Wednesday, December 22, 2010
9/11 Heroes Medical Fund passage
I've been reading all kinds of gleeful, sarcastic comments about how the Republicans "backed down" to allow passage of this bill by Congress. Enough with the gloating. It does little to honor the true 9/11 heroes. Can we just be satisfied that, for once and at last, both D's and R's have done the right thing. The back story of who "backed down" and who "won" seems so petty when measured against the truth of sacrifices made by so many on this generation's "day or infamy."
Sunday, November 9, 2008
Why Mediation Confidentiality Matters
BUMPS IN THE ROAD OF MAINE’S NEW RULE OF EVIDENCE 514:
SUGGESTIONS FOR MEDIATORS, LAWYERS AND THE JUDICIARY
© Jonathan W. Reitman, Esq.
For the past twenty years of my full-time ADR practice, I have confidently said to the parties in mediation something like “Nothing that you say here can be used against you, even if we don’t resolve the dispute today in mediation.”
I felt comfortable giving this assurance, largely because of the breadth of Rule 408 of the Maine Rules of Evidence, which states in part: “Evidence of conduct or statements made in compromise negotiations or in mediation is also not admissible on any substantive issue in the dispute between the parties.”
Similarly, at least since 2002, I have also had the backing of Rule 16B, which states in part: “A neutral who conducts an alternative dispute resolution conference pursuant to this rule, or an alternative dispute resolution process pursuant to subsection (b) (6), shall not, without the informed written consent of the parties, disclose the outcome or disclose any conduct, statements, or other information acquired at or in connection with the ADR conference.”
Grounded in these rules, I would often explain to mediation parties the policy behind confidentiality. I would say something like, “I need you to be as candid and creative with me and with each other as you possibly can, if we’re going to resolve this dispute here and now, today. You probably wouldn’t be so candid if you were worried about whether someone would use your ideas against you later on.”
With the Law Court’s recent enactment of new Rule 514, of the Maine Rules of Evidence (to become effective January 1, 2009), all my confidence in mediation confidentiality has been thrown into question.
The new rule says that “A mediating party has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications.” However, that privilege ONLY applies to a “statement, whether oral or written, between a mediating party or representative of a mediating party and a mediator made outside the presence of others during the course of mediation proceedings [i.e. in a caucus] and that is not intended to be disclosed to third persons.”
In other words, pursuant to the new rule, parties MAY disclose any statements, proposals, thoughts or ideas made by either of them in joint (parties and mediator) session. I can think of innumerable reasons and circumstances under which a party may now claim at trial, “Well you said ‘X’ at mediation and now you’re saying ‘Y’. Which one should we believe?”
In a letter to the Law Court during its consideration of proposed Rule 514, the Maine Association of Mediators warned against the “unintended consequences” of this provision:
The major defect in this proposal is that it pushes participants away from direct negotiation with each other and toward a process focused on separate meetings (usually called the caucus format). The basic underlying strength of mediation is the empowerment of the participants through direct negotiation with each other [emphasis in original] to reach a satisfactory resolution of their dispute. If statements made in the presence of “others” during the course of mediation proceedings are not “confidential communications,” then the content of such direct negotiations will become more guarded and therefore less likely to result in full resolution of the dispute. … mediators will become entangled in the disputants’ subsequent litigation should the mediation not result in settlement and the disputants disagree about what was disclosed in any mediation session where all participants were present.”
Simply put, the loss of confidentiality for joint sessions will reduce the opportunity for parties to talk directly with each other and to talk as openly. Doing away with joint sessions, which have been standard practice in many types of cases (especially divorce and business cases), changes the rules of the game in a way that could make mediation less effective.
The Association approved of the privilege afforded to the mediator under Section (d): “nor shall a mediator be compelled to disclose in any subsequent judicial or administrative proceeding any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation.”
However, the Association noted with disapproval the exception to this mediator protection contained in Subsection (e)(7), which states that a mediator may be compelled to testify about “communications that a court, administrative agency, or arbitrator finds, after a hearing in camera, that the disclosure of which is necessary in the particular case to prevent a manifest injustice, and that the necessity for disclosure is of a sufficient magnitude to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings.” The Association complained that this exception “is a catch-all exception which, like all catch-all exceptions, has the potential to swallow the proposed privilege.”
This exception adds a high degree of uncertainty about whether disclosure of communications in mediation could be compelled at some future point and makes it very difficult to advise parties about their confidentiality rights at the start of mediation. This exception makes it potentially risky for parties to share information and discuss their objectives at mediation.
Oh well. Too bad. The Law Court chose to ignore such dire warnings and enacted the Rule as proposed by the Rules of Evidence Advisory Committee. The mediators had their chance, raised their objections, and were overruled.
So what do we do now? While mindful of the negative way in which unsolicited advice is often received, I nevertheless offer the following respectful suggestions to mediators, counsel for parties in mediation and the judiciary
To Mediators: For those mediating cases under Rule 16B or by agreement of the parties, it is now ESSENTIAL that you ask the parties to sign a basic Agreement to Mediate, in which you explicitly state the reach of confidentiality in mediation.
My Agreement reads in part: “All statements made during the mediation are in the nature of privileged settlement discussions and are not discoverable by either Party or admissible for any purposes in any proceeding. Statements and proposals made by the Parties or Mediator, including admissions made during the course of the mediation, shall not be relied upon or introduced by either Party in any administrative, arbitral or judicial proceeding. The privileged nature of any information is not altered by disclosure to the Mediator.”
My Agreement also asks the parties to agree that “the mediator will not be subpoenaed to disclose information or to testify in any proceeding as to information received or prepared by him or to representations or to proposals made to him or by him during the course of mediation.”
What would happen if, despite their Agreement, a party sought to compel the mediator’s testimony at trial? Colleagues in other states have protected against such a possibility by inserting in their Agreements the following: “It is specifically agreed that breaching this agreement will cause irreparable injury and that monetary damages will be an inadequate remedy, and accordingly, any party to this agreement may obtain an injunction to prevent disclosure of confidential information in violation of this agreement. If any participant breaches this agreement, that participant shall be liable for and shall indemnify the other parties and the Mediator for all reasonable costs, expenses and fees, including attorney’s fees, which may be incurred as a result of such breach.”
