Mediation Conferences

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

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

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

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

Good Faith in Mediation ?

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

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

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

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

Connections Are Building Blocks

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

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

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

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

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

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

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

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

NCBA Dispute Resolution Section Annual Meeting April 11, 2008

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

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

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

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.