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Already subscribed No subscription today Featured Blog for September 21, 2009

by John Ford
September 2009

The Life And Death Of Democracy (9/21/09)
Larry Susskind
I'm trying to make my way through John Keane's massive book, The Life and Death of Democracy (Norton, 2009). He reviews three "epochs" in the evolution of democracy: Assembly Democracy, Representative Democracy and what he calls Monitory Democracy. He then tries to make sense of where we are headed next by jumping forward and looking back at our current situation (Memories from the Future). He's not optimistic (although the book was written before President Obama was elected and America's foreign policies and international engagements shifted radically). The failure of political parties, the use of mass media to control political communications, the "cross-border squeeze on democratic institutions," resurgent nationalism triggered by "the powerlessness of joined-up global government and market forces;" terrorism, uncivil wars and nuclear anarchy; the failure of the "law of democratic peace" (that assumed democracies would not go to war with each other), America's failed efforts to "promote" a global transformation to democracy," the rise of new enemies of democracy, including hypocrisy, fatalism and ignorance; and the return of bipolarity (US-China tensions) are all to blame.

He then cites Richard Rorty to make the point that while there is no "ultimate justification" for democracy, it is certainly something to be valued. (Persuasion rather than force, compromise and reform rather than bloody revolution, free and open encounters rather than bullying and bossing, a hopeful, experimental frame of mind...) Keane argues for humility (rather than talk of pragmatic superiority), continued re-invention (or novelty), the "rule of nobody," and the importance of equality -- or the equalization of all citizen's life chances as reasons for hope. He offers seven new democratic rules --although they are aimed more at theorists than practitioners: (1) treat the remembrance of things past as vital for democracy's present and future; (2) always regard the languages, characters, events, institutions and effects of democracy as thoroughly historical; (3) pay close attention to the ways in which the narration of the past by historians, leaders and others is unavoidably an historical act, (4) the methods that are most suited to writing about the past, present and future of democracy are those that straightforwardly draw attention to the peculiarity of their own rules of interpretation; (5) acknowledge that, until quite recently, most details of the history of democracy have been recorded by its critics, or by its outright opponents; (6) the negative tone of most previous histories of democracy confirms the rule that tales of its past told by historians, politicians and others often harbor the prejudices of the powerful; and (7) admit that the task of coming to terms with the past, present and future of democracy is by definition an unending journey.

After almost 900 far more erudite pages than I could ever muster, I conclude: democracy is what you make of it. How should we "do" democracy? When Assembly Democracy morphed into Representative Democracy no one seemed to notice. When Representative Democracy gave way to Monitory Democracy (publicly monitoring and controlling the exercise of power -- "through sideways and downwards" involvement of the whole political order), it seemed perfectly normal (at that time, to the people involved). What comes next is what we say should come next. In my view, that's collaborative decision-making at multiple scales assisted by a new class of professional neutrals. Is this a shift of "epochal importance?" Yes, I think it is. It is an evolutionary step beyond Monitory Democracy that will restore the legitimacy of democratic institutions by assuming that that everyone needs to be involved, not just in discussions and criticism of what is going on, but in the co-production of everything that follows. It's not Assembly (or direct) Democracy, because there is no voting. The burden is on each citizen (and each community and each state) to come up with a way of meeting their/its own interests while also meeting the interests of others. The logistics of collaborative problem- solving are new, but the commitment to broadening and deepening basic democratic ideals keeps us on track.

From Larry Susskind's blog on the Consensus Building Approach


More Ways To Commit Legal Malpractice As A Mediation Advocate (9/21/09)
Victoria Pynchon

If you didn't already understand how to protect your mediated settlement agreement from challenge, you do now.

But wait a minute!  Is that what you want?  

What if your client entered into the agreement only because its opponent made a material misstatement of fact?  What if one of your co-defendants challenges your settlement agreement as not having been made in good faith, thus exposing your client to potential liability for indemnity or contribution?  Can you win the "good faith settlement" motion without the testimony of the participants in the mediation?  

In a comment on yesterday's post, Los Angeles mediator Joe Markowitz noted that:

Parties are entitled to walk out of a mediation with a whole range of outcomes, from a completed settlement agreement, to a term sheet, to an oral understanding, to a promise to think over the other side's last offer, to a promise to see the other side in court! As long as both sides understand what they are getting at the conclusion of the mediation session, there should be no basis for a malpractice claim for any of these outcomes. If the parties choose to use a term sheet with no language in it indicating that they have settled their case, they just need to understand that any party can renege on the deal after the mediation. In some cases, that may be what the parties want, to give them some time to think the whole thing over

Joe's comments put the emphasis in mediation advocacy back where it belongs -- on the fully informed assent of the parties and on the strategic plans of litigation counsel.  

