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Mediation On-Line

A Newsletter from ADR Resources
Volume 2, No. 3, December 1998
From: Ethesis@AOL.Com (Ethesis)


I've added a great new essay by Frank Muller and Dick Coughlin at the Metro Group on the Theory of Expecations at  Worth reading next time you ask yourself if you need to spend time preparing your client(s) for a mediation session.  There is also a great paper on the present and future of graduate studies in dispute resolution at  In his paper, William C. Warters (of Wayne State's excellent program) discusses which journals academics respect (and, by omission, which they ignore altogether).

There is a RFP (request for proposals) on two government grants available from

Let me also add my best wishes for the season.

Interesting new Mediation & ADR web sites

A reminder.  If you receive this newsletter, and if you have a web site, please send me the url to look at. I'm actively adding personal mediator's sites at and value referrals and suggestions about good sites.


To the educational program listings at I have added lists of on-line classes and on-line ADR papers.  If you know of others that I've missed -- please let me know.  Reading through the James Madison material made me think to make sure that those links were easier to find.  By just reading the papers and visiting the classses you can learn a great deal about how mediation is being taught these days.

The uniform law committee is hosting a page at the Stanford Center on Conflict and Negotiation at the url for people who are interested.  It has a FAQ, asks for input, and is an attempt to provide for making drafts of model or uniform mediation legislation available (along with all the press releases, etc.).  The contact person is

First Mediation has moved it's web site to  I'm always pleased to see people with their own urls and I'm glad that their web site has justified the move.  My congratulations.

I had a wonderful telephone interview with Bobbi McAdoo, Professor of Law and Director of Advanced Studies, Center for the Study of Dispute Resolution (University of Missouri -- Columbia).  It is how I got the details on the LLM program (those will be in next month's newsletter).  One thing that impressed me about her comments was just what positive things she had to say about the scholastic ADR community.  She was very candid about many people at many programs (we got to speaking outside of ADR), but was extremely positive about all the ADR programs and people.

Often, a candid conversation leaves you saddened about the loss of respect or perspective gained.  In this case, I came away feeling very positive.  It was nice.


The July issue of Plenum Press/Harvard's Negotiation Journal just came in and the issue looks good.  It includes a good article on culture and negotiation style.  Some mediators have more difficulty than others, when disputants  "... have made use of 'violent self-help' as a form of conflict resolution for many generations ..."   Of one group of twenty or so mediators, three were shot dead and another was almost executed during the course of conflict resolutions.

On the other hand, in some areas  "Critics further object to the tendency of some conflict resolution trainers to make use of their new knowledge to claim prestige and to set themselves up as experts without applying the skills and attitudes to their own lives first."  (at page 214, examples from Papau New Guinea).

Many observations seem universal. There is more to the issue than the two articles on culture, but those two articles are standouts.

BTW, a publication called The Alternative Newsletter is available by calling 973-642-8811.  Copies are available for distribution at conferences and seminars.  If you are giving a seminar, give them a call.

International Updates

I received a wonderful e-mail recently, with a short excerpt to follow: (Lic. Tamez).  To Whom it may concern: We are an arbitration center located in Puebla México, we are the first arbitration center in Puebla ... ... Our site is in spanish, bacause of the nature of the content.  

It is wonderful to see more and more sites and centers being started.

On Employment

The AAA reports that the greatest area of growth in arbitration is in employment law issues.  Interestingly enough, the week after I listened to an AAA report, my wife brought home JAMS/Endispute "adhesion" arbitration guideline for all employee conflicts.  Following the course suggested by the Gateway case, the documents stated that they took effect whether or not the employee signed them ...  On the other hand, the entire "filing fee" cost is only $150.00 and the program encourages people to go pro se.  The program may well protect employee rights better than standard litigation does.  

If you are interested in arbitration, you may very want to consider a 3-4 year stint with the EEOC first.  Maybe longer. Now that Justice Clarence Thomas has established the EEOC as a foot step to the Supreme Court ... (ok, I admit it, I think rather highly of the EEOC in many situations.  Like all government agencies, they have their flaws, but over all, they really have a good crew -- at least the ones I have met).

BTW, speaking of the federal sector, the results from their current ADR programs were reported on November 4, 1998. A copy of the minutes from that meeting is at

Finally, I've started interviewing.  I don't move around much (I've been in two places the last fourteen years), so I plan to committing to whatever I do.  I also have a lead on the future issues of this newsletter, so that the newsletter will not be disrupted.

Submissions to

As always, I am interested in any submissions or articles anyone would like to have posted on the web.  While I can't pay for them, I don't charge to post your material, under your name and with your links, on my space. I prefer to post material as you have written it, with no editorial changes by myself.

With my best regards, I remain,

Sincerely yours,

Stephen Marsh
Additional material is included in the on-line version.
If you are curious where the term/name Ethesis comes
from, visit

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If for some reason you wish to be removed from my periodical mailings please let me know. If I'm sending anyone extra copies or sending it to anyone who shouldn't be getting it, please let me know. This e-mail mailing list is supposed to be limited only people who would be interested and who have subscribed.  Thanks for your patience and help.

