Yesterday I taught my last Mediation class of the semester at George Mason University’s Scalia Law School. Karen Leichtnam joined us to discuss mediator ethics. Karen worked at Multi-Door Dispute Resolution in D.C. Courts for many years before retiring in 2020, and she held the positions of Civil ADR Branch Chief and Mediation Training Manager, among others. Karen hired me to be a mediator in D.C. Courts back in 2010. I’ve participated in many of Karen’s ethics training classes over the years at Multi-Door since mediators are required to be re-certified every two years by the Virginia Supreme Court – which includes completing ethics training every two years.
Karen reviewed key components of the Model Standards of Conduct for Mediators with my students:
1. Self-Determination: A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party make free and informed choices as to process and outcome.
2. Impartiality: A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.
3. Conflicts of Interest: A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.
4. Competence: A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.
5. Confidentiality: A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation unless otherwise agreed to by the parties or required by applicable law.
6. Quality of the process: A mediator shall conduct a mediation in accordance with these standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants.
7. Advertising and Solicitation: A mediation shall be truthful and not misleading when advertising, soliciting, or otherwise communicating the mediator’s qualifications, experience, services, and fees.
8. Fees and Other Charges: A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses, and any other actual or potential charges that may be incurred in connection with a mediation.
9. Advance of Mediation Practice: A mediator should act in a manner that advances the practice of mediation.
Ethical issues often arise in the mediation setting. What behaviors are right or wrong/proper or improper in mediation? Karen presented various ethical conflict scenarios to my students for discussion:
It's always sad to end the semester and to say goodbye to my students. "Every ending is a new beginning." -- Marianne Williamson
Zoom. Google Meet. Microsoft Teams. We used to work in offices or go to school for classes. Now many of us are working all day in little “Zoom boxes” where the line between work and rest gets blurrier everyday, along with our eyesight.
Experts say many who work remotely are experiencing the same side effect of quarantine: exhaustion borne from endless video meetings, known as Zoom fatigue. Students, attending hours of online class, five days a week, may experience the worst of it.
We’re all aware of the hypothetical solutions. More exercise! Avoid screens! Do something relaxing! However, all of these quick fixes are easier said than done. We think to ourselves: How can I exercise if I need to finish all my homework for today? How do I have fun when there’s a global pandemic going on?
In order to find out how we can become more energized throughout the day, we first need to understand how fatigue works — and why sitting in front of a computer, doing relatively little, is so exhausting. Luckily, scientists are actively studying the phenomenon.
In our brain, rewards can increase alertness, energy and motivation, which reduces fatigue. Even simple tasks, such as walking in the halls in between classes, can be rewarding for our brains and increase our energy. Our brains feel rewarded when we move or change environments or when we get social interaction. We may not realize it, but when we talk to someone in person, we are communicating through many non-verbal cues, such as our body posture and smile. On video calls, it’s more difficult to pick up on these cues, so we have to work harder in order to socialize, which results in us feeling more tired.
So is there anything we can do? Yes! Caring for our minds and bodies away from our screens can energize us, and that’s as important as making our digital interactions as rewarding as possible. Experts recommend:
Guest blogger John Barnes is a senior at H-B Woodlawn Secondary Program in Arlington, Virginia and a 2021 Health Video Fellow with PBS NewsHour’s Student Reporting Labs.
“We do not see things as they are. We see things as we are.” Anais Nin
Today in the Mediation class that I teach we discussed barriers to settlement in mediation, which include (1) cognitive barriers and the role of perceptions and (2) the impact of fairness. According to Dwight Golann and Jay Folberg in their book Mediation, The Roles of Advocate and Neutral, a key step in a mediator’s work is to identify the obstacles that are preventing parties from negotiating effectively. It is essential that a mediator develop skills to address the challenges of cognitive barriers and differing views of fairness in order to empower the parties to a dispute to reach settlement in mediation.
A solution to resolving conflict is to be aware that people often see the same situation very differently. Selective perception is at the core of our tendency to see the same events differently. The effect of selective perception is enhanced by confirmation bias – our tendency when perceiving conflicting data to give more weight to information that fits our pre-existing beliefs and wishes. (For example, a coffee lover may only read articles that discuss the benefits, and not the risks, of drinking 6 cups of coffee per day.) We tend to estimate the value of items by comparing them to benchmarks. The problem is that most people are anchored by the benchmark, not understanding how different their particular case may be from the comparison point. (Remember the MacDonald's case in 1992 where a woman who spilled hot coffee in her lap was initially awarded almost $3,000,000 for the burns she suffered?) We tend to be persistently overly optimistic about the outcome of legal cases. We are also overconfident about our ability to assess unknown facts.
