DISPUTE RESOLUT ION MAGAZINE W I N T E R 2 0 0 8 c 1
Fifteen and Counting
By Chip Stewart
n recognition of the fifteenth anniversary of the
Section of Dispute Resolution, the editorial board of
Dispute Resolution Magazine wanted to do something
special with the publication that is so dear to us. What
you hold in your hands is the result.
We began planning this issue as last year came to a
close, hoping to make a magazine that would be valuable
to the ADR community. We wanted to seek contributions
from some of the luminaries in the ADR field. We wanted
to seek contributions from other ABA sections. And we
wanted people who have done some of the greatest work
with the Section, the current and former Section chairs, to
contribute as well.
Through the tireless work of our editorial board, we
reached out to scholars, practitioners, and judges to write
articles about the past, present, and future of ADR.
While they were recruited because of their experience in
certain aspects of ADR, we gave them free reign to write
whatever they found to be interesting, thought-provoking, and challenging in our field.
We couldn’t be more pleased with the results. David
Hoffman, a former chair of the Section whose work has
often graced the pages of this magazine, writes about three
topics that present particular challenges for ADR in the
future: the Internet, spirituality, and professionalization.
Professor Jean Sternlight offers insight into how ADR
processes can enhance procedural justice for participants.
Mediators Linda Singer and Michael Lewis write about the
rapid growth of mediation into the mainstream of legal
practice and what may lie ahead for the mediation revolution. Geetha Ravindra, cochair of the Section’s Committee
on Mediator Ethical Guidance, details her experience in
the growth of ADR in Virginia and discusses ethical issues
ADR faces in the future. Marvin Johnson, founder and
executive director of the Center for Alternative Dispute
Resolution, describes the Section’s efforts to foster diversity
in the ADR field. Kathy Bryan and Helena Tavares
Erickson of the International Institute for Conflict
Prevention and Resolution write about ways to improve
business arbitration.
In addition, we solicited articles about ADR topics
from other ABA sections. Two sections kindly responded.
Gregg Herman, Chair of the Family Law Section, writes
about the role of ADR processes such as mediation, collaborative law, and cooperative law in his field. Retired
judge Allan van Gestel of the Tort Trial and Insurance
Practice Section outlines the benefits of neutral case evaluation in business litigation.
We also reached out to the current and former chairs
of the Section of Dispute Resolution to give them an
opportunity to reflect on the Section’s achievements and
future challenges. I had the enjoyable task of working
I
with them on a piece we present as a “virtual forum,” in
which they discuss the growth of the ADR field, the
major contributions the field has made, and possible solutions to some of the field’s most pressing issues.
As is the case in every issue of the magazine, we like to
run a series of pieces that are not bound by our themes, and
we have a strong set of offerings that complement our theme
nicely. Professor John Lande summarizes the findings of the
Section’s Task Force on Improving Mediation Quality,
which were announced in the spring. David Seibel and Julia
Gegenheimer of Insight Collaborative detail the importance
of training and fellowships in the conflict management field.
For international perspective, Judge Rebecca Westerfield
interviews a pair of Austrian mediators about business mediation. And three researchers—Ansley Barton, Susan Raines,
and Tim Hedeen—present the results of their assessment of
Florida’s mediation training programs.
So much hard work has gone into assembling this issue
that I can’t possibly thank everyone, but I encourage you
to look at the list of editorial board members and staff on
page 2 of the magazine, who put tremendous effort into
making our Section magazine something we can be proud
of. As always, we owe great thanks to the authors who
came through with their thought-provoking articles. And,
of course, none of this would be possible without the continued leadership and support of Frank Sander, the chair
of our editorial board. Frank’s vision has been a strength
for both the Section and this magazine, and it is truly a
privilege to work with him.
I hope you enjoy reading this special issue as much as
we have enjoyed putting it together for you. ◆
D ISPU T E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
1
Spring and Summer 2008
Volume 14, Numbers 3 and 4
Published by the American Bar Association Section of Dispute Resolution
DISPUTE RESOLUTION
MAGAZINE
EDITORIAL BOARD
Chair
Frank E.A. Sander
Harvard Law School
Cambridge, Massachusetts
Members
Wayne D. Brazil
Magistrate Judge, United States
District Court for the Northern
District of California
Oakland, California
Melanie Greenberg
Cypress Fund for Peace and Security
Washington, D.C.
Harry Mazadoorian
Quinnipiac University School of Law
Hamden, Connecticut
James McGuire
JAMS
Boston, Massachusetts
Richard C. Reuben
University of Missouri-Columbia
School of Law
Margaret L. Shaw
JAMS
New York, New York
Section Council Liaison
Homer LaRue
Howard University School of Law
Washington, D.C.
Section Chair
Lawrence R. Mills
Seattle, Washington
Section Director
Kim Knight
Washington, D.C.
Editor
Chip Stewart
Texas Christian University
Fort Worth, Texas
Managing Editor
Thomas J. Campbell
Art Director
Daniel Mazanec
Organizational affiliation
for identification purposes only.
Focus: Fifteen Years of Dispute Resolution
6
The Future of ADR: Professionalization, Spirituality, and the Internet
David A. Hoffman
12
Dispute Resolution and the Quest for Justice
Jean R. Sternlight
15
Looking Forward in Mediation: Today’s Successes
and Tomorrow’s Challenges
Linda R. Singer and Michael K. Lewis
20
Business Arbitration Can and Should Be Improved in the United States
Kathy A. Bryan and Helena Tavares Erickson
26
A Brief Summary of the Section’s Diversity and
Diversity Committee Efforts
Marvin E. Johnson
28
Reflections on Institutionalizing Mediation
Geetha Ravindra
33
Triumphs and Challenges
Chip Stewart
37
ADR and Family Law
Gregg Herman
40
The ADR Case Evaluator’s Role in Contemplated
and Pending Litigation
Allan van Gestel
The Section of Dispute
Resolution acknowledges
its appreciation to all of
the advertisers that
support this publication.
Our advertisers play an
integral part in the
success of Dispute
Resolution Magazine.
We are pleased to have
the support of the
following organizations:
Page 40
Page 55
American Arbitration
Association
FEATURES
Doing the Best Mediation You Can
43 John
Lande
47
Improving Mediation Training and Regulation
Through Collaborative Assessment
Ansley Barton, Susan Raines, and Timothy Hedeen
51
Interview: Mario Patera and Ulrike Gamm
Interviewed by Hon. Rebecca Westerfield
55
Tomorrow’s Peacemakers: How to Encourage the Next
Generation of Conflict Management Professionals
David G. Seibel and Julia Gegenheimer
DEPARTMENTS
4
60
61
62
64
From the Chair
ADR Calendar
LexisNexis
Mediate.com
Pepperdine University
School of Law
University of
Missouri Columbia
School of Law
State and Federal Cases
ADR News
The Lighter Side
Dispute Resolution Magazine is published quarterly by the American Bar Association Section of Dispute Resolution (ISSN: 1077-3592). © 2008 American Bar Association.
Editorial Policy: Dispute Resolution Magazine welcomes a diversity of viewpoints. Articles, therefore, reflect the views of their authors, and do not necessarily represent the
position of the American Bar Association, the ABA Section of Dispute Resolution, or the editors of the magazine.
Contacting the magazine: Article ideas, letters, and other correspondence can be sent to Dispute Resolution Magazine, ABA Publishing, 321 North Clark Street, Chicago, IL
60610. The phone number is 312-988-5990, and the fax number is 312-988-6030. Email address: [email protected].
Nonmember Subscriptions, Back Issues, Change of Address: Nonmembers of the Section of Dispute Resolution may subscribe to the magazine for $30 per year.
Back issues are available for $8 per copy. Send requests to ABA Service Center, 321 North Clark Street, Chicago, IL 60610. Phone 312-988-5522. Email [email protected]. Notify the
Service Center for change of address.
Reprint Permission: Send requests via fax to: 312-988-6030; phone 312-988-6102; [email protected].
Advertisers, please contact Anne Bitting in the ABA Advertising Sales Department, 312-988-6115, [email protected].
From the Chair
By Lawrence R. Mills
A Milestone on the Journey
his year, the American Bar Association Section of
litigation approach to dispute resolution.
Dispute Resolution celebrates its fifteenth anniversary.
The special committee recommended establishing
At this milestone on the journey toward improved and experimental pilot multidoor courthouse programs. In
enhanced conflict resolution, it is appropriate to look back
1981, the ABA Board of Governors instituted a threeon the history of the Section and forward to the opportuniyear plan that launched the successful Multidoor Dispute
ties for the future.
Resolution Centers Courthouse Project, featuring mediaThe ABA Section of Dispute Resolution traces its orition and informal dispute resolution processes.
gin to the 1976 National Conference on the Causes of
Six years later, in 1987, the ABA, under the leadership
Popular Dissatisfaction with the Administration of Justice of ABA President Robert McCrate and President-Elect
convened in St. Paul,
Robert Raven, established
Minnesota, by then-United
the Standing Committee on
States Supreme Court Justice
Dispute Resolution. By this
Chairs of the ABA Section of Dispute
Warren Burger. The confertime, the use of dispute resoluResolution
ence, which has come to be
tion processes other than trials
known as the Pound
was gaining acceptance by the
1993–94
Robert Raven
Conference, focused on issues
bar. The Standing Committee’s
1994–95
John Van Winkle
of delay, expense, and adminpurpose was to “study, experi1995–96
Resa Harris
istrative problems within the
ment with, disseminate infor1996–97
Jose Feliciano
court system in the United
mation concerning and identi1997–98
Kimberlee Kovach
States. At the Pound
fy appropriate integration of
1998–99
Pamela Chapman Enslen
Conference, Harvard Law
methods for the resolution of
School Professor Frank
disputes other than the tradi1999–2000
James Alfini
Sander, who is now chair of
tional process.”
2000–01
Ben Overton
the editorial board of this
Six years later, in 1993, the
2001–02
Robert Mussehl
magazine, gave a seminal
ABA dissolved the Standing
2002–03
Bruce Meyerson
speech outlining the visionary
Committee and created the
2003–04
Richard Chernick
idea of the Multidoor
Section of Dispute Resolution.
2004–05
David Hoffman
Courthouse, in which differThe first chair of the Section
2005–06
Robyn Mitchell
ent types of disputes could be
was Robert Raven, a former
resolved efficiently through
ABA president and a strong
2006–07
John Bickerman
processes tailored to the
proponent of creative problem
nature of the dispute.
solving and dispute resolution.
The Pound Conference
The mission of the Section, as
spawned efforts to improve the administration of justice,
set forth in the Section bylaws, is “to provide its members
including the use of alternative dispute resolution, based
and the public with creative leadership in the dispute reson the concept that not every case that is filed requires a
olution field by fostering diversity, developing and offerfull court hearing. In 1977, ABA President Justin A. Stanley ing educational programs, technical assistance and publicreated the ABA Special Committee on the Resolution of
cations that promote problem solving and encourage
Minor Disputes chaired by Talbot “Sandy” D’Alemberte.
excellence in the provision of dispute resolution services.”
The purpose of the special committee was to study the
Since its inception, the Section has experienced consispotential use of mediation and other processes in criminal tent and remarkable growth in membership. The Section
misdemeanors and civil small claims. The committee’s
currently has more than 18,000 members, including attorneyname and scope may reflect the anticipated negative
advocates, mediators, arbitrators, judges, dispute resolution
reaction of the bar to encroachment upon the traditional
service providers, law students, mental health therapists, and
other professionals from throughout the United States and
Lawrence R. Mills, a principal in the Seattle law firm Mills Meyers many other countries. Members are drawn to the Section by
its efforts to be an agent for constructive change within the
Swartling, is an experienced arbitrator and mediator. He may be
legal profession and the conflict resolution community.
contacted at [email protected] or www.millsadr.com.
T
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SPRING and SUMMER 2008
D ISPUTE RESOLUTION MAGAZINE
Over the 15 years of its existence, the Section has assisted in developing and promulgating the Code of Ethics for
Arbitrators in Commercial Disputes, the Revised Uniform
Arbitration Act, the Uniform Mediation Act, and the
Model Standards of Conduct for Mediators. In addition,
the Section has created a Committee on Mediator Ethical
Guidance to respond to questions regarding the interpretation and application of the Model Standards of Conduct
for Mediators. Most recently, the Section’s Task Force on
Improving Mediation Quality, cochaired by Wayne Thorpe
and Rachel Wohl, has issued a comprehensive report following a two-year empirical research project to gain insight
from users of mediation services as to the key components
of high-quality, successful mediations in civil cases in which
the parties are represented by counsel. A summary of the
task force’s conclusions is presented in this issue of Dispute
Resolution Magazine (page 43).
The Section’s annual Spring conference, cochaired this
year by Deborah Masucci, Philip Cutler, and Leila Taaffe,
now draws about 1,000 attendees each year to nearly 100
continuing education, training, and plenary sessions. The
Section’s spring conference is one of the largest of any ABA
Section conference and continues to be the major gathering
place for those interested in dispute resolution.
Over the years, the Section has received grants from
the William and Flora Hewlett Foundation, the JAMS
Foundation, and the Alfred P. Sloan Foundation to support the Section’s Dispute Resolution Resource Center
through which the Section provides dispute resolution
information, technical assistance, and resources to courts,
law schools, other educational institutions, and state and
local bar associations. The Section also disseminates useful information through its robust website, listserves, enewsletter, CLE programs, and publications, such as this
magazine and more than a dozen books.
The Section’s past successes have been the product of
strong, effective leadership. The honor roll of Section
chairs is included as a sidebar to this column. Of the former chairs still actively involved as leaders of the Section,
Pam Enslen and Jim Alfini serve as Section delegates to
the ABA House of Delegates, Bruce Meyerson organizes
the Section’s national mediation institute each year,
Richard Chernick chairs the Section’s annual national
arbitration program, and David Hoffman serves as chair of
the Section’s newest committee, on collaborative law.
The Section has also been blessed with outstanding
Section directors in Jack Hanna and Ellen Miller, and
loyal, consistent long time staff members including Gina
Viola Brown and Jannice Hodge, and we warmly welcome
Kim Knight as our new, dynamic Section director.
As we pass the 15-year milestone and continue the
journey, the ABA Section of Dispute Resolution is well
positioned for the future. The challenges ahead include
increasing the diversity of dispute resolution practitioners;
expanding dispute resolution processes to international
disputes; dealing with potential legislative and regulatory
restrictions on mandatory predispute arbitration provisions in consumer transactions; and educating the public
as to the availability of efficient, cost-effective, and fair
dispute resolution alternatives to court trials.
Under the able leadership of the Section’s Long Range
Planning Officer, Bruce Meyerson, the Section is now
engaged in a long-range planning process to develop a plan
for the next five to 10 years. The plan will provide direction
to the Section as we strive to foster collaboration in dispute
resolution policy while improving access to justice and problem solving for all. In addition, Chair-Elect Lela Love and
Vice Chair Homer LaRue are spearheading a task force to
compile policy statements of fundamental principles of dispute resolution that can be adopted by our Section and the
ABA House of Delegates, so that the ABA can speak confidently to public policy issues in dispute resolution.
We have come a long way in 15 years. The journey is
long and ever upward, and the view from here is good. ◆
Agree? Disagree?
Have Something to Say?
email to [email protected]
Fax to 202-662-1683
Mail to Dispute Resolution Magazine
740 15th St. NW
Wahington, DC 20005
D ISPU T E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
5
The Future of ADR
Professionalization, Spirituality, and the Internet
By David A. Hoffman
W
hen I was in law school, I had the good fortune
to have Professor Frank E.A. Sander, who chairs
the editorial board of this magazine, assigned as
my faculty advisor. It was good fortune, but I did not realize
it or take advantage of it. I hardly ever went to see him.
Only years later did I begin to realize the opportunity I
had missed, as I became more involved in the ADR field.
And today Frank is one of my heroes—a leader whose
contributions to the field are enormous and whose shoulders we stand on every time we mediate or arbitrate a case
or teach students about ADR. And so, in my continuing
effort to make up for my shortsightedness as a law student, I find that whenever Frank asks me to write an article, I immediately say yes, even when I haven’t a clue as
to what I am going to say.
In this instance, I had to wonder what I could say
about the future of ADR practice that has not already
David A. Hoffman is the founding partner of
Boston Law Collaborative, LLC, a law and dispute
resolution firm, in which he serves as a mediator,
arbitrator, and lawyer. He teaches mediation at
Harvard Law School and is past chair of the
American Bar Association Section of Dispute
Resolution. The author thanks Beth Andrews,
Nicole DiPentima, Lily Hoffman-Andrews, and
Carrie O’Neil for comments on a previous draft of this article, and
also Daniel Bowling, Erica Fox, and Colin Rule for conversations
that helped to crystallize the ideas in this article. He can be reached
at [email protected].
6
SPRING and SUMMER 2008
been said—in abundance. As practitioners within a field,
we are inclined to self-examination and constantly in
search of self-improvement. Much has already been written about such important topics as the need for greater
diversity in the field, the risk that private ADR forums
will create a dual system of justice for the rich and poor,
and the problems inherent in mandatory arbitration of
consumer and employment claims.1 But I thought that I
could contribute—as a thank you to Frank on this fifteenth
anniversary of the Section of Dispute Resolution that he
was instrumental in founding—some observations on
three developments that present significant challenges for
our field and may change dramatically the way we do our
work in the years ahead:
(1) The Internet—how will we adapt dispute resolution
methods to an electronic future in which human relationships unfold and flourish in a virtual space that our
current generation can barely imagine?
(2) Spirituality—how will we manage the emerging tension between those who seek to explore spiritual dimensions of dispute resolution work and those who see little,
if any, place for spirituality in their ADR work?
(3) Professionalization—how will we respond to the growing risk that if the ADR field does not develop its own
methods of quality assurance, outsiders will do it for us?
I have described these themes as problems, but we mediators know that reframing problems as opportunities is one
D ISPUTE RESOLUTION MAGAZINE
of the most well-worn tools in our toolbox. Some of us cite
that marvelous saying of Henry Kaiser: “Problems are just
opportunities in work clothes.”2 And so the primary focus
of this article will be on the resolution of these problems
rather than exploring at length the dangers that they pose.
The Internet
In my second year of law school, I was introduced to the
world of computer-assisted legal research. I remember the
frightening moment in the library when I faced the large,
humming box with blinking red lights and first touched
my fingers to the computer’s keyboard. The whole concept of operating a computer was intimidating. That was
26 years ago. Today, my tiny laptop computer is my nearly
constant companion. It connects me, more or less effortlessly, with my clients, my colleagues, my relatives, my
friends, and numerous direct marketers that cleverly
evade my spam filters. My firm, like most firms, has a
website, but if you had asked me five years ago how much
of our business would come to us solely because of Internet
exploration by prospective clients, I would never have
guessed that the answer would one day be one-third, as it
is today. And that figure is growing.
Of course, we of the baby-boom generation are mere
novices when it comes to technology. Our children and
grandchildren are steeped in electronic media. How many
of us have had to turn to a 10-year-old to help us solve
some arcane computer-related problem? For them, communicating electronically—including with people that
they have never met face-to-face—is entirely normal.
Author Douglas Adams once described the all-too-human
tendency to think “that anything that was in the world
when you were born is normal and natural. Anything
invented between when you were 15 and 35 is new and
revolutionary and exciting, and you’ll probably get a
career in it. Anything invented after you’re 35 is against
the natural order of things.”3
For the generation that is currently in college, or in grade
school, there is nothing unnatural about sharing intimate
information with total strangers in Internet chat rooms and,
indeed, posting such information in publicly available electronic forums. Relationships are born, develop, and die in
cyberspace, without any in-person meeting. Some relationships are played out through the intermediaries known as
avatars in “virtual” (i.e., fictional) communities or cities. In
a recent paper, Ken Heare, Dana Kaplan, Nan Starr, and
Wendy Vonhof noted that the “Facebook Generation” is “so
comfortable being online it is inevitable that they will expect
to resolve many of their conflicts online as well.”4 We do not
have to wait until the next decade or even the next year to
see this phenomenon at work. According to Colin Rule, who
serves as counsel at eBay and PayPal, those two companies
handle “many millions of disputes” online each year. And
that is just two companies.
One of the problems for the ADR field is the generation
gap. We dispute resolvers—even those of us who are
wedded to our laptops—are technologically challenged in
comparison to a younger generation to whom we are offering our services. At the Pew Internet and American Life
Project, Director Lee Rainie describes this younger generation as “Millennials” who are “digital natives in a land of
digital immigrants.”5 We of the older generation, who are
struggling, as immigrants do, to learn the customs, language,
and culture of the natives, will probably never go completely native in this new electronic environment. It appears
that the pace of technological change in the realm of electronic communications will continue to accelerate, and
therefore this structural gap may widen over time, even if
we try to stay abreast of these developments.
Technology itself will probably help us bridge some
of this gap. The computer industry continues to develop
ever newer, user-friendly, plug-and-play interfaces that
enable even the technologically challenged to participate
in Internet communications, which now include audio
and video as well as text. In addition, newer technologies
will make our interactions online feel far more like inperson communications. In one such technology—teleimmersion—expanded bandwidth enables technologists to
create three-dimensional images akin to those that science fiction brought us in the form of the holodeck on
the spaceship Enterprise in Star Trek: The Next Generation.
The significance of such technology for the dispute resolution field, with its reliance on face-to-face communications, is apparent. To give but one example, arbitrators
often rely on credibility judgments about witnesses based
on the subtle cues that can be detected more effectively
in person than via current audio or video technologies. It
may be many years before technology can transmit all of
the subtle cues that we pick up from other people when
we meet face-to-face, but most assuredly that is the direction in which we are headed.
There is enormous opportunity here for expanding
the reach of dispute resolution services around the globe.
Like the telemedicine techniques that enable surgeons in
Boston to guide, and even conduct, a procedure in a rural
corner of Zimbabwe, mediators and arbitrators specializing
in, say, patent cases will be able to “sit with” the parties
in virtually any locale.
In the meantime, harnessing our digital technologies
requires specialized training for dispute resolvers. One
aspect of such training is learning how to communicate
collaboratively in what will soon be seen as a rather primitive medium—namely, email.6 There are nuances of emotion—often misinterpreted—that can be communicated
by even the simplest and most perfunctory messaging,
and, as we know, nuances count. How many of us have
stubbed our toes on some Internet communication glitch
like this one: A man trying to express sympathy over the
death of a colleague’s relative signed his email message
“LOL,” which he thought meant “lots of love”; the colleague interpreted that to mean “laughing out loud.”
Needless to say, feelings were hurt. More frequently, however, the glitches are subtle but can damage relationships
just the same. In a recent workshop, I asked dispute
D ISPU T E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
7
resolvers what percentage of their communications with
the parties took the form of email, and the middle of the
range was 30 to 40 percent, with one mediator reporting
that 80 percent of her communications were via email.
To manage this much e-communication effectively, dispute resolvers in the years ahead will need to learn about
not only computer software and hardware but also the
new social software and social codes of the digital age.
Spirituality
The burgeoning interest in what has come to be known as
the spiritual aspects of dispute resolution work can be seen
in nearly every corner of the dispute resolution field. This
magazine recently included a column entitled “Deeper
Dimensions.” The Association for Conflict Resolution has
a Spirituality Section. For several years the Program of
Negotiation at Harvard Law School has had a project, led
by Erica Fox, called the Harvard Negotiation Insight
Initiative, which has now become the independent Global
Negotiation Insight Initiative, offering workshops and
courses on the lessons that dispute resolvers can learn from
the various wisdom traditions and contemplative practices.
Workshops and symposia on the subject of meditation (note
the extra “t” there) and mindfulness, including one such
symposium sponsored by Harvard Negotiation Law Review,
have opened the door to wider acceptance of the idea that
spiritual practice can play an important and useful role in
dispute resolution work. Numerous books and articles on
this subject are also beginning to appear.7
The problem for the field of dispute resolution in this
development is that many practitioners view spirituality as
alien to their worldview and irrelevant to their practice. A
recent article on the subject captured the point nicely in its
title: “What the Bleep Does Spirituality Have to Do with
Conflict Resolution?”8 One mediator, Diane Levin, wrote
recently in a blog commentary that “As an atheist, I personally have little use for or interest in getting in touch with
the so-called spiritual aspect of conflict. . . . There’s plenty
in the earthly toolbox that mediators like me can utilize.”9
There is also a risk that those outside the ADR field—for
example, potential clients—will be alienated by this perspective.10 As mediator Colin Rule noted in a recent blog
posting, in which he discusses the value of game theory as
a powerful tool for understanding negotiating behavior,
“There are legions of practitioners who will talk about the
spiritual side of peacemaking . . . but I think they alienate
more people than they attract to the field.”11
Recent developments in the field of neuroscience may
provide a bridge across this divide. Research employing
MRI imaging of the brain has shown the positive effects
that result from even short periods of meditation.12 In an
MRI study of experienced Zen Buddhist meditators, conducted at Massachusetts General Hospital, increased activity in the subjects’ frontal lobes suggested the presence of
“enhanced insights and attentiveness, . . . sharper mental
13
focusing, and deeper emotional resonances.” According to
UCLA brain researcher Daniel Siegel, “anecdotal reports
8
SPRING and SUMMER 2008
suggest that mindfulness meditation enhances the capacity
for individuals to detect the meaning of facial expressions
without verbal clues.”14 The discovery of mirror neurons in
the late 1990s may explain in part the ability of a wellattuned mind to the mental states of others.15 And in a
recent peer-reviewed study of experienced Buddhist meditators at the University of Wisconsin, researchers showed
that “cultivating compassion and kindness through meditation affects brain regions that can make a person more
empathetic to other peoples’ mental states” and that this
effect could be seen to some degree even in subjects who
had been meditating for only two weeks.16 While no one
has demonstrated scientifically that a sustained practice of
meditation enhances the ability of mediators to resolve
conflicts, the studies done to date suggest that such practices as meditation and yoga enhance precisely those
qualities that help mediators suspend judgment and
attune themselves to the emotions of those with whom
they are working.
