From the monthly archives:

May 2009

Law like love: thoughts on a Supreme Court nomination, ADR, and jurisprudence

by Diane Levin on May 29, 2009

in ADR, Lawyers, Law and Justice, Legal Issues, Popular Culture, Politics, Society, Random Musings

Law like loveEarlier this week President Obama announced the nomination of Federal Appeals Court Judge Sonia Sotomayor to the U.S. Supreme Court.

Predictably her nomination produced swift reaction: cheering accolades from some quarters and harsh condemnation from others. What caught my own attention was the response of a number of conservative pundits to an article Sotomayor wrote with Nicole Gordon, “Returning Majesty to the Law and Politics: A Modern Approach” (PDF), 30 Suffolk U.L. Rev. 35 (1996), based upon a speech Sotomayor delivered in February 1996 as part of the Donahue Lecture Series, a program instituted by the Suffolk University Law Review to commemorate an honored 1921 alumnus, Judge Frank J. Donahue. A former faculty member, trustee, and treasurer of Suffolk, Donahue served as an Associate Justice of the Superior Court of Massachusetts for 42 years. (As an aside, over the years the Donahue Lecture Series has featured many distinguished speakers, including Chief Justice William H. Rehnquist, Associate Justices Antonin Scalia and Stephen G. Breyer, and Judge Richard A. Posner.)

Sotomayor’s article acknowledges the lack of public confidence in law and legal institutions, due in part to law’s propensity to evolve over time and the uncertainty of its outcomes, and sets forth some modest proposals to restore confidence in the legal profession and the judiciary.  Sotomayor recognizes, too, the binary limitations of law, giving alternative dispute resolution a nod:

…the adversary system, almost by definition, cannot address the gray area of the “truth” present in most cases because the system tends to produce all-or-nothing winners and losers. This is why settlements and new forms of “alternative dispute resolution” are so important.

What provoked the heated wrath of several conservative voices? These words:

The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.

And these:

The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.

And finally these:

…a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction…[referring to cases of first impression]

Sotomayor’s critics are quick to see these as nothing more than secret code, the tell-tale signs of judicial activism, and convincing proof that Sotomayor will make up law out of whole cloth to advance a radical left-wing agenda.

Alas, there is nothing either remarkable or sinister about what Sotomayor has written. She is simply describing what every first-year law student in common law jurisdictions like the U.S. learns during his first few weeks in law school: that law is in flux, gradually but constantly evolving, and that some of it, as indeed it has been for centuries, is the product of judicial decision making not legislative action.  At the risk of reproducing here what has rapidly devolved into a tedious cliché through constant repetition, I offer you what jurist and legal scholar Oliver Wendell Holmes said about the law in his best known work, The Common Law:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

On a less lofty, more pragmatic level, the uncertainty of law is well known to its agents, intermediaries, and surrogates: it is what creates leverage at the mediation table. As litigators and the mediators who assist them behind closed doors know full well, the law can be unpredictable, so better trade hope for certainty by settling.

While pundits cannot see it, even the poets know of the mutability of law; I leave you with W.H. Auden’s moving work, “Law Like Love”, which speaks of law’s unknowable and ever-changing nature:

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,

No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyvay:
Like love I say.

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

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Mediate.com CEO responds to questions about new Mediator Certification Program

by Diane Levin on May 22, 2009

in Careers in Mediation, Mediation, Mediator Certification and Credentialing

questions for Mediate.com CEO Jim MelamedThe following interview is reprinted with permission from the Mediate.com web site, with thanks to Mediate.com CEO Jim Melamed. No enhanced interrogation methods were used in the making of this interview. Please feel free to add your comments at the end of this post.

Mediate.com Certification Program: A Grilling of Mediate.com CEO Jim Melamed

Three of the mediation world’s leading bloggers, Diane Levin, Geoff Sharp and Victoria Pynchon, not necessarily great fans of mediator certification, interviewed (think “grilled”) Mediate.com CEO, Jim Melamed, on the new Mediate.com Certification Program. Here is the interview:

Question: How will Mediate.com’s certification program work?