Post Script (the "extra" material for the on-line version).

A Conference update, to quote:

IAHL 1998 Conference update.

Last December the conference planners tossed around various conference themes for the International Alliance of Holistic Lawyers conference being held in Vancouver, B.C. November 12-15, 1998 at the Sutton Place Hotel. We finally chose "Joy in the practice of law." Is it possible to have those "aha!" moments in law, those moments when happiness floods through one's body, even if only for a brief time. How could we make those brief times expand?

When we advised our members of the 1998 conference topic, one of my non-lawyer (he knows many lawyers) therapist colleagues in the States felt so strongly there is no such thing as joy in law he engaged me in an energetic e-mail exchange. So energetic, that the conference planners decided to feature our debate at the conference: Is there Joy in the Practice of Law? We were careful to ask participants who clearly enjoy law - at least some of the time - to debate the issue: Art Vertlieb (criminal) and John Kydd (former AFCC president, from Seattle) say "Yes, there is joy in law;" Jerry Lecovin (family) and Judge Carlie Trueman (eclectic) say No, there is no joy in law." Master Alan Donaldson has agreed to moderate. Our keynote luncheon speaker, Mr Justice John Kelly, venerable in the law, newly minted in theology, is coming from Australia specifically to speak on "joy."

We are talking relaxation, we are talking practicalities. How do you relax? How do you "become" a holistic lawyer? What practical things can you do to make the practice of law more enjoyable and effective? Associate Chief Judge Dennis Schmidt will be speaking on the various mediation-and-information-focused programs initiated in the provincial court (small claims [ including builders liens], child protection, youth crime). Ian Aikenhead, Q.C. will talk on the old-fashioned notion that litigation can at one and the same time be civilized and effective. David Gustafson, Langley therapist, will illustrate the healing a victim can experience when allowed to safely "conference" with the offender (no matter how severe the offence).

Eric Sirotkin, Albuquerque lawyer, will speak on the South African Truth and Reconciliation Commission. Lindy Korn, former Workers Compensation Commissioner for the state of New York, is putting together a program with lawyers from across the country and abroad speaking on practical matters such as collaborative law, peace training for lawyers, the Virtues Project, and holistic law as practised in Brazil.

And then there is the quietly contemplative hatha yoga at 7 am at the Law Courts Inn each day of the conference. And - Arnold Patent, former traditional lawyer, author of "You Can Have It All," founder of the International Mutual Support Network, will be networking extraordinaire.  And - the aerobic laughter workshop.

David Granirer is a Vancouver psychotherapist, stand-up comic, speaker and trainer. He is giving the aerobic laughter workshop. A shortened version of presentations he gives to organizations. I have attended a couple of his workshops and, despite my best efforts not to, I have laughed! He gets me exercising without evoking in me that grim determination that attacks my psyche whenever I deliberately set out to exercise. His website <> appends an article he wrote: Laughing Your Way to Organizational Health: A Lighter Approach to Workplace Wellness. Here are excerpts from his article:

"Up to now, most organizations tended to devalue the idea of laughter at work, seeing it as a distraction from getting the "real" job done........"It's only worthwhile if you have to suffer for it."....... However, we're starting to realize that all this suffering is killing's actually counter-productive to the bottom-line results .......And amazingly enough, this is reflected by scientific research......managers who facilitated the highest level of employee performance used humour the most often...... laughing 200 times burns off the same amount of calories as 10 minutes on a rowing machine...... after a bout of laughter, blood pressure drops to a lower healthier level..... Laughter also oxygenates your blood.....makes your immune system stronger...."

There you have it. It is possible to be joyful at work and a whole lot healthier. At our conferences (the last one was in Santa Fe, the next one will be in Florida) all our sessions are plenary sessions and we encourage spouses to attend all sessions for the cost of the food - reception, 2 excellent lunches, a dinner with entertainment, and morning refreshments.  

Our conference hotel, The Sutton Place Hotel, is a comfortable 5-star hotel in downtown Vancouver. The Cdn$139.00 (US$~90.00) per night conference rate (single or double) is good for 3 days before November 12 and 3 days after November 15 if you book by October 13, 1998 .

For more information and a brochure contact Bill van Zyverden, International Alliance of Holistic Lawyers, P.O. Box 753, Middlebury, Vermont 05753 USA Tel No: 802-388-7478 Fax No: 802-388-4079 E-mail: or Charlotte Gottschau (604) 878-1266 E-mail, Bob Eades (604) 681-5874 E-mail, Eva Van Loon (604) 221-0331.


