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David Fitzsimons

It's Settled, Then.

Mediation: A Correct Frame of Mind

June 27, 2012 by David Leave a Comment

Did you ever receive a timely reminder of a “good practices” point in an area seemingly unrelated to the day job? Developing studies in neuroscience using active CAT scans and EEG’s appear to provide insights in to brain activity in people under varying degrees of stress. With emerging understanding of how certain areas of the brain “map” for certain activities, scientific observation is aiding in conflict resolution.

A high point of the New Year’s holidays is the increased frequency of English Premier League soccer games on TV. Watching with my 16 year old son as his favorite team Arsenal, unable to hold a 2-1 lead [a constant worry for Arsenal fans] loses 3-2 to their London rivals Fulham, I observed with clinical detachment the failure of the Gunners’ midfield to protect the wavering Arsenal back four. James and I discussed this fact in clipped tones as the Cottagers players mobbed the winning goal scorer in the closing seconds of injury time.

I was at first surprised when James, generally a calm young man [he gets that from his Mother’s side]reacted rather negatively to a suggestion by his mother…”Now that the game is over, could you put this laundry away please?”…a reaction which, let’s say was somewhat disproportionate to the proposal.

As the thunder of unhappy size 12’s receded to the back of the house [cue SLAM of door]…I mentioned that the collapse of what looked like a comfortable win MIGHT have been all that his mind could process at that moment…”But I waited until the game was over”.

So here’s the thing…and thank you if you have stuck with my tenuous thread thus far…in the properly structured process of mediation (pre-mediation conference, mediation statements, meaningful inquiry and observation by mediator) we often enjoy the advantage of forewarning of issues and questions that are likely to fire the emotional, non-rational areas of the brain.

And those CAT scans indicate that when the emotional centers go red hot…the analytical centers go stone cold… and remain that way for quite some time AFTER the hot spot of the initial outburst has calmed down. Is science confirming what we often have done via intuition? Change the subject, redirect, reframe, acknowledge a person’s reaction by reflecting their pain at the failure of the wing midfielders to track back, exposing the centre backs to overlapping attacks and crosses…and WAIT a few minutes before asking them to pair socks.

Further discussion of the intricacies of effective defense in depth, and its application to real life is happily discussed over a Pint at the requestor’s pleasure.

Filed Under: Mediation Tagged With: mediation

Standards for Mediators: Impartiality

June 25, 2012 by David Leave a Comment

A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.

This one is pretty clear, I submit, on its face.  In my experience, pretty much all of the mediators I have worked with, or retained when I represent a litigant, have come to be mediators out of a desire to assist in the resolution of conflicts, and as such recognize the benefit, and indeed requirement of impartiality as defined.

B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.

Here those oh so difficult to define words “…avoid…the appearance of partiality…” arise.  It occurred to me early in my experience with mediation that looking for actual, or the appearance of bias in the mediator takes up a considerable amount of time of the parties and their counsel, particularly if the mediator spends any degree of time in caucus with the other side. In my experience, it is more often the perception, right or wrong, that the mediator “took sides” that either scuttles a mediation, or of the dispute/case does settle, results in an imperfect outcome…”The case settled, but the mediation was a failure”. This is getting too heavy for “Summer Cruising”, and will appear in a specific article later this fall.

1. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.

2. A mediator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediator’s actual or perceived impartiality.

3. A mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate a mediation or respect cultural norms so long as such practices do not raise questions as to a mediator’s actual or perceived impartiality.

I have combined these three sub-sections, because for the legal user, they are best addressed by noting that the Model Standards of Conduct for Mediators apply also to mediation processes outside the court or litigation context. If any of these standards appear foreign to you, write in with your questions, your identity will not be disclosed in my response.

C.      If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.

Again, these Standards also address conflict resolution outside the court process, but it can also happen that a mediator has forced parties or just one to address hard truths, and continuation might prejudice progress made.

 

Filed Under: Mediation Tagged With: mediation

Conduct for Mediators: Self Determination

June 25, 2012 by David Leave a Comment

Mediation has been for some time an accepted process for seeking solutions to ongoing conflict. Various standards exist as useful guidelines, and I’d like, through several posts, to address a widely recognized standard,  The Model Standards of Conduct for Mediators  [September 2005] This is a Joint Publication endorsed by the American Arbitration Association [AAA]. American Bar Association [ABA], and the Association for Conflict Resolution [ACR].  AAA’s various Rules for Mediation and Arbitration in substantive areas of law are often specified in conflict resolution clauses. I will assume the reader is familiar with the ABA. The Association for Conflict Resolution is a merged organization of three previous organizations of Family Law and other dispute resolution professionals.  The next and following articles will address the salient guidance of the Standards.

The preamble to these standards sets out the intent of the adopting agencies:

Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts. They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes. [emphasis added]

While the drafters also counsel that the order of the Standards, [there are 10] does not add “priority sequence”, the first Standard is titled

1.         SELF DETERMINATION:

A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.

1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.

2. A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.

B. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

Filed Under: Mediation Tagged With: mediation

Mediation 101: Does the action have to be filed?

June 25, 2012 by David Leave a Comment

Q: Is it possible to bring up Mediation before an actual suit or action is filed?

A: Absolutely. In fact, in many commercial contract settings today, “Good Faith Submission to Mediation” is a prerequisite to filing suit or requesting appointment of Arbitrators. In most instances submission to ADR, including mediation or arbitration, is a result of agreement between the parties, and they are not limited to pre-dispute contractual ADR. Like-minded opposing counsel can always recommend to their warring clients that a mutually beneficial low key and PRIVATE resolution of their dispute is in their best interest. Particularly well-suited to mediation, in this writer’s view, are family –related disputes; estates, or estates planning, elder care, family business succession, all such disputes, when fraught with legally irrelevant, yet vital core interests can potentially benefit from effective application of Mediation Process.

