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March 01, 2018

March 2018 - Mediation Committee

The Mediation Committee of the ABA Section of Dispute Resolution strives to serve as a resource for practitioners, the public, and students of Alternative Dispute Resolution (ADR) with an emphasis of mediation. Though diverse and under a large umbrella, mediation serves the interests of stake-holders unlike any other dispute resolution mechanism as it focuses on understanding, collaboration, and self-determination. Our goal is to promote mediation education, enhance the public's understanding of mediation, improve mediator and mediation advocate skills, and increase opportunities for mediation's benefits to be realized. We hope you will join us, and share your thoughts, experiences and insights.

On behalf of the Mediation Committee, we are grateful for the opportunity to present the March 2018 issue of the Just Resolutions eNewsletter. The four featured articles in this issue offer some thought-provoking ideas about how mediation works, and how it can be improved.

Two of the pieces highlight the importance of listening – a skill too often forgotten in this era of polarization – though the authors approach the issue from different perspectives. Penni Walker Doyle and Jeff Trueman, in The Suffocating Air of Superiority, seek to bridge the gap between the camps within the mediation community, and urge mediators, regardless of whether they are attorneys or not, to be flexible and less judgmental. In Transformative Moments in Commercial Litigation, Jan Frankel Schau recommends that mediators practice deep listening, and let the clients take the lead in determining the techniques that will be effective in mediation.

We have heard the term “pivot” too much perhaps over the past couple of years in the political context, but here, Gene Moscovitch’s piece, The Pivot, talks about that critical time in every mediation when the discussion leaves the merits and emotions, and turns to the numbers and terms of a deal.

Finally, in Mediation is Risky Business, Sam Imperati and Devin Howington look at using research to guide us in the “art” of mediation. Be sure to look at what the survey says about joint sessions and client satisfaction.

We want to express our appreciation to all of the authors for their fine work. And many thanks to Rachel Ehrlich and Jeff Trueman, who co-chair our Just Resolutions subcommittee, for soliciting and editing articles and coordinating our committee’s submission to the eNewsletter.

Hope to see you in April in Washington for the Section of Dispute Resolution’s Spring Conference.

Joe Esposito
[email protected]

Mark LeHocky
[email protected]

The Suffocating Air of Superiority

By Penni Walker Doyle and Jeff Trueman

Mediation trainings and conferences present opportunities for practitioners and program managers to be exposed to new ideas and learn new techniques – at least in theory. At a recent conference, after a presentation about caucusing led by an attorney-mediator, a question was asked by a manager of a court-administered mediation program. Instead of responding to the merits of the question, the presenter asked, “Are you an attorney?” Read more

Transformative Moments in Commercial Mediation

By Jan Frankel Schau

Mediation is a dynamic process. This can mean stepping back, leaning out, and adopting a process that empowers the parties to set their own agenda and seek outcomes that may greatly vary from the objectives set forth in the briefs by lawyers who are trained as advocates more than problem-solvers. In disputes where distributive bargaining and conventional problem-solving are ineffective, the transformative mediation framework originally outlined by Robert Baruch Bush and Joseph Folger in “The Promise of Mediation” may be essential to unlocking the ultimate means of resolving the dispute. Read more

The Pivot

By Gene Moscovitch

For the last several years, I have been developing a concept in mediation that I call “The Pivot.” It is when and why the mediator begins to segue from the facts, law, and emotions of the case to more exclusive negotiation of the dollars and terms that will be necessary to settle the case. My focus is mostly employment and civil rights cases, but the Pivot should be applicable to all sorts of commercial and class action cases as well. Read more

Mediation is Risky Business

By Sam Imperati, JD and Devin Howington, PhD

Mediators work in the intersection of logic and emotion. Our craft combines art, science, and ethics. We often rely more on the “art” than the “science.” Research can provide insights that help check our assumptions about how our “art” should be practiced within our ethical framework. How much room do our ethics give us to change our behavior to match the desires of the parties, and should we? Read more

I Can Relate!

By Louise Phipps Senft

Remember your grandmother’s old adage? And it’s so true for being relational. Especially for lawyers. So often the knee jerk response to other’s conflict is to shake our heads, join, or, at the request of a potential client, file a lawsuit, or, perhaps to write a letter on behalf of the client to the person whom they feel has aggrieved them. That letter often carries with it the thin veil of threat of a lawsuit. Just the letterhead alone sends shivers down the spines of most non-lawyers. And lawyers know that. And the public knows it. And that’s why people come and ask lawyers to do those sorts of things. That’s a lot of power lawyers have. Read more

Registration for the Spring Conference is open. Visit the conference web site for hotel and travel information, registration rates, a tentative schedule at a glance, and the online conference program book.

Plenary presentations include Thomas Friedman, New York Times columnist; Tim Kaine, US Senator; and a panel on the Multi-party Negotiation Behind the Repeal of Don't Ask, Don't Tell.

Fostering the 3 Rs of Relational Practice - Respect, Recognition and Reflection

By Sharon B. Eckstein

We have all heard of the 3 Rs - reading, writing and ’rithmetic - which are commonly seen as the foundation of a basic education. Effective mediation skills must similarly be based on three fundamentals. I propose that mediation is most effective and simultaneously most meaningful and satisfying for disputants when the 3 Rs of respect, recognition, and reflection are fostered and modeled by the mediator.

Practice Development Institute
June 22-23
Chicago, IL

This two day program provides successful models for implementing strategies to build a profitable practice as both a mediator and as a peacemaking lawyer or other family professional.

Participants will learn new ways to help clients stay out of court and explore the personal and ethical dimensions of collaborative practice, solving unbundled legal services, and other cutting edge best practices.

11th Annual Arbitration Training Institute

May 17-18, 2018
Akerman LLP
Miami, FL

Liz Kramer, author of the blog Arbitration Nation and expert on arbitration law, will address issues raised by Clifford (aka Stormy Daniels) v. Trump.

Arbitrability, jurisdiction, unconscionability, and emergency arbitration are all wrapped up in this case of national attention.

Presented by nationally recognized experts, this two-day training features sessions on every stage of the arbitral process examined from the vantage point of neutrals, advocates, administrators and in-house counsel. Small group discussions allow participants to interact in depth with the faculty and each other. Substantive sessions address particular areas of arbitral practice.

Volunteers Needed for the Representation In Mediation Competition

The 2018 Representation in Mediation Competition National Round is being held on April 4-5 in conjunction with the ABA Section of Dispute Resolution Spring Conference at the Washington Hilton in Washington, DC. The competition measures how well law students model appropriate preparation for and representation of a client in mediation. This is the 19th year for the national competition.

The ABA Section of Dispute Resolution seeks experienced mediators and lawyers to volunteer for these competitions. We need lawyers experienced with interest-based negotiation to judge the students in the competition. We also need mediators (lawyers and non-lawyers) to serve as mock mediators.

Volunteers for the national competition are offered a registration discount for the Section of Dispute Resolution Spring Conference. Please fill out this quick form to indicate your interest in serving as a competition volunteer.

For more information please contact Linda Warren Seely at [email protected].

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The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or Section of Dispute Resolution unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only.