Again, let me recommend Williamette's free e-mail newsletter.  Some excerpts follow:

Arbitration: ADA Claim Not Subject To Mandatory Arbitration
Dickerson v. United Parcel Service (N.D.Tex. 10/6/98)

After failing to sustain his claim of discrimination relating to an alleged on the job back injury, Dickerson sought to have his grievance pursued in arbitration. His union representative, the Teamsters, refused to do so and Dickerson sought to pursue his ADA claim in court. The court concluded that an employee asserts an independent statutory right - one outside the collective bargaining agreement (CBA), by filing a Title VII claim. The court reasoned that a CBA which contains an arbitration clause is distinguishable from a contract containing such a clause which applies to an individual. Therefore, arbitration of a CBA dispute which does not contemplate statutory claims, is necessarily limited to contractual remedies and can not be extended to statutory rights.
[Full Decision On Westlaw: 1998 WL 713290]

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Arbitration: Arbitrator May Not Issue Enforceable Subpoenas
Michigan State Employees Assoc. v. Michigan Liquor Control Com. (Mich.App. 10/6/98)

Employees challenged a decision to eliminate state operated liquor warehousing and distribution. During the arbitration, the arbitrator issued subpoenas which were enforced by the circuit court and the Commission appealed. The court found no implied authority to subpoena in the American Arbitration Association (AAA) rules which stated that an arbitrator may subpoena witnesses and documents if authorized by law. Because the parties' CBA is exempt from the Federal Arbitration Act and several other arbitration statutes, their language authorizing subpoena authority is inapplicable. The court concluded that subpoena authority is not necessary for a fair hearing and that absent expressed language, it would not find such authority present.
[Full Decision On Westlaw: 1998 WL 696019]

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Arbitration: Inability To Speak English Does Not Constitute A Lack Of Good Faith In Arbitration Proceeding
State Farm Insurance Co. v. Kazakova (Ill.App. 10/14/98)

Defendant, Stella Kazakova, appealed from the orders of the circuit court finding: (1) that she did not participate in good faith and in a meaningful manner at the mandatory-arbitration hearing and that she violated the notice to appear by not appearing with a foreign-language interpreter, (2) sanctioning her by debarring her from rejecting the arbitration award in favor of plaintiff, State Farm Insurance Company, as subrogee, and (3) denying her motion to vacate the sanction. The Court of Appeals reversed, finding that she was not in violation of applicable Supreme Court Rules governing arbitration in part because she appeared and did not deliberately disregard the rules of the court.
[Full Decision On Westlaw: 1998 WL 718212]

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Arbitration: Arbitrator Denied Party Review of Duplicate Evidence After Evidence Was Misplaced
Circle Industries v. Parke Construction Group, Inc. (E.D.N.Y. 10/8/98)

Circle Industries and Parke Construction entered into a joint venture for Parke to build a structure for Circle in Atlanta, Georgia. A dispute between the parties was submitted to arbitration. The arbitrator conducted five days of hearings. Some of the evidence was misplaced by the arbitrator while he was reviewing the case and preparing his decision. He requested duplicates from both sides and was provided with them. The arbitrator then issued a ruling in favor of Parke. Circle brought this action to vacate the award on the grounds that the arbitrator had violated rules 29, 31 and 32 of the Federal Arbitration Act by not allowing Circle to review the duplicate evidence from Parke, and refusing to hear material evidence. The court stated that Circle had failed to meet their burden of proof by showing that they were "denied a fundamentally fair hearing and consequentially suffered prejudice." The court noted that Circle had already reviewed the evidence presented by Parke, therefore no prejudice occurred. Further, the arbitrator had not refused to hear material evidence because Circle had ample time to present evidence at the hearing and in post hearing briefs. Therefore the court dismissed Circle's petition to vacate the arbitration award.
[Full Decision On Westlaw: 1998 WL 713305]

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Mediation: Mediation Agreement Precluded Indemnification Action
Hurst v. American Racing Equipment, Inc. (Tex.App. 10/16/98)

American Racing Equipment (ARE) is a manufacturer of automobile wheels. Longview Wheel and Performance (LWP) bought the wheels from ARE and sold them to Hurst. LeTourneau bought the wheels from Hurst. While LeTourneau was operating his van all the lug bolts sheared off resulting in an accident. LeTourneau and Hurst entered into a mediation agreement with LeTourneau to settle all of LeTourneau's product liability claims against Hurst. Hurst then sued ARE and LWP to indemnify him against LeTourneau's claims. ARE and LWP sought and were awarded summary judgment because they had already settled through mediation the products liability claims and there was no judicial finding of liability on the part of ARE or LWP on which Hurst could base a claim of indemnity. The court found that the mediation agreement between Hurst and LeTourneau only applied to products liability claims, therefore ARE and LWP would not have to indemnify Hurst for LeTourneau's negligence claims. The court then affirmed the trial court's judgment denying Hurst recovery for indemnification, but severed the separate issue of attorney's fees and costs for further proceedings.
[Full Decision On Westlaw: 1998 WL 720012]

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ADR Online: Building A Successful Mediation Practice
By James C. Melamed

This article discusses what is needed to build a successful mediation practice from a business perspective.



Recent Developments in Dispute Resolution Willamette Law Online - Willamette University College of Law
Faculty Editor: Ross Runkel -
Student Editor: Kevin Cheatham -
Student Editorial Board: David Ward, Alison Hohengarten, Scott Perry
Web site:
(Past Newsletters: Available Online At The Web site Under "DR Newsletter")


Highly recommended.

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