Category Archives: ADR

Court-connected mediation in Massachusetts another casualty of tough economy

A door to justice closes in Massachusetts courtsIn news that has stunned the alternative dispute resolution community in Massachusetts, the Massachusetts Trial Court has terminated its mediation contracts with programs approved to provide services in courts throughout the Commonwealth.

This move comes in response to the decision by Massachusetts governor Deval Patrick to order deep cuts in the state budget to offset a projected revenue shortfall of roughly $1 billion. Mediation programs are but one more casualty of the fiscal crisis Massachusetts, like many other states around the U.S., currently faces.

As a mediator — particularly one who devoted time to promoting the use of court-connected ADR as a member of the Trial Court Standing Committee on Dispute Resolution — I feel this blow acutely. It dismays me to see mediation devalued in this way. It is, in Massachusetts at least, expendable not essential.

Fortunately, elsewhere in the U.S., courts are ramping up their commitment to ADR, not downsizing it. Examples include foreclosure mediation programs rolled out in New Jersey, Ohio, and Florida.

How disappointing to learn that Massachusetts, the place where ADR pioneer Frank Sander had his vision of the multi-door courthouse, has elected to slam shut one doorway to justice.

Don't pee on my shoes and tell me it's raining: more truth, less fiction, in debate on mandatory arbitration

if arbitration is so great, why not make it optional instead of mandatory?

Earlier this year, the U.S. Chamber of Commerce‘s affiliate, the Institute for Legal Reform, cranked out a press release about a recent poll it commissioned that purported to prove that a majority of likely voters would overwhelmingly support mandatory arbitration.

This press release was but one weapon  in the arsenal the U.S. Chamber has deployed in its campaign to defeat the Arbitration Fairness Act, draft legislation which would ban mandatory arbitration agreements in employment, consumer, and franchise contracts.

The poll delivered exciting news for the Chamber, since it “proved” that likely voters overwhelmingly clamor for arbitration over litigation:

The recent poll found that 71 percent of likely voters oppose efforts by Congress to remove arbitration agreements from consumer contracts, and 82 percent prefer arbitration to litigation as a means to settle a serious dispute with a company.

Then, this summer, an op-ed in the Wall Street Journal trumpeted the benefits of mandatory arbitration for consumer agreements, insisting that “Arbitration Works Better Than Lawsuits“, since it “can help consumers resolve disputes with companies without the high costs and legal fees of a full-blown lawsuit” and do so with greater flexibility and speed.

(I guess that the author of this op-ed overlooked “Arbitration’s Fall From Grace“, a 2006 article appearing in Law.com‘s In House Counsel, which described the basis for the growing disenchantment with arbitration in the corporate world — including, among other things, its lack of flexibility, substantial cost, and the quality of decision-making. Mediation, however, gets high marks: “most lawyers will tell you today that mediation is one of the most fantastic things to come along”.)

The biggest problem with the arguments made by opponents of the Arbitration Fairness Act is that so many of them appear to rest on half-truths and omissions. (You know you’re in trouble when the best testimonial you can produce comes from a 63-year-old widow awarded $281 in her arbitration against Sears.)  Some arguments are little more than hyperbolic nonsense; a senior partner at a prominent law firm warned Congress that the Arbitration Fairness Act “would effectively end arbitration in America,” a dire warning echoed in the U.S. Chamber’s press release:

“For more than 80 years, arbitration has helped Americans settle disputes fairly, quickly and inexpensively, without having to file a lawsuit or navigate the court system,” said Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform (ILR). “The sweeping legislation pending in Congress would effectively eliminate arbitration, leaving many employees and consumers with little recourse.”

Little recourse? What do they call the court system?

The U.S. Chamber’s poll results (PDF) themselves are suspect.  Although the polling instrument itself is not reproduced on either the Chamber or the Institute for Legal Reform web site, the survey findings discuss briefly the methodology used: “Voters were read a brief, neutral description about arbitration, provided some information about arbitration agreements, and then told of the intention of some in Congress to remove these agreements from consumer contracts with companies”:

Just so everyone we talk to this evening has the same information, please listen as I read you a statement that describes what arbitration is and how it works. Arbitration is a non-court procedure for resolving disputes using one or more neutral third parties — called the arbitrator or arbitration panel. Arbitration uses rules of evidence and procedure that are less formal than those followed in trial courts. Now, there are lots of products and services you buy where you are required to sign a contract with the company providing the good or service. In some of these contracts there is an arbitration agreement, so when you sign the contract you agree to resolve any disputes with the company through the process of arbitration. Now, some officials in Congress would like to remove these arbitration agreements from the contracts consumers sign with companies providing goods and services. How about you, do you think Congress should or should not remove arbitration agreements from contracts consumers sign with companies providing goods and services?”

