North Carolina Mediator

That's My Bottom Line !

2012-01-10T10:27:00.000-05:00

I’ve heard that statement many times in mediation and so have you. What does it mean and how should you react?

At a recent mediation, defense counsel in private caucus after exchanging several proposals, said that’s our bottom line and presented a final figure of $20,000. Plaintiff’s last figure was $40,000, but I knew from talking with plaintiff that they wanted to get the case settled and would be more flexible, but that $20,000 was not going to do it. I also thought, but did not know, that the defense would pay additional funds to get the case settled. So, I kept working the mediation process, exploring what came next if we stopped and kept folks talking. About 45 minutes later, the case settled for $27,500.

Thus, my approach is to accept the “bottom line” statement as a beginning point rather than the end. I’ve come to this conclusion after hearing the phrase and then, as noted above, folks are willing to pay more or accept less to settle the case. Thus, as many statements in a mediated negotiation, the mediator must take all with an open mind.

My point to you as mediator is to keep exploring options even when people make this statement. If you are the advocate, rethink your use of this statement because if you say “bottom line” and don’t really mean it, but the mediator believes you, then you are done and the mediation will stop. Find another way to firmly state your proposal without closing the door to further discussion. Of course, there does come a time when you are done – when you’ve made your best proposal – and that’s fine. I usually find this point after exploring a proposal three times and being told no. That means folks are truly at their bottom line.

I once heard a mediator describe “bottom line” as a line in the sand of a desert. It’s there and it’s real and then a wind can come up and blow it away.

Negotiaion / Mediation Bracketing

2011-05-26T09:26:00.000-04:00

I’ve been thinking about brackets since March Madness and I thought that with the tournament complete, then that would be that. However, brackets keep coming up in mediation after mediation. It’s a tool that I sometimes use and I’m finding mediation participants know about them too and suggest them as well. I mediate litigated cases including workers’ compensation and personal injury claims. We have mandatory mediation in North Carolina that requires certain people attend; however, no negotiation or settlement offers/counter offers are required. The idea is to get the decision makers together with a mediator and then to allow free choice about how to proceed. Now back to brackets.

Let me explain bracketing in negotiation/mediation in context. It’s a tool that I’ll use when things seem to be getting bogged down, when we are in what I call the negotiation phase of mediation, i.e., actively making proposals and counter proposals to resolve a dispute, and the progress is slowing or participants are making very small incremental steps. This slow down usually occurs when folks have very different public evaluations of a dispute which usually translate into the numbers that are discussed. And when folks perceive a large distance in the numbers, they often get hesitant about making significant moves. Here’s a recent example from a personal injury claim. Plaintiff made an initial demand of 155,000, defense responded with 20,000, then a counter at 150,000 and 24,000, then 147,500 and 25,000 - things were not going very far nor very fast. People were getting frustrated at the pace.

At this point I asked Plaintiff (counsel and client) if they wanted to use a bracket to reframe the negotiation. The idea is to create new numbers to recharge the negotiation. Here’s how it worked in this case. Plaintiff officially countered with 146,500 and said they would move to 125,000 if Defense moved to 42,000 and then it would be back to Plaintiff. This was rejected by Defendant; however, she proposed a revised bracket. 100,000 - 30,000. This was countered by Plaintiff - 125,000 - 30,000. Defendant rejected and proposed 90,000 - 35,000. Note that during these exchanges participants are continuing to evaluate their claim and are in active discussions with the mediator (me) about aspects of their claim, what their future choices might be, what are the risks and opportunities of not settling the claim versus settling.

As a result, Plaintiff accepted the 90,000 - 35,000 bracket proposed by Defendant. Then we started moving. Defendant offered 40,000, Plaintiff 85,000, then Defendant 45,000, then Plaintiff 80,000, then defendant 50,000, then plaintiff 75,000. With the bracketing and ensuing discussions the participants shifted from 146,500 - 25,000, to 75,000 - 50,000. Things slowed again as both participants wanted to continue negotiating (the spread from 75,000 - 50,000 was likely in the settlement zone), but also didn’t want to over extend themselves. It took additional work from all and the claim eventually settled for 62,000.

The bracketing discussion allows participants to share information about what they would do if a different offer was in front of them. Since information is a large part of the currency of negotiations, any such discussions help move matters forward. And when things are slowing down or getting stuck, using a bracket to reframe the negotiation can often smooth the way.

Let me know about your brackets - did you pick Connecticut?

What Would Kate Do?!

2011-02-24T14:34:00.000-05:00

Kate, Kate, Kate – What were you thinking?! Like all reflective mediator practitioners, I’ve been watching (studying) the new USA Network drama – Fairly Legal – to learn new mediation skills from the lead and all star mediator Kate Reed. In the first few episodes we’ve learned that mediation is about a win-win resolution, that the mediator is impartial, and that the mediator’s job is to learn about the problem and then fix it. And that the mediator can do just about whatever they want to get the case/dispute/conflict settled. Anything goes for ratings!

Some of Kate’s mediation skills/language rings true. She says “win-win” (I call this “all win”), the mediator is impartial and the idea of the mediator helping get matters resolved. However, for me the operative word is “helping.” Mediators don’t have the power of a decision maker and can’t generally come up with a better resolution than that of participants. In fact, that’s what mediation is supposed to be about – the mediator helping, supporting, encouraging, etc., participants to come up with their own ideas for resolving the dispute.

I’m all for the mediator being active in helping participants figure out how to resolve their conflict/dispute; however, I don’t consider the mediator role as the “fixer” like Kate. I certainly do all I can to assist folks and I do want mediations I conduct to reach a mutually agreeable resolution yet, if I’ve run a quality process, then I’ve been successful. After all, I can’t force people to settle/resolve their dispute.

I also want Kate to "own" her mediation process. Just about every mediator I know starts the mediation with some type of introduction, some type of mediator opening, but Kate just walks in the conference room, people start talking and even swinging punches! It might add to the drama, but it sure takes away from the power of mediation.

So, I’ll keep watching Kate and try to add to my mediation skills. Maybe I need some high heels for smashing watches? Or perhaps not! Oh well, here’s hoping we get more mediation process from Kate and the folks at USA network.

Multitasking

2011-01-10T11:30:00.000-05:00

I recently heard an interview of Matt Richtel by Terry Gross (NPR Fresh Air) discussing our brains in the digital age. Richtel is an award-winning New York Times writer and he has written about how we deal with information in today's world of smart phones, iPad's, and so on. The concept that intrigued me as a mediator was his discussion and explanation concerning “multitasking.” According to the science, Richtel explained that in reality our brain can only process one item, one piece of information at a time. Thus, when we are “multitasking,” we are in reality switching from one activity to another at a very high rate of speed. And, Richtel notes that when we switch back and forth quickly, we do not often perform both tasks at a high level. Instead, both tasks are reduced in excellence because of the quick switching.

As a mediator I am often listening to one participant in mediation and also considering what to say or do next. Sometimes when I'm listening to one participant I also want to check/gauge the reaction of other participants and I will glance across the room with this in mind. Additionally, in the middle of mediation, I often consider where we are at a structural stage level. Are we still acquiring information or are we seeking to generate alternatives for resolution? Are we in the problem space of the past or the solution space focused on the future?

If you had asked me about these mediator activities before hearing the Richtel interview I would've said that I was effectively “multitasking.” Now, however, it appears that I am switching back and forth between various activities rather than holding both or all of them in my brain at once. Having this knowledge, that our brain can only process one item at a time, suggests that I should pay more attention to each item and do each item well and then move on to the next. This might mean slowing down a bit during the mediation process at times when my full attention on one participant is necessary. Then, once I've listened deeply, then I can take a moment to consider next steps rather than thinking about next steps while trying to listen well.

Tell a Story !

2010-12-17T14:41:00.000-05:00

I was reminded at a recent mediation that telling a story is always better than reciting the facts. And, people will listen to a story - not facts. I was in a litigated case mediation and plaintiff's counsel told what happened and went through the medical history, all of which is needed; however, it was more a recitation and not a story to be told. Who was the claimant? How had the injury affected them on both the personal and claim level? Was there anything compelling that would help tip a decision maker to your viewpoint? These were the items longed to hear, but did not. I did a quick summary and counsel did let their client talk and this was helpful to get some sense of them and to hear their concerns. Plaintiff spoke with strong emotion about their injuries. I thanked them for their comments and then asked for input from opposing counsel before asking any follow up questions (I like to hold my questions until everyone has had a chance to talk.).

