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Mediation On-Line

A Newsletter from ADR Resources
Volume 5, No. 5 (March 2002)


Stephen R. Marsh Picture


I've been really happy recently.  That used to be my normal state and it is strange to find myself back in it. I hope life finds you happy as well.

I dropped off of a bar association committee I belonged to and am doing some volunteer work with the local rape crisis center and a medical facility for impoverished children.  Both are things where there are real people with real needs to help.

Unfortunately, with my new job and the available time off I had, I had to choose between my in-laws 50th wedding anniversary and the ABA ADR convention in Seattle. Luckily there were three other people on the presentation slot with me, so they will be using some of my scripts (I dictated my part of the presentation -- and they have plenty of their own material) and it will go on without me.

Camara has new Spanish language material that has been added to it.

I've also added a new faq section at  I invite your comments or suggestions (its a work in progress, a rough draft).

The Recommended Books of the Month:

The Mediation Career Guide by Mosten.  I'm recommending it again.  I am also recommending (sight unseen) the ALI-ABA's Practice Checklist Manual on Alternative Dispute Resolution.

Interesting new Mediation & ADR (and other) web sites

Educational Programs / News and Book Reviews/Books/Periodicals

The ALI-ABA's Practice Checklist Manual on Alternative Dispute Resolution is now available.  The ALI-ABA books are generally quite good (I haven't seen this one, so I can't vouch for it).  $94.00 (including shipping and handling) ALI-ABA's Customer Service Department, 4025 Chestnut Street, Philadelphia, PA 19104-3099; call 800-CLE-NEWS (253-6397); or, with a credit card, FAX to 215-243-1664, or visit ALI-ABA's Web site at

To everyone who suggested that I should try to take my working papers on various issues and see if (the Association for Conflict Resolution) would be interested in a finished print publication version, I need to let you know that they were not interested.  I contacted them and was told that they had no interest whatsoever.  Since I'm now too busy to finish such a project, it is just as well.

Current Issues

My experiences with IACM are interesting, but they appear to have some neat conferences.  I would suggest that if you are interested in professionalism beyond "court-annexed mediation" it looks like a good place to start.

A quote from Bob Lewis of

USA Today printed something useful, too: a piece by Stephanie Armour about companies that refuse to lay off employees just to make the numbers. In it she cites a study by Watson Wyatt ( ) showing, among other happy conclusions, that excellence in recruiting and retention results in increased shareholder value -- nearly 8 percent more, in fact.

Also consider Joel and John Schwieters, who own eight companies in the home construction industry. They frame and finish houses twice as fast as most construction companies, their projects lack the debris that usually litters construction sites, they're known for exceptional quality, and they're growing by more than 20 percent per year.

How do they achieve these results? Unlike nearly every other construction company, they don't subcontract their work force. They employ their builders, paying them a regular salary, excellent benefits, and a shared bonus pool. Even more interesting is that they're expanding into their supply chain. Whereas the popular core/context theory applauds companies that prefer outsourcing any activity that's "noncore" (that is, not a marketplace differentiator), the Schwieterses understand that controlling the supply and delivery of doors, trim, prebuilt staircases, and such will improve their margins.


I'm going to revisit a letter I received. It works much better on-line where I use color and other attributes to distinguish my comments from the questions asked (so if this doesn't make sense, visit the website at


Mr. Marsh:

While using the Google search engine to locate ---- , I stumbled across one of your email messages. It is obvious from the amount of time and care that you took answering the other party's questions, you are quite knowledgeable regarding the field of dispute mediation. Therefore, I am PRAYING that you can supply me with some answers, or at the very least, point me in the right direction.


I must admit that I am more accessible than knowledgeable.  If I were knowledgeable I'd know who Afzal Rahim is.


I have completed four of the dispute mediation courses that are being offered at ---- as part of their mediation certificate program. My intentions are to continue taking advantage of their excellent program, and to increase my knowledge base whenever possible. I am currently participating in a practicum at a law office, primarily to gain legal knowledge and a bit of insight as to what attorneys look for in mediators. I feel confident regarding my mediation technique and I feel that I know my stuff. I am all set to get started in this field, but I seem not to be able to pull ANY information regarding how to get going in this business. I need simple information, like:


I have to ask this writer a serious question.  Why haven't they been able to get answers to their questions at the program where they are paying their tuition?


-What is the secret to getting on with the ADR program at the ---- County Courthouse? (No one returns phone calls.)


One, they are very busy and a few people have been sick.  Two, they usually assume that if you don't know the answer, you are not qualified.  Three, if you drop by in person they always take time and they are always gracious.

Bottom line, you need to be an experienced mediator in most counties and with most judges.  If you aren't, then you can sign up for a practicum at the DMS (the volunteer center) until you are.  Most people (who must now pay for practicums -- the sign ups were overrunning the DMS) do not ever go past a practicum.

I should warn you that "Getting On" at the Courthouse doesn't mean much.  Some judges use the roster as a pre-req for screening (they then screen people on the roster) others just ignore it completely.  So, the roster is only one step, then you need to visit each and every judge, find out from their court coordinator what the steps are to apply for their individual roster, and apply.

