Divorce Law Journal

ADULT & YOUTH MEDIATORS CELEBRATE MEDIATION

From the Louisville Bar Association:
LOUISVILLE—As the number of juvenile delinquency and violence cases involving our cities' young people continues to grow, the Louisville Bar Association (LBA) is doing its part by helping to educate our youth by teaming up with JCPS and other local organizations to host the inaugural program A Meeting of the Minds on Tuesday, November 18.

The program, developed as a partnership between the LBA's ADR/Mediation Section, Just Solutions and Peace Education Program, brings together adult and youth mediators to exchange information and ideas while celebrating and promoting peer mediation, a process that is affording elementary, middle and high school students the opportunity to learn new skills to deal with and resolve conflicts.

A Meeting of the Minds will involve 50 middle school students from Olmsted Academy North and Olmsted Academy South. These Jefferson County Public Schools were selected because their youth mediators conduct approximately 200 mediations annually and have made tremendous strides in reducing high levels of conflict within their respective schools. The selected students have completed peer mediation training and use the skills they have acquired to resolve disagreements in a peaceful, non-violent manner.

This program will be held in the Louisville Bar Center from 9:30 a.m. to noon and was made possible by a generous grant from the law firm Greenebaum Doll & McDonald.

The program is being offered to the Olmsted North and South staff and their students free of charge.

For more information about A Meeting of the Minds, contact Cindy Robinson at (502) 583-5314 or via e-mail at [email protected].

About the Louisville Bar Association

The Louisville Bar Association is Kentucky’s oldest continuously operating bar association and is among the 40 largest local bars in the country with over 3,400 members and subscribers. The association’s mission is to promote justice, professional excellence and respect for the law, improve public access to the judicial system, provide law-related services to the community, and to serve its members.

Cooperative Or Collaborative Family Law - Which Is Better?

I am pleased to have the permission of Madison, Wisconsin attorney Linda Roberson of the firm Balisle & Roberson to publish lock, stock and barrel her most thought provoking comparison of collaborative and cooperative family law.

