Barking Dog Mediation on the Rise

I recently came across this article noting that “there has been a 30 per cent rise in the number of mediations between neighbors over animal nuisance problems” in the Australian province of New South Wales.   On the one hand, I was glad to hear that parties are turning to mediation to solve disputes and realizing that mediation often creates more stable solutions than a court ruling because “the parties themselves have had input into them and have had a better understanding of the issues between them.”

On the other hand, I really have to wonder whether this improves the public image of mediators or simply causes the average person to think of a mediator who helps parties resolve mundane, trivial matters.

Just thinking out loud.

Don’t Mediate that Case??

Sandra Upchurch of the Florida-based mediation practice group Upchurch Watson White & Max discusses an interesting article from Human Resources Leader magazine entitled, “Don’t rush to mediate that employee complaint …” The article makes some interesting points about cases for which a face-to-face negotiation could be detrimental.

How to Screw Up A Mediation.

Over at The Strategic Mediator, Florida Mediator Sandra C. Upchurch spells out the Top 10 Ways that a practitioner can “botch” a mediation (she’s more polite than I).   She echoes the complaints I repeatedly hear from fellow mediation practitioners and other bloggers.  Except for her last complaint, which is frankly quite unique.

Fordham Law Symposium – “Against Settlement”: 25 Years Later.

One of the worst things about being 900 miles from my law school alma mater is that I typically cannot attend the excellent events they hold.   Case-in-point:  Against Settlement: Twenty-Five Years Later. The Fordham Law Review has assembled an impressive roster of well-known professionals from the ADR, complex litigation, and public interest communities to discuss the role of settlement and adjudication in civil litigation, including Owen Fiss, the author of the seminal article Against Settlement, Kenneth Feinberg, and Michael Moffit of ADR Prof Blog, as well as distinguished members of the Fordham faculty and family.

UK Litigation “Boom” is a Dud?

UK-based website The Lawyer reports that

The number of cases being launched in the High Court has reached a six-year high, but the much-­anticipated litigation boom has yet to take off.

Fiona Walkinshaw, a litigation partner of a London based firm suggests that ADR is the reason.  She states,

Many financial ­institutions will want to stay out of the public arena and opt for alternative means to settle claims.

Ms. Walkinshaw further stated that “it would be difficult to gauge litigation activity with so many ­corporates looking for alternative means of settlement.”

Law Students to Compete in Arbitration Competition

This coming weekend, the National Arbitration Forum and the American Bar Association Law Student Division will be co-sponsoring an Arbitration Competition for nearly 200 law students from around the country. The participants will simulate an arbitration hearing involving a dispute concerning election campaign law.  Regional winners will advance to the National Finals in San Antonio in January 2009.

If you live near one of the regional sites, I would wholeheartedly suggest attending or seeing if they still require volunteer judges.  I enjoyed judged the regional ABA Negotiation Competition last year.

The Domino’s Pizza School of Mediation

When I first started mediating, I signed up for several court-ordered lists.  Some allow me to charge my full market rate, others pay a very modest stipend.  I knew I wasn’t even going to pay for my gas with the stipend I received from one particular small claims court, but I go every week and mediate cases waiting on the calendar. My thoughts were: a) while “small,” the issues are the same as those in “larger” cases, and I could use the experience; and b) many of the parties are represented by counsel who might later refer cases to me.

Last week, however, the Chief Judge spoke with the Mediation Coordinator (who does an excellent job wrangling the mostly pro se parties and the mediators) about a perceived “issue” with the small claims mediation – they take “too long.”   So we are now under direction to “evaluate” the chances of reaching resolution within 30 minutes.  If we don’t think resolution is possible,  we are to declare an impasse and return the parties to the court.

It’s the Domino’s Pizza School of Mediation.

I will admit that a large part of this perceived problem is my fault, though the coordinator will deny that.  I work efficiently, but I am patient with the parties because it is their case.  They must come to terms with resolution.  Of the more than 50 cases I’ve handled in the last year, I can only think of one instance where the judge was ready to leave the bench and I asked for additional time because the parties were close to settlement.

I’m not certain how I feel about this new policy.  I understand that the court wants to operate efficiently and schedules cases it believes it can hear and resolve during its 3 hour sessions.  Lengthy mediations on cases arguing over $1200 do not help the parties or the courts.

But it does not feel like true mediation if I get to decide within 30 minutes whether the parties can reach a resolution.  For one, I’d be a terrible mediator if I wasn’t confident in my skills and didn’t believe I could get most cases to settle.

I’m going to have to wait and see how this works.  I suspect that once a few parties complain that a mediator either gave them the short shrift or pushed them to settle in order to satisfy this new rule, it will go the way of the dodo.   If not, I may stop taking these cases.  Like I said, the stipend they pay isn’t going to be the difference between making my mortgage payment or not.

How to Help Your Clients During Challenging Times.

As a seasoned litigator, you understand that litigation filings actually increase in trying economic times. Businesses seeking to protect the bottom line file lawsuits against non-paying customers, IP infringers, and employees who violate restrictive covenants.  Home sellers sue to enforce sales contracts.  Divorces increase because of the stress of financial difficulties.

At the same time, however, your clients (and potential litigants) are looking for ways to cut expenses.  Somewhere in the back (or maybe the front) of the client’s mind is the thought that litigation is costing them more than the case is worth.  It becomes more challenging for you to show that you are providing value.

