Message From The President

The mediation process is being accepted in the U.S. and around the world as an effective, relatively inexpensive and risk-free process for resolving disputes. The mission of IADR is to further this process by offering courses in basic and advanced mediation, supporting national mediation tournaments for law students and undergraduates, and offering mediation programs, seminars and even training to the general public as well as private and governmental institutions.

In fulfilling IADR’s mission we have established a very excellent board.  It will be further enhanced by adding non-lawyer members who are active in various areas of mediation.  We are also adding members to our board from outside the US.

Our quarterly newsletter and website are now up and running. 

There are a few board members who have not sent their photos and biographies to us for inclusion in the website.  To do so, please email bio and picture to Susan Ewing at amta@dwx.com.

Having accomplished so much we are now ready to expand our activities and efforts.  Our next board meeting on July 15, 2005 is very important as we will have reports from our public relations committee.  Vice President Ben Mackoff has suggested that we might retain a professional public relations company to assist us on a pro bono basis.  We will also be considering our bylaws and any changes that need to be made.  Any suggestions you have should be forwarded to Mark Holstein at (630) 821-2392 or Jerry Kessler at (847) 367-4500.

An important topic at the July 15 Board meeting will be “what form membership in IADR should take?”  Consideration is being given to designating IADR members as “Fellows” and limiting membership by “invitation only” to two or three hundred.

Another major consideration is whether we should board certify mediators meeting certain criteria.  There is much to discuss at our next meeting, and if you have thoughts you would like to share before the meeting, call me at 847-835-3380.

All are invited to join our organization and participate in our activities.  Membership information can be found here.

             Fred Lane, President

World Mediation Forum

The 5^th International Conference of the World Mediation Forum (WMF) will be holding its international conference on September 9-11, 2005, in the Congress Centre Crans-Montana, Switzerland.  The topic of the conference is “Mediation A New Culture of Change.”

The WMF is an association of people, organizations and institutions interested in interpersonal, intergroup, transcultural and international mediation.  Its main purpose is to spread and exchange knowledge regarding mediation.  The WMF was started in Dublin, Ireland in 1993 after the first International Conference on Mediation.  The international conference is held every other year.

The objective of the conference is to:

• Stimulate exchanges of ideas between those interested in the mediation process.

• Facilitate a comparative analysis of various models, cultures, and practices of mediation.

• Explain the development of mediation.

• Promote mediation in the management of conflict in various fields of professional and social life.

In addition to the conference, there will be opportunities to enjoy tourist activities, such as to cable car to Bellalui (2543 meters high), wine tasting at Sion-St. Léonard, visiting the Farinet’s vineyard, and travel to Zermatt.   For more information, contact forum2005@iukb.ch. 

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Handling the Difficult Lawyer

By:  Richard M. Calkins

Not infrequently, the mediator is faced with an attorney who is difficult, perhaps making unreasonable demands, or simply obstructing the process.  There may even be situations where counsel is using the process to obtain discovery or learn how the other side is going to try their case.  Finally, there are situations where counsel will try to manipulate the mediator to obtain a more favorable result.  Each of these scenarios requires special handling by the mediator.

1.  The premium attorney.  There are those plaintiff attorneys who are extremely successful and they are used to receiving what they demand.  When they make a demand they may be reluctant to compromise.  The strength of their position is that they are prepared to go to trial if their demand is not met and they have proven themselves in the courtroom.

As a general observation, many of these premium lawyers are workaholics.  About the only thing a mediator can do is point out that they cannot try every case and that is exactly what will happen if they cannot compromise.  Being so involved in litigation is not a good lifestyle.  The mediator can provide a valuable service by moving cases along, but this can only be done if the lawyer is willing to compromise.  This appeal to improving the premium attorney’s quality of life may be the only thing the mediator has with which to work.

2.  The egocentric lawyer.  Some lawyers will spend an excessive amount of time telling you how good they are and how many trials they have won.  They like to strut around in front of their clients and put on a good show.  Often, lawyers who do this at a mediation lack confidence in themselves and their ability to try a case.

The best way to handle the egocentric lawyer is to be extremely supportive and allow them, without interruption, to put on their show.  The mediator should not hesitate to say something positive about the attorney’s skills and ability, if he can.  Generally, once the show is over, the lawyer will get down to the business at hand.  If the mediator has been supportive and rapport has been established, the lawyer will generally be quite cooperative in reaching resolution.

3.  The champion.  The champion lawyer is one who may give the mediator, at least initially, a difficult time, just to prove to the client that he is going to fight even the mediator in the client’s best interest.  Such a lawyer is not necessarily a difficult one; just one who is conditioning the client for later compromise to reach resolution.

