Archive for August, 2009

New Niche Market For ADR Professionals?

August 31, 2009

For those not sure if the foreclosure mediation programs popping in numerous states is a market for mediators to make some income, think again. All one has to do is look at Nevada, which has the highest foreclosure rate in the nation [from a recent WSJ article here].

Mediators, in certain court connected programs have received payment previously, but with the launch of many of these foreclosure programs, this is the first time payment is being offered to such a large amount of mediators. Additionally, the rate is a decent wage as a recent Las Vegas Sun article states [full article here]:

More than 400 people, many of them attorneys and retired judges, have come forward to serve as mediators. They are paid $400, $200 from each side, for the sessions that can last up to four hours.

With this new niche for mediators, it also creates a new market for conflict specialists/strategists/coaches/consultants. Reading further into the article one finds out just how much a specialist charges:

Michael Joe, an attorney and foreclosure specialist for the Legal Aid Center of Southern Nevada, said he has seen attorneys advertise their services for $1,500 to $3,500 to help homeowners in mediation. It’s piggybacking on attorneys’ ads to help homeowners modify loans, he said.

What the above quote is referring to is how attorneys, not mediators or conflict specialists, have seen the light of this new niche field and are seizing the opportunity.
The article has this to add:
“What they are doing is trolling the county recorder’s site to see who is getting foreclosed upon and mailing them,” Joe said. “It is preying upon the weak and the desperate.”
Joe said homeowners don’t need attorney representation because the mediators are supposed to be knowledgeable, fair and unbiased. There are programs for homeowners to learn how to represent themselves in mediation and understand how the process works, he said.
With this new field, there are always the scammers and it should be no surprise there are many taking advantage of people. Since these foreclosure programs are new, there are many questions arising such as what is the exact role these ‘assistants’ play?
From ReviewJournal.com:
“The scams have been very rampant.”
Unlicensed consultants often charged up-front fees and then provided no assistance to desperate homeowners facing foreclosure.

Read the rest of the article [here]

Are mediators and other conflict resolvers also seeing this an a prime opportunity to get in on the action and offer their services? I mentioned [here] about the divide between attorney-mediators and non-attorney mediators, and this can be another example of it.
If this becomes the case, the non-attorney mediators and ADR professionals have no one to blame but themselves. If attorneys are reaching out to possible clients, why are not other ADR professionals? An immediate observation I had when reading the article was the fee currently being charged to offer assistance- $1,500 to $3,500. And that is for just the mediation!

I will stop here to keep things brief and give you all a chance to have a read and develop your own opinions. As always, comments and feedback are always welcome!
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’09 All Star Guest Bloggers

August 27, 2009

There are many brilliant ADR professionals out there (much more brilliant than me) that for one reason or another, they do not write as much as they should or blog.

A few months ago I had the idea to reach out to some of these all-stars and ask them if they were interested in being part of my 2009 roster of all-star guest bloggers. I can happily say two things:

1) I am honored that each person I asked agreed!

2) I think all the readers will be just as happy as me to be able to read unedited writings from some of the most brilliant people in the ADR field.

The postings will be on the following dates:

September 23rd D.A. Graham [read]

October 7th Jessica Carter [read]

October 21st Noam Ebner [read]

November 4th Alex Yaroslavsky [read]

November 18th Jose Pascal Da Rocha [read]

December Colm Branningan

Listed Alphabetically

Colm Brannigan

After undergraduate and graduate studies in history, Colm received his LL.B. from Queen’s University in 1981 and an LL.M. in Alternative Dispute Resolution (ADR) from Osgoode Hall Law School of York University in 2003.

He holds the designation of Chartered Mediator (C. Med.) from the ADR Institute of Canada and is a Certified Mediator through the International Mediation Institute in the Netherlands.

A former litigation lawyer, Colm has been a full-time mediator since 1999 with a wide range of experience in condominium, commercial, technology, employment, estates and family disputes.

In addition to practice, and writing articles and book reviews on ADR and ODR topics, Colm has been a participant and speaker in various dispute resolution and professional development programs and is a part-time instructor in law at Humber College Institute of Technology & Advanced Learning in Toronto.

Colm is a board member of the ADR Institute of Ontario, co-chair of its technology section and co-editor of its newsletter. He also a member of various other professional organizations including the Ontario Bar Association – ADR Section and the Section of Dispute Resolution of the American Bar Association. He is the founder/moderator of “Mediate-Canada” an ADR listserv hosted by Google Groups.