That is why mediation should become an important aspect of any successful litigator’s practice.  Your clients will thank you when you suggest mediation because:

1.  Clients Feel Involved.

Clients are used to the attorney calling the shots.  During mediation, the clients get involved.  They tell their story.  They are asked their opinion.  They present ideas, suggestions, alternatives.  When clients mediate, they feel involved.

2.  Clients Understand Plain Talk.

While it seems familiar to us lawyers, the legal process is daunting and unfamiliar to most law people.  But mediation is plain talk, and everyone understands plain talk.  When clients mediate, they will understand the result and how they got there.

3.  Clients Save Money.

One study by the Justice Department showed that U.S. Attorneys who mediated their cases saved 89 hours in attorney and paralegal time and over $10,000 in direct costs compared to taking the matter to trial.  When clients mediate, they appreciate the fact that you actually saved them money.

4.  Clients See the Value in Your Services.

You work hard preparing a case, but most of what you do takes place in a “black box” the client never sees.  Mediation allows you the opportunity to open up the black box and demonstrate all that you actually do for the client and the value of all that hard work.  When clients mediate, they see value.

5.  Mediation works.

Finally, mediation works.  When clients mediate, you are giving them the best opportunity to reach a successful resolution.

What, exactly, does the mediator DO?

I’ve been thinking about this issue for a while, toying with the idea of a post. I simply couldn’t think of an opening until I read Tammy Lenski’s post, “Mediation in the mainstream: the problem of observability.”

Tammy writes that while she was prepping for her mediation class at Woodbury College, she read aloud to her husband an excerpt from Daniel Bowling and David Hoffman’s Bringing Peace into the Room which delved into the perceptions of the mediator from the perspective of the participants. In a nutshell, when the parties were asked what they actually observed the mediators doing, they responded:

“Opening the room, making coffee, and getting everyone introduced.”

Unfortunately, I think this is a common perception among mediation participants – that the mediator is passive. I haven’t done any research studies but I think there are three possible explanations for this opinion:

First, many lay people are simply not familiar with mediation. They hear the words “neutral” and “facilitate”, and are told that a mediator doesn’t decide a case in favor of one party or another. They ask, “Then what, exactly, does the mediator do?”

Second, there really are some useless mediators out there. They do little else than greet the parties, offer coffee and walk around going, “They’re at $X. Are you willing to make a counter offer? You know, litigation is risky. You might lose, and spend a lot of money getting there.” Since I frequently hear complaints from clients and colleagues about these ineffectual “water carrier” and “errand boy” mediators, I know this to be true to a certain extent.

I also know some very good mediators. So the explanation that Tammy puts forth is probably equally true. As Tammy puts it, “When we’re good, when our work is seamless, and when we’re not strutting around to stroke our own egos, we and our contributions may be invisible.”

So, the question Tammy asks is, “What do good mediators do about it?”

Need we do anything? If you are a good mediator; if you provide value to the settlement process; if you manage the personalities, ask the tough questions, coax the right responses, can you really do anything else? Likely not.

I agree with Tammy that “Credible observability doesn’t come from us talking about ourselves. It comes from others talking about our work and successes.” I’ve been fortunate to have some good lawyers say some nice things about me on my website and to others. It’s a hard road to hoe, but I think you must trust that when you do a good job, the parties and advocates will remember and will spread the word.

Facilitative? Transformative? Evaluative? Whatever gets the case settled?

Geoff Sharp and Vickie Pynchon raise some interesting points in their posts today. Geoff asks, “Can settlement orientated mediators like me cherry pick from transformative process?” Vickie suggests that it is more complicated than simply using the right mediation “process.”

I’ll be frank, I know little about “transformative” mediation, and I bet few of you do as well.  According to one site linked by Geoff, transformative differs from the “other” type of mediation-problem-solving. The site explains:

The goal of problem solving mediation is generating a mutually acceptable settlement of the immediate dispute. Problem solving mediators are often highly directive in their attempts to reach this goal–they control not only the process, but also the substance of the discussion, focusing on areas of consensus and “resolvable” issues, while avoiding areas of disagreement where consensus is less likely.
* * *

The transformative approach to mediation does not seek resolution of the immediate problem, but rather, seeks the empowerment and mutual recognition of the parties involved. Empowerment, according to Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person’s point of view–to understand how they define the problem and why they seek the solution that they do. (Seeing and understanding, it should be noted, do not require agreeing with those views.) Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative mediation is to foster the parties’ empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view.

My clients do not hire me (or if I may generalize) any other mediator in this market to “foster empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view.” Mediators are hired to help parties reach a resolution.

That does not mean, however, that the techniques and theories of transformative mediation cannot be useful. Again, I am learning on the fly here, but what I have read so far about transformative technique does not seem revolutionary. A little “touchy-feely” maybe, but clearly not as mutually exclusive as the “founders” would like you to believe.

What I find somewhat amusing is the fact that a field (mediation in general) that promotes self-determination, communication, openness , collaboration and problem solving can be so fragmented and territorial. I, for one, will not reject a useful technique because it does not promote some ideological goal. Mostly because I have no ideological goal. I’m there to help the parties and if that means they want to “transform” their relationship, more power to them.