Then opposing counsel began what I'll call an "opposing" recitation that sought to refute various facts and medical care issues. It was an equally dry response and did not connect or reach the Plaintiff. Many experienced counsel do an excellent job of weaving a story on either side of a case. There are many defense counsel who can both genuinely apologize for someone being hurt and present an opposing legal argument. They connect with people and people listen to them. They don't always agree, but they listen.

So next time you are representing someone in mediation, tell a story!

Ground Rules, Guidelines or Nothing At All ?

2010-11-09T09:23:00.000-05:00

This Fall I am again teaching a Mediation Theory and Practice course in the UNC Greensboro Conflict Studies and Dispute Resolution Program. When we consider the mediator opening, i.e., how the mediator begins the session, we have some lively discussion around whether you as mediator want ground rules or guidelines for how participants will interact. Do you offer something in the form of a rule like - one person speaks at a time, no interruptions, etc. Or do you offer a more generalized guideline like - let's have a civil and respectful discussion. Or do you not say anything about how you will interact?

Each option has merit and as I've taught my students, there is generally no "right" or "wrong" instead it's about how you want to structure and guide the session. Do you want to start with a more controlled interaction or do you want to leave things more open? This topic came up at a recent mediation education program and one speaker noted that they did not offer any ground rules or guidelines at mediation. Rather, this mediator started from the premise that participants could communicate appropriately and would only step in if it seemed needed. This was mediation in litigated cases with attorneys and claims professionals present. Would this work in mediation with strong conflicting emotions present? I'm not sure of the answer; rather I'll ask you the question? What sort of ground rules or guidelines do you use in mediation and why?

Softball 101

2010-07-28T10:32:00.000-04:00

I handled a mediation last month that reminded me how folks can sometimes lose sight of the power of the mediation process.

The mediation was in a litigated case and when I met with Plaintiff's counsel and client in private caucus I asked questions about the case. I use questions to help client's become educated about their case and to help them make decisions - either to settle or head to trial. This is the usual exploration of BATNA (best alternative to a negotiated settlement) and WATNA (worst alternative to a negotiated settlement). This is the usual stuff of mediating litigated cases and in this situation, Plaintiff's counsel would not acknowledge any problems with the case. Each time I raised a concern, it was batted away. We weren't making much progress and I sensed some frustration on the part of counsel.

The reminder came in the break room.

I was getting coffee when the Plaintiff's counsel walked in to do likewise. As we got our coffee, he expressed some concern that his client was not fully understanding the risks of going to trial. He could not understand why his client felt so strongly about the case and could I help him with his client. I commented that when I raised issues in the private caucus, you (the attorney) were not acknowledging them. I'm tossing softballs to help educate your client as to risks and you keep trying to hit the ball out of the park. Your client is believing what you say and is thus not willing to be flexible, even though you privately agree with some of the risks as noted by your frustration.

The attorney paused and thought for a moment and exclaimed "you're right!" I'm reinforcing the strengths of our case without acknowledging the weaknesses. With this light bulb going off we were able to move the process forward. His client came to understand the full scope of the case and eventually decided to settle.

This scenario has happened before and will likely happen again. For those representing folks in mediation, consider some of the mediator questions as softballs and sometimes you ought to swing and miss!

Immunity to Change Mediation Decision Making

2010-06-07T12:13:00.005-04:00

I attended an excellent legal education program earlier this spring (NCBA - The Resilient Lawyer) where Robert Keegan education professor from Harvard and author of the recent book Immunity to Change, led a three-hour program devoted to change. Based on more than 25 years of research and practical teaching, he explained how we continue to do things and not do things in opposition to our stated improvement goals because we actually have hidden commitments and big assumptions that drive our behavior.

For example your goal might be to lose 10 pounds yet you keep eating that muffin, doughnut etc. It turns out you are eating it because you have a hidden commitment, perhaps based in your childhood, that says "you will never go hungry." Thus, when you try to change, there is a push/pull, a foot on the gas and brake at the same time. Keegan explained that in order to change one must fully understand the "problem," by uncovering the hidden commitments and considering whether there is room to expand our big assumptions. Will we actually go hungry if we don’t eat that muffin?

While mediating cases, I consider decisions made one form of change. People, attorneys, insurance professionals state goals, they partake in activities to pursue those goals and they may encounter hidden commitments and big assumptions that get in their way.

In a workers’ compensation mediation, the injured worker might say, "I'll never work again." The carrier might say, “the claimant is not hurt as bad as they say.” These forces collide - commitments both hidden and open drive the actions of each. In mediation, we should explore these commitments. We can ask participants to consider beyond their big assumptions. For the worker, what might a return to work be like? For the carrier, what if the injury is more significant than thought?

In either case, as mediators, we should be willing to explore the human condition of our participants. What are the barriers to change, to settlement and resolution? How can we change "immunity to change" to an ability to change?

Linking Turns

2010-04-29T11:41:00.004-04:00

Back in February I went skiing and took a lesson to update my turns. Today's skis are built to turn with a parabolic arc built in while yesterday's skis were mostly straight and pretty hard to turn. During the lesson I had to unlearn old habits and listen closely as my instructor encouraged me to link my turns, from edge to edge, using the skis arc. I was encouraged to flow with the mountain and with my skis rather than fighting with them.

This idea of linking turns shows up in mediation. Each step of the process can be linked and I believe it is part of our job as mediators to manage and facilitate the links. When we ask a specific question or inquire about topics to discuss or ask if participants want to meet privately, it should be done with a larger mediation process goal in mind. We should link our mediator actions to both our overarching mediation approach and be in conjunction with the needs and requests of participants. As we link steps of the mediation process together this also helps participants connect with the process, and in so doing, the process works its magic and facilitates decision making.

Next mediation - think about linking turns down the mountain.

What's In a Name?

2010-01-19T09:15:00.001-05:00

Do you ask everyone at mediation to say their name out loud as part of your mediator opening? This may seem like a silly question - of course you do. We all ask mediation participants to introduce themselves as this tells us who is in the room and allows participants to meet. However, you might not know that the act of saying your name can also help your participants work better together.

I heard Atul Gawande, general surgeon at the Brigham and Women's Hospital in Boston and author of "The Checklist Manifesto: How to Get Things Right" on NPR recently and he described creating a checklist for the operating room. Among other items, each person in the room states their name. This simple act helps create a connection, a group that can more effectively handle complex tasks.

Just as mediation can be a complex task make sure you hear those names at your next mediation.

The Final Conflict

2009-11-06T09:23:00.001-05:00

I heard a StoryCorps interview this morning on NPR. I don't recall the name, but the man was an undertaker and now took care of an historic cemetery in Atlanta. He explained how when he was in grade school, the teacher asked each student what they wanted to be when they grew up and he knew immediately - "I want to be an undertaker."

He talked about holding ceremonies and burying his pets down by the creek when he was younger and how he heard people talk about how someone looked at a funeral. So, he became and still is an undertaker.

His last comment linked with me as a mediator and perhaps might with you too. When asked about why, he said that while he may work with death every day, he saw his role as "to help lighten the load of the families dealing with the loss of a loved one." I think that's close to what we do as mediators.

We try to help lighten the load of people who are in conflict. Now the comparison can only go so far; however, perhaps we, like the undertaken, ease certain aspects of dealing with conflict. Of course, being in a conflict and being dead are vastly different, or is death the final conflict? In any event, on this beautiful Fall day here in North Carolina, go forth mediators and help lighten the load of the conflicted.

Try Something New

2009-10-26T16:51:00.003-04:00

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.

Mediators Gone Wild !

2009-10-14T09:47:00.001-04:00

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.

How Many People Does It Take?

2009-08-25T10:50:00.004-04:00

I saw an article recently where a mediator described a typical mediation in a litigated case. The mediator explained that there was usually a short joint session and then the parties and their attorneys quickly went to private caucus. The mediator would then go from room to room working with each “side." In a recent case, the mediator noted something unusual.

Apparently two contractors had a dispute about payments on a construction job and a met in mediation. The mediator described a routine mediation until at the end there remained an impasse between the parties. At that time, one of the attorneys indicated that his client wanted to meet privately with the other party without attorneys or the mediator. The mediator checked this out with the other party and counsel and they agreed. The parties knew each other from work on several projects and proceeded to meet privately for 30 minutes. At the conclusion, the parties announced they had settled the case, gave the details of the settlement and asked their attorneys to complete the necessary paperwork. The mediator commented on the power of relationships and how they can be so important in mediation

As I read this mediation description I was reminded of a mediation from several years ago. In that case, a general contractor was in a dispute with a subcontractor, a brick mason, over work completed on a public school site. The brick mason claimed significant monies were owed on various portions of the contract while the general contractor disputed the claim for additional monies owed and raised questions about work quality. The claims were largely grouped into four areas and after reviewing these in summary, the parties chose to start working on one specific aspect. The general contractor had bought along the job supervisor, team leader and their attorney to mediation while the subcontractor was present with their attorney.