Jessica Carter
(From http://www.leadrnz.co.nz/)

Jessica Carter is Senior Advisor Mediation Practice at the Department of Building and Housing in New Zealand and a practising mediator. She is responsible for developing and monitoring standards of mediation practice, building and implementing mediation training programs, and advising on new mediation initiatives and developments for a large mediation team in New Zealand’s public sector.

Jessica is active in mediation, conflict management, negotiation, coaching, delivering training and dispute system design. She is a member of the Australian and New Zealand LEADR Panel of mediators, the Asia-Pacific Mediation Forum, the Association for Conflict Resolution (ACR), the American Bar Association Section of Dispute Resolution and delivered a Paper on raising mediator quality in New Zealand’s public service at the 2009 Conference in New York. Jessica has completed mediation and negotiation programs at Harvard Law School, a Master of Dispute Resolution in UWS School of Law in Sydney, and attended the International Ombudsman Association program for mediators at the United Nations Office, Geneva.



Jose Pascal Da Rocha

José Pascal da Rocha, JD, is a freelance mediator. He has developed his practice in international mediation.. His practice reaches from resolving humanitarian conflicts in Africa, commercial dispute resolution in the United Arab Emirates to the project management of a center for conflict resolution in Southern Russia. He teaches mediation at several universities, such as the Columbia University, New York, the Southern Federal University of Rostov, Russia and Military Academies of NATO forces. He has published on international mediation as well as diversity management, critical thinking and reflection.


Noam Ebner

Noam Ebner is a negotiation consultant and trainer, an attorney and a mediator. He divides his time between his home and office in Jerusalem and his teaching, training and consulting activities abroad.

He manages Tachlit Mediation and Training, which deals with a wide spectrum of disputes, ranging from business partnership dissolving to employment disputes and divorce mediation.

Noam has been on the faculty of Sabanci University since 2003, teaching the practical aspects of negotiation and mediation in the Graduate Program on Conflict Analysis and Resolution in the Faculty of Arts and Social Sciences.

Noam is a Senior Fellow at the United Nations’ University for Peace in Costa Rica (http://www.upeace.org/) and teaches in the Werner Institute’s Graduate Program on Negotiation and Dispute Resolution at Creighton University’s School of Law (http://law.creighton.edu/wernerinstitute/).

D.A. Graham

D. A. Graham is the University Ombudsman at Princeton University.

Before arriving at Princeton University, D. A. was the Student Ombudsman at San Diego State University for two years. Prior to that, he served as a U.S. Navy Chaplain participating in Operation Iraqi Freedom. In 2001 D. A. received the Military Chaplain’s Association Chaplain of the Year Award for service with the U.S. Marine Corps. He is a graduate of the University of Alabama, where he earned B. A. degree in Speech Communication in 1990 and was the Founding President of the Alabama Student Society of Communication Arts (ASSCA). He also was selected as the first Student Ombudsman for the University of Alabama in 1994. D. A. attended the Interdenominational Theological Center in Atlanta, GA, where he received his Master of Divinity degree in 1998. During this time he served as a Resident Director at Morehouse College where he received the Student Advisor of the Year Award. While stationed in Okinawa, Japan he received his Master of Human Relations degree from the University of Oklahoma in 2002 with a specialization in Mediation/Negotiation. D. A. is a member of The International Ombudsman Association (IOA), The Association for Conflict Resolution (ACR-GNY) and The American Society for Training & Development (ASTD)


Alex Yaroslavsky

Alex Yaroslavsky, NCM is the founder of Yaro Group, LLC – a dispute resolution consultancy specializing in workplace conflict resolution. Yaro Group’s services include executive coaching, training, facilitation, communication process analysis and electronic brainstorming.
Since 2000 Alex has been working with major clients in the financial services industry, including Citigroup, HSBC, Merrill Lynch, U.S. Trust and WestLB AG. His experience includes resolving commercial, organizational and cross-cultural disputes.

Alex teaches Dispute Resolution at the John Jay College of Criminal Justice and is a mediator with New York City’s Civilian Complaint Review Board. He is also a member of the FINRA and the New York County Lawyers’ Association mediation and arbitration panels. Alex was one of the first mediators to become certified by the New York State Dispute Resolution Association in 2009.

ABA Section Chair, Homer LaRue

August 24, 2009

By Jeff Thompson[1]


I recently conducted a Q & A via email with JAMS neutral Homer LaRue (pictured left), Esq. who is the new Chairperson for the American Bar Association’s Section on Dispute Resolution. The Q & A was originally published at http://www.EnjoyMediation.com.

1. Tell us how you came about becoming the Chair of the ABA section on Dispute Resolution?

The chair of the Section is elected by the members of the Council which is the governing body of the Section. The chair of the section assumes that role after serving in a number of roles of leadership in the Council over a period of years.