There is of course plenty of information missing from this “brief, neutral description”, including an explanation of the significant differences between public and private adjudication — information which I suspect (and I think the U.S. Chamber of Commerce suspects, too) would have produced an entirely different result.

It leaves me wondering whether we can ever have a meaningful debate about an issue so politically charged as this one — a debate that should rest on full disclosure and discussion of all the facts — and not simply the most convenient ones.

For a discussion and rebuttal of arguments mounted against the Arbitration Fairness Act, read “Arbitration Works Better than Lawsuits . . . But for Whom?” at California Labor and Employment Law. Meanwhile, another poll shows a very different outcome, courtesy of the Public Citizen Consumer Law and Policy Blog. I’ve also criticized the use of mandatory arbitration in “Why mandatory arbitration clauses are bad for business“, where I argue that the most cost effective dispute resolution any company can invest in is addressing the causes of consumer dissatisfaction and improving customer service.

One question remains that opponents of the Arbitration Fairness Act have yet to answer: if arbitration is so great, why not trust consumers to choose it?

The art of negotiation: a video interview with international negotiator Mitchell Reiss

the art of negotiationThe College of William and Mary has posted an interview with Mitchell Reiss, Vice Provost for International Affairs, who explains the art of negotiation and describes his experience negotiating with North Korea in this short video.

One of the most important qualities a negotiator possesses is patience, according to Reiss, who observes that it “isn’t just a virtue, it becomes a tactical advantage” at the negotiation table.

If you’re interested in learning more about international negotiation or ADR in international contexts, don’t forget about International Dispute Negotiation, the excellent podcast series by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure – Oil & Gas, based at his company’s headquarters in Florence, Italy.

Recent offerings include:

Michael plays engaging host in conversations with some of the best and the brightest from around the globe. You can view the archive of previous episodes to find more.

Serving – and keeping – your membership: an open letter to organizations for ADR professionals

Getting and keeping membersLast week, mediator and blogger Geoff Sharp asked his readers for some help (links to follow are to PDF documents so click with care):

Tuesday next week I am facilitating a breakfast session on how our two local New Zealand professional mediation organisations can serve us better – “How LEADR and AMINZ can better serve New Zealand mediators – a discussion

Can you help me prepare – what’s the best thing your local organisation does for you – how does the mediation organisation you choose to pay and belong to add value to your practice?

He asked for his readers to post their answers in the comment section. I was late weighing in (Geoff had to ask that question over what was for Americans the long 4th of July weekend), but I finally gave him my response this morning. I decided to reproduce my comment here (with some later refinements in my thinking), because I think Geoff has asked a particularly important and thoughtful question. This is particularly so for me because in the course of the past year I allowed memberships in three organizations for ADR professionals to lapse.

What follows is my open letter to organizations for ADR professionals everywhere, with some advice on how to keep, not drive away, members:

  • First, provide your members with useful information that helps them do their jobs. A regularly published electronic newsletter for example that shares news, business tips, as well as links to news stories or web sites that are directly relevant to our work. Avoid drily written, heavily footnoted articles on obscure topics that aren’t useful to most of us toiling away in the trenches.
  • Second, provide value for those membership dues. Provide regularly scheduled programming (workshops, panel discussions) taught by respected and experienced professionals that will teach us something meaningful, help us deliver services more effectively, or give us tools to help us manage and market our practice better. Don’t waste our time with programs that don’t do any of those things. Schedule meetings and networking opportunities too at locations that encourage as many people as possible to attend, and not just for folks in one single geographic location, particularly if your mission is to serve a larger geographic area. Vary the meeting place to accommodate those different geographic constituencies.
  • Third, speaking of membership dues, if you increase dues, make sure that the increase is fair and also ensure that you are fulfilling your obligations under point #2, above. We want to know that our dues are delivering us value.
  • Fourth, provide us with discounts and services that add value to our membership — discounts on professional liability insurance or access to credit card processing, for example. Give us listings in an online directory so that clients can find us and make sure that we can easily update our listings, including the all-important contact information. Provide us with notices of job opportunities in our field, but don’t make prospective employers pay ridiculously high fees to post online job postings on your site, which will discourage those employers from doing so.
  • Fifth, communicate with members regularly and reliably. And by all means communicate with your members when you make important decisions that directly affect them. (One of the many reasons that I let my membership in ACR lapse is that they quietly dropped the ball on the mediator certification issue without bothering to inform their members — after making such a big deal out of the member survey on certification and appointing a panel to explore the issue.)
  • Sixth, respond to member inquiries, questions, and concerns promptly. Commit to resolving issues rapidly. And don’t ignore letters and emails. (In one case, I never received quarterly publications or even membership renewal notices, despite numerous requests over a three-year period to correct my address.) In fact, make it a point to conduct surveys of your members and ex-members from time to time to find out how you’re doing and what members really need, and then be responsive to the feedback you get. Earn and deserve the trust of your members.
  • Seventh, show appreciation to volunteers and to those who have served on your boards of directors. They have given up business opportunities to serve you and to help advance the good work of your organization. Express gratitude for their commitment and their service.