After initial discussions together and then in private caucus, progress was made and we got back together in joint session to finalize what appeared to be resolution of the first issue. As we worked through some of the specifics and began putting together language on the first issue, the brick mason subcontractor looked across the table, caught the eye of the general contractor and said, “do we need all these people to get this case settled?" The room was quiet for a moment and it was clear that the general contractor was giving this idea some thought. After a moment, the general contractor looked around and then at the subcontractor and said, "no, I don't think we need all these people to work this out." With that said, we had further discussion about how to move forward and soon a plan was put together. The general contractor and subcontractor agreed to recess the mediation and to meet for breakfast the next day at a local restaurant.

A week or two later, I followed up with counsel and learned that the case had been settled over breakfast. What a great lesson that even in the heat of litigation, relationships can matter. As mediator, you don't always know if the relationship will matter or not; however, we should always keep our eyes, ears and I suppose our nose open to relationships at mediation!

Moving Forward or Moving Backwards ?

2009-08-11T10:49:00.002-04:00

As mediators, I am continuously monitoring the rhetoric between participants to the mediation. I listen for the tone, language, substance and manner of delivery in this consideration. The point is not to discern “good” or “bad” communication; rather it is to determine how we can be of assistance.

If the communication seems to be moving things forward, I may sit back and do nothing other than pay attention. This is the mediator “ holding space” for the discussion. If the conversation seems to be moving backward, then I consider what steps, if any, I might take. Do I need to reference any agreed upon guidelines (I don't use ground rule, just guidelines). Do participants need a break or private time (caucus) to review and think about the recent exchange? Or, is the moving backward an opportunity?

Obviously, paying close attention is the key to our work as mediators and in this manner we can make crucial mediator decisions about how we do our work. Over time I’ve learned that even if the discussion appears to be moving backward, this may be just what the participants need to move forward. It is, after all, their dispute and a privilege for us as mediators to serve in our role.

Why We Do This Work

2009-06-17T16:51:00.004-04:00

I had two recent mediations that touched on the intangibles of being a mediator. In the first, after several hours of discussion both together and in private sessions, it became clear to all that a settlement was not possible. While meeting with the claimant and lawyer, the claimant said "I really appreciate what you've done today." I of course said "thank you" and then asked if they would say a bit more about what they appreciated.

The response was "you are really listening to me, I feel heard." Even though the case was not headed toward settlement the claimant felt good about the mediation process and my work in that role. We had connected and they felt heard. Now we talk a lot as mediators about listening and here it was, right in front of me.

In a second mediation, I was in a private meeting with the claimant and counsel when I reported that the other party had agreed to their proposal. They had settled their claim. The claimant was happy, got up and gave me and her lawyer a hug. She physically looked like a large weight had been lifted off her shoulders.

So, in one week, I was really listening and got a hug. This is part of why I do work as a mediator. How about you, why are you a mediator?

Waiting is . . .

2009-05-11T17:24:00.004-04:00

"Waiting is" - These are the words of Michael Valentine Smith. A human raised by Martins in Robert Heinlien's classic science fiction novel, Stranger in a Strange Land. For Michael, "waiting" was a completed act. I believe the same can be true for mediators.

In a recent workers' compensation mediation, the claimant had returned to a new job earning a wage greater than in the employment where injured. The discussion ranged over medical issues and impairment ratings as well as strong feelings by the injured worker about treatment by the company post injury. We talked, we negotiated, I listened and waited.

The talk focused on settlement and after several offers and counter offers the participants had shared very different ideas about resolving the claim. The numbers were close; however, not that close and while settlement was possible, it did not seem likely to the participants. (This they shared in private caucus.) And still we talked and considered and continued with the mediation process.

We spent many hours together that day and there were several opportunities for me as mediator to say "let's stop;" however, I waited for the mediation process to do its work. Eventually, the injured worker decided that the settlement offer was enough, that it was time to move on both literally, i.e., the length of time of the mediation and the potential time at hearing and, figuratively, it was time to let the hard feelings go.

Thus, the process works if you give it time. If you continue to hold the space for the participants to do the hard work of considering their dispute and seeking to resolve it. The mediation process is - like waiting is.

How we do our work as mediators

2009-04-30T16:19:00.001-04:00

I recently came across an interview with Ron Hawkins who is the National Ombuds for McDonald’s USA working with both franchise and employee issues. He was asked about his work and explained that resolving conflicts was primarily based on trust – “You build credibility by building trust, and you build trust by doing the right thing. It’s not who’s right, it’s what’s right. And it’s not what’s done, but how it’s done.”

This is a great reminder to us as mediators – it’s what we do and how we do it that matters. In fact, the “how we do it” is probably as much or more important than what we do.

Our skill set is about process both in terms of how we do “things” and the “things” we ask of mediation participants. Do we change how we do “things” as the mediation progresses? I’m sure we do; however, within such differences let me remind you that how you do things at the beginning of your mediation and how you do things at the end should be consistent and framed by the tenets of mediation as you subscribe. For me these include, among others, being impartial, neutral, an advocate for the process, and seeking participant self determination. Even as I may connect more with one or more participants I must still maintain a level of professionalism that allows me to hold the big mediation picture in place and stay in my mediator role.

So, next mediation, reflect on how you do “things” at the start and at the finish.

Mediator Power

2009-04-16T15:25:00.004-04:00

Since the first of the year, the US has begun to reshape its foreign policy approach and commentators have talked about using “soft power” instead of “hard power” to achieve policy goals. This got me to thinking about mediator power.

I came up with the following lists to divide mediator power into hard and soft power.

Hard

Direct process

Evaluative focus

Challenge participant views

Settlement

Objectify decision making

Solely a business decision

Authority over process

No food

Separate participants

Soft

Follow process
Relational focus
Support multiple perspectives
Resolution
Objectify and subjectify decision making
Business and personal decision
Share process authority
Food
Work with participants together and separately

This is by no means meant to be an exhaustive list and I’m not sure the respective powers are so clearly separated; rather, they may be on a continuum. With this in mind, let’s consider the first, process leading versus following, as an example.

On one end of the spectrum you have the mediator who leads the process and makes all the process decisions. These will generally include - Who should talk first, when to meet in private caucus, when to stop the mediation, etc. This mediator is firmly in control of the mediation process.

On the other end, is the mediator who follows, asking “Who would like to start?” or “Do you need a break or a private meeting at this time?” This mediator does not control the process.

In reality I suspect that most mediators move between hard and soft power depending on their mediation framework and the needs of the participants. I certainly find value in following the lead of participants and I often present process ideas to move discussions. I suppose I take the “both – and” approach with hard and soft power. Perhaps you do too.

Could - - Not Should

2009-04-06T12:51:00.001-04:00

I was in a mediation recently that provided a clear example of the difference between a mediator giving an opinion of case value versus a mediator offering an opinion about where the case could settle. I believe this is an important distinction of both form and substance.

Here's what happened. I was in private caucus with defendant and was asked by one of the participants “Where do you think the case should settle?" This question came after several hours of discussion and several offers and counter offers. I responded back to the questioner that I could answer the question if I could change their word "should" to “could.” Using “could” allows me to offer thoughts about a settlement range based on the offers and counter offers and both general and private discussions with the parties. In part, this question had been asked because the numbers had started quite far apart and the questioner was trying to discern whether there was value in continuing the discussion. I believe these are important instances where the mediator can enhance the negotiation by providing insight without stepping outside the neutral role of mediator.

Usually I do this in the form of a review of where the numbers started, a discussion of what the numbers themselves suggest and then I usually offer a range and probabilities concerning the likelihood of settlement at any particular number within that range. I also couch the range and the specific probability of specific numbers as estimates and even sometimes as speculation. Since I do not ask people where they are headed (I want them to stay flexible) I often don't know the answer. At the same time, I’ve discovered that by paying close attention I usually end up with a pretty good idea of the settlement range. I offer these thoughts to encourage continued discussion while on the face of it, the numbers may suggest otherwise.

This approach is in contrast to the mediator deciding or valuing the case and telling participants what they (the mediator) believes is the value of the claim. While mediators may indeed have great experience and may be able to offer opinions about value, I believe any time the mediator offers a value opinion, the mediator has shifted from a place of neutrality to a place of taking sides. And once you take a side as mediator, you lose the ability to be neutral and you lose the ability to effectively do your job. So, mediators, don't offer value opinions. Offer “where the case could settle” opinions!