2. How long is your term?

The term is one year. It began on August 1, 2009.

3. During your time as Chairperson, what would you like to see happen within the Dispute Resolution Section?

The Section of Dispute Resolution plans to continue our efforts to reach out to dispute resolution practitioners from around the world. Last year, the Section organized the International Mediation Leadership Summit at the Hague, where we convened a broad dialogue between the ABA and mediation leaders from around the globe. In 2010 we will convene an international dispute resolution summit with significant representation from Asian countries.

Dispute resolution practitioners can obtain practical guidance for their ethics questions thanks to the National Clearinghouse for Mediator Ethics Opinions and the Section’s Ethical Guidance process. The Clearinghouse provides opinions from 43 states to help mediators make smart choices in their practice. The database contains a short summary of each opinion with a hyperlink to the original opinion or document issued by the state or national body. Practitioners also have the option of submitting a specific question about their own ethical quandary to the Mediator Ethical Guidance Committee. We want to see the continued expansion of this valuable service to our members and the public.

During the next year, the Section will continue working on developing a formal Policy on Dispute Resolution, a statement of principles which will establish the Section’s positions on issues like informed consent, access, education, compensation, qualifications, conflicts of interest, ethical standards, impartiality, and fairness.

The Section also intends to embark on a new public education initiative, making greater efforts to make mediation and other forms of non-litigation dispute resolution techniques more familiar to the population at-large. Some ideas being considered for action include a national ad campaign, a federally designated dispute resolution day, and a popular media depiction of dispute resolvers at work.

4. Do you think there is any distinct divide between the ADR professionals who are also attorneys and those who are not?

It is certainly true that the more that lawyers have embraced mediation and other alternatives to litigation for the resolution of disputes, the more there has been a demand that the neutral (particularly mediators) have subject matter expertise related to the dispute. I think that this trend toward subject-matter expertise has tended to increase a divide between mediators who are lawyers and those who are not. The distinction is often given more importance than it is due. The key to the successful assistance to the parties in resolving their dispute is often the mediator’s expertise in issues of process and relationship-mending rather than the substantive legal issues involved.

I was one of the chief negotiators, who participated in the discussions, which led to the merger of several dispute resolution organizations, resulting in the creation of the Association for Conflict Resolution (ACR). My impetus for taking on that role was my strong belief then, and my belief today, that the field is best served by the existence of a diversity of voices, those organizations representing mediators who are not lawyers, as well as, a robust organization representing mediators who are lawyers.

5. Many court connected mediation programs require the mediators on their roster also be attorneys. As Chairperson, do you support this requirement?


The Section encourages courts and other ADR-service providers to focus on the needs of the parties in the successful resolution of their dispute. The parties are usually best-served when the roster contains a variety of persons from different backgrounds and different disciplines.

6. What’s your take on mediation and the issue of certification? (follow up) Should one group (i.e. IMImediation.org or ACRnet.org) take the lead on this?


The certification of mediators is probably one of the hottest debated issues in the profession today. The Society of Professionals in Dispute Resolution (SPIDR), as far back as 1987, formed the first Commission on Qualifications. The question that it addressed was, “What qualifies someone to be a dispute resolver?” In 1994, I served on the second Commission which re-visited the issue. The central principles adopted by the first SPIDR Commission and re-confirmed by the second are an instructive answer today to the question of certification because those principles recognize the need to strike an appropriate balance among competing concerns:

· That no single entity (rather, a variety of organizations) should establish qualifications for neutrals;

· That the greater the degree of choice the parties have over the dispute resolution process, program or neutral, the less mandatory the qualification requirements should be; and

· That qualification criteria should be based on performance, rather than paper credentials.

Report of the Society of Professionals in Dispute Resolution (SPIDR) Commission on Qualifications, Dispute Resolution Forum, Society of Professionals in Dispute Resolution, Washington, D.C. 1989, p. 3-4.

I continue to believe that the principles formulated by the Commission have as much relevance today as when they were first formulated.

7. What ADR websites do you follow?

It depends on the matter that I am interested in. There are a number of excellent websites which can be very helpful depending upon the issue or subject matter about which I have some interest. Of course, the Section of Dispute Resolution of the American Bar Association maintains a website that is, I hope, an invaluable service to service providers as well as to the users of ADR services.
8. What is the biggest issue currently facing ADR professionals?
Without trying to pinpoint a particular topic or issue, I would say that one of the most challenging issues facing the profession today is how to continue to grow while ever-increasing the quality of service that ADR professionals provide and maintaining the diversity of that service. This means we professionals in the field need to do more education of the public about the advantages of mediation and other forms of dispute resolution that do not entail adjudication.
9. Do you follow any ADR blogs?
I am a mediator, an arbitrator and a law professor; therefore, I review a number of blogs depending upon what issue or question I may have at a given time. They are an ever-increasing way to stay abreast of issues and changes in a rapidly growing field.

