Archives for November 2012

The Struggle or Challenge for ADR in Pennsylvania

November 2, 2012 By David Leave a Comment

Some basic principles essential to the development and success of mediation will be ignore, denied or overrun if the ADR community does not consistently remind participants and potential participants of its values. The loudest voices critical of the values of the process are often those who see themselves as having the most to lose to an “alternative” model. In fact, they and their clients stand to gain the most if we can demonstrate how embracing the fundamentals of effective process can lead to successful outcomes.

1. Party Self-Determination. The mediation belongs to the parties, but party self-determination should not equal self destruction.

2. Flexibility is Vital. No two mediations are the same, so why do some mediators do the exact same thing every time? (Is it because the mediation is theirs not the parties?)

3. Mediation Must be Open-Ended. If no two mediations are alike, how do you know going in what to do and how can you get it done in a couple of hours?

If you have two hours scheduled for a mediation, don’t bother.
If the mediator and/or the parties cannot commit to a thorough pre-mediation process you may not want to bother.

4. Matching your Mediator is Key. In your first discussion with your potential mediator ask the mediator what he or she does as part of the pre-mediation process. If he or she says that they do not bother with that, thank them for their time and go back to the list of qualified mediators and start over.

5. That One Take Away. What is the pre-mediation process? The most abused, overlooked, ignored and a vital element of effective mediation. Any mediator who says that he/she doesn’t use, need or appreciate it… is a PRETENDER or at best somebody who calls himself/herself a mediator and has never bothered to take or pay attention to the class.

Filed Under: Mediation

Back to the Basics – It isn’t all about the mediator in mediation

November 2, 2012 By David Leave a Comment

In so many aspects of our lives in the busy and stressful times it is too easy to get caught up in the moment and find ourselves lost and frustrated that a relatively simple task or procedure appears beyond our grasp. Very often returning to “Basics,” reminding ourselves of our reason for starting the process and some retraining in the fundamentals, can get us back on track.

As a mediator in a complex or even relatively simple mediation, a looming or apparent “impasse” can in fact be “all about me.” The mediator caught up in the flow and temporarily losing detachment that is fundamental to effective neutral mediation may have to step back and reassess the situation. Sometimes some “alone time” (that brief time when each party might believe the mediator is with the other when in fact he is standing in a hall trying to figure out where to go next) is for reflection upon what has been “heard” or perhaps not listened to or appreciated – what have I observed on the subconscious level – good/poor relationships between a party and his or her counsel; the reaction of one party to the comment of another – this by everyone in the room except, hopefully, the mediator. Re-framing; re-examination, approaching the issue from different angles… Adapting as if it is the mediator, not the parties, suffering in the power imbalance. Engaging in a group session in a conversation with a party is not meant so much to talk and take more time than is necessary, but to provide the parties observing the conversations between the mediator and opponent, perhaps for the first time, to listen to the positions, interests and perspective of the opposition.

On more than one occasion, when recapping the events of a long day with the parties in caucus or in joint session it is a party who will recognize a key point or obstacle causing impasse and provide the impetus to move on. Ironically, it is rare when those instances occur, that the advantages of an effective process provided by a well-schooled and committed mediator are recognized.

Mediation Worxx – Model Standards of Conduct for Mediators

November 2, 2012 By David Leave a Comment

As the Summer months come to a [shockingly] rapid conclusion, I find we are still not so far along in our survey of the Model Standards of Conduct for Mediators [September 2005] and the practice and preparation guides that are conveyed in reviewing and contemplating the standards. This month we will address some of the views that arise from the Standards on Competence, with my comments italicized in the text…as we move into fall, these Standards will continue to inform or frame the discussion, but I’ll try to [appear] more thoughtful in substance. As always, your all too rare questions and comments are welcome and requested.

STANDARD IV. COMPETENCE

A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.

1. Any person may be selected as a mediator provided that the parties are satisfied with the mediator’s competence and qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.

When it comes time to select a Mediator, there is a pretty broad spectrum of qualities that one may wish to consider. For me, I want to know what actual specific training the prospective mediator has taken. But then, I’ve taken a LOT of training myself, and I view the type of and perspective from training to be a vital factor in mediator selection. Then again, all the training in the world is not going to help if, for whatever reason I lack the “cultural understandings and other qualities” necessary for the particular dispute.

Lawyers in particular place great significance in their perception of the substantive expertise of a particular mediator candidate during the selection process. Many “purists” practicing mediation decry this emphasis, claiming that opinions on substance often get in the way of exploring potentially vital understanding across the table that might lead to more comprehensive disputes resolution. Contrast if you will…”The case got settled, and the parties vowed never to speak with each other again”…with…”The case settled, and the parties are still doing business.”

Personally I’ve been a proponent of both extremes from time to time, but at this moment I have to say “it depends”. Not every dispute coming to mediation is a “Group Hug Just Waiting to Happen”. But then, not every seemingly cut and dry case about money, truly is “just about the money”.

My point is, that you do not always know going in, as the mediator OR the lawyer for a party, what truly is driving the respective clients’ interests at that moment in time. What started a conflict, over time, might well be different from what drives one or more parties towards resolution [the crippling costs of litigation is perhaps too obvious, but often a factor]. I’ll continue this frame, and hopefully draw in some of the pre-mediation processes discussed in prior columns.

Filed Under: Ethics, Mediation, Mediation 101 Tagged With: mediators, model standards of conduct

Archives for November 2012

The Struggle or Challenge for ADR in Pennsylvania

Back to the Basics – It isn’t all about the mediator in mediation

Mediation Worxx – Model Standards of Conduct for Mediators

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