 650940, 8/27/09, the IC reviewed whether to approve a mediated settlement agreement and whether the conduct of former counsel and/or the mediator violated the Workers' Compensation Act and/or Rules of the Industrial Commission. Heady stuff indeed. I'm not going to go into details; however, suffice it to say that this is a cautionary tale and squarely highlights the mediator role. Don't do the heavy lifting yourself. Facilitate the work of the participants to enable them to make informed choices about how to proceed.

Enough. I'm back and will start writing on a weekly basis. Happy mediating.