Despite the provisions of Rule 514, I see nothing to prohibit the parties from voluntarily agreeing to a contract which explicitly sets forth their expectations of confidentiality. At the very least, if a party later seeks at trial to introduce evidence based on statements at mediation, she must overcome her voluntary agreement to be bound by confidentiality, as contained in an Agreement to Mediate.
Absent such an Agreement, mediators can only offer the parties a diluted sense of confidentiality protection. My historic assurance of confidentiality would have to be modified to say, “Nothing you say today can be used against you, UNLESS you say it in joint session.
Even with such an Agreement, I think it is an open question as to whether you should advise parties in mediation that there is a greater degree of confidentiality when in caucus as opposed to a joint session.
In District Court, where Agreements to Mediate are not used, court (CADRES) mediators may need to start using them or come up with a similar device to counteract their inability to promise confidentiality, in light of Rule 514. Unless such a device is implemented in District Court mediation, the mediators and parties in divorce, small claims and eviction cases will likely be hampered in resolving cases and will be subject to pressure for disclosure and admission of statements made during mediation.
To Attorneys: I suppose my suggestions here will depend on the extent to which counsel see the mediation as a real opportunity to problem solve and resolve the dispute. Of course, some lawyers use mediation as a chance for “cheap discovery,” or to assess the strengths and weaknesses of their adversary’s case, in preparation for the inevitable trial.
My experience, however, is that most Maine lawyers use mediation as a real opportunity to resolve the case. To you, I suggest you have your client sign an Agreement to Mediate which sets out a broad reach of confidentiality. If your mediator doesn’t have one, draft one of your own. Otherwise, mediation has the potential to become a trap for the unwary.
The cautious attorney may also counsel her clients NOT to say anything which might display any weakness in the case, or be deemed as an admission against interest, while in joint session. Save those confidences for a private discussion (caucus) with the mediator. Sadly, this looks like a net loss for mediation as an effective tool.
I suspect that with or without my suggestions, some attorneys in cases which were not resolved in mediation will claim at trial that a “manifest injustice” would occur if they were prevented from introducing evidence of statements made at mediation.
To the Judiciary: Any lawyer treads carefully when making suggestions to the bench. However, I know that the Law Court has recognized the value and efficacy of mediation. I would certainly hope that all Maine judges would similarly recognize that confidentiality in mediation is one of the primary reasons that mediation works as well as it does. Upholding the confidentiality provisions in signed Agreements to Mediate will be critical to maintaining the viability of mediation.
Confusingly, MRE Rule 408 apparently remains in effect; at least, no changes to it have been announced so far. That means that discussion of the new mediation privilege should not even come up unless the issue at stake is not a substantive issue under Rule 408(a).
The “manifest injustice” exception of section (e)(7) tracks some provisions of the Uniform Mediation Act, but does not include the language contained in the UMA, which allows a court to allow evidence of statements made at mediation ONLY if “the evidence is not otherwise available.” Even absent such a provision, I would hope that the judiciary would question counsel carefully about why the proposed mediation evidence could not have been discovered in other ways. And I would hope that even though “manifest injustice” is not defined, the standard for applying the exception would be a true miscarriage of justice, and rarely applied.
Finally, I suggest that the judiciary permit the mediator whose testimony is sought to be present and present argument at the “in camera” hearing in which the judge will consider whether to compel the mediator’s testimony. I suspect the court will discover what most mediators routinely say, that we can’t remember if a particular statement was made in caucus or in joint session. If it was in fact made during a caucus, presumably it will be deemed a “confidential communication” under Rule 514 and the court will never even need to reach the question of whether a “manifest injustice” can only be prevented by compelling the mediator’s testimony.
All of us—mediators, lawyers and judges—are in for a period of adjustment as the new Rule 514 plays itself out. During this period, let us not forget or compromise the benefits often cited for mediation: greater party satisfaction, expedited resolution, and lower costs.
SUGGESTIONS FOR MEDIATORS, LAWYERS AND THE JUDICIARY
© Jonathan W. Reitman, Esq.
For the past twenty years of my full-time ADR practice, I have confidently said to the parties in mediation something like “Nothing that you say here can be used against you, even if we don’t resolve the dispute today in mediation.”
I felt comfortable giving this assurance, largely because of the breadth of Rule 408 of the Maine Rules of Evidence, which states in part: “Evidence of conduct or statements made in compromise negotiations or in mediation is also not admissible on any substantive issue in the dispute between the parties.”
Similarly, at least since 2002, I have also had the backing of Rule 16B, which states in part: “A neutral who conducts an alternative dispute resolution conference pursuant to this rule, or an alternative dispute resolution process pursuant to subsection (b) (6), shall not, without the informed written consent of the parties, disclose the outcome or disclose any conduct, statements, or other information acquired at or in connection with the ADR conference.”
Grounded in these rules, I would often explain to mediation parties the policy behind confidentiality. I would say something like, “I need you to be as candid and creative with me and with each other as you possibly can, if we’re going to resolve this dispute here and now, today. You probably wouldn’t be so candid if you were worried about whether someone would use your ideas against you later on.”
With the Law Court’s recent enactment of new Rule 514, of the Maine Rules of Evidence (to become effective January 1, 2009), all my confidence in mediation confidentiality has been thrown into question.
The new rule says that “A mediating party has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications.” However, that privilege ONLY applies to a “statement, whether oral or written, between a mediating party or representative of a mediating party and a mediator made outside the presence of others during the course of mediation proceedings [i.e. in a caucus] and that is not intended to be disclosed to third persons.”
In other words, pursuant to the new rule, parties MAY disclose any statements, proposals, thoughts or ideas made by either of them in joint (parties and mediator) session. I can think of innumerable reasons and circumstances under which a party may now claim at trial, “Well you said ‘X’ at mediation and now you’re saying ‘Y’. Which one should we believe?”
