Dispute Settlement Counsel

Posts Tagged ‘Mediation’

The crisis of child abuse by priests of the Roman Catholic Church and the cover-ups by their bishops was the focus of a recent Time magazine cover story (June 7, 2010).  The story caught my interest for several reasons:  I am a committed Christian, an active member of the oldest national Christian church, the Armenian Orthodox Church, and a former seminarian who gave serious though to becoming a clergyman.  And my first job out of law school was prosecuting child abuse cases in Westchester (NY) County.

But also, I was interested in the story because I am a lawyer and mediator, dedicated to the non-adversarial resolution of dispute resolution.  I read the article with sadness, feeling compassion for the victims, but also for the Catholic Church dealing with a difficult issue and for the stakeholders – the faithful of the Catholic Church and all those other priests who have done no wrong, but have to live with the stigma of the wrongdoing that touches their ministries as well.

The article mentioned the two approaches that people are presently using to address this crisis:  either going through a long litigation path that begins with the state Attorney General’s office and is thereafter driven by private attorneys or an internal process within the hierarchy of the Church.  The first is tremendously draining and damaging to those victims who can even afford the legal fees; the second has failed to gain the trust and confidence of the people because it has often done little more than transfer or re-assign the suspected priests and keep the matter as quiet as possible. Read the rest of this entry »

Armando Galarraga, Pitcher for the Detroit Tigers

Armando Galarraga will likely never again pitch a perfect game as he did on June 2, 2010.  The law of averages doesn’t favor it, and no one has ever done it.  So in getting what should have been the final called out of a perfect game wrong, umpire Jim Joyce took away something that no amount of money could ever correct.  And even though there was overwhelming support in the sports world for the Commissioner of Baseball to turn a lose-lose situation into a win–win, overturn the ruling on the field and reinstate the perfect game, most of us also recognized that this particular commissioner lacked the courage to make that decision.

So how could this situation, a problem that needed to be solved, get fixed in a way that restored order, justice and peace in the baseball world, when there was no legal mechanism for doing so?  When the law cannot give you the solution the circumstances need, it reverts back to the people involved and spirit of making things right to take the situation into their hands, go outside of the box and turn typical into transformative.

That is exactly how this problem was fixed, by the graciousness by Mr. Galarraga, the act of apology by Mr. Joyce, and an act of collective acceptance and reinstatement by the community, represented the next day by the players and Detroit Tigers fans at the following game.

The next time some macho person suggests that apologies are for wimps, remind them of the more than perfect, perfect game of June 2, 2010.  Tell them that the one and only way that the situation could be corrected was by two grown men choosing to do the opposite of ego, and rise above ineffective position-taking responses of who is right and who is wrong.

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What do speed limits and dispute resolution processes have in common?

They have to be right for the situation.

I was driving on the Mass. Pike this week, thinking about the idea of one speed limit for everyone.  Speed limits are established for the masses; a good average speed is set that is reasonable.  On the Mass. Pike for example, the posted speed is either 65 mph or 55 mph.

For excellent drivers under good driving conditions – light traffic, good visibility, dry road surface, 65 mph is probably too slow.  For drivers that have diminished reflexes, skills, sight or attention span, 65 mph is likely too fast.

Several external factors impact what is a good speed: Tire tread, engine responsiveness, things dangling or pasted onto windows that impact visibility, weather conditions, traffic volume, road surface, what else the driver is doing: texting, keying in numbers on a phone or destination on a GPS, deeply engrossed in conversations or thought, eating, putting on makeup, reading something, drunk, high on drugs, really agitated, reaching into the back for something, etc.

The right speed depends more on the situation and the circumstances than the posted speed limit.  The same is true for how we approach resolving disputes. One speed, one process, one approach, does not fit every situation.

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Mediation and Collaborative Law are two methods that are moving steadily toward the forefront of dispute resolution.  With this heightened interest in early intervention and avoiding litigation, the question that gets increasingly asked is this: What is the difference between Collaborative Law and mediation?  There are several key differences.