These findings may provide common ground for those
who, on the one hand, believe that pursuing the deeper
dimensions of spiritual awareness adds value for mediators, and those who, on the other hand, are irreligious,
agnostic, or atheists. The mental training associated with
meditation does not require religious belief of any kind.
Although meditation practice is associated most strongly
with Buddhism, it is used by people of all religious backgrounds and by many who practice no religion. As Steven
Pinker points out, common structures of the human brain
and the specialized functioning of those structures “underlie superficial variations across cultures.”17
Neuroscience is also providing those of us in the dispute
resolution field with some tantalizing possibilities for future
research. For example, scientists are just beginning to
understand the role of neurotransmitters—chemicals found
in the brain, such as serotonin and oxytocin—in regulating
human emotion. One set of studies suggests that increasing
the production of oxytocin increases an individual’s feelings
of trust. The implications of these findings for dispute resolution practice are obvious. The research also suggests specific activities that might increase oxytocin production,
such as physical touching (hence the importance of handshaking or similar trust-enhancing activities in many cultures?) and eating or working together.18
I don’t want to ignore the profound differences that
remain between those in the dispute resolution field who
find value in a spiritual orientation and those who don’t—
notwithstanding the research that suggests down-to-earth,
provable, scientific explanations for the efficacy of contemplative practices. After all, calming the minds and opening
the hearts of the people involved in a dispute resolution
process may be only half the battle, so to speak, for a mediator. Those who advocate for greater understanding of game
theory and other cognitive approaches to mediation practice may find these new findings in neuroscience to be of
only marginal interest. However, at a minimum, these findings may provide us with a set of common terms that we
D ISPUTE RESOLUTION MAGAZINE
can use without stigma or embarrassment to describe mental
and emotional states—regardless of whether we call them
“spiritual” or not—that will aid us in the work that we do.
Mediator Doug Noll notes that, given the recent research in
neuroscience, it appears that spiritual teachers who advocated various forms of contemplative practice as the path to
peacemaking were prescient. But perhaps they were simply
well-attuned scientists detecting patterns of human behavior before we had MRIs to confirm those observations.
There is an opportunity here for those of us who find meaning and value in spiritual approaches to dispute resolution
to reframe those techniques as simply sound practices
validated by science.19
Professionalization
Several years ago, Professor Sander
and I served on the Massachusetts
Supreme Judicial Court Standing
Committee on Dispute
Resolution, where we and our
colleagues wrestled with the
question of qualification standards for mediators, arbitrators, and other dispute
resolvers. This aspect of the
committee’s work took several
years, but one thing that was
clear was that we would be
recommending training
requirements for all mediators.
While our deliberations continued, the state legislature passed a
bill, unbeknownst to us and literally in the middle of the night, that would
have made any mediator “certified and
qualified” if he or she had been providing
mediation services for the courts for five years or
more—no training required. The bill had been submitted to the legislature by a lobbyist representing a group of
retired judges who were unhappy with our proposed training
requirements, which they considered unnecessary. A concerted effort by the dispute resolution community persuaded
then-Governor William Weld to veto the bill, which would
have eradicated several years’ worth of work by our committee. Although this bill was killed, ADR practitioners may see
more efforts of this kind in the years ahead.
The challenge for dispute resolvers is nothing less than
defining the nature and scope of our field. While we engage
in a robust debate over whether professionalization of our
field will be helpful or harmful, we get closer every year to
becoming a profession. The fundamental characteristics of
a profession include a recognized body of knowledge, an
agreed-upon set of skills, and a mechanism (such as a certification board) for defining who is in and who is out.
It seems astonishing to think that we are nearly a profession while there is still a lack of consensus over such basic
questions as the meaning of the term “mediation,” much
less agreement on the essential skills and knowledge.
To illustrate the reasons for this difficulty, permit me to
tell a brief story. For two years during the 1990s, I had a
memorable (and very enjoyable) experience working with
colleagues from several different ADR organizations—
SPIDR (Society of Professionals in Dispute Resolution),
AFM (Academy of Family Mediators), NAFCM (National
Association for Community Mediation), and others—on
the AFM’s Voluntary Mediator Certification Project. One
of the goals of the project was to develop a written test for
mediators. We spent several months getting trained by
Ph.D.s at the University of Georgia who specialize in
developing certification exams for police departments and a variety of other occupations.
With their guidance, we analyzed actual
mediations—looking for the specific knowledge and specific skills
used by workaday mediators. We
developed batteries of questions designed to sort out the
trained from the untrained.
All of the questions needed to
be multiple choice so as to
weed out subjectivity on the
part of the examiners. I then
gave a short battery of questions to my 10-year-old
daughter, Lily, who scored
80 out of 100 on the test.
Now, I will admit that Lily is
good at taking tests. But I found it
dauntingly hard to create questions that would be understandable by someone with a basic education
but not easily solvable by someone
without mediation training.
Why should that be? I think I can answer that
question with another story. A Boston mediator,
Jim Barron, was hired in the mid-1980s, right out of law
school, by the superior court to help the court clear its
backlog of 24,000 cases. Unschooled in mediation—
indeed, he had never heard of it—Jim was asked to
review the pleadings and meet with the parties or their
lawyers. He found that he was able to facilitate a settlement in a large percentage of the cases. A few years later,
he began to learn about mediation, and he discovered—
much to his surprise—that the techniques offered in
mediation training were exactly those that he had developed by himself through trial and error. In short, mediation is a natural, normal process that can be done
successfully by people with very little training so long as
they have good communication skills, good relationship
skills, and a modicum of emotional intelligence.
Why then should we consider this a profession? In my
opinion the answer is that higher levels of skill are needed as we move from the simplest cases to those in which
the stakes are high, emotions run deep, and there are
Relationships
are born, develop,
and die in
cyberspace, without
any in-person
meeting.
D ISPU T E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
9
multiple issues or multiple parties. To protect the public,
our field probably needs training requirements (shouldn’t
we make it more than 40 hours?), a period of mentorship,
and a very basic entry-level exam—even if it is easy
enough for a smart 10-year-old to pass.
But we also need more than that. The problem here is
that if we do not develop sophisticated mechanisms for
credentialing in our field, clumsy legislative or regulatory
attempts will be made by those outside the field or those
seeking to enter it. The opportunity that invites us—and
has been inviting us for some time—is to strike the right
balance between rigorous standards on the one hand and
openness to innovation on the other.
The best analogy, in my view, is the field of psychotherapy,
in which there are multiple forms of practice and multiple
forms of professional training. A basic level of knowledge
and a command of ethical principles is required for licensure as a psychiatrist, psychologist, clinical social worker,
or licensed mental health counselor. And then one can
specialize further in cognitive behavioral therapy, psychoanalytic techniques, or a variety of other forms of psychotherapy. In each of these combinations of basic professional
training and later specialization, we see forms of practice
that differ widely, depending in part on the skills and experience of the practitioner, but also depending on the type of
client. A form of therapy suitable for an adult might be
entirely unsuitable for an adolescent.
My wife is a psychotherapist, and she has specialized
training in EMDR (Eye Movement Desensitization and
Reprocessing) techniques and Internal Family Systems.
Certification in each of these disciplines requires many
hours of training, supervised role play, and case supervision
over the course of a year or more. Likewise in mediation, we
are beginning to see specialized certification of mediators in
unique subsets of the field. For example, mediators with a
commitment to the practice of transformative mediation
can apply for certification by the Institute for the Study of
Conflict Transformation, Inc., which requires training, performance-based assessment using a videotaped mediation
session, written self-assessment by the applicant, and a dialog with a seasoned practitioner to assess the applicant’s
skill and understanding of the transformative model. In
Massachusetts, certification is offered by the Massachusetts
Council on Family Mediation for its members, who must
meet more rigorous training requirements and submit five
mediated agreements for review.
If the ADR field widely embraces these models of specialized credentialing, we will be better able, with time, to
assess (a) what common elements could be used as a baseline level of competence, and (b) the best techniques for
measuring such competence. Paradoxically, we may need
to start with the most specialized and demanding standards in order to help us figure out the more basic ones.
At the same time, while these more specialized forms of
credentialing develop, a coalition of ADR organizations
could begin accrediting basic ADR training programs.
Doing so would likely improve the quality of training and
10
SPRING and SUMMER 2008
would also help the field assess whether there is an emerging consensus on core skills that should be taught for
mediation, arbitration, and other ADR practices. With
experience from these two efforts—accrediting basic training programs and certifying advanced level practitioners—
the ADR field might then be ready for the challenging task
of setting baseline entry-level requirements that will protect the public while holding the door open for people of
all backgrounds. If we seize this opportunity to define our
own field, and go about the task remembering that we have
more in common than what separates us, I believe we will
succeed in staving off the occasional attempt of people outside the field to tell us how to do our work.
Formidable Challenges
The challenges—both the problems and the opportunities—that lie ahead are formidable and exhilarating. Are
these challenges related? I think they are. The computer
operating systems that have become a dominant feature of
our lives and an increasingly important component of our
work are dramatically expanding the horizons of our outreach to others, and will enable dispute resolvers to work
on a global scale. Meanwhile, advances in neuroscience are
deepening our understanding of the finest calibrations of
our internal operating systems, and will enhance our ability
to connect with the parties that we work with. The pace of
change could make it that much harder, but all the more
necessary, to develop, from pockets of increasingly specialized ADR expertise, a methodology for identifying best
practices and creating a true profession. ◆
Endnotes
1. See, e.g., David Hoffman, The Future of ADR Practice: Three
Hopes, Three Fears, and Three Predictions, NEGOT. J. 467 (Oct. 2006).
2. Or, to the same effect, the comment that President John F.
Kennedy made in several of his speeches: “When written in Chinese,
the word ‘crisis’ is composed of two characters. One represents danger
and the other represents opportunity.” More recently, some linguists
have called into question the accuracy of Kennedy’s statement, but it
has endured as a useful metaphor of a truth that dispute resolvers see in
the crises that the parties bring to us for resolution.
3. Brendan Buhler, Interview: Douglas Adams, UNIV. OF CAL. SANTA
CLARA DAILY NEXUS, Apr. 5, 2001, www.dailynexus.com/article.php?a=678.
4. Ken Heare, Dana Kaplan, Nan Starr, and Wendy Vonhof,
Communicating Online: How the Facebook Generation Is Shaping the
Future of Online Dispute Resolution (January 20, 2008) (unpublished
manuscript).
5. See David Larson, Technology Mediated Dispute Resolution (TMDR):
Opportunities and Dangers, 38 U. TOLEDO L. REV. 213, 218 (2006).
6. See David Hoffman, Communicating Collaboratively in Cyberspace:
What Couples Counselors Can Teach Us about Email, 5 COLLABORATIVE
L. J. 14 (Fall 2007).
7. E.g., BRINGING PEACE INTO THE ROOM: HOW THE PERSONAL
QUALITIES OF THE MEDIATOR IMPACT THE PROCESS OF CONFLICT
RESOLUTION (eds. Daniel Bowling and David Hoffman, 2003), which
includes essays on “Mindfulness Meditation and Mediation: Where the
Transcendent Meets the Familiar,” “Creating Sacred Space: Toward a
Second-Generation Dispute Resolution Practice,” and “Mediation and
the Culture of Healing.”
8. Eileen Barker, What the Bleep Does Spirituality Have to Do with
Conflict Resolution?, ACRESOLUTION (Fall 2005). In her article, Barker
DISPUTE RESOLUTION MAGAZINE
(continued on page 46)
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he fifteenth anniversary of the ABA Section of
Dispute Resolution presents a good opportunity to
reflect on the relationship between various forms of
dispute resolution and justice. During and since the 1976
Pound Conference,1 the rise of nonlitigation approaches
has sparked an intense debate as to whether negotiation,
mediation, and arbitration are consistent with justice or
rule of law, and whether litigation itself is sufficiently
accessible to support a quest for justice. This debate about
procedural justice is not limited to the United States, but
rather takes place in other countries too, in part because
the United States has become an exporter of ADR, as
well as judicial reform.2
At the extremes, some commentators seem to believe
that only their own preferred form of dispute resolution
is consistent with justice. Litigation sentimentalists3 urge
that litigation is critically important to allow economic
and political underdogs to advance. Mediation evangelists
stress that mediation can result in better and more enforceable agreements, and perhaps even help us become better
human beings. Arbitration advocates urge that their preferred technique allows disputants to voluntarily and
knowledgeably structure their own method of dispute resolution, thereby maximizing free choice and economic
well-being.
Yet, although these perspectives are founded on grains
of truth, each is also severely flawed. While litigation has
at times led to important social and political change, litigation is also too often inaccessible to many because of its
high costs and slow speed. Further, as Professor Marc
Galanter explained more than 30 years ago, the powerful
forces within a society have great ability to protect themselves in litigation and in the lawmaking process upon
which litigation is ultimately dependent.4
Mediation can indeed be beautiful. It can help disputants recognize each others’ interests and resolve their
disputes. Yet, particularly when mandated by courts and
legislatures, mediation can impose high costs, require
expenditure of unproductive time, and allow more powerJean R. Sternlight is the Michael and Sonja
Saltman Professor of Law and Director of the
Saltman Center for Conflict Resolution at the
University of Nevada, Las Vegas Boyd School
of Law. She can be reached at jean.sternlight
@unlv.edu.
12
SPRING and SUMMER 2008
ful parties to take advantage of weaker counterparts.
Arbitration, similarly, can work quite well when accepted voluntarily but can pose grave risks when imposed by
one disputant on another. When companies are allowed to
design a process of their own choosing and then force others
into that process, we should not be surprised that unfairness
and self-dealing often result. Regulation is not sufficient
because no legislature can ever think creatively or broadly
enough to proscribe every practice that a company might
impose, and litigation challenges are too costly and timeconsuming to offer adequate protection from unfair arbitration provisions.
Further, voluntariness, while key, is also not the guarantor of justice. Apart from the psychological and linguistic games that can be played around the question of when
is a seemingly voluntary process not voluntary, even truly
voluntary mediation and arbitration can be critiqued for
sometimes endangering the welfare of weaker parties or
failing to result in public precedents. More broadly, there
are public interests in justice that are not always protected even by honoring the voluntary requests of disputants.5
So, where are we left in the quest for justice? Does procedure matter? Can we opine that one process or certain
processes are more just than others? To what extent can
we rely on any process to serve the important goal, highly
valued by some, of fundamentally redistributing power
and interests in a given society? Below I offer some observations on these and related questions.
Does Procedure Matter?
I suppose no professor of procedure could ever fail to
say that procedure matters. U.S. Representative John
Dingell’s famous line—“I’ll let you write the substance . . .
and you let me write the procedure, and I’ll screw you
every time”6—certainly carries a lot of weight with me.
Substance without procedure can be useless. The best
laws in the world are meaningless unless they can be
meaningfully enforced. Procedures can be used to give
or deny great advantage.
The Limits of Procedural Reform
Despite the admitted power of procedure, it is also clear
to me that procedure, on its own, has limited capacity to
accomplish significant reform against the interests of the
most powerful members of a society. Although litigation
enthusiasts seem confident in the ability of litigation to
DISPUTE RESOLUTION MAGAZINE
accomplish social reform, history is replete with examples
of how powerful interest groups can limit such reforms.
For example, both substantive and procedural legislation
can be used to counter advances that were made or might
have been made through litigation. In the area of “tort
reform” we have seen companies seek to change the standards for liability, expand defenses, reduce available damages, and limit or eliminate class actions in order to make
tort litigation more difficult for plaintiffs. With sufficient
political clout, potential defendants can immunize themselves from the risks of litigation. Similarly, even without
making such “rule” changes, powerful parties can gain
significant advantages over their litigation opponents by
taking steps including obtaining more and superior attorneys, amassing greater expertise, securing the appointment
of judges likely to favor the position of the powerful, and
convincing courts not to publish harmful precedents.
Nonlitigation procedures are similarly vulnerable to
preexisting power imbalances. Whether one is talking
about consensual or nonconsensual processes, such
approaches do not allow
us to sidestep or avoid
the imbalances created
by the background law,
wealth, or power.
While it is true that
settlements reached in
mediation can (and
often do) reach issues
beyond those that might
have been decided by a
court, at least under a
self-interested theory of
human nature there is no incentive for parties to agree to
things they find undesirable unless there is a risk a court
would find against them on those or other issues, or the
costs of proceeding to court are too high, or other nonlitigation threats make settlement the preferable option. For
example, groups in some other countries have espoused
mediation as an effective means to accomplish human
rights reform7 or to limit domestic violence abusers’ power
over their victims.8 However, it is very hard to see why a
human rights violator or domestic violence abuser would
voluntarily relinquish its power in mediation unless such
powerful figure perceived a significant risk it would in any
event lose a related claim in court or lose its power due to
political agitation. Moreover, it would seem that some of
the same kinds of factors that give powerful parties inherent advantages in litigation would also give them advantages in mediation. Although some might like to believe
that representation by an attorney is not essential in
mediation, it is likely that such representation is very
helpful to most parties. Similarly, those more powerful
parties that can muster significant resources to conduct
research or gather evidence or allies will have an advantage in mediation, just as they do in litigation.
In arbitration as well, the powerful retain significant
advantages. Even when arbitration is entered into consensually, a party whose economic resources are superior
to its opponent can, for example, secure representation
that will help it prevail; conduct more research that will
enable it to select a more favorably disposed arbitrator;
draft an arbitration clause in advance that will provide
advantages with respect to venue or discovery or remedies; impose transaction costs on an opponent that will
lead to concession or victory; or influence neutrals to rule
in its favor for fear of otherwise losing future business. Just
as in litigation, a party whose political resources are superior to its opponent can obtain more favorable underlying
substantive law such that the arbitrator’s rulings are likely
to favor its own position.
When arbitration is imposed predispute by a powerful
party on a less powerful party, these risks, of course, are
heightened substantially. The arbitration clause itself may
grant substantial advantages to the powerful party by
imposing high costs on the opponent, eliminating certain
substantive claims, or limiting remedies or procedures
that might help the less
powerful party. Also,
whereas the critics of
binding arbitration have
typically focused on the
extent to which arbitration impedes “little guys”
from bringing claims
against powerful companies, of late arbitration is
increasingly being used
as a weapon by large
company plaintiffs
against consumer defendants. Such companies have found
that when they seek to bring debt collection suits, for
example, arbitration can allow them to obtain an enforceable judgment more quickly and cheaply than they would
in small claims court. Yet, a number of courts and commentators have taken issue with the extent to which consumers’ rights to notice and a fair hearing are adequately
protected in such arbitrations.9
Are Some Processes More Just than Others?
If the effectiveness of procedures is limited, can we at
least say some procedures are more just than others?
While it is easy for me to identify certain processes as
unjust (e.g., trial by ordeal),10 I have a much harder time
endorsing any standard process over another.
In part, my inability to endorse one form of dispute
resolution as the most just stems from my inability to
come up with a single satisfactory definition of justice. I
seek a procedural mechanism that serves many interests,
and I recognize that at times these interests are in tension
if not conflict with one another. Ideally, dispute resolution would be accessible, fast, and fair, but it would also
protect rights under the law, advance the interests of the
less powerful, and serve such societal interests as rule of
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
13
law, transparency, and advancement of desired substantive
policies. I also believe that promoting harmony, balance,
or reconciliation in a society can be appropriate goals of a
justice system, although others see goals of harmony and
justice as conflicting with one another.11
As I have discussed in detail elsewhere, whereas certain of these interests are served best by formal systems of
justice, others are served best by informal approaches.12
The relative justice advantages of litigation, arbitration,
mediation, and negotiation, for example, depend for me
precisely on how the process is structured and on the nature
of the dispute. As Professor Lela Love has noted, the various
processes potentially offer different kinds of justice.13 Thus,
whereas certain public disputes are more suited to litigation,
in order that they may provide precedent and education to
the society as a whole, other more personal disputes may
best be resolved through negotiation or mediation.
Moreover, the difficulty in defining justice and in making
an appropriate choice between individual and public interests in justice make it particularly impossible to choose one
process over another in all circumstances. Instead, these
various processes must be creatively combined with one
another in order to serve our many and to some degree conflicting interests in justice.
How Can Procedural Reforms Enhance Justice?
I offer three suggestions for how we can try to ensure that
simultaneous use of procedural reforms should enhance
justice. First, we need to recognize that there are multiple
forms of justice that are entitled to our recognition and
support. Justice is not all about “rule of law,” any more
than it is all about conciliation or efficiency or access.14
Second, and relatedly, we should appreciate that
multiple procedural forms can serve justice. It is usually a
mistake to insist that any particular procedural approach
is either desirable or undesirable in all circumstances.
Instead, many approaches have virtues and detriments
depending on the situation, and indeed the value of one
procedure often depends on the extent to which another
procedure may also be available.
Third, although I am to some degree counseling diversity
and tolerance, it is also important to recognize that all procedural forms of dispute resolution are easily corrupted. All procedures can be turned to the advantage of the most powerful
vis-à-vis the least powerful members of society, and we must
be vigilant to try to ensure that this corruption does not
occur. Litigation can be sabotaged by undermining substantive law or eliminating effective access for the less powerful.
Negotiation can be unjust when powerful parties are allowed
to use private deals to hide their misconduct or to deter
future claims. Mediation can allow powerful parties to harm
weaker ones either by coercing settlements, deceiving weaker
parties into waiving their rights, or even offering opportunities for physical harm. Arbitration can allow the powerful to
obtain biased and unfair judgments against the less powerful,
to shield themselves from liability owed under the law, or to
prevent the public from learning of misconduct.
14
SPRING and SUMMER 2008
Yet, while dangers of injustice are rampant, there is
no reason to end on a pessimistic note. If we are prepared
to fight for what is right and just, we can all help ensure
that various forms of procedure are used to help the weak
and to improve our society. As lawyers, neutrals, policymakers, and even academics, we can try to ensure that
underlying substantive laws are just; and that all forms of
dispute resolution are designed to protect the interests
of all members of society as well as the public, rather
than to entrench the interests of the most powerful. As
stated in the book of Deuteronomy, “Justice, Justice Ye
Shall Pursue.”15 ◆
Endnotes
1. See Frank E.A. Sander, Varieties of Dispute Processing, 70 F.R.D. 79,
111 (1976) (keynote address at Pound Conference, introducing concept
of “multidoor courthouse”).
2. See Jean R. Sternlight, Is Alternative Dispute Resolution Consistent
with Rule of Law?: Lessons from Abroad, 56 DE PAUL L. REV. 569 (2007).
3. Interestingly, some of the most enthusiastic litigation advocates are
not practicing attorneys. Those who practice law are often somewhat
more cynical about the prospective benefits of litigation.
4. Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on
the Limits of Legal Change, 9 LAW & SOC. REV. 95 (1974).
5. Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A
Philosophical and Democratic Defense of Settlement (In Some Cases), 83
GEO. L.J. 2663, 2669-70 (1995); Jean R. Sternlight, ADR Is Here:
Preliminary Reflections on Where It Fits in a System of Justice, 3 NEV. L.J.
289, 300–01 (2003).
6. Regulatory Reform Act: Hearing on H.R. 2327 Before the Subcomm.
On Admin. Law and Govnermental Regulations of the House Comm. On the
Judiciary, 98th Cong. 312 (1983) (statement of Rep. John Dingell).
7. See Amy J. Cohen, Debating the Globalization of U.S. Mediation:
Politics, Power, and Practice in Nepal, 11 HARV. NEGOT. L. REV. 295
(2006).
8. See Raquel Aldana & Leticia Saucedo, The Illusion of
Transformative Conflict Resolution: Mediating Domestic Violence in
Nicaragua, forthcoming 55 BUFF. L. REV. (2008).
9. E.g., MBNA America Bank v. Credit, 132 P.3d 898 (Kan. 2006)
(approving trial court’s refusal to enforce arbitrator’s award in collection
case, based on creditor’s failure to prove existence of prior arbitration
agreement or that debtor was properly served with arbitration decision).
10. The question of whether mandatory binding arbitration is unjust is
not quite as obvious to me as is trial by ordeal. I ultimately conclude
that it is neither the mandatory nor the binding nature of arbitration
that renders it unjust, but rather the fact that such arbitration is private
and imposed by a private rather than a public actor. See Jean R.
Sternlight, Creeping Mandatory Arbitration: Is It Just?, 57 STAN. L. REV.
1631, 1670–75 (2005).
11. E.g., Laura Nader, Controlling Processes in the Practice of Law:
Hierarchy and Pacification in the Movement to Re-Form Dispute Ideology, 9
OHIO ST. J. DISP. RES. 1 (1993) (discussing perceived movement to trade
justice for harmony).
12. See Jean R. Sternlight, Is ADR Consistent with Rule of Law?, supra
note 2; Jean R. Sternlight, In Search of the Best Procedure for Enforcing
Employment Discrimination Laws: A Comparative Analysis, 78 TULANE L.
REV. 1401 (2004). See also Jean R. Sternlight, ADR Is Here: Preliminary
Reflections on Where It Fits in a System of Justice, 3 NEV. L.J. 289 (2003).
13. Lela P. Love, Images of Justice, 1 PEPP. L. REV. 29 (2000).
14. See Sternlight, Is ADR Consistent with Rule of Law?, supra note 3 at
590–91 (explaining that “rule of law” is better considered as part of a
larger vision of justice than as an end in itself).
15. Deut. 16:20.
DISPUTE RESOLUTION MAGAZINE
Looking Forward in Mediation
Today’s Successes and Tomorrow’s Challenges
By Linda R. Singer and Michael K. Lewis
What We Have Accomplished?
As two members of the first generation of what now is considered the field of dispute resolution, we cannot help but be impressed by
how mainstream we have become. Within the American Bar Association itself, the
Section of Dispute Resolution currently boasts approximately 17,000 members, including a
large number of nonlawyers. Arguably the most vibrant Section in the ABA, it began in the 1970s as
the “Special Committee on the Resolution of Minor Disputes.” The committee subsequently was renamed the
“Special Committee on Dispute Resolution,” after which it evolved fairly quickly into the Section on Dispute
Resolution in 1993. Beyond the Section, virtually every meeting and continuing legal education effort of many other ABA
sections, including Tort Trial & Insurance Practice, Litigation, Administrative Law, and Labor and Employment, features at
least one session devoted to mediation or arbitration, frequently both.