In a letter to the Law Court during its consideration of proposed Rule 514, the Maine Association of Mediators warned against the “unintended consequences” of this provision:
The major defect in this proposal is that it pushes participants away from direct negotiation with each other and toward a process focused on separate meetings (usually called the caucus format). The basic underlying strength of mediation is the empowerment of the participants through direct negotiation with each other [emphasis in original] to reach a satisfactory resolution of their dispute. If statements made in the presence of “others” during the course of mediation proceedings are not “confidential communications,” then the content of such direct negotiations will become more guarded and therefore less likely to result in full resolution of the dispute. … mediators will become entangled in the disputants’ subsequent litigation should the mediation not result in settlement and the disputants disagree about what was disclosed in any mediation session where all participants were present.”
Simply put, the loss of confidentiality for joint sessions will reduce the opportunity for parties to talk directly with each other and to talk as openly. Doing away with joint sessions, which have been standard practice in many types of cases (especially divorce and business cases), changes the rules of the game in a way that could make mediation less effective.
The Association approved of the privilege afforded to the mediator under Section (d): “nor shall a mediator be compelled to disclose in any subsequent judicial or administrative proceeding any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation.”
However, the Association noted with disapproval the exception to this mediator protection contained in Subsection (e)(7), which states that a mediator may be compelled to testify about “communications that a court, administrative agency, or arbitrator finds, after a hearing in camera, that the disclosure of which is necessary in the particular case to prevent a manifest injustice, and that the necessity for disclosure is of a sufficient magnitude to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings.” The Association complained that this exception “is a catch-all exception which, like all catch-all exceptions, has the potential to swallow the proposed privilege.”
This exception adds a high degree of uncertainty about whether disclosure of communications in mediation could be compelled at some future point and makes it very difficult to advise parties about their confidentiality rights at the start of mediation. This exception makes it potentially risky for parties to share information and discuss their objectives at mediation.
Oh well. Too bad. The Law Court chose to ignore such dire warnings and enacted the Rule as proposed by the Rules of Evidence Advisory Committee. The mediators had their chance, raised their objections, and were overruled.
So what do we do now? While mindful of the negative way in which unsolicited advice is often received, I nevertheless offer the following respectful suggestions to mediators, counsel for parties in mediation and the judiciary
To Mediators: For those mediating cases under Rule 16B or by agreement of the parties, it is now ESSENTIAL that you ask the parties to sign a basic Agreement to Mediate, in which you explicitly state the reach of confidentiality in mediation.
My Agreement reads in part: “All statements made during the mediation are in the nature of privileged settlement discussions and are not discoverable by either Party or admissible for any purposes in any proceeding. Statements and proposals made by the Parties or Mediator, including admissions made during the course of the mediation, shall not be relied upon or introduced by either Party in any administrative, arbitral or judicial proceeding. The privileged nature of any information is not altered by disclosure to the Mediator.”
My Agreement also asks the parties to agree that “the mediator will not be subpoenaed to disclose information or to testify in any proceeding as to information received or prepared by him or to representations or to proposals made to him or by him during the course of mediation.”
What would happen if, despite their Agreement, a party sought to compel the mediator’s testimony at trial? Colleagues in other states have protected against such a possibility by inserting in their Agreements the following: “It is specifically agreed that breaching this agreement will cause irreparable injury and that monetary damages will be an inadequate remedy, and accordingly, any party to this agreement may obtain an injunction to prevent disclosure of confidential information in violation of this agreement. If any participant breaches this agreement, that participant shall be liable for and shall indemnify the other parties and the Mediator for all reasonable costs, expenses and fees, including attorney’s fees, which may be incurred as a result of such breach.”
Despite the provisions of Rule 514, I see nothing to prohibit the parties from voluntarily agreeing to a contract which explicitly sets forth their expectations of confidentiality. At the very least, if a party later seeks at trial to introduce evidence based on statements at mediation, she must overcome her voluntary agreement to be bound by confidentiality, as contained in an Agreement to Mediate.
Absent such an Agreement, mediators can only offer the parties a diluted sense of confidentiality protection. My historic assurance of confidentiality would have to be modified to say, “Nothing you say today can be used against you, UNLESS you say it in joint session.
Even with such an Agreement, I think it is an open question as to whether you should advise parties in mediation that there is a greater degree of confidentiality when in caucus as opposed to a joint session.
In District Court, where Agreements to Mediate are not used, court (CADRES) mediators may need to start using them or come up with a similar device to counteract their inability to promise confidentiality, in light of Rule 514. Unless such a device is implemented in District Court mediation, the mediators and parties in divorce, small claims and eviction cases will likely be hampered in resolving cases and will be subject to pressure for disclosure and admission of statements made during mediation.
To Attorneys: I suppose my suggestions here will depend on the extent to which counsel see the mediation as a real opportunity to problem solve and resolve the dispute. Of course, some lawyers use mediation as a chance for “cheap discovery,” or to assess the strengths and weaknesses of their adversary’s case, in preparation for the inevitable trial.
My experience, however, is that most Maine lawyers use mediation as a real opportunity to resolve the case. To you, I suggest you have your client sign an Agreement to Mediate which sets out a broad reach of confidentiality. If your mediator doesn’t have one, draft one of your own. Otherwise, mediation has the potential to become a trap for the unwary.
The cautious attorney may also counsel her clients NOT to say anything which might display any weakness in the case, or be deemed as an admission against interest, while in joint session. Save those confidences for a private discussion (caucus) with the mediator. Sadly, this looks like a net loss for mediation as an effective tool.
I suspect that with or without my suggestions, some attorneys in cases which were not resolved in mediation will claim at trial that a “manifest injustice” would occur if they were prevented from introducing evidence of statements made at mediation.
To the Judiciary: Any lawyer treads carefully when making suggestions to the bench. However, I know that the Law Court has recognized the value and efficacy of mediation. I would certainly hope that all Maine judges would similarly recognize that confidentiality in mediation is one of the primary reasons that mediation works as well as it does. Upholding the confidentiality provisions in signed Agreements to Mediate will be critical to maintaining the viability of mediation.
Confusingly, MRE Rule 408 apparently remains in effect; at least, no changes to it have been announced so far. That means that discussion of the new mediation privilege should not even come up unless the issue at stake is not a substantive issue under Rule 408(a).
