Mediation On-Line A Newsletter from ADR Resources http://adrr.com/adr9/023.htm Volume 2, No. 11, August 1999 From: Ethesis@AOL.Com (Ethesis) To: SMarsh@adrr.com Subscribe

Greetings:

A couple administrative notes.

First, I am seriously considering changing the administration of this newsletter over to listbot (listbot.com).  That would automate unsubscribing and subscribing.

Second, SPIDR has released the draft for credentialling proposals in a very narrow area.  That should be an interesting area as they develop what they are proposing.

Finally, the newsletter may go to six times a year rather than monthly.

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#SMALL and value referrals and suggestions about good sites.

• www.mediationcentre.on.ca is a mediation center site in Ontario, Canada, Elgin Counselling & Mediation Centre. Recommended.  Coincidentally, Elgin, Oklahoma was near a place I used to live, and Suzette Haden Elgin is one of my favorite authors and peacemakers.
• The United States Deparment of Justice Office of Dispute Resolution is at http://www.usdoj.gov/odr.
• Federal Interagency ADR Working Group site, which I've recommended before, continues to be updated.  Worth a visit at http://www.financenet.gov/iadrwg -- it makes me feel better about my taxes when I see excellent work presented like this.
• An interesting site, Academic Resources Site is at http://www.winxwin.com/links.htm.  The main winxwin.com site is an approach that can offer some perspective if you are considering your own site.
• BTW, the law firm I just became a partner (shareholder) at has its new web site at zislaw.com.  It should be through the Texas State Bar's approval process and open to the public by the end of the month (if you go early, all you'll find is an autoforwarding link that puts you on the Westlaw site).  Wait towards the end of the month if you decide to visit.
• http://www.kteo.org/mediate/ is a nice website used to supplement a business card.  Exactly the sort of thing most mediators should consider to supplement plans for a firm brochure.
• The Theory to Practice institute now has their major publication on-line.  To obtain an electronic copy without charge, you can visit:
  1. http://www.colorado.edu/conflict/Theory_to_Practice/index.htm, or
  2. http://mantle.sbs.umass.edu/convenor/index.htm
• http://mediation-adr.com/gromala/0.articles/family.html is the essay:  Mediation During Business Formation or Reorganization, What partners often leave unsaid.
• http://www.ncmahq.org/conference/stcconf.html -- The National Contract Management Association (NCMA) is having their first annual Special Topic Committee Symposium on ADR (featuring many federal ADR experts) on August 12th at the JW Marriott in Washington DC. For more information, contact Cathy Etheredge ETHEREDGE@NCMAHQ.ORG  1/800-344-8096 or go directly to the conference web page above.
• Another federal page is at:  http://www.financenet.gov/financenet/fed/iadrwg/ces-reso.htm.
• The Balkan Recovery Project: Catastrophic Trauma Recovery Training (CTR), and the 8th ANNUAL INTERNATIONAL CONFERENCE ON CONFLICT RESOLUTION (ICR) held May 11-21, 2000 in St. Petersburg, Russia have a web site for full detailed information on both efforts at: http://ahpweb.org/cbi/home.html.
• The Institute for the Study of Conflict Transformation has a revamped web site at http://www.hofstra.edu/Law/isct.

News

SPIDR has a 3CQ group working on a draft of a piece about what is involved in being qualified to design and implement conflict management systems. (3CQ stands for Committee on Credentials, Certification and Qualifications.)  Vist the SPIDR website for more information.

Essay/Comment/Books/Periodicals

The following is a Guest Essay:

From: kgeaton@worldnet.att.net (Kandel Eaton)

To: Stephen@adrr.com

HI!!!

I am currently a 3L law student at IU School of Law Indianapolis...I have been a critic of training in mediation for law student since I became one in 1996 ... I have thoroughly researched the availability and practicality of learning mediation and have some conclusions to make:

1. Law students are subjected to a less than professional standard of mediation training by being offered merely a three-credit course at most law schools...although this is slowly changing and actual certified training is being offered intermittently, there is no real committment on the part of most law schools to integrate mediation into their curriculums -- some of this is due to the fact that law students are barred from becoming mediators although social workers an accountants are eligible generally ... the boom in demand is being met by non-attorneys, a class of whom law students who could be competent mediatotors are denied that chance. Overall there is skepticism and lack of acceptance of law students as mediators.
   
