Mediation On-Line
A Newsletter from ADR Resources
http://adrr.com/adr9/018.htm
Volume 2, No. 6, March 1999
From: Ethesis@AOL.Com (Ethesis)
To: SMarsh@adrr.com
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Mediation On-Line
A Newsletter from ADR Resources
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Greetings:
Next month I'll have an in depth review of The Mediator's Handbook. It is only $19.95 (though someone sent me a copy for free) and well worth it. Jennifer E. Beer and Eileen Stief are the authors and this is the third edition (it has been in print, with substantial revisions, since 1982). You can call1-800-567-6772 or NSP@island.net if you can't wait for the review to buy a copy (honestly, I wouldn't wait -- it is a good book).
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
http://adrr.com/adr0/links1.htm and
value referrals and suggestions about good sites.
News
I should also mention that Osgood Hall in Toronto, Canada offers an ADR LL.M. degree. SMU is offering a certificate program that consists of twenty (20) semester hours of instruction.
2nd Annual Summer Institute for Dispute Resolution in Higher Education. June 14-18, 1999 Wayne State University, Detroit MI Two sessions. 1. Basic Skills Training and 2. Designing Dispute Systems on Campus. The first is a four day program for $375, the second a one day program for $100.00 (including lunch). Contact Marie Olson, marie.olson@wayne.edu (313) 577-5313 at the Mediating Theory and Democratic Systems Program.
The University of Baltimore has an interdisciplinary Master's Degree (M.S.) in Negotiations and Conflict Management. There are legal studies, law, and business faculty involved. You can contact the program director, Donald Mulcahey, J.D. Ph.D., at dmulcahey@ubmail.ubalt.edu.
NSU doctoral distance program has its distance learning application forms and the "Frequently Asked Questions" document (e.g., format, cost, program information...) now available at the university website (www.nova.edu/ssss/DR/adr.html). The application deadline for the doctoral distance program is March 31, 1999.
"Mediating Year 2000 Disputes" seminar, Thursday, March 25, 1999 in Reston, VA, is advertised as giving you the information you need to know to mediate or participate in mediation of Y2K problems. (cf http://www.itaa.org/year2000/) For more information, visit http://www.technologymediation.com/Y2K_seminar.htm, or email info@technologymediation.com.
Essay/Comment/Books/Periodicals
I have a FAQ on my site. It is at http://adrr.com/faq.htm. The current text follows:
FAQ -- I'd like to be a mediator, can you just answer a few questions … ?
This is written to answer the typical questions. Starting with a sample letter:
"I am writing to investigate alternative dispute resolution as a potential avenue of future career development for myself. I am 33 years old with a B.S. degree in psychology and 10 years of work experience in various social work and human services capacities. I have been considering returning to school for some time. In exploring possible areas of emphasis, I have become aware of ADR as a possible growing field or profession. I have had some limited encounters with mediation through my job of the past two years. I have searched the internet for information regarding ADR. While this has provided an array of resources and basic information, it has also left me with some questions. If you could find the time to answer those you are familiar with, I would be grateful."
The usual question is always very similar to that one above. It is often broken down into sub-parts:
"What market currently exists for ADR? In what capacities are mediators being utilized?"
Mediators are being used in almost every capacity imaginable. See the essay "What is Mediation" (linked to from http://adrr.com/) and realize that every thing that is "mediation" is done by mediators. There is a huge market, especially for "pro bono" services ("pro bono" short for "pro bono publico" is the label for services provided by a person for free, as an unpaid volunteer).
"What credentials in a mediator are most sought out or most attractive? Does training/education one field (e.g. law) outweigh that in another (e.g. psychology)?"
This depends on who you are marketing your services to. If you want to do mediation in schools, you need to have a teaching degree. If you want to mediate family conflicts in the context of counseling sessions, psychology. If you want to mediate disputes referred to you by judges, law.
"What degree of mediation training is currently typical for those practicing ADR?" What are the best educational programs existing which teach ADR? Are there any degree programs for ADR? What are the pros and cons of a degree vs. certification?"
Most mediators have a "40 hour" certificate -- in theory, forty classroom hours. Many (if not most) "40 hour" programs are actually about twenty four to thirty class roomhours and a couple-three observed mediations. For degree programs, visit the web sites of the listed schools at http://adrr.com/adr0/links.htm. There are undergraduate and graduate degrees, including three L.L.M. programs with more in the wings. ICAR at George Mason and Nova Southeastern offer traditional Ph.D. programs.