Collaborative Divorce or Cooperative Divorce?
“Collaborative divorce” is the new buzz word in family law practice. Its proponents enthuse about better and less costly settlements, greater client satisfaction, fewer accounts receivable, and less stress in the practice of law, than they can achieve through a conventional approach to family law disputes. How realistic are these claims? What are the down sides of “collaborative divorce”? Does the concept of “collaborative divorce” present ethical pitfalls and possible malpractice minefields for the unwary practitioner?
Lawyers who participate in the “collaborative divorce” movement use methods borrowed from more established alternative dispute resolution procedures to resolve family law disputes without litigation. However, unlike more accepted dispute resolution procedures, in “collaborative divorce” the lawyers and their clients agree that they will not engage in formal discovery, will voluntarily disclose information, and will settle the case without court intervention of any kind . They assume a duty to inform the attorney for the other party of errors they note in opposing counsel’s legal analysis or understanding of the facts. If they are unable to settle the case, both lawyers must withdraw from representing their respective clients and the estranged spouses must start over with new counsel.
Good Lawyers Routinely Practice Cooperatively
Even the most enthusiastic supporters of “collaborative divorce” concede that the concept of settling cases rather than litigating them is hardly novel. Capable family law practitioners have always directed their effort and creativity toward reaching agreement rather than duking it out in court. It isn’t news to anyone that litigation is expensive – sometimes prohibitively so – and that the most satisfactory settlements derive from skilled negotiation between capable counsel rather than a court-imposed resolution of disputed issues. How does the idea of “collaborative divorce” differ from what experienced practitioners do as a matter of course?
Courtesy. The commitment of lawyers and parties to treat each other courteously is not a new one. Capable attorneys consistently endeavor to work cooperatively with opposing counsel to identify and value assets, set and meet scheduling deadlines, and otherwise facilitate resolution of the case. They respect legitimate positions taken by the other party and encourage their clients to be realistic and respectful as well. They are willing and able to compromise, and they are creative in crafting acceptable resolutions of disputed issues. “Collaborative divorce” supporters intimate that their process is unique because lawyers commit that they will not “threaten, insult, intimidate, or demonize” other participants in the divorce process. Good lawyers don’t do that now. The American Academy of Matrimonial Lawyers, which historically has provided a model for good practice nationally, has promulgated “Bounds of Advocacy” that set a high standard for professional courtesy and cooperation.
Emotional cost. “Collaborative divorce” proponents say their process is designed for parties who don’t want to go to war and who don’t want “to hate each other for the rest of their lives.” This description fits the vast majority of family law clients, including most of those whose cases end up in court. Clients almost always care about the emotional cost of adversary proceedings, and about the impact of the divorce action on their children and other family members. To suggest that people who really care will give up the protections provided by court oversight is to do a vast disservice to most of our clients.
Financial cost. “Collaborative divorce” supporters want to reduce the costs of the process by streamlining the discovery process. This also is not a new idea. Good lawyers have always sought to keep formal discovery to a minimum, to share costs of appraisals, to stipulate to values, and to cooperate in other ways to keep costs down. Many experienced practitioners routinely utilize mutually agreed upon short-form interrogatories, four-way meetings, joint telephone or in person conferences with experts, and other such collegial arrangements.
As the above analysis indicates, the goals espoused by “collaborative divorce” lawyers do not differ in degree or in kind from the goal of the vast majority of the family law bar. Most lawyers try a cooperative approach first. Most lawyers agree – and most of their clients concur – that resolution of issues by settlement is preferable to litigation. And in most cases, lawyers and their clients resolve disputed issues by agreement and do not resort to the courts.
The Limits of Collaboration
Despite the most concerted efforts of capable counsel, we all know that not all cases settle, and those that do settle sometimes don’t settle easily. All of us have encountered the frustration of the last-minute, courthouse steps agreement, after completion of all the work and stress of trial preparation. Why is it that some cases don’t settle until the very last minute, and some cases don’t settle at all?
Unsettled Legal Issues. Legitimate reasons to resort to litigation are not always evident at the beginning of a case. Much appellate work involves issues the existence of which – or at least the seriousness of which – did not surface until significant discovery and negotiation had occurred. Where the law is unsettled or where counsel genuinely disagree about the appropriate interpretation and application of the law to the facts of their case, it is not only reasonable but necessary to ask the judge to intervene. Cooperative counsel can reduce the complexity and expense of litigation by limiting contested issues, stipulating facts where possible, agreeing in advance to the admission of exhibits, declining to engage in delaying tactics, and other behavior that is both practical and considerate. Lawyers can commit themselves to conduct the proceedings without animosity and can counsel their clients to be courteous to the other side. But the court has the last word on interpreting and applying the law.
Reality Testing. All clients say they want a “fair” result and many of them genuinely mean it. But they may have a very self-absorbed definition of “fair.” Many years ago Leonard Loeb, whose wisdom and example have greatly influenced the development of a civilized standard of practice for family law attorneys, pointed out an important truth: “Sometimes the hardest negotiation you have to engage in is the one with your own client.” A client who simply cannot see the broader picture despite counsel’s best efforts may require the reality therapy of a temporary order hearing, or a pretrial with the judge, or a deadline for responding to formal discovery, in order to be capable of backing down from an unreasonable stance so settlement negotiations can proceed.
Scheduling Orders. We have all represented a left-behind spouse who does everything possible to avoid or at least delay the divorce, or a party who is preoccupied with business affairs or other family problems and just can’t get around to dealing with the work and decision-making implicit in the divorce process. If one party would prefer that the marriage continue, or if completing the action is not a priority, the court may need to facilitate progress in the case by issuing a scheduling order and setting deadlines. Counsel can cooperate by being reasonable and courteous in setting initial deadlines and in agreeing to extensions where necessary. The process need not be – and usually is not – antagonistic.
Financial Disclosure. A client may, deliberately or inadvertently, fail to disclose assets without the rigorous attention to financial detail that formal discovery entails. Surely we have all had the experience of finding forgotten assets when a client produces the records necessary to back up his or her interrogatory answers. In other circumstances, the client and/or counsel may need the assurance of due diligence in discovery in order to be comfortable with a proposed settlement, especially where the estate is complex or the assets are substantial.
Stability. Then there is the personal factor: divorce presents a significant life crisis for most of our clients, and we see them at their most vulnerable and most needy. The commencement of a divorce action is often accompanied by anxiety, guilt, an danger, and may throw a family into chaos. If one party’s antagonism toward the other is so overreaching that he or she is unable to proceed rationally and courteously, interim court orders may be the only way to achieve a level of stability that permits collaborative discussion of the long-term issues presented by the case.
In each of the above situations, the legal system provides structure and finality, and often sets the stage for the ultimate negotiated resolution of the matter. Court processes, rather than being an impediment to settlement, often facilitate it.
The Effectiveness of a “Collaborative Divorce” Approach
Do “collaborative divorce” techniques provide an effective response to the above limitations? Unfortunately, they do not.
Reality Testing. A client whose sense of “fair” is out of kilter with that of the other party and the lawyers will defeat the collaborative process, and both sides will have to incur the expense and delay of starting over with new counsel. Reality testing through a temporary order hearing or a pretrial with the judge is not an option in “collaborative divorce.” The lawyer representing a difficult client must either advocate for the client’s unreasonable position or take a public position adverse to the client’s view. An attorney cannot ethically make either of these choices, The first is at least arguably frivolous; the second violates the requirement that we advocate diligently for our clients. Proponents of “collaborative divorce” have not provided a solution to this ethical dilemma.
Delay, Expense, and New Counsel. A client who wants to stall progress in a “collaborative divorce” can do so indefinitely, until the court threatens to dismiss the action and the party wishing to proceed must then retain new counsel to request a pretrial. Again, both sides incur the expense and delay of bringing a new attorney up to speed. The attorneys who know the facts and have established rapport with their clients cannot continue to be involved. How can this result benefit anyone?
Diligence. Lack of due diligence in discovery may subject the attorney to a malpractice claim [see Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 362 N.W. 2d 118 (1985)], may violate the ethical requirement of diligent representation, and may make the client uneasy about signing on the dotted line. In complex cases and cases in which there is a disparity in the spouses’ respective familiarity with or involvement in financial affairs, the security of formal discovery is not available to help resolve “collaborative divorces.”
Timely and Efficient Court Intervention. If there is sufficient antagonism that experienced counsel are unable to negotiate an agreement, or if one party refuses to comply with an agreement, court intervention is necessary. Under the “collaborative divorce” approach, both lawyers must withdraw just at the time that an attorney who knows the case is most effective.
Malpractice Issues
In collaborative divorce, the parties and their respective lawyers sign a single contract, at least arguably creating obligations of each lawyer to the other attorney as well as to both clients. The collaborative law contract puts each lawyer in privity with both parties and with opposing counsel, creating a basis for contract claims to which an attorney is not exposed in standard practice. Moreover, the collaborative divorce contract assumes, though it does not specifically state, that each client completely waives his/her attorney’s obligations to maintain client confidentiality and not to inform the other party or lawyer of his/her legal, factual, or strategic errors. Yet, the contractual commitments required for “collaborative divorce” eliminate these obligations and substitute in their place obligations to disclose and to inform that are at least theoretically actionable either as contract claims or negligence (malpractice) claims.
Assume that Attorneys A and B and their clients have agreed to proceed with a “collaborative divorce.” Attorney A makes a mistake that disadvantages client A and benefits client B. If Attorney B fails (deliberately or negligently) to correct the error, can client A sue Attorney B for malpractice? If Attorney B corrects the error, to his/her own client’s detriment, can Client B sue Attorney B for malpractice? Does the existence of a “collaborative divorce” contract provide a defense to malpractice? Does it increase malpractice exposure by permitting each party to sue both lawyers?
If, unknown to Attorney A, Client A fails to provide full financial disclosure and thus disadvantages Client B, can Client B sue Attorney A for malpractice? Can Client B sue Attorney B for failing to take steps to discover the omission? Can Client A sue either or both of the attorneys for malpractice if the nondisclosure was inadvertent and would have been discovered through standard formal discovery, and if the effect of the error is that the judgment is vacated and litigated with new counsel with Client A held liable for Client B’s additional costs?
If Attorney A fails to spot an issue that would likely be resolved in Client A’s favor, does Attorney B have a duty to raise the issue? If Attorney B fails to do so, can Client A sue Attorney B for malpractice? If Attorney B raises the issue, can Client B sue Attorney B for malpractice?
Have you notified your insurance carrier? How will you pay for breach of contract litigation and possible judgments against you that your malpractice insurance does not cover?
“Collaborative Divorce” May Increase the Cost of Divorce
“Collaborative divorce” is marketed as a cost-saver for clients, but is it really? We all know that settlement is less costly than litigation. The issue is not whether “collaborative divorce” is less expensive than litigation, but whether it permits participants to spend less than they would if they employed more conventional settlement approaches. Most lawyers try informal discovery first and proceed to interrogatories or requests for document production or depositions only where informal attempts have failed or where the information provided is suspect. Most lawyers schedule contested trials only after repeated attempts to arrive at negotiated settlements. Most lawyers genuinely believe that better and more creative settlements can be achieved through negotiation and creative planning rather than through a court-imposed resolution. Virtually no good lawyer chooses litigation as the first and best option.
In a conventional divorce, the lawyer who has worked up the case, who knows the client and the facts, and who understands the interpersonal dynamics of the case, can use this knowledge base to proceed if necessary to a litigated conclusion. In “collaborative divorce,” if negotiations fail the clients have to begin again with new counsel and pay a new lawyer to learn the complexities of the case. If the clients have a relatively simple financial situation, they probably can’t afford to pay twice. If they have a complex situation, the time and expense necessary to duplicate or recreate the financial analysis and valuations will likely be outrageously high. In some cases, clients may save some money, though there is no evidence that “collaborative divorce” is less costly or less time-consuming than any cooperative settlement approach. In other cases, however, overall costs will skyrocket, and the time it takes to complete the process will be significantly extended because of the duplication of effort entailed by substitution of counsel. And while “collaborative divorce” proponents suggest that its practitioners will have fewer uncollected accounts, one may reasonably question whether clients who are forced to change lawyers will fully pay both sets of counsel.
Is “Collaborative Divorce” a Better Process?
Advocates of “collaborative divorce” say that clients are motivated to learn problem-solving strategies because there are no “court threats.” In some cases that may be true. Experienced attorneys know, however, that with many clients it is precisely the ability to schedule court dates and set deadlines that provides the impetus for settlement. Cases often settle only when delay is no longer possible and the time for gamesmanship is over. We’ve all had the experience – probably on both sides – of dealing with a client or opposing party who stubbornly sticks to a position until trial is imminent. Clients who employ more efficient problem-solving strategies do so in most cases because they understand that they will get the best results that way, and a contested trial date need not be scheduled in order to negotiate a settlement. There are no “court threats” because they are able to resolve their differences without the looming specter of a contested divorce. Moreover, where the bargaining positions of the respective clients are unequal – one is more financially experienced, or more legally knowledgeable, or simply more intimidating – the reality of “what the judge will likely do if we go to court” may be crucial to a fair settlement.
“Collaborative divorce” supporters also claim that clients are “more satisfied” with the results achieved with the collaborative approach. It’s not news that clients are more amenable to and more willing to comply with the terms of an agreed settlement than one that is court imposed. But what is the evidence that clients are “more satisfied” with a collaborative settlement than with a settlement reached through conventional cooperation and negotiation?
“Collaborative divorce” proponents contend that the process offers a way to practice law that is “more positive, more challenging, more rewarding, and more fun” than conventional practice. This is simply not the case for those of us who have historically settled most of our cases creatively, without having to give up the option to litigate if negotiations break down, or to dodge ethical issues, or to assume additional malpractice exposure..
Cooperative Divorce
The attorneys who are spearheading the “collaborative divorce” movement have adopted this idea with the best of intentions. They are looking in good faith for a more humane and less stressful way to deal with the sturm und drang of marital dissolution. They are legitimately frustrated with the waste of time and duplication of effort that goes into simultaneous settlement negotiations and trial preparation. They want to make a hard time easier for their clients and for themselves.
We can work toward these goals without running afoul of ethical rules, increasing malpractice exposure, and refusing to use the available resources of the court system appropriately to facilitate negotiated settlements wherever possible. Let’s call it “cooperative divorce.”
The “cooperative divorce” practitioner would:
Respect all parties and counsel and treat all participants courteously.
Respond promptly and in a straight-forward way to requests – both formal and informal – for information. (No paper bags full of unsorted documents, receipts, and junk mail in response to a request for production of documents; if you need an extension of time, explain why and ask for it rather than leave the opposing attorney to guess when he or she will hear from you, etc.)
Cooperate with rescheduling requests, requests for extensions, and the like as a matter of common courtesy. Everybody needs a break sometime.
Tailor information requests to the information needed for each specific case, rather than sending blanket, form discovery documents or routinely scheduling depositions without a specific purpose.
Educate his or her client about the other party’s rights and perspective, rather than simply supporting the client’s position regardless of its merits or the realities of the case.
Encourage the client to take a broad view and consider relationship issues. Help the client focus on the issues that can be resolved within the legal system and discourage justification of the client’s bad behavior on the basis of the estranged spouse’s total lack of redeeming qualities.
Prepare seriously for settlement negotiations; do the homework that is necessary to conclude the case. Run after-tax cash flow schedules and marital balance sheets; put together comprehensive parenting plans, update financial statements – as if the case were going to trial instead of a negotiation session. Too often we contribute to delays by being unprepared to negotiate effectively.
Keep his or her word. If a cooperative lawyer commits to provide information or a document draft by a certain date, he or she does so or makes a courtesy call to explain an unavoidable delay. If a cooperative lawyer makes a proposal in negotiation, he or she does not renege on the proposal on the table and retreat to a more favorable position for his or her client.
Use the legal system as a resource to help settle the case if appropriate.
Understand the rich menu of alternative dispute resolution resources and recommend their use as appropriate.
Maintain a civil and courteous approach. If litigation is necessary, stipulate where possible, cooperate with the admission of exhibits, accommodate the other side’s expert witnesses, and advocate for his or her client without becoming antagonistic.
Most good lawyers do most of these things most of the time. But we all slip up on occasion. Committing to “cooperative divorce” avoids the problems of “collaborative divorce” and improves the practice of family law.
Thanks to Gary Young, Allan Koritzinsky, Linda Balisle, and Margo Melli for their input and support of the “cooperative divorce” concept.
This article provides general information only and is not intended as a substitute for legal advice. Nor does this article imply any attorney client relationship. This article is for informative purposes only and may not apply in your state, please consult an attorney in your area.