The “manifest injustice” exception of section (e)(7) tracks some provisions of the Uniform Mediation Act, but does not include the language contained in the UMA, which allows a court to allow evidence of statements made at mediation ONLY if “the evidence is not otherwise available.” Even absent such a provision, I would hope that the judiciary would question counsel carefully about why the proposed mediation evidence could not have been discovered in other ways. And I would hope that even though “manifest injustice” is not defined, the standard for applying the exception would be a true miscarriage of justice, and rarely applied.
Finally, I suggest that the judiciary permit the mediator whose testimony is sought to be present and present argument at the “in camera” hearing in which the judge will consider whether to compel the mediator’s testimony. I suspect the court will discover what most mediators routinely say, that we can’t remember if a particular statement was made in caucus or in joint session. If it was in fact made during a caucus, presumably it will be deemed a “confidential communication” under Rule 514 and the court will never even need to reach the question of whether a “manifest injustice” can only be prevented by compelling the mediator’s testimony.
All of us—mediators, lawyers and judges—are in for a period of adjustment as the new Rule 514 plays itself out. During this period, let us not forget or compromise the benefits often cited for mediation: greater party satisfaction, expedited resolution, and lower costs.
Thursday, October 16, 2008
Case Study in Community Mediation
Mediators as Damage Control Experts: A Case Study of a “Successful” Community Mediation
What makes for “success” when a divisive community issue is mediated? Here’s a case study that may shed light on that question.
Every experienced mediator I know has developed an individual style. The mediator’s opening statement, our use of caucuses (or not), the degree of evaluation with which we are comfortable, and effective techniques for moving through impasse—all of these are part of the mediator’s toolbox and they reflect our chosen (or default) style.
It’s not that we don’t ever vary our style, depending on the needs of the parties in a particular case. In fact, skillful mediators may use what appear to be contradictory styles in different cases. We’re a pragmatic bunch, and for many of us the “whatever works” rule best captures the elements of our style.
Every once in a while, however, a conflict comes along which challenges all aspects of your style, your assumptions about what mediation is, how it should be structured, how “success” can be defined, and your role in it. I had such a case not long ago.
The matter involved the termination of a much-beloved Childrens’ Librarian at a community library. She had been employed for 23 years, and had been widely recognized in her community for “turning on” an entire generation of young people to the joys of reading. For various reasons, she was terminated by the Library Director, and her discharge was affirmed by the Library’s Board of Directors.
A community tumult ensued—daily letters to the editor of the local paper, heated conversations in coffee shops and on Main Street, threats to eliminate library funding from the surrounding communities. This was a clearly a library and a community in crisis.
Because the furor was escalating, the Library’s Corporators (the legal entity which governed the Library) met and, after much debate, voted to pursue “mediation” by a “neutral mediator” as a way to resolve the conflict. Sounds good, yes? But the motion which endorsed “mediation” also directed the mediation to pursue “fact finding” about personnel policies generally at the Library, and to “make decisions” about whether the discharged employee should get her job back. Moreover, the governing body appointed four Corporators and four members of the Board of Trustees to act as a Mediation Team which would hire the neutral mediator and work with him.
It didn’t sound like any mediation model I’d ever learned or even heard of!
The “Mediation Team” hired me as the neutral mediator. In our first discussion we tried to define the issues which were to be mediated, given the broad charge of the Corporators’ motion. We also discussed what they saw as their role and my role in this mediation process. Some of them felt that all 9 of us should convene a “mediation” to give the principals in the dispute (the employee and Director) an opportunity to express their views directly to the Mediation Team. These people also felt the mediation should allow anyone from the community who deemed themselves a “stakeholder” to speak directly with the Mediation Team.
Now, I am as flexible as the next mediator, but I foresaw that these visions of mediation could consume enormous amounts of time, deepen already existing divisions, and not really conclude the mediation process with a solution that would be defined as a “success”: one that was broadly acceptable, would promote some healing in the community, and give some closure to an ongoing dispute.
It was time to get creative.
The Mediation Team and I agreed to hold a community “listening session” in which anyone from the community who wanted to was encouraged to share whatever they felt it was important for the Mediation Team and the neutral mediator to know as we undertook this mediation process. The 75 people who attended (and those who couldn’t make it but who watched the repeated showings on the community TV cable station) were also encouraged to share their thoughts via email with me. While I had some trepidation about giving out my email in such a public forum, that mode of communication proved very useful, and drew out comments from some who were nervous about sharing their ideas publicly on such a controversial issue.
The Mediation Team asked me to begin by conducting “assessment interviews” with the obvious stakeholders: the principals in the dispute, current and former members of the Board of Trustees, current and former employees, and anyone from the community who wanted to speak directly with me. Those interviews were held with a modified promise of confidentiality: I would not attribute a particular statement to any one individual, but I would use the information people provided to help the Mediation Team begin to shape some recommendations which the parties might find acceptable.
Was I straying from any recognizable model of mediation? Or did “success” in this case require me to balance efficiency with the need to provide self-identified stakeholders an opportunity to be heard? As I said at the listening session, “We’re trying to make this as interactive a process as possible while still keeping it manageable.”
With guidance from the Mediation Team, I also met extensively and individually with the two principals, and conducted a joint session with them both. That joint session was a typical “mediation,” which included presentations by both sides, and private caucuses with each in which various options were explored. It was atypical in the sense that both parties understood that the mediator would convey their respective positions and interests to the Mediation Team. In the end, they were unable to reach agreement, but the session provided the chance for them to have a long overdue conversation with one another about the background of the dispute.
Equally important, I left those individual and joint sessions with a sense of what each of the principals would like to see as a resolution, and what each might find minimally acceptable. That was critical information which I shared with the Mediation Team. When integrated with the comments they were hearing directly from the public (which they shared with one another), it informed their views of resolution.
They engaged in vigorous debate with one another and listened carefully to each others’ ideas. At times I met with the four corporators and the four trustees in private caucuses, and carried proposals back and forth. This was ground on which I felt quite comfortable. In a sense, the two groups of four became the “parties.” They were the ones who engaged in a “facilitated negotiation,” which is one definition of mediation.
Slowly, piece by piece, over a series of nine meetings consuming almost 30 hours, the Mediation Team began to assemble a comprehensive set of recommendations, which addressed the immediate personnel issue, but also recommended actions specifically designed to restore the trust of the surrounding communities in the Library. At that point, the internal workings of the Mediation Team could be deemed a “success,” but it was now time to go public.