10. Is there anything you would like to add?


Thank you for the opportunity to share some of my views about ADR and its practice. I look forward to serving the members of the Dispute Resolution Section of ABA and to move the Section forward in helping to shape and improve what we know as ADR. We all are aware now that “ADR” does not mean “Alternative Dispute Resolution,” rather, it means “Appropriate Dispute Resolution.” I hope that I can continue to help the public understand the true meaning of ADR. Thank you.

[1] Jeff Thompson is based in New York City and is a certified mediator with Safe Horizon and the International Institute of Mediation (IMI). Jeff is also currently enrolled in the Masters Program in Negotiation and Dispute Resolution at Creighton University.
Jeff’s blog, Enjoy Mediation (www.EnjoyMediation.com) is a featured blog at Mediate.com and IMImediation.org. Comments are always welcome- email Jeff at mediator.jeff@gmail.com.

ADR News

August 21, 2009

By Nancy Cook, Newsweek.com

It takes about 10 minutes for Diane (not her actual name) to tell her story outside a Manhattan court room. Her husband was diagnosed with Stage III cancer three years ago and treatments left the couple with $60,000 in medical bills. Unable to work through his illness, her husband lost his job and the adjustable rate on their refinanced mortgage shot up. Now, the collection agencies and the credit companies are demanding their money. “I’m sorry to hear this,” says Jeff Thompson, a 30-year-old New York City police officer. “It sounds like you’ve been through a lot.”

Thompson isn’t about to arrest Diane, he’s showing up in court to try to help her navigate a way out of deep debt. Thompson works as volunteer mediator with
Safe Horizon, a New York nonprofit that’s perhaps best known for its work with victims of violent crimes. While that is the group’s main mission, it has recently branched out to help those who have become casualties of the economy, by mediating cases between consumers and their creditors….


Read the full article [here]

The NYPD & The 3 C’s

August 18, 2009

The NYPD & The Three C’s:
Communication, Community & Cricket
An ADR Advocate Using Cricket & Soccer As
The Bridge to Bring The NYPD & Community Together

By Jeff Thompson

Note: this is not an official NYPD document
©Copyright 2009, all rights reserved.

Often when I speak about conflict and dispute resolution I mention three words that I consider to be my mantra in regards to Alternative Dispute Resolution (ADR). Communication, Understanding and Peace are what I strive to create in all my interactions, be it as a mediator, conflict coach, consultant, or as a police officer in the New York City Police Department.

As a NYPD police officer working in the Special Projects Unit of the Community Affairs Bureau, my job is basically to make sure people are happy. Specifically, I try to make sure people are happy with the NYPD. I look at individuals, groups, community organizations and private businesses to see if the NYPD has already established a relationship with them. If the answer is yes, I see if there is a way to improve the relationship and if the answer is no, I analyze why that is the case and then try to figure out how to establish a line of communication based on understanding.

Police Commissioner Raymond W. Kelly realized that our relationship with certain communities in New York City was non-existent and lacking genuine lines of communication. This context led me back to the mantra of Communication, Understanding and Peace.

To understand the mantra, start in reverse. To have genuine peace, you need understanding. In order to have understanding, you must have communication. Last year, when Commissioner Kelly tasked the Bureau I work in with designing an effective program to reach out to these communities, I was assigned as the coordinator.

First, the Commissioner believed the best way to reach out to the immigrant communities, specifically the Arab, Muslim and South Asian communities was to look at what the young men do. What better way to reach out then by putting together something that they already do, right?
Commissioner Kelly wanted to create a soccer competition as it is the world’s game. With that directive,we created NYPD UNITED Soccer. NYPD UNITED was designed to do just what the title says- uniting the police department with communities using soccer (or football to most of the world) as a bridge to bring us together.

NYPD UNITED was not created to just have some young men play soccer. Yet, that is precisely what it is, ‘just playing soccer’. There are no hidden agendas or some secret plan. The goal is transparent in that we want everyone to know that, whatever you think of the police, we cannot not change your past experiences. What we can do and are striving to do is to create a positive view and understanding of the police from this moment forward. Many of these young men never had any interaction with the police before this competition. By putting together a free soccer competition, the police are not only providing something for these young males to do while school is out for the summer but also since it is organized by cops, the participants get to interact with them as well. They get to see the officers in another light- as regular people who also love the sport. How do the participants find this out? The answer is by practicing and playing cricket alongside the officers and by having the opportunity to talk to them in an informal setting.

