PUBLISHED BY THE AMERICAN BAR ASSOCIATION SECTION OF DISPUTE RESOLUTION
DISPUTE RESOLUTION
VOLUME 19, NUMBER 2
MAGAZINE
WINTER 2013
community
DisputeResolution
In This Issue…
Assessing the Importance and
Challenges of Community Dispute
Resolution
Public Funding for Community
Dispute Resolution Centers
Using Fear and Guilt to Persuade
A Tribute to Roger Fisher
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EDITORIAL
BOARD
SECTION
LEADERSHIP
Chairs
Joseph B. Stulberg
The Ohio State University
Moritz College of Law
Columbus, OH
Chair
John R. Phillips
Kansas City, MO
Nancy A. Welsh
Penn State University
Dickinson School of Law
Carlisle / University Park, PA
Chair Emeritus
Frank Sander
Cambridge, MA
Members
James Coben
Hamline University
School of Law
St. Paul, MN
Ruth V. Glick
Mediator and Arbitrator
Burlingame, CA
Michael Lewis
JAMS
Washington, DC
Bennett G. Picker
Stradley Ronon
Philadelphia, PA
Donna Stienstra
Federal Judicial Center
Washington, DC
Zena Zumeta
Mediation Training
& Consultation Institute
Ann Arbor, MI
Organizational affiliation for
identification purposes only.
Chair-Elect
Ruth V. Glick
Burlingame, CA
Vice-Chair
Geetha Ravindra
Glen Allen, VA
Budget Officer
Howard Herman
San Francisco, CA
Assistant Budget Officer
Philip Cottone
Malvern, PA
Long-Range Planning Office
Bruce Meyerson
Phoenix, AZ
Assistant Long-Range Officer
Lawrence Robert Mills
Seattle, WA
State/Local Bar Officer
Howard H. Vogel
Knoxville, TN
CLE Officer
Joan Stearns Johnsen
West Newton, MA
Published by the American Bar Association Section of Dispute Resolution
D IS P U T E R ES O LUT I O N
M A G A ZINE
WINTER 2013 Volume 19, Number 2
DEPARTMENTS
2 From the Chair
34 ADR Cases
36 Section News
FEATURES
4
Community Dispute Resolution:
Assessing Its Importance and Addressing Its Challenges
By Terry Amsler
7
Public Funding of Community Dispute
Resolution Centers
By Doug Van Epps
11 Fitting the Fuss to the Community Mediation
Center Forum
By Cheryl Cutrona
Section Delegate
Pamela Enslen
Kalamazoo, MI
16 Mending the Fabric of Community
Section Delegate
James Alfini
Houston, TX
20 Parachuting In
Immediate Past Chair
Deborah Masucci
Brooklyn, NY
Section Staff
David Moora, JD, MA
Gina Viola Brown, JD, MPA
Matthew Conger, JD, MA
Christen Hamilton
Theona Salmon Ponder, MS
Pamela Meredith
Josephine Waugh
By Mark Kleiman
By David Matz
22 Takin’ It to the Streets: How a Community Mediation
Center Responds to an Emerging Need
By Gail S. Packer
24 Providing Dispute Resolution Expertise to the Community
By Rishi Batra
26 Using Fear and Guilt to Persuade: What Might
Empirical Research Tell Mediators?
By James H. Stark and Douglas N. Frenkel
30 Roger Fisher, Dean of Dispute Resolution, 1922–2012
Dispute Resolution Magazine is published
quarterly by the American Bar Association
Section of Dispute Resolution (ISSN:
1077-3592). © 2013 American Bar
Association.
Contacting the Magazine
Article ideas, letters, and other correspondence can be sent to Dispute Resolution
Magazine, ABA Section of Dispute
Resolution, 740 15th St. NW, Washington,
DC 20005. The phone number is 202-6621680. The e-mail address is drmagazine@
americanbar.org.
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By Bruce Patton
Editorial Policy
Dispute Resolution Magazine welcomes a diversity of viewpoints. Articles, therefore,
reflect the views of their authors, and do not necessarily represent the position of the
American Bar Association, the ABA Section of Dispute Resolution, or the editors
of the magazine.
Article Submissions
The Editorial Board welcomes the submission of article concepts as well as draft
articles relevant to the field of dispute resolution. The Editorial Board reviews all
submissions and makes final decisions as to the publication of articles in Dispute
Resolution Magazine. Email submissions to Gina Brown, Editor, at gina.brown@
americanbar.org. Submission Guidelines are available on the Publications page of
the Section of Dispute Resolution web site: www.americanbar.org/dispute.
