|
Message From The President
The mission of the IADR is to bring a
greater awareness to the general community – lawyers, lay people,
businesses, students – of the meaning and scope of mediation. Our
mission is to educate them to the realization that disputes can be
resolved amicably rather than adversarially. To impress upon them these
words of Abraham Lincoln, “Discourage litigation. . . . Persuade your
neighbor to compromise whenever you can. Point out to them how the
nominal winner is often the real loser – in fees, expenses, and waste of
time.”
IADR has assumed the responsibility of
educating the legal community and the various constituencies of the
general public concerning the effectiveness of the mediation process.
Its goal is to train lawyers to act as mediators as well as effectively
represent their clients in mediation. We seek to reach the general
public, both private and commercial, by offering seminars in mediation.
Also, we seek to reach college and law students by holding mediation
training classes, as well as support and sponsor mediation tournaments
at the college and law school levels.
It is the premise of IADR that
resolution can be found through non-adversarial means. By avoiding
confrontation, peace and healing can occur, as well as resolution.
This quarterly newsletter is intended to
further the mission of IADR by providing thought-provoking articles on
mediation and particularly peacemaking. It will provide news about the
organization as well as upcoming events. It will be formatted both in
print and on our website.
www.adrpeacemaking.org.
All are invited to join our organization
and participate in our activities. Membership information can be found
here.
Fred Lane, President
Boston
University Wins Third Straight Mediation Title
On November 5-6, 2004, Boston
University, for the third straight year, won the National
Inter-collegiate Mediation Tournament held at John Marshall Law School
in Chicago. This tournament, co-sponsored by IADR, permits
undergraduate college students to gain mediation experience by
participating in simulated mediations. The tournament is as educational
as it is “competitive” and provides one and a half days of mediation
training before the actual tournament begins.
Professor Ken Kandaras of John Marshall
Law School, who is chair of the law school’s ADR program, has welcomed
the undergraduate students for the third year in a row as part of the
law school’s outreach program. Professor Ken Frank of Brenau University
in Gainesville, GA is chair of the Mediation Tournament Committee and ran
the tournament along with other members of the committee.
After three preliminary rounds and the
finals, Boston University, coached by Ed Stern and Susan Sloane, won its
third straight title, an unprecedented accomplishment. Middle Tennessee
State University, also a one-time national champion, came in second.
New York University, a first-time participant was third, and Brenau
University, fourth.
IADR congratulates all the schools and
students that participated in this tournament.
Loyola University Chicago School
of Law Wins Law School Mediation Tournament
Loyola University, coached by Professor
Joseph Stone, won the law school mediation competition held on November
19-20, 2004, at Drake University Law School in Des Moines. This
tournament is also co-sponsored by IADR with Drake Law School.
University of South Dakota Law School,
coached by Randy Gingiss, was second, Loyola’s second team was third,
and Drake University Law School was fourth.
IADR thanks its members for actively
participating as judges for both tournaments.
Top
Peacemaking: The Highest Calling In the Legal Profession
There are many forms of mediation and
roles a mediator can play. Some states, like Michigan, provide a
three-person panel that hear a summary of the case and render a
non-binding decision. A popular form of mediation is the conference
format. This format keeps the parties together with the mediator acting
as a referee between the parties as they discuss settlement. An
offshoot of this is transformative mediation, which has as its primary
goal the healing of the hurt suffered by the parties. Although all
forms of mediation should involve peace-making, caucus mediation is most
conducive to establishing not only resolution, but also peace and
healing. The focus of caucus mediation is to help the parties and
lawyers break the mindset that resolution can only come through the
parties adversarially challenging each other and defeating the other
side. It seeks to convince them that they can better resolve
differences by being on the same side and seeking a common goal that
makes both winners.
It is the opinion of many successful
mediators that the caucus form is most conducive to establishing
peaceful resolution, for several reasons. First, in the opening
session, when all the parties and counsel are together, the mediator has
a chance to speak to them in a calm and gentle manner which is intended
to calm the storm. Each attorney is invited to present his or her case,
but in a friendly and conciliatory manner. Many times in the opening
session the parties begin to see each other in a new light. An injured
plaintiff may find that the adjuster seeks fair resolution just as she
does. Most important, differences of position do not make one side
right and the other wrong. Differences are only a challenge to find
compromise which treats both sides fairly.