Before discussing the outreach efforts in greater detail, I want to mention a crucial moment in the designing stage of the program. A few weeks after NYPD UNITED began, Commissioner Kelly realized two things- one the program was already an overwhelming success. Second, and perhaps more importantly, it was still not enough. There was an entire group we were trying to reach, primarily the South Asian community, that was not participating. How could we reach out to them using the ideals of creating Communication to generate Understanding in hopes of the result being Peace?

Cricket.

Yes, cricket. Not the little green insects but rather that seemingly odd-like sport that sort of looks like baseball. This ‘odd sport’ is played by millions of people and happens to be the passion of these young men in the community we were looking to reach out to. In the hierarchical structure of the NYPD, the Commissioner called the Chief of the Community Affairs, Douglas Zeigler, who then called the Deputy Inspector of Special Projects, Amin Kosseim (the director of NYPD UNITED), who then told me we were now going to put together a cricket competition. It is under the Chief, Deputy Inspector as well as Sergeant Jamel Hodges leadership that allows the competition to flourish.

As a quick aside, what are the chances a white male, born and raised in Queens of Irish and German descent would not only have experience in playing and putting together soccer events but also be an avid cricket player who also happens to have organized cricket events too?

Who knows what the odds were in this happening, but also add to that equation that I am a person who firmly believes in the merits of trying to incorporate the skills of conflict resolution such as collaboration, consensus building, and active listening into everything I do.

NYPD Cricket was created using the same model of NYPD UNITED. As I stated above, the purpose of the programs was simple- create a line of communication to generate understanding using soccer and cricket as the bridge to bring us together. This is simply stated but complex to implement. Many officers of varying ranks (from the Chief down to the police officers) have done incredible work in making sure it all went smoothly in the first installment last year.

Specifically, people like Detective Nasser and Officer Rana are two individuals who worked countless hours and had already created incredible bonds and relationships with many people in these communities. This outreach was responsible for getting such an overwhelming response from prospective participants.

Now in year two, which just got underway, we analyzed what worked and what needed to be improved. In brief, the competition is bigger and better. For those who know me, for better or worse, I pay great attention to all the details. 100 random examples are (really only six):

* Personally redesigning the cricket logo with the help of a graphic artist to make it look more like a * Twenty/20 cricket logo
* Putting our logo put on each of the cricket balls
* Making the United logo look more like a traditional soccer/football crest
* Making sure each professional quality uniform was unique from all the others
* Getting each coach a collared shirt since not getting a shirt was a complaint last year
* Instituting a bonus point system in the cricket competition to ensure each match was competitive

Other less appealing but important tasks I had were drafting waivers, purchasing ALL the equipment (from water bottles to nets with everything in between), hiring umpires and referees, obtaining field permits (yes, the police have to get permits!), coordinating transportation and putting together the schedules (think it is easy, try it!).

When designing of the competition, I referred to Ury, Brett and Goldberg’s book, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict. I knew my unit would be able to design both programs on our own, but that would not be in line with the programs’ intention to reach out to the communities. What we did was consult and reach out to various groups at each stage of the design process. In designing the competition we checked with local leagues and asked for their input. When reaching out for teams and players, we contacted community groups, religious centers and teams. Many people from various communities were instrumental in the cricket and soccer competition’s success. This had multiple benefits- 1) as already stated, it helped add to the success 2) it helped to generate interest in the community in the early stage and 3) in the spirit of ADR work, it provided buy-in for many as they became part of the process.

The third point benefit listed above is important as it helped smooth out the “us” and “them” mentality that could be perceived on both sides. Of course people would be skeptical. Including the community in the design and each successive stage was integral to breaking down that barrier.

One of the last stages was to get media coverage. The coverage by the media in local and ethnic communities was astounding but what exceeded our expectations was the coverage the programs garnered nationally and internationally. NYPD Cricket was covered by major news outlets in India, Pakistan and the United Kingdom.

This year’s Cricket program was mentioned on the front page of the NY Times (June 29, 2009) with an article and a corresponding video segment on their website. CNN also did a report which aired on CNN, CNN international and their website.

As mentioned earlier, for the second season we wanted to increase the good while fix the bad. An important question included asking, what did we not do last year that would improve things this year? When I looked at the age of the participants, 15 to 19 years old, I asked, what do they do and what do they use? The result was not only acknowledging the role of the internet but embracing it.