From the Chair
By John R. Phillips
A
s a Section member, you should by now have
received information about the Section’s 15th
Annual Spring Conference in Chicago, which
will be held at the Fairmont Hotel from April 3 through
April 6. This year marks the 20th anniversary of the
Section of Dispute Resolution and the 15th anniversary
of our increasingly successful spring meeting, and so it
is fitting that the conference will feature two nationally
recognized “giants” in public service who have made
monumental contributions to the field of alternative
dispute resolution. On Thursday, Judge Richard A.
Posner of the Second Circuit Court of Appeals and
senior lecturer at the University of Chicago will discuss
economic analysis of settlement through alternative
dispute resolution resulting from his research on judicial
decision-making. He recently co-authored the book The
Behavior of Federal Judges: A Theoretical and Empirical
Study of Rational Choice.
The following morning, Senator George J. Mitchell
will speak and be honored with the 2013 D’Alemberte
Raven Award for his outstanding service in dispute
resolution. He has served as federal judge, senator from
Maine, majority leader of the Senate and chairman of
the peace negotiations in Northern Ireland that resulted
in the historic “Good Friday Agreement” that ended the
conflict. Most recently, he served as U.S. Special Envoy
for Middle East Peace.
The conference will begin on Wednesday, April 3,
with a Symposium on Dispute Resolution in the Courts,
which will be of special interest for those who work
in and support court programs. The main conference,
which starts on April 4, includes approximately 90
programs in tracks on arbitration, mediation, communi­
cations, neuroscience, psychology, negotiation and
international work, as well as many other topics.
April 6 will feature the Legal Educators Colloquium
and luncheon as well as the International ADR
Workshop, which drew more than 80 participants last
year, the first time it was offered. At the colloquium
luncheon, the Section will honor Professor Leonard
Riskin with the Award for Outstanding Scholarly Work.
Thanks in advance to Alyson Carrel, Stu Widman, and
Jillisa Brittan, co-chairs of the conference, as well as program chairs Kelly Browe Olson, Juan Ramirez, and Myra
Selby. Conference registration forms, the program schedule
2
W I NTER 2 0 1 3
D IS P U T E R E S O L U T ION MAGAZINE
and sponsorship and exhibit opportunities can all be found
at the conference web site: www.ambar.org/spring2013.
Planning has already begun for the 2014 Spring
Conference, which will be held in Miami (Florida, for
the first time!) April 2 to April 5, 2014. Mark your
calendars now.
The Section Council is working on updating its
strategic plan and aligning it with the Section’s budget
under the guidance of strategic planning co-chairs
Bruce Meyerson and Larry Mills. More information
about that will come after the Spring Conference. Section members should also know that the
Section’s work on “civil discourse” that was conducted at our 2012 Spring Conference continues this
year. Partly as a result of the recent heart-rending
mass shootings in Connecticut and elsewhere, Bruce
Meyerson is working with the president-elect of
the ABA, James R. Silkenat, to develop a National
Conversation on Gun Violence. The discussion will be
not only about gun control but about all the elements
that appear to have contributed to the increase in
mass shootings. More news will be brought to you as
plans crystallize.
Finally, I remind you that the Section is working on
the agenda for the Asia-Pacific Mediation Leadership
Summit, which will be in Hong Kong on October 31,
November 1 and November 2, 2013. More information
will be available by the Spring Conference or before.
We hope that you pack your bags for the Spring
Conference in Chicago, the first conference held in
the central United States. In the meantime, please
enjoy this issue of Dispute Resolution Magazine, which
focuses on community mediation. I hope this issue
encourages you to become active (or increase your
activity) with your local community mediation center.
These centers defuse conflict, teach citizens to handle
disputes more effectively and serve an essential role in
our local communities. u
John R. Phillips is chair of the American Bar Association
Section of Dispute Resolution and a partner at the law firm
of Husch Blackwell LLP in Kansas City, Chicago & St. Louis.
He can be reached at john.phillips@huschblackwell.com.
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Community Dispute Resolution:
Assessing Its Importance and
Addressing Its Challenges
An Introduction to the Community Dispute
Resolution Issue
By Terry Amsler
T
his issue of Dispute Resolution Magazine contains
an important and illuminating set of articles on the
assessment, conciliation and mediation of community disputes. Three of the longer articles speak directly
to issues related to the practices — and the challenges
— of community mediation programs, written by authors
whose years of committed work make them especially
experienced and informed observers.