"Which is best?"
Ah, that depends on what you want to do with the education you receive.
"Is there any professional organization or network of mediators, such as a national organization that promotes the profession, arranges continuing training, etc?"
Well, SPIDR would like to be that organization. They are doing more than anyone else and making great strides. The ABA (American Bar Association) ADR section is also making serious efforts (you do not need to be an attorney to join).
"Where is the profession currently headed? Is growth anticipated? If so, in which areas? What monetary compensation do mediators typically receive for their services? Who pays?"
The profession continues to grow. Mediators may be working pro bono (in which case they are not paid with money) or on salary or by the hour or session. Salaries seem to average around $25,000.00 a year. Session charges run from $3,000.00 to $100.00 a side per day.
"In what ways are mediators typically employed? Are there anticipated growth areas? (Examples: Do they mostly find work as independent professionals or are they employees of organizations? What kinds of organizations, if any, currently employ mediators: law firms, governments, corporations, non-profit organizations?)"
Yes.
"What resources would you recommend for further investigating ADR?"
I would join the listserves. Go to http://adrr.com/adr0/links1.htm and scroll to the bottom of the page. Join every listserve and listen to the discussions for at least a week before asking any questions. I would also visit the web sites for ICAR (George Mason) and NSE (Nova South Eastern). From there, it is a matter of what your preferences as to what kind of investigation you should make.
As for groups, I would advise you to join SPIDR. Let me repeat. Join SPIDR.
I am truly appreciative for any information that are able to share. I have been exploring ADR for awhile and am kind of excited about it, but feel that I need a better idea regarding future growth, as well as a realistic understanding of "employment" possibilities.
Thank you for your help. If I can reciprocate in any way, please let me know.
Sincerely,
---------------
While I get a number of e-mails asking all or parts of the above questions from people considering mediation, the surprising bulk of the questions come from people who have completed training from a "40 hour course" provider and who now want to know how to get work.
I personally feel that if you are running a training program, you should prepare a FAQ similar to this one. Every one of your prospective students is owed this information before they put down their tuition.
If you disagree, have other suggestions, or have ideas as to what you think I should add, I would appreciate your feedback and advice.
International Updates
Camara's second issue has gone to the printer.
Jamie Chicanot and is in the process of co-ordinating/organizing an advanced summer session for trained mediators on a beautiful island in British Columbia, Canada. E-mail her at jchicanot@home.com for more information.
On Employment
Nova Southeastern is trying to open up an employment for mediators web site section. I wish them well.
Submissions to adrr.com
As always, I am interested in any submissions or articles anyone would like to have posted on the web -- and I am glad to be able to point them out in this newsletter. 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
http://adrr.com/adr9/018.htm
Additional material is included in the on-line version.
If you are curious where the term/name Ethesis comes
from, visit
http://adrr.com/living/ethesis.htm
Back issues at http://adrr.com/adr9/mediation.htm
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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).
http://www.ogc.secnav.hq.navy.mil/ogcwww/principles.html
PRINCIPLES OF CONFLICT OF RESOLUTION
1. Think Before Reacting
The tendency in a conflict situation is to react immediately. After all, if we do not react we may lose our opportunity. In order to resolve conflict successfully it is important to think before we react--consider the options, weigh the possibilities. The same reaction is not appropriate for every conflict.
2. Listen Actively
Listening is the most important part of communication. If we do not hear what the other parties are communicating we can not resolve a conflict. Active listening means not only listening to what another person is saying with words, but also to what is said by intonation and body language. The active listening process also involves letting the speaker know that he or she has been heard. For example, "What I heard you say is......"
3. Assure a Fair Process
The process for resolving a conflict is often as critical as the conflict itself. It is important to assure that the resolution method chosen as well as the process for affecting that method is fair to all parties to the conflict. Even the perception of unfairness can destroy the resolution.
4. Attack the Problem
Conflict is very emotional. When emotions are high it is much easier to begin attacking the person on the other side than it is to solve the problem. The only way conflicts get resolved is when we attack the problem and not each other. What is the problem that lies behind the emotion? What are the causes instead of the symptoms?
5. Accept Responsibility
Every conflict has may sides and there is enough responsibility for everyone. Attempting to place blame only creates resentment and anger that heightens any existing conflict. In order to resolve a conflict we must accept our share of the responsibility and eliminate the concept of blame.
6. Use Direct Communication
Say what we mean and mean what we say. Avoid hiding the ball by talking around a problem. The best way to accomplish this is to use "I-Messages". With an "I-Message" we express our own wants, needs or concerns to the listener.