Thanks, Linda. I hope your pearls of wisdom lead to cooperative panels of lawyers in Kentucky, as you have in Wisconsin. Many of us jumped on the collaborative family law bandwagon and some of us are starting to see and hear of some of the problems you mention.

Raisor v. Raisor, Ky Mediated Settlement Agreement

Raisor v. Raisor, ___S.W.3d___(Ky. App.)Ex-Wife appealed from TC’s order adopting the Separation and Property Settlement Agreement between Ex-Wife and Ex-Husband. The parties had reached a property settlement agreement at mediation, memorialized by the mediator's handwritten notes, which was signed by the parties, their respective attorneys, and the mediator. Thereafter, Ex-Husband's attorney tendered a formal settlement agreement incorporating the terms of settlement with the mediator’s handwritten notes attached. After Ex-Wife contested Ex-Husband's version of the agreement, DRC concluded that the agreement tendered by Ex-Husband reflected the settlement reached by the parties during mediation and recommended that TC accept the agreement, to which Ex-Wife filed exceptions. TC accepted DRC's recommendations and this appeal followed.

Because she did not make the argument to TC, CA rejected Ex-Wife’s argument that Ex-Husband's tendered settlement agreement could not be proven as a true recitation of the agreed-upon terms because the handwritten mediation notes were ambiguous and did not constitute a “written separation agreement” as required by Kentucky Revised Statutes 403.180(1). In fact, she had argued to TC that the handwritten notes should be accepted as the parties’ agreement. CA declared that Ex-Wife could not “feed one can of worms to the trial judge and another to the appellate court.” CA also rejected Ex-Wife's second argument, that TC’s review was inconclusive because the parties failed to submit financial disclosure statements required by the 53rd Judicial Circuit's local rules, because this argument was also raised for the first time on appeal. TC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

One To Be Published Ky Family Law Case Today, Mediated Settlement Agreement

A full digest will follow shortly, but here's the short version: Raisor v. Raisor, Handwritten settlement outline signed at mediation was incorporated into formal MSA and approved by trial court. Affirmed. At trial court wife wanted outline approved but not MSA prepared by husband. On appeal she claimed outline ambiguous. One can’t “feed one can of worms to the trial judge and another to the appellate court.”

Solving Custody Disputes Outside The Legal Arena

From Rachel Levy's report in Expatica, some quotes:

Three years ago, Dutch national Hans's life was one of turmoil as he, his children and ex-wife living in Canada were entangled in a messy child custody wrangle.

Following a tough international legal battle, he had won custody over his children and brought them back to the Netherlands.

There he discovered they resented him for fighting their mother. Bringing them up alone was another factor he found himself unable to cope with.

Communication had all but broken down. But then he found a solution - mediation.

A conference of 50 professionals in Apeldoorn is now discussing this new approach - mediation instead of litigation - as a way of resolving serious cases like that faced by Hans.

"After beating my ex-wife in court in the 1980 Hague Convention procedures that helped me return the children to the Netherlands, I discovered I had won a legal battle but lost my family," Hans told Deutsche Presse-Agentur dpa.

"Communication with my ex-wife had reached an absolute low following the legal proceedings. The children resented me for taking them out of their environment just when they finally felt settled in Canada. They also had a difficult time living without their mother."

Their mother, working part-time, had always been the children's primary caregiver. Now, Hans had to replace her while working full-time. It proved impossible.

Mediation resolved the problem.

"We negotiated a new settlement for more than eight months and drafted a parenting plan for custody and visitation. The two youngest children returned to their mother in Canada. Our eldest son stayed with me," he said.

His story marks a change in the way professionals today deal with the 1980 Hague Convention on Child Abduction.

This agreement helps prevent abductions, but in the process throws parents into new legal proceedings. This does not contribute long- term parental cooperation.

"Particularly common law countries are known for creating maximum adversity between divorcing parents," says Denise Carter, director of Reunite.

Reunite is a British non-governmental organisation that helps parents who deal with international abduction, travel or relocation.

Reunite was also present at the Apeldoorn conference, organised by the independent non-governmental Centre for International Child Abduction (IKO).

Contrary to many countries nowadays, the Dutch do not automatically offer mediation in Hague Convention proceedings.

"This is surprising, considering the strong Dutch mediation tradition," says Eberhard Carl, a German liaison judge who deals with international legal proceedings and mediators.

"I always tell parents any mediated settlement will make them happier than a court ruling. With mediation people regain control over their lives," he added.

International mediation works with two mediators: one for each of the parent's gender and culture.

German attorney and mediator Christoph Paul says: "It is crucial that both parents feel recognised during mediation. And they need recognise their children's binational identity."