So here's yet another way to commit legal malpractice as a mediation advocate:  don't fully understand the implications of mediation confidentiality on the final resolution of your client's dispute.  I'll just bullet point ways to protect yourself and your client below and ask others to chime in with their recommendations:

  • if your client is relying upon the veracity of its opponent's representation in entering into the deal, write that representation into the agreement or deal points, i.e., "Party A and Party B both understand that Party A is entering into this agreement based upon the following representation/s: ....................................  "  Then you can include any other language that makes sense in the context of the agreement.  You can provide that Party B's production of documents confirming its representations to Party A is a condition precedent to Party A's obligations under the settlement agreement.  If your client simply needs protection down the line in the event FACT X proves to be untrue, you can include a liquidated damage clause in the agreement or provide for an expedited means of resolving any dispute resulting from the falsity of FACT X ; or, you could provide that the falsity of FACT X will render the settlement agreement null and void; 
  • you could avoid the problems created by the strict enforcement of mediation confidentiality  by agreeing with your opponent (in writing!) that the neutral-facilitated settlement negotiation is not a mediation to be governed by Evidence Code section 1115 et seq. but a settlement conference governed by Evidence Code section 1152 et seq.  This option would be a useful one to a defendant who is settling the action separately from co-defendants who might bring a motion challenging the good faith of your settlement.  
  • Less drastically, you could simply include in your settlement agreement a provision by which the parties agree that the mediation confidentiality protections as codified in section 1119 will not apply in the event a co-defendant challenges the good faith of the settlement.  Remember that the mediator is considered incompetent to testify so that your waiver of mediation confidentiality in the event testimony is needed to oppose a challenge to the good faith of your settlement may not permit the mediator to testify at the hearing (or to offer a declaration in opposition to the motion) as well he or she -- a neutral party -- shouldn't.

You're a litigator.  There are probably hundreds of ways to skin this particular cat.  The keys are knowing and understanding the law of mediation confidentiality and thinking through all of the implications it might have on your clients' rights or interests down the line.  That's what we litigators do and we shouldn't abandon those strategic considerations just because we believe we're settling this case for good and it will never come back to haunt us or our clients again.

Remember, you are in control of the process.  If you don't like mediation confidentiality, tailor a confidentiality agreement to suit your circumstances.  You will, of course, have to "sell" your proposal to your opponent.  The  best time to do that might well be at the end of the mediation rather than at its commencement.  By that time, your opponent is pretty darn committed to the resolution of the lawsuit.  His client is already planning on ways he can more profitably spend his time and money other than on further litigation, attorneys' fees, and court costs.  The plaintiff is, I guarantee you, already spending the settlement monies or planning the celebration back at the office and wondering whether this might lead to the promotion he or she has been waiting for.

From Settle It Now Negotiation Blog


Mediating With Uncle Sam (9/21/09)
Phyllis Pollack

       My husband is a customs lawyer. He specializes in import-export law and international trade. Thus, for the most part, he represents importers who are at odds with U.S. Customs and Border Protection (“CBP”); that is, the U.S. Government. When the issue winds up in federal court, he is dealing with an Assistant U.S. Attorney or an attorney in the Department of Justice, Civil Division, Commercial Litigation Branch.

       Being a mediator, I always recommend that he use mediation to resolve his cases. His response is that he is dealing with the Government, and it does not mediate.

       Well, a recent  unpublished study proves him wrong. Conducted by Lisa Blomgren Bingham, J.D., Tina Nabatchi, Ph.D., Jeffrey M. Senger, J.D., and Michael Scott Jackson, M.P.A. and entitled “Dispute Resolution and The Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes”, the study concluded that when ADR was used in civil cases handled by the U.S. Attorney’s office, 65% of them settled. In contrast, when the U.S. Attorney’s office did not participate in ADR, only 29% of its cases settled. Further, “[s]ignificantly more cases settled when ADR was voluntary than when it was mandatory (71% v. 50%), and tort cases settled with more frequency than employment discrimination cases (73% v. 60%)” (p.1). (There are no statistics provided for Customs cases!) The next finding provides strong support for the use of ADR:

      “AUSAs [Assistant United States Attorneys] spent an average of $869 in neutral fees and estimated that the process saved $10,735 in litigation expenses per case. AUSAs spent an average of 12 hours preparing for ADR and 7 hours in the ADR process per case, which they estimated saved 88 hours of staff time and 6 months of litigation time per case” (p. 1).


       When one litigates against the Government, one might assume that the Government has an unfair advantage. Well, the study found that the “ADR outcomes were not significantly different than litigated outcomes, indicating that the process was neutral, favoring neither private parties nor the government” (p. 1).