The Mediate.com certification program allows interested mediators to have their training, experience and professional information reviewed to see if they meet the stated Mediate.com certification standards. A critical component of the Mediate.com program is that we require all this submitted information to be transparently provided to the public. So, we don’t just review the qualifying information, we make everything we review publicly available. Needless to say, confidential information is neither requested nor disclosed.

Question: What are the benefits for the public? For the profession?

The primary benefits to the public include motivating mediators to provide comprehensive information conveniently online; having this information systematically presented to the largest possible audience; and Mediate.com offering the value-add service of taking a close look at the mediator’s provided information to ensure that it is comprehensive, congruent and satisfies the stated certification standards. Presumably, the Mediate.com Certification Program will be one of a number of factors helping people to make mediator selection decisions. For good reason, this program will elevate the confidence of many mediator selection decisions.

Still, let’s be clear, one does not need to be a Mediate.com Certified Mediator to mediate. For example, we have over 3,000 mediators in our directory and only about 500 are seemingly qualified or even apply for Mediate.com Certification. We believe in all cases that the right mediator for a particular situation is the one that participants want.

The benefits to the profession are: making it abundantly clear what it is that distinguishes mediation and insisting on these qualities; elevating standards for mediator information disclosure; providing a path for mediator development not based upon profession of origin nor advanced degrees; and, in the Internet age, satisfying consumer expectations in terms of transparency and disclosure. Mediate.com seeks to respond to these elevated information expectations.

Question: On what basis does the proposed certification rest?

Perhaps the greatest rationale for Mediate.com acting is that we believe acting is better than not acting.

For decades, the mediation field has, as a matter of policy, committed itself to “skills based assessment” and, later, to a “paper and pencil test,” none of which has yet been effectively developed or implemented. This is in spite of nearly two decades and millions of dollars of grant money being applied to these issues. The cost of this development and deployment of a true skills-based system would be enormous, if possible at all (we really do not know what makes an effective mediator in each practice area); so costly by my estimate that it is simply not going to happen, at least not for “all mediation,” over the next years.

The world of mediation is also breaking into niche mediation industries, each with its own culture and practice expectations. This is both good and challenging from a quality assurance perspective. For example, the behavior and skills that will be effective for a commercial mediator in a law firm conference room may be very different from the behavior and skills that will be effective in resolving a gang dispute, custody battle or workplace departmental battle. Still, we also simultaneously think that there is something to say for a system that brings all mediation and mediators together, if only to protect the good name of “mediation.”

We are thus emphasizing these qualities to the consuming public:
• Participation in mediation negotiations is voluntary
• Participants have complete decision-making power
• The mediator is to be impartial between the participants
• Mediation communications are confidential unless understood otherwise
• Mediation allows for optimized solutions
• Mediation does not preclude any other process
• If participants do not reach agreement in mediation, their legal rights should not be prejudiced.

Now, to some, all of this is “obvious.” And we say, “of course.” But I will suggest that many state and federal agencies and court systems do not necessarily see things this way. They are far more interested in disputes being resolved and dockets cleared than in protecting the mediation process or in empowering participants to be at their best.

The world has also changed. Importantly, the Internet is now available as a source for the immediate delivery of unlimited information and comprehensive disclosure. In the context of empowering consumers and participants to “self-determine,” we think it is worthwhile to reward (with our mediation certification) those mediators that demonstrate substantial training, experience, clear commitment, and comprehensive information disclosure and transparency.

Question: What qualifications, standards, and/or objective criteria will certification be premised upon?

First, let me again emphasize that certification is completely voluntary. Mediate.com is not saying that any mediator needs to be certified. We believe that the right mediator is the one the participants want. So, we are certainly not precluding anyone from mediating.

As to the adopted training and experience standards, these have now been in place at Mediate.com for a number of years for self-evaluation as a “Senior Mediator” in our Qualifications Disclosure Program. In fact, these standards were originally adopted as an outgrowth of the work of the ACR Task Force on Certification. The ACR Task Force gave up, if only for practical reasons, on SPIDR’s previous commitment to a skills-based assessment. Despite the ACR Task Force’s commitment to a paper and pencil test in 2004, none has been developed nor implemented to date.
The concepts of skills-based or paper and pencil testing sounds great in the abstract. It is more challenging when, in this testing context, one needs to ask what specifically makes for an effective mediator, and how can we measure this in a valid and reliable way? Further, assuming you can somehow come up with this desired knowledge and skill base and all evaluation mechanisms, you would then need to identify the specific curriculum a mediator applicant would need to take to be best prepare to pass the test. And then one would need to approve those training programs. It all becomes rather endless and nothing happens.