After sharing the proposed recommendations privately with the principals and the Board of Trustees (which adopted them on a split vote), the Mediation Team publicly released its report to the local newspapers, in preparation for a public corporators meeting, which was the final step required for final resolution.
The result of the mediation was now available for community debate and was published on the newspaper’s website:
http://www.timesrecord.com/website/main.nsf/news.nsf/0/A34005081F7663300525740F00769082?Opendocument (March 17, 2008)
When he saw the article describing the process and the result, a long time friend and fellow mediator from another state immediately emailed me with his concern:
“We all know that the media has a history of misunderstanding the mediation process,” he wrote. “This article describes the mediation process as one led by a committee formed to evaluate and recommend an outcome as determined by the Committee. My main concern is that this report conveys an inaccurate picture about what mediation is.”
Was my friend right? Did the process which evolved in this case “convey an inaccurate picture about what mediation is?”
It certainly wasn’t like any classical mediation model I had ever been taught. It required me to deviate from my usual style, in which I like to fly under the radar, out of the glare of public debate and opinion. It forced my creative energy to the edge of my comfort zone, and beyond. During much of the process, I was guided by my intuitive sense of what might be the next right action, and by the collective wisdom of my fellow mediators.
The mediated settlement would only be “successful” if the Corporators (who had referred the case to mediation in the first place) accepted it. After a three-hour public meeting, the Mediation Team’s final recommendations were accepted by the Corporators, 49-21. In an editorial a few days later, a local newspaper opined:
“Mediators aren't enlisted to solve problems with ready solutions. They're damage-control experts who strive to mitigate impasses before the weight of conflict obscures the issues at the heart of the dispute and crush all involved parties.
”In mediation, fairness does not necessarily equate to justice. The outcome rarely satisfies anyone completely. In most cases, the most realistic goal of mediation is to defuse disagreement to a point where the disputants can get on with their lives. “[Here] the negotiated settlement represents a good-faith effort to disentangle the library from the web of controversy that has gripped it since September 2007 and to move forward.”
I never thought of myself as a “damage control expert.” That’s not a phrase I’ve ever used in the ADR law school courses or 40-hour mediation courses I have taught over the years. And yet, if I can prevent parties from being “crushed by the weight of their conflict,” and allow them to “get on with their lives,” perhaps that’s as good a definition of “success” as there is.
I can understand how my friends and fellow mediators might feel I violated the purity of our model in several ways in this case. In all honesty, I wasn’t always sure I was right. The path to “success” is not always clearly defined.
But the prime directive for mediators, like physicians, is “Do no Harm.” Here, by designing an organic process with my fellow mediators, which seemed to meet the genuine needs of the community, I think we moved beyond this minimal standard, to provide some much-needed healing and relief to a community institution in crisis.
I’ll leave it up to others to decide whether, in the end, it was a “successful” community mediation.
What makes for “success” when a divisive community issue is mediated? Here’s a case study that may shed light on that question.
Every experienced mediator I know has developed an individual style. The mediator’s opening statement, our use of caucuses (or not), the degree of evaluation with which we are comfortable, and effective techniques for moving through impasse—all of these are part of the mediator’s toolbox and they reflect our chosen (or default) style.
It’s not that we don’t ever vary our style, depending on the needs of the parties in a particular case. In fact, skillful mediators may use what appear to be contradictory styles in different cases. We’re a pragmatic bunch, and for many of us the “whatever works” rule best captures the elements of our style.
Every once in a while, however, a conflict comes along which challenges all aspects of your style, your assumptions about what mediation is, how it should be structured, how “success” can be defined, and your role in it. I had such a case not long ago.
The matter involved the termination of a much-beloved Childrens’ Librarian at a community library. She had been employed for 23 years, and had been widely recognized in her community for “turning on” an entire generation of young people to the joys of reading. For various reasons, she was terminated by the Library Director, and her discharge was affirmed by the Library’s Board of Directors.
A community tumult ensued—daily letters to the editor of the local paper, heated conversations in coffee shops and on Main Street, threats to eliminate library funding from the surrounding communities. This was a clearly a library and a community in crisis.
Because the furor was escalating, the Library’s Corporators (the legal entity which governed the Library) met and, after much debate, voted to pursue “mediation” by a “neutral mediator” as a way to resolve the conflict. Sounds good, yes? But the motion which endorsed “mediation” also directed the mediation to pursue “fact finding” about personnel policies generally at the Library, and to “make decisions” about whether the discharged employee should get her job back. Moreover, the governing body appointed four Corporators and four members of the Board of Trustees to act as a Mediation Team which would hire the neutral mediator and work with him.
It didn’t sound like any mediation model I’d ever learned or even heard of!
The “Mediation Team” hired me as the neutral mediator. In our first discussion we tried to define the issues which were to be mediated, given the broad charge of the Corporators’ motion. We also discussed what they saw as their role and my role in this mediation process. Some of them felt that all 9 of us should convene a “mediation” to give the principals in the dispute (the employee and Director) an opportunity to express their views directly to the Mediation Team. These people also felt the mediation should allow anyone from the community who deemed themselves a “stakeholder” to speak directly with the Mediation Team.
Now, I am as flexible as the next mediator, but I foresaw that these visions of mediation could consume enormous amounts of time, deepen already existing divisions, and not really conclude the mediation process with a solution that would be defined as a “success”: one that was broadly acceptable, would promote some healing in the community, and give some closure to an ongoing dispute.
It was time to get creative.
The Mediation Team and I agreed to hold a community “listening session” in which anyone from the community who wanted to was encouraged to share whatever they felt it was important for the Mediation Team and the neutral mediator to know as we undertook this mediation process. The 75 people who attended (and those who couldn’t make it but who watched the repeated showings on the community TV cable station) were also encouraged to share their thoughts via email with me. While I had some trepidation about giving out my email in such a public forum, that mode of communication proved very useful, and drew out comments from some who were nervous about sharing their ideas publicly on such a controversial issue.