Differing views of fairness are also at the center of many litigated conflicts and failed negotiations. Fairness can focus on the outcome as well as on the process. Both components shape parties’ willingness to negotiate and to accept settlements.
For example, in the Barry Bonds’ case in October of 2001, differing views of fairness played a large part in the parties’ failure to settle with each other. More than 40,000 fans were at the ballpark to see Barry Bonds add another home run to his record breaking total of 72. Bond’s 73rd home run ball landed in Alex Popov’s outstretched glove. Within seconds, Popov fell to the ground as a rush of people converged on him and the ball. Madness ensued. He dropped the ball. When Popov was pulled from the pile, the ball was no longer in his glove. At the same time, Patrick Hayashi was also knocked over by the crowd. While on the ground, the ball rolled toward him and he picked it up, claiming it as his own. Patrick Hayashi emerged with the ball in hand.
Both men claimed ownership of the ball and both thought it was worth over $1 million, based on the recent sale of Mark McGuire’s 70th home run ball for more than $3 million. Both men stated that principles of fairness entitled each of them to the ball. Several mediators suggested that the ball be sold and the proceeds split. Neither Popov nor Hayashi thought an even split was fair. Following 18 months of bitter litigation, the judge finally ordered that the ball be sold at auction and the proceeds split. The ball was sold for $450,000. Popov and Hayashi each received $225,000 minus auction expenses and attorneys’ fees exceeding $225,000.
What got in the way of Popov and Hayashi agreeing on decisions about Bonds’ home run ball? They were two strangers from different cultures with an all or nothing attitude about an object thought to be worth a million dollars that landed in their hands in an event on national television. There were no well established legal rules in this instance since both of them had taken possession of the ball lawfully. They both anchored the value of the ball with the sale of the McGuire ball. Selective perceptions and confirmation bias made each of them believers in the righteousness of the positions they held and in assessing what factors a judge would consider in deciding who had rights to the ball. They had differing definitions of fairness. Last, they were over optimistic about the value of the ball and judgmental overconfidence was at play with regard to how a judge would rule.
Source: Golan and Folberg, Mediation, The Roles of Advocate and Neutral, Third Edition, 2016
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum
One of the most frequent questions I am asked when a prospective client calls for a consult is: what IS mediation exactly?
I respond by describing mediation and comparing and contrasting mediation to other methods of dispute resolution, such as retaining lawyers and litigating, hiring an arbitrator and using arbitration, or retaining lawyers and agreeing to use collaborative practice.
Here is how I describe mediation to new clients:
Happy Holidays everyone! This month we will have five kids heading home who range from age 18 through 26. We are looking forward to finding ways to enjoy family time while we are safeguarding our health.
ADR presentation -- I will be giving a speech to RLI Design Professionals as part of a training course on the 16th of the month on Alternative Dispute Resolution (ADR). I’ll be talking about dispute resolution through negotiation, mediation, collaborative law, arbitration, and litigation and giving case studies of how a business and a family resolved their conflicts.
Wrapping up the fall semester/Planning for spring -- I will also be grading final papers for the ADR class that I teach, closing out the semester, and planning for the Spring 2021 Mediation class at George Mason University’s Antonin Scalia law school.
Share your story -- You will recall that I contributed a short piece, Five Financial Tips When You Are Facing Divorce, to a book on pandemic relationships that was published in May of 2020. The book was pulled together very quickly by the wonderful Michael Lang and Peter Nicholson. They will be soliciting contributions in early 2021 for a new book. The idea is to present stories of how people have dealt with conflicts exacerbated by the stress produced by the pandemic. I would love to write about a story of resilience for my contribution that I will submit! I am happy to interview you and tell your story so please let me know if you have a story that you would like to share.
Reflective practice group -- I joined a reflective case consultation and study group headed by legendary mediators Woody Mosten and MIchael Lang. My first meeting was in early December with a small group of mediators from all over the country. Our mission is to learn from our colleagues and our facilitators. Our guiding principles are: (1) we are committed to learning from experiences through self-examination and (2) learning comes from self-exploration and self-discovery. And my goal in joining was to raise my conflict resolution strategies and skills and help my colleagues improve as well.
Goodbye 2020 -- 2020 has been a year like no other. I think we are all ready to say goodbye to 2020 and to welcome a New Year and a new beginning in 2021. I am finding inspiration from the following uplifting quotes: Abraham Lincoln said that “the best way to predict the future is to create it.” Helen Keller said to “resolve to keep happy, and your joy and you shall form an invincible host against difficulties.” Buddha said that “no matter how hard the past, you can always begin again.” Last, the Dalai Lama said to “be kind whenever possible; it is always possible.”