And so, I suppose, the ultimate credibility of the Mediate.com standards comes from: 1) The ACR Task Force on Certification having reached essentially the same conclusions (except for the paper and pencil test); and 2) The elevated Mediate.com standard being better than either no standard or existent 30 or 40 hour (low) standards that too commonly exist. As imperfect as the Mediate.com’s program is, we believe that it is a step in the right direction and that it is what can be reasonably accomplished today.

Question: So, are experience and training a proxy for skill and ability?

Because of the difficulties raised above in measuring true skill-based competency (especially on an across-the-board mediation basis), I would say yes, extensive training and experience, including providing specific practice area case information, references, and all the other required disclosures are in fact a proxy. To some extent, this is appropriate (if only compared to reasonably available options). For example, when people ask me what I think mediation qualification standards should be, I sometimes half humorously respond: “You should need to mediate 10 cases and still want to mediate.” If we cannot reasonably measure competence per se, I would agree that elevated training and case experience, comprehensive disclosure, and perseverance may in fact be our best available proxy.

Question: How will Mediate.com’s Certification Program relate to emerging practice area, court, agency, and state mediator certification programs?

Mediate.com’s goal is to set reasonable standards for today available to the entire field of mediation. For those who find such accomplishment beneficial, this may well be a welcome means of establishing credibility and reputation. Surely, the Mediate.com program will not be the only certification program nor should it be. We welcome, expect and encourage the development of additional practice area, court, agency and state mediator certification programs. We suggest that these programs may also want to consider the 100 hour of training and 500 hours of casework standards, as these are based on the original ACR Certification Task Force Report and as a measure of consistency will likely assist both the public and the profession. In any event, this 100/500 standard is surely more appropriate than the current common 30 or 40 training requirements. We also think it important that judges, lawyers, and all other professionals understand that substantial mediation training and experience are necessary to be a most effective mediator and that simply being a silver-haired professional or retired judge is not enough.

Very specifically, I see the Mediate.com Certification Program rather easily integrating with the IMI certification program for commercial mediators (see http://www.imimediation.org) and, hopefully, with emerging divorce and workplace certification programs from ACR. Our hope is that Mediate.com’s efforts will serve as a catalyst further motivating such thoughtful development. Mediate.com literally requires our certified mediators to list all organizational affiliations (including other certifications) and we look forward to lending visibility to all meaningful efforts to elevate mediator performance.

Question: What kind of instrument or assessment will Mediate.com use?

The Certification Application is at this location: http://www.mediate.com/products/pg1128.cfm Additional guidance on the principles and values behind the assessment is available here: http://www.mediate.com/products/pg1129.cfm. What is critical to understand is that, whatever information Mediate.com reviews and considers for certification approval is the exact same information that will be transparently made available to the public. We will do our very best to treat applicants both as consistently and as flexibly as we can within the stated standards.

Question: Given that there are numerous (and often conflicting) models of practice, what will Mediate.com do to ensure that certification treats them all fairly and avoid privileging one over another?

Not only are there constantly changing and emerging models of practice, there are entire new mediation industries being hatched on an ongoing basis. For example, two years ago, few people thought of foreclosure mediation, or mass catastrophe mediation or marital mediation, yet each of these niches is now rapidly growing. Bottomline here: we are not even asking about models other than to confirm in all circumstances that the participants have complete decision-making power.

Question: What will Mediate.com do to ensure that the program advances and not hinders professional diversity?

This is one of the biggest problems with both the current system and contemplated skills-based assessment. Because of the uncertainties as to what indicates a competent mediator, the marketplace tends to turn to traditional indicators of professional competence, such as a law or some other advanced graduate degree. In fact, without other available valuable indicators, consumers and their advisers may select an attorney mediator based upon his or her reputation as a litigator or a retired judge who just came off the bench. These kind of “conservative” profession of origin selections make in extremely hard for minorities and young professionals to break into the mediation ranks.

