The Neutral Zone
Office of Dispute Resolution, Colorado Judicial Branch
www.ColoradoODR.org
VOLUME 2, NUMBER 4
FALL 2008
From the Director’s Chair
On September 8, 2008 I became the Interim Program Director of the Office
of Dispute Resolution. As I write this column I have been on the job for just
over two months. During my short tenure I have been tremendously
impressed with the competence and dedication of all of the ODR staff,
Program Administrators, mediators and schedulers. The number, scope and
success of on-going ODR programs and projects are proof positive of the
value of all of your efforts.
Inside:
– p. 2 – ADR
Conference
Report
– p. 4 – Mediation
Excellence
- p. 6 – Mediator
Profile: Peter
Bogardus
- pp. 7-8 – Photos
from ADR
Conference
For those of you I have not yet had the pleasure of meeting, I thought it
might be helpful to give you some insight into my background. Prior to
accepting this position, I enjoyed three different but somewhat related
careers. I spent 10 years as an Air Force Officer, conducting fraud, criminal
and counter-intelligence investigations, and serving in various staff
positions culminating in a four year stint in the Pentagon. I then returned
to Colorado to practice as a trial lawyer for over 20 years, many of those
years serving as a law firm managing attorney. My third “career” began 10
years ago when I decided to transition from being an advocate for individual
parties to being a resource for dispute resolution for all parties. I
completed DU’s University College program leading to a Certificate in
Dispute Resolution, attended the Harvard School of Public Health’s Program
in Dispute Resolution in Healthcare, established Consensus Builders, Inc.,
and provided mediation, settlement conference and arbitration services
through my private company until accepting my current position.
As I hope my career path indicates, I am dedicated to the principles and
values of alternative dispute resolution. I agreed to leave private practice
and devote my professional efforts to ODR because of my desire to be a
productive part of what I perceive to be a tremendously important
organization in terms of providing invaluable assistance to the courts and
the citizens of the state of Colorado.
I am very glad I was able to meet so many of you at the 2 nd Annual
Colorado Statewide ADR Conference. Thanks to all of you for your
participation. In closing, I am honored to have the opportunity to work with
all of you professionals in dispute resolution, and I look forward to the
tremendous success I expect ODR to achieve in the future!
Collie Norman, ODR Director
Report from the 2nd Annual Statewide ADR
Conference – “Excellence in Dispute
Resolution” – and other topics!
By Sharon Daly, ODR Projects Manager
2nd Annual Colorado Statewide ADR Conference
By all accounts, Colorado’s 2nd Annual Statewide ADR Conference was
impressive - 375 colleagues (up from 325 in 2007) sharing their insights,
experiences, and questions about ADR issues. Attendees repeatedly
remarked about the diversity of the conference sessions, the fabulous
luncheon keynote, the high quality presentations in the 24 breakout
sessions, and the opportunity to network.
This year’s breakout sessions featured family, civil, employment, restorative
justice, community mediation, ADR law and profession, skills and ethics.
New this year were sessions on evaluative mediation and settlement
conferences, arbitration, and hybrids of mediation and evaluative
approaches such as Early Neutral Assessment and Parenting
Coordination/Decision Making in family cases, and collaborative law in
business cases. The wide range of styles and processes made for a rich
array of choices. The listing of presenters from the Judicial Department
included the Honorable Edward Moss, 17th JD; the Honorable Stephen
Munsinger, 1st JD; Court Administrator Melinda Taylor, 17th JD; Family Court
Facilitator Janet Lee, 17th JD; ODR Program Administrators Trish Elledge,
18th JD, and Sue Taigman, 20th and 1st JD; Probation Officer Bernadette
Martinez Felix, 8th JD; ODR neutrals Ken Jaray and Christine Coates; and
ODR trainer, Robert Smith. Other presenters included numerous former
judicial officers and other attorney and non-attorney experts in the field.
Opening speaker Ray Lanier directed the audience to a report submitted to
the President of the United States regarding the growth in use of ADR in the
federal sector. Mr. Lanier noted that given the current economic climate,
the report’s documented substantial cost savings, increase in workforce
productivity and accountability, timely achievement of agency goals, and
delivery of reliable and efficient service, may provide a helpful analysis for
those facing possible cutbacks in ADR programs. See the report at
http://www.usdoj.gov/adr/pdf/iadrsc_press_report_final.pdf .
