One of their initial findings was that safety recommendations were needed in all types of ADR cases and should not be limited to the highly intense and emotional domestic cases. In fact, the tragic incident that spurred the appointment of the task force involved parties in a civil business case. In January 2013, a court-appointed judge pro tem in Phoenix, Arizona, held a mediation session at his law firm to resolve a $20,000 office furniture business dispute. One of the litigants, who was pro se, stated that he needed to retrieve something his car. After he failed to return, the mediation session was deemed adjourned, and the opposing lawyer and client headed downstairs to leave the building. The now-armed pro se litigant ambushed them and shot to death both the opposing attorney and his client. Another victim outside the building’s entrance was shot in the hand by a stray bullet. Not until after this incident occurred did the parties learn, from a lawyer who had dealt with the pro se litigant several years before in an unrelated case, that the shooter was known to be litigious and had anger-management issues.4
The recommendations are designed to help judges and ADR practitioners identify potential safety concerns, develop safety plans to reduce the risk of violence, and address any violent altercations that may occur in ADR processes. These recommendations are limited to concerns related to physical safety and do not address psychological or emotional safety. Some of the recommendations are general in nature and are applicable to overall court safety as well as to ADR processes, and others are specifically tailored to ADR. In the introductory paragraphs of its report, the ACR Task Force explains its work product is a “list of ingredients” rather than a “recipe for practice” and emphasizes “no single combination will be right for all circumstances or even for every case handled by an individual practitioner.”
Identifying Safety Concerns and Developing a Safety Plan
The essential factor in creating a safe ADR setting is a safety plan that contains specific procedures to maintain a safe work environment and address any incidents that may arise. Many benefits are derived from establishing safety plans. ADR practitioners and staff members will have predetermined protocols for identifying and handling potentially dangerous situations. This will help them protect participants and reduce the risk of confusion or lack of coordination if a violent situation arises. Additionally, potential aggressors will see fewer opportunities to attack, find fewer pretexts to justify an attack, and see little chance of success in carrying out a potential attack. The task force recommends safety plans address all of the following.
The first step in preparing a safety plan is taking a fresh look at the building where the ADR session will be held to evaluate its relative safety. Give consideration to hallways, stairwells, staff and public elevators, parking and storage areas, and reception areas, and identify any possible hiding spaces. Is the lighting adequate? How are ingress and egress controlled? Are there adequate lines of sight for personnel to determine who is entering the reception area? If there are security doors, are they kept locked at all times? If there are metal detectors, are they used consistently and operated by trained personnel?
The next step is to assess the rooms used for ADR sessions, including caucus or breakout rooms and waiting rooms. Consider how the items in the room could be misused as instruments of harm. Lamps, lightweight furniture, chairs, paper punches, staplers, ceramic mugs, letter openers, and even pencils and pens can be used as weapons. Framed pictures and corkboards can easily be removed from the wall and used as weapons. Personal photographs of family members and loved ones can be imaged and used inappropriately with current cell phone technology.
Following the assessment, determine what changes can be made to improve safety, given structural and budgetary realities. Even small changes, such as removing potentially dangerous furniture, decorative items, and extraneous clutter; replacing framed pictures with ones that have cardboard mattes and no wood or glass framing materials; and using disposable or plastic cups rather than ceramic mugs can increase safety. Consider installing panic buttons, key fobs, extra locks, security cameras, or similar safety equipment where appropriate.
The next step is to implement office procedures that promote safety. Keep the door into the ADR office locked. Never allow individuals to wander unescorted through the office. Have someone, either an employee or, in high-security facilities, a security professional, escort each individual into and out of the office area. Establish a “no weapons” policy and consider how to enforce it in situations where there are no metal detectors or when clients are safety personnel in uniform. Ensure that there is always a staff member, security officer, or a nearby colleague who is aware the ADR session is taking place and is available to provide assistance, if needed.5
ADR Room Safety Practices
Safety should be a factor in arranging seating in the ADR session room. Consider table and chair placement and the ADR practitioner’s personal positioning relative to the exit. Generally, the ADR practitioner should sit so that it is easiest for him or her to exit the room to seek help. The ADR practitioner should have a telephone in the session room and be able to quickly access any safety devices such as panic buttons.
Safety should be a consideration in determining who is present in the ADR session room and how the session is structured. If the participants will be in the same room, the ADR practitioner should have a predetermined procedure to separate them for a caucus or separate meeting or if the conflict escalates. Generally, having a separate room available for caucus or separate meetings is preferable because it reduces the number of times participants need to shuffle back and forth into and out of a single room. If the ADR practitioner is aware that potentially dangerous persons will be participating in a session, he or she may want to implement more stringent safety procedures and alert other staff members and security personnel in advance that heightened security may be needed.
Screening Individual Disputants
Judges and ADR practitioners should screen each disputant prior to ADR processes to identify those for whom ADR processes may not be appropriate or who might require more stringent safety precautions. Some disputants may not be able to participate meaningfully in ADR processes because they cannot adequately represent their own interests due to prior domestic abuse or current substance abuse issues.