For the second season, the method of embracing the internet was fourfold. Twitter, the official NYPD website, YouTube and a blog-type site are all being utilized. Admittedly I was unsure of the purpose of twitter but approximately 100 people are now following my ‘tweets’.

The official NYPD website, specifically the Community Affairs section, has the logos and information for both competitions. It provides visitors with information about both programs and how to learn more about them.

Last year I had taken various digital videos from a few matches. During the off season I was able to edit them and I put them on YouTube without announcing it. Positive feedback started to come in and now people are already asking, where are this year’s highlight clips? For this season, we plan to include new clips each week.

By creating a separate site on BlogSpot, I am able to update the competitions with news, video, pictures and results from any computer. Because of the ease of using the site, anyone can work on the site besides me and it is easy to navigate for visitors. The site also allows visitors to go to other sites including the official NYPD site.

Using this new technology which the participants use not only helps the NYPD communicate with them on familiar platforms but it also gives the Department and the programs greater exposure to others not involved. The mantra of Communication, Understanding and Peace is not limited to the participants and their communities. Its benefits can and should go beyond the participants to people everywhere.

NYPD UNITED Soccer and NYPD Cricket were not only created as ways to create new relationships, but to explore valid learning experiences. It is important to emphasize the learning experiences occurred not only in the communities and with the participants but with the NYPD. All the police personnel involved directly and indirectly have gained a deeper understanding of the communities which we serve. The best way to serve others is by getting to know them.

———————————————–
Jeff Thompson is based in New York City and is a certified mediator with Safe Horizon and the International Institute of Mediation (IMI). Jeff is also currently enrolled in the Masters Program in Negotiation and Dispute Resolution at Creighton University.
Jeff’s blog, Enjoy Mediation (http://www.enjoymediation.com/) is a featured blog at Mediate.com and IMImediation.org. Comments are always welcome- email Jeff at mediator.jeff@gmail.com

Who Doesn’t Like Free?

August 14, 2009

I just noticed over at www.Mediate.com James Melamed posted an article titled, “How to Get the Most Out of Mediate.com for FREE!

So, as someone who enjoys free things as much as the next ADR practitioner, I had a peek and this is what I found:

1. Get a Mediate.com Basic Membership

2. Access All Mediate.com Articles for FREE! (including mine here!)

3. Read Our Most Popular FREE Features

4. FREE Use of Mediate.com Directory

5. NEW FREE Access to the Mediate.com Video Center

6. The Results of “FREE”

7. Professional Development and Marketing Consultation

Read all of it [here].

NYC-DR Roundtable Recap, August 2009

August 12, 2009

For those who miss the monthly NYC-DR Roundtable Breakfast meetings sponsored by ACRGNY and John Jay College due to schedules (yes, we are all very busy conflict resolvers) or due to locations (I guess everyone can not be in New York City), I plan to write a recap of each gathering I attend.

Note 1: this is not an official recap nor is it intended to be one but rather it is just a posting of my notes and recollection from the day.

Note #2: For this month I credit Maria Volpe for contributing to this recap as well as editing it… Thanks!

I hope you enjoy and feedback is always welcome!

The August 6, 2009 NYC-DR Roundtable sponsored by ACR GNY and John Jay College continued the trend of “BIG”. Just like the previous month, this meeting had to be switched to a larger room (which is a good thing). Over 60 people attended to hear Gerald P. Lepp, ADR Administrator of the Eastern District New York Courts.

Mr. Lepp spoke about how he started the program 17 years ago. He credited Maria Volpe with playing a significant role in assisting him with developing the program.

He believes mediators are entitled to be paid for their service and the Local Rule 83.11 recently amended by the Board of Judges (on July 7th, 2009) agreed with him. In passing the Rule, the judges also realized there were two key issues:

1) Mediators should be paid.
2) If parties were unable or unwilling to pay the fee, they could apply to the referring judge for a waiver of the fee, with a right of appeal to the district judge

Mr. Lepp stated by having the application go directly to the District Judge, the number of false applications being filed would be reduced.

* The fee will be paid by both parties. The mediators will be paid $600 for the first 4 hours; $250 for each additional hour. The mediators are not paid for any preparation work.

* The mediators are chosen by both parties. When they are not able to agree, Mr. Lepp sends out a notice to the roster of mediators and then forwards the names of those mediators who are interested to the parties. If a mediator is still not agreed on, then the board of Judges chooses one.

* The mediators also perform Pro Bono work which is decided by the discretion of the judge.

* The Eastern District is not currently accepting new applications for mediators. They have a roster of about 200 people and Mr. Lepp feels they deserve an opportunity to participate first. He believes they may be accepting new applications beginning 1/1/10.