Ambassador Dennis B. Ross, as the luncheon keynote, shared his insight
into what it takes to be an effective (and not necessarily neutral) mediator
in high stakes international conflict. With a touch of humor and fascinating
stories of mediating Israeli-Palestinian peace talks, he identified familiar
qualities such as patience, good listening skills, risk taker, and others.
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In a surprise appearance, Chief Justice Mary Mullarkey presented awards on
behalf of the ADR Conference Planning Committee to former ODR Director
Cynthia Savage and to Jerry Lockwood of the Judicial Arbiter Group, Inc. in
recognition of the 25th Anniversary of the Colorado Dispute Resolution Act.
The Chief Justice eloquently introduced these two individuals who are
significant contributors to the advancement of ADR in Colorado, and who
have been instrumental in the establishment of the annual Colorado
Statewide ADR Conference.
Representatives of the Navajo Nation Judicial Branch Peacemaking Program
explained their program which started in 1982 as an alternative to trial. A
variety of case types are referred – family, divorce, child support, abuse
and neglect, criminal, probate, land issues, and other civil matters. The
demonstration highlighted the similarities to mediation and to restorative
justice processes by including the extended family members in the process,
by allowing the parties to fully express their concerns and to identify
restitution and healing for both parties and the families involved in the
conflict. For more, see http://www.navajocourts.org/index5.htm
The session on using alternative processes for probate was also a highlight.
Retired Judge John Maher, former Administrative Probate Judge for New
Hampshire, shared his experiences in using interest-based mediation in
probate cases which are often driven by family dynamics that may be best
addressed through interest-based solutions not available to the courts. The
Honorable Stephen M. Munsinger, District Court Judge in the 1st Judicial
District, and others from Colorado participated on the panel. Judge
Munsinger identified opportunities for mediation as well as the use of
Special Masters for Colorado’s probate cases. ODR Program Administrator,
Sue Taigman, organized and facilitated the panel.
This year also brought in more representation from the ADR community, not
only as presenters, but also as sponsors. The American Arbitration
Association and Regis University joined last year’s sponsors including
Judicial Arbiter Group, Inc., DU Conflict Resolution Institute, and the Center
for Dependency, Addiction & Rehabilitation. The Colorado Judicial Institute,
CBA ADR Section, and CCMO contributed to 22 scholarships.
Cindy Savage and Chief Justice Mary Mullarkey at Conference
[See more Conference photos on pages 7 and 8 of The Neutral Zone]
Child Support Enforcement Problem Solving
Court Site Visit to Model Court in North Carolina
Page 3
On November 3rd, Magistrate Kara Martin, 18th JD, and Magistrate Babette
Norton, 1st JD shared with other judicial officers and ODR program
administrators, their impressions of the child support enforcement problem
solving court model practiced by Judge Kristin Ruth in Wake County, NC,
and the implications for Colorado. Magistrates Martin and Norton were part
of a Colorado delegation that also included SCAO CSE Coordinator, Maureen
Leif, ODR Projects Manager, Sharon Daly; Diane Degenhart, Federal Office
of Child Support; a IV-D attorney, an administrator and a court team
supervisor from Jefferson County; and a IV-D attorney from Arapahoe
County. The group observed court proceedings for the regular IV-D docket
and the specialized IV-D drug court docket. Representatives of partner
organizations described their roles. These included IV-D agency
representatives, electronic monitoring providers, a follow-up drug treatment
provider, the “Get It Right” director providing community college class for
obligors in jail. The group also visited “Working For Kids,” a comprehensive
employment program which also provides support groups addressing
parenting, budgeting, and anger management issues in addition to
employment support. For more information contact Maureen or Sharon.
AFCC Parenting Education Symposium,
Albuquerque, NM
Bob Smith, Cindie Farmer, and Sharon Daly participated on a panel with
Tracie Pogue, the federal Access and Visitation Grant coordinator, on a
model of how to use A&V Grant funds to establish parenting education
programs in rural areas. Cindie took center stage in her description of the
program she has developed in Lamar, Colorado based on the curriculum
developed and training provided by Bob Smith, when he was the ODR
Projects Manager, using the federal A&V Grant funds. The program in the
15th JD addresses a number of issues that have been difficult for rural
programs - which curriculum, identifying trainers, reporting to judges, time
and place offered, domestic violence precautions and protocols.