The mediator should be quick to work with the champion because ultimately the latter will get the final movement out of the client to reach resolution.  If the lawyer takes an unreasonable position or makes an excessive demand or minimal offer, the mediator should not react, but be willing to move at the pace the lawyer is setting.  The lawyer will know how fast he can move the plaintiff down or the defendant up without losing their confidence.

4.  The last dollar lawyer.  Most lawyers like to be certain that they are receiving the last dollar from the other side or are paying the least amount possible.  Some lawyers will go so far as to take a hard position and tell the mediator that they will terminate the mediation if the other side does not compromise.  In testing the mediator, some will go so far as to pack their bags and announce they are about to leave.

The mediator should not react to the threats of termination or show concern that the lawyer and his client will leave.  Instead, it is important to be patient and do everything to keep them at the table.  To convince the lawyer that his client is getting the last dollar, the mediator might go back to the other side several times in an effort to obtain more.  When he is refused two or three times, the attorney may be satisfied that there is no more money and will settle.

5.  Russian roulette.  When opposing lawyers dislike each other, they can be very difficult to work with.  The goal of each is to punish the other, or to make the other as uncomfortable as possible, even to the disadvantage of their respective clients.  They are willing to take their battle so far as to cause the mediation to fail.  Both try to make the other flinch.  Both are concerned with saving face.  Of course, such conflict is very unproductive and only hurts the parties.

A good rule for the mediator is not to choose sides but be supportive of both attorneys.  Because the mediator can keep counsel apart in separate caucus rooms, he should first try to calm them and then redirect them towards the issues of settlement.  Also, if they continue to act unreasonably they will begin to embarrass themselves in front of their clients, who will understand that money is being wasted.  It is, of course, important for the mediator not to embarrass the attorneys in front of their clients.  Most important, the mediator should be understanding and patiently try to help both attorneys save face.

6.  The inexperienced lawyer.  Some inexperienced lawyers will initially prove difficult primarily because they are concerned about being taken advantage of and settling for too little.  They can take unreasonable positions to demonstrate that they are good negotiators and deserve the respect of the other side and the mediator.

In this situation, the mediator needs to show more then the usual deference to the attorney and help him evaluate the case so that he can be assured a proposed settlement is fair.  Anything the mediator can say in front of the client to reinforce that the attorney is doing a good job is helpful.  If the mediator has built the proper rapport, the lawyer will begin to trust that he is not being taken advantage of and he is respected for the quality of his work.  Once this is established, settlement be-comes much easier.

7.  First million-dollar case lawyer.  One of the most difficult lawyers to work with is the lawyer handling his first potential million-dollar case, particularly if it is not worth one million dollars.  If the potential is there, how-ever, they many times devote their entire efforts to that one case, spending inordinate amounts of time day and night in developing the file.  Frequently, they get so wrapped up in the case that they have difficulty sleeping at night or thinking about other matters.  One-third of a million dollars can have an intoxicating effect on the attorney.  There are times, because of the neglect of other cases, a favorable result becomes critical to the welfare of the law firm itself, particularly when it is small and the out-of-pocket costs advanced are quite substantial.  This puts even more pressure on counsel to obtain a favorable result.  There are even times when counsel gets so consumed by the case that he no longer negotiates rationally and simply makes demands for which there is no basis.  Rather than compromise, they are willing to risk all, which could leave the client and counsel with nothing.

The mediator, in this situation, needs to help the attorney put the case in perspective. The mediator must make a special effort to build rapport so that counsel will trust him.  Only when this is done can the mediator help the attorney under-stand the value of a fair settlement, even if it is not at the level the attorney feels is required.  Because such an attorney can be in a self-destruct mode, even greater patience is required in building rapport and trust.

8.  The obstructionist.  There are those lawyers who, from the outset, intend to obstruct the process.  This can occur particularly in court-mandated mediations. They might even act with an element of bad faith, using the process to obtain discovery.

About the only thing a mediator can do with such a lawyer is be patient and, hopefully, the tactics of the lawyer will become evident to the client.  They will be seen as wasting time and money.  If the mediator senses the client would like to settle and would, except for the advice of counsel to the contrary, the mediator might try emotionally separating the client from the lawyer.  This can be done by speaking to the lawyer outside the presence of the client and asking whether he would allow the client to settle in spite of his advice not to, if the client so wishes.  Most lawyers will agree to this, which ethically they are required to do.  If the lawyer agrees, he can state for the record his position and then the mediator can ask the client if she wishes to continue with the process.  This is always a difficult maneuver and should not be used except as a last resort.