Happy New Year and can't wait to see you, 2021!
American University presentation: This month I had the pleasure of speaking on Alternative Dispute Resolution (ADR) to Matthew Pascocello’s American Legal Culture class at American University. The class was online, of course, due to the pandemic. It was interesting to note that students are not required to turn their cameras on during class. The students were highly engaged and asked lots of interesting questions. We started off with an icebreaker role play. Students played the roles of Sandy and Al who just broke up and needed to divide their stuff. Unbeknownst to Sandy, Al wants to get back together and unbeknownst to Al, Sandy has been seeing someone else. We did the role play three different times using eight different student volunteers: first as a negotiation, second as an arbitration, and last as a mediation.
Last ADR class of semester at GMU law school: I taught my last ADR class at George Mason University’s Antonin Scalia Law School, wrapping up my 7th semester teaching. The class focused in pertinent part on the work of Bill Eddy and high conflict personalities, as well as the work of Nina Meierding and cross-cultural and gender issues. It’s always sad to end the semester and to say goodbye to my law students.
High conflict personalities and Bill Eddy: I’ve talked a lot about Bill Eddy and high conflict personalities in previous blog posts. The core issue is that when a high conflict person is having a dispute with another person, the response that works is to immediately shift over from blaming, criticizing, and attaching each other to problem solving as a starting point. Bill says to connect with empathy, attention, and respect (EAR) and to use proposals as building blocks of making agreements. Read more about Bill’s approach in his book So What’s Your Proposal?
Cross-Cultural/Gender issues and Nina Meierding: Nina believes that everyone operates with implicit bias – we don’t even know we have bias most of the time. Bias affects everything that we do. Nina believes that by changing a person’s behavior, you can eventually change his or her beliefs. Here is a story that Nina shared with the Edwards Mediation Academy regarding a mediation she conducted involving cross-cultural and gender issues:
The mediation centered on a doctor who came from a country where there was a historical power distance between men and women. Due to his cultural beliefs, he made the work environment difficult for the nurses who worked with him. When Nina met with the physician, she said that he had the power to make one of three decisions:
1. He could believe what he wants about men and women, continue behaving the way he had been behaving, and the decision would be to not work at the medical facility any longer;
2. He could believe what he wants and decide to stay at the medical facility and change his behavior; or
3. He could change his beliefs and change his behavior which means he had decided to stay.
The physician chose Option #2. He asked Nina to help him change his behavior. By not trying to change his beliefs at the onset, Nina helped him change his behavior – and his beliefs may follow. (See Susan Franson Edwards’ 2018 article on Culture and Its Impact on Mediation.)
Academy of Professional Family Mediators (APFM) conference -- For many months, I had looked forward to attending the APFM conference for 2020 in Phoenix this month. The last APFM conference I attended in San Diego in 2018 had been wonderful. I loved meeting, interacting with, and learning from mediators and dispute resolution professionals from all over the country and the world. I remember taking back ideas from San Diego and incorporating them into my own practice. October is a perfect month to visit the Southwest and I had envisioned an intense few days at the conference and then moving on to visit the Grand Canyon, Saguaro National Park, Petrified Forest National Park, and Antelope Canyon, as well as beautiful National Monuments.
AFPM put on its first online conference instead. There were pre-conference workshops and then a welcoming plenary, “Engaging the New Online Family Mediation Field” that was well attended. We have all been forced into online mediation due to the pandemic and, surprisingly, the major of collaborative professionals online have grown to embrace it. On the one hand, we can meet our clients where they are in their homes, and online mediation is convenient for our clients. On the other hand, we need to work harder to make sure that our personal touch as dispute resolution professionals is not lost. Our guiding principles as mediators are to lead with compassion and to continue to find ways to build rapport. We also need to be really good with technology and ensure that privacy and confidentiality requirements are emphasized when we are online! I try to replicate my in person mediation style to the extent possible now that I am mediating online and make necessary adjustments.
Other sessions that stood out include a talk on “Building a Successful Mediation Practice”, moderated by Woody Mosten, as well as a session entitled “Essential Technology for Effective Online Mediation”, moderated by mediator, lawyer, and online expert Susan Guthrie. I highly recommend reading Woody’s article on Beyond Mediation Toward Peacemaking, in which he talks about peacemaking – “creating a sense of peace and mindfulness within our own lives and in our work by harnessing our core values and best personal attributes.” Susan has been mediating online way before the pandemic and is always beyond generous in sharing her wisdom and tips for improving the online experience for both clients and small business owners. I am really hoping that in 2021, we can all be together in person in Arizona.