Get engaged !

2009-02-23T16:58:00.001-05:00

These are tough economic times. What’s the effect on mediation practices? I was at a recent educational program and on a break spoke with a plaintiff’s attorney about how to settle claims in mediation with the economy in its difficult state. While there is no clear or easy answer, I suggest the following approach.

If you want to get your case settled, you need to get everyone involved genuinely interested. From the plaintiff’s counsel perspective, you need to fully engage both defense counsel and insurance professional in the settlement process. The prime mover in such engagement is making a "reasonable" settlement proposal. This works best when done before mediation so that defense counsel and insurance professional have time to review and prepare for mediation, i.e., set reserves, get authority, etc.

With respect to plaintiff’s initial proposal, don’t make it so high that defense counsel and insurance professional have no belief in potential settlement. If the proposal is out of this world high, then they will not be engaged in the process and are not likely to do any additional work to obtain greater authority than their own previous evaluation. On the other hand, a demand that defense counsel and insurance professional consider "reasonable," can go a long way towards creating a more conducive settlement atmosphere. Of course, any demand must build in some negotiating room, just consider how much room you really need!

The same concept holds true for the defense side of things in terms of making counter offers. If you make proposals that the other side perceives as a decent step, then they are likely to also take a decent step. And once folks are moving, then an opportunity is created. With no movement or very small increments, a negotiation or mediation can get bogged down. People can become frustrated and lose interest. And with interest lost, comes a lost opportunity.

So, get folks engaged. Get them believing that a settlement can be reached and you have set up your mediation for opportunity.

Super Bowl Party

2009-02-05T10:17:00.003-05:00

Did you hear that President Obama had a Super Bowl party? And not just any party, but a bipartisan party. President Obama invited elected officials from both political parties. What a great idea to get folks together in a less pressured atmosphere, to make connections and build relationships. It certainly can't hurt and who knows, it might help down the road.

Does any of this sound familiar to you as mediator? Have you ever tried to get folks in a mediation to meet over a cup of coffee, lunch or a late afternoon snack? I have and find that when you get people in the same room who are in dispute, they can be tense, they revert to various "posturing" and "positioning" behaviors that are not always constructive. However, get together in the break room over coffee or that mid afternoon cookie and often the interaction is very different. This is particularly true with people who know each other (usually the attorneys) and such interactions, even for small moments, can provide useful information to you as mediator and create opportunities.

I bring muffins and sometimes fruit to my morning mediations and usually cookies in the afternoon for this very reason. I try to create personal interactions that are not specifically directed at resolving or settling the dispute. I create personal interactions to create connections between the mediation participants, and in so doing, it sometimes opens a door in the negotiation that had been closed.

So, next mediation - have a Super Bowl (Dispute) Party!

Calling President Carter

2009-01-27T13:17:00.003-05:00

I took some time off from blogging and now with the New Year upon us let me get us going again! And with the inauguration recently behind us, I was reminded of a mediator technique shared by an experienced mediator.

She explained that as an impasse breaking tool she would ask former President Jimmy Carter to come into the room and work his mediator magic. Not the real resident Carter, but the imagined one. She would actually say to participants something like – “We are somewhat stuck and I have a mediator technique where we suppose that Jimmy Carter is here with us to help mediate. What would he do at this point?”

She solicits input from participants, adds her own ideas and then tries to take action along the lines of discussion. The discussion about what former President Carter would do allows her to tap into the process knowledge of the participants (that's also linked to the substance of the dispute) in an indirect manner. This can allow greater creativity in thinking and a willingness to share ideas that might not be shared if you ask "What should we do next?" Of course, sometimes asking what next is a great technique in and of itself. Finally, using an "indirect" approach lets the participants share their ideas without feeling “directed” by those in which they are in dispute.

With a new administration in town, perhaps we should call in President Obama?

Negotiation Capital

2008-12-09T13:54:00.003-05:00

In these tough economic times let’s talk about “capital” – not true dollars, but the currency and capital you use in mediation. Think in terms of “negotiation capital.” I’ve coined this phrase to refer not specifically to the dollars that are exchanged in negotiation, but rather how easy or difficult are the steps in the negotiation. Are folks moving in very small steps early on or large steps? Is it taking a very long time between proposals such that one party is becoming impatient with the process? Has the negotiation taken so long that folks are running out of energy to do the really tough work at the end when a gap in the numbers remains? My sense is that for all of these instances, if it takes a long time for the negotiation to get to the end, then once at the end, there is little “capital” left to bridge whatever gap remains.

I routinely explain to folks at mediation of an injury claim (and most litigated claims) that there are two negotiations. The first, from the defendant (institutional) perspective is based on authority given, reserves set, and market value. From the claimant (individual), it is based on their goal for the negotiation, what they want, what their attorney tells them would be an appropriate settlement. When the respective parties get to these points, there usually remains a difference. I call it the “gap.” As you might imagine, if it only takes 4 steps to get to the gap as opposed to 10, then the participants will have more energy and generally more willingness to keep going and figure out how to bridge the gap.

I encourage folks on both sides to move in larger steps early so that the “pressure” to take a step that will be seen as significant is on the opposing side. Generally, the more one side moves, then the more likely they will also get a significant move from the other side. Of course, rarely do folks match moves; however, the main issue is whether the move is perceived as “good” by the receiving side. When I walk in to a caucus, present a proposal and folks say “that was a good step” then they generally try to do the same.

The point is that if you can get to the gap without spending all your negotiation capital, then you will be ready for the hard work ahead. You’ll be ready for the second negotiation, ready to bridge the gap and get the case settled.

In your next negotiation, consider moving in larger steps early and try to put yourself in the other sides shoes – How will they perceive your move? Remember, you can always slow down later if you want/have/need too. Save your negotiation capital for the second negotiation!

The Power of Getting Back Together

2008-12-01T12:31:00.001-05:00

In most mediation of litigated cases, the parties and their attorneys (and us mediators) want to get to the private caucus quickly. These caucuses provide a relatively comfortable space to discuss and analyze the case. It’s where we ask attorneys about their BATNA and WATNA – what’s the best and worst that could happen if the case does not settle at mediation. And, if we are doing our job, we also connect with the individual party and learn more about their needs (as opposed to wants). We know that attorneys will not “honestly” evaluate their case in front of the other side, so we don’t ask in general session. Once this analysis by the participants (with the mediators’ facilitation) is complete we switch to a facilitative negotiation. My query to you – is there ever a time short of settlement when we should get folks back together? I believe the answer is a resounding “Yes” and let me demonstrate with a recent case.

The case was a denied workers’ compensation claim and after our general session we moved to caucus. In caucus, it became clear that the injured worker was very interested in a medical evaluation to find out what was wrong with his back. (His first proposal was for a medical evaluation which was declined by defendant.) Since he didn’t know, the uncertainty presented itself in a settlement demand that the defense found out of the ballpark. We still traded some numbers, but things were not moving to quickly and at some point, plaintiff’s counsel again raised the idea of medical care. The way counsel shared it suggested to me that we get back together or at least get the attorney’s and the claims professional together.

So, I asked plaintiff’s counsel if he would come back to the other room and share his idea that a medical evaluation would provide everyone with needed information, i.e., if the evaluation did not show a serious condition needing surgery, then the plaintiff would be better able to settle the case in a range likely acceptable to the defendant. Or, if a serious condition was found, then both sides would know the extent of potential medical care. I brought counsel together with the claims professional; plaintiff explained their idea in a cordial manner and then I split them up again. After some discussion, the defense agreed. We recessed the mediation to allow for a medical evaluation at defendant’s direction. Now, I still don’t know whether the case will eventually settle or not, but it now has a much better chance as compared to the chances last week.

With this recent experience under my belt, I encourage you to think of ways to get folks back together for a specific purpose in your mediation. As I explain in mediation trainings, when you get folks together there is risk and opportunity. As mediator we must set up for opportunity and manage the risk!

Be The Negotiation Coach !

2008-11-11T16:36:00.003-05:00

As I’ve mentioned before, I teach a course “Mediation Theory & Practice” in the UNC Greensboro Masters program in Conflict Resolution, and during a recent mediation role play, I was reminded about our job as “negotiation coaches.” In the mediation, a proposal was framed as either a sum of money or an apology, but not both. The claimant had expressed strong interest in an apology. At this point, the claimant and counsel became focused on the form of the offer, the “either/or” aspect and the mediation slowed. The mediator was able to help move things forward; however, in our debrief, participants noted the challenge around the form of the proposal.