       To conduct the study, the researchers first obtained general information about all civil cases handled by the U.S. Attorneys’ offices throughout the United States between 1995 and 1998. They then created a database limiting it to those matters in which ADR had been used. They further categorized these cases in terms of types of cases and disposition. In the end, the database contained 15,288 cases (pp. 23-29). Of these, 14,777 went through the traditional litigation process while 511 cases participated in ADR (p. 29).

      After reviewing the data, the researchers found several interesting things in addition to their conclusions noted above. First, they found that ADR was used most often in Federal Tort Claims Act (FTCA) and in Employment Discrimination cases. More specifically, FTCA suits comprised 39% of all the cases in the database but 66% of those using ADR. Similarly, Employment Discrimination cases comprised 22% of all cases in the database, yet 30% of those cases using ADR. Together, these two types of cases made up 96% of the 488 cases using ADR, but only 60% of the cases following the traditional litigation process (p. 30).

       The researchers also found that “ADR was used disproportionately often when the government was a defendant in the lawsuit” (p. 31). More specifically, 96% of the cases used ADR in which the government was a defendant (p. 31).

       The researchers also examined the “macrojustice” or “fairness” of the ADR process: did a particular dispute resolution process favor one side or the other?:

     ” Issues of macrojustice take on a heightened importance when the federal government is a litigant. If the government received better results in ADR than in traditional litigation, private parties would be reluctant to use ADR with the government, because they would fare better in court. Conversely, if the government did worse in ADR than in litigation, government counsel would choose not to participate in the process. . .”  (pp. 32-33).

       What the researchers found was that the ADR process did not change the outcomes that would otherwise result from litigation. The relief obtained in the ADR process was about the same as would have been obtained at trial. “. . . ADR did not have the macrojustice effect of altering traditional legal remedies in these cases” (p. 36).

       Lastly, and to no surprise, the researchers found that the sooner the ADR process was used during the life of a case, the less time it took for the case to reach final disposition (p. 37). Thus, where ADR was introduced within the first 90 days after the case was filed, the case took an additional 92 days to resolve such that the complete life of the case was 150 days. In contrast, where ADR was first introduced within 91 to 180 days after the case was filed, it took on average another 190 days to resolve it: the total life of the case was 339 days or almost a year
(p. 37).

       In conclusion, ADR works in federal court, even when the government is the other party to the lawsuit, and the results obtained using ADR do not differ significantly than those obtained after a trial.

       Now. . . if I can just convince my husband to use mediation in his cases against the government. . . .

       . . . Just something to think about.

From the Blog of Phyllis G. Pollack.


Managing Your Emotions: Parts 1 And 2 (9/21/09)
Joshua N. Weiss

In this podcast, Josh begins a series on managing your emotions in a negotiation.

MP3 File

Part Two

In this podcast Josh stays with the idea of managing your emotions in a negotiation by talking about the different kind of balcony trips you can take and the kinds of balcony techniques you can use while up there.

MP3 File

From Josh Weiss's blog.


Mediation And International Diplomacy (9/21/09)
Michael P. Carbone
The Associated Press reported on Saturday that “The United States’ top Mideast envoy [former Senator George Mitchell] failed to bridge wide gaps between Israelis and Palestinians as he ended his most intensive attempt yet on Friday, raising questions about President Obama’s efforts to revive peacemaking.”

Whenever we read a discouraging report such as this one, which tells of the failure of a capable and highly respected diplomat from the U.S. to resolve an international conflict, many mediators search for a reason. If we can resolve complex high-stakes lawsuits through mediation, then why can’t our dispute resolution principles and methods be used to settle conflicts among nations?

A better question might be whether our expectations for solutions to such conflicts through mediation are realistic. History teaches us that even when agreements among nations have been worked out, they can subsequently fail because one of the parties cannot be trusted to comply.

The Treaty of Versailles, which ended World War I, merely set the stage for World War II because an embittered Germany was determined to have revenge by taking over all of Europe. Hitler’s agreements not to invade Poland and Czechoslovakia failed because his word could not be trusted. A more recent example is that of North Korea, which agreed during the 1990’s to abandon its nuclear program, only to restart it several years later.

Lester Pearson, who was prime minister of Canada during the 1960’s, was known for saying that diplomacy is the art of letting the other side have your way. His enlightened view was not shared by German historian Karl Von Clausewitz who stated that "War is diplomacy by another means." Dictators, tyrants and terrorists will take as much as they can get through negotiation, and if their ambitions have not been fully satisfied, they will turn to war, or at least to war-like behavior.

So should we really be so disappointed when we fail to make agreements with parties who have ulterior motives or other agendas?  After all, an agreement is really worth no more than the trustworthiness of the people who sign it.