Now is a good time to look at the state of community
mediation in the United States. This is not only because
community conflict resolution work has grown remarkably over the past 35 years, or even because community
programs have responded and continue to respond
to local community, court and agency needs in many
innovative ways. And neither is it only because of the
challenges of program funding and financial stability,
which are discussed by three of the authors here.
Looking at community mediation is timely also
because, as Doug Van Epps describes in his article, so
many lawyer-mediators received their basic mediation
training and initial mediation experiences through a
community center, so many attorneys sit on centers’
boards of directors and so many more attorneys refer
cases to community mediation centers. Attorneys have
an important stake in the continued presence, vitality,
and contributions of community mediation centers.
4
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D IS P U T E R E S O L U T ION MAGAZINE
This reflective set of articles provides a detailed snapshot of the numerous ways that community centers, law
schools and other mediation practitioners address and
resolve community disputes.
In his article, “Public Funding of Community Dispute
Resolution Centers,” Van Epps, the director of the
Michigan Supreme Court’s Office of Dispute Resolution,
makes the point that while community mediation
programs in Michigan and in other states have become
part of their respective legal cultures, there is growing
alarm about these centers’ long-term financial sustainability. Van Epps examines Michigan’s experience with
its 1988 Community Dispute Resolution Act, which
makes funding available to nonprofit and governmental
organizations that provide mediation and other forms of
dispute resolution.
Michigan has sought to ensure state-level coordination of some program activities, such as training
approaches and mediation processes, and the state
office has been able to secure funding from a variety of
sources for initiatives in the mediation of agricultural,
special education, child protection and other matters.
While this approach to community mediation funding
has been successful — and sustaining — overall, Van
Epps notes that civil filing fees, which are the primary
source of mediation center funds in the state, have been
scaling downward along with decreased filings, and that
this funding model tends to label mediation programs
especially those that embody a comprehensive and develas “court programs,” perhaps limiting centers’ efforts to
opmental framework.
secure other revenues.
In addition to the three articles described above, three
In “Fitting the Fuss to the Community Mediation
shorter pieces offer somewhat different perspectives but
Center Forum,” Cheryl Cutrona, executive director of
maintain the focus on community disputes.
the Good Shepherd Mediation Program in Philadelphia,
Gail Packer, in “Takin’ It to the Streets,” describes
provides a look at that program’s history, services and
the efforts of the Community Dispute Settlement Center,
challenges, especially the challenge of achieving financial based in Cambridge, Massachusetts, to prepare and train
stability. Begun by Sister Brigid Lawlor in the early 1980s, Boston “streetworkers.” The center offered streetworkers
the center and its history remind us of the important
affiliated with two community-based programs skills
role of Mennonite, Quaker, Roman Catholic and other
and strategies to help them address conflicts between
faith leaders, organizations and values that energized and teens, rival gang members, and parents and children. She
supported early community
describes the training program’s
mediation programs.
approach and content and
Today, the Good Shepherd
notes that the training was posMediation centers and the
Mediation Program serves the
sible only because the center’s
entire city of Philadelphia,
community experience and
larger legal and political
handling referrals from courts,
sensitivity (and, we can assume,
police, attorneys, school adminits credibility) helped the center
worlds they are a part of
istrators, government agencies,
address the racial and cultural
have naturally influenced
neighborhood leaders, nondimensions of conflicts.
profit organizations and others,
“Parachuting In,” by coneach other over the years.
with disputes mediated by staff
flict resolution professor and
and volunteer mediators. Its
mediator David Matz, details
services include custody mediahis efforts to step into a dispute
tion in domestic relations court, pre-hearing conference
in his own community. After reading a newspaper article
facilitation in dependency court, victim-offender conabout conflict between students in nearby off-campus
ferencing, elder mediation and more. While its services
apartments and elderly residents of these same buildings,
have proved their value, financial stability for the center
Matz sought and received help from a university official
has been elusive, especially with less grant money availand a state legislator to convene meetings of the students
able and growing cutbacks in public-sector funds.
and then the elderly residents, facilitate those two meetIn “Mending the Fabric of Community,” Mark
ings, and help both groups reach a “self-enforcing” agreeKleiman, the executive director of Community Mediation ment. Reflecting on this and his similar experiences, he
Services, the mediation center for Queens County in
offers a number of observations, including the important
New York City, brings his 30-year tenure with that prorole that a legitimate sponsor can play in brokering a
gram to bear to recount the program’s history and chart
mediator’s entry into such disputes.
