by admin on December 31, 2008
Yesterday, the New York Times ran a front-page article by John Leland, titled “In Housing Fall, Breaking Up is Harder to Do.” The article described how divorcing couples were now faced with an additional challenge: how to split up assets that have declined greatly in value, and may even be very hard to value in an uncertain market.
One couple’s divorce process is incomplete after nearly two years “with legal and other fees of several hundred thousand dollars. “Both spouses are living in rental properties as there attorneys argue over the value of their remaining assets: “Their wealth is ticking away at $350 an hour, times two.” The husband is quoted as saying: “‘It’s got to end, because at some point there’s nothing left to argue about.’”
Their plight is hardly unique, and not limited to divorces — or even to the destruction of something valued in dollars and cents. But the summary of their situation says a lot in just a few words: the process of their fight itself will eventually destroy any assets they have left. Almost any agreement they could reach through mediation a mediation process would be better for both of them than staying the course.
by admin on December 31, 2008
This is the third and final time I will write about an article in the December 8, 2008 Hartford Business Journal titled “Mediation Helps 360 Postpone Foreclosure.” Greg Bordonaro described the success of Connecticut’s Foreclosure Mediation Program, including comments from various participants. One participant, an attorney for the Connecticut Fair Housing Authority, noted that those who are involved with the program would like to see more homeowners who could benefit from it take advantage of it. Less than 30% of eligible homeowners are using the mediation program.
From a mediator’s perspective, this type of statistic seems both unfortunate and unsurprising. Many businesses, not-for-profits, public sector entities, individuals, and families who could benefit from some form of mediation don’t use the process. More than likely, they simply aren’t aware that the mediation process can be so helpful, in so many contexts. Increasing awareness of availability of mediation and of its advantages is a challenge for mediators and others in the alternative dispute resolution profession.
by admin on December 29, 2008
Last time, I wrote about an article in the December 8, 2008 Hartford Business Journal titled “Mediation Helps 360 Postpone Foreclosure.” Greg Bordonaro described the success of Connecticut’s Foreclosure Mediation Program, including comments from various participants. I talked about how a “win” for a homeowner could mean more than stopping foreclosure completely, because even a negotiated delay in the process is a partial win that will help the homeowner.
Another point made by a participant, an attorney representing homeowners, was that requiring lenders to participate in the program can open up lines of communication. It is important to remember that requiring a party to participate in a mediation process is not the same as forcing a resolution on a party. Parties are required to attempt to reach a mediated resolution in a variety of settings, ranging from legislatively mandated programs to individual judges who order parties to attempt mediation in the context of a particular case. Sometimes a party who will find that, despite his expectations before attempting to reach a voluntary resolution of a dispute, that a mediated settlement is possible that will serve his interests better than allowing the dispute to continue. Then, he will find it beneficial to agree to the mediated result, though not forced to do so.
by admin on December 11, 2008
The operation of Connecticut’s Foreclosure Mediation Program through its first five months illustrates a couple of themes that are common to most mediation processes. In an article in the December 8, 2008 Hartford Business Journal titled “Mediation Helps 360 Postpone Foreclosure”, Greg Bordonaro described the program, with comments from various viewpoints. One positive note is that over 360 homeowners reached a settlement that allowed them to keep their homes, while another 116 homeowners left their homes but reached an agreement with a lender to pay off the remaining balance of their mortgage.
Some might feel that only those who were able to keep their homes achieved a “win” here. But those who reached agreement to pay off their mortgage came out of the mediation process in a better position than when they began. Undoubtedly they saw an advantage to that result (less damage to their credit records would be one likely benefit) or they would not have agreed to it. If it had been possible, and in the best interests of both the lender and the homeowner in those cases to reach a settlement that allowed them to stay, a mediator would have helped them reach that resolution. Instead, the homeowners — and lenders — reached a mediated solution that might be described as half a loaf, which is definitely better than none.
by admin on November 29, 2008
Last time, I wrote about a recent article in the online version of “afrol News” that was titled: “DRC rebel leader wants Norwegian mediation.” The article discussed the advances that Congolese rebel leader Laurent Nkunda has made towards the Norwegian government to help mediate the conflict in the eastern Democratic Republic of Congo (DRC).