Judge Carl notes that in western Germany, "mothers looked after young children themselves. French mothers send their babies to daycare. So you often see a French father claiming his German wife "is isolating" their 2-year-old daughter by keeping her at home.

"Vice-versa, German mothers don't understand why a French father involves his parents so much in family issues," he added.

Paul notes the cultural aspects involved in such cases: "Family members play different roles in different cultures. That is why cross-cultural mediation requires mediators from both cultures."

Whether mediation will be integrated in all 1980 Hague Convention proceedings, remains uncertain.

"Mediation can only be successful if both parties have an open mind and are willing to consider different, original, solutions," Paul asserts.

"A pragmatic mind-set is key to conflict-resolution. It is however important to remember that pragmatism is primarily a feature of north-west European culture," he added.

Time For A Change: Is Mediation Ready For Reform?

Maybe it's not mediation that's ready for reform, but our reliance on lawyers using evaluative mediation that's ready for reform. Diana Levine at Online Guide to Mediation in her post Time for a change: Is mediation ready for reform? quotes from the Southeast Texas Record:

For "big stakes" cases, like civil litigations coming out of district courts, lawyers make up about 95 percent of the mediators, Alfini said. In small claims and family law disputes, the number is about 50 percent.

The law professor said that when lawyers become mediators, it can reduce the role of the actual disputing parties, as negotiations often take place among the lawyer-mediator and the counsel for the parties, not the parties themselves.

"This mutes the parties and returns it to a lawyer-centric, not party-centric system," Alfini said.

When lawyer-mediators take on an evaluative role - offering opinions on settlement options - the framework is narrowed and it invites attorney dominance to the process. By suggesting an amount or specific option for settlement, studies have shown that in the end the parties are less satisfied with the outcome of the mediation, feeling that the mediator was somehow partial to one of the sides.

Alfini said on the decline is the joint session in which the two parties and the neutral mediator sit down together at the conference table. Taking its place is a form of "shuttle diplomacy" - one party or its counsel in one room, the other party in another room and the mediator going back and forth between the two.

"This sacrifices effective justice for efficient deal brokering," he said.

Gone is the opportunity for the parties to tell their side of the story directly to the opposing party, Alfini said. Instead of give and take between the parties, which can lead to a settlement agreeable to both, the parties now rely on the lawyer-mediator to tell the story for them.

Ten Settlement Conference/Mediation Traps For The Unwary

Pure gold: Ten Settlement Conference/Mediation Traps For The Unwary, from Settle It Now Negotiation Blog.

What Family Lawyers are Really Doing When They Negotiate

Andrea Schneider at Marquette University Law School has a forthcoming article with disconcerting but not surprising conclusions, What Family Lawyers are Really Doing When They Negotiate. From the abstract:

After discussing what skills are needed for effective negotiation behavior, the Article then looks more closely at how family lawyers in particular are negotiating. Examining some troubling data, this Article finds that family lawyers appear to be more adversarial and less problem-solving than other types of practitioners - even though their field of law, which involves emotion-laden disputes and ongoing relationships, seems to call for more problem-solving and a less adversarial approach. This article concludes by discussing why this might be so and what the family law bar and family law professors should do in the future to address this problem.

Available at SSRN. As the author points out, perhaps in part this is due to more easy middle class cases going pro se, leaving the messy ones to the divorce lawyers. See Indiana Law Blog post from October 7, 2007, "More often than not, in civil courts these days lawyers are being replaced by their own clients" here. Clearly, though, there is much improvement to be had and better and more CLE in negotiating is needed. Thanks to Geoff Sharp of Mediator blah...blah...for alerting DLJ to the article.

Caucused Mediation Inherently Deceptive?

Take this 2000 mediate.com article by JAMS neutral and former U.S. Magistrate John W. Cooley, Defining the Ethical Limits of Acceptable Deception in Mediation for a spin.

This article proceeds from the premise that consensual deception is the essence of caucused mediation.

This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.

First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions).

This means that:

each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and
if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator.
In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information -- granted, agreed deception -- but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.

Lifted entirely from Victoria Pynchon's Settle It Now Negotiation Blog, with thanks. Fascinating, especially in these parts where almost all we see is caucused mediation.
UPDATE:
Comment from Geoff Sharp at Mediator blab...blah...:

Diana, I'm interested in your comment that most of what you see in your neck of the woods is caucused mediation. I'm always suspicious of mediators who work in this way.

I believe that usually, it's either laziness or a lack of confidence/competence. The brain surgery of mediation is in joint session - that's where we ply our trade.

Other views?

Mediation: 40 Sites In 40 Minutes

For presentation at the 9th LEADR International Dispute Resolution Conference, Wellington, NZ later this month, Mediator Blah...Blah...'s Geoff Sharp has scoured the internet and accumulated a great list of mediation and negotiation sites for his topic, 40 Sites In 40 Minutes, online here. You don't have to travel around the world to get the benefit of his leg work.

Negotiating With Liars

Check out this great post at Online Guide To Mediaiton titled Won't get fooled again: negotiating with liars.

Blogging By Family Law Mediation Participants

Parties to mediation blogging about the mediation should come as no surprise, on the heels of litigants blogging, as we reported here, here, and here. Now, New Zealand's Geoff Sharp at Mediator blah...blah... posts a number of blog sites he discovered where a party to mediation was writing about it, in the U.S., and in divorce matters. His comment:

My theory? I think we are seeing blogs being used as vehicles for venting.

That does not make the confidentiality issues raised any the less, but it does make sense... what do the books say to do when a party can't contain themselves at the table?...ask them to 'just write it down for the moment and we'll get to it'

In fact one of the posts has this apology tagged on to the end of it;

"Sorry for the venting but just needed to type out my frustration... I do not plan on proof reading this so may God forgive me for the wrongful things that were portrayed in this blog"

Interesting, no?

Several other mediators have posted spot on comments

Vickie Pynchon said...
I don't know what your confidentiality laws protect. Here, all mediation communications are privileged from disclosure in court or administrative proceedings. The critical question would be this: does party A waive the protection by blogging about the mediation; if so, attorneys and mediators should be warning about this type of public disclosure. I had a mediation recently where one of the parties to the SECOND mediation had blogged about the FIRST mediation. No one said anything about it (I do my homework) but now I wonder whether I should have said something to the attorneys in separate caucus to warn their clients about blogging on THIS mediation.

Tammy Lenski said...
Geoff, that is interesting. I guess we shouldn't be surprised that parties are blogging their experiences and feelings, but it's still eyebrow wrinkling to read it.

I think what I find most compelling about what you've uncovered is that those posts give us a look into thoughts that are often kept from us. It's important reading for mediators, I think...sort of a peek into the inner sanctum of parties' heads and hearts.

Thanks for searching those out.

Colm said...
This is great stuff to uncover as "feedback" is so difficult to get.

I am less concerned over the confidentiality aspect of the examples, than the underlying issues which seem to me that maybe we are not doing so well in uncovering "interests", if indeed a client need to vent (or to feel heard/listened to) is being ignored.

Is this because we are not "really" listening to our clients? Colm

In Part II, Geoff gives us more examples of mediation participants blogging. I think Vickie Pynchon's concern about the possibility of blogging waiving the confidentiality of mediation is a good legal point to keep in mind and Colm's observation that maybe clients who blog about mediation don't really feel heard is at the heart of what causes these participants to vent online.

Mediation Survey

Results of a national survey on mediation will be posted next week at Settle It Now Negotiation Blog. You can participate in the survey by clicking here.

Terrific Tips For Mediators

Check out this post at Mediator blah...blah... for great lists of mediator tips.