George Mason University (GMU) Scalia Law School Class on Alternative Dispute Resolution (ADR) -- It’s hard to believe that I have just taught my ninth class of the fall semester with only four left. My students have been enthusiastic and engaged online as we engage in listening exercises, practice new skills, and use those newly acquired skills in various role play exercises. We have finished the negotiation and mediation units, and we began the arbitration unit this week. Arbitration differs greatly from mediation – arbitration is an adversarial process and the parties have no control over the process and the outcome. There is no appeal right and an arbitrator’s decision is final and binding. Arbitration is less expensive than a trial and can be more private than a trial; arbitration awards do not typically establish precedent for other cases. Next week retired judge, arbitrator, lawyer, and mediator Judge Paul Sheridan will be speaking to my class about arbitration – online via Zoom. I am really looking forward to watching my students interact with Judge Sheridan.
Pivot. Lead. Learn/Mastermind 2020 -- I am really grateful to have the opportunity to participate in this wonderful group online. Maura Fredericks, Coaching for Executives, offered to lead a business mastermind that started over the summer for small business owners. The focus of the mastermind group has been on (1) marketing strategies during the pandemic – how we can continue to innovate through economic uncertainty, (2) scaling and growing – how we can continue to take risks now that we are online, and (3) consulting best practices – how to define what sets our businesses apart and how we can continue to refine our practices during the pandemic. Each month a business owner is in the hot seat and prepares a document that states what type of support the business owner is seeking from the group, as well as goals and challenges. Little Falls Mediation is in the hot seat this month! I am used to listening and facilitating communication and negotiation as mediator, so being in the hot seat is a role reversal for me. I am really enjoying working with this wonderful group of small business owners and being able to support them – as well as accepting their support in my upcoming hot seat.
Back in May, when we were just two months into the pandemic, I contributed to a book on pandemic relationships called Living Together, Separating, Divorcing: Surviving During A Pandemic. At the time, the creators and editors of the book, Michael Lang and Peter Nicholson, wanted to do something to help families in distress. Professionals around the world who work with families contributed to the publication.
Now, here we are deep into the pandemic in early fall. Back in May, we had no idea how long the pandemic would drag on. We just coped the best that we could and hoped that schools would open again come September. Many families have been enjoying their time at home and do not miss the daily commute to work. Other families are struggling and coping with simmering tensions, illness, and unemployment. They are seeking out mediation services in an effort to resolve conflict.
I shared my contribution to the book – Five Financial Tips When You Are Facing Divorce – back in May. Now I want to share tips and words of wisdom from other contributors to the book: lawyers, therapists, mediators, and writers.
1. Carpe diem during corona virus: Your undivided attention helps your kids feel safe and secure. When talking with a child of any age, look into his or her eyes and listen closely to what your child has to say. When kids do chores, they build self-reliance skills and an empowering sense of purpose, plus you’ll feel less overworked and resentful. Family meetings can also break up interpersonal logjams and allow civil discussion of household progress and policies. Finally, try to set aside your worries and savor the opportunities for love, fun, and learning in the Time of Coronavirus. They won’t last forever. Jenifer Joy Madden
2. Five uncomplicated ways couples can turn arguments into discussions: (1) Agree in advance on a pause word or phrase to end the discussion for now; (2) Mentally distance yourself in time by picturing yourself a year from now looking back at this argument; (3) Acknowledge even when you don’t agree to show that you understand; (4) Give back the last word unless it is to show that you get your conversation partner; and (5) Replace ruminating about an argument by considering the perspective of an impartial observer who wants the best for you both. Tammy Lenski
3. Boundaries: What came so easily and naturally at the beginning of the relationship needs to be supplanted by a willful and mindful commitment to show respect by honoring boundaries. We need to remember that no matter how much we think we know our spouses and partners, it is always better to demonstrate respect by taking the trouble to ask than it will ever be to assume. Chip Rose
4. Diagnose and treat interpersonal conflict: (1) Be aware of escalating behaviors that are initial symptoms such as raised voices or refusal to discuss concerns or blaming others; (2) When those around you show stress or depression, make every effort to feel empathy for their emotional pain; (3) If resources are scarce, work with those in your family or business to float options to solve the problem rather than to complain or push others to accept your way of doing things; (4) Research and use the resources in your community to help you gain information and tools to solve your problem. If you treat conflict with the same care you would with a cough or fever, your odds of a fuller recovery when this pandemic passes will increase significantly. Forrest (Woody) Mosten
5. Change the nature of the interaction: Consider that it only takes one person to change the nature of an interaction and you have a great deal of power if you are the recipient of your partner’s frustration and anger. You can either engage or keep some semblance of calm. Fighting back has many negative ramifications as you already know, particularly for your children. So as you and your spouse are confined in the same house, consider the power you have in respectfully managing your part in the conflicts as they arise, by taking the high road and not engaging in the other’s angry outbursts. Marilyn McKnight
Thanks so much to American University Washington College of Law for the invitation! I am looking forward to talking to the alumni community about resolving disputes.