Second, meeting alone in caucus gives
the mediator an opportunity to understand a party and her position, and
thereby build rapport and trust. If a party understands that someone
does care and seeks a fair resolution for all, she is more ready to
compromise and find a way to accommodate the concerns of all. To
accomplish this end, the mediator can be supportive and show genuine
interest about other matters which may be affecting settlement yet not
directly related to the case.
Third, the mediator can build rapport
and trust by showing support and interest. The mediator will ask
questions and raise concerns in a manner which is not confrontational
and does not put a party on the defensive. He will assist both sides in
developing strategies which will maximize the results for each. In this
way, the fairest settlement can be reached.
Fourth, in caucus the mediator can also
show support for the attorney involved, and assist in building a
stronger attorney-client relationship. This can be done by noticing the
good work the attorney is doing, if this be the case. Also, when an
attorney is having difficulty with a client, the mediator can assist in
helping a client see the realities in a case. If antagonism exists, he
can help deflect some of the anger directed at the attorney.
Fifth, only in caucus can a mediator ask
questions never asked before. For example, a mediator can ask each side
about the weaknesses in their case. Also, the mediator can ask the
lawyers what they believe are their best case/worse case scenarios
before a jury. These questions can be asked because the parties and
counsel know that said information will be kept confidential and will
not be disclosed to the other side. Only in the caucus setting can such
questions be asked. These questions a juror, judge, or arbitrator could
never ask. With this information, the mediator has a new understanding
of the case which decision-makers have never had access to. It helps
the mediator to guide the parties to a meaningful and fair settlement.
All in all, caucus mediation is a very
effective format to lead the parties to a fair resolution that will make
both sides winners.
Top
Use of Polygraph Test In
Mediation
The use of the polygraph test can be an
effective tool of the mediator to reach resolution. When the parties
are taking diametrically opposite positions concerning a certain fact or
set of facts, and only one can be telling the truth, the proposal that
they take a lie detector test can assist in learning the truth. The
fact in dispute cannot be the “orange light, red light” difference of
opinion. The fact or facts in question must be unambiguous and not
subject to shades of memory.
Case Study
In one case, the issue was whether the
plaintiff, a passenger, grabbed the steering wheel when the car started
to go out of control. The defendant driver said she did and the
plaintiff passenger said she did not. A polygraph test was proposed and
plaintiff readily agreed to take it. The defendant, however, said she
would not because it made her nervous. This response of the defendant
was recognized as a common response of a person who is lying and could
not pass the test. Once the lawyers knew what the truth was the case
quickly settled.
The above result is typical. The test
is rarely, if ever, given because the person who cannot pass will
usually refuse to take the test or will eventually back down. However,
the mediator as well as the lawyers then know where the truth lies and
can proceed with the mediation accordingly.
Another area where the polygraph test
can prove effective is in sex harassment cases. A female employee may
allege she was forced to have sex by her employer in order to keep her
job. He may deny that he had sex or argue that it was consensual.
Case Study
In a case involving the chief financial
officer, a female, and the CEO, a male. The former claimed that she was
forced to have sex to keep her very lucrative position. The defendant
CEO claimed that the sex was consensual and began long before the
plaintiff was hired as the chief financial officer. The plaintiff
claimed she had never had sex with him until she began her job. Both
parties agreed to take a lie detector test on the issue of whether there
had been consensual sex before plaintiff was employed. Both parties
agreed to use the same polygraph technician. It was agreed that if
plaintiff passed and defendant failed she would receive $650,000. If
defendant passed and plaintiff failed, she would receive $25,000. If
both passed she would receive $350,000, and if both failed, $125,000.
On the day the test was to be given, plaintiff backed down and refused
to take it. The case immediately settled.
Another way the polygraph test can be
used is to determine the severity of a party’s injuries. For example,
in a child abuse case where a pedophile is charged with abusing
children, the test can be used to determine the severity of the abuse.