"I-Messages" are clear and non-threatening way of telling others what we want and how we feel. A "you-message" blames or criticizes the listener. It suggests that she or he is at fault.
7. Look for Interests
Positions are usually easy to understand because we are taught to verbalize what we want. However, if we are going to resolve conflict successfully we must uncover why we want something and what is really important about the issue in conflict. Remember to look for the true interests of the all the parties to the conflict.
8. Focus on the Future
In order to understand the conflict, it is important to understand the dynamics of the relationship including the history of the relationship. However, in order to resolve the conflict we must focus on the future. What do we want to do differently tomorrow?
9. Options for Mutual Gain
Look for ways to assure that we are all better off tomorrow than we are today. Our gain at the expense of someone else only prolongs conflict and prevents resolution.
Attorneys Fees & Arbitration
Alternative Systems, Inc. v. Carey (Cal.App. 11/13/98)
Attorney Carey brought action to confirm attorney fee arbitration award entered against client, Alternative Systems, Inc., by the American Arbitration Association (AAA) pursuant to a binding arbitration clause in attorney-client fee agreement. The trial court confirmed the award and the client appealed. The Court of Appeals held that: (1) client did not waive right to challenge validity of binding arbitration clause, and (2) client's statutory right to trial de novo under mandatory fee arbitration scheme preempted binding arbitration clause, and thus AAA arbitrator exceeded his powers by purporting to enter an award under authority of that case.
[Full Decision On Westlaw: 79 Cal.Rptr.2d 567]
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Arbitration has Offensive Collateral Estoppel
Kelly v. Vons Companies, Inc (Calif Ct App 11/23/98)
The union grieved the employer's closure of a facility, and the matter went to arbitration under the collective bargaining agreement. The union's argument in arbitration was that the closure was in bad faith and in breach of the collective agreement, because it was in retaliation for a previous arbitration decision. The employer's argument was that the closure was for economic reasons, and the arbitrator ruled in favor of the employer. Several employees who were laid off by the closure sued the employer for fraud and negligent misrepresentation, claiming the employer had failed to notify them of the dispute involved in the first arbitration. The trial court granted summary judgment for the employer on the ground of collateral estoppel; the California Court of Appeal affirmed. Collateral estoppel applies to labor arbitration findings of fact if the arbitration had the elements of an adjudicatory procedure: hearing before a qualified impartial officer, formal recorded testimony under oath, cross examination, compulsory testimony of witnesses, and a written decision. U S Supreme Court decisions such as Alexander v. Gardner Denver, 415 US 36 (1974) (employee allowed to bring Title VII suit after completing a labor arbitration) do not apply here because these employees brought a common law, not a statutory, claim. Gardner-Denver and similar cases were based on the notions that (a) Congress intended the statutes to be enforced by courts and (b) the interests of unions and employees might not always coincide. In the present context, (1) there is no "legislative dictate against resolving common law claims by arbitration," (2) arbitration findings will be binding in a later law suit only if the employee was a party to the arbitration or in privity with the union, and (3) it is unlikely that an arbitrator would enforce the collective agreement in a manner that conflicts with the common law.
[Faculty Editor's Comment: (1) In this case the court was applying the law of California, and did not feel required to follow the Gardner-Denver line of authority. However, the court's reasoning could easily be used in a federal statutory case. Gardner-Denver did no more than allow an employee to proceed in a Title VII case after the employee's collective agreement claim had been arbitrated. The U S Supreme Court did not hold that the arbitrator's fact findings could not be given preclusive effect in the later court action. (2) There is a fair argument that the California court was required to apply federal law, Labor Management Relations Act Section 301, assuming that enforcement of the collective agreement is governed by Section 301. If so, and if a determination of the state claims required the court to interpret the collective agreement (which seemed probable in this case), then the entire claims would be preempted by section 301.]
[Full Decision Online: http://www.courtinfo.ca.gov/opinions/documents/B110631.DOC]
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Arbitration: Manifest Disregard Of Law By Arbitrators Is Not Ground For Reversal
Siegel v. The Prudential Insurance Co (Calif Ct App 11/20/98)
Siegel took his wrongful discharge claim to arbitration under the rules of the National Association of Securities Dealers. The arbitration panel awarded $113,016 in actual damages, $225,000 in general damages, and $1,000,000 in punitive damages. The employer sued to vacate the arbitration award on the grounds that the arbitration panel (1) exceeded its authority because not all the arbitrators heard all the evidence; (2) allowed into evidence a secretly recorded conversation, in violation of public policy and in disregard of law; (3) acted in manifest disregard of law by awarding emotional distress damages without evidence of severe mental injury; and (4) acted in manifest disregard of law by awarding $1 million in punitive damages without any evidence to support the award.