Unresolved Legal Issues May Make For Unsuccessful Mediations

I don't know Hon. Leonard N. Arnold. I hope he doesn't mind me swallowing his blog post at New Jersey Law Blog whole. The blog is a firm promotional site of the sort to which I do not usually link, although I do note that John S. Eory, an AAML Fellow, is a shareholder in the same New Jersey Stark & Stark law firm. Judge Arnold's sentiments make such good sense that I am glad I subscribed to the blog feed and came across this post. It doesn't matter if it is construction law or divorce law, when big dollars are at stake, the impediments to settlement can be the same. In divorce law, the opportunities for facilitative mediation are greater, but few in these parts are approaching mediation in that fashion.

Mediators want high “batting averages”–i.e. a very high percentage of mediations which successfully resolve all matters in dispute. As a mediator so do I, and there is nothing more frustrating to this mediator than a mediation which fails because the lawyers have failed to recognize outstanding legal issues and how the resolution of those issues affects the “value of the case.” In such circumstances, a lawyer cannot perform a litigation risk and cost analysis which is a necessary predicate to a successful mediation. Furthermore, the lawyer has probably given the client an unrealistic evaluation of various claims making it difficult to successfully mediate the case. And when several of the lawyers participating in the mediation have given their clients unrealistic evaluations, it is almost impossible to have a successful mediation. How do I as a mediator attempt to overcome the problem of unresolved legal issues?

First, as soon as I am retained I attempt to obtain as much information as possible. I immediately request copies of all the pleadings and all briefs which have been filed in support of motions. I then schedule a telephonic conference to uncover outstanding discovery issues. At the telephonic conference I set a firm date for the submission of confidential mediation statements, and analyze them as soon as received. After analyzing all this material I make an initial decision whether to handle the mediation in a facilitative style or an evaluative style or a combination of both.

Using a purely facilitative style a mediator tries to assist the parties in identifying and exploring interests, motivations, concerns, common ground and possible resolutions. But, a mediator using a purely facilitative style does not draw conclusions for the parties. The mediator does not offer opinions regarding legal positions or potential litigation outcomes. Unfortunately, a purely evaluative style cannot result in a successful mediation when there are outstanding legal issues which have not been considered by one or more parties in making a litigation risk and cost analysis.

Instead of using a purely facilitative style I gently pursue an evaluative style. In an evaluative style a mediator is likely to offer opinions on the strengths and weakness of the case. But, I approach this evaluative style very gently. After I discover a serious unresolved legal issue I generally write counsel and tell them that I have discovered a case or a line of cases which may affect the mediation process and ask for counsels’ opinions. Or, I may request that counsel provide me with case law that supports an important legal position. However, only when the parties to the mediation process believe that my opinion is necessary will I provide an opinion.

I try by using a modified facilitative approach to encourage the parties to consider the subject of unresolved legal issues and make realistic litigation risk and cost analyses before the day of mediation arrives. Settlement is then much more likely. And, SETTLEMENT is what I seek.

Divorce As Combat

The cost of conflict: what happens when we frame divorce as combat is the title of a nice post by Diane Levin at Online Guide To Mediation. She was successfully able to put into words (and much more politely than I could have) some of my thoughts when I read about the book to which she refers, Hit Him Where It Hurts: The Take-No-Prisoners Guide to Divorce--Alimony, Custody, Child Support, and More.

What Should A Mediator Do After A Mediation When The Case Doesn't Settle At That Session?

From Geoff Sharp at Mediator blah...blah... at Cold Case:

In her recent interesting posts Mediation Follow Through… Extremes and Should family mediators follow through? Kristina Haymes raises the vexed question of how far do we mediators go to settle a case after an unsuccessful mediation?

If it doesn't settle on the day, do you;

* leave it where it lies?
* arrange to reconvene the mediation before the parties leave the room?
* touch base the next day/the next week/a year later to see if, having slept on it, there are any second thoughts?

...or something else? And do you charge for it?

A while back I took an unscientific survey of what my colleagues at the International Academy of Mediators and Prof. John Wade of Bond University, Queensland, Australia do when they can't get there on the day.

In my article that came out of the survey, I Know It’s Not My Problem : But It Happened On My Watch! someone left an insightful comment, even if it was a little cutting;

"...You have raised a very interesting point. How far do mediators go and what drives them - their own ego and resolution rates or what the clients actually want??"

From my survey some general themes emerged;

P.U.S.H.
The Persist Until Something Happens principle…. many colleagues surprised me with their tales of perseverance. Some were contacting parties up to a year after the mediation had concluded and talked of giving counsel a “window’ to again discuss the matter with the client as well as an excuse to contact their opposite number.

Email
Email is used heavily in this area – its cheap, non-intrusive and avoids telephone tag. It also shows the mediator to be interested but leaves the initiative with counsel to get the mediator back in.

Email provides an ability to craft a well-timed note and avoid ill-considered communications that may be abused by one party or the other in subsequent judicial proceedings.

But keep yourself safe. Do this by covering the basics like recording that the email remains part of the mediation process and that it is confidential to the parties.

‘We are done but we are not finished’
Mediators are adjourning mediations but not terminating them. By leaving the door ajar the parties have a way back into the room that avoids anyone having to be seen as initiating a restart.

Marketing
Many of us are finding that perseverance is a great look for a mediator and that it is valued by our clients right up there with the patience, persistence and optimism that we showed them during the session itself.

Two sorts of interventions
There seem to be two categories of interventions that experienced mediators use when the parties remain in dispute after mediation;

1. the first is, interventions usually tried by the mediator at the end of the mediation session itself, and

2. the second type is the ‘morning after’ variety.

Examples of both types of interventions are offered here.

You might also like to take a look at John Wade's article and his suggestion that a written follow-up turns a ‘failed’ negotiation session into a perception of (painful) progress and provides a clear document to reflect upon rather than conflicting memories of tense spoken words.

I started to summarize this article, but the best I could do was swallow it whole. It's good to check Geoff's posts for constant stimuli.

My answer to the query? Keep pushing and send me the bill. My clients want their cases settled.

Dr. Dan Shapiro From Harvard Negotiation Project Returns To KY

Thanks to Kentucky Cases for giving the "heads up" on Navigating Emotional Roadblocks for Effective Mediation set for April 17, 2007 in Lexington, KY. It is bound to be a fabulous program, featuring Dr. Dan Shapiro, associate director of the Harvard Negotiation Project, and author of Beyond Reason: Listening To Emotions As You Negotiate. The brochure is here.

How To Help Your Mediator Settle Your Case

After discussing Five Reasons Why Your Clients Have Unwarranted Faith in the Righteousness of their Cause Victoria Pynchon at Settle It Now Negotiation Blog give us Five Ways Your Mediator Can Help You "Depress" Your Clients' Unreasonable Expectations:

1. let the mediator know you need some help with your client. Call him ahead of time if he doesn't call you to discuss the nuances of the mediation session itself. You can be candid without giving away the store.
2. let the mediator be the "fall guy," taking the "hit" for delivering this bad news -- while you, one of the best attorneys in town, were busily developing a great case, the other side's attorney was doing precisely the same thing.
3. allow the mediator to develop as strong a personal relationship with your client as possible and permit her to ask probing questions that will gently reveal the problems with your case that have developed over the course of time.
4. be willing to break away from your client for separate session caucases with the mediator to discuss how things are going in the attorney-client dynamic so that course-change is possible.
5. let the mediator know that your client is going to need more time to digest bad news -- if your mediator doesn't offer, ask him to arrange for the offer/demand to remain on the table for a pre-determined amount of time and ask him to follow up with both parties during that period of time.
Remember: there's no such thing as impasse, only a recess in the settlement discussions.

Unless, of course, the case is a huge roll of the dice and your client is a gambler, or there is some psychopathology at play where the game is more important than the outcome. Sometimes those cases simply must be tried, but what a shame. Most people would really prefer to control their own destiny.

