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My Favorite Resource Featuring Tom Valenti

Nicole Wilmet, March 1st, 2019

Our series, My Favorite Resource, features interviews with our ADR friends across the country to learn about their favorite resource. This month, Resource Center Director Nicole Wilmet spoke with Tom Valenti, an experienced dispute resolution professional and founder of Valenti Law, to learn about his favorite resource.

NW: What is one of your favorite ADR resources?

TV: The resource that I have found most useful over the years is Kluwer Mediation Blog. Kluwer Mediation Blog is a comprehensive source of international articles. It publishes interesting articles from leading practitioners worldwide. Its database of articles is searchable, which makes it an excellent resource.

NW: Why do you value this particular resource?

TV:  As someone who keeps in touch with ADR issues internationally, I find it to be the best resource for me. I set up my account to send me an email when a new article is posted. The articles are published by leading practitioners. This is the beauty of Kluwer. It curates who can publish there, so you are reading reliable and interesting articles. I have found most of them worth reading, saving and cataloging.

NW: How did you first learn about this resource?

TV: As one who uses online research tools, I found the blog through a search engine, and then subscribed after finding it to be of high quality. As it turns out, I know many of the authors now, who are amongst those I look to in our field. For those who subscribe to my newsletters, there is usually an article from Kluwer in them.

NW: For those unfamiliar with this resource, what is one part of this resource that you wouldn’t want someone to miss.

TV: The blog has very useful searching and browsing functions, so if you are looking for something specific, you can browse by category, jurisdiction, date, author, etc., or you can use the general search feature.

If you have a favorite resource that you would like to share in an upcoming edition of our blog or newsletter, please reach out to our Resource Center Director Nicole Wilmet at nwilmet@aboutrsi.org.

Ohio Civil Stalking Mediation Pilot Shows Promise for the Future

Jennifer Shack, February 28th, 2019

In recent years, the Courts of Common Pleas around Ohio have been experiencing a sharp increase in civil stalking petition filings. In response, the Supreme Court Commission on Dispute Resolution decided to start a pilot mediation program for ten jurisdictions. The 18-month pilot ended in December. I was privileged to be asked to assess the pilot program so that the Commission on Dispute Resolution could make an informed decision about whether to continue the program and expand it statewide. Though data collection proved problematic, there was enough information to determine that mediation could be useful and safe for these cases, and that referral to mediation can significantly increase the number of settlements and decrease the number of full hearings held.

Civil stalking cases generally involve a pattern of behavior that isn’t serious enough to be criminal. The vast majority of cases involve people with a current or past relationship of some sort. In the Ohio pilot, almost half of the cases in which the relationship between the parties was reported, involved neighbors. Others were co-workers, former in-laws and ex-romantic partners.

Mediation in the Ohio pilot was voluntary, with referral generally occurring when the parties arrived for the full hearing. The counties differ as to who conducts the mediations, with some referring cases to independent mediators and some being mediated by a judge not associated with the case. For all cases, mediation is conducted in a shuttle format, with the petitioner and respondent in different rooms.

The reported number of mediations for the ten pilot programs ranged from 0 to 14, for a total of 52 mediations combined. The agreement rate for the 52 cases was 71%. Agreements tended to call for there to be no contact between the parties, with 12 of 15 containing only terms that were meant to keep the parties apart. Three, which involved neighbors, attempted to address the underlying causes of the conflict between the parties. They included terms such as keeping pets from the other party’s property, keeping common areas clean and removing lighting that encroached on the other party’s property.

While no contact agreements may be sufficient for cases involving ex-romantic partners or former in-laws, for those parties who are neighbors, it can be more challenging. For them, creative terms that address the underlying causes of conflict may be more effective in keeping those parties from later returning to court. I therefore recommended that future mediator training include methods for identifying underlying causes of conflict and helping parties to devise creative agreement terms that can address those causes.