its present challenges. His multi-faceted program, which
In a final article on the community mediation
now has almost 100 employees and 200 volunteers,
theme, “Providing Dispute Resolution Expertise
handles thousands of cases each year, including more
to the Community,” Rishi Batra tells how students
than 1,500 mediation cases from family, criminal and
in a Multiparty Mediation class at The Ohio State
civil courts each year, with another 500 through commu- University’s Moritz College of Law provided dispute
nity walk-ins and referrals. He describes his organization’s resolution-related consulting and facilitation skills to a
work to resolve court- and community-referred noise
local school district. With a conflict brewing over the
complaints, housing and merchant vendor issues, and
implementation of a new high school cell-phone policy,
property crimes. He also notes volunteer mediator efforts
the law school students formed teams and met separately
to resolve matters referred from the organization’s family, with interested groups of students, parents, teachers and
youth development and school-based programs.
administrators. Taking on different roles as they worked,
Kleiman describes the practical realities of seeking
sustainable funding, given the vulnerability of nonprofits
Terry Amsler is the program director for
to “political, ideological and financial circumstances,”
the Institute for Local Government’s Public
Engagement Program (www.ca-ilg.org/engagement).
and he is quite eloquent in describing the successes and
He worked with San Francisco’s Community
challenges of bringing an entrepreneurial approach to
Board Program from 1977 to 1997, serving as
services and funding. He makes important observations
executive director for the last nine years. He was
about coalition-building and the capacity for offering a
program officer and then program director for the
collaborative platform in the creation of new services,
Hewlett Foundation’s Conflict Resolution Program from 2001 to
2004. He can be reached at tamsler@ca-ilg.org.
DISPUTE RESOLUTION MAGAZINE
W IN T ER 201 3
5
the mediation class students conducted and recorded
interviews with stakeholders and prepared a report that
revealed common interests, points of difference and the
missteps and misunderstandings that had hindered effective implementation of the cell-phone policy.
Each of these articles suggests — documents, really
— the incredibly broad range of community problems,
controversies and disputes that are the subject of conflict
resolution programs and practices throughout the United
States today. The articles also suggest the broad footprint
of community mediation centers; even the two articles
in this theme issue that are not directly focused on such
centers (the school cell-phone dispute and the elders vs.
college students neighborhood dispute) describe conflicts
that might well have been addressed by a community
mediation program.
Indeed, a hallmark of community mediation centers
over the past 35 to 40 years has been the remarkable
variety of disputes they have received and the conflictresolution-related services they have offered. This has
come about not just because of centers’ initiatives: as
Mark Kleiman notes, there has been a “dramatic change
in the perspective of courts and governments” about the
value of conflict resolution. Mediation centers and the
larger legal and political worlds they are a part of have
naturally influenced each other over the years. Generally,
it has been a positive development for both.
Several of the authors, such as Cutrona, Kleiman and
Van Epps, specifically identify centers’ challenges in securing and sustaining sufficient funding. This is nothing new;
it has been the subject of discussion by community mediation centers and their associations for years.1 Stories of
innovative and useful conflict resolution services are often
followed by examples of their private or public funding
sources’ drying up or being turned to new purposes. Cheryl
Cutrona probably speaks for most center directors when
she says, “costs have risen while mediation fees, fundraising, grant funds and government contracts have not.”
In addition to the amount of funds available, overreliance on a single revenue source, a concern identified by
a number of observers2 that can result in the rapid rise or
fall of a center with its funder or, less obviously perhaps,
with a center’s values, is another danger. In such cases,
methodology and services may be undesirably or unduly
shaped by the funder rather than by the center’s own
goals and broader community needs.
Interestingly and not unconnected from this last
point, the single most important criteria for what defines a
community mediation program has typically been the use
of volunteers as mediators and in other roles such as training and outreach. With more funding for those services
affiliated with professional and institutional settings and
with fewer revenues available to promote self-referrals and
the recruitment, development and coordination of diverse
neighborhood volunteers, one imagines that mediation
6
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D IS P U T E R E S O L U T ION MAGAZINE
centers may now rely more on staff and paid mediators to
deliver their wide range of services. If this is true, it raises
a question about the notion of community mediation as a
kind of volunteer service system and a primary forum for
local justice, as Ray Shonholtz and other early proponents
of community mediation viewed the work.
However, the primary take-away from a review of
these articles is that conflict resolution efforts of great
importance and great diversity are underway and that
community mediation centers have been a significant
part of the values and practices that have moved the
larger field forward. At the same time, the field’s community sector is pressed by a lack of financial stability and
challenges to its own set of values.