The Best Mediators are the Most Creative Mediators

Geoff Sharp at mediator blah...blah.... discusses decision trees in mediation and links to TreePlan®. This software builds a decision tree diagram within Excel. Now that’s what I would like to see a mediator show up with at a second or third mediation!

Diane Levin at Online Guide to Mediation hosts Blawg Review #94 this week on her site with the negotiating theme “getting to yes.” All lawyers must constantly hone negotiation skills. I was surprised to learn a fact known only to good mediators; it takes four hours of preparation for every hour of negotiation. Do that work early and you won’t be preparing for trial.

New Bar and Grill Singers have a video on Settle It Now Negotiation Blog by Victoria Pynchon, Appointed Forever, about federal court judges. Her stepson, Adam, is clerking for the 9th Circuit in Hawaii and his musical group in Austin, Texas not only entertains across the country, but has two CDs for sale on its website to benefit volunteer legal services for the indigent.

Russian Matryoshka dolls attracted me to a recent post by Dina Beach Lynch in Boston, Mediation Mensch. Those classic souvenir dolls are in my office as fond memories from a trip to St. Petersburg and Sandra Ragland sports a set of nesting dolls which resemble former presidents. From that post I learned of Laurie Israel, a mediator who originally assisted divorcing couples. Her interests in marriage, however, morphed to her current practice, mediation to stay married. This is a valuable service and niche that I would like to see spread.

And, on the light side, for those in horse country, horse nesting dolls are available.

UPDATE: Update on today’s post from Sandra Ragland: When Shannon (her son) visited Ukraine last fall, he brought me a set of nesting dolls dramatically documenting the career, rise and fall, of Elvis Presley.

What Mediators Can Do For Lawyers

Bridging the divide between lawyers and mediators is the title of a series of articles Diane Levin is publishing at Online Guide to mediation. Part 1: valuing the rule of law was interesting. Part 2: what mediators can do for lawyers is indispensable reading for mediators to know what we should expect of them. Although I suspect what lawyers can do for mediators is coming next, there is plenty of info for lawyers in Part 2 that bears repeating:

1. A framework to negotiate.

Back in the day when I was in law school, we were taught trial skills. This was deeply ironic, since it quickly became apparent when I began work as a lawyer that the real focus of my practice wouldn't be trial at all. The real focus was negotiation--bargaining with the other side to reach settlement. The problem though is that most of us don't have any real training in negotiation, and consequently we don't always do it very well. We treat negotiation as a take-no-prisoners death match, or we come to the table expecting to give a little, get a little, and both walk away equally unhappy. The first of these approaches is notorious for damaging trust and destroying good will. And both these approaches leave value on the table and stifle creativity in designing settlement options.

Here's where a mediator can help. The best mediators are negotiation experts who understand how to turn the parties into more effective negotiators. Mediation is not about holding hands and singing "Kumbaya". It's about getting your interests met and maximizing your gain--yours and the other side's. If you don't want to leave value on the table, if satisfaction counts, hire a mediator who understands negotiation.

2. Focus and structure.

Good mediators are skilled facilitators who run a mediation like an efficient business meeting. They have the ability to cut through the sparring, posturing, and argumentativeness to help parties get down to business. They push parties to develop an agenda, identify key interests, and create a realistic action plan which both can commit to and implement.

3. Reality testing for clients.

One of the challenges attorneys can face is the client with unrealistic expectations about the value of their cases or the likelihood of success at trial. Mediation allows clients a first-hand glimpse into the strengths of the case of the opposing side or gives a preview of how sympathetic a plaintiff will be in court. The mediator brings to the negotiating table skill in reality testing along with the ability to guide parties through risk analysis--which can make settlement seem far more attractive than the alternatives away from the table.

4. Reality testing for the other side.

Mediators of course will be asking the hard questions of all sides in a dispute, not just the one you happen to be on.

5. Overcoming barriers to agreement.

Mediators will be proactive in seeking out and addressing issues that are preventing the parties from reaching resolution. It's part of our job description.

6. Negotiation skills you can use.

There's no reason you can't raid a mediator's toolbox. You can learn to become a more effective negotiator and problem-solver. Take a negotiation training or hire a dispute resolution professional to design an onsite negotiation training for your law firm. Take a mediation training yourself to gain an insider's view of the process and insights you can pass on to your clients to help them--and you--make the most of mediation.

7. Greater satisfaction for your client.

What's not to like about a process that can save your client time and money and enable them to walk away with a solution tailor-made to meet their interests? In addition, in a time when ADR will be increasingly available and not less, being conversant in ADR and negotiation can give you a competitive edge. It's one more benefit you can offer your clients.

And that's a win-win for everyone.

Evaluative Mediation

single issue monetized shuttle no intake lawyer controlled mediation is the title of a post by Victoria Pynchon at Settle It Now Negotiation Blog. It links to Representing Clients Effectively in Negotiation, Conciliation and Mediation in Family Property Disputes by Prof. John Wade. This article isn't news. It was published in 2004, but I was struck by this passage:

Mediation and conciliation are forms of “assisted decision-making” (ADM) or “assisted negotiation” (AN). There are many types of mediation and conciliation. The four most commonly documented being settlement, problem-solving, therapeutic and evaluative. There are of course many other hybrids and cousins including narrative, restorative, humanistic, mindful, intentional, forgiveness, and transformative mediation. One common form of the evaluative type is SIMSNILC mediation (Single Issue Monetised Shuttle No Intake Lawyer Controlled” mediation).
Many lawyers in Australia attend mediations and conciliations weekly, but know only one or two “types”, particularly the comfortable SIMSNILC model prevalent in personal injuries disputes. This limited exposure leads to professional mistakes. Clearly, different clients need different services. It is a responsibility of lawyers to attend different types of mediations and conciliations, increase their stable of service providers, and then to match mediation or conciliation type to client problem.

I am becoming convinced that we have much to learn in this area. Keeping up with Settle It Now Negotiation Blog is a great way to start.

Mediation Certification and Credentialing: Getting Accurate Information on Becoming a Mediator

Diane Levin updates us on requirements for becoming a mediator at Online Guide To Mediation . The guidelines for Kentucky are here.

The Perils of Separate Caucuses In Mediation

Small Talk and Separate Caucuses highlights the importance of joint initial mediation sessions and the perils of shuttle mediation. Check it out. It takes a very skilled mediator to hold it together, but isn't that what we want, very skilled mediators?
UPDATE: I promise I drafted this post before I read Victoria's 2006 Gratitude list, naming "Divorce Law Journal -- Louisville family law attorney Diana Skaggs who does more to promote ADR than any attorney I know." Sweet.

Happy New Year! Let's Keep Learning And Sharing

New Zealand has had a family court for 25 years. Here's a video interview from Geoff Sharp at the V-Blog Mediation Project. You will find interesting that family court judges there participate in mediation and occasionally include children.
Her Honour Judge Jill Moss, a leading judge of NZ’s specialist Family Court and advocate of mediation for family matters within the Court

Mediators Without Borders

Mediators Without Borders has perfect pitch on the timing of its launch. As we begin our annual thinking about what we can do next year to keep life meaningful and to make a difference in the wider world, please check out this wonderful new idea at Victoria Pynchon's Settle It Now BL ARG and Settle It Now Negotiation Blog.

Unfair Agreements Coming Out Of Mediated Divorce Cases?

Katie Brophy sent the following email to me and others, which I am passing on with her permission: "At the recent KBA update, Lawyers Mutual indicated increasing claims were coming as a result of clients claiming their mediated divorce related agreements were unfair and their lawyer was to blame. Here is a draft I prepared to address the issue. Am looking forward to comments and suggestions."
The disclosure form she is working on is at the bottom of this post. Post a comment below or contact her directly for private feedback.
My two cents: Across the country we are hearing of complaints of pressure to settle. (1) Maybe it's time to combine the ADR sections of bar associations with the litigation and family law sections. (2) Not only do the mediators need CLE and brainstorming among themselves, but advocates could use some high quality CLE on negotiation and helping the mediators get the cases settled. (3) We are behind the times using evaluative mediation as the method of choice. (4) Maybe, just maybe, retired judges and active practitioners in the subject matter aren't the best we can do when selecting mediators for our cases.