This is where we can play an important role as negotiation coach. We can and should help all participants work through proposals and remind folks that they don’t have to respond exactly in kind to any proposal. While the goal is certainly to get people talking “apples to apples” I believe it’s okay if it doesn’t start out that way. And we can help remind people that they can form their own proposals and don’t just have to respond or react to what has been presented. When people want to make a “different” form of proposal or offer I also encourage them to respond to the initial proposal. I ask them to do both as alternative proposals. My sense is that the more choices people develop, the greater the opportunity becomes to find a settlement range.

So, be the coach at mediation and you might even get a long term contract!

First Impressions

2008-10-27T08:53:00.002-04:00

I attended a Memorial Service recently and one participant (let's call her Sally) shared a story about the deceased (let's call him Jim). Sally explained that she first met Jim at a dinner party. Sally was seated, Jim stopped at the chair next to her and then moved to the other side of the table. From then on Sally thought that Jim did not like her and, thus, she avoided contact with him. Sally never got to know Jim. After Jim passed away, Sally learned that Jim had a very bad back and that there were only a few chairs that were comfortable for him. Jim had moved to the other side of the table in search of a better chair. Not to get away from Sally.

This story confirms one aspect of forming first impressions. We use first impressions as a filter and if we believe that someone doesn't like us, then we behave accordingly. We avoid this person and, thus, reinforce the distance and never really get to know the person. And talk about quick. I heard an image consultant recently note that the Millennial generation form first impressions in a second, that Generation X gives folks 30 seconds and Baby Boomers an entire minute.

So, depending upon who you are working with as mediator, your time in which to make a first impression goes from micro quick to a long full minute. You get to "create" your first impression in many ways including how you dress, your facial expression and other body language, and by your tone of voice. If you are already seated in a conference room - do you get up and shake hands? I encourage you to use this time well and remember that the impression you form about another could just be about a chair!

Cool and Crisp

2008-10-06T14:07:00.003-04:00

Fall is in the air? It is a cool and crisp October morning. With the change in season, this is a great opportunity to consider your mediation practice. I’ve written before about being a reflective practitioner and with a “chill” in the air – let me ask.

What are you doing to make your mediation’s “cool and crisp?”

Here are some questions for your consideration:

Do you begin your mediation in the same way every time? Do you use the same language? Do you sit in the same place? Do you always ask one “side” to go first? Do you ever engage in cross talk between the participants before going to caucus? Do you ever get participants back together during discussion other than at the end of mediation? Do you take notes at mediation?

The list goes on, as it should, because there are a myriad process choices as mediator. I encourage you to get out there, enjoy the brisk Fall weather and make every mediation cool and crisp!

Create Space for Emotions in Mediation

2008-09-19T11:42:00.002-04:00

A recent newspaper article encouraged workers to use their emotional intelligence at work. The idea was that we should not hold all our emotions “in” because if we do so, we may not be able to build relationships with the people around us day in and day out.

Also, for those who follow NFL football, Steve Smith of the Carolina Panthers, who just finished a 2 game suspension for punching a teammate (Lucas) in practice, reported that he and the player he punched now have a cordial and building friendship. Previously, these two players were seen to be at odds. So what changed? Smith says that he previously did not like Lucas because he believed that Lucas did not like him. (Same from Lucas.) However, after a team meeting where everyone had a chance to say their piece. It turned out that Smith and Lucas did not like each other because they thought the other did not like him. Talk about a self fulfilling prophesy. With the air cleared the team and teammates came together.

Thus, if we take these two ideas together and add them to our work as mediators, then be sure you check in with participants on an emotional level in mediation. Consider how you can create a comfortable space for participants to express how they feel and then “manage” the emotions if necessary. Mediation in the litigated case is often the participant’s “day in court” so it can be essential to provide an opportunity for emotions to help with the resolution.

Conflict Defined

2008-09-09T09:00:00.003-04:00

Each Fall semester I teach a class – Mediation Theory & Practice - for the Conflict Resolution Department at UNC Greensboro. This is part of a Masters program and the students come from many different walks of life with a common interest in conflict resolution. I also teach this class online. In our first meeting I take the class through an exercise called “Defining Conflict” in which we consider our perspective on “conflict.” The last step in the exercise is to come up with one word definitions of conflict that are positive or constructive in nature.

Check out this year’s great list of words:

Catalyst – Communication – Creativity – Growth – Maturation – Rethinking – Evolving – Motion – Quest – Adventure – Relationship – Building – Change – Revitalization – Growth – Opportunity – Revolution – Renew – Resolution - Restoration - Bridging - Enlightenment - Dialogue - Disentanglement – Engagement – Movement – Workout – Differences – Learning – Curiosity – Understanding – Transformation – Challenge – Progress – Juncture – Path

So, the next time you get discouraged in a mediation, pull out your handy pocket note card with these words on it and then get back to work!

Labor Day Reflection

2008-09-02T10:02:00.002-04:00

For many folks, this past Labor Day week-end is a recognition and celebration of work! I started thinking about our work as mediators and how should we celebrate? Initially, I thought about “what is mediation” and then realized it’s not about “what,” it’s about “how.”

Here’s my take on the “how” at a macro level with Labor Day in mind. As mediators we practice both a science (the science of negotiation, personal interaction, etc.) and an art (intuitive understanding, empathy, etc.). For me, being a mediator is a craft. It is something I continually study, seek to master and improve. I can find new ways to conduct the process as long as I am reflective about what I do. Be a reflective practitioner.

Here’s an easy way to give this a try. The next time you serve as mediator; do something differently from how you usually do it. It could be as simple as how you introduce yourself or how you describe your role as mediator or . . . You’ll think of something and when you do and put it into action – then you are being reflective! This first step should lead you to consider why you do the things that you do as mediator. We know that there is a reason for each word we chose, each caucus we direct and the list goes on and on.

And in your reflection, in your consideration of the “how” and “why,” you celebrate that which is mediation. Enjoy your days of labor as mediator!

Study Says Plaintiffs Should Settle!

2008-08-27T13:23:00.003-04:00

In the mediation of a litigated case, there comes a time when participants consider the potential outcome at trial or hearing. This is the part of mediation where you, as mediator, help them sort through and consider their BATNA (best alternative to a negotiated agreement), WATNA (worst alternative to a negotiated agreement) and MLATNA (most likely alternative to a negotiated agreement). With this analysis in hand, participants are then usually able to make more informed choices about how to proceed - settle or go to trial.

Now there is another tool to add to your mediator toolbox when discussing the case with plaintiffs. A soon to be published study found that settling was better for plaintiffs than going to trial. According to study co-author Randall L. Kiser - “The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more.” Here's a link to a New York Times story on the study - Study Article. The study reviewed 2,054 cases from 2002 - 2005 and found that plaintiffs made the wrong decision in going to trial, i.e., obtained a lower economic result as compared to an offered settlement, in 61% of the cases while for defendants, the figure was much lower at 24%.

So, next time you are in private caucus with the plaintiff and counsel, you might ask if they've heard of this study and it's results. It might help participants rethink their perspective on the case and create further opportunity to explore settlement.

Mediation Olympics

2008-08-13T12:36:00.002-04:00

Anyone who watched the recent US men’s 4 x 100 relay swim saw a marvelous race that ended with a winning touch. On the one hand it’s about the gold, the gold medal, yet the Olympics are so much more than the glory of winning. Listening to Melanie Roach, US weightlifter, exclaim about her wonder, joy and satisfaction with a sixth place finish is, for me, what the Olympics are really about. My question for you mediators – what’s your mediation about?

For many who mediate in litigated cases, there is only the “gold” of settlement. Yet I suggest that having this as your focus can, in some cases, prevent you from reaching that goal.

Here’s my point. If you as mediator place the outcome, settlement, as your prime goal, you can lose sight of the process and your neutrality becomes at issue. In effect you can create a “conflict of interest” with the participant who does not want to settle their claim, while you want it settled. I’m not suggesting that you give up completely on the goal of settlement, rather, that you stay true to a mediation process that allows for self determination. Again, stay focused on the process. Be neutral and unbiased in your actions and choices as mediator.

And finally, if you stay with the process and think less about “getting that settlement” - I believe you will be more open as a mediator to what is happening in front of you, you will be more creative and willing to take “risks,” and are more likely to actually help folks out of tight spots. The cases will settle.

So, go for the mediation process and get the “gold” !

Conflict is Good! Bring it on!

2008-08-05T13:52:00.001-04:00

Okay, maybe the title is a bit too strong, yet we know that conflict can create change and many times for the better. Or the energy of conflict can fuel creativity and invention. My point is that conflict is not always a bad thing. Particularly if it comes in small and manageable doses. I’m not talking about physical or strong emotional conflict or violence; rather I’m talking about the kind of every day conflict that occurs in our homes, in our workplaces and in our mediations.