The trial court confirmed the award and denied the employer's petition to vacate the award; the California Court of Appeal affirmed. The court held that the case should be decided under the law of California, and the California Arbitration Act does not allow judicial review of an arbitration award, even when it is argued that the arbitrators acted "in manifest disregard of the law." Although the arbitration agreement is covered by the Federal Arbitration Act (FAA), and many courts have taken the position that they can review an arbitration award for "manifest disregard of the law," none of this preempts the California rule which prevents re-weighing the merits of an arbitrator's decision.
[Faculty Editor's Comment: Most courts deciding the issue have decided that an arbitration award which is governed by the FAA can be vacated if the arbitrator acted "in manifest disregard of the law." These results themselves are curious in light of the fact that the FAA does not state this as a ground for vacating an award. This judicially-created standard might be precarious because of its lack of statutory foundation. Even if the standard is rooted in the FAA, it would be rooted in Sections 10 and 12 which are written for federal courts, and say nothing about state courts.]
[Full Decision Online: http://www.courtinfo.ca.gov/opinions/documents/B115350.DOC]
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ADR Online: Tobacco Arbitration Panel Awards $8.2 Billion
Tobacco arbitration panel awarded attorneys in Florida, Texas, and Mississippi a $8.2 billion settlement. Attorneys in eight other states that shunned arbitration were only awarded $221 million.
Details: http://www.ljx.com/LJXfiles/tobaccosettle_firstaward.html
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ADR Online: Choice Of Arbitration Forum Unenforceable 'Unreasonable,Excessive' Cost A Deterrent, an Analysis of Brower v. Gateway 2000 Inc.By Cerisse Anderson
An arbitration clause in a contract shipped with a mail-order computer is valid, but the requirement that buyers arbitrate disputes with the seller under the rules of the International Chamber of Commerce is unenforceable because such proceedings are too expensive for most consumers.
Details: http://www.ljx.com/practice/arbitration/0814arbforum.html
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ADR Online: Second Circuit Decision Heralds Fundamental Changes To Arbitration
By Carroll E. Neesemann
The Second Circuit seems to have at least somewhat clarified and may have fundamentally changed arbitration as we have known it in Halligan v. Piper Jaffray Inc., 1998 U.S. App. LEXIS 15193 (2d Cir July 9, 1998). The court addressed the basic issues of (1) whether an arbitration award may be overturned for manifest disregard of evidence, (2) whether arbitrators need to write reasoned awards justifying their decisions and (3) whether arbitrators must follow the law. On each of these points the case seems to represent a departure from the past.
Details: http://www.ljx.com/practice/arbitration/0724arbherald.html
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ADR Online: The New And Improved Construction Industry Arbitration Rules By Steven A. Arbittier
This article outlines the various changes in the new rules, including speed, discovery, conduct of the hearing and the scope and form of the award. This will be an article of great interest for those participating in construction arbitration.
Details: http://www.adr.org/pl/arbittier.html
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ADR Online: The Critical Impact Of Word Choice In Mediation By Gregg F. Relyea
This article focuses on the constructive impact of effective word choice by a mediator and identifies some common speech patterns that can be destructive to the mediation process.
Details: http://www.cpradr.org/alt_scrn.htm#current
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Recent Developments in Dispute Resolution
Willamette Law Online - Willamette University College of Law
Faculty Editor: Ross Runkel - rrunkel@willamette.edu
Student Editor: Kevin Cheatham - kcheatha@willamette.edu
Student Editorial Board: David Ward, Alison Hohengarten, Scott Perry
Web site:
http://www.willamette.edu/law/wlo/dis-res/
(Past Newsletters: Available Online At The Web site Under "DR Newsletter")
Note, this news, in the summary "extra" portion of my March Newsletter, was sent out in the December Newsletter provided by Willamette and is provided to show you the quality and breadth of the information they provide, by free e-mail newsletter. If you want the current news and law delivered directly to your desk, this is the place to go.
It may seem silly of me to encourage people to subscribe to a different free service, but I sincerely recommend a subscription to the Williamette newsletter for anyone interested in ADR.
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This Website is by Stephen R.
Marsh
Contact Information at:
http://adrr.com/smarsh/