9.  Manipulating the mediator.  Some lawyers and their clients will try to manipulate the mediator to get him to negotiate on their behalf rather than mediate.  Promises of more mediations might be used to entice the mediator, or they might threaten to withhold business if the mediator does not obtain a “favorable” result.  In any case, they seek to force the mediator to put pressure on the other side to obtain the result they seek.

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BREACH OF CONFIDENTIALITY IN MEDIATION RESULTS IN SANCTIONS

 By: Richard Knepper

Academy member Judge Richard Knepper reports from Ohio that he entered sanctions against a party for disclosing matters which occurred during a mediation.  He opined that this was the first Ohio case imposing sanctions for violation of a mediation confidentiality pro-vision.  Debra Schumacher v. Brent A. Zoll, 2001 Ohio App. LEXIS 4498 (October 5, 2001).

The confidentiality provision provided that a “mediation communication is confidential.”  It further provided that “no person shall disclose a mediation communication in a civil proceeding or in an administrative proceeding” unless “. . . all parties to the mediation and the mediator consent to the disclosure” or “. . . a court, after hearing, determines that the disclosure does not circumvent Evidence Rule 408, that the disclosure is necessary to the particular case to prevent a manifest injustice, and that the necessity for disclosure is of sufficient magnitude to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings.”

Judge Knepper first ruled that this confidentiality provision was constitutional.  He stated: 

As held by the Ohio Supreme Court, in enacting R.C. 2317.023, “the General Assembly has determined that confidentiality is a means to encourage the use of mediation and frankness within the mediation sessions.  Parties to a mediation must be confident that the information they are sharing will not be revealed outside of the mediation, especially to the court.”  Confidentiality is clearly the corner stone of successful mediation.  Without it, the effectiveness of mediation is greatly eroded.

The trial court held a hearing concerning whether prejudgment interest should be paid by the insurance company in question because it failed to make a good faith effort to settle the case, and the plaintiff, to whom the money was to be paid, did not fail to make a good faith effort to settle.  During the hearing, the mediator had direct communications with the trial judge, and the plaintiffs, in the their motion for prejudgment interest, disclosed matters that occurred in the mediation to the objection of the defendant.  Judge Knepper ruled, as a matter of law, that by allowing and considering testimony regarding the mediation and the communications therein, and by relying on that information in rendering its decision allowing prejudgment interest, the court erred.  He entered sanctions that all reference to any mediation communication be stricken from the trial court’s judgment entry and from the hearing transcript.

In addition to awarding sanctions for breach of confidentiality, the opinion raises several other interesting points.  First, apparently Ohio permits a breach of confidentiality if the parties and mediator agree.  This raises a question as to whether a mediator ethically should ever consent, even when the parties do.  It is suggested that the integrity of the mediation process can be maintained only if there is an ironclad rule that it cannot be breached.  The logical extension of such a consent provision is that the parties should be able to compel the mediator to testify, even over his objection, if both agree.

Second, another exception to confidentiality is if the court finds, after hearing, that disclosure is necessary in the particular case to prevent manifest injustice, and that the necessity for disclosure is of sufficient magnitude to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings.  This is a Pandora box.  It applies even if the parties and the mediator object.  It provides a wholly different standard for compelling disclosure which can only undermine the purpose of confidentiality in mediation.  It places the parties on notice that what they say in confidence could be disclosed against their wills.  It undermines the mediator’s pledge to maintain strict confidentiality so that there can be free communication between the mediator and parties.  It is just such erosion, which we need to avoid.

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JOINT ADR CONFERENCE

Chicago, Illinois

IADR has joined the Association for Conflict Resolution, Chicago Chapter, Collaborative Law Institute of Illinois, and the Mediation Council of Illinois to “Come Together for Peace” and co-sponsor the first Joint ADR Conference in Chicago, Illinois.  In furtherance of our mission to bring a greater awareness of alternate dispute resolution to professionals and the general community, we are pleased to co-sponsor this event.

The mission of the conference is to promote opportunities to enhance and strengthen skills, knowledge, and relationships within the Chicago-area dispute resolution community.  The conference will be held on Thursday, December 1st and Friday, December 2nd at the Museum of Science and Industry at 57th Street and Lake Shore Drive, Chicago, Illinois.  Programs being planned are for arbitrators, mediators, collaborative practitioners, attorneys, social service workers, financial professionals, child specialists, corporate executives and anyone who strives to promote/and or practice alternative methods for resolving disputes in their private practice and any court, community, school, or corporate setting.  Conference programs and speakers will take place all day Thursday and Friday morning.  Friday afternoon is reserved for attendees to meet their family or friends to enjoy and tour the Museum exhibits.  (General admission to the museum for one is included with each conference attendee’s registration fee.)