The changes in the ABA reflect the changes in legal institutions. The embrace of alternative dispute resolution, particularly mediation, by court systems has been nothing short of revolutionary. Hastened by the passage of the Civil Justice
Reform Act of 1996, which required all federal district courts to adopt plans to reduce delay in their civil caseloads, virtually every court has instituted some sort of mediation program. Some states, following the lead of Florida and Texas, have
adopted legislation or court rules mandating mediation in the overwhelming majority of civil and family cases.
A few federal agencies began as early as the 1980s to experiment with the use of mediation to resolve significant
public disputes. Among the leaders was—and remains—the Environmental Protection Agency, which has used mediation extensively to resolve disputes over the remediation of hazardous waste under the statutory scheme that created
the federal Superfund. With the participation of the EPA and the Department of Justice, private mediators have been
instrumental in settling numerous disputes over the allocation of hundreds of millions of dollars in cleanup costs
among hundreds of parties. As another example, the federal Equal Employment Opportunity Commission, having
sponsored a successful pilot program conducted by the
Center for Dispute Settlement in the 1990s, now routinely offers mediation to the majority of people who file
charges of discrimination with the agency.
Several federal agencies also have experimented with
the use of regulatory negotiation. Disparate stakeholders
concerned about the content of a proposed rule or regulation, assisted by a neutral facilitator, have succeeded in
negotiating joint recommendations to administrators on highly
contested and controversial regulations. Although much less numerous than the instances where
specific disputes have been mediated, these experiences offer a
promising model for enabling
broad public participation in the
resolution of contentious public
controversies.
Some state and local agencies
also have been active in applying
what we have learned about
mediation to public disputes.
Notable successes have involved
the siting of locally unwanted
land uses, such as hazardous waste
dumps or even schools or hospitals, in or near residential neighborhoods. The District of
Columbia Office of Planning, for
example, recently sponsored the
mediation of the locally controversial creation of an Alzheimer’s
unit that required zoning
approval. In experiments with less
global disputes, the attorneys general in Massachusetts
and Maryland developed programs to mediate individual
consumer disputes while tracking disputes in order to pursue patterns of unfair practices.
There was an early commitment to use mediation to
resolve community disputes. The result of experiments
supported by the federal government in cities such as
Atlanta, Washington, D.C., Houston, and Honolulu, and
by local groups such as the Community Boards in San
Francisco, have produced a fabric of community mediation centers across the country. Although the funding of
such centers has waxed and waned over the years, with
some not stable enough for anyone to guarantee that they
will survive the next funding cycle, the community mediation center movement has been remarkably resilient.
Now supported by their own association, the National
Association for Community Mediation, the centers continue to rely primarily on enthusiastic volunteers to provide mediation in a variety of neighborhood and minor
criminal disputes.
Starting in the 1980s, some of
the organizations that ran community mediation centers began
experimenting with introducing
mediation into elementary and
secondary schools. From those
seeds, the growth in school-based
peer-mediation programs has been
little short of astronomical. Today,
many of the largest public school
systems in the country have
embraced some sort of mediation
programs, albeit with varying
degrees of training and commitment. The JAMS Foundation
recently announced an initiative
designed to expand these programs by spurring the training of
all public school teachers in conflict resolution skills.
While community and some
court mediation programs grew
primarily by relying on the services of volunteers, the past 25 years
have witnessed the growth of a
vibrant class of professional mediators. Many of these mediators began by providing neutral
services within their existing professional practices as
lawyers, planners, academics, psychologists, or social workers. Some of them since have succeeded in building practices focused entirely on providing mediation or other
neutral services, such as case evaluation.
These neutrals practice in a variety of settings. Some
court systems, notably almost every federal court of appeals,
employ small numbers of mediators to mediate full-time
for the court; some administrative agencies and private
companies, schools, and hospitals employ mediators or
ombudsmen to resolve internal disputes or respond to
complaints from customers, students, or patients. Many
neutrals practice by themselves or in small organizations.
JAMS, the only national for-profit company offering
the services of full-time, professional neutrals, maintains
23 offices across the country, with approximately 200
full-time mediators and arbitrators. It currently generates
The past few years
have provided
disheartening examples
of destructive ways in
which governments
approach conflict and
only rare examples of
constructive, mediative
approaches.
Linda R. Singer and Michael K. Lewis are mediators and arbitrators with JAMS, headquartered in Washington, D.C. They can
be reached at [email protected] or [email protected].
16
SPRING and SUMMER 2008
DISPUTE RESOLUTION MAGAZINE
approximately $100 million in annual revenue. The
oldest of the large provider organizations, the American
Arbitration Association, continues to maintain a nationwide roster of neutrals. In some cities local companies
offer mediation and arbitration. In a related illustration
of the maturing of the field, JAMS has created the JAMS
Foundation, supported wholly by contributions from its
neutrals and employees, that funds innovative work in
the dispute resolution field performed by governmental
entities and nonprofit organizations.
Our own careers have followed a pattern similar to
that of the field as a whole. We have been active for 35
years in promoting the field and in starting dispute resolution organizations in community and public settings, as well as
in teaching and evaluating various methods of dispute resolution. We now spend most of our
time as full-time professional
mediators and arbitrators.
Along with our colleagues who
have been heavily invested in the
growth of the field, we believe
that we all can claim significant
victories. There is little question
that the growth of mediation has
drastically increased parties’ access
to processes that permit direct
participation in the resolution of
their own disputes. Extensive literature suggests that such participation significantly increases the
level of satisfaction with the
resulting resolutions—win or lose.
Although much remains to be
learned, there is evidence that
the use of mediation has led to
high rates of resolution and to
satisfaction with the results.
Another significant development is that mediation is
being used to resolve increasingly high-stakes disputes,
including significant class actions and mass torts. As one
example, mediation produced a resolution of the nationwide class action brought in 1997 on behalf of AfricanAmerican farmers against the U.S. Department of
Agriculture for racial discrimination in the administration of USDA’s farm credit programs. The settlement has
resulted in almost a billion dollars of benefits going to a
class of approximately 22,000 farmers.
Mediation also has resolved major employment discrimination class actions against significant firms in the
financial services, automobile, and retail industries. Some
of the class actions have spawned programs that offer or
require mediation, and perhaps arbitration, of all disputes
between the companies involved and their employees.
The benefits of the process have become obvious
regardless of the size of the dispute. Mediators have been
involved in settling both the individual and classwide
disputes arising out of the massive destruction caused
by hurricanes in Florida, Louisiana, Alabama, and
Mississippi. Additionally, given the track record of mediation in producing settlements of some of the huge class
actions surrounding the collapse of Enron, we can anticipate that the process will be used as well to resolve the
many disputes surrounding the subprime loan debacle.
The Challenges Ahead
The impressive accomplishments of the recent past
should not hinder us from trying to understand and tackle
some perplexing anomalies. At the same time that there
are pockets of heavy mediation
use, the geographic spread of the
process is uneven. Law firms that
represent clients in mediations
daily in California may rarely, if
ever, mediate disputes arising in
other parts of the country. In
some states, virtually any civil
case can be referred to mediation
for an attempt at resolution before
trial; in others, courts’ use of mediation is virtually nonexistent.
Another perplexing problem is
that demonstrated success has
not necessarily resulted in continued stable funding. Because of
their lack of resources, many
court programs continue to rely
on inadequately trained or supervised volunteer mediators. Others
require the parties to pay for private mediators, although the public court systems provide access
to judges at little or no charge.
Another example of the
unreliability of public funds is
provided by the state offices of mediation. Begun as pilot
projects in a number of states in the mid-1980s, state
offices of mediation attempted to provide a platform for
the provision of mediation in public disputes. By all
accounts, the state offices were successful, offering mediation services to disputes that had proven intractable to
resolution through existing processes. However, when
state budgets became tight a few years later, many state
offices failed to survive or survived with severe reductions
in their ability to deliver services.
Despite the growth in a cadre of professional mediators, there is no predictable career path through which
professional dispute resolvers can be developed. To the
young graduate of a law or other professional school, it
seems unsatisfactory to respond to the question of how
one might become a mediator that the best—perhaps the
only—way to develop a practice as a mediator is first to
work as a litigator until one ages sufficiently. Although
The impressive
accomplishments of
the recent past should
not hinder us from
trying to understand
and tackle some
perplexing anomalies.
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
17
some academic programs have evolved—for example, the
George Mason University program offers both master’s
and doctorate degrees in dispute resolution—it is not
apparent that the resulting degrees provide stepping
stones to a professional practice.
Ironically, one of the biggest enemies of successful mediation may be the institutionalization that we all applaud as
a milestone in the development of the field. Among the
dangers of adoption of mediation by courts and administrative agencies is the tendency of those institutions to envelop their mediation schemes with multiple rules. To the
agency or court, the rules are necessary to ensure that any court- or
agency-sponsored program is
accountable to the bureaucratic
needs of the institution. For the
mediator, those same rules may be
viewed as an obstruction to creating a mediation process that
responds to the needs of the parties. Another problem with institutionalization is the routinization
that may cause a new process to
become simply another hurdle to
getting a civil trial or obtaining a
hearing before an administrative
law judge.
In addition to these concerns,
there is the issue of diversity.
There is little question that the
current pool of professional
mediators is made up largely of
white males. This demographic
seems to have held steady despite the diversity of many
pools of volunteer mediators. Although there are some
notable exceptions, the universe of professional mediators
does not reflect the demographics of the larger society, or
even of the lawyers who tend to be pivotal in the choice
of mediator for a given case.
Given the substantial increase in the use of mediation
in the past 25 years, it seems fair to opine that use will
continue to increase over the next 25 years. The challenge of the field will be to solve two essential problems:
maintaining vibrant, flexible processes in the face of
increased imbedding of mediation into standard court and
agency processes, and demonstrating the value of mediation so that the next budget crisis does not result in a loss
of mediation opportunities.
It also will be important to focus on the elements that
might define a career path for would-be professional mediators. At the same time, we should take pains to preserve
the ability of nonprofessional mediators to continue their
enormous contributions to community mediation efforts
with the appropriate training and support. This will not be
an easy task. The history of many professions is that the
members of a new profession have a tendency to attempt
to raise the drawbridge, forbidding anyone else to practice
in their professional domain without undergoing the same
training or mentoring requirements they endured. Much of
the vitality and growth of the mediation field has come
through the innovative and dedicated work of volunteers.
The field should continue to support their efforts.
Beyond the needs of the “field” as we have conceived
it is the reality that mediation has barely penetrated the
consciousness of the politicians
and diplomats who govern our
country and other world powers.
The past few years have provided
disheartening examples of destructive ways in which governments
approach conflict and only rare
examples of constructive, mediative approaches. In order to realize
the full potential of the processes
we espouse, we may have to
expand our horizons beyond the
interpersonal or even the substantial legal disputes that define most
of our practices to the ways in
which politicians deal with one
another and governments deal
with their own citizens and with
the rest of the world. There are a
few promising indications in this
regard. An ad hoc group of those
practicing in the public sphere
primarily in this country has banded together to explore
ways in which we might convey more powerfully the ability of collaborative techniques to enable progress on the
most contentious public issues.
Although a few private, nonprofit organizations,
including the Consensus Building Institute and Search for
Common Ground, have begun to venture into developing
processes to address disputes in other countries and internationally, it is obvious from a cursory glance at any daily
newspaper how much more should and could be done.
We recently witnessed the difficulty of changing the normal discourse. During the campaign for the Democratic
nomination for president, Senator Barak Obama indicated
that he would be willing to meet with leaders of countries
with which the United States currently is at odds without
precondition. Although he was criticized for that stance by
both conservatives and liberals, one can only hope that
Obama’s appeal to young people signals, in part, a desire for
more inclusive, participatory decision making and the
responsibility of public leaders for resolving disputes. ◆
There is little question
that the current pool of
professional mediators
is made up largely of
white males.
18
SPRING and SUMMER 2008
DISPUTE RESOLUTION MAGAZINE
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FACULTY
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The Center for the Study of Dispute Resolution
School of Law • University of Missouri-Columbia
law.missouri.edu/llm • [email protected] • 573-882-2020
Business Arbitration Can
and Should Be Improved
in the United States
By Kathy A. Bryan and Helena Tavares Erickson
t the CPR Institute Annual Meeting in New York in
January, a lively debate ensued about whether arbitration is “broken” in the United States. A number of
prominent corporate general counsel expressed their views
that arbitration no longer offers sufficient benefits over litigation. They primarily cited the failure of arbitrators to
control the process so that lengthy hearings, discovery, and
a long time to decision created a process that had all the
flaws and none of the benefits of litigation.
In response, a number of the arbitrators took issue with
that premise, stating that the real reason that matters
tend to drag isn’t the arbitrators’ case control skills, but
clients’ failure to rein in their outside counsel, as well as
the obfuscation and delay tactics of outside lawyers.
Law firm attorneys blamed not only their clients, for
wanting them to prolong the process and arm twist the
opponent, but also the arbitrators, for failing to make the
tough decisions that presumably would control the other side.
Who is right? And is there something wrong with arbitration in the United States today? Observing this debate,
we were struck by the finger-pointing—and the fact that
all three sides were right.
The strength of any process is undermined by failure
at any point in the chain. In other words, arbitration is
only as effective as its weakest link. It would be a pity if
such an important and flexible private dispute resolution
mechanism fell into disuse primarily because of bad habits
and an unwillingness to modify and adapt the process to
the situation and to modern needs.
We propose a few ideas intended to get U.S. arbitration back on track and return it to its roots: providing a
fast, efficient, and cost-effective way to resolve disputes.
A
Is Arbitration Really Broken?
Answer: Yes. But it can be fixed.
First, arbitration issues will not be adequately addressed
unless and until the arbitration community recognizes the
depth of dissatisfaction expressed by the user community.
Notwithstanding professional arbitrators’ views, the fact
remains that many corporate counsel are dissatisfied and
refuse to write arbitration clauses into their contracts.
Studies show consistently that the total cost and length of
time to decision in arbitration comes close to litigation.1
Aside from the repetitive cases like insurance, consumer
or product liability, or industrywide approaches like those
adopted by the securities industry,2 arbitration of complex
matters currently demonstrates no significant cost savings
over court processes.
Second, corporate users often say they feel that the arbitrators are deliberately drawing out the process in order to
increase their fees. The issue of the decision maker’s financial motivation is, of course, nonexistent in litigation; here,
it indicates a fundamental lack of trust that should be
directly and publically addressed. We need to honestly find
out how those perceptions are created and explore methods
of reducing or eliminating the problems.
Third, the lack of appeal rights is both a blessing and a
curse. Clearly, the finality of the arbitrators’ decision is
the hallmark benefit of a speedy, private process. Absent
confidence in the arbitrator, however, the lack of appeal
rights is a weakness that cannot be overcome by case
management or better lawyering during the process. The
key lies in ensuring arbitrator quality and process fairness.
Finally, comprehensive information concerning the quality of the arbitrators’ case management and decision-making
skills, for the most part, is not readily accessible in a systematic and fair way to those seeking to hire them. It is
easier to make an informed decision based on cumulative
and qualitative data about a restaurant than an arbitrator!
Considering the dollars spent and the importance of the
matters, it is essential to remedy this problem.
Although confidentiality has been viewed as a fundamental arbitration benefit, a number of corporate counsel
have recently challenged this assumption, and called for
more process transparency, characterized by more robust
information about arbitrators. When faced with the competing notions of confidentiality versus the ability to
select arbitrators based on solid information, these clients
placed more importance on the selection process.
Don’t Automatically Use Boiler
Plate Arbitration Clauses
It’s a dull topic, but the real truth is that a huge percentage
of the problems associated with arbitration are caused by
poor clause drafting and failing to customize the procedure
to actual business needs. Too often, the drafting is done at
the last minute, by nonlitigation-savvy counsel or clients,
and an off-the-shelf clause is plugged in without thought or
analysis. This is a recipe for disaster. This is not a process or
tribunal problem. It reflects a failure of the lawyers, both
inside and outside counsel, to sufficiently analyze the issues
at the outset of the relationship. There are more arbitration
horror stories resulting from poor drafting than from any
other single aspect of the process.
Typically, parties insert a clause calling for arbitration
before the American Arbitration Association without any
further consideration—often not even using the AAA’s
suggested clause. Parties may not have read the applicable
rules, and they don’t understand the implications. For
example, in many standard clauses, a sole arbitrator may
be selected who will decide arbitrability without rendering a reasoned award. Parties may be further shocked to
learn that the filing fee can be a percentage of the claim,
Kathy A. Bryan is the president and CEO and Helena Tavares
Erickson is the senior vice president of the International
Institute for Conflict Prevention and Resolution (CPR Institute)
in New York. They can be reached at [email protected] and
[email protected], respectively.
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
21
which could be significant in high-dollar cases. Often, the
transaction’s clause drafter has never arbitrated or litigated and doesn’t appreciate the procedural or substantive
issues raised by clause language choices. Surprisingly, even
today, the clause often isn’t
“drafted” at all, but rather is
inserted from the previous deal.
In international transactions,
parties tend to instinctively
insert a clause calling for
International Chamber of
Commerce arbitration, completely oblivious to the fact that
the first step in an ICC arbitration, after the lengthy arbitrator
selection process, is setting out
the “Terms of Reference,” which
could easily take three months.
While the ICC’s prestige and
recognition remain alluring, parties for whom time is an issue
need to consider whether a
different process better suits
their needs.
Even when parties draft customized clauses, there are traps
for the unwary. A frequent issue arises when the clause
provides for a “stepped process” that requires negotiation
and mediation before arbitration but fails to add time triggers. Months can be spent wrangling over whether the
conditions precedent are satisfied.
One way to ensure a speedier process is to craft reasonable but tight time limits at each stage. Some companies
have adopted shortened time periods for whole classes or
types of cases. In short, the surefire method for shortening
the arbitral process is to spend more time during the deal
by drafting the arbitration clause carefully, consistent
with modern practice. For example, one drug manufacturer drafts with precision to maximize arbitration speed.
Abbott Laboratories presses for a
streamlined process by seeking
tight time limits, requiring solo
tribunals, and completely eliminating discovery—no depositions,
document requests, or exchanges.3
A huge percentage of
the problems associated
with arbitration are
caused by poor clause
drafting and failing to
customize the procedure
to actual business needs.
Arbitration Can Reduce or
Eliminate Discovery Wars
Litigation discovery is usually an
extremely negative experience,
especially with the advent of electronic discovery. We spend huge
amounts of money and end up
using the same small set of documents and testimony that was
evident in the first 30 days of
internal investigation.
Arbitration offers an alternative, but only if clients take the lead.
Counsel can regain control over
the discovery process in arbitration either by using specific language in the arbitration
clause that clearly defines discovery—including electronic
discovery—or by adopting a set of arbitration rules that
strictly limit discovery.
Many rules empower arbitrators to make decisions about
discovery.4 Arbitrators are naturally loath to limit the parties if they have agreed to substantial discovery. Recently,
working groups of the CPR Institute’s International
Committee on Arbitration developed draft protocols pro-
Additional Tips on How to Streamline the Arbitration Process
Consider Appointing a Single Arbitrator
Single arbitrators are more efficient than a three-person tribunal. One well-qualified arbitrator may be appropriate and
contribute to a less costly and more efficient procedure. For
example, a single arbitrator need not consult with his colleagues as to whether a party can submit a brief a day late or
whether a hearing can be moved an hour and can rule on
discovery disputes on the spot. Alternatively, the parties
may accomplish the same end by agreeing in advance to
any or all of these issues, or by agreeing that a chair will
make the decisions on his or her own.
sides consider him or her a safe choice.9 Now you are faced
with coordinating the schedules of at least two clients, two
sets of outside attorneys, and three arbitrators, any one of
whom may be booked for months.
Partisan commercial arbitrations are less common today,
but as recently as five years ago, arbitration hearings frequently featured wasted hours of partisan arbitrators asking
questions, or making points intended as a show for the party
that made the appointment. The interests of the process
were not served by such grandstanding. Three neutral arbitrators are much less likely to waste time in this manner.
Don’t Use Party Arbitrators
Parties often instinctively opt for a three-arbitrator panel,
with two party-appointed arbitrators, because they feel most
comfortable with choosing at least one of the decision
makers. Parties then agree to a big-name chair because both
Submit Written Rather than Oral Testimony
Consideration should be given to submitting direct testimony in written form. U.S. lawyers often balk at procedures
that do not allow them to present their witnesses first in a
“friendly” posture. But the rote recital of facts that have
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DISPUTE RESOLUTION MAGAZINE
viding best practices for arbitrators in directing witness
testimony and discovery. For document discovery, the
protocol provides several different models that can be
selected by the parties as early as the drafting stage, starting with no discovery, to “discovery light” (preferred), to
full-blown discovery (discouraged). Specific guidance is
provided for electronic data. It is hoped that arbitrator
reluctance to limit discovery can be overcome by such
best practice standards.5
In international arbitration, parties and/or tribunals
often adopt the International Bar
Association Rules of Evidence,
which provide for limited document requests in keeping with the
expectation that there should be
no “American-style” discovery.
The IBA Rules have the added
advantage of widespread international acceptance.
Ultimately, parties should
appreciate that severely limiting
discovery does not provide the
same level of certainty of a “leaving no stone unturned” litigation
approach. In-house counsel and,
more important, their business
clients need to appreciate that
they must partner with their outside counsel in choosing what not
to do. Plaintiffs’ lawyers are masters at finding out what is essential to the case early on and simply not doing the rest.
Defense counsel, who are understandably conditioned
by their client experiences and their role as “zealous
advocates,” are naturally conservative and can recom-
mend more than absolutely necessary to win the case. It
is incumbent on the business lawyer to pare the discovery
back to the minimum. This exchange and partnering is
perhaps the biggest key to keeping the cost and time of
the arbitrated matter under control.
Stronger Case Management Is Essential
Arbitrators must play a major role in making the arbitral
process more efficient. Corporate counsel increasingly complain that arbitrators fail to assert their authority and don’t
limit or control the parties’
lawyers’ litigious instincts.
We highlight just a few examples of ways arbitrators can assert
their control over the process to
make it more efficient: bifurcate
issues that determine the course
of the full proceedings; eliminate
discovery on the merits if the
threshold issue is arbitrability or
scope; and eliminate procedural
motion practice entirely.
Most corporate counsel would
like arbitrators to rule on dispositive motions especially when doing
so would resolve the matter early
in the process. There is a perception in the arbitration community
that if the arbitrator grants a dispositive motion, instead of allowing the case to go to a full hearing,
the award will be overturned in court. As long as granting a
dispositive motion is an appropriate remedy in the context
of the arbitration, however, the case law demonstrates that it
will be upheld.6
Arbitration should
remain an important
alternative to litigation
in the United States.
been stated in claims and restated in prehearing submissions
eats up more time and money than is warranted. This is
especially true of background information. As an example, a
simple resume can streamline significant billable time.
Consider an Ad Hoc Procedure
Rather than automatically using administrative bodies
to oversee the arbitration process, parties should evaluate
whether an ad hoc procedure can meet their needs. An
ADR-savvy corporate litigation counsel recently explained
that his company routinely uses nonadministered procedures for all complex business disputes. He found the
same quality level in the process and result, but at lower
cost. Most important, the time to decision was much shorter. His experience was that the arbitrator was capable of
performing most of the functions generally performed by
the administering organizations.10
Eliminate a Reasoned Award
Parties generally demand reasoned decisions from their
arbitrators. But writing, revising, and editing a decision
may take weeks—or even months—when three neutrals
must review the decision. Parties must weigh the benefits
of a reasoned decision—for example, providing understanding and potential grounds for appeal—against the
time and cost savings of a bare award, which in theory
could be rendered the day the hearings are closed.
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
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Perhaps most significantly, at the outset, parties and
the arbitrator should agree on streamlined procedures.
Arbitration providers and rules generally allow agreement
on shortening time limits. For example, JAMS and the
ICC both provide for streamlined procedures in smaller
cases or by party agreement.7
Finally, arbitrators should also support, and even
encourage, mediation if it appears that another neutral
third-party facilitator could help resolve the matter.
Mediation and arbitration should not be viewed as competing processes, but as complementary ones. Converting
arbitration to a mediation process raises caution flags for
many, particularly if the arbitrator plans to shift to or
from a mediator role. Nevertheless, for those neutrals and
parties with the ability and experience to use it, “medarb” and other hybrid processes may be appropriate—
even where the same neutral wears both hats.8
It is imperative that arbitrators aggressively do their part
to ensure that arbitrations are quick and cost-efficient.
Addressing the Challenges
At the CPR Annual Meeting discussed at the outset of
this article, the arbitration complaints sailed through
keynote addresses, CLE seminars, coffee breaks, and cocktail hours. But before the meeting ended, there was an
important acknowledgment in a concluding panel discussing class action arbitrations: “These processes aren’t
going away, and they remain the most frequently used
option for nonlitigation, formalized dispute resolution.”
The growing business dissatisfaction with arbitration is
a reality. Corporate department threats issued at the CPR
meeting to reduce or eliminate arbitration may increase
litigation, at least in the short term. But the tools and
changes in processes are available to each of the parties,
counsel, tribunals, and administrative authorities to make
arbitration work. Each party must understand his or her
own responsibility to improve the process and to have the
will to change and adapt it.
The CPR Institute supports reform through a broad
deployment of ADR processes to improve results and reduce
litigation costs. Arbitration should remain an important
alternative to litigation in the United States. CPR’s
International Committee on Arbitration rules’ revision
last year, including the deployment of a new interim relief
process, as well as the draft protocols mentioned above, are
recent moves to encourage best arbitration practices.
We believe the process can be effective. At the CPR
meeting, attendees advanced the methods above to take
back control of the processes in a way that will suit
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SPRING and SUMMER 2008
them—that is, their business, their clients, or the parties
before them. Addressing the challenges of corporate drafting skills, discovery excesses, and the tribunal size and
management style aren’t beyond the reach of practitioners. Nor should anyone feel that arbitration best practices
have slipped away permanently. ◆
Endnotes
1. FULBRIGHT & JAWORSKI, THIRD ANNUAL LITIGATION TRENDS
SURVEY FINDINGS (2006) at 24–25; PROSKAUER ROSE, 2008 TRENDS AND
DEVELOPMENTS IN INTERNATIONAL LEGAL PRACTICE at 6.