2. I have become involved, outside my law studies, in an academic certificate of mediation program which exceeds any known standards. It is offered by The Indiana State University Scoiiology Dept. and consists of three classes...(this is in line with academia in the sense that 3 classes usually make up some kind of graduate certificate, it is expanded to four classes for students enrolled in the Master's Program):
   • SOC 625 Conflict Resolution Approaches and Theories taught through Satellite and videotape sessions ( must receive a "B" to continue in the program) by the professor who authored the book of the same course title and who runs the struggling program, Professor James Schellenberg.
   • SOC 626 is a series of weekend seminars which provides free to the student (or sometimes a smaal fee depending upon enrollment) Family Mediation Training (50 hours-includes state law and extra role plays), or Family Crossover Training and
   • Community Mediation Training, and requires reading Getting to Yes and with answering detailed questions on the matter, also must be letter-graded "B" or higher.
   • SOC 695 which is 100 hours of on the job internship, and if offered (sometimes these are canceled) Civil Crossover training and advanced mediation (to be up to state criteiria next year).

I have not seen a more covenient or complete program that encompasses the best of both theory and application since I have begun looking in 1996. And I feel weel enough qualified to know what I am doing, the rest is just the practice of mediation, but it has shown me how to hit the ground running to be a part of.

But one must note that no law school will transfer these credits as part of a law degree ... if you could spread the word on the program, at least for Indiana, it may help save one of the best thought out mediation curriculums that exist.

K. Eaton

My Response

In my experience, there is no bar on law students acting as mediators while they are in law school -- other than the willingness of people to hire them.  I should note that I live in a state where there is no pent up demand for mediators (there is a lot of mediation going on, just that the supply exceeds the demand by a fair margin).  I am curious as to why some states would have such a ban.

I have some comprehensive criticisms of law school training in general at http://adrr.com/law0, but this specific example is true to the type of the general criticisms that exist.

However, ADR is a hot area in hiring for law schools and has been for about the last seven years (I expect that the "boom" in hiring is probably going to end by next year, but it has been impressive to date).  As the hiring goes, so does the willingness of schools to incorporate and teach ADR.

As for non-law school classes and law school credit, take up the issue with the ABA.

I am excited about the Indiana program.  As I obtain more information, I will be adding it to the list at http://adrr.com/adr9/020a.htm.

International Updates

MEDIACION EN EL AMBITO PENAL DE MENORES.

La Universidad de Barcelona organiza un curso avanzado de 30 horas que se desarrollará en esa ciudad entre el 27 de septiembre y 1 de octubre de 1999.

Este curso se realiza con la coordinación de Fomed Argentina Asociación Civil, entidad con Habilitación N° 127 del Ministerio de Justicia de la Nación de Argentina quien aprobó dicho curso por la Disp. DINAMARC N° 26/99.

Los docentes del mismo son mediadores de la Dirección General de Medidas Penales Alternativas y Justicia Juvenil de la Generalitat de Cataluña, junto con catedráticos de derecho penal y docentes del Postgrado en Mediación de la Universidad de Barcelona.

La matrícula establecida para dicho curso asciende a $ 800.- ofreciéndose adicionalmente un programa básico de pasaje aéreo y estadía. Las vacantes son limitadas.

Para obtener más información dirigirse a los coordinadores en Argentina, Dr. Daniel Colombo Russell Tel (54-11) 15-4420-9224 y Dra. Marcela Montero Tel (54-11) 15-4051-6523, o a Fomed Argentina Telfax (54-11) 4322-7941 e-mail fomed@farmasur.com.ar

Camara (e-mail at ZAZAZA@ibm.net) is attempting to establish a Mediation Center in Huaraz-Peru, a ciity in North of Peru. The Regidor of Municipality of Independencia in Huaraz has offered the furniture, desks and an office but there´s no money to finance the center.  If anyone has suggestions or leads on financing opportunities, please contact Camara by e-mail at ZAZAZA@ibm.net.

On Employment and Professional Organizations

I've been following up on places where mediators were charged with the unlawful practice of law. So far:

1. North Carolina (dismissed/dropped)
2. Utah ?
3. California ?
4. Rhode Island ?
5. Massachusetts (only jurisdiction to discipline for improper mediation practices, exonerated the mediator in the case).

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/adr9/023.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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Post Script (the "extra" material for the on-line version).

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 July Newsletter, was sent out in the June 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.

Arbitration: Award of Penalties Reversed, Complete Vending Services, Inc. v. Industrial Commission et al. (John Thompson) (Ill. App. 2 Dist. 5/26/99) *This opinion has not been released in the permanent law reports and is subject to revision or withdrawal.