I'll be discussing the differences between litigation, arbitration, adversarial, competitive, and interest-based negotiation, mediation, and collaborative law.
I will also talk about (1) being a small business owner, (2) the focus of my mediation practice, (3) my time spent mediating court referred cases at Multi-Door Dispute Resolution in D.C. Courts, and (4) teaching two law school classes, Alternative Dispute Resolution (ADR) and Mediation at George Mason University's Antonin Scalia Law School.
I am looking forward to this webinar. Please join us on the 24th. You can register here:
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum
Joel and I decided to get out of our comfort zone last January before the pandemic and reserved an RV for the first week of July. We had never driven an RV or vacationed in one and had been talking about trying the RV life for a while. Never did we imagine back in January that we had actually planned the perfect pandemic vacation. We brought all of our own bedding, kitchen items, food, and a grill, and we picked out our two sites last February. We chose three nights at an RV park located right on the beach in Cape Hatteras National Seashore, North Carolina and another three nights at an RV Park in Wilmington, North Carolina -- a seaside city we had always wanted to visit. For seven days, we were able to relax, be outside, socially distance, and not worry so much about Covid-19. Our first RV site was located right on Pamlico Sound and the sunsets were spectacular. Above are photos we took from our RV site. I actually can’t wait to do another RV adventure sometime soon.
Looking Ahead to Fall
August has arrived! The young adults and teenagers in our family are getting ready to go back to graduate school, college, and high school. We are not sure exactly what to expect. What we do know is that most, but not all, graduate school and college classes will be online while public high school students here in Arlington, Virginia will begin the school year solely online. Also, our kids will be coming home before Thanksgiving and staying home until they go back to school in mid to late January.
I am preparing to teach a seventh semester at George Mason University’s Antonin Scalia Law School. I was asked if my preference was to teach in the classroom or online. While I really enjoy teaching in the classroom, I felt more comfortable choosing the online option. I start teaching again on August 26th.
For the first time, my law students will not be able to observe live mediations in the Small Claims Division of D.C. Courts at Multi-Door Dispute Resolution as part of the experiential Alternative Dispute Resolution (ADR) class that I teach each fall. D.C. Courts has shifted toward online mediations, and the online mediation program is still so new that Court staff did not want students observing at this time. The ADR class focuses on four units -- negotiation, mediation, arbitration, and collaborative law. Students learn about these alternatives to litigation by practicing dispute resolution skills and then using these skills in various role play exercises. So instead of observing real mediations, students will observe recorded mediations that I am asking the law school to purchase from the Harvard Program on Negotiation. And their role plays will take place via Zoom rather than in the classroom.
I am also receiving a lot of calls lately from Little Falls Mediation clients who are inquiring about mediation services. I pivoted to online mediation in mid-March when all of the schools shut down. Typically, I schedule a no charge confidential phone consult with each party to a dispute so that they can ask all the questions that they have about what the mediation process looks like, what alternative dispute resolution is, how I work with clients, what is the timeline, and what costs will be. Since the pandemic began, I have mediated all of my cases online via Zoom. I learned early on that it was important to upgrade my internet capability and speed, as well as my computer, and to make sure that all of us could see and hear each other really well on separate devices during online mediation.
In talking to potential new clients, I realized that much of what I teach to my law students I can impart to my clients. Most of my clients have not been part of a mediation before, and they feel overwhelmed regarding how to resolve a dispute. They do not know what ADR is, so I take time during the no charge consult to explain the differences between litigation, negotiation, mediation, arbitration, and collaborative law. I also talk to my clients about the differences in settling a dispute in court (litigation) versus settling a dispute outside of court (alternative dispute resolution).
Here is a summary of what I tell new clients about Litigation and ADR:
Many of us are conflict averse -- and so we tend to avoid conflict. We find communication to be difficult. I find that, in the end, most of my clients really like resolving their disputes through face to face communication using interest-based negotiation in mediation sessions and outside of mediation rather than by using adversarial methods to resolve their differences. Practice of communication and negotiation skills in mediation sessions (and in classroom role plays) does not make perfect, as the expression goes, but practice certainly makes things easier and helps all of us to feel more comfortable in communicating with each other.
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.