Few parties completed surveys. Of the 10 parties who did, most were pleased with their experience and would recommend it to others. Most felt they had input into the outcome and all felt they had the opportunity to talk about most or all of their issues and concerns. In comments, the parties said mediation helped them by giving them voice and by allowing them to resolve their conflict without going to court. One surveyed party, who wanted a protection order, thought the mediation was a waste of time.

Three limited issues were also identified. A few ineligible cases were referred to mediation in one county. Of the ten parties surveyed in other counties, three believed that their mediation agreement was enforceable in court when it was not. Further, two of five parties who were asked whether they felt they could choose whether or not to mediate responded only “somewhat,” indicating that they didn’t have complete self-determination. These parties had been told of the opportunity to mediate by the judge hearing their case, and one indicated it was for this reason that she felt a little pressured to mediate.

In one county, enough information was provided to determine what effect mediation had overall. As cases were referred to mediation when they arrive for the full hearing, we can assume that without referral to mediation, those 44 cases in which the parties arrived at the full hearing would not have settled and would have proceeded to a full hearing. As 19 of the 44 cases were referred to mediation, and only two of those continued to a full hearing, mediation referral had the effect of reducing the number of full hearings from 44 to 27, or by 38%. Further, 11 of the cases referred to mediation resulted in an agreement. With 12 cases settling prior to the full hearing, this means that referral to mediation almost doubled the number of settlements to 23.

The data from the above county indicates that mediation of civil stalking cases can have an impact similar to that of mediation for other types of cases, with about 20% of cases filed being referred to mediation and 11% being settled through the process. It can also safely address the needs of the parties – to have voice and to avoid court. When implementing this type of program, courts should be aware of possible pitfalls, including party misunderstanding of agreement enforceability and the impact of judge referral on parties’ belief that they can choose to mediate.

New California Law Requires Attorneys to Obtain Consent from Parties Regarding Mediation Confidentiality

Nicole Wilmet, February 27th, 2019

A new California law now requires attorneys to provide written disclosures to and obtain consent from their clients regarding California’s mediation confidentiality restrictions. The new law, effective January 1, 2019, applies to all civil cases except class actions. Under the new law, as soon as reasonably possible before a client agrees to participate in mediation or pre-mediation consultation, attorneys must provide their client with a written disclosure that identifies the confidentiality restrictions related to mediation. These written disclosures must be in at least 12-point font and be printed in the preferred language of the client. Additionally, these disclosures must be a single page document that is not attached to any other document provided to the client and be signed by both the attorney and the client.

The impetus behind this new law is to ensure that clients understand the expansive reach of mediation confidentiality. In California:

  • all communications, negotiations or settlement offers that occur during the course of mediation are confidential;
  • any statements made and writings prepared in connection with a mediation are not admissible as evidence or subject to discovery;
  • mediators may not be compelled to testify in any subsequent civil proceedings about any communication or conduct that occurred during or in connection with a mediation; and
  • a mediator’s report, opinion, recommendation, or finding about what occurred during the mediation may not be considered by a court.

In addition to improving understanding by requiring written disclosures, California’s new law is also a step by the legislature to address a policy concern identified by California courts regarding mediation confidentiality and attorney disciplinary action. See Cassel v. Superior Court, 51 Cal. 4th 113 (2011)(in which the Court held that a party was barred from disclosing private attorney communications, that were made during the course of a mediation, as evidence in his attorney malpractice suit).

In response to Cassel, in 2012 the California Legislature passed a resolution that directed the California Law Revision Commission (“CLRC”) to evaluate the relationship between mediation confidentiality and attorney malpractice. In 2017, after five years of studying the issue, the CLRC released its recommendation which encouraged creating an exception that would allow attorneys to be held accountable for mediation misconduct. Ultimately, the final language adopted by California’s new law permits the disclosure of communication in an attorney disciplinary proceeding to prove attorney compliance with written disclosures only if the communication does not disclose anything said or done during the mediation.

Welcome Alyson Carrel to RSI’s Board of Directors!

