UMass Mediation/Conflict Resolution Event

Happy to be a panelist tonight at UMass Amherst’s, my alma mater, alumni networking event regarding careers in mediation and ADR.

The program is conducted by UMass’ Department of Political Science and Legal Studies in conjunction with UMass’ Pre-Law program.

Looking forward to talking with students and encouraging them to pursue dispute resolution as a profession and excited to return to the UMass campus and see all of the changes and improvements that have been made.

 

 

 

 

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Impartiality In Bankruptcy Mediation: Judicial Review As Gatekeeper

In large bankruptcies, mediators often are employed to help creditors and borrowers reach agreements that will allow the borrower to continue to operate and give the creditor a chance to recoup some of the money they are owed.  It is critical to the parties in such situations that the mediator remain entirely impartial, as both sides have so much at stake and so much to lose.  If the mediator is perceived as favoring one side or the other, the parties are likely to perceive the bankruptcy process as illegitimate and may feel that unfair obligations are being imposed.

The question of mediator impartiality is discussed at length in this Wall Street Journal article http://goo.gl/2OLu59 which details the use of mediation in the City of Detroit bankruptcy.  The mediator in that case was often viewed as lacking impartiality and instead advocating for creditors.  The perceived lack of impartiality created controversy and resulted in some of the parties losing some faith in the mediator and the process.

In the bankruptcy courts, however, there is a procedural safeguard that can mitigate against perceptions of mediation bias:  judicial review of agreements.  Once the parties reach an agreement, either on their own or with the help of a mediator, the presiding bankruptcy judge has to approve the agreement on the basis that is fair to the parties and other creditors.  If the parties have concerns about the mediator’s impartiality, or if the judge determines that a proposed agreement is the product of a biased mediation, the judge can reject the agreement. 

In the Detroit bankruptcy, that is exactly what happened.  The presiding judge was persuaded that the mediator has been biased with regard to certain creditors.  The agreements that resulted from that portion of the mediation were rejected by the court.  In that instance, the procedural system worked.  Judicial review prevented an agreement that was facilitated by a mediator who was believed to be biased from being effectuated.  There are many circumstances where there in no opportunity for judicial review.  In those cases, parties who believe the mediator is not fully impartial should not participate or make any agreement which they believe is the effected by any bias.

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Mediation: Engine of Enlightenment?

Mediation is a conflict resolution tool, a process that can be used by conflicting parties to solve a problem or settle a dispute.

By virtue of mediation’s simplicity and its fundamental requirement that the parties discuss the conflict with each other in an informal, unrestricted way, it is a process which offers an opportunity for each side to gain insight and awareness of the other’s life experience, perspectives, and values.  During a mediation, the opposing parties are much more likely to hear what their opponent’s want in terms of solving their dispute and develop a better understanding of the other’s needs.

As discussed in this excellent blog post on the Relevant Development blog, Mediation As A Tool For Democracy http://relevantdevelopment.wordpress.com/2014/02/09/mediation-as-a-tool-for-democracy/, the author explores the notion that mediation in developing countries might not only be helpful as a conflict resolution tool, but may also lead to the development of more democratic interactions.  As the author points out, mediation is informal and cheap.  Thus, it can be made available to virtually anyone.  Moreover, mediation gives a each party an opportunity to be heard by the other and is a tool that could give those who might not have access to the Courts an opportunity to confront more powerful opponents.  As the author thoughtfully notes, the flexibility and informality of mediation provides a way of bringing sophisticated dispute resolution techniques to situations that might otherwise only be resolved by violence or oppression.

When parties to a conflict go to mediation, they have a chance to better understand and learn about their opponent.  Unlike a court case, where each side communicates information which supports and advocates their respective positions, mediation encourages a broader, solution-minded dialog.  Such discourse can turn into better, more strategic understanding between the parties.  When opponents understand each other, it is more likely they will interact in a more constructive and peaceful fashion.

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Mediation = Control

Often, especially in legal matters, parties in conflict see taking their case to mediation as signifying weakness or fear.  Since lawsuits are adversarial, this perception is understandable.  In contentious cases, with difficult adversaries, showing weakness can be problematic and disadvantageous.  There are other factors to consider when deciding to take a case to a trial or final hearing.

What parties sometimes fail to recognize is that even though taking their case to a judge or jury may convey strength and conviction, it also requires yielding control of the outcome of the dispute to a third-party who has their own agenda, interests, and beliefs.    In cases like personal injury and other tort claims, in which one party either wins or loses, allowing another to decide the fate of their case is a high risk proposition.  Parties should acknowledge the loss of control that accompanies taking a case to court and be willing to accept the associated risks.

Attorneys and parties should remember that mediation offers control over the outcome of the dispute which is directed by the parties themselves.  Unlike mediated resolutions, court decisions are often not consistent with the parties interests and courts have a limited scope of remedies.   In a personal injury case, a court may be required to apportion liability in a way that is consistent with legal guidelines, which allows a party genuinely at fault to escape without any liability.  Or, a court may be reluctant to extend a theory of liability in a way they are being asked to do so, despite clear evidence that such a decision is just.  A court decision is a retrospective snap shot judgment based upon law and judicial perspective, not a carefully constructed resolution tailored to the parties present and future interests.

Court and juries make decisions that encompass interests that extend beyond the specific dispute.  Courts must be consistent with prior decisions, need to make rulings that balance the interests of the parties against established notions of justice, and can only make rulings to the extent they are authorized by the law.  Often, the ability of a judge to fashion a remedy to a conflict is limited to the award of money.  For many conflicts, the scope of the problems extend beyond money and thus a judge’s ability to construct a comprehensive solution is limited.  Moreover, court decisions usually only address past conduct and do not take into consideration future relationships or interactions.