The question for you as mediator is to sort through the “conflict” that is in your mediation and decide what if anything you should do about it. Is it okay to let folks raise their voices at each other? Or use strong language? When and how does the conflict energy shift from constructive to destructive or vice versa? We’ve all been in mediations where it seemed pretty hot and then later folks calmed down, analyzed their situation and reached an amicable resolution. So, what happened? What, if anything did you do?

Some mediators may come from the school of thought that the mediator must tightly control emotions so that participants can stay focused on solving the problem at hand. Others may allow all sorts of conflict to erupt in front of them and facilitate from that point. I believe that “some” conflict is a good thing in mediation and that often participants can’t really get down to the business of solving the problem until they work through some of their feelings. This is not an either/or proposition; rather, as I’ve noted before, it’s a both/and. As mediator you connect with the conflict energy and then help the participants figure out what to do about it.

So how do you get started? I believe that the most important step as mediator is to not only listen fully to what is being said, how it is being said and by whom, but to fully engage with the room. In addition to listening, check body language and let yourself feel what’s happening. Take it all in with all your senses. And then get to work! Bring it on!

Beyond the Knights of Ni!

2008-07-28T10:39:00.002-04:00

I watched the classic Monty Python film, Search for the Holy Grail, this week-end, and the Knights of Ni reminded me of what we often hear in mediation. Not the word “Ni,” but the word “no.” This small in size and sometimes large in stature word appears in many different forms including – “I can’t do that.” Or “What are they thinking – are they crazy?” Or “never in a million years” and sometimes as just plain “no.”

As mediator, what to do when faced with No? Do you conclude the mediation at its utterance or do you welcome it as an invitation? Or perhaps that we are finally getting to the heart of the matter. For me, when folks say “no” it means that, I as mediator, must really get to work to help keep the process and discussion moving so that participants will stay engaged and be able to move from No to Yes if they so choose. It certainly does not occur as a clear, crisp switch; rather, the mediation process can allow participants to shift their thinking, to reconsider their positions and interests and to make decisions that they did not anticipate prior to the mediation process or even during earlier parts of the session.

I also have a personal mediator “rule” that the word “No” does not mean “No” until someone has said it three times. This doesn’t mean that I pester people or brush off their “No” - rather, it means I continue to explore with participants how they can meet their needs and interests and in so doing, move beyond no. Part of the genesis of this rule is that people who negotiate in mediation sometimes use “no” as a negotiating tool. They don’t really mean it. Also, as noted above, I believe that when people say “no,” it can mean that you are getting close to what they really want. So, in either case, I keep on working as mediator until it is crystal clear to everyone that we need to stop our work for the day.

Note that I am not imposing my decision about what “No” does or does not mean; rather, I just keep working the mediation process. These are times to listen hard, pay close attention to the feelings in the room and watch everyone like a hawk. All this information can help you as mediator help the folks trying to make choices about their dispute.

So, the next time someone says “no” in mediation, think of the Knights of Ni. And for those who do not recall – remember that the Python Knights went past by first bringing a shrubbery and then with the word “it!”

One Minute Mediator !

2008-07-22T15:18:00.004-04:00

Many of you may be familiar with a book on management, "The One Minute Manager" by Kenneth Blanchard and Spencer Johnson (first published in 1982) which follows the quick saga of "a bright young man who was looking for an effective manager." Through his efforts he meets the "One Minute Manager" and various co-workers who extoll the virtues of the "old man" and explain the concept of being a One Minute Manager. I just got hold of it recently and it's a great read with some very focused insight that matches our work as mediators.

One aspect that hit home for me was the One Minute Manger's statement about whether his management style was "results-oriented" or "people oriented." He said "How on earth can I get results if it's not through people? I care about people and results. They go hand in hand." Thus, the One Minute Manager is a "both / and" kind of guy. It's not either / or, it's both. This should be true for your work as a mediator.

You need to work both your "soft" people and (it shouldn't be "or") your "hard" negotiating skills when you work as a mediator. This helps mediation participants fully engage in the process and evaluate their choices about how to proceed. So, the next time you are in the middle of a tough negotiation, take a look around the room - how are folks doing? Is there something you can do to help the negotiation discussion move forward by paying attention to the people?

As mediators, we, like the One Minute Manager, should care about people and process results.

Hercules the Mediator

2008-07-14T15:36:00.002-04:00

Do you know the myth of Hercules and the Nemian Lion? I heard it the other day (listening to a story CD in the car with my family) and it’s a story that speaks to our work as mediators.

Here’s the story: Hercules is tasked to slay the Nemain Lion whose hide cannot be cut. So, Hercules wrestles the lion and squeezes it to death. With the lion dead, Hercules tries to cut the hide, but cannot. So, and here’s the mediator part, he uses the claws of the lion to cut the hide.

The lesson for Hercules and for us as mediators is that the ability to achieve a result will come from the participants at mediation (for Hercules, from the lion). Thus, it is our job to help facilitate the finding of that which will lead to settlement and/or resolution. Can we help uncover some underlying strength in participants that will empower them to make a settlement decision? And, how do we do so?

One key aspect is to learn about the people at mediation. They are not just plaintiff or defendant or insurance professional. They are people and if you learn more about them, what makes them tick, this will lead to what you need to do to help them cut through the hide and decide.

Go Hercules !

Celebrate Your Mediator Independence !

2008-07-01T10:53:00.002-04:00

July 4^th is just at the end of the week. It is a celebration of independence. And when I think of “independence” in the mediation context, I think of being neutral on the content, being impartial, and not being biased in word or action. I think of self determination. It is our independence as mediators’ and our adherence to self determination that allows us to do our work as conflict resolution professionals. These are the foundational blocks of our work, just like the revolutionaries that went before us in 1776.

So, how do you stay independent as a mediator? First, you must embrace the notion that you are an advocate for the process, but not an advocate for a particular outcome. You focus your process choices on participant self determination. You might want folks to reach a settlement of their dispute (of course you do !) yet they may not. While you must help them consider all potential choices, if you push for a particular outcome, you may begin to lose your neutrality. You become partial. You show your bias. When you do so, you are no longer holding the center of the conflict; rather you are supporting one “side” over the other. If you do so, you will lose your effectiveness as a mediator because people will not follow your process lead it they perceive that you are supporting the other "side."

The key, I suggest, is to support all choices, all “sides,” and all participants at mediation. You do this by being a staunch advocate for the mediation process. You do so by listening carefully and guiding a process that stays aligned with self determination. You stay independent even as you empathize and connect with participants at mediation. This is the power and glory of the process. Enjoy as you celebrate on July 4^th !

New Mediator Standards in the Works

2008-06-24T11:12:00.002-04:00

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.

Summer Reading !

2008-06-18T09:20:00.002-04:00

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, 2^nd 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, 2^nd 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.

Don't Get Mad - Stay Neutral !

2008-06-12T15:00:00.002-04:00

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!

Summer Mediation Education

2008-06-09T17:20:00.003-04:00

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.

Mediator Pro Bono Project

2008-06-02T10:16:00.003-04:00

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!

How Do You Think?

2008-05-27T10:51:00.002-04:00

Temple Grandin has autism and has written a thoughtful description of her experience and how she thinks in Thinking In Pictures and Other Reports From My Life With Autism (Vintage Books: 1995) For Grandin, she literally “sees” the world in her brain. She translates sound and touch into visual brain images. She can view her brain images in 3-D which allows her to develop plans in her head before putting them on paper (Grandin designs live stock handling facilities). So, what does this have to do with mediation? The answer relates to how you think, how the participants in mediation think and how you connect with them.

Neurolinguistic Programming (NLP) developed by Richard Bandler and John Grinder models three representational learning/thinking styles – visual, audio and kinesthetic. Visual people use words like see, picture, look, vista, etc. Audio words are hear, sound, clang, etc. Kinesthetic words are feel, touch, grasp. And there are neutral words like consider, think, sense, and understand. We each have a generally preferred style and while we learn/think in most all modes, we have one that is strongest. (Grandin writes that she is purely visual.) For the visual person, you think in pictures and use visual words. The audio person thinks in sounds and uses sound words. Thus, when you put a visual and an audio person together in mediation, they are constantly translating each others words (and maybe your words) into their own representational system.

You, as mediator can help translate and you can use words to match people. Or you can use all three. In my opening mediation comments, I usually say something like – “We’re going to take a look at this situation, talk about it and then try to wrap it up.” In this sentence I’ve used words in all three styles. Further, when you match learning styles you build rapport as there is no translation needed. You connect with how people think and so you connect with them.