John Thompson (claimant) sought benefits pursuant to the Workers' Compensation Act for injuries sustained after he rear ended another vehicle while working for Complete Vending Services, Inc. (CVS). The arbitrator awarded Thompson medical and temporary total disability benefits. Penalties were also awarded pursuant to Section 19(1) of the Act. CVS argued against penalties, stating that Thompson was not acting for the employer's benefit as he was on his way to work when the accident occurred. CVS based its argument on the fact that claimant had to "reimburse" CVS for his travel to and from work because claimant was using a company vehicle. The arbitrator found this argument irrelevant.

The Industrial Commission affirmed the arbitrator's decision, and, in turn, the circuit court of Kane County confirmed the decision of the Commission.

The Illinois appellate court reversed the award of penalties because CVS's argument was made in good faith and penalties are not intended to inhibit contests of liability made in good faith were the facts of the case were unique, referring to the "reimbursement".

[Full Decision On Westlaw: 1999 WL 333692]

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

Arbitration: Information Obtained in Prior Arbitration Not Confidential, A.T. v. State Farm Mutual Automobile Insurance Company (Colo. App.5/27/99) *This opinion has not been released in the permanent law reports and is subject to revision or withdrawal.

Plaintiff, A.T., a self employed chiropractor, was injured in an auto accident and defendant, State Farm, was her insurer. Plaintiff submitted a claim against State Farm to arbitration. During the arbitration it was disclosed that plaintiff had been diagnosed with a psychological disorder. An award was entered in plaintiff's favor. Later, plaintiff testified as an expert medical witness in litigation between one of her chiropractic patients and State Farm. State Farm's attorney questioned plaintiff about her psychological disorder diagnosis during this proceeding.

Plaintiff brought suit against State Farm based upon disclosure of confidential information. The trial court granted summary judgement in favor of State Farm, holding that information acquired during prior arbitration was not confidential. There was no confidentiality agreement and the arbitration was governed by the rules of the Uniform Arbitration Act, which is silent on confidentiality. The court of appeals affirmed the trial court's conclusions of law.

[Full Decision on Westlaw 1999 WL 333177, www.cobar.org/coappcts/ctappndx.htm]

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

ADR Online: Jack A. Hamilton & Elisabeth Seaman, Turning Around Polarized Mindsets in Workplace Mediations

Authors explore the need for workplace mediators to better identify and understand disputes that have been exacerbated due to perceptions based on some form of group membership (race, gender) and separate stereotypes from the individuals involved. The article offers a 5 step process and examples of destructive behavior brought on by stereotyping.

Details: www.mediate.com/articles/workplace.cfm

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

ADR Article: Charles C. Caldart & Nicholas A. Ashford, Negotiation as a Means of Developing and Implementing Environmental and Occupational Health and Safety Policy

Authors analyze the use of negotiation in formulating and implementing environmental and occupational health and safety policy in the U.S.. They further attempt to asses the potential of negotiation to foster improved environmental and health and safety outcomes, as well as stimulate technological change.

23 Harv. Envtl. L. Rev. 141-292 (1999)

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

ADR Article: Patrick Specht, The dispute settlement systems of WTO and NAFTA - Analysis and Comparison

Author evaluates the effectiveness of the WTO and NAFTA DR institutions in investigating complaints, preventing "multiple jeopardy", eliminating tactical advantages, and eliminating retaliatory trade legislation - all of which the author claims to be necessary goals of a DR system. The article also compares the two procedures against each other.

27 Ga. J. Int'l & Comp. L. 57-138 (1998).

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

Editor's Note:

If you are interested in DR and government, Recording Industry Association of America v. Librarian of Congress (D.C. Cir. 5/21/1999) is an interesting case. Under section 114(f) of the Copyright Act, the Librarian of Congress is charged with establishing the rates and terms for compulsory licenses of transmissions of digital music. The Act provides that terms of the licenses can either be negotiated or set through arbitration. After several digital music providers (such as Muzak, L.P.) and the RIAA could not agree on the percentage of the gross domestic residential revenues to be paid to the RIAA, they submitted their claim to arbitration. The Librarian ultimately modified the arbitration panel's award to increase the percentage of revenues paid, but accepted the panel's finding that the RIAA should collect and distribute revenues on behalf of all those owed, even though 10 percent of the potential recipients did not belong to the RIAA. The Court determined that there was insufficient evidence in the record to support the collection scheme ordered by the Librarian and remanded the case for review. Thus, it seems that an arbitrator's award can be subject to APA type standards of review.

[Full Decision on Westlaw 1999 WL 317036 or, http://www.ll.georgetown.edu/Fed-Ct/Ciruit/dc/opinions/98-1263a.html]

_____________________________________________________________

Web site: http://www.willamette.edu/law/wlo/dis-res/
(Past Newsletters: Available Online At The Web site Under "DR Newsletter")

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