Let's never forget the words of Jimmy Carter after Leonid Brezhnev invaded Afghanistan:  "I can't believe he lied to me."

From Michael P. Carbone’s Mediation Strategies Blog


Another Malpractice Trap For The Unwary Mediation Advocate: Draft Your Own Confidentiality Agreement (9/21/09)
Victoria Pynchon

As every mediation advocate must know by now, the California Supreme Court has locked down mediation confidences from attack at every turn.  There can be no implied waiver of Evidence Code section 1119's protections and you cannot be estopped to assert it (Simmons v. Ghaderi) (.pdf of the opinion here). 

Your client may have been coerced into signing off on the agreement; may not have understood what she was signing; or her assent could have been induced by your opponent's material misrepresentations of fact.  Your client's insurance carrier may be guilty of actionable bad faith during the course of the mediation.  Too bad.  The mediation proceeding is given greater protection than given to penitents in a confessional.

But you can inadvertently expressly waive the protections of mediation confidentiality if you've carelessly crafted your own confidentiality agreement.

California's Second District Court of Appeal held in Thottam (.pdf of opinion here) that a party's confidentiality agreement did just that -- waived the protection -- permitting one party to introduce an otherwise inadmissible draft agreement into evidence for the purpose of enforcing an otherwise unenforceable mediated settlement agreement.

As the Court in Thottam held, Section 1123(c)'s requirement that all parties to a mediated settlement agreement "expressly agree in writing . . . to its disclosure," may be satisfied by terms contained in a writing other than the alleged settlement agreement itself, including a writing executed before a settlement agreement has purportedly been entered into.  Because the "draft agreement" at issue in Thottam did not contain 1123's "magic" enforcement language and because the term sheet drawn up during the mediation was not sufficiently certain to enforce in any event, one party to the subject probate proceeding objected to its introduction into evidence and to the admission of testimony concerning otherwise confidential statements made during the mediation.

Had there been no confidentiality agreement, the issue would have been controlled by Evidence Code sections 1115 et seq.; the "agreement" would have been excluded from evidence as non-compliant with section 1123; and, no evidence of statements made during the mediation would have been admitted into evidence. 

Here's the danger of drafting your own confidentiality agreements in an attempt to expand the scope of mediation confidentiality.  

According to the appellate court opinion, because the parties expanded the scope of confidentiality beyond that provided by the statute, the exception to the protection ("except as may be necessary to enforce any agreements from the Meeting") was broader than the enforcement exception contained in section 1123.  As one blogger cogently put it at the time, "the big print giveth and the small print taketh away."

I think it's safe to say that this result was pretty much completely unpredictable and that it was within the standard of care for counsel to expand the protections contained in section 1119  (for an example of the problems created by its relatively narrow confines, see mediator Debra Healy's comments and my response about the scope of mediation confidentiality in an earlier post in this series).

Post-Thottam, however, counsel must be extremely careful in drafting confidentiality agreements lest they inadvertently take away the protections the legislature created and the Supreme Court has so assiduously enforced.

In short, don't get fancy.  Just stick with the language of section 1119

From Settle It Now Negotiation Blog


Mediation Confidentiality (9/21/09)
Holly Hayes Bovio

A recent post on the “bad faith mediation” section of Texas HB 2256 has prompted comments and discussion regarding the confidentiality of mediation.

Texas mediators operate under the Civil Practice & Remedies Code, Chapter 154. Alternate Dispute Resolution Procedures.  Specific sections of this code that address confidentiality are as follows:


(a) A person appointed to facilitate an alternative dispute resolution procedure under this subchapter shall encourage and assist the parties in reaching a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement.

(b)  Unless expressly authorized by the disclosing party, the impartial third party may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute.

(c)  Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.

A future post will examine the confidentiality sections of the Uniform Mediation Act (UMA) for those states who have adopted the Act.  The Association for Conflict Resolution (ACR) listed confidentiality in mediation as the number one principle that should be addressed in the adoption of a UMA, stating that confidentiality is an area where uniformity is required across the states.

In  her article, “Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?“, Karin S. Hobbs  gives a good summary of the importance of confidentiality in mediation:

Why is confidentiality so important? Confidentiality is a critical element of successful mediation. In order for the mediator, the attorneys and the clients to understand the central issues, the motivations, the pressure points and the risks of litigation, the participants must be assured the discussions cannot and will not be disclosed to others so they can talk openly. Frequently, some of the motivating forces behind lawsuits are legally irrelevant and yet exceptionally important to understanding the conflict and facilitating resolution. Frequently, clients disclose private events, perceptions or issues in mediation they would not want disclosed to anyone. Explaining their concerns and fears is often critically important to them in order to resolve the conflict. If discussions with the mediator are not confidential and privileged, the mediation process, the mediator’s role and the potential for resolution are significantly diminished.