If you do these things, your members will thank you by renewing their member dues and by encouraging others to join you.

World Directory of ADR Blogs celebrates its second anniversary

ADRblogs.com celebrates its second anniversaryWork has been so hectic lately that I almost missed an important milestone.

On June 5, the World Directory of Alternative Dispute Resolution Blogs, a site that I developed from a project I began in 2005 to track and catalogue ADR blogs world-wide, celebrated its second anniversary.

Today ADRblogs.com lists 146 blogs from 25 countries, representing conversations across the globe about mediation, negotiation, and conflict resolution in languages that include English, Spanish, Portuguese, German, French, Romanian, Danish, and Turkish.

Here is a random sampling:

To see more, and to immerse yourself in the global marketplace of ideas that is the ADR blogosphere, no passport is needed. Just go visit ADRblogs.com. To browse through the headlines of the blogs in its catalog, visit the World Directory of ADR Blogs Reading Room. Submissions, by the way, are always welcome.

The value of a human life

value of a human lifeOne case haunts me still, from the days when I was practicing law. The clients were parents left bereft by a tragedy that no mother or father should ever have to face.

A driver in a truck, speeding down a quiet suburban street one warm spring morning, struck and critically injured their 12-year-old son, who was riding his bicycle with his friends. The boy was rushed by ambulance first to the local hospital and then transferred to the city hospital better equipped to deal with injuries so severe. For three long months he suffered in great pain, his anguished parents by his hospital bed, until, on a day in late summer, he died.

A moment of careless haste on the part of a driver in a hurry on his route, and a young life senselessly ends.

Liability was never at issue. But to settle the claims against them, the insurance companies involved naturally required proof of our clients’ loss. We produced it all — the police report, statements of eye witnesses, ambulance and hospital records, medical bills, statements from his attending physicians and nurses, affidavits from family members. Even the diary his mother kept of her son’s final days.

There was something indecent about these negotiations, these efforts to reduce to a dollar figure a human life — as if the impact of the death of a 12-year-old boy on his parents could be calculated down to the last decimal point. My own son was 7 at the time, which made this case particularly hard. It hit too close to home, too close to the heart.

The case left me with unsettling questions: How can we possibly place a value on a human life? Why must judgments and settlements value some lives more highly than others? What dollar amount would represent my loss to my family? Or your loss to yours?

Others ask these questions, too. Over the weekend, Kenneth Feinberg, the attorney and ADR professional known for his work in the 9/11 and Virginia Tech cases, shared his thoughts on the National Public Radio program This I Believe when he asked himself, “What Is the Value of a Human Life?” He describes his own personal struggle as he grappled with his legal training and his conscience and gives the conclusion he reached:

In the case of Sept. 11, if there is a next time, and Congress again decides to award public compensation, I hope the law will declare that all life should be treated the same. Courtrooms, judges, lawyers and juries are not the answer when it comes to public compensation. I have resolved my personal conflict and have learned a valuable lesson at the same time. I believe that public compensation should avoid financial distinctions which only fuel the hurt and grief of the survivors. I believe all lives should be treated the same.

Read Feinberg’s essay, and ask yourself the same hard questions.

From all sides: a global perspective on ADR, thanks to International Dispute Negotiation podcast

International Dispute Negotiation podcastOne of the best aspects of the digital age is the ability to connect to ideas and news whose source lies far from our own front steps. These ideas from across the globe are not only stimulating for their novelty; they also affirm, since they highlight our commonalities, not just our differences.

