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Mediation Shouldn’t Be More of a Barrier Than a Boon

Susan M. Yates, March 17th, 2017

When it comes to defining mediation, I am not a strict constructionist. As long as a mediation program operates within the ethical boundaries, such as confidentiality, neutrality and voluntariness, which are articulated in the Model Standards of Conduct for Mediators, I can agree with a wide variety of approaches.

Unfortunately, sometimes certain entities (e.g., courts, governments, schools, corporations) seem to use the word “mediation” as cover to make a process that is not really mediation appear more palatable. It is worse yet when the purpose of the program appears to be to create a set of hurdles. One of my core principles in mediation system design is that a mediation program should ease the path to resolution, not erect barriers to it.

A program being developed by the City of Concord, California, to address rising rental rates is looks like the latest example of breaking this principle. (more…)

Reflecting on RSI Focus Groups in Washington, DC

Susan M. Yates, March 1st, 2017

Last week I had the honor of accompanying Jennifer Shack, RSI’s remarkable Director of Research, to Washington, DC. Jen is the principal investigator on an RSI evaluation of the child protection mediation program[1] in the DC Courts. I came along to facilitate the focus groups that are part of the evaluation. Each of the focus groups brought together a distinct group of lawyers who participate in mediation regularly: Guardians ad litem, lawyers for parents and prosecutors. The focus groups provided insight into how differing interests shape how mediation is perceived.

I found that my mediation skills, honed over many years, made it easy to shift into the role of focus group facilitator. Asking open-ended questions, encouraging everyone to participate and keeping the conversation moving were all familiar. Unlike mediation, the group didn’t have a goal of reaching agreement and I found that to be kind of liberating! What was more surprising to me was that it was difficult to remove my trainer/teacher “hat.” When a participant made a comment based on a misunderstanding of mediation, I had to resist the urge to engage in a conversation to educate the participant about mediation.

The groups of lawyers came from very different perspectives and often had different goals for mediation. (more…)

Considering the Role of Ongoing Relationships in Mediation

Susan M. Yates, November 18th, 2016

“Mediation is especially good for parties with an ongoing relationship.” This is axiomatic when it comes to mediation, right?

This weekend, I had an experience that shed new light on this old idea. I was at a sale of building materials. Although it was advertised as an auction, there were few attendees and so potential buyers simply haggled with the seller’s agent over the price of anything they wanted to purchase. While digging through boxes of tile, I had a front-row seat to the negotiations between the agent and a potential buyer over some marble.

The feints and parries were familiar to anyone who has mediated many cases.

“Well, I don’t know what these would cost,” said the buyer, trying to downplay her expertise and develop sympathy in the agent. But the agent responded, “Don’t try that dumb girl thing on me! I’ve dealt with you before. You are smart and you know what these would cost.”

“Look, I have other buyers who will give me what I am asking,” said the agent, trying to assert a BATNA. But the buyer responded, “Where? I don’t see any other buyers here!”

The agent also tried to make herself seem sympathetic, even powerless, with the plea, “The seller would have my head if I sold them for so little.” But the buyer replied, “You can do whatever you want!”

The potential buyer tried to make a small move look more attractive by changing the format of the offer to a total price, rather than a per piece price. But the agent turned the math back into price per piece.

They went back and forth on numbers with plenty of dramatic gestures and raised voices. Their eventual prices were $240 and $260.

And they both walked away from the deal over a $20 difference!

Why did these two experienced negotiators walk away from the deal? (more…)

“Uniform Family Law Arbitration Act” Update

Susan M. Yates, October 17th, 2016

The Uniform Family Law Arbitration Act has been finalized by the Uniform Law Commission and the full version with commentary is now available. You can find the final version of the act and other information on it here.

If you want to learn more about the act, the American Bar Association Family Law Litigation Committee is sponsoring a telephonic “roundtable” about it on November 4, at 12:00 pm – 1:00 pm Eastern. The roundtable is free and open to anyone, including non-ABA members, but you have to register for it using the following link: https://form.jotform.com/62504543364150.

The speakers for the roundtable have all been deeply involved in the creation of the model act. They include Barbara A. Atwood, Chair of the Family Law Arbitration Drafting Committee, Uniform Law Commission; Kaitlin A. Dohse, Legislative Counsel, Uniform Law Commission; and Linda H. Elrod, Reporter for the Family Law Arbitration Drafting Committee, Uniform Law Commission.

The Uniform Law Commission describes the need for the act and its intended results as follows: “States’ laws vary when it comes to arbitrating family law matters such as spousal support, division of property, child custody, and child support. The Uniform Family Law Arbitration Act standardizes the arbitration of family law. It is based in part on the Revised Uniform Arbitration Act, though it departs from the RUAA in areas in which family law arbitration differs from commercial arbitration, such as: standards for arbitration of child custody and child support; arbitrator qualifications and powers; protections for victims of domestic violence. This Act is intended to create a comprehensive family law arbitration system for the states.”

Lessons Learned from Foreclosure Mediation

Susan M. Yates, June 14th, 2016

It is heartening to see that titles of two recent publications include the phrase “lessons learned” as they explore Illinois’ experience with foreclosure mediation. That phrase reflects Resolution Systems Institute’s perspective that we should consistently seek the lessons from current mediation programs to apply to the next ones to be developed. Not surprisingly, RSI staff wrote one of these articles!

These pieces – the one by RSI and the other by the Woodstock Institute – outline four and twelve “lessons learned” respectively. The publications are:

(more…)