The support of confidentiality in mediation is critical to the protection of the entire mediation process.  Future posts will attempt to provide additional information on confidentiality statutes and a survey of key cases interpreting the provisions.

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.


New Study (9/21/09)
Steve Mehta

Many people have wondered about how juries react to the pain of other people that they are judging.  Well new research has discovered some interesting conclusions regarding how people empathize with others.  A study reported in the July 1 issue of The Journal of Neuroscience  reports that an observer feels more empathy for someone in pain when that person is in the same social group.

Based upon brain imaging studies, the study found that perceiving others in pain activates a part of the brain associated with empathy and emotion more if the observer and the observed are the same race. The authors believe that this research is not limited to race but to all types of similar socio-economic factors. 

The study confirms by neuroimaging others’ suppositions that people are biased towards others that are in their same social and cultural group.

This type of research requires additional investigation to confirm such biases among a variety of social groups.  But it starts to give an understanding of bias that is crucial to all areas in social interaction.  As for juries, this research confirms that there probably is an inherent bias with people from the same racial group.  Clearly, in civil cases injury cases where someone is alleging that he or she is in pain, the inherent bias could affect the outcome. 

It would be interesting to see if there is a study that evaluates verdicts based upon the biases of the juries.  But for now, we can realize that biases in juries do exist.  We may never fully know the true extent of the biases.  That, however, is all the more reason for people to try and effectuate a resolution through mediation where they can control their own outcomes as opposed to relying on the biased jury. 

It is also interesting to note that over the years, I have seen a trend (anecdotally from conversations with many lawyers and observation of trials) that many people will state that juries are less empathetic to other people’s pain than previously.  Perhaps this is so because of this cultural bias as discussed here.  The United States has become much more culturally diverse, and in turn the juries are culturally diverse.  As such, because there is greater diversity on the jury, they may not associate with the parties to litigation as much on a subconscious level.

Adapted and augmented from materials provided by Society for Neuroscience

From the Mediation Matters Blog of Steve Mehta.


Whole System Change: The Future Search Conference (9/21/09)
John Folk-Williams

Search Curve

The Future Search Conference is one of several collaborative planning methods that take a “whole system” approach. These processes try to replace shelf-bound plans with agendas for action that are developed collaboratively in the course of intensive large-group meetings.

Key Concepts

To do this, Future Search insists on the basic starting principle: “Get the whole system in the room.” That means including everyone needed to make change happen – decision-makers from all the groups involved, internal staff and external stakeholders. A representative cross-section of these players at many levels of responsibility gathers to share ideas, identify strategies and make commitments to achieve measurable goals.


The Future Search Conference is held over a two and a half day period and works optimally with a group of 60-80. That number would give pause to many leaders. How is it possible for a group that size to agree on anything? When the idea of a collaborative effort comes up, most conveners and even practitioners start thinking about how to keep the group to a “manageable” size. 12-15 sounds doable, 20 is a stretch, 25-30 is getting into the realm of the uncontrollable.

And control is the issue. The Future Search method rejects tight facilitator control over the flow of the meeting and the whole idea that a group needs to be strictly guided toward a predefined goal. Instead the role of the facilitator is to explain the overall boundaries and tasks of each process phase but leave most of the meeting to self-managing work teams of 6-8 persons.

Conference Tasks

The conference divides the time into five segments, each with its specific task, and these are carried out through the alternation of work team and full group dialogue. In addition, there is an alternation of work teams that mix different stakeholder groups with those that consist of members of a single group.

The reason for the two types of work teams comes from a specific theory of Differentiation/Integration. The single stakeholder interest groups need to clarify their own needs during a large planning session (differentiation) but then intersperse with the other groups to define the common goals they can only accomplish by working together (integration). The work teams also need to participate in whole group dialogue for each task to ensure that everyone is aware of specific ideas and overall trends of thinking.

Here is the specific sequence of the conference, as summarized at the Future Search website:


Day 1 Afternoon:

  • Task 1: Focus on Past
    People make time lines of key events in the world, their own lives, and in the history of the future search topic. Small groups tell stories about each time line and the implications of their stories for the work they have come to do.
  • Task 2: Focus On Present, External Trends
    The whole group makes a “mind map” of trends affecting them now and identifies those trends most important for their topic.

Day 2 Morning:

  • Task 2 Continued: Stakeholder Response To External Trends
    Stakeholder groups report what they are proud of and sorry about in the way they are dealing with the future search topic.
  • Task 2 Continued: Focus On The Present; Owning Our Actions
    Stakeholder groups describe what they are doing now about key trends and what they want to do in the future.