First is the timing of their use.  While parties would greatly benefit by using mediation earlier, before they file a lawsuit or early on in the litigation, parties usually turn to mediation too late, after discovery is completed, and often just before the trial.  By then, the parties have already spent lots of time and money and have suffered the collateral damage of litigation.  They are more adversarial then they were at the outset, and often only turning to mediation to avoid the uncertainties of putting their fate in the hands of a jury or judge.  The costs have taken their toll, too much time has passed and their relationships have been damaged or destroyed.

Collaborative Law, on the other hand, is designed as early intervention, to be used instead of and before turning to litigation.  Its focus is only on resolution and settlement by intention.  Because of this, the parties will typically save money, save time, avoid the collateral damage of litigation and still keep the decision-making in their control.

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Whenever I suggest the use of an Ombuds person (also referred to as an “Ombuds” or an “Ombudsman”) as a key component in the business strategy of being proactive and taking steps to prevent disputes from arising, I get the question:  What is an ombuds? What does an Ombuds person do?

An ombuds is a neutral, independent and confidential resource person that a company or an organization hires to help it solve problems – small ones as well as big ones – early on, before they escalate into bigger problems or disputes.  An Ombuds is usually someone who is either trained and/or talented as a trusted counselor/intermediary/facilitator.   An Ombuds is a part of the process of identifying and solving the problem early on, and plays an important role in helping to solve it.  The Ombuds may not be the one that solves it, as much as being the person who puts the wheels of solution into motion.

The most important skill that the Ombuds needs to have is the talent of active and empathetic listening.  That is a talent that is highly underrated and often overlooked in the business or organizational world.  But it is critical, and is greatly appreciated by those who benefit from the efforts of a good listener.

Equally vital is the talent for having the insight and resourcefulness to identify the essence of the problem and know which way to direct people’s actions, and what resources to bring to bear to solve it.  You might call an Ombuds a problem solving architect or engineer, a person with a knack for dissecting the problem, seeing what needs to be done to solve it, and setting things in motion in a neutral way, all the while respecting the confidentiality of the situation. Read the rest of this entry »

My wife and I just returned from a vacation visiting our National Parks in Utah and Arizona – Zion, Bryce, Arches, Natural Bridges and the North Rim and South Rim of the Grand Canyon.  It was an incredible, humbling trip.

One reason for going to Utah was to visit Arches National Park and see in person the arches that inspired us to use them in our promotion materials.  Let’s take a few minutes to consider these magnificent Arches, and in particular, Delicate Arch and Broken Arch.

One thing that our National Parks do right away is to make us realize how small and insignificant we are compared to the wonders of nature and God’s majestic creation.  We think in terms of weeks, months, years and a lifetime.  But out in the National Parks, the measure of time is thousands and millions of years.  There are over 2,000 arches in Arches Park, all naturally made over millions of years from the elements – wind, gravity and erosion, out of various types of stone – largely sandstone.  When you stand beneath Delicate Arch or the equally impressive Landscape Arch, you get a sense of the scale we’re talking about.  Words and pictures do little to describe what can only be experienced to get a fuller comprehension of these formations of terra cotta stone.

Broken Arch, located at South Devils Garden, Arches National Park, Utah

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by Candice Cook & Michael Zeytoonian

When a layman hears the term, “mediation,” he or she generally conjures up in their mind someone who will serve as a third party adjudicator, like an arbitrator, to resolve a dispute.  The notion is that a mediator will ask questions of the disputing parties and help them come to an agreement.  This is only one type or style of mediation known as facilitative mediation.  For many years, it was the most common form of mediation.  In “The Promise of Mediation”, by Bush & Folger, however, another style was introduced:  transformative mediation.

The goal in a transformative mediation is two-fold.  Obviously, the first goal is to resolve the conflict, the main goal of any mediation.  But the second goal, a deeper goal, is to accomplish a real shift or change in the relationship between the disputants.  Transformative mediation earned its label because of its capability to transform the relationship between the parties.  Though they enter as opponents in their issues and position, they exit as allies joined by the solution.

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