At the other end of the spectrum, imagining that we could somehow develop a competent skills-based assessment, there is recognition by the ACR Task Force that the cost of face-to-face evaluation would be approximately $2000 per candidate. This was also found to have an undesirable impact on diversity and the development of minority professionals as mediators.

In sum, while one may criticize the Mediate.com Certification Program, I do not see a strong objection being that it favors any particular mediation model nor that it is overly discriminatory. In fact, we take great pride in the clear pathway we provide for mediators, over time, moving up the ladder to eventually become Mediate.com Certified as well as certified by other mediation practice area initiatives.

Question: What will the application process involve? What about fees?

Mediate.com is offering Certified Mediator Status to Premium Members of Mediate.com who Qualify as a “Senior” Mediator (see http://www.mediate.com/articles/review.cfm and http://www.mediate.com/articles/faq.cfm)

Mediators must provide and annually update complete practice information including: all degrees earned, professional background, mediation and professional credentials and affiliations, description of mediation training completed, description of mediation practice and approach, description of mediation costs and fees, specification of mediation case experience on a practice area basis, at least one recent picture, an indication of liability insurance or not, and maintaining an ongoing professional activities log of 12 hours of annual continuing education.

The Mediate.com Certified Mediator must also post links to three or more references prepared to vouch for his or her mediation work, or the Certified Mediator must indicate that references are promptly available upon request.

In terms of cost, one needs to be a Premium Member of Mediate.com to apply ($199/yr). Assuming this, there is a $150 certification application and first year fee. $50 is refunded if you are not approved. There will also be a $50/yr certification renewal fee.

Question: How will the program be administered? What kind of complaint and enforcement mechanisms do you propose to put real teeth into this certification program?

Applications will be acknowledged and responded to within 30 days of submission. This response will be an approval, disapproval, request for additional information, and/or a request for a phone interview with the Mediate.com CEO. Applications will initially be approved or rejected by the Mediate.com CEO. Applicants can apply for certification once per calendar year.

Applicants may make one Request for Reconsideration per application, which will first be considered by the Mediate.com CEO and then, if approval is still lacking, will be submitted to a 3 member committee of the Mediate.com Advisory Board. This committee may request additional information and/or request one or more phone interviews. Final action upon a Request for Reconsideration will be made within 60 days.

All complaints against Mediate.com Certified Mediators will be promptly investigated by Mediate.com. Certified Mediator status may be rescinded by Mediate.com for good cause.

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Preparing mediators for practice: mediation training or mediation education?

by Diane Levin on May 22, 2009

in Careers in Mediation, How to Become a Mediator, Mediation, Mediator Certification and Credentialing

mediation training raises many questionsRecently the alert I set up to monitor appearances of the keyword “mediation” in Twitter posts pointed me to the following message: “Just got back from Civil Mediation Training (30 hrs) to be a Qualified Neutral”. The message took me aback.

30 hours? To be a “qualified neutral”? Qualified? For what?

The persistence of the notion that 30 or 40 hours is sufficient time to train neutrals has long troubled me, a trainer of mediators. It is one advanced by court-connected mediation programs, some private training companies, and mediators themselves. It is even codified in law and court rule. But to be confronted in this way by someone’s certainty that 30 hours prepared them adequately to mediate civil disputes was jolting.

In the trainings I am involved with, we make it clear to participants that a basic mediation training provides an orientation to the field of mediation but that hard work and further learning lie ahead. The best students are those who come away with the humble understanding that they do indeed have a long way to go toward mastery. The ones who keep me awake at night are those who already have their business cards printed on the last day of the training.

My colleague to the north, Tammy Lenski, is clearly troubled, too. She writes:

Is there a qualitative difference between training mediators and educating mediators? I think so and I’m going to put myself far out on the limb here. No doubt one of you will want to shake me right off.

While training will likely always have its place in the ADR world, I’d like to see greater embrace of educating and less commitment to short-term, “let-me-call-myself-certified” training.

Training is traditionally concerned with the development of skills and preparation for specific jobs or roles.

Education is traditionally concerned with the development of the intellect, stretching and learning to use one’s mind.

Like Tammy, I have to wonder out loud whether it’s time for our field to look closely and critically at what it takes to prepare people to become effective mediators. I know that 30 hours or 40 won’t do it. But what kind, degree, and amount of training or education or practical experience under supervision – or some combination of those – will produce a competent mediator?