Day 2 Aternoon:

  • Task 3: Ideal Future Scenarios
    Diverse groups put themselves into the future and describe their preferred future as if it has already been accomplished.
  • Task 4: Identify Common Ground
    Diverse Groups post themes they believe are common ground for everyone.

Day 3 Morning:

  • Task 4 Continued: Confirm Common Ground
    Whole group dialogues to agree on common ground.
  • Task 5: Action Planning
    Volunteers sign up to implement action plans.


Successful implementation depends on effective organizational leadership with clear purpose and commitment to collaboration. These decision-makers also need to take part in the process itself, both because they are necessary to confirmation of common ground and action steps and also to reaffirm their commitment to follow-up through their visible involvement.

An effective Future Search Conference also depends on extensive planning by a diverse group that can get all participants to the meeting. The members of this steering committee need to become thoroughly familiar with the principles and methods of Future Search to ensure that they share direction of process planning with a consulting facilitator.

This process focuses on future possibilities rather than on past problems. It is not the appropriate method for conflict resolution or for the reconciliation of deep value differences. Groups of differing values certainly participate but they focus on the future actions for which collaboration among diverse groups is necessary.

Future Search is one of most time-tested large group methods for whole system change and adaptation to new conditions. It has been applied in many different settings around the world, like Open Space Technology, and merits close consideration by any group committed to collaborative methods for planning its future.


There is an active network of practitioners who spend a great deal of time mentoring newcomers. Their website is: Future Search Network.

From John Folk-Williams's blog Cross Collaborate


Mediator Certification And Credentialing (9/21/09)
Diane J. Levin

caveat emptor for mediator certification

As my readers know, the private practice of mediation remains unregulated in the United States.  Some view this fact with consternation, others with relief.

Meanwhile, in the absence of public licensing of mediators in private practice, private organizations have stepped in to fill the void left by the state, offering private credentialing mechanisms. The giants in the field who have embarked on this path have done so with transparency, inviting the input of practitioners to shape such mechanisms,  and with honorable intentions and a concern for ethical practice, with the credibility that reputation has earned them.

There’s one problem. Just as anyone can hold themselves as a mediator, so, too, can any organization hold itself out as a credentialing body.

A colleague recently alerted me to one credentialing scheme that raised some warning flags. One private company has begun offering credentialing for mediators. It’s a business neither of us had heard of. The qualifications it specifies are minimal, setting the bar dismally low.

None of this is reassuring, not to consumers and not to mediators.

From Mediation Channel


The Marketing School For Mediators Is Live! (9/21/09)
Tammy Lenski

marketing school for mediatorsDo you wonder what it takes to create and implement the ideal marketing strategy for your ADR business, whether you’re a mediator, conflict coach, trainer, arbitrator or other professional?

Do you wonder how to reach your ideal market and really engage their interest in what you’re offering?

These are two of the most frequent questions other mediators ask me. I’ve answered in my book, Making Mediation Your Day Job. I’ve offered additional strategies here on the blog. And I’ve answered in teleseminars and short workshops around the country.

But there are two problems: It’s not all in a single place so you can follow all I want to share, step by step. And I’m not available to give you one-on-one feedback and answer your questions after you get started.

Well, I’ve just corrected those problems. “Just” being a relative word, since I’ve been working on this for the last three months.

And today, I’m opening my new Marketing School for Mediators, the only course of its kind, to fellow ADR providers all over the world.

It’s online, so you can access it anywhere you can get an Internet connection.

It’s self-paced, so you can complete it at whatever speed fits into your life.

It’s step-by-step, so you don’t have to guess anymore what things you need to do first.

It’s light years less expensive than my one-on-one biz coaching, so you can rest assured it’s affordable even in tough economic times.

It’s a lifetime membership, so you get not just what’s there now, but also everything I add in the future. Without getting billed over and over and over as the months go by.

And I’ll be there with you, all along the way, answering your questions, joining you for conversation in the discussion forum and in monthly member-only telephone calls. I’m creating a community of learning for mediators and I’m bursting with anticipation of the kinds of fantastic conversations we’ll have there about building business, mastering the craft and contributing to the growth of the ADR field.

But there is one thing you should know right now. When the limited number of spaces I’ve set aside are full, I’ll close the course to new members for an indefinite period. I want to keep the course manageable so those of you who take advantage of it to jumpstart your ADR practices can get the best of me. I’ve taught online for almost a decade and know how many is too many to do right by you.

So head on over to the Marketing School for Mediators and check out all the material we’re going to cover and how to be part of the inaugural group!

From the Mediator Tech blog of Tammy Lenski.


Jones V. Halliburton: Fifth Circuit Rules On Arbitration Of Tort Claims By An Employee (9/21/09)
Victoria VanBuren

[Ed. note: see our previous posts about this case here and here.]