Screening for common threat assessment factors can help identify parties who may have a propensity for violence. However, the mere presence of any of these threat assessment factors does not mean that an individual is violent. Judges and ADR practitioners need to consider the totality of the situation and not exclude a party from participation in ADR simply based on the presence of one or more of these factors.
Threat Assessment Factors
The threat assessment factors that judges and ADR practitioners should consider when designing intake and screening protocols are as follows:
- Past history of impulsive behavior: A participant’s past history of impulsive behavior is a major indicator of the potential for violence. Warning signs include excessive expressions of anger and hostile reactions or threats with little provocation.
- Past history of violence, bullying, or intimidation: Violence can be a source of power and control over others and a response to confrontation or challenge. Bullying is the psychological counterpart of physical violence. Those who have engaged in these behaviors in the past may resort to violence, bullying, or intimidation during or after an ADR session.
- Prior arrest: Any arrest is a heightened risk factor even if it was for a nonviolent crime.
- Possession of weapons, fascination with weapons, or history of weapon use: A history of weapon use, brandishing of weapons, or fascination with weapons can increase an individual’s propensity for violence.
- Past history of physical abuse or witnessing physical abuse or violence: Abuse victims and those who have witnessed abuse often hate their own weaknesses and may begin victimizing those they perceive as weak.
- Head injury, dementia, and/or post-traumatic stress disorder (PTSD): A history of head injury and/or dementia may cause loss of impulse control, and without this control, violence or aggression may become more prevalent. Those affected by PTSD can become panicked and act violently as they escape the situation.
- Fear of attack or invasion of personal space: Some individuals express paranoia or fear and become increasingly agitated or stressed when they are in close proximity to others. Such individuals may lash out in defensive violence if they sense their personal space has been compromised.
- Low frustration tolerances: Individuals who have little tolerance for frustration may be unable or unwilling to tolerate limit setting, such as the introduction or enforcement of ground rules. Excessive impatience or significant emotional outbursts can also accompany this behavior.
- Recent stressors and loss: Bereavement, separation, divorce, job loss, incarceration, or similar circumstances can contribute to violent thoughts and actions. Loss of status, esteem, property, relationship, or children can trigger feelings of anger, frustration, victimization, righteousness, and vengeance. These individuals may become violent if loss is addressed during a session.
- A feeling of victimization and grievance: People who feel victimized by a situation and/or other individuals may regard their current predicament as someone else’s fault and maintain this attitude no matter what evidence is presented to the contrary. Those who may “represent” the oppressor may become an available target of aggression.
- Excessive use of intoxicating substances: Use of intoxicating substances can erode impulse control and dampen or repress moral sensibilities that would normally inhibit violence.
- Physical pain or discomfort: Chronic pain and illness can make people feel frustrated and/or desperate. The pain can erode patience and cloud thoughts. These individuals may be taking powerful painkillers, which can also affect behavior and decision making.
- The individual has already given up: Individuals who have already given up may expect the interaction during a session to be difficult or absolutely negative. Their response to a conflict might be, “Nothing will help. If I’m aggressive, at least I can make my mark on the world or on you. What have I got to lose?”
- Severe psychopathological symptoms: Some individuals with severe psychopathological symptoms may be prone to violence. Rapid mood swings may lead to unpredictable behavior. Auditory hallucinations may tell the individual to do something violent. Mania, which is a heightened state of extreme excitement, typified by rapid speech, grandiose thinking, very poor judgment, and impulsive behavior, may lead to violence.
In addition to screening for threat assessment factors, judges and ADR practitioners should be aware of their “gut sense” when something seems “off.” The human body has an innate sense of conveying danger, and individuals should honor and respect their instincts on safety. If something does not look or feel right, do not ignore that sensation.6
Screening Questions to Assess the Potential for Violence
The following are examples of questions judges and ADR practitioners can integrate into their existing intake and screening protocols to help identify threat assessment factors and other safety issues. These questions can also be used in caucus. The screener should tailor the following sample questions to the unique needs and requirements of the program and the particular case.
- Is there an order of protection in place, for example, a court requirement that one of you stay away from the other?
- Have you ever been arrested for assault?
- Have you ever sought police protection?
- What do you do when someone really makes you angry?
- How could I tell if you are mad?
Protocols in Case of Actual or Threatened Violence
The final part of the safety plan is a protocol for addressing any actual or threatened violence that might occur during an ADR session. A well-designed safety plan and thorough initial and ongoing screening should significantly reduce the likelihood of violence. However, it is imperative that judges and ADR practitioners develop a detailed plan that specifies the procedures to be followed in the case of actual or threatened violence. In buildings, such as courthouses, where there are security personnel, these protocols should be co-created with the security department.
Every individual who is potentially involved in the plan must know his or her responsibilities so the plan can be quickly and seamlessly implemented when needed. This can be achieved by training new hires and conducting frequent safety drills for all personnel. Everyone in the ADR program should know all the possible ways to exit the building. “Safe places” such as offices that can be locked should be identified. Some buildings may have already designated shelter areas for tornados or other similar dangers, and these locations may be used to either avoid or detain aggressive individuals.