Of course, this is just a tip of the iceberg comment on learning styles and NLP, yet I have found these concepts and tools quite powerful. Next mediation, listen closely to the words used – both yours and the participants. And, if you want to learn more, check out two books - Frogs into Princes by Richard Bandler and John Grinder (this is a transcript of a workshop and very accessible) and I hear what you say, but what are you telling me? The strategic use of nonverbal communication in mediation by Barbara Madonik (this is more technical, but does have some specific mediation related content).

Be The Leader

2008-05-19T10:48:00.004-04:00

Check out these words - inspire, encourage, negotiate, listen, dream, envision, communicate, collaborate, empower. According to a recent publication from the School of Public Heath at the University of North Carolina in Chapel Hill, these are some of the more important characteristics of leaders. The article, "Public Health Leaders" and actually the entire Spring 2008 Carolina Public Health magazine is devoted to leadership in the public health field; however, for me it was the words that got me thinking about our work as mediators.

We are process leaders.

Each time we serve as mediator, we lead a process to explore the resolution of a dispute or conflict. Do we inspire the participants in our mediations? Do we help them dream? Do we help participants empower themselves? The list is long, even longer than the nine words above, and yet I wonder how aware are we as mediators about our role as process leader?

Thus, in your next mediation, think about how you lead. Are there areas that need further exploration? Do you need to fine tune your leadership skills? Reconsider your mediation process - is there something that you might do differently?

Be aware and in so doing you will be an even stronger leader!

Case Update - Mediation in Workers' Compensation Claims

2008-05-08T17:05:00.008-04:00

The North Carolina Industrial Commission began a mandatory mediation program in 1995. Since then the statistics have been pretty steady with almost 75% of all mediations ending in settlement. The current mediation related issues at the Industrial Commission mostly focus on the enforcement of mediated settlement agreements (msa) and here's a 1st quarter case update for your consideration. The main lesson as mediator is to make sure you have all the required language in the agreement and make sure it is signed!

McAllister v Wellman, Inc, IC 144769 March 2008

In this case, the parties reached a msa concerning the payment of medical expenses pre 11/16/04 in a pre Hyler claim. The case went to hearing on a claim for additional medical expenses post 11/16/04. At hearing, DC Harris approved the msa and rejected a compromise settlement agreement which included “an overreaching release of all claims . . . [which] might be construed as more expansive than the language in the mediated settlement agreement.” From a practice standpoint, you may want to explore specific release language with counsel at mediation.

Hinceman v Food Lion IC 391486 FC March 2008

The parties reached agreement at mediation for the payment of $60,000 plus payment of all related and authorized medical bills. Defendant prepared a clincher; however, claimant declined to sign. At the DC and Full Commission hearing, the Commission considered the testimony of claimant’s former counsel concerning the nature of the settlement and of counsel’s review of the settlement with claimant.

The issue of claimant’s mental capacity was also raised and the Commission considered medical testimony concerning claimant’s psychological condition and medications taken on the date of mediation. The Commission gave greater weight to Dr. Aronoff’s opinion that claimant did have “the mental competence to understand and comprehend the consequences of her actions at the mediation.”

As a result the Full Commission enforced the msa and then conducted a Rule 502 review. While post mediation medical evidence showed continued treatment; nonetheless, the Full Commission held that the settlement “was fair and just to all parties at the time the agreement was entered into.” The Full Commission explained that “The Industrial Commission may not set aside an agreement ‘merely because one party to the agreement acquired new information or evidence.’” (citing Glenn v McDonald’s, 109 N.C. App. 45 (1993))

This decision is well worth your review as it provides an excellent review of the law around mental capacity, the enforcement of msa’s per Lemly, and the “time” to be used for review as it relates to after acquired information.

Branch v Dollar Tree IC 564626 February 2008 The parties reached agreement at mediation and executed a msa. A clincher was subsequently drafted, but claimant refused to sign. Defendant requested a hearing to enforce the msa. At hearing, claimant argued that some of her medical records were missing at the time of mediation; however, DC Ledford found that since claimant did not supply additional records then there were no additional records to review. Further, DC Ledford found that claimant had received extensive medical treatment and review of her condition.

With respect to the msa, DC Ledford held that claimant understood the msa and was not coerced into signing it. Claimant’s former counsel had withdrawn; however he “thought plaintiff got a ‘good deal’ as to the amount of money paid by defendants to obtain the clincher.” The mediator prepared an affidavit which included a statement that “plaintiff actively participated in the mediated settlement conference.”

DC Ledford held that “[t]here was a meeting of the minds among the parties as to all essential terms of the agreement at the mediated settlement conference held on June 25, 2007, including the payment of medical bills. The terms set forth in the Mediated Settlement Agreement are sufficiently certain and definite, and sufficient to form a binding contract.” DC Ledford also made a number of the standard 97-17 and Rule 502 findings and enforced the msa as fair and in the best interests of all parties.

Without reviewing the msa, it is unclear from this decision whether the 97-17 and Rule 502 language was included in the msa or was incorporated by the Deputy holding. While the better practice would be to include the language in the msa, this case suggests that the Commission can also supply the needed language.

Mooring v Target Stores IC 002328 January 2008 The parties reached a msa in February 2002 and a clincher was subsequently executed and approved by the IC. Claimant continued with medical treatment, had a back fusion surgery and was found disabled by Social Security.

In November 2006, claimant requested a hearing seeking to set aside the clincher. Claimant argued that the clincher had been approved without all medical and vocational reports and records. DC Deluca agreed and held that the “failure to submit all medical records voids the Settlement Agreement.” DC Deluca also held that “Defendants have not advanced any grounds that require enforcement of the compromise settlement agreement or the mediated settlement agreement.”

It appears that the decision not to enforce the msa is based primarily on fairness and best interests as opposed to some technical defect of the msa.

Whaley v McLamb IC 548959 FC January 2008 The parties did not reach agreement at mediation, but claimant later agreed to a settlement. A clincher was drafted, but claimant declined to execute it. The claim was later denied by DC Holmes who held that no enforceable msa had been reached. On appeal, the FC, Balance, Mavretic and Scott affirmed, also holding that there was no enforceable msa. This is another case that confirms the law in this area – if you want an enforceable msa, get it in writing!

What Number is Your Number?

2008-05-05T15:18:00.003-04:00

The mediation process in litigated cases usually comes down to emotions and money. And usually for the lawyers, claims professionals and even clients involved, the focus quickly shifts to the dollars.

So, when we negotiate in mediation, what do the numbers that make up a proposal or counter proposal mean? Does it matter if you go first or should you always try to be second? What happens if one side thinks the first number presented is much too high or too low? These are important questions and during the month of May, I want to address a range of issues as it comes to numbers. Today, I want to tell you about a recent mediation where numbers mean numbers.

This was a workers’ compensation case where the employee claimed a knee injury which was denied by the employer. The employee was a paramedic. During mediation, after some initial discussion about the case in general session, we met in private caucus to further discuss the case and then claimant made a demand for settlement. Proposals were exchanged and the negotiation moved forward.

The negotiation continued and upon entering one of the caucus rooms something about acronyms came up and on the next proposal, claimant moved to a figure and called it a “1017” number. In emergency medical speak, “1017” refers to being en route to a destination. For the claimant, they were saying – “We’re getting there, but we’re not there yet.” The response from the employer, which included the employee’s supervisor, was a counter proposal as a “1023” number. Saying “1023” means that you have arrived on the scene or in mediation terms, we are at our number. Using this jargon shifted the mood of the discussion, seemed to lighten each room and while the 1023 number turned out to still be a 1017, the next number was the 1023 and the case settled.

So, what number is your number?

Mediation Humor - To Laugh or Not to Laugh ?

2008-05-01T12:21:00.008-04:00

Mediation can be a very stressful place for all participants - even the mediator! So, what can you do about it? Can you crack a joke as mediator? Can you laugh with participants or do you need to stay "above it all" as the mediator? As with most all mediation tolls and techniques, there are pros and cons to each. The same is true for humor.

For me, the strategic use of humor is another tool in my mediation tool box. Mediation participants often need humor to release tension and this helps folks focus on the hard decisions to be made at mediation. Further, according to Humor and Health Journal, laughing lowers blood pressure, reduces stress hormones, increases immune function, releases endorphins, and produces a general sense of well-being. Laughing also provides a workout for the diaphragm and increases oxygen flow providing a cleansing effect similar to deep breathing. With all these benefits, you should try to figure out how to “laugh your way through mediation.”