2. SIMFA, White Paper on Arbitration in the Securities Industry
(Oct. 2007).
3. For more on Abbott’s strategy, see High-Quality Results, HighQuality Processes: Top In-House Counsel Discuss the Continuing Challenges
in Commercial Arbitration, 24 ALTERNATIVES 182 (Dec. 2006).
4. See, e.g., CPR’s Arbitration Rules Rule 11 (2007 version); the
AAA Commercial Rule 21 (Sept. 1, 2007, version).
5. Industry-specific rules may contain further limits on discovery. See,
e.g., CPR Rules for Non-Administered Arbitration of Patent & Trade
Secret Disputes (2005), Rule 11 (numerical and time limits); CPR Rules
for Expedited Arbitration of Construction Disputes (2006), Rule 11
(numerical and time limits, and only exceptional e-discovery); AAA
Construction Rules (2007) Rule 22 (limiting discovery).
6. For example, in Sherrock Brothers, Inc. v. DaimlerChrysler Motors
Co., the Third U.S. Circuit Court of Appeals upheld a lower court’s
decision that arbitrators are empowered to grant any relief reasonably
fitting the matter submitted, including summary judgment. In this case,
the doctrines of res judicata, collateral estoppel, and waiver precluded
Sherrock Brothers’ claims; therefore, an evidentiary hearing would be
meaningless. (465 F. Supp. 2d 384 (2006).) On the other hand, in
Prudential Securities, Inc. v. Dalton, 929 F. Supp. 1411, 1417 (1996), the
U.S. District Court for the Northern District of Oklahoma found that
the panel had “refus[ed] to hear evidence pertinent and material to the
controversy and exceeded their powers in granting the motion to dismiss
without hearing such evidence; Prudential was thereby denied fundamental fairness.” The court vacated an arbitration award and remanded
the case to the arbitration panel.
7. See, JAMS’s Streamlined Arbitration Rules & Procedures (2007)
and ICC’s Article 32(1), which “enables the parties to shorten time limits” provided in the ICC rules, and Article 32(2), which allows the
ICC’s International Court of Arbitration to extend the shortened periods. See also TECHNIQUES FOR CONTROLLING TIME AND COSTS IN
ARBITRATION: REPORT FROM THE ICC COMMISSION ON ARBITRATION,
ICC Publication No. 843 (2007).
8. Note that CPR’s Arbitration Rule 19.2 prohibits a neutral’s conversion. See, e.g., Gerald F. Phillips, Back to Med-Arb: Survey Indicates
Process Concerns Are Decreasing, 26 ALTERNATIVES 73 (April 2008).
9. CPR’s National Task Force for Diversity in ADR has acknowledged
that most of the prominent arbitrators are white males and has called for
more diversity in the selection process. See Diversity in ADR and at the AAA,
DISP. RES. J. (American Arbitration Association, Feb.–Apr. 2008).
10. The assistance of a neutral third party may be needed to select the
tribunal or decide a conflict of interest challenge to an arbitrator. With
the two primary nonadministered procedures, the CPR Arbitration
Rules and the UNCITRAL Rules, the appointing authority performs
both these functions.
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A Brief Summary of the Section’s Diversity
and Diversity Committee Efforts
By Marvin E. Johnson
ince the ABA House of Delegates approved the resolution to create the Section of Dispute Resolution
in February 1993, diversity has been one of the
Section’s core considerations. The fifteenth anniversary
of the Section provides an opportunity to review, reflect,
and, in many ways, appreciate the actions taken by a
number of undaunted leaders attempting to fulfill the
Section’s commitment to diversity.
The approved Section bylaws contained three “diversity
clauses” that formed the foundation for the Section’s diversity philosophy. One requires that the Section’s Nominating
Committee “include at least one member from each gender
and at least one member of a minority group.” Another provides that “if after election of the Council, there [are] not at
least two members from a minority group and two members
from each sex, the Council shall be increased to include
such additional member or members, to be appointed by
the Chair.” The third states that the “Section Advisory
Committee is encouraged to consider diversity in terms of a
member from each sex and minority groups in electing their
members to the Section Council.”
These “diversity clauses” helped to ensure the involvement of women and minorities in the leadership of the
Section. The first six Section officers included one Hispanic
and one African American, and three of the officers were
S
Marvin E. Johnson is a nationally recognized
mediator, arbitrator, and trainer with more than
30 years of dispute resolution experience. He
is the founder and executive director of the
Center for Alternative Dispute Resolution and
serves on the JAMS panel of resolution experts.
Mr. Johnson’s primary area of practice includes
employment, labor management, consumer,
business, and community disputes. He can be
reached at [email protected].
26
SPRING and SUMMER 2008
women. Notably, an African-American woman was the
Section’s first delegate to the ABA House of Delegates,
and about 35 percent of the committee chair and vice chair
appointments were women and minorities. In addition, the
Women and Minorities Committee, which was to focus on
monitoring the involvement, contributions, and achievements of women and minorities in the Section and in the
dispute resolution field, was one of the first 16 committees created by the Section.
In the spring of 1994, the Women and Minorities
Committee created a women and minorities dispute resolution talent bank as its initial activity and immediately
solicited the Section membership for names of women
and minorities with dispute resolution expertise. The talent bank was an early effort to continue to encourage
leaders to fully integrate women and minorities into all
ABA and Section activities, including committee
appointments and CLE faculty selection.
The Section of Dispute Resolution sponsored its first educational programs at the 1994 ABA Annual Meeting in New
Orleans. Women and minorities were represented as faculty
for the workshops sponsored by the Section. Chief Justice
Robert Yazzie of the Navajo Nation was selected to provide
the Frank E. Sander Dispute Resolution Lecture. In February
1995, the Section endorsed the ABA Racial Reconciliation
Subcommittee Project, and the Women and Minorities
Committee began collaboration with the Racial
Reconciliation Subcommittee on the “Police-Urban Youth
National Initiative.” Later that year, Judge Resa Harris
became the first female chair of the Section. Three women
have since served as Section chair: Kimberly Kovach
(1997–98), Pamela Enslen (1998–99) and Robyn Mitchell
(2005–06). In light of the successful inclusion of women and
minorities in its activities and leadership, in 1995 the Section
received an honorable mention award for its diversity efforts
DISPUTE RESOLUTION MAGAZINE
from the ABA Commission on Women and Minorities.
During his 2004–05 term as Section chair, David
Jose Feliciano ascended to the Section chair in 1996,
Hoffman made diversity one of his goals for the year. He
becoming the first Hispanic to hold the position. At the
authored an article in the Section’s magazine entitled,
1996 ABA Annual Meeting in Orlando, the Women and “Why Do We Care About Diversity?” and planned a
Minorities Committee sponsored a Women and Minorities
facilitated diversity retreat for the council.
Panel, which addressed demographic studies concerning
In 2005, Robin Mitchell became the first Africanthe participation of women and minorities in the ADR
American chair of the Section, and former Section Chair
field. At the council meeting, held during the Annual
Jose Feliciano received the Spirit of Excellence Award from
Meeting, the name of the Women and Minorities
the ABA Commission on Racial and Ethnic Diversity in the
Committee was changed to the Diversity Committee.
Profession. That same year, Johnson and La Rue received
Thereafter, as the Section expanded its program offerings recognition awards from the Section chair for their commitand later held its first annual conference in the spring of
ment to the Section’s diversity efforts. In addition, the
1999, the lack of representation of women and minorities as Diversity Committee was made a standing committee of the
participants and faculty raised concerns. For the first time, a Section, and the council held its first diversity retreat.
diversity statement requiring the identification of the diverNotwithstanding the awards, the recognition, and the
sity of the workshop content and the workshop presenters
diversity progress, the Section must continue to be vigilant
was incorporated into the call for proposals for the 2001
and proactive, not only to maintain its past diversity
Section conference. In
achievements, but also to
2002, Section council
enhance and spread them
members Marvin Johnson
throughout the Section. In
Prior Diversity Committee Chairs
and Homer La Rue and
this regard, recent feedback
Elizabeth Head & Marvin E. Johnson 1993–95
then-Section Director
from forum attendees and
Marvin E. Johnson & John S. Yun 1995–96
Jack Hanna planned and
some Section members
organized the “Forum on
reveals there is still much
Marvin E. Johnson 1996–97
Expanding Opportunities
work
to be done in the
Marvin E. Johnson & Nancy Palmer 1997–98
for Women and
Section
committees and in
Steven Gonzales 1998–2000
Minorities in Dispute
the
Section
publications.
Doris Clanton 2000–01
Resolution,” a preconferToward
that
end, the
Marvin E. Johnson 2001–03
ence program that was to
Diversity Committee has
Danielle Hargrove 2003–05
precede the Section’s
been focusing on increasElizabeth Moreno & Angelia Tolbert 2005–06
annual conference. Its
ing diversity within the
Angelia Tolbert & Gene Johnson 2006–08
purpose was to increase
Section’s general memberthe participation of
women and minorities in
the Section’s educational programs and to increase the
diversity of the pool of ADR service providers utilized by
ADR users. The inaugural forum took place at the Section’s
2003 Annual Meeting in San Antonio, Texas. ABA
President-Elect Robert J. Grey Jr. was the forum’s featured
speaker. Subsequent forum featured speakers included
Juanita Bing Newton, statewide deputy chief administrative
judge for justice initiatives in New York; Kathleen Bryan,
president and CEO of the International Institute for
Conflict Prevention and Resolution; and Eli Nash, chief
administrative law judge for the Federal Labor Relations
Authority. The success of the forum in increasing the participation of women and minorities in the Section’s workshops as attendees and faculty led to it becoming a regular
part of the preconference activities at the Section’s Annual
Meeting. In addition, ACCESS ADR, a Section-supported
initiative created by Johnson and La Rue to promote greater
diversity in the ADR field, was an outgrowth of the forum
dialogue between ADR service-users and minority and
women ADR service-providers. These activities were
among the reasons the ABA Commission on Racial and
Ethnic Diversity awarded the Section an honorable mention award in 2004 for its diversity commitment.
ship and its committees
and on the transformation
of the forum. It has contacted Section chairs, encouraging
networking and collaboration for the purpose of increasing
membership and program diversity and enhancing diversity
awareness and cultural competency. In addition, the
Diversity Committee has urged individuals involved in
diversity efforts to raise diversity awareness in their own
jurisdictions by writing articles and giving CLE diversity
classes. As with other Section preconference activities,
beginning in 2008, the forum has been integrated into the
Section conference as a diversity track rather than a preconference event. Hopefully, the consolidation will further
increase the diversity of the conference as well as help to
foster diversity in other Section activities.
It was only in 1943 that the ABA opened its doors for
the first time to people of color, and not until 1986 that a
substantial effort was made to increase the membership of
non-white members. Still much remains to be done. First,
while the Section leadership, at the level of the Section
Council, has been highly diverse, the leadership of the
Section’s committees has been less so. And while the
Section does not maintain statistics showing the demographics of its membership, it is readily apparent at the
(continued on page 60)
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
27
Reflections on
Institutionalizing
Mediation
By Geetha Ravindra
[Courts] should provide mechanisms that can produce an
acceptable result in the shortest possible time, with the
least possible expense and with a minimum of stress on
the participants. That is what justice is all about.
Chief Justice Warren Burger
n 1906, Dean Roscoe Pound delivered a powerful indictment of the American legal system, noting that the contentious nature of the adversarial process has turned
litigation into a game. Seventy years later, the National
Conference on the Causes of Popular Dissatisfaction with
the Administration of Justice, more commonly known as
the Pound Conference, was held to consider the concerns
first expressed by Pound. The judges, government officials,
practicing attorneys, and legal scholars present discussed
two primary issues: nonjudicial dispute resolution and faster,
less expensive procedures for judicial administration.
The energy and ideas that were sparked at this historic
event have informed and empowered the dispute resolution field to blaze a trail of legal reform over the past
30 years that have revolutionized the ways conflicts are
handled.1 Mediation has emerged as the primary dispute
I
Geetha Ravindra is a certified mediator, trainer,
and consultant in Richmond, Virginia. She is an
adjunct professor at the University of Richmond
School of Law. She is a member of the ABA
Section of Dispute Resolution Council and
cochair of its Mediator Ethical Guidance
Committee. She served as director of the
Department of Dispute Resolution Services at the
Supreme Court of Virginia from 1996–2007. She
can be reached at [email protected].
28
SPRING and SUMMER 2008
resolution option of choice in most court-connected programs. As federal and state agencies, courts, and the legal
profession seek to embrace mediation, mediation continues to evolve and present challenges regarding institutionalization and ethics that the field must address if it
is to continue to thrive. The following is an overview of
Virginia’s experience in grappling with the institutionalization of mediation, and how the challenges seen in
Virginia and other states have helped to guide development of new resources to assist in addressing the ethical
dilemmas the mediation community currently faces.
The Virginia Experience
When mediation began in the Commonwealth of Virginia,
it grew as part of the grassroots efforts of community mediation centers. The notion of embracing alternatives to the
traditional adversarial model of problem solving was foreign
to most attorneys and judges. Over the past 15 years,
through education of the bench, bar, and public as well as
legislative and funding initiatives, the dispute resolution
field has truly revolutionized the way conflicts are handled
in the public and private sector.
Virginia has sought to promote widespread growth and
acceptance of dispute resolution through the implementation of state programs such as the State Bar AttorneyClient Fee Dispute Resolution Program; the Virginia
Administrative Dispute Resolution Act, which authorizes
state agencies to utilize mediation;2 the Employment
Dispute Resolution Agency, which offers mediation in
state workplace issues; the Office of Consumer Affairs,
which offers mediation in business-consumer disputes;
and the Department of Education, which offers mediation
DISPUTE RESOLUTION MAGAZINE
to schools and parents in special education matters.
Simultaneously, community and private initiatives have
been nourished through public-private partnerships to
ensure access to mediation services by all citizens, regardless of income. A system of state oversight through standards of ethics, grievance procedures, and guidelines for
mediator certification, without excessive state domination, is the model used to support high quality of mediation services in Virginia. In this way, the Commonwealth
has been able to promote best practices and peer consultation among dispute resolution professionals, while providing judges, attorneys, and users of the ADR services a
level of consistency and accountability.
Unlike many states, court referral of matters to mediation is discretionary, and participation in mediation by
parties is voluntary in Virginia.3 Parties may only be
ordered to attend a free dispute resolution orientation session that describes the mediation process and screens for
issues such as domestic violence and imbalance of
power. Parties may even opt
out of this informational session, much to the chagrin of
mediators.4 However, the use
of mediation in complex
cases by sophisticated clients
in court-referred and private
matters is steadily
increasing.5 This is in part
due to the Virginia Rules of
Professional Conduct for
attorneys, which require that
counsel advise a client about
the appropriateness and
availability of ADR in every
case.6 Further, it is noted in
the rules that “a collaborative problem-solving
approach is often preferable
to an adversarial strategy,”7 and in 2007, ADR was added
as a component to the mandatory professionalism course
required of all new attorneys. In reality, the active
enforcement of these ethics rules is difficult. It falls to
well-informed clients to ensure that their lawyer does in
fact consider the dispute resolution options available to
them to best achieve their goals.
Almost 20 years after the Futures Commission Report
that initiated Virginia’s implementation of court-connected ADR, the voluntary approach to using mediation continues to serve attorneys and parties well as it honors the
principle of self-determination with respect to choice of
dispute resolution process and to any agreement reached.
It precludes critics of mediation from arguing that coercion into the mediation process may create undue settlement pressures that could produce unfair outcomes. Some
suggest that mandatory participation in mediation does not
affect self-determination, so long as the parties are free to
accept or reject any resolution reached. In fact, research
indicates that parties participating in mandatory mediation
programs are as likely to reach an agreement as in voluntary
programs and have comparable satisfaction rates.8 While
this may be the case, in Virginia attorneys value control
over case management, and mediators enjoy not having to
discuss the minimum level of participation required in
mediation. To date, there has been no litigation in Virginia
related to “good faith participation” in mediation.
The success of mediation in Virginia is due in large
part to the willingness of the ADR community to tackle
difficult issues. In 1996, mediators in Virginia faced a significant challenge as a nonattorney mediator was found
guilty of engaging in the unauthorized practice of law for
providing legal advice. A committee of judges, lawyers,
mediators, ethics counsel for the Virginia State Bar, and
the chair of the Unauthorized Practice of Law Committee
worked diligently to develop a test or guidelines by which
legal advice could be more
clearly defined in the mediation context. The guidelines
that were ultimately developed pursuant to a grant
from the State Justice
Institute apply equally to
all certified mediators in
Virginia, regardless of background and licensure.9 While
unpopular among many dispute resolution practitioners
as overly restrictive, the
guidelines give mediators a
framework to support good
practice and avoid unauthorized practice of law problems, dual representation,
and mediator misconduct.
The Virginia Guidelines were
followed by unauthorized
practice of law policy statements by other states, such as
North Carolina, and other ADR organizations, such as
the ABA Dispute Resolution Section and the Association
for Conflict Resolution.
It falls to well-informed
clients to ensure that their
lawyer does in fact consider
the dispute resolution
options available to them to
best achieve their goals.
Responding to Ethical Dilemmas
Today, mediators in Virginia and around the country are
facing the challenge of providing professional and ethical
mediation services and simultaneously meeting the demands
of clients. These two objectives are sometimes at odds with
each other, as Virginia experienced when addressing the
interplay between mediation and the practice of law. To
assist practitioners with ethical dilemmas, many states,
such as Florida, Georgia, and North Carolina, provide
mediators with comprehensive opinions on ethical questions presented. In providing these opinions, these states
rely on their own standards of ethics, mediator qualifications, and grievance procedures, as well as local rules and
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
29
statutes governing mediation. For states that do not have
their own standards of ethics for mediators, the 2005
Model Standards of Ethics can serve as a resource.10
Recognizing that many dispute resolution practitioners
may not have access to a state dispute resolution office
that provides mediator ethical guidance, the ABA
Dispute Resolution Section recently established the
Committee on Mediator Ethical Guidance to provide
advisory responses to requests for ethical guidance based
on the Model Standards.
The current scope of this committee is limited to the
consideration of ethical issues pertaining to mediation. The
Committee on Mediator Ethical Guidance may accept an
inquiry from 1) an ABA member, 2) an individual who is
not an ABA member, or 3) an organization. The committee
may also consider an issue on its own initiative. The committee will apply the Model Standards of Conduct for
Mediators to the inquiry. The committee may draw on
other sources of authority, such as opinions or other guidance issued by state ethics authorities, but its focus will be
on interpreting the Model Standards and applying them
to the issue presented. From time to time, the committee
may consult with the ABA Center for Professional
Responsibility and the ABA Standing Committee on Ethics
and Professional Responsibility, as appropriate.
In 2007, the committee received its first inquiry:
In the course of litigation, an attorney receives a set of
interrogatories directed to his or her client, a party, calling for all information about a certain subject known to
the client and its employees and agents, including its
attorneys. A law firm partner of the attorney is a mediator
who has recently mediated a case involving persons not
involved in the described litigation. During the course of
that mediation, the attorney-mediator received information which would be responsive to the interrogatories
referred to. What should happen?
The committee applied Section V of the Model
Standards of Conduct for Mediators and concluded that
the attorney-mediator in the case above should not disclose information acquired in the mediation that would
be responsive to the interrogatories absent: 1) agreement of
the parties to the mediation that disclosure is permissible, or
2) a requirement of law, such as a court order. The committee noted that in answering this question it assumed that
applicable law would not require a mediator/attorney to
divulge information gleaned from a confidential mediation
when information is requested of his partner’s client in a
written interrogatory. If there is, however, applicable law
requiring the lawyer/mediator to answer the interrogatory
propounded to his partner’s client, consent of the parties to
the mediation might be sought, or, barring that, a motion
for protective order might be filed by the lawyer/mediator
seeking exemption from the rule.
The Committee on Mediator Ethical Guidance recently issued three new ethical responses and encourages
mediators to submit inquiries. With the continued growth
of mediation, court and ADR program administrators
30
SPRING and SUMMER 2008
continue to have many questions they must grapple with.
As administrator of the state court dispute resolution
office for more than 10 years, issues I recently dealt with
are questions I anticipate that mediation programs will
have to address in the future as ADR continues its growth
both in Virginia and throughout the country. Some examples of ethics issues of broad significance include:
1) What is the scope of the Model Standards of Conduct
for Mediators? Should they cover the work of a
mediator in related roles such as trainer or mentor? Do
these Standards apply to the work of a mediator in a
role close to mediation, such as parent coordinator?
Should the standards cover the business practices of
mediators and trainers?
2) What impact should loss of license or criminal
conviction have on a mediator’s ability to serve on
a panel or be certified?
3) Should a program administrator be authorized to
remove a mediator for incompetence without any
formal complaint being filed?
4) If the Model Standards do not explicitly say a mediator
should not lie or that a mediator should treat people
respectfully, are those expectations implied?
5) What level of confidentiality should mediator
grievances and decisions be afforded?
6) What level of due process is required in mediation
grievance proceedings?
7) What standard of review should be used in issuing
decisions in mediator grievance proceedings?
8) Should program administrators have immunity for the
work they do in enforcing the Standards of Ethics?
9) What standard of review should be used when a
mediator who is suspended or decertified for a period
of time seeks to regain that certification status?
10) Should mediators be required to report mediator
misconduct?
The three new responses issued by the Committee on
Mediator Ethical Guidance all involved confidentiality.
A continuing challenge for mediation practitioners is the
issue of explaining confidentiality and the exceptions to
confidentiality. My experience under Virginia’s mediation
confidentiality statute, which is not as complex as the
version in the Uniform Mediation Act, has been that
mediators find it difficult to explain to parties at the
beginning of mediation. As a result, a possible revision to
Virginia’s Standards of Ethics would require mediators to
include the confidentiality statute and its exceptions in
the Agreement to Mediate and reviewing it generally, as
opposed to reading the confidentiality statute verbatim
and ensuring parties understand it, an impossible existing
ethical expectation, particularly when dealing with uninformed parties.
An issue related to confidentiality recently discussed
by the Virginia State Bar-Virginia Bar Association Joint
Committee on ADR involves the reporting of mediated
agreements in the Virginia Lawyers weekly newspaper.
A question was raised by a member of the bar whether
DISPUTE RESOLUTION MAGAZINE
publication of such information by attorneys or the mediator was permissible. An Ad Hoc Subcommittee on
Confidentiality of the Joint ADR Committee assumed
that the cases reported were mediated under an agreement that included no additional negotiated confidentiality provisions beyond those established by statute or
ethical rule. Virginia law provides “a written mediated
agreement signed by the parties shall not be confidential,
unless the parties otherwise agree in writing.” The subcommittee concluded that a published settlement report
that includes the names of the parties, names of counsel,
name of the mediator, information about the case that is
already public, and the settlement terms may be permissibly disclosed by counsel. While there appears to be no
express prohibition of disclosure of a nonconfidential settlement agreement by the mediator, the subcommittee
considered such disclosure by a mediator to be inappropriate. This question raises the issue of what expectation
of confidentiality is conveyed to mediation clients. Public
disclosure of mediated settlements may have a chilling
effect on parties’ interest in mediation and as a result,
mediators should discuss with the parties and counsel
before the mediation begins what the expectations of
confidentiality are with respect to mediation communications and the mediated agreement.
As the volume of mediation continues to grow and
the dispute resolution field continues to advance, the
number of challenges to mediated agreements as well as
grievances against mediators will likely rise. The work
mediators do is private, thus it is incumbent on the dispute resolution community to be self-regulating and practice in a manner consistent with mediation ethics
principles, state or national. When necessary, mediators
should seek guidance from a state or national ethical
guidance committee, as well as peers and mentors.
Continued success of the dispute resolution field is
dependent of courts and consumers feeling confident in
the quality, competency, and integrity of the mediators
they work with and the services they receive.
Over the past few decades, the dispute resolution field
has handled challenges to the institutionalization of mediation with due consideration, education, collaboration,
and perseverance. We have sought uniformity as evidenced
in the development of the Uniform Mediation Act and
the recent effort related to collaborative law. These uniform acts, as well as the creation of the ABA Committee
on Mediator Ethical Guidance, present an interesting
dynamic between state and national statutes and procedures, which may become more significant in the future as
the practice of mediation is increasingly crossing state
lines. There is a wealth of experience among practitioners
and administrators, as well as mediation program models
throughout the country that should be drawn upon in
dealing with questions of what may be perceived as dual
systems of regulation. As the field moves ahead, I am
hopeful there will be continued collaboration among state
ADR offices and bar associations, among the ADR profes-
sional organizations, and that organizations like the ABA
Section of Dispute Resolution will continue to provide a
clearinghouse of information and resources related to program development, ethics issues, and best practices as we
strive to continue to meet the goals set forth more than
30 years ago by Chief Justice Burger. ◆
Endnotes
1. Civil Justice Reform Act of 1990; The Administrative Dispute
Resolution Act of 1996; more than 2,500 state statutes authorizing or
mandating the use of mediation.
2. VA. CODE ANN. § 2.2-4119.
3. VA. CODE ANN. § 8.01-576.5.
4. VA. CODE ANN. § 8.01-576.6.
5. On average, 12,000 court-referred mediations are conducted annually, up from 5,000 in 2000 (www.courts.state.va.us/drs).
6. Virginia Rules of Professional Conduct, Comment to Rule 1.2. The
interpretative comment to Rule 1.2 states that in the context of a
client’s right to consult with the lawyer about the means to be used in
pursuing the client’s objectives, the lawyer “shall advise the client about
the advantages, disadvantages, and availability of dispute resolution
processes that might be appropriate in pursuing these objectives.”
7. Virginia Rules of Professional Conduct, Comment to Rule 1.3.
8. Roselle Wissler, Court-Connected Mediation in General Civil Cases:
What We Know from Empirical Research, 17 OHIO ST. J. ON DISP. RES. 641
(2002).