Since I was introduced to it last November, one of my favorite sources for information and fresh thinking with a global perspective is the International Dispute Negotiation podcast.

International Dispute Negotiation, presented by the International Institute for Conflict Prevention & Resolution (CPR), explores ways people across a wide range of countries, backgrounds, and professions approach the resolution of disputes. International Dispute Negotiation is hosted by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure – Oil & Gas, based at his company’s headquarters in Florence, Italy.

For each podcast Michael plays knowledgeable and affable host to influential leaders and thinkers about ADR and negotiation in international contexts. These beautifully produced podcasts offer revelations from all sides of the negotiation table, with episodes that have included:

Now available is Michael’s most recent interview: Mediating from Singapore: An Interview with Christopher Lau.

Have you thanked your mentor lately?

Remember to thank your mentorIf we are fortunate, mentors await us along our path, reaching out a hand to guide us when the road grows rocky or shining a light on the way ahead. Later our lives lead us miles and years from our own beginnings. In keeping our eyes on the path ahead, it’s easy sometimes to forget to look back and remember the ones who steadied our steps.

I received an email this week that reminded me how important it is to stop and look back, to recall our mentors and the difference they made to our work and our lives. The email was from my friend Ericka Gray, who shared with her colleagues reflections and memories on learning of the death of a champion of ADR and justice, whose wisdom and encouragement influenced the direction of Ericka’s own life. I thank Ericka for allowing me to share her message with a wider audience:

Dear friends and colleagues;

I just learned of the recent death of my first mentor in the field of ADR, retired judge Martin L. Haines. I wanted to share my knowledge of him with you.

He taught me to always challenge the status quo when the status quo wasn’t good enough and to always question things that I thought needed questioning. At my interview to become the director of the 4th multi-door courthouse in the US, he asked me what I thought my job might be. I responded, after having listened to his ideas, that it was to challenge the court system to do better and to make people think about things differently. I was hired even though I wasn’t a lawyer, as the job supposedly required. After working for him for several months, I revisited the question of my job and told him I thought that it was my job to cause some sort of trouble at least weekly. He smiled, thought for a moment, and said that he was inclined to agree. His eyes sparkled as he added that he often caused trouble and it seemed that he had the most fun when he was doing so. Since he wrote many controversial decisions and was known to routinely be questioned by those above him, he truly enjoyed what he did! I resigned when he announced his retirement since I couldn’t imagine working there for anyone else.

Judge Haines was an incredible man who had the respect of all, even those who didn’t agree with him. He was truly a gentleman. I will miss him. He has left an indelible mark on my soul and encouraged my passion for pursuing justice in both process and outcome for all. I wish that you all could have known him.

Is there a mentor you’d like to thank? Let them know while there’s still time.

Submit your dispute to free, nonbinding arbitration at People's Court Raw

People\'s Court RawGiving whole new meaning to the phrase “you be the judge”, People’s Court Raw invites anyone with a dispute and a video camera to upload their argument, notify the “defendant” by email, and then let the web-surfing masses vote on who’s right.

Boasting that People’s Court Raw “is the ultimate democratic tool”, spokesperson and media personality Harvey Levin (no relation) urges visitors to “let the world finally prove you right…” with this “ultimate argument ender”.

As of this posting, cases include a dispute over a boyfriend’s back hair; a workplace quarrel about a co-worker who belches; and a domestic spat that results when a husband can’t get to sleep because his wife snores.

Hat tip to Colin Rule.

Crisis in dispute resolution: are we being excluded from the world's most important discussions?

Andrea Schneider at ADR Profs Blog is wondering whether there’s a “Crisis in Dispute Resolution?

This past weekend, the Graduate Program in Dispute Resolution here at Marquette hosted noted scholar Bernie Mayer. Bernie was mostly speaking about his book, Beyond Neutrality and, on Saturday, was invited in a point-counterpoint format to discuss his arguments with equally well-noted practitioner Howard Bellman. One point of the discussion was about Bernie’s argument, outlined in his book, that the dispute resolution field is marginalized in the most important disputes. In other words, in the biggest crises of the day and over the biggest problems (think war, state of the economy, etc.), the dispute resolution field does not generally have a seat at the table…

Andrea wants to know what the blogosphere makes of all of this:

Are we marginalized? Should dispute resolution professionals be called on more often in public policy and international disputes? Should we just get over ourselves–we are called on when we are needed? Let us know what you think!

Come join me in the discussion and tell Andrea what you think.