Filed Under: Mediation, Mediation 101 Tagged With: ADR, mediation

Mediation 101: When to bring up mediation

June 25, 2012 by David Leave a Comment

Q: When is the best time to bring up mediation as an option, with my client, or with the other side?

A: The Rules of Professional Conduct under the heading Counselor include Rule 2.1 Advisor “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice….” At comment 5 to that Rule, we find the explanation “…when a matter is likely to involve litigation, it may be necessary under Rule 1.4 [Communication] to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.”

So for many clients with a new dispute, the intake interview might well be the first time. As for the opposition, well we all have our views on how the “first overture” is sometimes viewed, but more frequently of late, sophisticated lawyers wielding a full array of options for their client, are perfectly comfortable proposing mediation without telegraphing “weakness”.

In many instances, parties participating in mediation, either intentionally, or because of assignment by a court, make very positive progress towards ordering and streamlining the manner of proceeding with a dispute, short of actual settlement. Also; the release of tension often inherent in a well-guided mediation process will result in global resolution in the near future, once some time and opportunity for mature deliberation free of passion has occurred.

Filed Under: Mediation, Mediation 101 Tagged With: ADR, mediation

Mediation 101: Confidentiality

June 18, 2012 by David Leave a Comment

Q: I represent a party proceeding to Mediation, and received from the Administrator an Agreement for Mediation that contains the following language. Why is this focus on confidentiality being emphasized with such particularity? 

There are two areas of focus in reviewing confidentiality in Mediation; Process, and Support of Process.  The successful process of mediation requires that the parties are assured of a safe, neutral and confidential forum to air their differences, perspectives and interests, in the attempt to explore common ground. According to many authorities the Mediator must work to establish a relationship which encourages open dialogue between the participants. Trust that any disclosure made to the Mediator will only be shared with other parties with permission, is fundamental in many mediations. The following language, excerpted from the Agreement to Mediate essentially tracks Pennsylvania Statute 42 Pa.C.S.A. § 5949 Confidential mediation communications and documents and local federal Rules USDC Middle District of Pa. LR 16.8.6 The Mediation Session and Confidentiality of Mediation Communications.

All discussions, representations, and statements made during mediation will be privileged as settlement negotiations. The parties agree that they will not attempt to discover or use as evidence in any judicial, administrative or arbitration action or proceeding anything related to the mediation, including any communications or the thoughts, impressions or notes of the mediator.

No document produced in mediation which is not otherwise discoverable will be admissible by any of the parties in any action or proceeding, including, but not limited to, a judicial, administrative or arbitration action or proceeding, except as provided under law.

The parties will not subpoena the mediator, or any records or documents of the mediator in any legal proceedings of any kind. If so called or subpoenaed, the mediator may refuse to testify or produce the requested documents. Should any party attempt to compel such testimony or production, such party shall be liable for, and shall indemnify the mediator against any liabilities, costs or expenses, including reasonable attorneys’ fees, which the mediator may incur in resisting such compulsion.

The mediator will not discuss the mediation process or disclose any communications made during the mediation, except as authorized by the parties, or as required by law or other applicable professional codes.

With this statutory and Rule protection, it is therefore anticipated that the parties can proceed with confidence to explore the options provided through Mediation. As with all hard and fast rules, however, you should be aware that from time to time there is litigation involving the attempt to compel disclosure or testimony by mediators. If you anticipate such a contentious situation, it would be advisable to review the current status of case law in your jurisdiction prior to proceeding to the mediation. If you need assistance in defining the issues, feel free to contact the CCBA ADR Committee through either Becky Morgenthal, or David Fitzsimons, Committee Chair.

Filed Under: Mediation, Mediation 101 Tagged With: ADR, confidentiality, mediation

The Basic Tenets of Mediation

June 11, 2012 by David Leave a Comment

Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.

So a mediator, serving as an impartial third party can guide the parties to a dispute through the use of Fisher and Ury’s “principled negotiation”…let’s look at how that can happen, through the magic of “cut and paste” …

The Problem

Don’t bargain over positions. Arguing over positions produces unwise agreements, is inefficient and endangers ongoing relationships

The Method

Separate the People from the Problem. This can be accomplished by asking each party to walk the mediator through the history of the conflict—observing this discussion, rather than participating [battling] in give and take, may have profound effects. Even an apology, in the right context and setting, can be most effective.

Focus on Interests, Not Positions. More often than not, almost always, in fact, there are common threads or desires which each side can accomplish without any cost to their opponent. The simplest, end the fight and the legal bills; or allow refocus on productive activities that the dispute has diverted each side away from.

Invent Options for Mutual Gain. As I mentioned in March, this often requires thinking beyond the legally proscribed Remedies that we all learn in Law School and legal practice…often in caucus but sometimes in joint session, one party, in discussion with or through the mediator brings up a beneficial element for the other party that has been masked, if you will, by the fight. This is NOT just telling the other guy what he/she did wrong but moving towards mutual problem-solving on a positive environment.

Insist on Using Objective Criteria. Mediators can [re]introduce objective criteria as a basis for negotiation [Market Value, Precedent, Scientific Judgment, Costs etc.] Often these are NOT new to the parties…sometimes they and  counsel are too long in the fight; and sometimes the client is no longer hearing the good advice counsel has been offering all along.

 

Filed Under: Mediation Tagged With: mediation
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David Fitzsimons - Principal
ADRFitz LLC
Alternative Dispute Resolution
Mediation. Arbitration. Peacemaking.
"Its Settled, Then"
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