9. Virginia Guidelines on Mediation and the Unauthorized Practice
of Law (www.courts.state.va.us/drs).
10. See www.abanet.org/dispute.
Join a Committee of the Section of
Dispute Resolution
What Will Committee Membership Do for You?
• Allow you to develop your practice in a variety
of subject areas.
• Allow you to explore your areas of interest.
• Provide opportunity for leadership in the
Section.
• Provide access to email discussion list to
communicate, learn, and network.
• Provide the latest information to neutrals,
lawyers, and users of ADR processes.
• Inform you about Section activities and
ADR policy development.
• Keep you up-to-date on practice tips and
ethical guidance.
Members can now join committees
and committee list serves online.
Simply log on to
www.abanet.org/dispute
and visit the link on the home page.
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
31
Bob Muss
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Triumphs and Challenges
The Section’s chairs, past and present, in a virtual roundtable
By Chip Stewart
n the occasion of the ABA Section of Dispute
Resolution’s fifteenth anniversary, the editorial
board of Dispute Resolution Magazine contacted the
former chairs of the Section, asking a series of questions
regarding the Section, its accomplishments, and the most
significant advances and important challenges faced by
the ADR field. The responses of eight of the former
chairs have been compiled in this virtual panel.
O
Section of Dispute Resolution Accomplishments
The former chairs were asked about the achievements
they were proudest of during their terms and about what
they wished they had been able to accomplish. Responses
covered a broad array of topics, highlighting some of the
most significant achievements for ADR in general and
the Section in particular.
Several former chairs noted the establishment of conferences and symposiums where practitioners and scholars
could meet and discuss ADR topics.
Kim Kovach, Section chair from 1997–98, said she was
most proud of the Section’s first International Conference,
held in Washington, D.C., in 1998.
“While not initially designated as the Section’s standalone conference, many participants, especially those
across the ocean, attended,” Kovach said. “As a result,
many of these individuals became active participants in
future Section activities and conferences. This opened a
great deal of international dialogue and exchange that
continues today.”
This kind of outreach continued with the Section’s
annual conference, which Pamela Enslen helped to establish during her term as chair in 1998–99.
“During my term, we took the plunge and announced
the first annual Spring ADR Conference reaching out to
the entire dispute resolution field,” Enslen said. “There
D ISP UT E RESOLUTION MAGAZINE
Chip Stewart is a professor at Texas Christian
University in Fort Worth, Texas, and the editor
of Dispute Resolution Magazine. He can be
reached at [email protected].
SPRING and SUMMER 2008
33
were those who said it could not be done, but we believed
we could become the gathering place for all ADR professionals. None of us predicted we would be as successful as
we were. Approximately 750 people showed up in Boston
when the most optimistic of us had only predicted 250.
From there the conference grew and grew.”
Other chairs mentioned the Section’s outreach and
training efforts.
“I was particularly proud of the fact that we were able
to reach out to certain constituencies in meaningful ways
that offered them a home within the Section,” said Jim
Alfini, Section chair in 1999–2000. “We had the first
legal educators’ colloquium, and we also set aside space at
the Annual Meeting for the administrators of court-sponsored ADR programs.”
Richard Chernick, Section chair in 2003–04, cited the
creation of the Section’s arbitrator training program,
“conducted annually since 2004 to sell-out audiences and
rave reviews by some of the
best commercial arbitrators
in the United States.”
Bob Mussehl, Section
chair in 2001–02, recalled
the Section’s efforts regarding diversity.
“My proudest achievement
was to put diversity at the top
of my list of goals, and
recruiting Marvin Johnson, a
national diversity leader, to
chair the Section’s Diversity
Committee,” Mussehl said.
“Marvin’s efforts were exceptional, and as a result, our
Section was placed on the
honor roll by the ABA
Commission on Racial and
Ethnic Diversity.”
However, other chairs
noted the challenge of improving diversity outreach.
Alfini said that during his term, he wished the Section
had “worked harder and more creatively on increasing
diversity within the Section membership,” and he said
that increasing diversity in the mediation profession
should be one of the ADR field’s chief goals.
Outreach to other ABA sections, attorneys, and ADR
consumers has also helped recent efforts to improve ADR
processes. John Bickerman, Section chair in 2006–07,
said this kind of collaboration with mediation users was
critical for the Task Force on Improving the Quality of
Mediation, which announced its findings earlier this year
(see article by John Lande, page 43).
“If our field is to grow, understanding and responding
to the expectations of the users of our services is essential,” Bickerman said. “The Task Force made important
and some not entirely predictable findings regarding high
quality processes, including recognizing the diversity of
styles that parties want. Rather than pigeonholing mediation styles, demanding conformity, or disfavoring certain
practices, the lessons of the Task Force are that one size
does not fit all needs.”
Current Section Chair Larry Mills said his proudest
achievement has been launching an initiative to develop
policy statements regarding dispute resolution that could
be adopted by the ABA House of Delegates to guide
improvement of ADR processes.
“I am hopeful that the development of ABA-approved
policy statements, including some of the fundamental
principles applicable to arbitration, mediation, and other
forms of dispute resolution, will allow the Section to take
an institutional position on proposed legislation and other
issues,” Mills said.
Other Section efforts met with mixed success. Enslen
noted the initial promise of the ADR in Health Care
Initiative, but wished that she and the Section had
been able to build a better
working relationship with
the American Medical
Association in this process.
“While most of us never
know in advance, nor can predict, what will be the most
promising initiative or conversely the most challenging, I
believed that there was some
indication that the efforts of
the ABA combining with the
AMA would result in extensive mediation use in health
care disputes,” Enslen said.
“Although many are continuing work in this effort, and
certainly some ADR use is visible, by now I thought that
mediation clauses would be
much more widespread in the
healthcare field.”
Another missed opportunity the former chairs noted
was helping to aid understanding of ADR processes by
both legal professionals and the public. Chernick said he
wished the Section had engaged in “earlier and more
aggressive participation” in discussions of the “vanishing
trial” that arose in other sections.
“The voice of the ADR community was not heard in
that debate,” Chernick said.
Mills said more public education about ADR processes
is crucial.
“I regret not advocating more strongly within the
Section the formulation of a comprehensive public education campaign regarding the availability of mediation,
arbitration, and other dispute resolution processes as
alternatives to going to court,” Mills said. “The more we
can educate the public about dispute resolution without
filing a lawsuit, the more demand there will be for dispute
Outreach to other ABA
sections, attorneys, and
ADR consumers have also
helped recent efforts to
improve ADR processes.
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SPRING and SUMMER 2008
DISPUTE RESOLUTION MAGAZINE
resolution services, and the more satisfied the public is
likely to be with their interactions with lawyers and the
legal system.”
Bickerman noted that the Section faces continued
challenges as the ADR field grows.
“For our Section’s influence to grow, we need to improve
its infrastructure,” Bickerman said. “Too few people do too
much of the work. More people interacting with other sections within the ABA, the outside bar, and ADR organizations would extend our reach. Improving the infrastructure
is tedious, hard work that requires a commitment from staff
and leadership but would pay enormous dividends. When
we have been able to collaborate with others, we have
made significant progress and increased our visibility.”
Contributions to ADR
The former chairs were also asked about the most significant contributions to the ADR since the Section of
Dispute Resolution was created 15 years ago. One of
these contributions, some
participants noted, was the
establishment of the Section
itself.
“The growth and health
of the ABA’s Section of
Dispute Resolution, and the
respect it has earned within
the ‘big’ ABA, has been a
boon to the ADR field,”
Enslen said.
Mussehl noted that even
though some other ABA
sections were “first opposed
to a Dispute Resolution
Section,” the gradual acceptance of ADR by these sections has been impressive.
Almost every participant
noted the creation of the
Uniform Mediation Act as one of the most important
achievements in ADR in this time. Enslen called the
Section’s role in the UMA a “tremendous contribution.”
Van Winkle noted that during his time as chair, he was
pleased with the early development of a “model mediation rule” that helped spur the development of the
Uniform Mediation Act.
Further, the former chairs noted, the passage of the
Model Standards of Mediator Conduct in 2005 has been a
significant achievement, one that Bickerman called “perhaps
the greatest accomplishment of the field” because of both
how it was developed and how it impacts practitioners.
“The Model Standards gave the field important visibility
while setting uniform standards that practitioners and courts
will follow for years to come,” Bickerman said. “The field
enhances its reach when we work with non-ADR practitioners. Enacting the Model Standards would probably not have
happened without the close cooperation and leadership of
the Litigation Section. I have been privileged to have
worked on several other projects that required ABA House
of Delegates approval, and none would have been possible
without collaboration. The field needs to be expansive in its
approach and not overly insular.”
Other former chairs cited the broad impact ADR has
had in transforming the way disputes are processed. Van
Winkle noted the willingness of courts and legislatures to
require mediation prior to litigation in many instances.
“As a result, the litigation system has undergone a profound change that would not have occurred otherwise
and this change has started now to ripple out into the
wider mainstream society,” Van Winkle said.
Mills agreed that mediation’s rise to prominence in the
pretrial process has been a significant achievement.
“It is now rare that any litigated case does not go to mediation, and, in fact, because mediation is anticipated in every
case, there is no aura of weakness or stigma attached to proposing mediation of any dispute,” Mills said. “The impetus
for mediation 15 years ago was
to reduce court congestion by
settling cases. Now, mediation
is viewed in its own right as
the preferred and most effective process for resolving
disputes in which the parties
control the resolution.”
Chernick noted how ADR
has led to the development
of “consistent, affordable and
effective” mediation options
for all kinds of disputants.
“Dispute resolution must
address all sorts of disputes,
and because the needs of
different disputants are different, it must do so creatively
and effectively using different models and different mediator skill sets,” Chernick said. “I am pleased that the
Section has played an important leadership role in virtually every dispute modality.”
Almost every participant
noted the creation of
the Uniform Mediation
Act as one of the most
important achievements
in ADR in this time.
Future Challenges, Possible Solutions
When asked about the main challenges that ADR faces
in the future and what changes they would make if they
could, several of the former chairs mentioned the need for
ADR to become more broadly accepted by the public.
“When talking with general consumers, whether they be
individuals, neighbors, or businesses, there is still utmost
and near exclusive reliance on the adversarial win-lose,
right-wrong paradigm,” Kovach said. “Each time a legal or
disputed matter is presented in the media, a corresponding
collaborative, interest-based viewpoint should be included.”
Enslen agreed, saying that ADR should become “part
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
35
of the fabric of everyday life wherein problem solving and
conflict resolution would come as natural to people as
breathing. I believe reaching out to children and young
adults is our best hope for accomplishing this goal.”
Mills said the ADR field should “make everyone aware
of the availability of fast, cost-effective, and fair dispute
resolution processes so that disputants and lawyers alike
think first of problem solving, dialog, analysis, and
options for resolution rather than vindication of ‘rights’
through contested litigation.”
Mills suggested that for lawyers, this orientation should
begin in law school.
“An important challenge, and opportunity, is training
the next generation of lawyers to think of themselves as
problem solvers rather than litigators,” Mills said.
Besides public awareness, former chairs noted that the
ADR field needs to increase demand for its services.
“Too many mediators and arbitrators are chasing too
few jobs,” Bickerman said. “The competition for work
creates incentives to limit entry and define the ‘right’ way
to practice. We must do a better job of promoting the
value of our services and provide quality.”
As ADR becomes more widely accepted, the field will
face other challenges.
“Staying relevant and fresh and helping to maintain
standards of quality and professionalism will be a
challenge as we become more and more assimilated into
the mainstream,” Enslen said.
Van Winkle called upon the ADR field to remain flexible, adaptive, and “spectacularly innovative” to be truly a
valuable alternative to a strong, accessible trial system.
“The process of mediation must be kept fresh, but
freshly effective,” Van Winkle said. “If we commonly
bring in box lunches for delivery to separate rooms, let’s
try having a buffet with all around the same table. If we
always start with a mediator’s opening statement in
advance of the lawyer’s presentations, consider mixing it
up; start with your own series of slides showing the news
accounts—real or fictionalized—of the current dispute
and then end with the mock of the newspaper story headlining the parties reaching a settlement. Perhaps invite
one of the parties to try their hand at stating their adversary’s best position. Methods must be new and on point . .
. . We have to make sure that as mediation becomes
mainstream; all the folks that have ‘been there’ will not
necessarily, before your session, have ‘done that.’”
Chernick emphasized the need for ADR to be available consistently to all litigants.
“I would provide timely, thoughtful, effective, efficient,
and affordable dispute resolution to court litigants on a
36
SPRING and SUMMER 2008
consistent basis,” Chernick said. “This would leave the
court system to deal only with cases that really needed
that kind of process.”
On this topic, Mussehl said he “would require pretrial
mediation and a binding arbitration system for all claims
below $35,000.”
Alfini remarked that ADR has developed a “wonderful
capacity for self-criticism.” Responding to these critics is
crucial for the field, he said, because it will require that
ADR stays close to its “core values and democratic ideals.”
Criticism within the ADR community, however, can
also be a challenge for the field, Bickerman said.
“There has always been an undercurrent of ADR academics and practitioners who want to mandate a restrictive style of practice,” Bickerman said. “We will never
reach the market for our services if we fight battles on
certification and proper mediation styles that only we
understand.”
Chernick expressed concerns about policy makers
legislating on ADR issues without a full understanding
of the field.
“An obvious example is their cluelessness about the
differences between consumer and commercial arbitration, and the application of arbitration ‘reforms’
that do not distinguish between different needs and characteristics of different processes,” Chernick said.
Mills expressed similar concerns.
“Looming on the horizon is the specter of legislation
outlawing or regulating predispute arbitration clauses in
contracts where a consumer cannot negotiate the terms,”
Mills said. “The challenge will be to preserve the flexibility and freedom to contract for arbitration in the businessto-business commercial context while ensuring that business-to-consumer arbitrations are fair.”
These challenges will help to shape the future of ADR.
Further, ADR professionals themselves, Kovach noted,
should “walk the talk” when it comes to being leaders in
the ADR field.
“It is most disappointing at meetings, conferences and
other settings when ADR practitioners and educators
engage in positional adversarial exchanges,” Kovach said.
“While of course, some of those responses and approaches
are likely part of human nature, I have become somewhat
troubled by the inability of those in the field to move to a
consensus, interest-based model for resolving the issue or
problem. If we ourselves, in our contracts, publication
agreements, conference and hotel agreements, office leases, divorces, and business dealings don’t include mandatory mediation or other ADR clauses, how in the world can
we expect others to do so?” ◆
DISPUTE RESOLUTION MAGAZINE
ADR and Family Law
By Gregg Herman
amily law attorneys have a saying that a bad settlement
is better than a good trial. Perhaps—but if so, then a
good settlement would trump everything else.
In family law, unlike most other areas of law, when
the guns stop firing and the smoke settles, frequently the
warring parties still have to live with each other—not
literally, but metaphorically. The damage done by litigation can carry over and scar the future relationship
between parents for many years in the future. Words
cannot be unsaid. The bitterness of hearing partisan
advocacy does not go away. The cost—both financially
and emotionally—is significant.
Not that many years ago, the only way of avoiding
warfare was standard positional bargaining. While successful in most cases, there are a number of cases where
the bridge between the parties cannot be bridged by their
own resources. The concept of retaining a third party—
a mediator—was revolutionary a number of years ago.
Today, it has been so widely accepted that it is legally
mandated in many states and an accepted standard of
practice in most.
F
The success of mediation can be traced to several reasons. For one, a third party can break an impasse that has
caused negotiations to come to a halt. For another, the
process injects a fresh viewpoint in the negotiations.
Lawyers sometimes get too close to their client’s cause
and fail to see the forest due to the trees. Parties frequently do not appreciate that there will be another side to all
of the issues, with no guarantee that a fact finder will see
things their way. Hearing a neutral, independent, trusted
professional give opinions and insight can cause reality to
be injected into the equation.
Yet, the type of mediation and the nature of the mediator are critical to its success. For example, facilitative
mediation, where a mediator merely relays proposals, is of
D ISP UT E RESOLUTION MAGAZINE
Gregg Herman practices family law with the
firm Loeb & Herman, S.C., in Milwaukee,
Wisconsin. He is chair of the ABA Family Law
Section (2007–08). Previously, he was the
founder and first chair of the Collaborative
Family Law Council of Wisconsin and the
Divorce Cooperation Institute. He can be
reached at [email protected].
SPRING and SUMMER 2008
37
little or no use to
family law practitioners. We don’t
need a third party to
run settlement proposals back-andforth, as in a game
of tennis. Evaluative
mediation, on the
other hand, allows
the mediator to
offer opinions and
suggest solutions to
issues. Only evaluative mediation,
where the mediator is proactive in the process, is worth
the time and expense in family law cases.
The type of mediator depends on the issues to be
mediated. When the issue
involved is child-related, the
issues are frequently not legal,
but emotional. Arguably, the
entire issue of best interests of
a child is not a legal determination, but a psychological
one. For a number of years, I
served as a guardian ad litem in
a case involving two reasonably
good parents and one very
loved child. As is typical, the
problem with getting to resolution was getting the parties to
concentrate on the child, not
on the other parent. For a
mediator, I recommended a
mental health professional who
had a long successful history
with my office. After the first
session, she called me, frustrated that there was no agreement, but with a proposition:
Both parties had consented that I could sit in on the next
mediation session. However, I was to remain silent, unless
called upon to break an impasse. Of course I agreed, and
four hours after the second mediation session started, I
had spoken at most twice, and there was an agreement. I
observed the following:
The danger in using mental health professionals as
mediators is that the topics may drift into ones that are
legal in nature. Sometimes, the dividing line is not very
clear. Other times, the line is blurred or ignored by the
mediator in order to reach a settlement. The result may
be mediators getting involved in substantive issues on
which they have little knowledge. The resultant settlement can lead to difficulties down the road.
Comediators, one lawyer and one nonlawyer, would allay
this danger, but the cost of mediation then doubles. Still, the
extra cost may be worth it, where both legal and nonlegal
issues are expected to arise in the course
of negotiations.
As valuable as mediation can be in many cases, it is
no panacea. For one thing, it is often conducted without
attorneys being present. If, as is common, there is a power
or knowledge imbalance between the parties, the results
may not be equitable. If the issues are financial, using a
mediator not versed in taxes
or valuation issues may even
confuse matters. Most critical,
because the goal of a mediator is
to achieve a settlement, a power
or knowledge imbalance may
not be an impediment to “success,” as defined by the mediator. In fact, such an imbalance
might even be helpful. After all,
if the mediator’s goal is to settle
a case, an imbalanced settlement is within the definition of
success, although the long-term
implications may be seriously
troubling.
Until recently, however,
there has not been a settlement
process involving lawyers where
“success” was defined not as
just any settlement, but an
appropriate settlement, meaning that neither party “won”
or “lost,” and the agreement is within parameters of what
a court might have ordered. Within the past 10 years, a
settlement process known as collaborative divorce has
exploded across the country. Starting in Minnesota, then
spreading to California, it now has thousands of adherents
all over the country—and even around the world including Austria, Canada, England, France, Ireland, Scotland,
and Switzerland.1
Collaborative divorce is designed to completely
remove litigation from the legal process. Unlike mediation, both parties must have attorneys, eliminating the
potential power imbalance of mediation. There may be
mental health “coaches” (as opposed to therapists), child
specialists, and neutral financial experts involved. All
appraisals are joint, and there is a transparency to the discovery and settlement process. Most significantly, if the
process fails, both attorneys must withdraw and transition
Using a mental health
professional as mediator
can turn the mediation
session into a
therapeutic one.
• Mental health professionals are a lot better at listening than lawyers.
• When forced to listen, you pick up nuances that
might have been missed if you were preparing for my
next comment.
• The mediation involved a fair amount of counseling.
Using a mental health professional as mediator can
turn the mediation session into a therapeutic one. In such
cases, the therapy may be extremely valuable to quell the
emotions and have practicality and rationality prevail.
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DISPUTE RESOLUTION MAGAZINE
the case to litigation counsel. The goal is to make the
cost of failure to everyone so extreme that settlement
becomes almost an imperative. The theory is to entirely
remove the threat of litigation from the settlement
process. The financial costs of trial preparation are completely eliminated. As importantly, the sword-wielding
threat of going to trial is eliminated. The result is to
lessen (if not eliminate) the bitter taste of the adversarial
legal process that may tarnish the parties’ ability to coparent in the future.
Collaborative divorce, however, is not for every case.
When there has been domestic violence, mental illness,
or substance abuse, it may not work even when mental
health coaches are utilized. In some cases, the threat of
disqualification can be used to try to exact a better settlement. In other cases, the lack of a credible trial threat can
cause the matter to be prolonged at considerable emotional and financial cost.
Collaborative divorce appears to have survived its most
serious threat—an adverse ethics opinion from the Colorado
Bar Association Ethics Committee.2 While initially casting a shadow on a practice allowing a lawyer to withdraw
from case midstream because it might go to trial, a subsequent opinion from American Bar Association Standing
Committee on Ethics and Professional Responsibility, finding the practice did fall within ethical parameters have put
those fears to rest.3 As well it should. After all, if parties
have been fully advised on the process, why should they not
be able to retain an attorney on a limited, clearly defined
basis, that being to avoid further damaging their family
through the adversarial legal process?
Cooperative divorce, a relatively new concept, is another
viable option, although not yet widely available. While
maintaining many of the criteria for a collaborative divorce,
such as the commitment for settlement, joint appraisals and
full, voluntary disclosure, it does not include the critical
aspect of mutual withdrawal of the attorneys if the process
fails. Some see the process as “Collaborative Lite,” while
others don’t see any difference between a cooperative
divorce and a “regular” divorce.4 While substantively there
is little or no difference, by signing an agreement to operate
in a cooperative manner, lawyers can allay fears of divorcing
parties regarding the roles of the attorneys. Far too many
parties choose to proceed without attorneys, fearful that
lawyers throw gasoline on fires. Given the public perception
of divorce lawyers, a written promise to operate to resolve
issues in an amicable and professional manner can assure
parties that lawyers have an important, helpful purpose to
serve in these cases.
The very real controversy over these forms of ADR
goes to the heart of what it means to be a lawyer and the
purpose of our system of justice. To some, being a lawyer
means to advocate (under previous ethical rules, to “zealously” advocate) their client’s position. Because settlement requires compromise, to these lawyers, the advocacy
role and the resolution role do not nicely coincide.
Moreover, they define their client’s interests as purely
financial. The more money for their client, the better.
“Success” is defined in purely economic terms.
It is here that the term “family” law has its real meaning.
As stated earlier, unlike other areas of law, the opposing parties in a divorce often have a continuing relationship after
the legal system is done with them. The very definition of
“family” no longer means just a nuclear unit of Mom, Dad,
and children, but encompasses stepparents, stepsiblings, and
all of the extensions that go with them.
In traditional civil litigation, “success” can only be
expressed in terms of money. The winner at trial gets a
larger or smaller financial judgment. However, there are
many whose value system puts a different priority level to
money. To these people, preserving the well-being of their
“family” (defined in the broadest terms) is more important than money.
In a family law setting, family relationships are better
enhanced by resolution, not litigation. As Winston
Churchill famously said “Tis always better to jaw, jaw, jaw,
than to war, war, war.”
ADR takes the most acrimonious and emotional issues
and offers an avenue for resolution. There are now more
avenues than ever before available and hopefully, like
new arteries growing to assist an ailing heart, more and
more options will develop over the years. The job of a
family law attorney will then continue to evolve from
merely advocate of a client’s wishes to a problem solver
for the most important issue of our society—preserving
the well-being of our families. ◆
Endnotes
1. Per website of the International Academy of Collaborative
Professionals. www.collaborativepractice.com.
2. ETHICAL CONSIDERATIONS IN THE COLLABORATIVE AND
COOPERATIVE LAW CONTEXTS, Ethics Comm. of the Colo. Bar Ass’n,
Eth. Op. 115 (2007).
3. Ethical Considerations in Collaborative Law Practice, Formal Op.
07-447 (2007).
4. For a more complete comparison of these processes, see John
Lande & Gregg Herman, Fitting the Forum to the Family Fuss: Choosing
Mediation, Collaborative Law, or Cooperative Law for Negotiating Divorce
Cases, 42 FAM. CT. REV. 280 (2004).
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
39
The ADR Case Evaluator’s
Role in Contemplated
and Pending Litigation
By Allan van Gestel
ince my recent retirement as a judge running a
special session of the Massachusetts Superior Court
focusing on complex business-related cases, I have
come in contact with an aspect of the private ADR process
that, in the right kinds of matters, can provide an additional
tool for those contemplating or facing litigation. My experience as a newly minted mediator and arbitrator has made
me aware of the benefits of this process as an option to
save parties from the costs of going to court or of hanging
in for the expensive long haul.
Consider the following scenario, which can be replicated
in many different contexts depending on the facts presented.
S
*****
The vice president for Technology for Smart Newco,
Inc. (SNI), a high technology start-up, has just reported
to her chief operating officer that Multi-Mega Corporation
(MMC) has pulled the plug on a joint venture agreement
to develop the next generation of super-small, highly
effective baggage screeners for use in airports and similar
facilities. SNI, with venture capital funding of just over
$50 million, already has invested nearly $25 million in
research and development of the project, which was
expected to come before the FAA for final approval in six
months. If approved, the new system would have been
deployed in every airport in the United States, and proba-
bly in most airports around the world. For SNI, it is a
make-or-break project.
MMC claims the termination of SNI was for cause,
i.e., that MMC did not have confidence that SNI could
satisfactorily complete the project in a timely basis. SNI,
however, has heard that MMC has had a recent change
in senior management and wants to produce its own baggage screening device, probably capitalizing on much of
the work done to date with SNI. There is an amalgam of
tortious and contractual issues involved, including theft
of trade secrets, possible patent infringements and misuse
of confidential information. There is also a potential for
enormous royalty income for SNI from MMC’s worldwide
marketing efforts. MMC, of course, will avoid sharing the
spoils of the project if it can, as it seeks to do, get rid of
SNI as its joint venturer.
The SNI COO shouts to his secretary, “Get me Jack
Trialman at Pitt & Bull, our outside trial counsel. We’ll
sue the buggers!”