The Mediation Team asked me to begin by conducting “assessment interviews” with the obvious stakeholders: the principals in the dispute, current and former members of the Board of Trustees, current and former employees, and anyone from the community who wanted to speak directly with me. Those interviews were held with a modified promise of confidentiality: I would not attribute a particular statement to any one individual, but I would use the information people provided to help the Mediation Team begin to shape some recommendations which the parties might find acceptable.
Was I straying from any recognizable model of mediation? Or did “success” in this case require me to balance efficiency with the need to provide self-identified stakeholders an opportunity to be heard? As I said at the listening session, “We’re trying to make this as interactive a process as possible while still keeping it manageable.”
With guidance from the Mediation Team, I also met extensively and individually with the two principals, and conducted a joint session with them both. That joint session was a typical “mediation,” which included presentations by both sides, and private caucuses with each in which various options were explored. It was atypical in the sense that both parties understood that the mediator would convey their respective positions and interests to the Mediation Team. In the end, they were unable to reach agreement, but the session provided the chance for them to have a long overdue conversation with one another about the background of the dispute.
Equally important, I left those individual and joint sessions with a sense of what each of the principals would like to see as a resolution, and what each might find minimally acceptable. That was critical information which I shared with the Mediation Team. When integrated with the comments they were hearing directly from the public (which they shared with one another), it informed their views of resolution.
They engaged in vigorous debate with one another and listened carefully to each others’ ideas. At times I met with the four corporators and the four trustees in private caucuses, and carried proposals back and forth. This was ground on which I felt quite comfortable. In a sense, the two groups of four became the “parties.” They were the ones who engaged in a “facilitated negotiation,” which is one definition of mediation.
Slowly, piece by piece, over a series of nine meetings consuming almost 30 hours, the Mediation Team began to assemble a comprehensive set of recommendations, which addressed the immediate personnel issue, but also recommended actions specifically designed to restore the trust of the surrounding communities in the Library. At that point, the internal workings of the Mediation Team could be deemed a “success,” but it was now time to go public.
After sharing the proposed recommendations privately with the principals and the Board of Trustees (which adopted them on a split vote), the Mediation Team publicly released its report to the local newspapers, in preparation for a public corporators meeting, which was the final step required for final resolution.
The result of the mediation was now available for community debate and was published on the newspaper’s website:
http://www.timesrecord.com/website/main.nsf/news.nsf/0/A34005081F7663300525740F00769082?Opendocument (March 17, 2008)
When he saw the article describing the process and the result, a long time friend and fellow mediator from another state immediately emailed me with his concern:
“We all know that the media has a history of misunderstanding the mediation process,” he wrote. “This article describes the mediation process as one led by a committee formed to evaluate and recommend an outcome as determined by the Committee. My main concern is that this report conveys an inaccurate picture about what mediation is.”
Was my friend right? Did the process which evolved in this case “convey an inaccurate picture about what mediation is?”
It certainly wasn’t like any classical mediation model I had ever been taught. It required me to deviate from my usual style, in which I like to fly under the radar, out of the glare of public debate and opinion. It forced my creative energy to the edge of my comfort zone, and beyond. During much of the process, I was guided by my intuitive sense of what might be the next right action, and by the collective wisdom of my fellow mediators.
The mediated settlement would only be “successful” if the Corporators (who had referred the case to mediation in the first place) accepted it. After a three-hour public meeting, the Mediation Team’s final recommendations were accepted by the Corporators, 49-21. In an editorial a few days later, a local newspaper opined:
“Mediators aren't enlisted to solve problems with ready solutions. They're damage-control experts who strive to mitigate impasses before the weight of conflict obscures the issues at the heart of the dispute and crush all involved parties.
”In mediation, fairness does not necessarily equate to justice. The outcome rarely satisfies anyone completely. In most cases, the most realistic goal of mediation is to defuse disagreement to a point where the disputants can get on with their lives. “[Here] the negotiated settlement represents a good-faith effort to disentangle the library from the web of controversy that has gripped it since September 2007 and to move forward.”
I never thought of myself as a “damage control expert.” That’s not a phrase I’ve ever used in the ADR law school courses or 40-hour mediation courses I have taught over the years. And yet, if I can prevent parties from being “crushed by the weight of their conflict,” and allow them to “get on with their lives,” perhaps that’s as good a definition of “success” as there is.
I can understand how my friends and fellow mediators might feel I violated the purity of our model in several ways in this case. In all honesty, I wasn’t always sure I was right. The path to “success” is not always clearly defined.
But the prime directive for mediators, like physicians, is “Do no Harm.” Here, by designing an organic process with my fellow mediators, which seemed to meet the genuine needs of the community, I think we moved beyond this minimal standard, to provide some much-needed healing and relief to a community institution in crisis.
I’ll leave it up to others to decide whether, in the end, it was a “successful” community mediation.
Monday, November 5, 2007
Is there "mediator's fatigue"?
For the past seventeen years I have worked and trained in international conflict situations, with workshop participants from South Africa, Bosnia, Serbia, Syria, Palestine, Israel, the Philippines, and Nepal, among other countries. So I am no stranger to chronic, seemingly intractable conflicts and the deep wounds and vulnerabilities they often produce, or to the strident, angry rhetoric which is often expressed in conflict resolution trainings. It gets hot in the room. That’s a given, and I have sometimes found it difficult to return from these foreign venues, to reintegrate into my domestic practice and life.
But nothing prepared me for what I experienced after teaching for seven weeks in Israel and Palestine during the summer of 2006, when I lived in a militarized zone during the active shooting war between Lebanon and Israel.
On the surface, I was teaching a graduate course in Negotiation, Mediation and Conflict Management to 125 Israelis and Palestinians. I was also training Israeli, Arab, Druze and Christian community mediators.
Beneath the surface, I was having long conversations with my Haifa students who were sleeping in bomb shelters, I was living in an area that was constantly threatened with Katyusha rockets, I was visiting impromptu memorials where Israeli soldiers had been killed only days before, and witnessing the scarred earth resulting from wildfires incited by rocket attacks across the border.
When I came home I found myself withdrawing (my wife called it “distancing”). My friends told me my voice sounded hollow, unconnected to my feelings. I found myself minimizing the summer’s events (“it wasn’t so bad, life goes on”), just so I could survive the onslaught to my system. I experienced a decrease in compassion for my “regular” parties (“They don’t know what REAL conflict is like!”). I had violent dreams and, for the first time in seven years working in the Middle East, I had a sense of hopelessness, believing that nothing will change, that nothing can help.