Mediator Abuses In Family Law

Victoria Pynchon has requested comments to her post, Mediation Abuses in Family Law. I see the problem frequently. Check out her post and let her hear from you! In browsing her ADR site and her negotiation site, Settle It Now Negotiation Blog, you'll no doubt stumble upon some info that will make you wonder haw you could have practice law without it. Subscribe to the feeds and you'll regularly receive some of the best CLE on the net. I wish it were required reading for all mediators.

Comments and Apology

I owe an apology to Pieter M. Droppert of New Jersey Family & Divorce Law Blog. He posted a comment which I tried to "approve" on a PDA. I was out of the office at the time, hobnobbing with Pauline Tessler and Peggy Johnson and the collaborative family law group when I saw the email advice of the pending comment. The comment was inadvertently deleted instead. Comments are very important to every blog that accepts them and many of us of a "certain age" simply have a steep learning curve in all sorts of tech matters. Peter is a 2005 Rutgers grad and wanting to absorb all he can, and is eager to participate in this online forum where we all are learning as we teach. Good luck with your blog, Pieter, and you will find the blawgosphere a very supportive place to help you help your clients.

The Mediation vBlog Project

Geoff Sharp (check out the clever animation) of Mediator Blah Blah has launched The Mediation vBlog Project at Mediation vBlog. The first post is a short into by Diane Levine of Online Guide To Mediation.
All lawyers are participating in mediation and many are mediators, yet I am seeing little "kick it up a notch" or "how can we get better at this" talk locally. That is what is so invigorating about these blogs. Sharp and Levine really have their hearts, minds, and energy into resolving disputes. I'll talk more in later posts about some phenomenal mediation scholarship going on, as well as sophisticated negotiation and mediation matters I am dogging Victoria Pynchon at Settle It Now Mediation Blarg and .Settle It Now Negotiation Blog about. I want to get some high-powered CLE from her and her LLM alma matre, the Straus Institute at Pepperdine Law School. It behooves all us litigators to get on the pages of these great mediators to get up to speed!
Here's the story behind the vBlog:
"Welcome to the Mediation vBlog Project!
We’re going to be the first, the very first, to track our practice and all things mediation by video blog - a kind of mediation genome project by video blog.
My idea is to take advantage of recent video sharing technology to post short video clips of mediators everywhere at work, the more live the better. The growth of video social networking is amazing with 60,000 new videos uploaded every day and over 100 million viewed every day, as more people explore this type of online medium.
So my aim is for the vBlog Project to provide a platform for mediators from all over the world to share their skills by video.
All of us have at least one digital camera, phone camera, PDA Blackberry or Treo don’t we? - and guess what - they all take short video clips that can easily be emailed.
I have always been a little uneasy about the way we mediators work behind closed doors, without much sunlight in the room …so time to change that.
Try taking a clip of:
your opening!
a participant’s reaction after the mediation
one of the lawyer’s reflections after the mediation
debrief to camera on what went well or what didn’t
you training or talking on an aspect of mediation
Then just email it to me in any format making it up to 5 minutes long, at [email protected] … and it will be posted here at this blog in no time. It needs to be fresh and ‘live’ (no more than a week old), 2 - 5 minutes in length, and can be of any quality. Some clips taken on camera phones/PDA’s may be low res, but that’s fine. The main thing is to post. Also have as many ummms and ahhhhs in it as you want - we will get what you mean. Any one working in the LA market may have to set a standard but the rest of us can stumble through.
This is going to be your chance to share your craft with your peers. Check back for details and the first clips from trail blazing mediators… "

Mediation Law Takes Turn For The Worse

The California case of Simmons v. Ghaderi is upsetting all we thought we knew about mediation. A few quotes from the case:
"In Dr. Ghaderi's trial brief she argued that the mediation confidentiality rules codified in Evidence Code section 1115 et seq., and in particular Evidence Code section 1119, made inadmissible all evidence of an oral contract. Dr. Ghaderi argued, 'the law of the State of California does not permit discussions at a mediation or documents generated thereat to be introduced at trial to prove that an agreement was created there.' Dr. Ghaderi filed a formal objection to plaintiffs' evidence in which she objected to 'any and all testimony and/or documentary evidence concerning the any [sic] mediation held in this action . . . pursuant to California Evidence Code, section 1119, et seq. and Ryan v. Garcia (1994) 27 Cal.App.4th 1006.' Dr. Ghaderi asserted that plaintiffs could not prove the existence of an oral contract to settle the medical malpractice case because any proof would violate the confidentiality of mediation." Nevertheless, an oral agreement was upheld, even though Dr. Ghaderi had revoked it prior to any agreement being signed.
Judge Aldridge's dissent sets forth the law as every lawyer and mediator I know believes it to be. It will be interesting to see if appellate courts in other states will entertain such challenges. What went really wrong here was the attempt (even though successful) to enforce a mediated agreement that was not memorialized. Mediation is not finished until there is a signed agreement.
You Say Estoppel, I Say Waiver; let's call the whole thing wrong -- another look at Simmons v. Ghaderi is Victoria Pynchon's post. I would have chalked this case up to mediation being new (in the slow moving area of law) but for Vickie's comment: "As a different panel in the same District ruled just three years ago in Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, 360, 'parties to mediation proceedings cannot impliedly waive the protections of the mediation confidentiality statutes contained in sections 1115

Impasse and the Threatened Walk Out

One of the reasons I like writing this blawg is that I learn so much. Just as teaching a CLE is the best way to learn a topic thoroughly, researching online resources and posting about them is a discipline that brings much more information across my desk than I would otherwise discover.
A printout of The Threatened Walk Out has been sitting in my inbox waiting to be blogged. As I went to Diana Mercer's website, PeaceTalks, I found another gem, Impasse In Negotiation. In fact, the entire "for professionals" section of the website is useful and the concept of a combo lawyer-therapist mediation service is interesting.

Stretch, Just A Little

Watch with me as the Pacific Rim mediation conference unfolds in New Zealand NEXT September. I am no talent scout, but I have to say I am very impressed with Geoff Sharp's mediation thinking and passion. I am tempted to lightly pencil it in the book, far flung as it may seem. Here's the trailer from Mediator Blah Blah:
"Where The Bloody Hell Are You?
Advance Notice - fill in that whitespace for September '07 (get outta here! no one believes you're booked up already)
The Pacific Rim's most important gathering of mediators will take place in beautiful Wellington, New Zealand September 19th - 21st 2007.
It's LEADR's 10th Mediation Conference and it's the main event for us Australasian (= New Zealand & Australia) mediators.
We'll have a MediationTech/into the future stream, a Government/Public Sector track and plenty more.
We'll meet with you at our iconic National Museum, Te Papa, overlooking the Wellington harbour.
More information when LEADR's got a conference site up.
Come see us, talk with us - we've poured you a beer."
How can you not love this guy? Mediation is a process used world wide. As our cultures mesh and as technology makes all the world's people so near, seems to me a regional meeting anywhere in the world where good thinking is going on is a viable continuing education possibility.

Imbalance Of Power In Mediation

Victoria Pynchon from Settle It Now Blog asks , Are We Trading Justice for Harmony? Addressing "those critics of ADR who claim that privatizing dispute resolution according to a set of norms that value cooperation over conflict is a subtle but pernicious form of social control, especially when the power relations between the disputing parties are unequal," Victoria links and comments on a several very interesting articles. She notes that "mediation can but need not, trade justice for harmony. I also believe that understanding the charge will help all mediators avoid the kinds of conflict squelching and justice avoiding practices discussed by the following authors."
The articles to which she links primarily deal with mediation in domestic violence situations (which is not required in Jefferson County, KY) but they also deal with other imbalance-in-power situations such as medical negligence, where the "apology" may be sought in lieu of damages.