And for those interested in presenting at the conference, a call for presenters can be found at the following websites:

www.collablawil.org
www.mediationcouncilofillinois.org
www.adrpeacemaking.org

Please submit your presentation proposal to:

Susan E. McCabe, J.D.
350 High Road
Cary, IL 60013
Fax:  (847) 516-3339
e-mail:  smccabelaw@aol.com
(Subject Line:  Joint ADR)

Everyone is invited to attend.  Please come join in and participate in this wonderful event!  Watch for registration and additional information to be posted at the websites listed above.

Exhibitors and vendors are also welcome.  Please contact Joan Hill at joanmhill@sccglobal.net or (773) 223-6755. 

Any questions regarding the conference, please contact Laura Prather at admin@collablawil.org.

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BOOK REVIEW

By: Stanley J. Dale

Texas maintains a leading role in the alternative conflict resolution.  Over two decades have elapsed since a neighborhood justice center opened near Houston.  And in 2003, the Texas Mediator Credentialing Association be-came the first statewide voluntary organization in the U.S. to offer voluntary credentialing of mediators.

Edited by Kay Elkins Elliott and Frank W. Elliott, the third edition of the Alternative Dispute Resolution Handbook of the ADR Section Council of the State Bar of Texas is a must-have for anyone who seeks to learn about ADR, particularly as it exists in the Lone Star State.  The book is published by Imprimatur Press of Dallas, and copyrighted by the ADR Section Council of the State Bar of Texas.  The clearly written text, hundreds of footnotes, some 200 case references, four appendices, and one entire chapter  (28) devoted solely to sources and a bibliography for ADR, justify its designation as a handbook in every sense of the word.

In addition to topics likely to be included in such a publication, e.g., mediation, arbitration, mini-trials, collaborative law, employment, construction and family law applications, several more novel subjects appear.  For example, Chapter 16 deals with “EDR”, the application of ADR to conflicts between environ-mental protections and economic development.  Chapters 18 and 22 cover health care and community dispute resolution respectively.

Chapter 14 is devoted to “ORD” or Online Dispute Resolution.  Technology in the ODR context is explored.  The World Wide Web (Internet) has helped truly shrink the world.  In an instant you can be in communication with someone anywhere around the world, and the concept of international interactions takes on a new meaning.  So it stands to reason that resolving disputes with people in other countries is a growing need.  Global communications, to be sure, are giving even more reasons to learn how ADR is worldwide topic, is taking on a whole new meaning.

Chapter 19, dealing with international issues, is written by a past co-president of the Texas-Mexico Bar Association, now an attorney with an international law firm.  Also known as “cross-border ADR,” international ADR is frequently chosen over court systems since there are fewer ties to a jurisdiction’s government system (and possible bias) and because, “A(n) ADR process con-ducted by distinguished inter-national professionals is less likely to be subject to such influences and therefore more equitable and fair for all parties.”  In this Chapter we read that conciliation, a bit more formal than mediation, enlists the use of one or more (usually 3) conciliators who assist in dispute settlement which is then documented as a binding contract.  Conciliations frequently are administered in institutions, such as a chamber of commerce or foreign investment bank.  If a conciliation fails, the matter generally moves on to binding arbitration.

Chapter 19 ends with some model ADR clauses for inter-national use: arbitration, site selection suggestions, and a brief listing of international ADR institutions and rules.  It is well organized, easy to use and replete with much useful and accurate information.  And although this book is designed and aimed at a Texas population, its value transcends state lines.

In the final analysis, this book provides a wealth of information that is easy to find and sufficiently detailed.  As the concept of ADR begins to find a place in twenty-first century American society, it is publications such as this that can be credited with helping that placement.  Conflict resolution may well lead to friendship, which after all, is the Texas state motto.

Title:  Alternative Dispute Resolution-2003 Handbook

Editors:  Kay Elkins Elliott and Frank W. Elliott

Publisher: Imprimatur Press

2351 West Northwest Highway, #3297, Dallas, TX 75220    --    (800) 811-6725

Copyright: 2003 by the ADR Section, State Bar of Texas

ISBN: 1-891732-48-X

For membership information, please click here.

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Upcoming Events:

Board of Director’s Meeting

July 15, 2005
Illinois State Bar Assn Office
Chicago, IL
10:00 a.m. – 1:00 p.m.
 

Mediation Training Class for Professors

August 10-12, 2005
John Marshall Law School
314 S. Plymouth Court
Chicago, IL 60604
 

For more information contact:
Susan Ewing
2700 Westown Parkway, Suite 220
West Des Moines, IA 50266-1411
515-283-0331 or amta@dwx.com

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