On a serious note, you must use humor with care and careful consideration. The joke you tell one group may not work with another and your timing must be impeccable. If you have ever tried something that was funny to you, but fell flat, then you know what I mean. It’s not the end of the world, but you sure feel bad given the looks you get. I suggest that you do not start off with “funny” comments or a joke and save this tool for a later moment after you have built rapport and can gauge your audience.

I sometimes bring in what I call “conflict comics” that provide a laugh. One of my favorites is a Calvin and Hobbs on compromise (see above). I show this to folks and tell them that I’m trying to make everyone look like Calvin. I call this the “Calvin Effect” and we all laugh. Folks resonate with Calvin and the notion that compromise might be necessary and this helps them let out some tension and then consider how to proceed.

How about you? Please pass on your favorite mediation humor stories with a comment!

Mediation Conferences

2008-04-25T13:38:00.000-04:00

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 2and 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.

Good Faith in Mediation ?

2008-04-16T09:50:00.000-04:00

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.

Connections Are Building Blocks

2008-04-08T09:23:00.000-04:00

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.”

NCBA Dispute Resolution Section Annual Meeting April 11, 2008

2008-03-17T12:47:00.000-04:00

It's just around the corner! Please join me (as co-course planner) and many of your mediator colleagues at the NCBA DRS Annual Meeting on Friday, April 11, 2008 at the Bar Center in Cary, NC.

The program is chock full of mediation related news, techniques and plenty of opportunities to network. The program begins with an update from the NC Dispute Resolution Commission and then moves right into a presentation of tools and tips from an experienced international mediator, Robert Davidson, from the JAMS program in New York. There will be a case update of mediation related decisions from North Carolina and a chance for small discussion groups to tackle those difficult case issues. We'll hear some negotiation techniques from folks at the NCCU School of Law Dispute Resolution Institute and from Andy Silver on how to enhance your credibility with NLP concepts to build better rapport in mediation.

An excellent program is in store for all!

The Power of Mindful Learning

2008-03-12T13:26:00.000-04:00

Here’s a short yet powerful book for your consideration about how we learn and it has direct application to mediation. It applies to how you present yourself as mediator and, of course, it also has many applications outside of mediation!

In The Power of Mindful Learning, Harvard psychology professor, Ellen J. Langer, debunks many of the myths of how we learn. Through research she describes how learning by rote creates mediocrity. She explains that when we practice the basics until they become second nature, then we generally perform the skill mindlessly, we create “artificial” limits and we find it hard to make small adjustments. In contrast she notes that if we learn the basics, but don’t over learn, then we can change and vary our skill as the situation dictates. We can also be more creative in that we have not created “artificial” limits.

In mediation, we as mediators generally approach a mediation based on a theory (interests, transformative, narrative, etc.), a stage model and probably have our “set” opening comments. However, if your approach has become “rote,” then in Langer’s terms you may be presenting mediocrity. Now I’m not suggesting that you shouldn’t be guided by a theory and an approach; however, I am suggesting that you reconsider and perhaps re-learn how you start each mediation. Can you change your initial comments each time to keep them fresh? Can you try something new and creative so that no “artificial” limits are created?

As Langer suggests, we can be more expansive in our learning and I encourage you to do the same in your mediations!

Case Review for 2007

2008-02-23T14:52:00.001-05:00

There were several appellate cases in 2007 of interest to mediators and attorneys who represent clients in mediation. The key lesson as an advocate – read release language with care. For mediators, consider what if any role you play in facilitating a conversation about release language as part of a mediated settlement agreement.

In Weaver as Administrator of the Estate of Frankie M. Vamper v Saint Joseph of Pines, Inc., __ N.C. App. __ (2007) the parties (Vamper and Saint Joseph’s) had previously conducted mediation over a debt collection issue. The case reached a settlement with an agreement that Vamper would execute a Release. The Release was general in nature and when the Weaver’s, as Administrator of the Vamper Estate, later brought a negligence and wrongful death claim, the Court held that the Release barred such a claim.

The Court reviewed the earlier Memorandum of Mediated Settlement, an affidavit from the attorney representing Vamper in the debt collection action and the subsequent Release and held that there was no mutual mistake. The Court explained that “[i]t is immaterial that neither the Release nor the Mediation Settlement Agreement specifically mentions the claim at issue in this case or that the possible existence of this claim never arose during the mediation.” Thus, for lawyers representing parties in mediation, this case and Carpenter, noted below, should be a strong wake up call to pay close attention to post mediation release language.

In Capps v NW Sign Industries of North Carolina, Inc., __ N.C. App. __ (2007) the plaintiff sought a commission from his former employer - NW Sign Industries. The parties reached an agreement at mediation and the issue on appeal was whether the mediated settlement agreement contemplated a subsequent more detailed agreement or not. The Court of Appeals held that the mediated settlement agreement was enforceable as the agreement of the parties. In so doing, the Court noted that the parties and their counsel had offered affidavit evidence as to statements made in mediation. There is also mention of a mediator affidavit, but no details as to its content. This is another example of our Courts supporting the notion that agreements reached in mediation are governed by contract law and if the elements are present, then the agreement will be valid and enforceable.

In Sandoval v Pillowtex, __ N.C. App. __ (2007) Judge Tyson, Jackson and Stroud, in an unpublished decision, affirmed a Full Commission decision to enforce the mediated settlement agreement. Here the Court continues to follow the Lemly decision.

At mediation claimant was represented, had a translator present to assist in the discussion and executed a mediated settlement agreement. Claimant later declined to execute a clincher explaining that she thought the mediated settlement agreement was for the payment of $7,500 for three months for a total of $22,500 rather than a one time payment of $7,500. The Full Commission enforced the mediated settlement agreement for $7,500.

On appeal, claimant argued that a “Guatemalan Spanish speaking interpreter” was needed; however, the Court disagreed relying, in part, on a Full Commission finding that claimant’s treating physician “felt that plaintiff was able to communicate effectively in English . . .” The Court also noted that N.C. Gen. Stat. § 97-80(c) (2005) allows that “ ‘the Commission may order parties to participate in mediation . . . ’ ” and that agreements are to be reduced to writing.

Further, in addition to citing Lemly for its adherence to general contract law, the Court also noted that “one who signs a contract is presumed to know its contents, and an illiterate person signing an instrument without request that it be read to him is chargeable with negligence for which the law affords no redress, unless he has been lulled into security or thrown off his guard and deceived.” Citing Ellis v. Mullen, 34 N.C. App. 367, 370, 238 S.E.2d 187, 189 (1977) (citing W. R. Grace & Co. v. Strickland, 188 N.C. 369, 124 S.E. 856 (1924)).

In conclusion, the Court held that the Full Commission findings of fact were supported by competent evidence and that the conclusions of law were “not erroneous as a matter of law.”

Finally, in Carpenter v Morris et al, __ N.C. App. __ (2007) the Court of Appeal’s, in another unpublished decision, held that what is written in the mediated settlement agreement and what is stated in the Report of Mediator does not control over the language in a subsequently signed general release. In Carpenter, an agreement was reached at mediation with one of the defendant’s, but not all, and this was noted in the mediated settlement agreement and the Report of Mediator. However, when the plaintiff later signed a general release with standard language releasing “all other firms, persons, corporations, associations or partnerships” then the defendants who were not a party to the mediated agreement were released. From a practice standpoint, this case is a strong reminder to pay careful attention to the documents both at mediation and post mediation when additional concluding documents are signed.

North Carolina Mediator

2008-02-23T14:52:00.000-05:00

North Carolina has a long heritage in the mediation field.

The first community dispute settlement center opened its doors in Chapel Hill in 1978, the first mandatory child custody mediation program was started by Judge Lanning in Charlotte in 1983 and court ordered mediation in Superior Court cases began in Surry County (Judge Jim Long's District) in 1991. The next year, 1992, mediation went state wide in our Superior Courts and now we have over 15 years of court ordered mediation experience. And the trend continues with mediation added to Industrial Commission cases in 1995, Family Financial Mediation went statewide in 2001 and most recently the Clerk of Court added a program in 2007.

There are now over one thousand mediators certified by the North Carolina Dispute Resolution Commission (NC DRC). This "thousand" strong includes attorneys and other dispute resolution professions who adhere to the rules and standards promulgated by the DRC and the North Carolina Supreme Court. We have a tremendous amount of experience and we continue to bring new ideas to the dispute resolution field.

All in all mediation is alive and well in North Carolina.

This blog will be a place for North Carolina mediators to get program updates, learn news about their profession and to share the latest impasse breaking idea.

So, let's get started! Welcome to North Carolina Mediator.