The U.S. Court of Appeals for the Fifth Circuit held that claims for (1) assault and battery; (2) intentional infliction of emotional distress; (3) negligent hiring, retention and supervision of employees involved in a sexual assault; and (4) false imprisonment are not related to the plaintiff’s employment contract and refused to compel arbitration.

I. Background

In Jones v. Halliburton Co., No. 08-20380 (5th Cir. Sept. 15, 2009), in 2004, at the age of 19, Jamie Leigh Jones began working as an administrative assistant for Halliburton Company/Kellogg Brown & Root (Halliburton/KBR) in Houston, Texas. On July 21 2005, Jones signed an employment contract with a subsidiary of Halliburton/KBR to work in Baghdad, Iraq that included the following clause:

You . . . agree that you will be bound by and accept as a condition of your employment the terms of the Halliburton Dispute Resolution Program which are herein incorporated by reference. You understand that the Dispute Resolution Program requires, as its last step, that any and all claims that you might have against Employer related to your employment, including your  termination, and any and all personal injury claim[s] arising in the workplace, you have against other parent or affiliate of Employer, must be submitted to binding arbitration instead of to the court system.

(Emphasis added.)

The incorporated Dispute Resolution Program, provides:

“Dispute” means all legal and equitable claims, demands, and controversies, of whatever nature or kind, whether in contract, tort, under statute or regulation, or some other law, between persons bound by the Plan or by an agreement to resolve Disputes under the Plan . . . including, but not limited to, any matters with respect to . . . any personal injury allegedly incurred in or about a Company workplace.

(Emphasis added.)

Jones arrived in Baghdad on July 25 2005. Halliburton/KBR provided Jones with housing in a barracks (where the ratio of men to women was 20 to one) as a term of her employment contract. On July 27,  2005 Jones complained of sexual harassment by co-workers and requested to be moved to a different housing location. Jones alleges that no action was taken, and instead, her managers told her to “go to the spa.”

Jones alleges that on July 28 2005, she was drugged, beaten, and gang-raped in her barracks bedroom by several Halliburton/KBR employees after a social function. Jones reported the incident promptly. After her rape-kit was administered, Jones alleges that she was placed under armed guard in a container and not permitted to leave or call her family. She further alleges that Halliburton/KBR human resources interrogated her for several hours and gave her two options: to stay and “get over it”, or to return to the U.S. without “guarantee” of a job. At the end, Jone’s father was able to get the help of a Congressman to secure his daughter’s return to the United States. As a result of the alleged incident, Jones received several serious injuries, which would later require reconstructive surgery.

Shortly thereafter, Jones filed a complaint with the Equal Employment Opportunity Commission. The agency conducted an investigation and concluded that: Jones “had been sexually assaulted by one or more employees; physical trauma was apparent; and that Halliburton/KBR’s investigation had been inadequate.”

II. District Court Decision

In February 2006, Jones filed a request for arbitration against Halliburton/KBR. While the arbitration was pending, Jones obtained new counsel and filed this lawsuit claiming negligence, negligent undertaking, sexual harassment and hostile environment under Title VII, retaliation, false imprisonment, breach of contract, fraud in the inducement to enter the employment contract, fraud in the inducement to enter the arbitration agreement, assault and battery, and intentional infliction of emotional distress.

In November, 2007, Halliburton/KBR moved to compel arbitration pursuant to the employment contract. On May 9, 2008, the district court refused to compel arbitration of Jones’ claims for: (1) assault and battery; (2) intentional infliction of emotional distress arising out of an alleged assault; (3) negligent hiring, retention and supervision of employees involved in the assault; and (4) false imprisonment.

The district court concluded that those claims feel outside of the scope of the arbitration provision because they were not related to Jone’s employment and were beyond the outer limits of even a broad arbitration provision. The court, however, stayed litigation of those claims until the parties complete arbitration of the rest of the claims found arbitrable by the court. (see Jones v. Halliburton Co., 625 F.Supp. 2d 339 (S.D. Tex. 2008).  In June 2008, Halliburton/KBR appealed.

III. Fifth Circuit Decision

The Fifth Circuit stated that the issue before the court was whether the alleged rape fell within the scope of the arbitration agreement. First, the court rejected Jones’ argument that the public policy of the Texas Arbitration Act (TAA) governed the scope of the arbitration provision. Under the TAA, agreements to arbitrate personal injury claims must be signed by each party’s lawyer. The court concluded that to the extend that the TAA affects the enforceability of the agreement, the Federal Arbitration Act preempts.

Next, the court reviewed the case law split about similar arbitration clauses and claims premised on sexual assault. The court explained that a liberal construction of “scope of employment” for purposes of workers’ compensation was not necessarily the same standard to be applied when construing a similar arbitration provision.