Upcoming Training of Interest:
PC/DM Training-December 5-6, 8:30-4:30, Jefferson County Court House,
100 Jefferson County Parkway, Golden. Early Registration—on or before
November 21st contact: Christine Coates, coatesc@aol.com; Betsy Duvall,
bbduvall@4edisp.net
Call for Papers for the Colorado Summit on Children, Youth, and
Families-June 3-5, 2009, Keystone, CO. Proposals due November 17,
2008. For more information see www.cosummit.com
Now That We’re Experienced Mediators,
Have We Become Lazy?
(Reprinted with permission from Mindful Mediation: Tips
from the Trenches)
By Trish Elledge, ODR Program Administrator, 18th JD
Page 4
I remember it clearly. It was December 2004. I finally realized that I
counted as a professional mediator. That month marked my 10-year
anniversary as an independent contract mediator for Colorado’s 18 th Judicial
District Office of Dispute Resolution. “After all,” I thought to myself, “I have
been active in the field nearly 20 years, have accumulated over 4,000 cases
in experience, and have taught mediation skills to hundreds of students.
Certainly by now I MUST know what I’m doing.” To commemorate the
event, I celebrated verbally throughout the entire month with all of the
repeat clients and attorneys I came across.
I soon realized that the purpose of my month-long verbal celebration was
not only to commemorate my personal milestone, but also to educate
parties and attorneys, and to once and for all convince myself that, yes, I
DO know what I am doing. I AM knowledgeable and competent. I DO
count as an experienced professional. I could finally relax! It was time for
me to let go of my mental defense against what still seemed to be the
common belief among legal professionals – that in order to be a good
mediator, the “mediator” had to be an attorney or retired judge.
Recently, however, as I was actively involved in a high conflict court
mediation session complete with positioned attorneys and volatile clients on
both sides, I found myself as a mindful observer of my own now seasoned
mediation skills. To my disappointment, I observed that my comfortability
in dealing with high conflict court-ordered cases had caused my mediation
skills to devolve to the norm expected by most attorneys attending
mediation with their clients – a settlement conference style. I had all but
deserted the most important core skills that make mediation such a unique
and satisfying process for the parties.
I observed that while I was connecting with the parties and their attorneys
through eye contact and listening, the ACTIVE part of listening had fallen
into mere attentive listening. There was little use of paraphrasing,
validating, reframing, or empathizing, which are the very skills that set the
mediation process apart from an ordinary administrative hearing or
settlement conference. I felt both ashamed and inspired.
First, the shame part: I had gotten lazy! I had taken the easy way out. I
had done less in a conference called “mediation” because I could. After all,
what the court is looking for is settlement, right? Attorneys prefer
“settlement conference” style over pure “mediation” style because it
eliminates all that time consuming touchy-feely stuff, right? WRONG. This
was completely contrary to what I had been teaching and advocating in
professional mediation circles for nearly 24 years!
With this enlightenment, I became inspired. This was an opportunity to
learn and to teach. I began observing some of my former students and
colleagues in action – just briefly, here and there, through windows, walls,
and peer review discussions. My observations concluded that it can be easy
for professionals to fall into a comfort-cruise setting when mediating
regularly. Most parties don’t know what to expect in mediation, so they’ll
never know if we’re cutting corners, right? And most attorneys want
settlement conferences, so we’re giving them what they want. No one is
the wiser, right? WRONG. We are the wiser. Or, if we’re truly serious
about providing professional mediation services (rather than settlement
conference services), we SHOULD be the wiser.
If you haven’t reflected about your own mediation skills for a while, take a
moment now and honestly answer the following questions:
Page 5
1)
Are you regularly empathizing with the parties and
implementing active listening skills? Are you regularly validating feelings,
content, and message? Are you summarizing, paraphrasing, reframing, and
isolating key issues verbally? If you find yourself making eye contact and
listening intently to the speaker without feeding anything back, chances are
the party is not feeling heard and understood. If you’re listening too
intently to the speaker and ignoring the non-speaking party, chances are
the listening party is feeling discounted and possibly feels that you are
siding with the speaker.