* Most cases go for one day and 2/3’s are settled.

* Requirements for the mediators:
1) Must be a lawyer.
2) Must have 5 years of practice.
3) Must be a member of a State or the D.C. Bar.
4) Must have at least 16 hours of mediation training.
5) Must be interviewed by Mr. Lepp.
6) Must be approved by the Board of Judges.

Information from Mr. Lepp during the Q & A:

* The Eastern District also has arbitration which has a 2/3’s success rate.

* The mediation program averages 15 cases per month.

* His staff is small- it is only him and the two interns who are about to finish their internship. Those who are interested in interning should send a letter and resume to Mr. Lepp. He noted he is looking for people with computer skills as well as someone interested in interacting- not research.

* In regards to why just lawyers as the mediator: Mr. Lepp stated most programs require mediators to also be lawyers and he personally agrees with this.

* You can visit their website to see a bio of the mediators http://www.nyed.uscourts.gov/adr/Mediation/displayAll.cfm. This is one way in which the parties can educate themselves when choosing their mediator.

* Only experienced mediators should apply (when they start accepting applications again). Mr. Lepp stressed this is not the place to get experience.

* Training is coordinated with outside companies and universities. Mr. Lepp feels a more formal structure needs to be in place to update members on issues and news.

* Diversity of the roster: Mr. Lepp believes that with respect to gender, the roster is balanced. However, he does not think that it is balanced regarding race and ethnicity. He has tried in the past to correct this by reaching out to various ethnic Bar Association groups but has had little success. The Program does not maintain personal data on its mediators.

* No mediator has ever been called to testify in court from his program.

Quote of the Day:
“We really have come a long way.”

For more information on the United States District Court of the Eastern District of New York Mediation Program, go to http://www.nyed.uscourts.gov/adr/Mediation/mediation.html

Non Attorney Mediators- Not Welcome?!?

August 10, 2009

Non Attorney Mediators- Not Welcome!?

Recently someone said having mediators on court mediation rosters be limited to those who are also an attorney was a reasonable rule.

I do not agree.

I vehemently disagree.

Things are dangerously becoming more and more an “us versus them” situation. The two sides to the “us and them” issue are non attorney mediators and mediators who also happen to be attorneys. I happen to belong to the “us” side.
Before I continue, let’s go back to the first paragraph. I ask each of you reading this, is it reasonable to have only mediator’s who are also attorneys be allowed on court rosters? Please, leave some feedback. Let’s hear it from both sides.
By the way, a reason the person gave for the law degree requirement is because of the education you then know the mediator has which then qualifies them to be on the roster. Yes, being educated and possessing a law degree gives a mediator a wealth of insider knowledge of the courts and the understanding of the various jargon and processes but does that translate into a requisite for a mediator?
If this continues, the mediation field for those without law degrees is going to shrink and I believe it can eradicate people like me from being involved. As I type this, I realized perhaps an important point to make- the ‘reasonable comment’ was in relation to a court service where the mediators will be paid. This brings up another question I have- is it ok for mediators without a law degree to mediate in the courts as long as they are volunteers? When it comes to getting paid, is that just for attorneys?
What is a mediator without a law degree to do? To answer my own question with a question, does it matter if I applied for one of these positions and said that I have a Masters Degree in Dispute Resolution? Surely that would fulfill the education requirement… right?
Another potential way to prevent the “us” from losing out to the “them” is (drum roll please) certification. Yes, certification. It seems like all talk on the Internet recently has been around the certification process of mediators. Could a national or international certification scheme help mediators in this case? [read recent comments on mediation certification at Mediation Channel, Mediate.com, Negotiation Law Blog and the Ombuds Blog]
Mediators need to increase their power and certification might be the way to do that. Yet another question for everyone- is it healthy that the ABA’s section on Dispute Resolution is arguably one of the most powerful ADR groups in the country, maybe in the world? What does that say for the field since it is an attorney based organization?

If the ACR could get a certification scheme up and running that could help level the playing field that seems to be titling in a direction heavily towards “them”. I recently became certified by the International Mediation Institute and they very well can potentially help as well. What I particularly like about IMI is 1) they are a non-profit organization and 2) they do not offer any services but are instead just a location for people to find qualified mediators.
The way I see certification helping is I think it will make choosing certified mediators become a ‘reasonable’ choice. A proper certification program, which I purposely will not go into here and that is a separate issue in itself, would give its mediators credibility as they have proved through the certification process they are educated, knowledgeable and have the requisite skills needed to mediate. There, no law degree is required anymore!
I would like to keep this short as many people have already given opinions recently on the pro and con side of certification of mediators. What I am trying to do is show a new angle of how it might benefit mediators.
It does not have to be “us versus them” but under a united certification plan, we all can be “us” under a process where a law degree does not exclude people.