Although Dovetail Resolutions has a focus on business disputes, estate planning and settlement conflicts, and elder mediation, the comments made in the context of that violent conflict and humanitarian crisis have relevance for mediating any type of dispute.
Mr. Nkunda said that he wanted mediators he could trust and gave two reasons he felt that Norwegian mediators could be trusted to help in this conflict.
First, they have experience in peace mediation. Their experience would be vital to helping them to mediate this conflict.
Second, Norway has very little economic or political stake in the country. Neutrality is a fundamental trait in a mediator.
Experience and neutrality are important qualities in a mediator — whatever the type of dispute.
by admin on November 28, 2008
A recent article in the online version of “afrol News” was titled: “DRC rebel leader wants Norwegian mediation.” The article discussed the advances that Congolese rebel leader Laurent Nkunda has made towards the Norwegian government to help mediate the conflict in the eastern Democratic Republic of Congo (DRC).
Dovetail Resolutions has a focus on business disputes, estate planning and settlement conflicts, and elder mediation — issues that seem far removed from armed conflicts and humanitarian crises. Yet Mr. Nkunda’s comments struck some universal chords.
Most fundamentally, he wanted mediators he could trust. Without trust in a mediator, the parties aren’t likely to even agree to a mediation. If they do agree to try the mediation process, but are wary of the mediator, they will likely accomplish very little.
Next time, the reasons Mr. Nkunda gave for his belief that Norwegian mediators could be trusted to help in this conflict and how those qualities are important in mediating any type of conflict.
by admin on November 27, 2008
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.
by admin on November 26, 2008
We routinely talk about preventing conflict, reducing conflict, and resolving conflict. When we do, we sound as if we are characterizing conflict as always a bad thing. Without a doubt, conflict can cause significant and lasting damage, both economic and non-economic. Those negative effects, understandably, receive a lot of attention.
Yet conflict can be good. When conflict is constructive it can foster creative thinking, more carefully considered options, and a better final result. Stifling dissent can be as damaging as permitting destructive conflict to take hold and grow.
The challenge, then, may be not to end all conflict. Instead, the goal may be to channel conflict in a positive direction.
by admin on October 31, 2008
Last time, I wrote about an Associated Press story on Forbes.com on October 14, 2008 about a federal judge’s appointment of a mediator to work with parties to reach a settlement on damages in a bankruptcy case. Asarco, LLC seeks more than $10 billion in damages against Americas Mining Corporation. The judge has already ruled on liability and now wants the parties to try to resolve the damages issue with the mediator’s help, in sessions today and tomorrow.
That time I wrote about how this case highlights the flexibility of the mediation process. This case illustrates another point about business mediation. Some people who are not very familiar with business mediation think that its use is limited to “small” or low-value disputes. In fact, sophisticated parties and counsel know that mediation can be helpful in cases of any size. One of the benefits of mediation in the context of a litigated dispute is that a resolution that the parties reach with the help of a mediator removes the danger of a highly unfavorable result at the hands of a judge or jury. Rolling the dice can be a risky business decision– whether $1,000 or $1,000,000,000 is at stake.
by admin on October 30, 2008
Forbes.com ran an Associated Press story on October 14, 2008 about a federal judge’s appointment of a mediator to work with parties to reach a settlement on damages in a bankruptcy case. Asarco, LLC seeks more than $10 billion in damages against Americas Mining Corporation. The judge has already ruled on liability and now wants the parties to try to resolve the damages issue with the mediator’s help, in sessions today and tomorrow.
This situation highlights one of the great benefits of business mediation: its flexibility. When it began, this dispute had two parts (at least): liability and damages. Sometimes parties choose to mediate an entire case; other times one part of it. Each situation is unique and mediation can be tailored for a custom fit.