Through my own research, I came to understand that I was experiencing “Compassion Fatigue,” or what the medical profession calls Secondary Post Traumatic Stress Disorder. This phenomenon, first officially diagnosed in 1995 (and studied much more intensively after 9/11), is a complex of symptoms resulting from working closely with and showing compassion for people whose suffering is ongoing and unresolvable. It can affect many life areas: cognitive, emotional, behavioral, spiritual, personal relationships, physical/somatic and work performance. People’s symptoms can be very diverse. They can be constant, come and go, or occur in clusters.
Interestingly, Compassion Fatigue has been studied in therapists, physicians, first responders, family caregivers, animal rescue workers and chaplains who work with veterans. To date, however, no one has studied, or even hypothesized, that Compassion Fatigue may deeply affect mediators. Why not?
As I began my exploration of this topic, I thought about (and encourage readers to think about) how we are exposed to traumatic stories told by parties in mediation on a regular basis. Mediations as commonplace as divorce can trigger deep emotional wounds in the parties and, if we have created a safe enough environment, they are not shy about pouring out their hearts to us. Eviction cases, property issues, victim-offender mediations, labor-management situations and even commercial disputes—all of these may provoke traumatic experiences for the parties. If we’re doing our job and remaining “present,” we mediators often feel deep feelings of empathy and sorrow for the parties’ suffering.
In workshops at NEACR last spring and ACR this fall, I have been asking mediators what they experience when they are exposed day after day, mediation after mediation, to the trauma that parties experience. Most agree that it is not wrong to feel compassion, as long as they maintain sufficient detachment to do their work.
But there’s the cutting edge. How can mediators take care of ourselves, so that we don’t retreat into cynicism or despair, despite the traumatic words we hear each day? Here are some of the things mediators do which they find helpful: writing about the experience (as I am doing here), exercising, using humor in appropriate ways, getting sufficient rest, talking with their significant other or peers about the case (while of course preserving confidentiality), or turning to prayer or other spiritual practice..
Most of all, it’s important to realize that if you find yourself experiencing “Mediator’s Fatigue,” you’re not crazy. Seek professional help if your reaction feels too strong to handle on your own or with your loved ones or friends.
But nothing prepared me for what I experienced after teaching for seven weeks in Israel and Palestine during the summer of 2006, when I lived in a militarized zone during the active shooting war between Lebanon and Israel.
On the surface, I was teaching a graduate course in Negotiation, Mediation and Conflict Management to 125 Israelis and Palestinians. I was also training Israeli, Arab, Druze and Christian community mediators.
Beneath the surface, I was having long conversations with my Haifa students who were sleeping in bomb shelters, I was living in an area that was constantly threatened with Katyusha rockets, I was visiting impromptu memorials where Israeli soldiers had been killed only days before, and witnessing the scarred earth resulting from wildfires incited by rocket attacks across the border.
When I came home I found myself withdrawing (my wife called it “distancing”). My friends told me my voice sounded hollow, unconnected to my feelings. I found myself minimizing the summer’s events (“it wasn’t so bad, life goes on”), just so I could survive the onslaught to my system. I experienced a decrease in compassion for my “regular” parties (“They don’t know what REAL conflict is like!”). I had violent dreams and, for the first time in seven years working in the Middle East, I had a sense of hopelessness, believing that nothing will change, that nothing can help.
Through my own research, I came to understand that I was experiencing “Compassion Fatigue,” or what the medical profession calls Secondary Post Traumatic Stress Disorder. This phenomenon, first officially diagnosed in 1995 (and studied much more intensively after 9/11), is a complex of symptoms resulting from working closely with and showing compassion for people whose suffering is ongoing and unresolvable. It can affect many life areas: cognitive, emotional, behavioral, spiritual, personal relationships, physical/somatic and work performance. People’s symptoms can be very diverse. They can be constant, come and go, or occur in clusters.
Interestingly, Compassion Fatigue has been studied in therapists, physicians, first responders, family caregivers, animal rescue workers and chaplains who work with veterans. To date, however, no one has studied, or even hypothesized, that Compassion Fatigue may deeply affect mediators. Why not?
As I began my exploration of this topic, I thought about (and encourage readers to think about) how we are exposed to traumatic stories told by parties in mediation on a regular basis. Mediations as commonplace as divorce can trigger deep emotional wounds in the parties and, if we have created a safe enough environment, they are not shy about pouring out their hearts to us. Eviction cases, property issues, victim-offender mediations, labor-management situations and even commercial disputes—all of these may provoke traumatic experiences for the parties. If we’re doing our job and remaining “present,” we mediators often feel deep feelings of empathy and sorrow for the parties’ suffering.
In workshops at NEACR last spring and ACR this fall, I have been asking mediators what they experience when they are exposed day after day, mediation after mediation, to the trauma that parties experience. Most agree that it is not wrong to feel compassion, as long as they maintain sufficient detachment to do their work.
But there’s the cutting edge. How can mediators take care of ourselves, so that we don’t retreat into cynicism or despair, despite the traumatic words we hear each day? Here are some of the things mediators do which they find helpful: writing about the experience (as I am doing here), exercising, using humor in appropriate ways, getting sufficient rest, talking with their significant other or peers about the case (while of course preserving confidentiality), or turning to prayer or other spiritual practice..
Most of all, it’s important to realize that if you find yourself experiencing “Mediator’s Fatigue,” you’re not crazy. Seek professional help if your reaction feels too strong to handle on your own or with your loved ones or friends.
Thursday, August 30, 2007
How to deal with slow times
There are times when I have so much work in my ADR practice it sems I can't possibly get it all done. You know the drill-- you work nights and/or weekends because that's when the parties are available. Or you're praparing for a new round of training you're delivering. Or you're writing an article for a journal or newsletter. You work a minimum of 6 days/week. The phone keeps ringing and you keep saying yes. It's nice to be appreciated.
And then there are times....when the big projects that sustained you the last two years have concluded (successfully, of course), when it's mid-August and everyone is on vacation. No one is thinking about setting up that new program or scheduling mediations. The phone doesn't ring for a few days. The only thing in the mailbox are bills.