Kiwi Mediators To Get $3,000 A Day!

August 9, 2009

Nominations Sought For Court Ordered Mediation Pilot

Last month Justice Minister Simon Power and Courts Minister Georgina Te Heuheu announced that the High Court in Auckland would introduce a pilot scheme that would see private mediators undertake court-ordered mediation in some civil disputes.

The pilot will commence on November 1 this year and will enable the equivalent of 50 one day-long mediations to be carried out. The Ministry of Justice will pay mediators at the rate of $1500 plus GST for half-day mediations and $3000 plus GST for whole day mediations.

Here the are the qualifications (from the article):

1. Hold a certificate from a recognised mediation training provider;

2. Experience in conducting a reasonable number of mediations;

3. Experience in litigation and/or arbitration generally;

4. Operate at a senior or intermediate level of legal practice.

Read the full article [here].

Sounds like you have to also be an attorney… right?

If anyone has more information, please share it here.

ADR News

August 7, 2009

Mediation Urged To Stop Repeat of G20 Violence
Independent negotiators should settle disputes between police and protesters to stop a repeat of the violence at the G20 summit where thousands of demonstrators were contained for hours using the controversial tactic of kettling, a parliamentary inquiry proposes today.
The report, by the joint committee on human rights, says police and demonstrators were to blame for failure to communicate in advance of the protests in the City of London in April.

Read more [here]

Interview With Kathy Bryan, President and CEO, International Institute for Conflict Prevention and Resolution (CPR)
The Metropolitan Corporate Counsel recently interviewed Ms. Bryan [here]. Well worth the read. here’s one of the question and answers:
Editor: Please tell our readers about your background.
Bryan: I was in charge of worldwide litigation at Motorola for many years. That’s how I became acquainted with CPR. I started attending CPR meetings 10 years ago and found that it was the place to go to find the latest trends and most creative ideas in dispute resolution – and to hear directly from other Fortune 500 in-house counsel, outside lawyers and academics. So, when I learned of the opportunity to serve CPR as CEO, I welcomed their call. It has been a dream job for almost three years now.


Mediator Can Help With PayPal Rent-Payment Shift
Q.Q: Here is a question for the digital age. I just received a written notice from my property manager informing me that from now on, my rent payments must be made through the PayPal Internet service. I have used PayPal for services such as Amazon, but wonder if I can be forced to use it for my rent payments rather than a traditional check. I prefer to pay by check because a check would be easier for me to trace if there is a complaint raised about whether I paid my rent on time.
Read the answer [here]

How To Effectively Resovle Conflict
Forbes.com Q & A with Daniel Shapiro:
…Daniel Shapiro, director of Harvard’s International Negotiation Initiative and co-author of Beyond Reason: Using Emotions As You Negotiate, answers our questions about how the president can effectively resolve the conflict. (Though Gates and Shapiro both work at Harvard, they do not know each other.)
Forbes: What was your initial read on the incident last week?
Daniel Shapiro: My immediate reaction was, “This is complex.” Anyone who wants to mediate should understand the landscape before walking on it. Even the very articulate President Obama found himself treading on challenging waters during the initial conference. It simply goes to show the complexity of the issue that someone as diplomatic and as natural a mediator is still struggling with this issue.

Read the rest of the article [here]

How to Be Your Own Mediator
Read Grande Lum’s latest at the Huffington Post [here]
…As a mediator, my job is to often raise the proverbial “elephant in the room,” the issue that everyone sees, but no one wants to raise for fear of making the situation worse. Often these are issues that have been lingering for months or even years. In a labor-management negotiation, I remember parties telling me that the elephant in the room was a contract agreed to twenty years ago. My wife, a marriage family therapist, strongly believes in exploring family history and sees this as the elephant. She probes a couple’s past and even how a husband and wife learned to deal with conflict from their own growing up in order to work through their current problem. Once raised and worked through, the issue loses some of its harmfulness.

Australia Institute of Sport to Investigate Racial Slur
THE Australian Institute of Sport is investigating a claim by a top boxer that a racial slur was made against him by an official.
Australian amateur super heavyweight champion Trent Rawlings claims he was referred to as “Blacky”.
Rawlings’ father is West Indian and his mother is from South Africa.
The 22-year-old Victorian said the comments were made at an early morning training session in Canberra yesterday.

Read more [here]