Ten Mistakes Even Good Mediators Make

Ten Mistakes Even Good Mediators Make is post from Mediator Blah Blah and is well worth reading. Geoff Sharp, the author of this blog, knows his stuff. He credits New York attorney Stephen A. Hockman for the list, but adds nice links to illustrate the rationale behind many of the rules.
From New Zealand, he was also kind to post a nice drawing of the American flag and the words "I've been thinking about you guys over there" on September 11.

Mediation Of Complex Divorces Involving Businesses

Victoria Pynchon's Settle It Now Blog Spot has an insightful post on mediation of business cases. Many divorces involve valuing and dividing business interests. Her insights are eye-opening for those who simply try to "get to the number" too quickly. While her report is not directly aimed at divorces involving businesess, it's certainly applicable. Our mediators have much to learn about cognitive science to succeed in these complex cases.
Business people take big risks in the face of uncertainty all the time. Attorneys, however, are trained to forecast every potential disastrous loss and advise their clients to gain some degree of certainty or control over those losses before making any decision that could substantially affect their pocket books. In the presence of uncertainty concerning the value of the goods at issue (a matter of greater uncertainty for lawyers and mediator than for the clients who presumably knew more than they were telling) how could this matter be settled without further discovery and analysis?
Cognitive Scientists to the Rescue
Cognitive scientists have identified, among other cognitive biases, something they call the "ambiguity effect." The ambiguity effect occurs when decision makers avoid options for which missing information makes future probabilities unknowable. This was the "elephant" in our negotiation room. As soon as the parties were asked to "ante up" based upon their stated appraisal of the goods, each suddenly became completely uncertain of that value.

Heuristic Theory and Contrast Effects

Mediator Blah, Blah is a consistently delightful blog for mediators, yet often very substantive. In its posting on Heuristic theory it mentions "in passing the need to understand common heuristic theory such as - anchoring and adjustment, availability, self-serving evaluations, framing, status quo bias, contrast effects, and reactive devaluation."
"In particular, contrast effects is interesting as a 'persuasion tool' and appears useful, especially if you are the kind of trigger happy mediator who puts forward mediator proposals at the drop of a hat (shame on you!).
An example of contrast effects might be:
A mediator proposal (or party offer) of $100,000 paid in -
1. two tranches on anniversary of settlement - $50,000 per year for two years, or
2. a lump sum today but NPV'ed (net present valued) over 2 years, or
3. monthly installments over 3 years starting next month
Research shows the recipient will likely take each of the options offered to them then compare it to the other payment options rather than comparing the $100,000 to their wish figure and wanting more.
This research has developed several interesting ways of using our knowledge of biases to influence party thinking....
But where's the line for us mediators on this stuff?"
Well, there is a line for mediators, but the theory and research are important for the advocates to know, so thanks to Geoff Sharp for all the online tutorials he cares to post.

Cooperation and Collaboration Make For Happier Lawyers

"OK, Let's Tackle This Unhappy Lawyer Thing" is the title of a posting in the Settle It Now Negotiation Blog. "Look around your law firm. Are the transactional lawyers actually having more fun putting deals together than are the litigators tearing them apart? We might learn a thing or two from them. Take a tax adviser or mergers & aquisitions lawyer to lunch this week. Ask them what it feels like to marry Yahoo to AT&T. Maybe the joint venture being documented down the hallway is making someone's else's day a lot more pleasurable than that devastating line of cross-examination will make our own.

What does this mean for hard working litigators? That a creative settlement providing the geatest benefit for the greatest number will not only be good for our clients, it will make all of us, attorney and client alike, lots, lots happier. And happy clients are the clients we retain."

Negotiation-Persuasion

Settle it Now Negotiation Blog posted "Professor Robert Cialdini's Influence has become a classic in the science and practice of persuasion. Here are his six basic principles of powerful persuasion." I like what I am seeing on Victoria Pynchon's blawg and her Settle it Now Mediation Blog. I have added both her blogs to our mediation blogs category. And, fyi, the West Virginia Record has been deleted after learning of its Chamber of Commerce backing and agenda from the Kentucky Law Blog. Now I am beginning to get the idea of the "standards" Marcia Oddi is using when she selects which blogs to feature on her Indiana Law Blog.

What Makes a Great Negotiator

Negotiation advice from Harvard Business School Professor Michael Watkins is summarized at Settle It Now Negotiation Blog. While not geared specifically to divorce lawyers, I have long thought negotiation training is something law school students lacked. There is no more important field for lawyer continuing education.

Ten Habits of Highly Successful Mediation Trainers

If you teach mediation training, take a look at "Ten Habits of Highly Successful Mediation Trainers" from Online Guide to Mediation.

Settle It Now

Online Guide To Mediation introduces us to a new negotiation blog, Settle it Now Blog Spot. The author also publishes the online Dispute Resolution Journal. The Journal is published quarterly and is seeking articles for publication. Here are its guidelines.

"Appreciative Intelligence" author Carol Metzker posted at Idealawg

Online Guide to Mediation reports that "Appreciative Intelligence" author Carol Metzker has posted at Idealawg, "where you can read more about this innovative approach to tackling difficult problems."

What To Do When Mediation Impasse Occurs

Mediator Blah Blah links to a helpful UK site with suggestions on what to do in mediation when you "get stuck."

Mindmapping

The mindmapping tool is discussed, and a link provided to a demo, in Online Mediation. Denver's Steve Harhai presented mindmapping at a LBA/AAML seminar a few years ago.The possibilities of mapping case information and issues are endless, and at the time I thought it was something we should explore. Sorry to say, other new, cool matters intervened, but it does seem particicularly well suited to the mediation arena. I would love for some geeky mediatior to try it in a case locally. Know any geeky mediators?

Alternative Dispute Resloution: Rock, Paper, Scissors

Online Guide to Mediation reports a new alternative dispute method (can this be a joke?) used by a federal court in Florida. The order directs that "counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006." No doubt we will hear whether the dispute was settled in this manner.

The World of Alternative Dispute Resolution Blogs

Here's a directory of alternative dispute resolution blogs posted on The World of Alternative Dispute Resolution. We will create a category for these blogs soon so they are at ready reference. After reading The Kentucky Law Blog's mediation piece yesterday, I wonder if we should be on the lookout for anti-mediation sites. Seriously, Mike's experience is not uncommon and we have to be on the lookout for ways to improve. I wonder if those personal injury attorneys would go to facilitative mediators.
Note: I have linked to the redacted posting. For whatever reason, Mike decided to remove his original post.

Mediation Blah...Blah...

The Mediator Blah...Blah... blog has a good posting called "When The Going Gets Tough...Do's and Don't for Mediators". The blog itself has a nice flair. The preceding post , Tech News, was good, too. It shows a white board with the nuts and bolts of an agreement scribbled on it. The mediator had the parties sign the whiteboard and then took a picture of it, and instantly emailed the agreement to all present. Nice strategy for end-of-the-day, hard bargained deals when all might fall apart getting something on paper.

The Beauty of Reframing Issues

The Online Guide to Mediation has a good post on the useful tool of reframing issues."The art of reframing is to maintain the conflict in all its richness but to help people look at it in a more open-minded and hopeful way."

Wedding Planner Mediation

We don't make this stuff up! From the Online Guide to Mediation Blog:"The marrying kind: wedding planning mediators help couples steer clear of conflict"


Later this year you will be hearing much about the AAML's newest project, "Focus on Forever", aimed at helping couples work through difficult life questions before marrying, in an effort to prevent divorces. I don't think pre-marital mediation will part of the program.