Based on my 20+ years in the field, it's during those "slow" times that our spirit is most tested. Sure, we can always fill those time with all the house/garden projects we've put off for so long. Or plan that upcoming vacation in the Southwest. Staying busy is easy.
But I have also come to think of those slow times as unique opportunities-- to make that call to an old friend/colleague you haven't seen for months or years. To visit that dear one in the hospital. To schedule lunch with a potential source of referrals. To add thoughts and postings to your blog. Everything has a rhythym, including your workload.
How do you deal with the ups and downs of your practice?
And then there are times....when the big projects that sustained you the last two years have concluded (successfully, of course), when it's mid-August and everyone is on vacation. No one is thinking about setting up that new program or scheduling mediations. The phone doesn't ring for a few days. The only thing in the mailbox are bills.
Based on my 20+ years in the field, it's during those "slow" times that our spirit is most tested. Sure, we can always fill those time with all the house/garden projects we've put off for so long. Or plan that upcoming vacation in the Southwest. Staying busy is easy.
But I have also come to think of those slow times as unique opportunities-- to make that call to an old friend/colleague you haven't seen for months or years. To visit that dear one in the hospital. To schedule lunch with a potential source of referrals. To add thoughts and postings to your blog. Everything has a rhythym, including your workload.
How do you deal with the ups and downs of your practice?
Monday, August 27, 2007
Thanks to the Global Negotiation Project
I'm currently in Tel Aviv, Israel, where I teach Arab and Jewish graduate students Negotiation, Mediation and Conflict Management. I am sure that many of you also teach these subjects at various levels, so I want to share an assignment I gave my students which has proved very successful. Dr. Josh Weiss, director of the Harvard's Global Negotiation Project, has a website at www.negotiationtip.com. On it he has a weekly negotiation tip. He also has listed several dozen podcasts, which are mini-lectures (3-5 minutes) on many topics of interest (e.g. how to negotiate with your boss). I have my students listen to a podcast of their choosing and then write me a short paper summarizing what they learned and their reaction to it. They seem to enjoy it and learn a lot. Thank you, Josh, for sharing your insights so broadly.
July 11, 2007 10:31 AM
July 11, 2007 10:31 AM
Reflections on Palestine-- Your thoughts?
While teaching in Israel this summer, I spent several days in the West Bank (the Hebron area) visiting with current and former students. I was there on the day Israel released 240 prisoners from its jails. There was great celebrations, much gunfire shooting in the air, many parties with fabulous sweets. Among the Palestinians with whom I spoke, Israel gets little credit for this prisoner release, becauae they say there are still 10,000 Palestinians in Israeli jails. Many of these are undoubtedly imprisoned for acts of terror, but I have heard stories from many Palestinians that they were arrested and imprisoned for such relatively innocuous acts such as non-violently demonstrating against the Israeli occupation while they were college students in the West Bank.
It takes about 3 hours to get from Jerusalem to Hebron, what with switching cars to Palestinian taxis, and negotiating the Israeli checkpoints. If one were to drive straight, it might take 45 minutes. My students live in Hebron and work in East Jerusalem. To get to my class in Tel Aviv, it takes them almost 5 hours. They often spend the night in Jerusalem (Al Kuds) to avoid the lengthy transportation process.
Perhaps because I held the esteemed position of being a professor, perhaps because I came with an open heart, perhaps because I was genuinely curious, I was welcomed into the homes and businesses of every Palestinian I met. Their hospitality was astounding-- people who have very little material wealth offered me the luxury of a meat meal (something they eat only once a month) and endless glasses of hot tea (sweetened with Palestinian honey). They sent me back to Tel Aviv with bags of sweet cucumbers, and quarts of local olive oil (decanted from a 250 gallon tank in the garage). It struck me that this level of generosity is a cultural trait I have often experienced among Israelis as well. One of the many things they have in common.
Of course I had many political discussions with West Bank Palestinians, as I have had with hundreds of Israelis over the years. My overwhelming conclusion? Despite the widespread anger at Israel for the humilation suffered at military checkpoints and the expansion of Israeli settlements on "Palestinian" land, which they see as a cause of much of their impoverishment, the vast majority of Palestinians with whom I spoke long for a "normal life"-- one in which they are able to obtain employment and improve their economic status, one in which their children have expanded educational opportunities, one in which they are able to travel freely within their own country. This if the mirror image of the longings of the vast majority of Israelis.
More reflections to follow, but I invite your responses to these initiatial thoughts.
It takes about 3 hours to get from Jerusalem to Hebron, what with switching cars to Palestinian taxis, and negotiating the Israeli checkpoints. If one were to drive straight, it might take 45 minutes. My students live in Hebron and work in East Jerusalem. To get to my class in Tel Aviv, it takes them almost 5 hours. They often spend the night in Jerusalem (Al Kuds) to avoid the lengthy transportation process.
Perhaps because I held the esteemed position of being a professor, perhaps because I came with an open heart, perhaps because I was genuinely curious, I was welcomed into the homes and businesses of every Palestinian I met. Their hospitality was astounding-- people who have very little material wealth offered me the luxury of a meat meal (something they eat only once a month) and endless glasses of hot tea (sweetened with Palestinian honey). They sent me back to Tel Aviv with bags of sweet cucumbers, and quarts of local olive oil (decanted from a 250 gallon tank in the garage). It struck me that this level of generosity is a cultural trait I have often experienced among Israelis as well. One of the many things they have in common.
Of course I had many political discussions with West Bank Palestinians, as I have had with hundreds of Israelis over the years. My overwhelming conclusion? Despite the widespread anger at Israel for the humilation suffered at military checkpoints and the expansion of Israeli settlements on "Palestinian" land, which they see as a cause of much of their impoverishment, the vast majority of Palestinians with whom I spoke long for a "normal life"-- one in which they are able to obtain employment and improve their economic status, one in which their children have expanded educational opportunities, one in which they are able to travel freely within their own country. This if the mirror image of the longings of the vast majority of Israelis.
More reflections to follow, but I invite your responses to these initiatial thoughts.
Subscribe to:
Posts (Atom)