2) Are you helping parties think by asking pertinent questions to
help them explore their own true needs and interests, make their own
evaluations, and to objectively weigh the BATNA of their case? If you find
yourself giving them too much information or immediately guiding them to
focus upon the worst possible outcome of their case to more quickly
influence settlement, you’re probably being perceived by the party as giving
advice, being threatening, or, at the very least, coercive.
3) Are you talking more than the parties? If so, you are working
harder than your clients to resolve the dispute and are probably more
involved in coercive settlement conference mode rather than selfdetermining mediation mode.
Helpful reminder to self: “ ‘Mediation’ is the parties’ process and the parties’
outcome. I can help by listening, highlighting the areas of common
interest, asking key “what if” questions, sharing options that other parties
have come up with in similar situations, highlighting desired outcomes from
both parties and floating suggestions from which THEY can build.
Eventually, I might be able to orchestrate their thoughts, ideas, and
suggestions into thoughtful proposals that evolve into constructive, wise,
and durable mutually designed agreements.” Hmmm….
So…what do you think? Have YOU become lazy???
ODR Mediator Profile: Peter Bogardus
By Tricia Winslow, ODR Program Administrator, SW
Region
Peter Bogardus: ODR Mediator for Colorado’s 7th Judicial District:
Gunnison, Hinsdale, Delta, Montrose, San Miguel and Ouray
Counties
Do you need a Chinese cultural liaison for your mediation? Route finding
information while biking the Silk Road? How about assistance climbing Mt.
Elbrus or Kilimanjaro? Peter Bogardus is at your service; an adventurer at
heart, Peter founded Bogardus & Associates, PC, a Crested Butte law firm
that practices family law, criminal law, real estate law, construction law,
contracts, business law, estate planning, employment law, and civil
litigation as well as mediation and arbitration. In addition, since 2003 Peter
has been the presiding judge of the Salida Municipal Court.
Page 6
As a graduate of the University of Washington’s School of Law and their
Professional Mediator Skills Training, Peter works to resolve complaints,
rather than litigate them. He passed the Colorado Bar in 1994 and came on
board with ODR in 1998. Peter also has a Master of Science degree from
the College of Forest Resources at the University of Washington which has
nurtured an interest in environmental policy making and natural resource
dispute resolution. Peter’s undergrad degree is from Dartmouth College
where he graduated in 1987.
Peter was witness to the events of Tiananmen Square during the 1989
uprising. That was part of an improvisational time assisting ABC staff in the
reporting of that incident and working as a liaison with the Chinese. Mr.
Bogardus then rode a bicycle from China through Pakistan to India where
he had an opportunity to shake hands with the Dalai Lama shortly after he
won the Nobel Peace Prize. Maybe that has also influenced his mediation
practice and style? Peter’s worldly travels have contributed to the
possibility of an international practice…so we are lucky to have him working
for us here in Western Colorado.
In closing, let me add that I’ll try to arrange for Peter to present a slide
show for us at a future meeting or conference, so please stay tuned. And
do drop by and say hi to Peter if you should find yourself at the end of the
road in beautiful Crested Butte, Colorado.
Additional photos from the 2nd Annual ADR
Conference October 24, 2008
[All photos courtesy of Janet Koin Dampeer, Conference Co-Chair]
Page 7
Ray Lanier, Immediate Past President, Association for Conflict
Resolution, and Collie Norman, Interim Director, Office of
Dispute Resolution, Colorado Judicial Branch
Office of
Dispute
Resolution
State Court
Administrator’s
Office
1301 Pennsylvania
Street, Suite 300
Denver, CO 80203
PHONE:
(303) 837-3672
FAX:
(303) 837-2340
THE NEUTRAL
ZONE EDITOR:
Emily Tracy,
Program
Administrator,
NW Region
emily.tracy@judicial.
state.co.us
We’re on the
Web!
www.Colorado
ODR.org
Page 7
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Conference Co-Chairs Sharon Daly, Office of Dispute
Resolution, and Janet Koin Dampeer, Janet Koin Dampeer
LLC, Denver