Last month, Quinnipiac University School of Law hosted the Eighth John A. Speziale Alternative Dispute Resolution Symposium. This year the symposium covered “ADR in Hard Times: Can Alternative Dispute Resolution Maintain Access to Justice When Resources Are Limited?” I was honored to ask to serve as a Resource Participant in the afternoon breakout session on Family, Elder, and Probate Law.
Our group had a lively discussion about the ways that ADR — mostly mediation — can help with appropriate resolutions for various types of conflicts in these areas. In particular, we talked about how the court system (specifically the many subparts that can become enmeshed in these conflicts) can make better use of ADR, leading to both better processes and better results.
The Alternative Dispute Resolution (ADR) Section of the Connecticut Bar Association (CBA) met this evening. A group of attorneys who are also mediators and arbitrators discussed a variety of topics. The one that grabbed my attention was the essential idea (often raised) that the actual people or organizations in a dispute may be poorly served by counsel if counsel gives short shrift to the idea of resolving conflicts in some arena other than the courthouse. A significant portion of practicing attorneys are only vaguely familiar with the way ADR processes work and with the benefits to their clients of exploring ADR options. In some areas, it may be the clients – not the attorneys — who will be the biggest advocates for the use of mediation and arbitration as the best methods of conflict resolution.
I was struck last week at the panel presentation on conflict by how hungry folks can be for tips on how to handle conflict on our own with techniques that mediators use. When a mediator is at work, it’s an essential part of the process that the person is neutral and not a party to the dispute or even interested personally on how it is resolved. Obviously, that’s a big distinction between “do it yourself” and having a third party assist in a mediation process.
However, some of the techniques mediator use can be helpful in conflict prevention, reduction, and resolution. More next time on some specifics.
Tomorrow and Saturday, the New England Chapter of the Association for Conflict Resolution (NE-ACR) presents its 2011 regional conference: “Brainstorming: Conflict Resolution from the Inside Out.” Friday features a full day of workshops. A master class on “Understanding and Managing Conflict in Work Teams” will be presented by Eben Weitzman on Saturday. Events both days will be held at Brandeis University in Waltham, MA.
As the conference brochure phrases it, this is “a conference for mediators, arbitrators, facilitators, scholars and others interested in understanding and resolving conflict.” It is an opportunity to learn about: neuroscience research and how it can help dispute resolution work, careers in conflict resolution, and how to lead difficult discussions.
It is also a chance to connect with other conflict resolution professionals.
I’m looking forward to a great conference!
Last time I wrote about the concept of the ombuds (or ombudsman or ombudsperson.) Traditionally, the ombuds serves as an all-around dispute resolution specialist in an organization: corporate (whether for-profit or not-for-profit), academic, or government agency.
One of the great advantages of mediation and related approaches to voluntary conflict resolution is their flexibility. Because the parties involved control their own process, they can create a process that custom fits their needs. Some have considered applying that idea to the obmuds concept, and using a type of consultant ombuds. That person could assist with disputes within an organization on an as-needed basis, but could also have a broader role than an outside employee assistance program might have. This approach could be especially effective for conflicts among high-level employees of an organization whose disputes might not be easily addressed within a human resources department.
Last time I wrote about an online article from the UK describing a mediator making awards and compelling “settlements” — concepts foreign to mediation in the U.S. That same article referred to a financial “ombudsman”, and the term seemed to be used interchangeably with “mediator”.
In this country, the concept of an ombuds (the term that is currently used most often) is not the same as that of a mediator. An ombuds is a person who part of a particular large organization and plays a role of informal complaint and dispute manager. Usually the organization is a corporation or government agency of some kind, and the ombuds works outside a rigid chain of command.
Work as a mediator could be a big part of an ombuds work, but the role could also include serving as a sympathetic ear, a referral source, and a possibly an agent for change in the organization.
If you are a Connecticut mediator, I hope that you will consider joining, rejoining, or renewing your membership in the New England Chapter of the Association for Conflict Resolution (NE-ACR). I was elected to the NE-ACR Board last year and serve on the Finance and Nominating Committees. The Nominating Committee is currently focused on nominations for the Board, but that focus reminds us that the membership of the organization is its lifeblood.
NE-ACR “promotes the practice and public understanding of constructive ways to settle disputes” with a goal to “connect conflict resolution practitioners all around New England through information and events.”
To learn more, visit the NE-ACR website. I would be happy to answer any questions I can, and to find the person who can answer the ones that I cannot!
The Alternative Dispute Resolution (ADR) course that I am teaching this term is a part of the University’s Legal Studies program. The program has three concentrations, including Dispute Resolution. The term “Alternative Dispute Resolution” is criticized at times for being inaccurate: if the vast majority of litigated cases are resolved in some fashion before a case is tried and judgment is imposed, how can the processes used in those many, many cases be described as “alternative”? Critics would prefer to see “Dispute Resolution” — with an understanding that this term covers the full range of options available to resolve conflicts, from mediation to litigation.
I’ve written before about Kenneth Feinberg and and his work involving the BP Gulf oil spill. In today’s New York Times, an article by John Schwartz, “Comments By Overseer of BP Fund Irk Lawyers,” talks about a lawsuit filed by plaintiffs’ attorneys over statements Feinberg has made that encourage claimants to apply for compensation through the fund instead of filing suit.
I have been watching the description of Feinberg and his work over the years and I am pleased to see that the word “mediator” is being used less frequently. Few would question (well, obviously plaintiffs’ attorneys do) the value of his work with regard to various mass tort situations. But it’s inaccurate to call it “mediation”. Administration of the BP fund is a more accurate description.
Today’s article mentions that the Department of Justice has urged Feinberg to process claims faster and to provide more transparency. Mediation does provide faster resolution than many other forms of dispute resolution. But confidentially is a hallmark, not public transparency. The article goes on to say that the federal government has not questioned Feinberg’s independence. If we equate independence with impartiality in this context, that’s one characteristic that this “administrator” and every competent “mediator” share.
As I wrote last time, ten days ago, Joe Nocera wrote an article for the New York Times Business section titled “Justice, Without The System.” In it, he described an interview he had with Kenneth R. Feinberg about Feinberg’s work related to the BP oil spill in the Gulf and claims made against the company for damages.
The article describes Feinberg’s work as coming up with “solutions that prevent large national traumas … from tying up the courts for years on end in litigation that winds up frustrating everyone except the lawyers.” An especially pertinent example was cited: the Exxon Valdez case. It took over 20 years to complete, some 20% of victims had died by the time that claims were paid, and it was reported that the average payment to victims was $15,000. In other cases, plaintiffs may feel that they have a strong case and still end up with nothing. As Mr. Nocera summed it up: “To put it bluntly, litigation is a crapshoot.”
Although these disasters involve a certain of loss and lawsuit, the risks of litigation are real with respect to any type of claim. Time, expense, uncertainty, and stress are important costs that are often overlooked in the zeal to pursue a lawsuit. Mediation can help potential court adversaries rationally consider these costs and allow parties to make a more reasoned decision about their own self-interest.