Talk to Your People, They May Surprise You.

In this uncertain economic climate, with competing camps claiming the economy is exhibiting “green shoots,” “stagflation” or is still miles from “rock bottom”, many employers are cutting costs by terminating workers.  Sure, sometimes it is a convenient reason to eliminate dead weight (and we all know most companies have that), but sometimes hard decisions need to be made about good employees.

Management often makes these decisions in a vacuum, without consulting the rank and file.   But this story out of Scotland illustrates that when you discuss difficult matters with your staff and give them a choice, they will probably act rationally.  When given the choice between layoffs and an across the board 10% pay cut (with added vacation days), the employees voted overwhelmingly to keep their jobs and take less pay.

More Divorcing Couples Utilize ADR.

A recent survey of Certified Divorce Financial Analysts (CDFA) indicates that a vast majority of those polled stating that the number of clients unable to continue to afford their services in this economy has increased since the previous year.   They further commented that this will result in more clients seeking a more cost-effective alternative to litigation, such as collaborative divorce and mediation.

I only recently became involved in domestic mediation, and I cannot specifically ascribe any increase in the frequency of my domestic mediations to the economy, but this makes sense to me.  Couples who generally see eye-to-eye but have some disputes over a few assets or maybe visitation and custody issues, are not well served by the adversarial process.  Litigation tends to escalate matters, driving up costs and delaying the finality of the divorce.

Hat tip to NJ Lawyer and mediator Donald Vanarelli.

I’m the fool.

I pity myself for acting like a little girl and whining about the possibility of sitting on jury duty for 4 weeks to help convict 6 violent criminals when Mr. T appeared for duty willingly and happily.

Popehattip

A Word to Employers – Don’t train “In-house” mediators for employment disputes.

Andrea Bucklow of The Mediation Times has an interesting post imploring businesses to resist the temptation to train in-house “mediators” to resolve HR and employment related disputes. While the idea may come across as protectionist, Amanda makes some very important and interesting points that counsel against the concept.

I think the most salient argument against in-house “mediators” is the simple fact that few reasonable persons would consider a “company mediator” as impartial or believe that information discussed in a mediation session would remain confidential.   All Most of the people I know who work for large corporations view HR employees as corporate drones who have the company’s best interest at heart.  “In-house mediators” would likely be viewed no differently.

I fully understand that in this business and economic environment, it is a tough sell to hire an outside consultant.   She has some suggestions for better dealing with internal disputes that might work.  However, as Amanda puts it,

[when a] problem arises which is too sensitive or too complex to deal with internally then seek out an independent mediator who can bring fresh eyes, new perspective, impartiality and experience to the issues and who will also gain the respect and trust of those involved.

I hate technology sometimes

My newfangled Blackberry Curve erased ALL of my calendar entries prior to the date I got it. ALL OF THEM. So, now I have no idea where I was in 2008. And the auto archive happened to run in between the LAST auto archive and the glitch that erased everything prior to March 2, 2009, so that is empty as well.

I need a drink.

Georgia and South Carolina Courts Favor ADR.

Every once in a while, someone will ask me, “Can you really make a living mediating full time?”   Despite any lingering doubts (especially that one month early on when I made $75 on mediation), I would always respond, “Yes.”  Well, the Augusta (GA) Chronicle recently reinforced something I already suspected knew: Georgia Courts favor the use of mediation and there appears to be lots of mediation to go around.

The Chronicle spoke with the director of  the Georgia Office of Dispute Resolution,  Shinji Morokuma.  He estimates that in 2008, nearly 38,000 cases were referred to mediation by the State and Superior Court system (our trial level courts) resulting in approximately 20,000 cases being resolved through ADR.  By the GODR estimate, it would take 17 full-time judges to work through that case load.

Now, the ODR has about 2400 registered neutrals, but in reality, I doubt that even 5% practice mediation “full-time”.   Even if 200 mediators bill themselves as “full time” and are trying to make a living at it, there’s gold in them thar hills.  We just have mine it.

Hi Ho! Hi Ho!

Best Wishes for a Full Recovery to Justice Ginsberg

It appears that it was caught at an early stage and her prognosis is excellent. My father-in-law is fighting cancer, so I know it can be difficult. Best wishes for a speedy recovery.

Is Co-Mediation an Option for You?

While observing mediations to meet the requirements of the Georgia Office of Dispute Resolution, I watched a very interesting employment case with a local mediator I know.  Because she engaged me in the process, we ended up sort of “co-mediating” the case.   I remember at the time thinking that it could be a very effective manner of mediating cases, but wondered whether what type of cases could sustain the $400-500 per hour needed for two mediators.

Arizona attorney-mediator Alona Gottfried recently explored the concept of co-mediation on her blog and concluded that co-mediation

may not cost more if co-mediation in fact results in the mediation being more efficient and less time consuming. Further, if co-mediation is what is needed to resolve the matter, then it is worth the cost.

Something to keep in mind.

Brown Bag Lunch and Learn for Bay Area Lawyers – Mediation Advocacy

The San Francisco Bar Association is holding a brown-bag lunch and learn on March 12, 2009 entitled, Preparing for an Effective Mediation.  It should be interesting.

I am currently working on preparing a similar program that I hope to present here in the Atlanta market this spring.  I may end up shooting myself in the foot (ha ha), but most mediations would be far more efficient if more attorneys learned to prepare as if they were going to trial, rather than scan the file at red lights on the way to the mediation table.

Really want to keep your dispute “quiet”? Hire a mediator early.

Mediator Kevin Whitaker recently commented on a news item in which a union official bemoaned the need to bring “a third party [the mediator] into our business.”   Kevin suggests that this is because “mediators don’t go around discussing their successes publicly.”

Is that really the case?  Would a union official really be wholly unaware of the benefit of mediation?  Doubtful. The fact that the union issued a press release complaining that it had to bring a third party into it’s business is completely disingenuous.   The official wanted public sympathy.   He wanted to make the big bad employer seem bigger and badder by suggesting that they wouldn’t bargain in “good faith”  and need a mediator to keep them “honest.”

Nevertheless, Kevin’s post makes some excellent points:

More disputes would be well served by the early assistance of dispute resolution specialist, someone who is interested in getting to a solution rather than defending a position or advancing an interest. Interestingly enough, with a skilled mediator’s help, odds are more disagreements will be resolved quietly before the dispute ever becomes newsworthy. Thus, if you really want to keep outsiders “out” and your dispute quiet, mediation may actually be the best place to begin.

I always tell the parties in mediation that one of the key benefits is confidentiality.   Free from the concern that their willingness to compromise might be used against them later, the parties should be able to discuss their interests candidly.  Furthermore, if the subject matter of the suit is particularly sensitive, like a harassment suit or even malpractice allegations, mediation can be a way to discuss settlement without putting the matter on record.  I keep things so confidential, I even shred my notes after mediation.

If you really want to keep your dipsute “quiet”, then you should really consider hiring a mediator early.