Finally, the Fifth Circuit agreed with the district court and concluded although the arbitration provision extended to personal-injury claims “arising in the workplace,” the court “d[id] not believe [Jones’] bedroom should be considered the workplace, even though her housing was provided by her employer”. The court, however, noted that its holding was fact-specific.

Judge DeMoss filed a dissenting opinion. He concluded that “the issue before this court is debatable and therefore should be resolved in favor of arbitration.” Judge DeMoss added that Jones was required to live in the barracks as a condition of her employment and cited case law stating that “oversees employees to not have bright lines between their working time and their leisure time.” Judge DeMoss also said that “[a]lthough vicarious liability is based on agency law and the interpretation of an arbitration agreement is based on contract law, I cannot see how Jones can successfully distinguish the district court’s holding that the incident was not related to Jones’s employment but, under the same circumstances, was within the scope of the individual defendants’ employment.”

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.


Yet Another Path To Attorney Malpractice In Mediation Proceedings: Coerce Your Own Client (9/21/09)
Victoria Pynchon

Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do. 

As a mediator, however, I hear stories.  

Some of the stories I hear are told by disgruntled individuals who feel as if they were coerced by their own counsel into settling their litigation during a mediationOthers have reported that they felt ganged up on by their attorney and the mediator.  Some have complained that they were unduly pressured to stay in the mediation process long after they were too tired or hungry to think clearly. 

These stories are troubling to any mediator who values the good reputation of the mediation process itself.  They should also disturb attorney mediation advocates.

Is it below the standard of care for an attorney to subtly (or not so subtly) pressure his or her client to settle litigation?  Under certain circumstances, I think it is.  Here's the bad news.  If a litigant is unhappy with the outcome of mediation, he or she is far more likely to bring a complaint (or lawsuit) against his or her own attorney.

In a 2006 article in the Ohio  Journal on Dispute Resolution TAKE IT OR LEAVE IT. LUMP IT OR GRIEVE IT: DESIGNING MEDIATOR COMPLAINT SYSTEMS THAT PROTECT MEDIATORS, UNHAPPY PARTIES, ATTORNEYS, COURTS, THE PROCESS, AND THE FIELD  Paula M. Young, Assistant Professor at the Appalachian School of Law cites Mel Rubin on "settle and sue" cases which Rubin suggests are on the rise among clients unhappy with the outcome of a mediation.  Rubin "also suggests that if a client is unhappy with the outcome of mediation, he or she is more likely to sue his or her attorney for malpractice. Id.

What might actionable attorney mediation malpractice look like?  Young cites the example of one woman who told the following story:

I refused to sign several times. My attorney then began yelling at me to “shut-up and sign the damn thing” I wasn't allowed to leave until it was signed . . . . The words, “NO I can't sign this,” fell on deaf ears. I was so unfamiliar with the process of it all and what it meant and what the outcome entailed.

Young has a systemic solution for problems like these:  procedural "justice" during the mediation itself and grievance procedures for dissatisfied litigants.  She writes:

To the extent the procedural justice research indicates that parties who perceive they have received procedural justice in mediation also perceive that the negotiated outcome in mediation is fair, we would expect that these parties are not likely to later sue their attorneys for malpractice. Even when the client has little trust in his or her attorney, a mediation process that enhances procedural justice allows the party to assess directly whether he or she feels exploited or mistreated in the process.

Even if the mediation process itself lacks procedural justice and the client accordingly remains dissatisfied and suspicious, a well-designed grievance system, emphasizing procedural justice from the client's perspective, may give the client the reassurances he or she needs. A client who suspects collusion between his or her lawyer and the neutral could seek the informed opinion of the regulatory body, without ever having to file a legal malpractice law suit.

Remember that we tend to stumble and fail when we're Hungry, Angry, Lonely (marginalized) or Tired (HALT) and so do our clients.  When I notice litigants flagging or attorneys losing their tempers, I suggest a walk around the block, a nutrition break (not eating more cookies) and, in extreme cases (someone becomes ill during the course of the session) reconvening at a later date.  Remember how powerful and all-knowing you appear to be to your clients and what a strange and frightening land the "justice system" is for those who are encountering it for the first time.  

There's no better defense to professional negligence actions that the quality of your relationship with your clients.  Keep channels of communication open.  Demand that your adversary and the mediator treat your client with respect.  At the first sign that a mediator is exercising undue influence on your client, say something, just as you would if opposing counsel were harassing your witness at a deposition.  Follow these dictates and you'll rarely if ever be worrying about calling your insurance carrier.

From Settle It Now Negotiation Blog



John Ford is the former managing editor of 

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