Nicole Wilmet, February 26th, 2019

RSI is proud to introduce Alyson Carrel, Clinical Associate Professor and Assistant Director of Northwestern Pritzker School of Law’s Center on Negotiation and Mediation and Assistant Dean of Law and Technology Initiatives onto our Board of Directors. Ms. Carrel is an active leader, presenter, and trainer in dispute resolution. She currently teaches Negotiation, Mediation Process and Advocacy, Dispute Resolution and a clinical course in Mediation Advocacy.

Since 1993, she has been exploring the process of mediation and how it can benefit under-represented populations and enhance access to justice. Prior to her appointment at Northwestern Law, Ms. Carrel was the Training Director at the Center for Conflict Resolution, one of the nation’s largest and longest-running community mediation centers, where she directed and lectured in the 40-hour mediation skills training and mediated court-referred cases.

RSI is proud to have Ms. Carrel join our Board and we hope you will join us in welcoming her to our organization!

My Favorite Resource Featuring Sally Campbell

Nicole Wilmet, January 30th, 2019

Our series, My Favorite Resource, features interviews with our court ADR friends across the country to learn about their favorite resource. This month, Resource Center Director Nicole Wilmet spoke with Sally Campbell, Dispute Resolution Services Manager for the Supreme Court of Virginia, to learn about her favorite resource. 

NW: What is one of your favorite ADR resources? 

SC: Aside from RSI, always a favorite resource, my favorite ADR resource tends to be what is helping me most at the moment. Appellate Mediation: A Guidebook for Attorneys and Mediators, an ABA publication written by experienced appellate mediators Brendon Ishikawa and Dana Curtis, tops my list right now.   

NW: Why do you value this particular resource? 

SC: Appellate Mediation contains a wealth of information for any mediator, whether newly minted or appellate veteran. I still marvel at this book’s promotion of a facilitative process with a client-centered, problem-solving approach – not what I expected when I first opened it. The book divides into five sections. The first, “Fundamentals of Appeals,” tackles appellate law basics, case evaluation, and decision tree risk analysis for case evaluation. The second, “The Appellate Mediation Process,” covers each phase of the mediation, with headings varying from “Explanation of the roles of the Mediator and Participants” and “People Get Angry; It’s Okay,” to “Brainstorm for as Many Options as Possible – Especially Options with Asymmetric Gains.” The “Practice Tips for Appellate Attorneys” section focuses on preparing attorneys and clients for mediation; strategies for the sessions; and crafting an enforceable agreement. “Practice Tips for Appellate Mediators” delivers excellent, detailed guidance for mediators.   

Finally, the Appendix packs a punch with great resources for appellate mediators, like sample phone call dialogue and sample documents. Appellate Mediation is eminently accessible with a user-friendly design that makes it easy to find specific information. The authors even include a chapter on mediator professional development. That chapter’s attention to the reflective practice process generated an a-ha! moment, and facilitated our goal to design the Mediator Self-Reflection Treasury to guide and support mediators even in solitary, first-time self-reflection.  

NW: How did you first learn about this resource?  

SC: In 2018, the Supreme Court of Virginia approved appellate mediation pilot projects to run for two years in the Supreme Court and the Court of Appeals of Virginia. I found this book while looking for resources to assist in the training of appellate mediators. It fit the bill so well that the trainer used it in the basic mediation course.  

NW: For those unfamiliar with this resource, what is one part of this resource that you wouldn’t want someone to miss?  

SC: For newer, non-appellate mediators, I would recommend Chapter 14 (“Phase 2, Information Exchange, and Phase 3, Identifying and Organizing the Issues”), although there is so much to be gleaned elsewhere in the book, I wouldn’t stop there. For seasoned mediators, I’d recommend Chapters 2 and 3, that address case evaluation as in “What is my best presently available option?” and case valuation through decision tree analysis. In this well-written, accessible book, these chapter materials aren’t nearly as daunting as they sound.     

This book might top my list for a long time to come. 

If you have a favorite resource you would like to share in an upcoming edition of our newsletter and our blog, please reach out to our Resource Center Director Nicole Wilmet at nwilmet@aboutrsi.org.