Jennifer Shack, August 20th, 2010
FAILFaire is a gathering of technology non-profits to share stories of failure and give an award to the worst one. The purpose is to learn from each other’s failures and not replicate them. According to a New York Times article on FAILFaire, non-profits are leery of revealing failures because it may turn off donors and thus harm those they are trying to help. This type of thinking has led many not to examine the reasons behind failures, instead focusing on what has worked rather than what has not. There is a school of thought that says we can learn more from our – and others’– mistakes than we can from our successes.
So, in the interest of improving monitoring and evaluation practices, I’m going to share RSI’s worst failure. RSI was working with an Illinois court to develop a monitoring system for its family mediation program. The system we came up with included case management data that the Clerk’s Office collected, along with data collected by the court through post-mediation reports and questionnaires. In Illinois, the Clerk’s Office is an entirely separate governmental entity from the court system, with an elected Clerk in each county. We thought the best approach, then, would be to create software that would download data from the Clerk’s database into the database for the program. This would eliminate the need to re-enter the Clerk’s data as well as the constant need for the Clerk to send that data to court staff. In essence, the Clerk’s database and our database would be connected, but not integrated. It seemed like a good way to reduce the amount of work that staff would have to do in order to monitor the program. Read the rest of this entry »
Tags: court programs, lessons learned
Posted in Evaluation, Program management | 1 Comment »
Jennifer Shack, August 3rd, 2010
In my last post, I gave two examples in which mediators were being called upon to act outside of their accepted roles in order to obtain fairer outcomes. One side of the coin was asking that mediators recommend sanctions against parties who fail to negotiate in good faith. The other side wanted mediators to obtain the same outcomes for cases with the same set of facts. The latter, in particular, stretches the concept of mediation beyond its defined borders because it requires mediators to insert themselves into the decision-making process in order to get the same results with different parties.
Nancy Welsh discusses even more egregious examples in “You’ve Got Your Mother’s Laugh: What Bankruptcy Mediation Can Learn from the Her/History of Divorce and Child Custody Mediation.” She cites programs in which mediators were asked or allowed by the court to make binding decisions, request discovery, and otherwise act outside of their appropriate role. As in the Nevada Foreclosure Mediation Program, these roles were given to mediators in order to address specific needs that cannot be addressed by the traditional role of mediation. Read the rest of this entry »
Tags: Nevada, scope of mediation
Posted in Mediation field | 3 Comments »
Jennifer Shack, July 30th, 2010
What is the proper role of a mediator? Is it appropriate for mediators to recommend sanctions against one party for not negotiating in good faith? Should mediators attempt to get similar outcomes for similar cases? These two questions, which arose from two articles on the Nevada Foreclosure Mediation Program published in the Reno Gazette Journal in July, highlight that age-old question of whether mediators can be fair and neutral at the same time (Unfortunately, the articles are no longer available online). In the first article, a mediator complains of not being assigned cases because he has recommended sanctions – and states that mediators should be able to do so. In the second, a legislator states, “If you have a situation where two homeowners share the same facts, and two different mediators get different results, that shouldn’t be happening…I think the court will have to step in with some rules to guide mediators so that they are all in step with the program.”
These two statements share a common thread – the desire for mediation to be fair in a way that it perhaps cannot be. They demonstrate the tension between basic tenets of mediation – neutrality and self-determination – and the perception of fairness. Read the rest of this entry »
Tags: fairness, foreclosure mediation, Nevada
Posted in Mediation field | 1 Comment »
Susan Yates, July 27th, 2010
The Missouri Court of Appeals has issued a decision that is instructive as to what can happen when an agreement reached in a court-ordered mediation is not reduced to writing before everyone leaves the mediation. The decision also highlights the potential tension between an emphasis on good faith participation and confidentiality, although it never discusses good faith.
Missouri’s Supreme Court Rules 17.01(d) and 17.06(c) specifically require that agreements be memorialized. In this situation, one party left the mediation, saying they would return to finalize the agreement, but did not do so for an hour, at which point the other party and the mediator ended the mediation. During the ensuing week, there were follow-up efforts to finalize the agreement, but the party who had left the mediation quibbled with various drafts of the agreement.
The Appellate Court, reversing the trial court, found that the plain language of Supreme Court Rule 17.06 (c), Read the rest of this entry »
Posted in Program management | No Comments »
Susan Yates, July 20th, 2010
There has been quite a bit of hubbub online about a message circulating from NAFCM’s (National Association for Community Mediation) executive director, Justin Corbett. The message, copied below, asks for input on a definition of “mediator” for the U.S. Department of Labor. It will be used “by the federal government, and will be accessible online for all those considering a career or a volunteer commitment as a mediator.”
I find it fascinating that we (in the mediation field) continue to have such a difficult time defining what we do. I understand that there is great concern about potentially excluding sectors of the field, but we really need to be able to get on the same page (even if we have multiple ideas on that page!) if we are going to be able to provide quality services. We may disagree on many things, but there is so much more that brings us together. Read the rest of this entry »
Posted in Mediation field | 1 Comment »