“But shouldn’t we first get together with the CEO, and
perhaps the CFO as well?” asks the Technology V.P.
There is reluctant agreement from the COO.
In the meeting that follows, the ever-cautious CFO
raises issues about the costs of litigation, and the CEO
expresses concerns about adverse publicity, counterclaims,
disruption of the workforce, and trade secret and patent
ownership issues. Further, all agree that although Trialman is
a superb trial lawyer, his first inclination always is to
charge ahead with a lawsuit or its defense. Trialman’s
confidence in his abilities as a trial lawyer is only outsized
by the amount of his hourly rate, the latter now brushing
up against four figures. The group determines that they
really need a rational, independent assessment of the
potential case, its merits, demerits, costs, and the likelihood of success.
In-house general counsel at SNI recommends asking
Trialman to test the waters first with a second opinion.
Trialman suggests getting a neutral evaluation by an ADR
specialty organization that he has worked with in the past.
*****
This is prudent advice. Alternative dispute resolution
has matured in many ways from being simply a private,
out-of-court mediation or arbitration process. One of the
more frequently used processes now available, at least at
the more sophisticated ADR entities, is an evaluation of
potential or pending cases presented to just one side of
the contest by a neutral person experienced in the litigation of complex disputes of the kind at hand. This is a
role particularly apt for retired trial judges with backgrounds in the kinds of litigation under consideration.
After all, what judges do, on a regular basis, is assay the
strengths and weaknesses of cases when acting upon dispositive motions or in conducting jury-waived trials.
Disputes between entities and parties in business transactions are well suited for the kind of early analysis, or
second opinion, that a neutral evaluator can provide.
Businesses have as their primary function earning a profit
for their shareholders and owners. Much more than in
other disputes, it is the bottom line on the financial sheet
that counts most, not the personal emotion, the righteousness of the cause, or the actual pain involved. Careful
assessment of the possible outcome before exercising the
business judgment to proceed with suit or aggressively
defend is the hallmark of a well-run organization.
Modern litigation, with its extensive and intrusive pretrial discovery, particularly electronic discovery, is both expensive and fraught with uncertainties. Before a business starts
down the litigation highway, it should consider all aspects of
what lies ahead. This includes the likelihood of success on
the merits of the case, the amount of monetary or injuncor prospective. Also, for the same reason it is advisable to
tive relief that may be expected, how long the process will
have counsel present whenever there is substantive comlast, what the legal and other fees may involve, how much
munication with the client and to have counsel be the
interruption to the day-to-day operation can be expected,
person who transmits instructions and information to the
the strength of the other side’s potential for a successful
neutral evaluator.
counterclaim, and what other nonlitigation issues may be
Once the neutral evaluator is engaged, he or she will
involved, such as public or private financing or future busithen be provided with materials and information that are
ness opportunities with the target entity.
useful and necessary to the effectiveness of the evaluaIt is in making the business judgments on these issues
tion. This often includes material such as the key docuthat a properly qualified neutral evaluator can provide sigments in the transaction like any contract or amendment,
nificant assistance. And it is not really all that expensive in
significant communications and reports relating to the
the grand scheme of the litigation exercise on the horizon.
matter at hand, information about who did what and
From a potential plaintiff’s point of view, the assesswhat problems arose during the process, position papers
ment of the contemplated suit can occur before the
on charges of breaches of contract or tortious acts, legal
complaint is even filed. But for the timing, a defendant
memoranda, and sometimes even a draft complaint. In
can similarly get an early private assessment of the case
addition, it is often useful for the neutral evaluator to
brought against it and any counterclaims or responses
have an opportunity to speak with key individuals
that may be available to it. Such
involved at the company, as
evaluations can also be of assiswell as counsel.
d
an
ies
tance at other stages of the
After the evaluator has gathtit
en
n
Disputes betwee
litigation process as well, such
ered
the information, he or she
ns
parties in business transactio
as in anticipation of mediation
will then study it and assay the
or arbitration.
situation. Occasionally, further
are well suited for the kind
Neither the potential plaintiff
information is needed.
of early analysis, or second
nor the actual defendant has any
When the assessment is
l
ra
ut
obligation to advise the other side
completed,
there will be a
ne
a
t
opinion, tha
that it is seeking the evaluation or
meeting with counsel and key
evaluator can provide.
what the results of that process are.
company decision makers, at
One caution, however, is very
which the neutral evaluator
important. The arrangement with
presents his or her conclusions and fields
the neutral evaluator should be established by a written
and discusses questions and issues that come up. Further,
agreement that will protect the process, the conversations
in some instances, the neutral—with counsel—may be
in the process, and the results of the process from discovery
asked to appear before the board of directors or other
by the other side. To ensure this, it would be prudent to
management team to further explain the evaluation and
have a retention agreement entered into between outside
to respond to additional questions.
trial counsel for the company and the independent neutral
The whole process can vary depending on the complexievaluator such that it is the lawyer who is engaging the neu- ty of the issues at hand and the amount of information to
tral to consult with and advise its client in making an evalbe digested. Except in particularly complex matters, howevuation of a claim or potential claim in which the client is,
er, this is a process that may take only two to three weeks
or is about to become, involved. The engagement agreeand amount to a cost for the evaluator’s work of approximent should spell out the confidentiality of the arrangemately 10 to 20 hours. Such an effort is money well-spent
ment and the fact that what is being sought will be includwhen compared with the economic burden of imprudently
ed as part of the attorney’s work product. This, then, prorushing to court with a case that may be weak or fighting
vides protection against the forced disclosure in discovery of on with a defense that has no legs. It also provides a degree
the mental impressions, conclusions, opinions, or legal theof protection for the entity’s officers’ and directors’ business
ories of both the attorney and the neutral evaluator engaged judgment to proceed in the event of later criticism by shareby the attorney concerning the litigation. Such
holders in a derivative suit.
an agreement can make clear that the work of the neutral
The neutral case evaluator need not always be a former
evaluator has been accomplished, prepared, and presented
judge. However, a former judge has the advantage of actuto counsel and the client in relation to litigation, pending ally having evaluated and decided real cases of the nature
at hand. Also, the former judge has a publicly available
Hon. Allan van Gestel (Ret.) is a full-time media- track record in his or her decisions, and a reputation
tor and arbitrator with JAMS, The Resolution
among the trial bar where the judge sat, that can better
Experts in Boston. He has more than 46 years of
enable counsel and the business to determine whether
experience as a lawyer and judge handling comthis person is right for the task. ◆
plex civil litigation matters and is an expert at
resolving business and commercial disputes. He
may be reached at [email protected].
42
SPRING and SUMMER 2008
DISPUTE RESOLUTION MAGAZINE
Doing the Best Mediation You Can
By John Lande
s a mediator who handles civil cases, what can you
do to be most effective? What would lawyers and
parties most appreciate in your work as a mediator?
Conversely, what might you do that would “turn them
off,” impede the process, and reduce your chances of
being selected again?
These were some of the questions considered by the
Task Force on Improving Mediation Quality (Task Force)
of the ABA Section of Dispute Resolution, which recently
issued its final report.1 In 2006, after the Section decided
that a national credentialing program was not a feasible way
to ensure mediation quality, it created the Task Force to
investigate factors that promote high-quality mediation
practice. The 17 Task Force members represented diverse
geographic locations, mediation perspectives, and practice
areas. They included lawyer and nonlawyer mediators,
lawyers who represent clients in mediation, academics, and
administrators of court-connected mediation programs.
The Task Force recognized that mediation norms vary
widely by type of dispute, and thus it would not make
sense to focus on all types of mediation. Rather, it focused
on one area and anticipated that similar inquiries might
be undertaken later for other areas. It focused only on private practice civil cases (such as commercial, tort,
employment, and construction cases, but not family law
or community disputes) where the parties are represented
by counsel in mediation.
The Task Force conducted research on the views of
lawyers, parties, and mediators by using focus groups, surveys, and interviews. It held focus groups in nine cities
A
across the United States and Canada, including Atlanta,
Chicago, Denver, Houston, Miami, New York, San
Francisco, Toronto, and Washington, D.C. At the end of
some focus groups, participants completed surveys. More
than 200 people participated in the focus groups, and 109
respondents completed the surveys. The Task Force also
conducted individual telephone interviews with 13 parties
in mediation.2 The participants were selected because of
their mediation experience with large civil cases, so this was
not a random sample of civil litigators, mediators, or parties.
The Task Force used the data to inform its recommendations, recognizing that the subjects’ views are not necessarily
the best indicator of mediation quality. The Task Force concluded that there is not a one-size-fits-all best practice
regime that would improve the quality of civil mediation.
Rather, it recommended that mediators and mediation participants tailor the procedures to fit each case.
What’s a Mediator to Do?
The Task Force found that many mediation participants
said they appreciate mediators who are not only skilled
and knowledgeable, but who also have good intuition
about meeting parties’ emotional needs. They have been
D ISP UT E RESOLUTION MAGAZINE
John Lande is associate professor and director of
the LL.M. Program in Dispute Resolution at the
University of Missouri School of Law. He was a
member of the Section’s Task Force on Improving
Mediation Quality, and he took the lead in designing and analyzing the Task Force’s research. He
can be reached at [email protected].
SPRING and SUMMER 2008
43
dissatisfied with some of their mediation experiences, and
the Task Force was particularly interested in identifying
strategies to satisfy mediation participants.
The Task Force findings focus on the following four
aspects of mediation that the research subjects said are particularly important: (1) preparation for mediation by mediators
and mediation participants, (2) case-by-case customization
of the mediation process, (3) careful consideration of any
“analytical” assistance that mediators might provide, and
(4) mediators’ persistence and patience.
Preparation Before Mediation Sessions
The vast majority of the survey respondents said that
preparation by the mediator and mediation participants is
very important. Indeed, it helps to consider that “mediation” really begins during the preparation phase—not
when everyone convenes at a mediation session. Some
subjects emphasized that it is critical for a mediator to
personally “be there” from the beginning.
Most of the respondents said that lawyers should send
a mediation memo to mediators and that it is essential for
mediators to read everything they receive (which may
include additional documents such as pleadings, legal
memos, or expert reports). They also generally said that
mediators and lawyers should talk before the mediation
session to discuss procedural and substantive issues,
including the “real issues” and potential stumbling blocks.
They overwhelmingly said that mediators should discuss
who will attend the mediation session and confirm the
participation of individuals with appropriate settlement
authority. They also generally said that it is very helpful
for mediators to encourage people to take a constructive
approach in mediation.
These discussions can prompt the lawyers to prepare
themselves and their clients, which can make a big difference in the success of mediation. The parties should have
an appropriate understanding of the process, the issues,
and their real interests. They should expect to hear things
that they will disagree with, and they will probably be
asked challenging questions. Parties should be open to
reconsidering their positions based on the discussions
in mediation.
The Task Force research suggests that mediators should
use the preparation process to help identify the parties’
goals. Not surprisingly, the vast majority of survey respondents said that in most cases, settling the case and minimizing the time, cost, and risk are important goals.
Almost as many respondents said that satisfying the parties’ underlying interests is also an important goal in most
cases. Substantial proportions of respondents identified
additional goals, such as giving parties a chance to tell
their stories and feel heard, having parties reach closure,
promoting communication between parties, and preserving relationships. So it would be a mistake for mediators
to assume that “it’s just about the money” or that the only
goal is to settle the case. Instead, mediators should be
attentive to the parties’ goals, starting before the first
mediation session.
Mediators and mediation participants should use their
judgment in applying these principles in particular cases.
For example, the amount at stake in some cases may not
justify a large investment of time and cost for preparation.
Moreover, in some practice settings, such as in certain
court mediation programs, it is considered inappropriate
for mediators to have ex parte discussions with the
lawyers about substantive issues before a mediation session convenes.
Case-by-Case Customization
of the Mediation Process
The Task Force study found that mediation participants
generally said they wanted the mediation process to be
tailored to their needs rather than a standardized “cookie
cutter” procedure that is used in every case. For example,
one lawyer said that his biggest frustration is when mediators use a “formulaic recipe” that does not fit the partici-
Table 1.
Percentage of Survey Respondents Who Believe That Certain
Techniques Would Be Helpful in Most Mediations
Technique
44
Mediation Participants
Mediators
Ask pointed questions that raise issues
95
96
Give analysis of case, including
strengths and weaknesses
95
66
Make prediction about likely court results
60
36
Suggest possible ways to resolve issues
100
96
Recommend a specific settlement
84
38
Apply some pressure to accept a specific solution
74
30
SPRING and SUMMER 2008
DISPUTE RESOLUTION MAGAZINE
pants and their goals. Indeed, participants said that they
appreciated getting coaching from mediators about the
process, such as how to frame an argument or whether
to discuss particular issues in caucus or joint session.
Mediators can play an important role in scheduling
events related to mediations. Most of the survey respondents preferred scheduling mediation sessions to occur
after “critical” discovery is completed, but before discovery is fully completed. Mediators may coordinate scheduling of mediation with critical discovery or other events
and arrange for the timing, process, and content of information exchanges before the mediations.
Survey respondents varied in their preferences about
some aspects of the preparation process. Some said they
prefer conference calls, while others preferred separate
conversations between mediators and the lawyers. They
also differed about whether, in addition to providing
mediation memos to the mediator, each side should provide them to the other parties.
In customizing the process, mediators and lawyers may
discuss whether each side should make opening statements at the beginning of a mediation session. Although
many mediators and lawyers assume that each side should
always give opening statements, a substantial minority of
survey respondents said they believe that such opening
statements are not helpful in most cases. Some expressed
concern that if some participants are especially angry,
inflammatory opening statements could be counterproductive. Moreover, opening statements may not be needed if there has been a lot of preparatory work before the
mediation session and if it makes sense to go right into
caucus after the mediator’s opening statement.
Mediators would often benefit from eliciting participants’ procedural preferences and following them if
appropriate in a particular situation. Mediators who try to
impose their process may damage their rapport with the
participants and lose some of their confidence that may
be needed to help resolve the substantive issues.
Careful Consideration About Providing
“Analytical” Assistance
The Task Force research suggests that many mediation
participants want mediators to use various techniques to
help analyze the case and promote settlement, though
some survey respondents had reservations about certain
techniques. Table 1 shows the percentages of the mediation participants and mediators who said that specific
techniques would be helpful in most mediations. Almost
all of the mediators and participants said that mediators
can be helpful by asking pointed questions and suggesting
options to consider. Almost all of the mediation participants, but only two-thirds of the mediators, said that it is
usually helpful for mediators to give their analysis of the
case. By contrast, a substantial majority of participants
and only about one-third of the mediators said that it is
helpful in most cases for mediators to make predictions
about likely court results, recommend a specific settlement, or apply some pressure. The interviews with parties
found that many of them were uncomfortable with mediators giving their opinions or recommendations about
specific settlement options.
These results suggest that mediators should be cautious
about using the more controversial techniques, such as
making predictions, recommendations, or applying pressure. Although many lawyers may want mediators to use
these approaches, the Task Force research suggests that
many parties and a substantial minority of lawyers do not
want the mediators to do so. For example, one lawyer did
not “get the point” of going to mediation if mediators
don’t give their opinions. By contrast, another thought
that doing so can be “very, very dangerous.”
In actual cases, there are many variables that affect the
appropriateness of the particular techniques. Substantial
majorities of participants and mediators said that all of
the following factors might affect their judgment about
the appropriateness of a mediator giving an assessment of
the strengths and weaknesses of a case:
• whether the assessment is explicitly requested
• the extent of the mediator’s knowledge and expertise
• the degree of confidence the mediator expresses in
the assessment
• the degree of pressure the mediator exerts on people
to accept the assessment
• whether the assessment is given in joint session
or caucus
• how early or late in process the assessment is given
• whether the assessment is given before apparent
impasse or only after impasse
• the nature of issues (e.g., legal, financial, emotional)
• whether all counsel seem competent
• whether the mediator seems impartial
These issues touch the still-controversial debate over the
propriety and value of facilitative and evaluative mediation
techniques. The Task Force expressly declined to take a
position in this debate. The research findings suggest that
mediators who contemplate using the techniques described
above should consider these issues carefully.
Mediators’ Persistence and Patience
Survey respondents overwhelmingly said they believe that
it is important for mediators to be patient and persistent.
Participants expressed dissatisfaction if mediators are
merely “messengers” or “potted plants” or if they give up
too easily when negotiations become difficult. These are
situations when the antagonists need mediators the most,
so it is precisely at these times when mediators should
work the hardest to help people deal constructively with
the challenges. If a mediation session ends without agreement but has some potential to reach one, the vast majority of participants think that the mediator should contact
the lawyers after a week or two to ask whether they want
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
45
additional help from the mediator—and some participants
criticized mediators who did not do so. One person summed
it up this way: “Never stop talking if there is any hope.”
adapt the Task Force process to address participants’ needs
in their particular area. The tool kit is available on the
Task Force’s website, which includes model forms. ◆
Continuing to Learn About Mediation
Mediation is a very difficult craft, and virtually all mediators would benefit from continuing to learn about it.
Many mediators attend continuing education programs to
learn about mediation theory and practice skills, legal
issues, and new developments in the field. Mediators may
benefit from additional ways to develop their professional
skills such as routinely debriefing mediations by writing
what went well, where the mediation seemed stuck, and
how they might handle similar situations differently in
future mediations. Mediators can also routinely ask
lawyers and parties to complete confidential feedback
forms after mediations. Similarly, some mediators informally solicit feedback from lawyers after mediations.
Some mediators ask colleagues to observe their mediations and give feedback (with the consent of the participants). Mediators can also participate in “peer
consultation groups” to use a structured process for learning from actual case experiences.3 Mediators may also
work to improve mediation quality generally in their area.
The Task Force developed a tool kit to help practitioners
Endnotes
1. This article is adapted from the Task Force’s Final Report, which is
available at www.abanet.org/dch/committee.cfm?com=DR020600. The
report includes detailed data of the findings summarized in this article. It
also includes recommendations for possible follow-up initiatives, such as
developing materials for mediators, lawyers, parties, and trainers; considering whether to undertake similar projects for other types of cases; and
examining how mediators can use analytical techniques in ways that
maintain a high quality of mediation practice.
2. Most of the Task Force data are from focus group discussions and surveys collected at the later set of focus groups. Almost half of the survey
respondents said that their most common role in mediation was as a mediator, and about half said that their most common role was as a lawyer. About
3 percent said that their most common role was in another capacity, presumably as a party representative. Responses from those whose most common
role was as a mediator were analyzed separately from the other respondents.
In this article, the term “mediation participant” refers to lawyers and parties.
Data from participants came primarily from lawyers. To get parties’ perspectives, the Task Force interviewed 13 nonlawyer participants, and specific references to data from parties were derived from those interviews.
“Respondents” refers to people who completed the survey, and “subjects”
refers to everyone who provided data for the study.
3. For further discussion of these ideas, see John Lande, Principles for
Policymaking about Collaborative Law and Other ADR Processes, 22 OHIO
ST. J. ON DISP. RESOL. 619, 655–58 (2007).
The Future of ADR
(continued from page 10)
makes the case that spiritual perspectives can play a valuable role even
in commercial cases.
9. See mediatorblahblah.blogspot.com/2007/09/spirituality-inmediation.html.
10. In my own practice, considerable discussion preceded the decision
to list “spiritual and moral integrity” as one of the core values of the firm
in which I practice, Boston Law Collaborative, LLC, but the decision to
make that statement on our website has had no discernible negative
impact on our practice and has been mentioned positively by several
clients. See www.bostonlawcollaborative.com/firm-overview/missionand-values.html. Of course, it is unlikely that our firm would have heard
from those who decided not to retain us because they were alienated by
this message.
11. See cyberlaw.stanford.edu/node/5489.
12. See Cary Barbor, The Science of Meditation, PSYCH. TODAY,
May/June 2001.
13. See Rients Ritskes et al., MRI Scanning During Zen Meditation: The
Picture of Enlightenment, 8 CONSTRUCTIVISM IN HUMAN SCIENCES 85–89
(2003).
14. See DANIEL SIEGEL, THE MINDFUL BRAIN: REFLECTION AND
ATTUNEMENT IN THE CULTIVATION OF WELL-BEING 200 (2007).
15. See Mbemba Jabbi et al., Empathy for Positive and Negative Emotions
in the Gustatory Reflex, 34 NEUROIMAGE 1744 (Feb. 15, 2007).
46
SPRING and SUMMER 2008
16. See Compassion Meditation Changes the Brain, MEDICAL NEWS
TODAY, March 27, 2008, www.medicalnewstoday.com/articles/
101812.php (citing Antoine Lutz et al., Regulation of the Neural Circuitry
of Emotion by Compassion Meditation: Effects of Meditative Expertise,
PUBLIC LIBRARY OF SCIENCE ONE, March 27, 2008,
www.plosone.org/article/fetchArticle.action?articleURI=info:doi/10.1371/
journal.pone.0001897).
17. Douglas Noll, The Neuropsychology of Peace and Conflict
www.lawyertopeacemaker.com/neurospych.html) (citing Steven Pinker,
THE BLANK SLATE: THE MODERN DENIAL OF HUMAN NATURE (2003)).
18. Id. While research has shown that sex, breast feeding, and even
just hugging stimulate oxytocin production, I am not yet aware of experiments proving that behaviors such as working together or eating
together will produce similar effects.
19. There are, of course, certain cases—and I have had a few—where
the parties affirmatively welcome a spiritual approach. I recall a mediation between two priests, another mediation between two rabbis, and a
third mediation involving a spiritually oriented nonprofit organization —in
each of those cases, the mediation began with meditation or prayer at
the request of the parties.
DISPUTE RESOLUTION MAGAZINE
Improving Mediation Training and Regulation
Through Collaborative Assessment
By Ansley Barton, Susan Raines, and Timothy Hedeen
ourt-annexed mediation has spread considerably in the
United States over the past 30 years. In order for court
systems to ensure high-quality mediation services,
attention to the training and preparation of mediators must
be central. Although many states maintain guidelines for
oversight and regulation of trainings, Florida has recently
taken a strong step forward, commissioning an assessment of
its training policies and practices. This article will use the
case of Florida to examine the issue of assessment, also
known as “evaluation,” of mediation training standards and
discuss some of the findings related to best practices for
mediation training and regulation.
Mediation flourishes statewide in Florida’s courts.
Pursuant to 1988 legislation, court-connected mediation
programs were developed across the state and are among
the oldest in the country. The growth of court-connected
referrals ensures that Florida mediators are among the
busiest in the country. Under the auspices of the state
supreme court, mediation is thoroughly integrated as part
of the justice system in Florida. Recognizing that effective programs should be reviewed as a part of ongoing quality assurance, the Office of the State Courts Administrator
and Dispute Resolution Center (DRC) contracted with our
team to assess current mediation training standards and
oversight practices.
As experienced mediators, trainers, and facilitators,
we designed a highly collaborative stakeholder process.
Throughout the project, we enjoyed the strong support
and cooperation of judges, court program administrators,
C
mediation trainers, and mediators in Florida, as well as
the DRC staff. Our work was thoughtfully guided by input
from an advisory committee consisting of experienced
researchers, scholars, and mediation professionals.
Goals of the Assessment and Challenges Identified
Our goal was to assess the policies and practices that had
been adopted by the Florida Supreme Court in reviewing
and certifying mediation training programs, and to make
recommendations for quality improvements in mediation
training. Assessment of individual trainers or existing
training programs was not a project goal.
In a well-established mediation system such as
Florida’s, there are many stakeholders. We sought input
Ansley Barton is a principal at Ansley Barton, LLC, in Rome,
Georgia. She can be reached at [email protected].
Susan Raines and Timothy Hedeen are associate professors of
conflict management at Kennesaw State University in Kennesaw,
Georgia. They can be reached at [email protected] and
[email protected]. They would like to thank James Alfini,
Tricia Jones, Peter Salem, Donna Stienstra, Josh Stulberg,
Andrew Thomas, and Roselle Wissler, who generously shared
their insight and expertise as advisors to this project.
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
47
from them all, including court oversight committees on
ADR rules and policies, training review, and mediator
ethics; the DRC; and ADR coordinators, mediation trainers, mediators, judges, and trial court administrators. We
were impressed by stakeholder commitment to ensuring
the quality of mediation and mediation training.
An important contextual element for this project is
the entrepreneurial nature of mediation and training in
Florida (as well as most other states). Mediators and
mediation trainers are predominantly private providers,
operating within the guidelines overseen by the DRC.
Many of the country’s most successful mediators and
renowned trainers practice in Florida. It is necessary to
strike a balance between maintaining regulatory rigor and
allowing the entrepreneurial spirit to flourish.
The Assessment Design
We designed our assessment around a commitment to collaboration at every level—within our team, with the
DRC staff and court committees, and with the various
stakeholders. Accordingly, our process sought to encourage dialogue, transparency, and input from as many people as possible through a range of research methods:
• Facilitated stakeholder meetings
• Onsite training observations
• Telephone interviews with the DRC, Florida mediation trainers, a project advisory committee of
experts, and program directors from other states
• Online surveys of judges, court personnel, trainers, policy makers, a random sampling of mediation training
participants, and a random sampling of trainers of statecertified mediation training programs
Other sources of data for the project included reviews
of the literature on mediation training and adult learning,
of ethics complaints from Florida and other states, of
training agendas and materials used in Florida trainings,
and ongoing input from the advisory committee.
Training Standards Existing at the
Time of Assessment
Training in Florida for county court mediation (civil claims
up to $15,000), circuit civil mediation (claims above
$15,000), family mediation, and dependency mediation
is provided through programs certified by the Florida
Supreme Court. The program is certified, rather than individual trainers. All materials, including a bibliography, are
reviewed by the DRC when the training program is submitted for approval. After approval, trainers must furnish
the DRC with an agenda, as well as any updated materials,
each time their training is offered. Content of training programs is organized around learning objectives, and agendas
must be linked to learning objectives so that it is apparent
that all objectives are covered in the course of the training.
Consequently, the learning objectives serve an organizational as well as an evaluative function.
