Kenneth Feinberg has been named as the independent administrator of the $20 billion fund BP has set up to compensate victims of the Gulf oil spill. After years in the thick of thorny, difficult issues, he was appointed as the special master of the federal September 11th Victim Compensation Fund and later worked as a monitor of executive pay at companies that received government bailouts.
Throughout these assignments, he is often referred to as a “mediator.” Yet he has been called upon in these settings to make “rulings” and this time around he is empowered to name his own three-judge appeals panel. These tasks sound more like those of an arbitrator, the one-in-a-million one who can name his own appellate court.
On the other hand, in the September 11 cases, he reportedly listened with great patience as victims and their survivors described their pain, often in ways exceeding what could be strictly “relevant” in an arbitration of the case. And he is expected, in the Gulf oil spill matters, to use his formidable powers as a listener and persuader to convince victims that it may be in their best interests to settle their claim rather than pursue litigation.
We’ve all heard about March coming in like a lion and going out like a lamb.
Some think — mistakenly — that mediation is the same. They avoid mediation because they fear they are expected to come into it like a lion, in strength, and finish the process like a lamb, in weakness.
In fact, the goal of mediation is to create a resolution to conflict that allows all involved to act in their own best interests. And that can mean everyone emerges feeling like a lion.
Sometimes one party to a dispute contacts me to pursue mediation, fully convinced that the mediation process is the right way to resolve a conflict as effectively as possible. At times, another party to that dispute is reluctant to pursue mediation and asks me to serve as an arbitrator.
Most people have had little or no experience with either process. Some have heard a little about divorce mediation but have never heard about mediation used in any other context. When we discuss the differences in these conflict resolution processes, the distinction that is often the most important is the question of control.
In arbitration, the parties ask the arbitrator, within limits that they set out and agree to, to resolve their case for them. The arbitrator is then in control. In mediation, the parties work with the mediator’s help to decide their case. The parties are always in control of their own dispute.
“ADR” is short for Alternative Dispute Resolution. Lawyers, in particular, know the term as one that describes alternatives to litigation. ADR certainly includes arbitration and mediation, and may be used to include certain types of fact-finding, negotiation, facilitation and related processes for conflict resolution.
“DR” stands for Dispute Resolution. This term is an explicit recognition that the processes that were once “alternatives” are now much more likely to be the norm. Very few lawsuits are tried to conclusion with a verdict and judgment to end the case. The vast majority are concluded some other way: including forms of Dispute Resolution such as mediation and arbitration.
A recent article posted on mediate.com, ” The Culture of the Code” by Daniel Rainey and Alma Abdul-Hadi Jadallah, mentioned an eye-catching statistic. It stated that the largest Section, or interest group, in the American Bar Association is now the Section on Dispute Resolution. It is remarkable that more people choose to join that Section than any other. Certainly Alternate Dispute Resolution (ADR) is not in the news as much as the subject area of some other Sections. Perhaps it is a statement about the direction in which the legal profession is moving that the Section on Dispute Resolution is leading the way.
As part of my work as a member of the Executive Committee of the Connecticut Bar Association Alternative Dispute Resolution (ADR) Section, I maintain a listing of Dispute Resolution websites of interest to Section members and the general public. Periodically I update the listing and I welcome suggestions of new sites or sites not listed but possibly of interest. I recently completed an update with the help of the CBA webmaster. You can view the listing on the Connecticut Bar Association’s website, on the Alternative Dispute Resolution (ADR) Section webpage, at Dispute Resolution websites.
A recent online newspaper article contained this line: “[T]he case has been ordered to be decided by a mediator.” It’s a basic point and central to the the mediation concept and process: mediators don’t decide cases. Still, it’s not always understood, as so clearly shown in the article.
I occasionally meet people who respond to hearing that I am a mediator with the comment: “Wow, it must be great to tell people what to do.” I explain that I will do many things to help parties reach a resolution of their dispute (or to prevent disputes or help them change their approach to conflict from destructive to constructive.) But a mediator does not decide a case — the parties do.
On Wednesday, October 15, 2008, I will be a panelist in a program that is part of the New Haven County Bar Association’s annual “Nuts & Bolts CLE Series”. This is the seventh year that the Bar Association is presenting its nine-part Practice Skills Program For Newer Attorneys. The NHCBA describes Wednesday’s program, Advanced Litigation: Tips Everyone Should Know, this way: “Provides overview of Federal Court, expert witnesses, complex litigation docket, Removals, and use of mediation and arbitration. Features Tips for Litigators and Q&A with panelists. Guest Speakers: Attorneys William B. Bloss, Mark A. Milano, and Jane Beddall.”
I’m looking forward to talking about the “nuts and bolts” of mediation and arbitration. I also will talk about why attorneys serve their clients better when attorneys are aware of the ways that alternative dispute resolution processes like mediation and arbitration can give their clients options to solve problems and meet goals.
The NE-ACR News summer 2008 issue presents some of the results of a request to readers to answer the question of what defines “success” in mediation and how a case might illustrate that definition. ADR (Alternative Dispute Resolution) practitioners responded and demonstrated how the idea of “success” may be broader than some might think.
In addition to finding success in the process itself, some parties find “success” with an outcome that isn’t a settlement or agreement. Sometimes one party learns new information that can significantly change a bargaining position and make settlement at that time impossible or undesirable. At times a window into the other party’s perspective is opened and a relationship can start to shift towards a more positive direction, without any formal agreement. The context of the conflict in which the parties find themselves frames their opportunity for success, not a narrow definition.
In the summer 2008 issue of the New England Chapter of the Association for Conflict Resolution newsletter, NE-ACR News, the first article presents a sampling of the responses received when the editors asked ADR (Alternative Dispute Resolution) practitioners to describe their definition of “success” in mediation and a case that illustrates that definition.
Mediators approached the idea from different directions, but a common theme seems to appear. Whether a mediation is successful involves more than whether a settlement or agreement is reached and how quickly that is achieved, if achieved at all.
In some cases, the opportunity to go through the process of mediation was the most important part of the experience. Some parties felt for the first time that their concerns were genuinely heard and respected. Regardless of the outcome, they felt the process itself was worthwhile and successful.