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Negotiating online relationships: a marketing mistake to avoid

by Diane Levin on May 22, 2009

in Networking and Social Media for Mediators, Random Musings, Tech and Business Tips for Mediators

oops! marketing strategies to avoidAs much I have been enjoying Twitter, the social media and instant messaging tool, it has one black mark against it: some followers try to sell you stuff you don’t want. I have quickly learned who not to follow back to avoid an influx of messages that are little more than shameless self-promotion or snake-oil ads.

Occasionally, these self-marketers will also pursue you beyond Twitter, sending you emails that push products or services.  One such effort backfired in a big way for the legal marketing specialist who deployed it.  They sent me the following message that begins with these words:

I have been reading your Mediation Channel and following you on Twitter. It is apparent that we have a mutual passion helping lawyers succeed. I have an opportunity for us to collaborate and do just that.

How flattering! Bloggers love to hear from their readers, so this isn’t a bad way to get a blogger’s attention. There was just one problem.

Despite the fact that my Twitter account links to my blog, which in turn provides my email address on a contact page readily accessible from the plainly visible navbar and from a link in one of my sidebars, this marketer sent this message to a different Diane Levin, who immediately spotted the mistake and took the trouble to forward the message along to me, the intended recipient.

This tipped me off that this marketer hadn’t in fact paid much attention to what was on my blog. In fact, it’s pretty obvious they hadn’t bothered to visit my blog at all. Since marketing is about building relationships with prospective clients, at least make an effort to be sincere and get the important stuff right.

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Mediation and negotiation link roundup: good stuff worth reading

by Diane Levin on May 21, 2009

in Cool Stuff on the Web, Mediation Link Round Up

Moo! Mediation Channel round-up of articles on mediation and negotiationEvery couple of weeks I round up here at Mediation Channel the links to articles I’ve shared with my followers on Twitter. (For those of you not familiar with this popular social media tool, you may wish to read “Negotiating Twitter: a mediator test drives the hot social media craze“, an article I recently wrote.)

Here’s the latest batch for your reading pleasure. I hope you find them interesting, useful, or just plain entertaining:

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Mediate.com announces mediator certification program

May 21, 2009 Mediation

After over a year of planning and development, Mediate.com, the world’s best known resource for information and news about alternative dispute resolution and negotiation, announced today that it has taken the wraps off a Mediator Certification Program for well trained and highly experienced mediators.
Mediate.com describes the program this way:

Mediate.com first ensures that our Certified Mediators [...]

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Law has a PR problem: too often, lawyers viewed as instigators not healers of disputes

May 10, 2009 Lawyers, Law and Justice

I spent Mother’s Day weekend in the town where I grew up, visiting my folks. On the drive eastbound home to Boston this morning along the Massachusetts Turnpike, I spotted the sign, hanging from an overpass somewhere past the Charlton service area. Rigged from a white tarpaulin or a bed sheet, it bore the following [...]

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On Mother's Day, every mother deserves a little peace…and justice

May 7, 2009 Conflict Resolution

An organization committed to promoting social justice, Inter Pares, whose name means “among equals” in Latin, has launched a campaign to take back Mother’s Day and rededicate it to the causes of peace and reconciliation that its early proponents worked for.
Here’s the video they’ve created urging mothers and anyone who’s got a mom to [...]

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Mediators pull plug on efforts to enact Uniform Mediation Act in Massachusetts

May 7, 2009 ADR Laws, Rules, and Regulations

In 1985, the Massachusetts legislature enacted a statute creating a privilege for mediation communications.
As it turned out, despite the good intentions of its makers, it proved to be a deeply flawed statute. It fails to specify exceptions to privilege or identify how or by whom the privilege could be waived. It creates uncertainties about what [...]

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Mediation Channel round-up: good stuff online for mediators and negotiators

May 4, 2009 Mediation Link Round Up

From time to time I round up the links to articles I’ve been sharing with my followers on Twitter, where I’ve been microblogging for the last couple of months. I’m passing some along here to my non-Twittering readers, along with other stuff that you just don’t want to miss. I hope you enjoy these.

Neuroscience and [...]

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