The Florida training standards require that ethics receive
48
SPRING and SUMMER 2008
specific attention for a minimum of 90 minutes and be
“woven throughout” the training. Role-play simulations,
observed by a trainer or critiquer, are required. Each trainee
is required to serve as mediator for at least one full role-play
and as a disputant for at least one full role-play. Each roleplay must be debriefed for at least 15 minutes. Other requirements include an agreement-writing exercise and a mediation
demonstration before the first role-play. The standards suggest
a mixture of lecture, exercises, small group activities, mediation simulation, and role-play to create a balanced training.
Florida’s evaluation requirements included both daily evaluations and an evaluation at the end of the training.
Findings
Stakeholders reported a high degree of satisfaction with
the DRC’s administration of existing guidelines, noting
the DRC to be very supportive and responsive. The rigor
of the training standards was generally considered necessary and fair. Stakeholders expressed commitment to quality control and to fostering mediator competency. In
addition, administrative requirements were generally
viewed as necessary and fair; a notable exception was the
requirement of daily evaluations and the requirement that
daily evaluations be tightly tied to learning objectives (up
to 25 objectives may be measured by survey at the end of
each day of training). Many stakeholders found this burdensome for trainers. In general, the learning objectives
were viewed as too cumbersome and too numerous.
There was significant consensus regarding some suggested
improvements. For example, stakeholders talked
at length about the importance of role-play and felt that
there should be more time for role-play and debriefing.
There were suggestions that ethics should not be presented
through lecture exclusively, but covered by other learning
modes as well. Interestingly, the existing standards allow for
more role-play and encourage more creativity in the teaching of ethics, but the common perception was otherwise. In
regard to the teaching of ethics, there was support voiced by
many for an ethics test. Finally, there was consensus that
hours of training should not be reduced, although there was
concern about redundancy if people took multiple trainings
covering different types of mediation (e.g., family and civil).
At the same time, there was concern about sufficiency of
training on the fundamentals of mediation such as neutrality,
listening and facilitation skills, confidentiality provisions,
and agreement writing.
Recommendations
Among the tensions recognized throughout this assessment are those between creativity and prescription,
between flexibility for trainers and their strict adherence
to standardized methods. Charlie Pou1 presents a useful
matrix to understand the central issues in this assessment
project, using two dimensions: the “height” of hurdles
that a training program/provider must meet to offer DRCcertified training, and the extent of oversight and support
required of DRC to ensure continued quality. The options
that he offers are:
DISPUTE RESOLUTION MAGAZINE
•
•
•
•
High hurdle/Low maintenance
High hurdle/High maintenance
Low hurdle/ Low maintenance
Low hurdle/High maintenance
For each option, there is a trade-off between cost and
quality assurance. For example, the “low hurdle/low maintenance” option is the least expensive administratively, and
allows for great flexibility and market entry. However, it also
has the least quality control of all four options. We observe
that the present system in Florida sets high front-end standards for certification of training programs and relatively
low ongoing maintenance. It should be noted that in our
experience, all participants—trainers, DRC staff, judges and
court personnel, advisory board members, mediators—share
the common goal of high-quality preparation of mediators,
who will in turn provide high quality mediation services.
Core-Plus Concept
In facilitated conversations and online surveys, stakeholders expressed concern about redundancy between the four
separate types of training and inconsistent training on
fundamentals. We recommended that a “core” mediation
skills training be developed, with additional training for
specific areas of practice.
We recommended a
24-hour core training that
would be required for every
mediator, regardless of the
area of mediation practice
(i.e., county, civil circuit,
domestic relations, or
dependency). The core
would consist of training in
the mediation process and
focus on fundamental
mediation skills, including
listening, questioning,
framing skills, and ethical practice. The core could be presented as a stand-alone training or paired with a specialized
training in one of the four contexts above. We suggested
that specialized courses would consist of 20 hours, with
the exception of county court (small claims), which
would consist of eight hours.
Stakeholders identified the following advantages in
core training:
• Every mediator would have the same training in the
fundamentals of mediation, creating a baseline of
knowledge and skills.
• Mediators taking advanced trainings would not need
to repeat the basic material in each training.
• Unbundling basic and advanced training would
allow more time for role-play and practice of
advanced skills within specific contexts.
The following concerns about core training were
expressed by stakeholders:
• The logistics of unbundling basic and advanced
training would pose a considerable challenge.
• Without increasing the hours of specialized training,
devoting 24 hours to basics would not leave enough
time for advanced material.
• Context (family, dependency, circuit civil, or county
court) would be eliminated if core skills and knowledge were taught in a vacuum.
• What about the special issues of county court?
Would the additional eight hours be sufficient to
address these issues?
We recommended that if the core training were not
adopted, additional hours of training be added to current
requirements. The primary reason for this recommendation is to provide more time for role-play, considered critical by many data sources.
Teaching Methods
Although mixed methods of teaching are required by
current standards, the team emphasized research findings
that recommend trainers frequently vary their methods.
Integrating and alternating among short lectures, small- and
large-group discussion, scenario analysis, role-plays (including shorter, partial process role-plays), videos, and demonstrations keep participants engaged and result in higher
levels of learning and satisfaction. We feel that the use of a
variety of teaching methods is a best practice that
gives every learner the best
opportunity to benefit
from mediation training.
The stakeholders and
other data sources, including members of the advisory committee, suggested
that it would be appropriate to incorporate tests as
a teaching method. The
team recommended that
the DRC consider whether testing would be appropriate
for subjects such as ethics, calculation of child support,
and the required elements of the opening statement.
Testing can be a valuable way to cover subject matter and
to determine whether certain areas require further study
by students or coverage by trainers.
A thorough understanding of
ethics is essential to the
development of a good mediator.
Ethics
The present focus of the Florida training standards on
ethics education is strong and should be continued. A
thorough understanding of ethics is essential to the development of a good mediator. An emphasis on ethics is a
best practice for all mediation training programs.
Although the Florida standards presently permit
the teaching of ethics by methods other than lecture, other
methods should be specifically encouraged, including: roleplay and debrief, scenario analysis, discussion, video analysis
and discussion, and review of actual ethics complaints.
We found strong support for an ethics test to be required
of each participant. Trainers could use an ethics test as a
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
49
teaching tool that each student should be required to pass
before receiving a training certificate. Students should be
permitted to take the test more than once. As an alternative, the test could be made available online with passage
required before certification is granted.
Role-Play
We found remarkable consensus concerning the value of
role-play in mediation training. All data sources confirmed
the belief that each training participant should have the
opportunity to act as mediator as many times as possible.
We suggested that although some Florida training programs
already use partial process role-plays (e.g., a simulation covering only mediator’s opening statement, parties’ narratives,
and issue identification), these role-plays would be a valuable addition to every training. Further, the time allotted by
the standards to small group critique and large group debrief
should be increased to 30 minutes. In general, best practice
for design of mediation training would dictate an emphasis
upon role-play and adequate time not only for the role-play
itself, but for thorough debriefing as well.
Trainer Qualifications
In stakeholders meetings, interviews, and surveys, the
team heard concerns about the difficulties faced by those
who desire to become trainers. Aside from requiring that
prospective trainers have received training themselves
and have conducted a prescribed number of mediations,
present rules require only that prospective trainers participate as lecturers and role-play critiquers in trainings provided by others. This necessitates the cooperation of
current trainers in “growing” their competition, presenting a high hurdle for prospective trainers without ensuring that they are qualified to offer training.
We recommended that present qualifications be changed
to include some method of assuring that a new trainer
receives orientation to the DRC process by the DRC or a
designee, is familiar with the principles and literature of
adult learning, and demonstrates ongoing development as an
adult educator. We also recommend that all new trainers be
observed during the first training session by the DRC or its
designee. Observation would provide opportunity for developmental feedback and serve a gatekeeper function if needed. We recognize that an observation requirement would
demand considerable resources of the DRC as well as raise
logistical issues such as status of trainees who have gone
through a training deemed inadequate. However, we feel
that observation would add an important method of quality
control to existing standards.
ed the number and complexity of the learning objectives,
the requirement of daily evaluations tied to these learning
objectives, and the requirement that the least administrative infraction (deadlines missed, etc.) be taken to the
Mediation Training Review Board, leaving the DRC with
no discretion to handle small matters.
Our recommendations on these matters included ending the daily evaluations in favor of a comprehensive
evaluation done at the end of the mediation training and
a review and reduction in the number of learning objectives. Since the assessment, the Florida DRC has discontinued the use of daily evaluations.
We suggest that the use of one comprehensive evaluation at the end of training is the most effective way to
ensure that trainers and regulators receive constructive
feedback. We consider this a best practice for training.
Broader Applications
This study was specifically undertaken to address mediation
training in Florida. However, the conclusions are much
broader and are applicable in many contexts. We feel that
an advantage of assessment by independent evaluators,
working in coordination with affected stakeholders, is that
it provides the opportunity for neutral, expert views of
administrative policies and practices. This is particularly
true when an ADR system has been in existence for many
years. Many of the suggested changes are designed both for
quality assurance as well as administrative simplicity.
ADR programs in many states, along with other state
government programs, have been impacted by budgetary
restraints in recent years. Given current economic woes,
there is no reason to believe that this situation will be
soon alleviated. External program assessment is one way
to improve program efficiency and examine cost-effective
alternatives that may be necessary as budgetary pressure
continues.
As the field of mediation and ADR grows and develops, while the social and fiscal context continues to
change, collaboratively designed program assessment can
lead to fresh insights and innovative ideas for continued
program improvement. In addition to ensuring the highest degree of utility, collaboration between internal stakeholders and external reviewers is likely to garner buy-in
and reduce anxiety among stakeholders. ◆
Endnote
1. Charlie Pou, Quality Assurance for Community Mediation (2006)
(unpublished paper, on file with the National Association for
Community Mediation).
Regulatory Matters
Feedback from trainers consistently indicated there is a
great deal of satisfaction with the regulation of mediation
training by the DRC. There is great appreciation for the
DRC’s support of trainers and its fairness in administration. However, there were some regulations that were
burdensome to both trainers and the DRC. These includ-
50
SPRING and SUMMER 2008
DISPUTE RESOLUTION MAGAZINE
Interview
Mario Patera
and
Ulrike Gamm
Rebecca Westerfield interviewed Mario Patera and Ulrike Gamm, cofounders of the International Summer School on Business
Mediation, a highly innovative biannual gathering of European business mediators at Admont, Austria (www.isbm.at).
RW: Mario and Ulrike, you’ve been to the United
States many times to train and shadow commercial mediators. You’ve also lectured at various colleges including
Stanford and Harvard. What, in your opinion, are the
most important differences between business mediation in
the United States and Europe, especially in the Germanspeaking countries?
MP/UG: We can identify five key differences in
European business mediation that surprise our colleagues
from the United States again and again:
In European business mediations, we nearly always
work in joint sessions, while one-on-one discussions and
caucuses are more the exception.
We work with our clients directly; attorneys are
assigned specific tasks in mediation sessions and do not
take over for the client.
Emotions also play a decisive role in business mediation, so we address them directly as an important resource
instead of disregarding them.
For quality reasons, we only work in the context of
interprofessional comediation, regardless of whether a
conflict involves two parties or is a multiparty case.
Another aspect that would be considered unusual by
U.S. standards: We do not request briefs, nor do we read
such documents in advance.
RW: What considerations motivate these different
approaches?
MP/UG: For us, mediation is not just a means of shifting conflict resolution processes out of the courtroom and
into the mediation arena. However, in the business mediation processes we’ve observed, we generally got the
impression that U.S. mediators primarily continued their
activities from previous roles: for example, in their capacity as judges or attorneys. One example of this would be
settlement conferences, which are also carried out in
court, but for which the judge only has 30 to 60 minutes’
time. In order to avoid misunderstandings, we should
note that we believe in settlement conferences as a highly
D ISP UT E RESOLUTION MAGAZINE
Rebecca Westerfield is a former Kentucky circuit court judge. She is a member of the state
bar of California, and a founding member of
JAMS, with which she had served as a full-time
mediator and arbitrator since 1992. She can be
reached at [email protected]. Mario Patera
is the head of the Department for Intercultural
Social Competence at the University of Klagenfurt,
Austria. He can be reached at mario.patera@
univie.ac.at. Ulrike Gamm is a mediator and
change management consultant in Vienna,
Austria. Shecan be reached at ulrike.gamm@
konfliktkultur.com
SPRING and SUMMER 2008
51
In contrast, we believe that changing our
own views and mental models—that is,
the way we perceive the world around
us—is indispensable for mediation.
efficient means of resolving business conflicts, especially
against the backdrop of the U.S. legal system. We would
just not refer to them as mediation, because the conflict
resolution activities clearly remain within the traditional
mental model of legal logic.
In contrast, we believe that changing our own views and
mental models—that is, the way we perceive the world
around us—is indispensable for mediation. First of all, this
concerns the mediator’s understanding of his or her role in
the process. The need to change our own attitudes and our
selection of techniques becomes all the more urgent when
we take on the role of an expert in our primary professions,
in which we have a great degree of decision-making competence and power in society like law.
However, this need for change also affects the clients,
as they also have to depart from their previous explanations of conflicts and their preferred solutions in order to
focus on alternative perspectives. Without these changes,
the resolution process would not work.
RW: So you regard mediation as a process of change or
transformation?
MP/UG: Yes, a process of change in which the parties
take an active role, discovering and presenting their interests, which they often cannot articulate clearly at the beginning of the process. When this process is carried out in the
presence of all parties involved, it can be extremely effective, and that is why we generally work in joint sessions.
We see the parties’ interests as a crucial element in the
process. This may not seem especially surprising at first,
as nearly all mediators would agree with that statement.
Unfortunately, the relevant literature from the United
States does not provide a clear and unambiguous definition
of what interests are and how the mediator can identify and
frame them. Instead, interests, needs, desires, strategies,
motives, core concerns, and so on are generally commingled. In our opinion, this problem robs mediation of its outstanding potential for conflict resolution, a potential that
goes far beyond mere compromises on monetary amounts.
RW: You also emphasized the role of emotions in business mediation. Why this emphasis?
MP/UG: We sometimes find it surprising how little
attention is paid to emotions as a resource in a country that
52
SPRING and SUMMER 2008
has produced such famous therapists as Carl Rogers or
Virginia Satir. The natural sciences have given rise to revolutionary insights in recent years: Neurobiologists have succeeded in empirically demonstrating the high significance of
emotions in human thinking and behavior. This may breach
an established taboo, but based on the latest research in neurobiology, we are convinced that the myth of the primacy of
rational thought in the business world is on its way out. At
the same time, the fact that emotions have been considered
taboo in some professions may have more to do with the fear
of feeling helpless when dealing with emotions.
Neurobiologists and their discoveries regarding “mirror
cells” have even taken us a step further away from our
former perceptions about mediation. Any behavior
demonstrated by our counterparts, our clients, their attorneys, and others will necessarily trigger emotions in us,
whether we are aware of them or not. And those emotions will then guide our perceptions, behavior, and decisions. This effect is created by our brains’ mirror cells,
which ensure that people can develop resonance—the
only way to make cooperation and coordination of
human behavior possible at all. At the same time, this
gives rise to a completely new challenge for mediators, as
it forces us to give up another myth about mediation:
namely, the idea of the neutral mediator.
RW: If mediators are not neutral, how can they assure
fairness in the process? What are you suggesting mediators
must be aware of in their role as mediators?
MP/UG: We have to consider as mediators in shaping
relationships that we have these emotional reactions in
ourselves. In this regard, we see great opportunities in
comediation, as the mediation team can offer various
options with regard to shaping relationships. This means
that we can consciously, and let us emphasize consciously,
use resonance in order to strengthen our connection to
our clients. As a result, we do not work from a distance,
but in direct contact with our clients in order to encourage work on emotions.
In this context, we can refer to an important U.S. author:
Marshall Rosenberg, the originator of the nonviolent communication process. Rosenberg succeeded quite impressively
in demonstrating the extent to which emotions point to
DISPUTE RESOLUTION MAGAZINE
fulfilled and unfulfilled needs. That is why it is so important to pay special attention to emotions in our work, as
they can lead us directly to the clients’ interests.
RW: You’ve described some interesting approaches to
understanding business mediation, but what about the
state of mediation practice in Europe, and especially in
Austria?
MP/UG: There are two very different perspectives in
this context: First of all, Austria is a relatively small
country, but it has taken a leading role in the field of
mediation within the EU. For one, Austria introduced
the innovative model of comediation for divorce cases
more than 10 years ago; this model involves a mixedgender team of one attorney and one psychotherapist
working together. For low-income parties, comediation
is subsidized by the government, which means that access
to divorce mediation is generally ensured throughout
Austria. Second, in 2004 Austria became the first EU
country to pass an extensive civil-law mediation act, and
this requires a number of training hours that would be
unthinkable in the United States: 230 hours for privileged source professions such as judges, attorneys, psychotherapists, etc., and 360 training hours for all other
professions. This can be interpreted as a significant cultural difference between the United States and Austria.
In the United States, it is important to ensure a rapid
entry into practice, while Austria requires an extensive
basic education that—in addition to the topics generally
covered in the United States, such as communication
techniques and understanding conflicts—also includes
self-awareness, reflection skills, and supervision. These
elements are necessary in order to bring about changes in
the mediators’ mental models, as we mentioned earlier.
This cannot be accomplished in just a few hours; it
requires a far more intensive learning process with ongoing reflection cycles.
In terms of the number of cases, business mediation in
Austria as well as other European countries is certainly in
its fledgling stages compared to usage in the United
States. The significance of court-annexed mediation programs is comparatively low in European business media-
tion. To date, this development has been determined by
market demand. However, this demand is not supported
by deficits in existing conflict resolution options, as is the
case in the United States; instead, demand arises from
qualitative added value, in other words, whether businesses come to believe in the process as worthwhile, thus it
will have to establish itself on the market gradually.
In Austria and other European countries, this primarily
refers to demand from SMEs (small and medium enterprises) and especially family-owned businesses, where
conflicts are still a serious taboo. In particular, managers
see internal conflicts as a consequence of their own failure as leaders. Requesting mediation would then mean
admitting this “failure.” This attitude and the general lack
of knowledge about what unmediated conflicts actually
cost a company are among the greatest obstacles to
increasing demand for mediation in SMEs. From a business perspective, it appears paradoxical that there are
such advanced and differentiated controlling tools that
capture a company’s various cost factors, and yet the costs
of unmediated conflicts have been completely disregarded. Totally ignoring internal conflict most certainly is
detrimental to business productivity.
RW: In your opinion, how can the establishment of
business mediation in Europe be promoted in the future?
What strategies would you consider promising for that
purpose?
MP/UG: In recent years, we’ve taken completely new
paths in this field. We have to base our considerations
on the fact that business mediation has generally been
employed as a result of a failed cooperation process. We
have developed various projects in which we place mediation know-how—that is, attitudes and techniques for
work based on interests—at the beginning of complex
decision-making and cooperation processes. This is comparable to the idea of partnering as applied in the U.S.
construction industry.
RW: So you distinguish between mediative know-how
and mediation procedures? Could you cite a few examples?
MP/UG: Of course. It is probably most convincing to
start with an example from legal practice. We have
Opening up to new ways of thinking as
well as showing interest or even curiosity
regarding different approaches would
certainly help develop the discipline
further in the United States as well.
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SPRING and SUMMER 2008
53
The significance of court-annexed
mediation programs is comparatively
low in European business mediation.
supported law firms in using interest-based processes not
only in mediation, but also as a basic posture in dealing
with clients. This has allowed them to develop new ways of
communication in the consultation process, and it has promoted the development of long-term client relationships.
It is no longer a matter of selling existing solutions, but one
of finding new solutions based on interests identified in a
cocreation process—in other words, these are completely
new forms of client relationship management based on
mediation skill sets. This approach has also stimulated new
developments in other expert-oriented professions such as
consulting and auditing firms and architects’ offices.
Another example is a project we carried out with a
regional Austrian bank in which we were able to use mediation techniques to change the organization’s conflict culture
by training in-house conflict mediators. One of the key
results was that the lending process was redesigned on the
basis of mediative know-how. Now the aim is to resolve
conflicts through interest-based discussions in customer
relationships as well as in-house interactions. This has
brought about immense cost reductions and stronger customer relationships. At the same time, the bank has also
been able to position itself as a promoter of business mediation, as it provides financial support for mediation in the
case of customers that have problems with their suppliers,
for example.
The idea behind these strategies is to expose companies to the idea of mediation more frequently and thus to
cast a positive light on mediation through people’s own
experience. This will also make the various uses of mediation more visible.
RW: How can U.S. mediators benefit from these new
approaches?
MP/UG: That question touches on a fairly sensitive
point, which is related to another cultural difference
between the United States and Europe. Although leading
mediation researchers in Europe take it for granted that
they have to know the relevant literature from the United
States, the reverse is quite rare. Whereas European
researchers see the exchange of ideas with U.S. mediation
experts as a valuable enrichment of their own research
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SPRING and SUMMER 2008
activities, our experience has shown that this interest is
far lower on the other side. We are entirely convinced
that the U.S. mediation business would benefit significantly from a more cross-disciplinary and crosscultural approach.
We know that insights from other disciplines are not
always welcomed by many business mediators, especially
as those insights may be extremely difficult to reconcile
with their existing views of the world and mental models,
that is, their assumptions on how to develop conflict resolution approaches. Opening up to new ways of thinking as
well as showing interest or even curiosity regarding different approaches would certainly help develop the discipline further in the United States as well. In any case,
those differences provide stimuli for new ideas and considerations in our work, so we are always interested in discussions with mediators from other cultural backgrounds.
In our work with business mediators from the United
States, we have sometimes noted that this attitude is
missing. We suspect that mediators have little knowledge
of the different developments in business mediation in
Europe. At the same time, we believe that U.S. mediators
who are interested in international mediation activities
with and in Europe need to have well-developed intercultural skills. We define these skills as an awareness of different cultures and legal systems as well as differing professional or organizational cultures.
RW: Where can business mediators from the United
States gain this cross-cultural experience and learn more
about the developments in Europe?
MP/UG: One good opportunity is to attend the
International Summer School on Business Mediation in
Austria in July, where leading European and American
business mediators such as you will also hold lectures and
workshops. All of the relevant information can be found
at www.isbm.at. This summer school provides an ideal
opportunity to develop key skills and to learn more from
both cultures in an atmosphere of mutual appreciation.
RW: Thank you for your thought-provoking
observations. ◆
DISPUTE RESOLUTION MAGAZINE
Article coauthor Julia Gegenheimer in Phnom Penh, Cambodia, where she facilitated a Youth for
Peace mediation workshop in January 2007. She appears in the back row, fourth from the left.
Tomorrow’s Peacemakers
How to Encourage the Next Generation
of Conflict Management Professionals
By David G. Seibel and Julia Gegenheimer
sk Luis Moreno-Ocampo, chief prosecutor of the
International Criminal Court in The Hague, how he
thinks we can make the world a better place, and he
says without hesitation that “we must teach young people
everywhere how to deal with conflict better. For the ones
passionate about peace and justice, we must give them the
ideas and the skills to make a difference.” In a century already
characterized by conflict, Moreno-Ocampo speaks to our
obligation to foster a generation of global citizens equipped to
create value and improve relationships within families, out in
local communities, across organizations, and among nation
states. This next generation must include those focused
directly on the development and practice of effective conflict
management in both private and public contexts.
The field of conflict management refers to a wide range
of topics, including negotiation, effective communication,
strategic relationship management, and facilitated problem
solving. Conflict management professionals typically study
or practice these topics in the contexts of training, consulting, facilitating, teaching, coaching, research and writing,
and intervention services such as mediation.
The problem is not creating or even locating interest.
Each month, dozens of people ask us the same question:
“How do I get into this field?” They are classroom stu-
A
dents looking for professional paths, professionals looking
for new paths, entrepreneurs looking for opportunities to
make a living, and activists looking for opportunities to
make a difference. Even among those with the necessary
passion and potential to become effective conflict management professionals, there remains the challenge in
helping them grasp fundamental theory, master necessary
skills, and gain access to related conflict management opportunities. We believe the best way to encourage passion,
David G. Seibel is cofounder and president of Insight Partners
and Insight Collaborative. He is an attorney, conflict management consultant, mediator, and professor in the fields of effective
negotiation, communication and mediation. He can be reached
at [email protected]. Insight Fellow Julia
Gegenheimer graduated from Yale University in 2006 with a
B.A. in political science and history. She is currently a first-year
student at Harvard Law School. She can be reached at [email protected].
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
55
What Can You Do?
A list of actions you or your organization can take
to encourage the development of tomorrow’s peacemakers follows.
• Financially support charitable organizations
dedicated to the development of future conflict management professionals
• Reach out to academic institutions to offer
experiential placements for students of all
ages (consider academic schedules and offer
a variety of time slots including after school,
summer, and semester-based)
• Design a generalized professional development
plan with clear long-term expectations
including how you or your organization can
support a conflict management career path
• Create a process for designing professional
development plans unique to each potential
professional from intern to full-time employee
(for suggestions on how, email dseibel@
insightcollaborative.org)
• Invest more in your own development as a
conflict management professional through
participating in continuing education workshops, enrolling in related academic programs,
or applying for fellowships or similar experiences (even today’s peacemakers can take
their knowledge and skills to the next level)
teach theory, develop skills, and provide real-world opportunities is a multipronged approach involving combined
classroom-clinical curricula, internships, and jobs with
clear professional development plans, and innovative customized experiences such as fellowships.
Blending Classroom and Clinical Education
Conflict management education requires the development
of blended classroom-clinical curricula. Academia is essential to the development of new conflict management professionals. The argument for integrating conflict management
studies as a fundamental component of youth education is
in need of reinvigoration. We need to move beyond the
occasional peer mediation program toward creating schoolwide workshops, after-school international conflict management organizations, and negotiation competitions.
One of the few systematic efforts to develop childrenoriented curricula was embodied in the 1993 formation of
the Program for Young Negotiators. The program developed
a curriculum that was funded largely by the Ford Foundation
and selected in 1996 by the U.S. Departments of Education
and Justice as a model program for school-based violence
prevention. Though the program has since disbanded, some
schools have permanently adopted its curricula and learning
tools. It seems fundamentally logical that for children to
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survive, let alone compete, in the global world to come,
they need to understand the basics of negotiation and effective communication as much as they need algebra, physics,
and history.