Specific communication protocols should be developed. Have a code word that alerts staff members, but not participants, of the need to implement emergency procedures. Write a protocol specifying the actions that should be taken once the code word has been given. Be sure that all personnel know preferred and alternative procedures for seeking emergency assistance (such as calling “911” directly or calling a security control officer first).
In the case of actual or threatened violence during a session, judges and ADR practitioners must shift their primary focus from resolving the dispute to ensuring the safety of all involved. While judges and ADR practitioners should remain courteous and respectful to the extent possible, they may need to become directive. This shift of mindset can be difficult for some ADR practitioners, and they should think through their responses and practice with a colleague before they are in a dangerous situation.
The following is a recommended protocol for judges and ADR practitioners to use when confronted with violence or threatened violence during an ADR session: Do not hesitate to terminate the session if you feel that anyone is at risk. Decide if you can stop the violent or potentially violent situation.
If you believe you can stop the violence before it erupts, consider doing the following:
1. Stand up.
2. Gain the attention of the participants.
3. Give a command to the aggressive participant to disengage and return to his or her seat.
4. Separate the participants. You will probably want to leave the more violent participant in the ADR room and escort the others out of the room. If you do, have a colleague or security officer stay with one participant while you talk with the other.
5. Terminate the session with the participants separated. Do not bring them back into the room together.
6. Stagger the exit of the participants. Give the threatened participant the opportunity to leave first. Ensure that all participants have access to transportation. If both participants arrived on public transportation or shared transportation, consider how to avoid further contact between the participants.
7. Consider providing an escort for one or both of the parties to his or her transportation.
If you are not able to stop the violence or believe you are unable to do so, consider the following:
1. Do not physically confront a violent person.
2. Get out of the room.
3. Get help from others in the vicinity or the authorities (police, security, etc.). If appropriate, enlist another person to assist you in separating the participants.
4. Follow steps 4–7 above, if you can do so safely.
Whether or not you are able to control the violence, consider the following:
1. Decide whether to contact police or court security. If there was physical contact (e.g., biting, hitting, spitting, slapping, or throwing liquids) or someone was injured, call the police or court security immediately.
2. Call other emergency services, such as an ambulance, if needed.
The ACR Task Force’s recommendations are designed to help judges and ADR practitioners identify potential safety concerns and develop safety plans for their ADR programs. These recommendations are a starting place and a resource to design and implement safety strategies in order to reduce the risk of violence and address any violent, or potentially violent, situations that may occur.
Judges and ADR program coordinators are urged to distribute these recommendations to ADR practitioners to help them recognize potential dangers and develop safety plans. The task force encourages judges, ADR practitioners, and all other interested persons to continue and expand this discussion of ways to promote safety in all ADR processes.
1. ADR practitioners include mediators, facilitators, and other third-party neutrals.
2. In January 2014, the Association for Conflict Resolution (ACR) Task Force convened the Task Force on Safety in ADR chaired by Steven Kotev. The following task force members were selected for their knowledge of current conflict resolution safety best practices and experience in law enforcement or other security-related procedures: Judge Stephanie Domitrovich, state trial judge for the Sixth Judicial District of Pennsylvania; Marya Cody Kolman, immediate past president of the Association for Conflict Resolution (2013–2014), director of mediation for the Domestic Relations and Juvenile Court, Franklin County, Ohio; Stephen Kotev, Task Force chair, conflict resolution consultant and somatic educator, Silver Spring, Maryland; Corey Schlegel, Child & Family Team Facilitator, Community Mediation Coordinator at The Mediation Center, Asheville, North Carolina; Susan M. Yates, executive director, Resolution Systems Institute, Chicago, Illinois; and Mary Damianakis, Canada Family Mediation Accredited Mediator, member ACR Board of Directors (2013–2014), Quebec, Canada.
3. Task Force on Safety in ADR, Ass’n for Conflict Resol., ADR Safety Planning: Recommended Guidance, http://www.acrnet.org (under Resources, select task force on Safety Recommended Guidance and then select to download the file) [hereinafter Recommended Guidance].
4. Martha Neil, Fatal Shooting after Mediation Leaves Lawyer and Client Dead, ABAJournal.com (Jan. 31, 2013, 2:29 PM CST), http://www.abajournal.com/news/article/lawyer_shot_client_executive_killed_after_mediation_session_with_suspected_; Jane Lednovich & JJ Hensley, Police Say Shooting Does Not Appear to Be Random, USA Today (Jan. 31, 2013), http://www.usatoday.com/story/news/nation/2013/01/30/arizona-shooting/1877525.
5. Judges may also want to follow this recommendation by informing a nearby colleague or their security personnel when they are working in their court offices outside of regular court hours.
6. This task force report cautions that cultural competency about escalation and aggression in different cultures is needed to properly modulate this instinctual sense of danger. Cultural norms impact how individuals communicate and interpret violent intentions. Misunderstandings can occur when screeners lack understanding of the cultures of the parties involved.