Case Study
A counselor, a pedophile, supervised
fifteen delinquent teenage boys. Six of the boys charged that the
counselor rubbed their backs and touched them in inappropriate places.
One of the boys also charged that the defendant forced him to have oral
sex. The defendant denied all the charges although he did plead guilty
to a misdemeanor charge. The insurance carrier representing the home
where the boys were living discounted the seriousness of the charges
tending to believe the pedophile. It was agreed that the boy most
seriously injured would take a lie detector test. Three areas of
questions were submitted: (1) did the defendant rub his back and touch
him on the buttocks, legs and inner thighs; (2) did the defendant touch
his penis; and (3) did the defendant have oral sex. If the boy passed
all three tests, he was to receive $550,000; only the first two,
$100,000; and only the first, $25,000. The pedophile refused to take
the test because he “was concerned about further criminal proceedings.”
Ultimately, the boy passed all three categories which results determined
the settlement.
Case Study
In another case, the plaintiff was
injured in an auto accident and had a serious break in her leg. She
claims that she was taken to the defendant doctor who advised her that
the leg could be safely set the next day. The doctor stated that he
instructed her to go immediately to a city hospital fifty miles away and
have the leg set. As a result of the delay in setting the leg,
plaintiff ended up with a decided limp. The doctor readily agreed to
take a lie detector test and the plaintiff refused. Again, the case
immediately settled.
Top
The Peacemaker’s
Approach To Mediation
Some mediators are asked to be
evaluative, that is, assist the parties and counsel evaluate the case.
Ex-judges and experienced litigators are perfectly equipped to do this
because of the badge of authority they still carry. Most mediators,
however, are asked to be facilitative and assist the parties into
finding their own resolution.
For some mediators, taking a forceful
position and confronting the parties and counsel when they are wrong can
be successful. There is a growing feeling in the profession, however,
that there is too much confrontation in our adversarial system.
Attorneys are simply getting worn out with the constant fighting over
every motion and the trying of cases. Mediation is the one opportunity
for lawyers to lay aside their confrontational and adversarial roles and
try to work “with” the parties and counsel in seeking resolution.
Those mediators who are consciously
trying to be peacemakers will avoid confrontation with the attorneys and
parties. They will no longer take an aggressive “devil’s advocate”
approach because it can lead, sometimes inadvertently, to
confrontation. Instead, they will try to build rapport with each party
and counsel so that they are viewed as striving to find a solution that
is fair for all concerned.
Peacemaking, as an element of mediation,
begins even before the formal mediation commences. The
mediator/peacemaker’s demeanor is calm, positive, patient and
understanding. Just the presence of the mediator exhibiting those
traits should have a calming effect on the parties and counsel.
Often parties come to the mediation
process “at swords point” and bitter feelings. The opening remarks of
the peacemaker should be gentle and encouraging to help calm the storm.
Possible opening comments might include the following points: (1) the
introduction, which tells the parties that the process is gentle,
user-friendly and which emphasizes that all are on the same side working
to a “fair” resolution; (2) the role of the mediator, which emphasizes
that the mediator is absolutely neutral and will not be judgmental, and
everything discussed will be kept confidential; (3) the need for the
parties to maintain flexibility and not draw a line in the sand so that
the mediator can do his or her job; (4) an explanation that a good
settlement is where both sides give more than they intended to give; (5)
the role of the attorneys in giving opening comments so that the
mediator better understands the case; and (6) the success of mediation
as a vehicle for finding resolution and peace for the parties.
For membership information, please
click here.
Top
Upcoming Events:
Board of Director’s Meeting
April 15, 2005
Illinois State Bar Assn Office
Chicago, IL
10:00 a.m. – 1:00 p.m.
Advanced Mediation Class
February or March 23-25, 2005
Des Moines, IA
24 hours CLE – 1 hour ethics
Primary Mediation Class
March 8-12, 2005
Des Moines, IA
40 hours CLE – 2 hours ethics
For more information contact:
Fred Lane, President
1092 Bluff
Glencoe, IL 60022
847-835-3380
Richard M. Calkins
2700 Westown Parkway, Suite 220
West Des Moines, IA 50266-1411
515-283-0331
email:
amta@dwx.com
Top |