Innovation at more senior levels of education has been
slow but promising. Assistant professor Robert Bordone of
Harvard Law School’s Program on Negotiation, for example, has recently spearheaded new learning opportunities
through the introduction of the program’s Negotiation and
Mediation Clinical Program. Analogous to traditional law
school clinical advocacy programs, this program approves
only those clinical experiences rich in hands-on efforts
with direct application to the real world. Projects include
partnering with organizations and individuals working in
the field to help clients prepare for upcoming negotiations,
design and deliver negotiation curricula, or conduct assessments and produce recommendations for the development
of institutional dispute resolution mechanisms. The new
University of Oregon Masters Program in Conflict and
Dispute Resolution has also enriched graduate study in the
field by giving practical skill-building equal status with theoretical exploration. In addition to exploring related intellectual connections and producing publication-quality
research, this program’s mission emphasizes “master[ing]
specific skills to manage, transform, or resolve disputes . . .
apply[ing] new knowledge through extensive internship
work, including on-site and program mentoring and evaluation.” The University of Nevada Las Vegas’s William S.
Boyd School of Law Saltman Center, founded in 2003,
similarly includes as part of its mission “to provide law students with a high level of professional training in the theory and practice of dispute resolution.” Such inclusion of
experiential and practice-based learning in affiliation with
traditional educational curricula at all levels of education is
essential to the development of future conflict management professionals.
Professional Development Plans
Professional development plans must be designed in connection with conflict management job opportunities.
Conflict management is a field that seems to require experience to get experience. Internships and jobs are few, and
demand is high. As a result, conflict management organizations often can trade free or inexpensive labor just for a
work credential and the opportunity to observe those
already working in the field. We should instead be looking
for ways to make trades on a wide range of respective interests, investing time in determining how a particular internship or job experience might best be customized to further
an individual’s development.
An intern, for example, might happily provide a day of
administrative tasks for an hour of coaching from someone trying to develop his or her skills as a communication
coach. One way to further develop this idea is in the form
of professional development plans. Helping interns and
employees articulate their interests—the reasons why
they are interested in the field and in a particular job
DISPUTE RESOLUTION MAGAZINE
opportunity—naturally leads to identifying the kinds of
activities they should undertake to meet those interests.
These activities can then be shaped into a generalized or
detailed professional development plan with specific
expectations laid out for the immediate employment
opportunity over a specified length of time. This critically
useful practice may not only help identify points of entry
into conflict management careers, but will identify those
points most likely to further the individual’s specific
interests and objectives.
Fellowships
Where do you start if you want to design a conflict management fellowship designed to foster passion, teach theory,
develop skills, and provide in-the-field experience?
Excellent conflict management experiences centered on
research, typically tied to an academic institution, are
available for those seeking fellowships. For example,
and conferences related to conflict management. The fellows submit final reports to a fellowship advisory board,
conduct campus presentations, and make submissions to
applicable student publications.
Research fellowships also are available outside academia. The United States Institute of Peace grants a senior
fellowship to scholars and professionals for research at
USIP through the Jennings Randolph Fellowship Program.
The program seeks outstanding individuals from around
the world to study issues surrounding international conflict and peace-building. Each year, about 12 fellows are
chosen and awarded up to $80,000 for 10 months’ work
with the Institute of Peace in its Washington, D.C.,
offices. Their tenure with the institute culminates in a
written report on the topic of their research, ranging from
key opportunities for peacemaking to security strategies
for regions of geopolitical important to the United States.
Established in August 2005, the Asia Foundation
Academia is essential to the
development of new conflict
management professionals.
Dan Green, Insight Collaborative’s first Fellow, at Tibet’s Thrangu
Monastery in Qinghai, China, in 2005.
Harvard Law School’s Program on Negotiation graduate
research fellowships facilitate entry into the negotiation
and dispute resolution fields. Encouraging “the next generation of scholars,” these fellowships include a stipend of
$15,000 for one year of dissertation research and writing.
Another academia-driven experience, the Kabak
Fellowship in International Conflict, brings one individual per year to the University of Pittsburgh for the study
of international conflict and conflict resolution through
its Public Policy and Management Program or the
Graduate School for Public and International Affairs.
Eligibility is strictly limited to accomplished individuals
from a preselected country, usually one experiencing
notable political or economic conflict. Kabak Fellows
receive full tuition for the program of their choice, as well
as an annual $18,000 stipend, health insurance, and
round-trip transportation.
Inspired by the events of September 11, 2001, the
Stanford Law School class of 2002 devised a unique class
gift. The Stanford University Class of 2002 Fellowship in
Conflict Resolution limits its applicant pool to those
already within the applicable academy. Administered by
the Martin Daniel Gould Center for Conflict Resolution
Programs, the program awards up to $3,500 a year to an
unrestricted number of Stanford law students supporting
student internships, writing projects, research, fieldwork,
William P. Fuller Fellowship in Conflict Resolution also
provides funding to accomplished individuals for research
in conflict management. Fellows are chosen from among
nominations made by representatives of the Foundation
in its Asia offices to work through various American
institutions to address conflict in the Asia-Pacific region.
While not specifically dedicated to conflict management, the Watson Fellowship, administered by the
Thomas J. Watson Foundation, takes a unique approach
toward developing global-minded citizens. Awarded a
$25,000 stipend ($35,000 if a fellow chooses to travel
with a spouse or dependent), Watson fellows craft their
own course of independent study, to be carried out over
the course of a full year. Fellows are discouraged from
returning to their home countries barring certain emergencies and are encouraged to take this time away from
friends and family to realize the full experience of travel
and study. The selection process draws upon nominees
from participating academic institutions, and once fellowships are awarded, the fellows have significant independence in planning their activities.
Motivated by the lack of notable opportunities for
experiential learning in conflict management, Insight
Collaborative, with which the authors of this article are
affiliated, ultimately formed the Insight Fellowship
Program in 2005. The program provides select individuals
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
57
an unusual opportunity to design a year of conflict management study and practice under the guidance of practicing
conflict management professionals. It targets adults at any
age in transition, typically coming out of undergraduate or
conflict management graduate work. The purpose of an
Insight Fellowship is to “further the practice and study of
effective conflict management while pursuing related humanitarian contributions and self-development.” Each fellow has
access to a $25,000 expense allowance for 12 months. The
first three months of each fellowship are spent working in
the offices of Insight Partners and Insight Collaborative,
where fellows study conflict management theory, finalize
their remaining placements, and begin fund-raising to fulfill
obligations to regenerate funds for future fellows. Currently,
the International Criminal Court in The Hague allows fellows to intern in the office of the chief prosecutor as a second placement. Other placements are arranged by the
fellows directly with support from Insight. Fellows must provide periodic journal entries and present a final written work
on a conflict management theme of their choosing.
Guiding Principles for Fellowship Programs
In the effort to take identification of capable future conflict
management professionals to a new level, our experience
with the Insight Fellowship Program has made it clear that it
is time for the conflict management community to engage in
a conversation about global standards to assess efforts to create effective conflict management learning experiences. It is
not necessary or even preferable to develop uniform guidelines for conflict management experiential learning, but we
are long overdue for a centralized forum in which we share
information and problem solve on what works when trying
to encourage development of the next generation.
Time is what aspiring conflict management professionals
need most from those currently in the field. Mentorship,
content training, skill coaching—all are time intensive. The
solution might be threefold. First, select individuals with the
drive, independence, and interpersonal skills to reach out to
those around them and solicit the necessary attention they
need. Second, draw on the generosity of senior conflict management professionals willing to donate their time to allow
classroom and workshop observations, provide related volunteer opportunities, and think creatively about how to use a
fellow’s presence in the field to further their own research.
Third, expand opportunities for others in the world to contribute to a fellow’s development without significant sacrifices of time. Allowing observation opportunities and
attending occasional fund-raising events (or even simple
financial contributions toward seat-creation or fellowship
placements) are time-unintensive ways to support the development of future conflict management professionals.
We must leave the next generation with the passion,
knowledge, skills and experience to prevent and handle
the conflicts of the future, whether among family members
or nation states. It is essential to develop multipronged
approaches that include classroom-clinical curricula, professional development plans, and customized fellowship
58
SPRING and SUMMER 2008
For contact information related to organizations and
programs specifically referenced in this article, visit
these websites:
• Program for Young Negotiators
www.channing-bete.com/prevention-programs/
program-for-young-negotiators
• Harvard Law School’s PON Harvard
Negotiation and Mediation Clinical Program
www.pon.harvard.edu/education/HNCP.php
• Harvard Law School’s Program on Negotiation
(PON) Graduate Research Fellowships
www.pon.harvard.edu/education/fellowship.php
• University of Oregon Masters in Conflict
and Dispute Resolution
http://conflict.uoregon.edu
• University of Nevada Las Vegas Saltman Center
www.law.unlv.edu/saltman.html
• University of Nevada Las Vegas’s William S.
Boyd School of Law Saltman Center
www.law.unlv.edu/saltman.html
• Stanford University’s Martin Daniel Gould
Center for Conflict Resolution Programs Class
of 2002 Fellowship in Conflict Resolution
www.law.stanford.edu/program/centers/gnmp/
#the_class_of_2002_fellowship_in_conflict_
resolution
• University of Pittsburgh Kabak Fellowship
in International Conflict
www.ucis.pitt.edu/global/kabak
• United States Institute of Peace Jennings
Randolph Fellowship Program
www.usip.org/fellows
• Asia Foundation William P. Fuller Fellowship
in Conflict Resolution
www.asiafoundation.org/Exchanges/fullerfellowship.
html
• Thomas J. Watson Fellowship
www.watsonfellowship.org/site/index.html
• Insight Collaborative Insight Fellowship Program
www.insightcollaborative.org/program.html
opportunities. Framing these experiences with the purposes of furthering the field, helping others, and developing
self is essential to producing conflict management professionals and good global citizens. Tomorrow’s peacemakers
depend on today’s vision. Within the ABA and beyond,
from creating new opportunities to supporting those that
already exist, we must encourage the next generation of
conflict management professionals. ◆
DISPUTE RESOLUTION MAGAZINE
ADR Calendar
ABA Annual Meeting
August 7–8, 2008
New York, New York
Section of Dispute Resolution Programming and Events
Hilton New York
Contact: ABA Section of Dispute Resolution
740 15th St. NW
Washington, D.C. 20005
Telephone: (202) 662-1680
Email: [email protected]
Website: www.abanet.org/dispute
Third International Conference on Transformative Mediation:
New Voices, New Frontiers, New Challenges
August 22–26, 2008
Santa Barbara, California
Institute for the Study of Conflict Transformation
University of California, Santa Barbara
Contact: Institute for the Study of Conflict Transformation
314 Cambridge Street, Stop 8009
Grand Forks, ND 58203
Telephone: (701) 777-2022
Email: [email protected]
Website: www.transformativemediation.org
Mediating the Litigated Case
September 11–13 and 25–27, 2008
Seattle, Washington
Contact: Lori Rushford
Pepperdine School of Law
Straus Institute for Dispute Resolution
Telephone: (310) 506-6342
Email: [email protected]
Website: http://law.pepperdine.edu/straus
Compiled by Thomas J. Campbell. Forward information about your
organization’s regional, national, or international conferences to
[email protected] for possible publication in a future issue.
Diversity
(continued from page 27)
Section’s annual conferences that the membership of the
Section is less diverse than the Council leadership.
Second, despite the efforts to expand the number of
minority neutrals in the United States via the Section’s
annual forum and the Section’s diversity efforts, there
continues to be a serious underrepresentation of minority
and women neutrals in the commercial marketplace. The
Section of Dispute Resolution is uniquely situated,
because of its many influential members in every corner
of the dispute resolution field, to serve as matchmaker for
minority neutrals seeking opportunities.
Finally, the Section and the field of dispute resolution
generally have only begun to focus on the subtle barriers
and subtle forms of discrimination that stand in the way
of full participation in the field. In a recent issue of the
Section’s magazine, all of the contributing authors were
60
SPRING and SUMMER 2008
2008 ACR Annual Conference: Aspirations, Possibilities,
and Realities: Expanding Principles, Practice, and Research
in a Changing World
September 24–27, 2008
Austin, Texas
Hilton Austin
Contact: [email protected]
Association for Conflict Resolution
5151 Wisconsin Avenue, NW, Suite 500
Washington, DC 20016
Phone: (202) 464-9700
Website: www.acrnet.org
Colorado Statewide ADR Conference
October 24, 2008
Denver, Colorado
Renaissance Hotel at Stapleton
CCMO
CBA ADR Section
Office of Dispute Resolution, Colorado State Judicial Branch
Contact: Sharon Daly and Janet Koin Dampeer, Program co-chairs
Email: [email protected];
[email protected]
Website: www.cobar.org/cle/photos/summer/ADR.htm
The Seventh Biennial Conference for Graduate Students Studying
Conflict—Conflict Studies: The New Generation of Ideas
October 31–November 1, 2008
Boston, Massachusetts
University of Massachusetts Boston Graduate Programs in
Dispute Resolution
Contact: UMB Graduate Programs in Conflict Resolution
Wheatley Hall, Room 4-128A
100 Morrissey Blvd.
Boston, Massachussetts 02125-3393
Telephone: (617) 287-7421
Email: [email protected]
Website: www.disres.umb.edu/conference.php
white males. One can be certain that such an arrangement was unintended, but it reflects the reality of what
can occur if attention is not paid to affirmatively seeking
diversity in the Section’s work. The Section should be
setting an example by making sure that people of all
backgrounds are well represented in the Section’s publications and conference workshops. By doing so, the Section
will be sending a message to the legal community and the
dispute resolution community that diversity is one of our
major priorities.
The Section has developed policies designed to foster
a higher level of involvement by minorities and women,
and the Diversity Committee has reached out to the
Section’s Committees. The Section’s intentions are sound,
and its message to new and prospective members is welcoming. But where the rubber meets the road—greater
participation of women and minorities in all aspects of
the Section’s work and in the dispute resolution field—
there are still miles to go on the path ahead. ◆
DISPUTE RESOLUTION MAGAZINE
State and Federal Cases
By Chip Stewart
Supreme Court Says FAA Does Not Permit
Expanded Judicial Review of Awards
he Federal Arbitration Act’s provisions for judicial
review of arbitration awards are exclusive and may
not be modified by agreement, the Supreme Court
ruled in March. However, the court’s opinion expressly
left open other avenues for permitting judicial review of
arbitration awards.
In Hall Street Associates, L.L.C. v. Mattel, Inc. (128 S.
Ct. 1396), the court affirmed the reasoning of the Ninth
Circuit Court of Appeals, which had reversed a District
Court’s vacatur of an arbitration award on grounds that
the arbitrator had incorrectly applied the law.
The parties, in their lease dispute, had agreed that the
District Court “shall vacate, modify or correct any award . . .
where the arbitrator’s conclusions of law are erroneous.”
Justice David Souter, writing for the majority in the 6–3
decision, said this kind of expanded review is not permissible under sections 10 and 11 of the FAA, which allow
vacatur or modification only for certain reasons, such as
fraud or corruption, evident partiality of the arbitrator, or an
arbitrator exceeding his or her powers under the agreement.
Hall Street asked the court to recognize “manifest disregard of the law” as an additional reason for vacatur, following the path of at least four federal circuit courts of appeal.
“Hall Street sees this supposed addition to §10 as the
camel’s nose: if judges can add grounds to vacate (or modify), so can contracting parties,” Souter wrote.
The majority opinion refuted this argument, saying
that while the FAA allows parties to “tailor some, even
many features of arbitration by contract,” the FAA still
has “textual features at odds with enforcing a contract to
expand judicial review following the arbitration.”
However, Souter limited the decision to interpretation
under the FAA, saying that parties could seek “more
searching review” outside of the federal statute.
“The FAA is not the only way into court for parties
wanting review of arbitration awards: they may contemplate enforcement under state statutory or common law,
for example, where judicial review of different scope is
arguable,” Souter wrote. “But here we speak only to the
scope of the expeditious judicial review under §§9, 10,
and 11, deciding nothing about other possible avenues for
judicial enforcement of arbitration awards.”
T
tion under the terms of the contract, the Supreme Court
ruled in February.
In Preston v. Ferrer (128 S. Ct. 978), the court extended its reasoning in Buckeye Check Cashing, Inc. v.
Cardegna (2005) to state administrative agencies, holding
that the section 2 of the Federal Arbitration Act does not
allow Ferrer to escape the terms of the arbitration agreement contained in the contract between him and Arnold
Preston, the attorney.
The issue, Justice Ruth Bader Ginsburg wrote for the
eight-justice majority, was not whether the FAA preempts
the California law wholesale. Rather, the issue was in
which forum should it be decided whether Preston acted
as a “talent agent” or as a “personal manager.”
“In sum, we disapprove the distinction between judicial and administrative proceedings drawn by Ferrer
and adopted by the appeals court,” Ginsburg wrote.
“When parties agree to arbitrate all questions arising
under a contract, the FAA supersedes state laws lodging
primary jurisdiction in another forum, whether judicial or
administrative.”
A California Court of Appeal had denied the motion
of Preston, saying that the labor commissioner had exclusive jurisdiction to hear such disputes. Ferrer argued that
the contract between him and Preston was invalid, and
thus outside the scope of the FAA, because Preston was
not licensed as a talent agent as required by the
California Talent Agencies Act.
Ginsburg also rejected Ferrer’s argument that the
California law “merely postpones arbitration” until after
the labor commissioner hears the case, noting that the
labor commissioner’s decision would likely be “long
delayed,” contradictory to the FAA’s goals of “streamlined
proceedings and expeditious results.”
Justice Clarence Thomas was the only dissenter,
repeating his usual opinion that the FAA does not apply
in state courts. ◆
Chip Stewart is the editor-in-chief of Dispute Resolution
Magazine. He earned his LL.M. in dispute resolution from the
University of Missouri in 2004, and he is an assistant professor at
the Schieffer School of Journalism at Texas Christian University.
He can be contacted at [email protected].
Judge Alex Must Go to Arbitration in
Entertainment Representation Case
Television judge Alex Ferrer, who sought to have the
California Labor Commissioner hear his contract dispute
with an entertainment lawyer, must instead go to arbitra-
D ISP UT E RESOLUTION MAGAZINE
SPRING and SUMMER 2008
61
ADR News
By Thomas J. Campbell
Med Mal Mediation Required in Proposed
Kentucky Legislation
mendments to Kentucky H.B. 8 would require mandatory mediation of all medical malpractice claims
against health care providers. The amendment would
“require that a lawsuit against a health care provider be
submitted to mediation to be held within 180 days after all
responsive pleadings are filed.”
In addition, the bill would shield medical providers from
negative implications of making apologetic statements about
unanticipated medical outcomes resulting from their treatment. Specifically, the amendment calls for the creation of a
new section (Chapter 454) to provide that “in a medical malpractice civil action any statements, affirmations, gestures, or
conduct expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence that
are made by a health care provider or employee of the health
care provider to the alleged victim, relative of the alleged victim, or representative of the alleged victim that relate to the
discomfort, suffering, injury or death of the alleged victim as a
result of unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability.” Should the
amendment pass, Kentucky would join 38 states to enact similar laws. It is believed that such laws encourage health care
practitioners to forthrightly disclose mistakes, thereby bringing errors to light and improving the overall quality of the
health care system by preventing other adverse outcomes.
This development underscores a recent change in
approach in some localities toward admitting medical mistakes in hopes of avoiding lawsuits. In a May 18 New York
Times story (“Doctors Say ‘I’m Sorry’ Before ‘See You in
Court’”), Kevin Sack reported that this has been attempted
with some success at the University of Illinois Medical
Center at Chicago. Johns Hopkins and Stanford are also trying similar approaches. At the University of Michigan, an
experiment with full disclosure led to a drop in claims and
lawsuits, from 262 in August 2001 to 83 in August 2007.
A
High Courts Consider Mediation Confidentiality
The Utah and Georgia Supreme Courts recently considered cases relating to the issue of mediation confidentiality.
In Reese v. Tingey Construction Co. (No. 20060594, Utah,
Feb. 1, 2008), the trial court had directed a lawyer representing a codefendant of Tingey to be deposed regarding the nonconfidential portions of a disputed mediation settlement in a
worker’s compensation/negligence case, but not about other
aspects of the case it had labeled confidential. The Utah
Supreme Court upheld mediation confidentiality by reversing
Thomas J. Campbell is the managing editor of Dispute
Resolution Magazine. He can be reached at campbelt@staff.
abanet.org.
62
SPRING and SUMMER 2008
the trial court on this issue. Chief Justice Christine Durham
wrote in her decision, “If . . . nonconfidential portions of the
mediation include the content, process, conversations, and
agreements of the mediation, it is hard to see what portion of
the mediation would remain confidential.”
In Wilson v. Wilson (No. S07F1201, Ga. Sup. Ct., Nov.
21, 2007), Jonathan Wilson tried to void a trial court’s
final judgment regarding a mediated settlement agreement
in his divorce from his wife, Twyla Wilson. The husband
contested that the trial court made an error when it decided that the agreement was enforceable. He reasoned that
he was not mentally competent because he was depressed
and on medication at the time he signed the agreement,
and did not remember doing so.
Despite the fact that the couple had signed an agreement that all aspects of the mediation would be “absolutely
confidential,” the high court made an exception for the
mediator to testify about his mental condition at the time
of the agreement because the mediator was the only witness and, as Chief Justice Leah Ward Sears explained in
her decision, “the mediator did not testify about specific
confidential statements that Mr. Wilson made during the
mediation, but only testified about his general impression
of Mr. Wilson’s mental and emotional condition, thus
diminishing the potential harm to the values underlying
the privilege of confidentiality in mediation.”
Although the Uniform Mediation Act has not been
adopted in Georgia, the court relied upon the knowledge
that some courts have found that an assertion that a mediated agreement is unenforceable is a de facto waiver of confidentiality, which is an exception that is found in the UMA.
Recent Farm Bill Will Allow Some
Farmers Not to Arbitrate
On May 22, Congress overrode the president’s veto on the
H.R. 2419 (the Food, Conservation and Energy Act of
2008), enacting 14 of 15 Farm Bill titles into law. The
House vote, which took place on May 21, was 316–108.
The Senate vote was 82–13. The veto is only the second
overridden during the Bush presidency.
Title XI of the bill protects certain livestock and poultry
producers from mandatory arbitration clauses in contracts.
Specifically, the bill will give them the ability to decline
arbitration before entering into contracts with processing
companies. It will also stipulate that contracts including
arbitration provisions must disclose the producer’s right to
decline arbitration requirements.
The enactment of this provision could mean that
farmers will no longer be subject to contracts that some
deem abusive. ◆
DISPUTE RESOLUTION MAGAZINE
www.a ba book s .or g
A valuable resource to help you
reach a favorable settlement in civil
litigation through effective mediation
and negotiation strategies.
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MONEY TALK
How to Mediate Insured
Claims and Other
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By J. Anderson Little
2007, 6x9, 270 pages, paper,
Product Code: 4740066
$42.00 regular price;
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“Making Money Talk is a valuable contribution to the conflict field. Andy Little correctly
identifies the weakness in traditional needsbased mediation for quite a wide variety of
cases, yet shows how the basic value of a facilitative, client-centered, process-oriented, communication-focused approach is still essential
to money cases. This guide is well written and
presented—it’s a pleasure to read.”
—Bernie Mayer, Professor, Werner Institute for
Negotiation and Dispute Resolution, Creighton
University, Omaha, NE
Learn how to effectively deal with the peculiar problems of traditional bargaining that you face when negotiating
the settlement of civil litigation cases. This new guide written by an experienced litigator and mediator will help
you understand why negotiations of insured claims are difficult to get started, why they become increasingly
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settled with models and techniques that have been tested in thousands of civil trial court mediations.
With these proven models and techniques—essential for the novice or seasoned professional—you will:
• gain a better understanding of the dynamics of money negotiations
• be able to identify the recurring problems of traditional bargaining
• learn facilitative tools and models to use when positional bargaining is unavoidable
and much more!
For more information or to order this book, visit www.ababooks.org
and search for product code number 4740066 or call 1.800.285.2221.
Illustrations Dan Mazanec
The Lighter Side
Winter 2008 Winners
Spring and Summer 2008
Captioning Contest
By John Barkai
Because most agree that creativity and humor are effective in
resolving disputes, we test our readers’ mettle with an occasional cartoon caption contest.
Submit as many captions for the above illustration as you
wish. Please submit captions promptly to meet our strict publication deadlines. All entries are judged by Professor John
Barkai of the University of Hawaii School of Law, and the
winners will be published in the next edition of Dispute
Resolution Magazine.
Mail, fax, or email your entries to:
Professor John Barkai
University of Hawaii Law School
2515 Dole Street
Honolulu, HI 96822
Fax: 808-956-5569
Email: [email protected]
Chortles Welcome Here
Have a funny ADR anecdote?
The Lighter Side welcomes submissions.
Send them to [email protected].
64
SPRING and SUMMER 2008
Captain, last time we litigated over booty, it cost me
an arm and a leg and you an eye. I say we agree to
arrr-bitrate this time.
—Michael Cortes
If we arrr-bitrate we can use objective crab-teria and
bury your differences, turn the tide, and sail away
with a settlement.
—Stephanie Davis
Pirate 1: He’s a traitor!
Pirate 2: No, he’s an arrr-bi-trator.
—Colleen Tomasov
When the parties drew their swords, the crab knew
he should not have abandoned his facilitative mediation approach and told them what he really thought.
—Kamana Kealoha Kalani Sloat
Because your BATNA and my WATNA seem to
involve melted butter and cocktail sauce, would you
guys consider mediation?
—Kevin Boughman
Ahoy mate! The arbitrator said to split it down
the middle.
—Elizabeth Kent
Captain, I don't think he’s buying it. Swords can't
even persuade him to make the first move in the
negotiation.
—Jade Wong
This is going to be their second treasure they’re losing to me while they were too busy fighting over it.
When are they going to learn?
—Jennifer Shimada
DISPUTE RESOLUTION MAGAZINE
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