Taking a case to trial can be a bold, strong maneuver.  It also necessarily requires putting your case in the hands of a judge or jury.  In many cases, that’s a step with leads to less than satisfactory or incomplete results.  Mediation keeps the case in the hands of the parties and gives them complete freedom to construct any kind of resolution to which the parties can mutually agree, without limitation as to the kind of remedy.  If the stakes in the outcome of your conflict are too high to risk allowing someone else to decide your case, think of mediation not as a sign of weakness, but as a method of taking control.

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Recognizing Pragmatic Motivations

Mediators help parties to settle disputes by facilitating discussion and encouraging the parties to explore, acknowledge, and understand the other’s motivations and interests.  Lawyers, judges, and mediators should all remind parties in a conflict that the pragmatic reasons to settle a case or dispute are sometime equally, or more, important than the specific questions being contested.

Parties in conflict and mediators should also remember that there are typically general, pragmatic motivations and interests which we most often share.  These pragmatic interests often serve as powerful motivation to resolve a dispute. 

Some of the most basic of these shared, practical concerns are avoiding costs; saving time; avoiding unpleasantness and discord; preserving reputation; enhancing positive perceptions; improving future opportunities; fear of losing; economic hardship; and appearing to be a “winner.”  There are few, if any, conflicts which do not implicate some form of these basic, pragmatic interests.

Examples of practical motivations abound throughout the law, politics, and history.  Martin Luther King, Jr. and other civil rights leaders knew that economic concerns would help to motivate business to support desegregation and made many tactical decisions based upon those concerns.  Judges routinely encourage parties to settle cases to avoid large legal bills and the possibility of a bad outcome.  Politicians often support proposals that their constituents favor, even if they are politically odious, to ensure getting future votes.

Whether you are caught in a conflict, or trying to help resolve one, remember the basic practical considerations that can often point towards settlement.  These pragmatic concerns will form the path to an agreement.

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When Is Time For Mediation?

Is there a right time to enlist help of a mediator?  Is there are wrong time?  

Like any complicated matter, a conflict is unique in terms of its particular subject, the parties’ motivations, and the overall context.  So, decisions regarding how and when to attempt to resolve any specific conflict should be made in consideration of those attributes.  In some instances, like employment or contractual disputes, there may be a written policy or contractual provision which expressly identifies when mediation should occur.  In most cases, however, the decision is left to the parties and, if they have them, their representatives.

When faced with such a decision, a few basic considerations which may impact the question of when to mediate a conflict:

Future Relationship of the Parties:  if the conflicted parties are likely to be required to interact in the future (parents, family members, business partners) it may behoove the parties to mediate as quickly as possible.  The less time the parties spend engaged in conflict, the fewer angry words exchanged, the better chance to preserve a future relationship.

Inability to Communicate:  if the parties ability to have a productive conversation has been diminished or eliminated by anger  (I understand a fury in your words, but not the words.  Desdemona to Othello).  Mediation may be timely.  The presence of a mediator, and the ability to privately caucus, may offer the parties a method to have a constructive discussion that would otherwise not be possible.

Lack of Realistic Understanding.  If one, or both, the parties in a conflict are unwilling to acknowledge the realities implicated by the conflict (non-paying tenant won’t leave; party overvaluing claim), mediation may help.  A third-party view of the conflict may provide a reality check.  Appearances and positions do not always reflect the truth.  Parties to a conflict usually can’t resolve a dispute unless both sides share a realistic vision of possible outcomes. 

Appearance of Weakness.  There are occasions, especially in lawsuits, when the parties may have an interest in determining whether the decision to mediate might send a signal of lack of conviction in the merits of their claim or defense to the other side.  Serious consideration should be given to how a desire to mediate is expressed, and care should be taken to avoid creating an appearance of weakness.  In such instances, especially if involved in active litigation, it may be better to reference an external authority (court rules, policies, suggestion of judge) as the source of the desire to mediate.

There is no definitive answer to the question of when to mediate.  Think about the context of the conflict and determine whether the parties are effectively communicating.  Be mindful of the appearances and signals sent by a suggestion of mediation and whether a future relationship is likely.  Most of all, think hard about whether mediation could help.  If so, it is likely the right time to mediate.

For an in-depth discussion of the question of the timing of mediation, read Eelco Meerdink’s excellent article:  To Mediate or Not To Mediate?  http://goo.gl/VC87U5

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2014: Make It A Year to Resolve Conflicts

A resolution is a firm determination to do or refrain from some specific action, an expression of a firm course of action.  Resolutions are a New Year’s tradition, as is failing to adhere to resolutions.  The gyms of America are filled with resolution makers in early January and usually back to normal capacity by President’s Day.

“Resolution” also has another meaning:  a solution to a puzzle or problem.   As the corks are about to pop, consider a commitment to make 2014 a year of conflict resolution.

Why bother?  Conflict, in all forms, saps time, effort, energy, and money.  Conflict also limits the potential of personal and business relationships.  Being engaged in conflict harms both parties and adds stress and unpleasantness to everyday life.

How?  Dedicate a little time to reading blogs, articles, books, and tweets about mediation and conflict resolution.  I would recommend http://www.mediate.com/ or http://www.mcfm.org/. The techniques used by mediators can easily be applied in every day life and provide basic tools to deal with conflicts on a daily basis.  If you are facing or involved in a major conflict, such as a divorce, lawsuit, or property/financial matter, consider seeking professional assistance and talk to a mediator or attorney who is dedicated to solving problems.

Make 2014 a year of resolution and peace.  Walk a mile in the shoes of your opponents and think about how resolving your conflict with improve every one’s life and chance of success in 2014.

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