Unfortunately, many people take it as a test of your basic competency as to whether or not you can figure these steps out on your own.


-How is one considered for the list of mediators that the Federal Mediation and Conciliation Service (FMCS) and the GSA contract from? What are their requirements? I have called the GSA office here in Dallas, and spent two days getting bounced from voice mail to voice mail. Finally, a nice gentleman in a Ft. Worth government office was delegated to assist me, but he too could not find the information. Everyone's been nice, but no one seems to know anything.


No, no one wants to tell you anything.  FMCS is an old boys network, with serious conflict of interest problems.  They fired in house attorneys over providing management at FMCS basic audit and control information revealing the problems.  GSA is also an old boys network. Both have little work to contract out.  The last time I listened to a (now ex-) director of FMCS address a large public gathering he was quite caustic about ICAR and other extremely legitimate groups.  I don't know the current leadership, but any entity that was led by someone who disdains ICAR PhDs is likely to be extremely critical of people with less training in conflict and dispute resolution.


-What requirements do the Postal Service have for the mediators that they contract? As part of my work at the law office, I was able to observe a Postal Service Mediation. I tried in vain to get the mediator to give me some concrete information. The most that he would do was to give me his card and ask that I pass it along to the attorney that I was assisting.


Yep, that group is out to prune members, not do anything to let anyone join.  Postal Service Mediation was too effective, and the amount of work each year drops as people learn from participating and have fewer conflicts and problems.


-Is there an EEOC mediator's training program? (On the EEOC website, such training is alluded to, but specifics are never given.)Would their be any advantage to me attending the 'American Association for Affirmative Action' Conference and participating in their workshops. I get the impression that this too is a 'closed' society.


The EEOC's attorneys have a union.  When EEOC mediation began, the attorneys union wanted to basically give all the work and positions to its members without allowing for open competition under the civil service law.  They cut a deal to get around the law by giving the people "in the know" who could challenge them first year overflow work in the guise of making part of the program in-house staffed and part freelance.  As an EEOC attorney laughingly told a group of us, the "outside" group needed to rely on Congress to make special appropriations every year.

Basically, they bought the outsiders off for far less than thirty pieces of silver.  On the other hand, while the union members could not have gotten the jobs "fairly," now that they have a few years of experience and training they are by far the most qualified people to do the work they do and they do it very well.  I don't really see as it hurt anyone except for those few experienced attorney-mediators who would have gotten life-time pleasant government employment in the place of the union members who wanted the same jobs.  The numbers are small, and the people who got the jobs put in their dues by working hard for the EEOC.

It is hard to fault the outcome.


-How do you get the attention of the various Justices of the Peace? (I call and call, and only get secretaries who have little to no idea if the justices use mediators)


Most don't, even though the program in Oklahoma has been a spectacular success.  The key to a great mediation program for JP courts is lots and lots of pro bono (volunteer, for free) mediators -- usually college students in HR -- who want experience.  You set up a location for them and when you call your docket you give people the option to get mediated. Many will take it, especially if they've heard of it or experienced it.  If the mediation fails, they can always move to the top of the next day's trial docket.

Bottom line, if you want a mediation program with JPs, you will need to start one.


-Do you really have to contribute to various judge's election funds to be considered for their mediator's list? (Excuse me if I am not suppose to ask this question.).


That is actually a very fair question -- I think anyone with any sense should ask that question.  Much to my surprise, the answer is no (at least in Dallas County, Texas -- I can't speak for other jurisdictions).  It doesn't hurt to give flowers or candy or cookies to the court coordinator or staff, but the judges and their campaigns no longer expect donations from mediators (if they ever did) and the coordinators and staff have no input on who gets selected for mediation appointments. On the other hand, if you can afford it, why not find an excuse to do something nice for someone?


My final question: Where is the key kept that gives me entry into the world of mediation? Seriously, I feel as if there are mediator club meetings being held at undisclosed locations. No one wants to give up any specifics. I realize that the business environment is about competition, survival of the fittest and all of that, but give me a break. Aren't we as mediators supposed to at least attempt to incorporate the notion of interest-based thinking into our everyday lives?


The only key I know is personal contact with gatekeepers and a strong level of competence in some outside area.  Patent litigators become IP (intellectual property) mediators.  Board Certified Family Law Attorneys become court-annexed divorce mediators and PhD MD family counselors become divorce facilitaion and mediation providers.  

As for interest based thinking, take this as a task.  Find an interest that an existing and (commercially) successfull mediator has in sharing work and information with you and convey it to that mediator.  Your program that trained you should be able to help you frame the issues and an approach.

Finally, go to and look at the books I recommend.  Read them and follow their advice on marketing.  Put together a plan and execute on it.  When you finish, write an essay for me to publish -- I'd love to be able to share your experiences, retrospectives and successes.



[/quote & comments]

Submissions to

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.  I should also note that I am changing my service provider, so that is the best e-mail address to use to reach me.

With my best regards, I remain,

Sincerely yours,

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