There is no easy answer, of course, although Doug Van
Epps suggests a number of thoughtful ideas, including the
need for centers to continue to embed their services into
institutional processes and work closely together to pursue
state and national funding streams. He also encourages
centers to be in touch with their state and local bar associations about working on access-to-justice initiatives.
This is perhaps a good time for community mediation
centers to be thinking more strategically about alliances
with bar associations and other groups — including other
community centers in their own states — and working
with NAFCM, the National Association for Community
Mediation. Attorneys, attorney-mediators, bar associations
and law schools should welcome these discussions — and
perhaps initiate them. One discussion item might be the
American Bar Association’s recent resolution that calls for
policies and practices that promote civility and civil public
discourse, an idea with important roles for attorneys and
many, if not most, community mediation centers.
The conversations should not just be about mediation
services but about the enabling values and shared goals
for conflict resolution capacities and practices that benefit communities and their organizations and institutions.
This, in turn, may lead to broader conversations about
what funding arrangements will best maintain the optimal set of actors and services to achieve these ends, as
well as about the collaborative efforts required to develop
and maintain sustaining funding. u
Endnotes
1 See Linda Baron, Commentary: The Case for the Field of
Community Mediation, 22 Conflict Resol. Q. 135 (2004; Timothy
Hedeen, The Evolution and Evaluation of Community Mediation:
Limited Research Suggests Unlimited Progress, 22 Conflict Resol. Q.
101 (2004); Wendy E. Hollingshead Corbett & Justin R. Corbett,
Community Mediation in Economic Crisis: The Reemergence of
Precarious Sustainability, 11 Nev. L.J. 458, 471 (2011).
2 Christopher Honeyman, Financing Dispute Resolution
(1995); Hedeen, supra note 1, at 101; Timothy Hedeen & Patrick
G. Coy, Community Mediation and the Court System: The Ties that
Bind, 17 Conflict Resol. Q. 351 (2000).
Public Funding of Community
Dispute Resolution Centers
By Doug Van Epps
T
he connections between lawyers and community
improving ADR practices and develops consumer
mediation centers are strong and varied. Many
education materials.
lawyer-mediators received their basic mediation
While each center is, by legislation, intended to be
training through a community center. Lawyers and lawcommunity-based and is encouraged to “target local
yer-mediators often work as volunteer mediators or serve
dispute resolution needs,” the mediation process used
as directors on community centers’ boards. Still others,
by the centers today derives from a model curriculum
including many lawyers who do not practice as mediators, developed by professors Joseph B. Stulberg and
refer clients, especially those whose disputes may not
Lela P. Love in the 1990s.
warrant litigation or a private mediator’s fee, to community
Having a unified training approach and a model
mediation centers.
mediation process means
Community mediation
that citizens, including
lawyers who regularly
centers have become part
Community mediation centers
participate in mediations,
of the fabric of many local
can expect to have the
legal cultures. However,
have become part of the fabric
same type of mediation
there is growing concern, if
of many local legal cultures.
experience whether they
not outright alarm, about
are in Michigan’s Upper
the centers’ long-term
However, there is growing
Peninsula or in downtown
sustainability and ability
concern, if not outright alarm,
Detroit. Also, when mediato respond to increased
tors convene for advanced
demands for service.
about the centers’ long-term
training programs, their
This article examines
sustainability and ability to respond
one state’s experience in
shared training background
implementing a statutorily
serves as a ready foundato increased demands for service.
created statewide comtion on which to build
munity dispute resolution
advanced skills.
system and offers recomAnother advantage of
mendations for moving forward.
state-level coordination of some program activities is that
a state office may be better situated to obtain grants to
A Statewide Approach to Implementing
implement new services. In Michigan, the SCAO has
Community Dispute Resolution
obtained funding to establish agricultural mediation, special-education mediation and child-protection mediation,
Michigan’s Community Dispute Resolution Act1
as well as funds to provide domestic relations mediator
was enacted in 1988 to provide mediation and other
training programs throughout the state and to conduct a
forms of dispute resolution to citizens “as an alternative
variety of evaluation studies. A state office may also be
to the judicial process.” The program is administered by
able to liaison more effectively with other state agencies
the Office of Dispute Resolution within the Michigan
to secure funding and referrals.
Supreme Court, State Court Administrative Office
If coordinating community mediation efforts through
(SCAO). The Office of Dispute Resolution does not
a state-level judicial office has had a downside, it is
provide direct dispute resolution services to citizens but
that over time, many of the centers have come to be
rather makes available grant funding to nonprofit and
governmental organizations that provide such services.
In addition to administering all grant-related activiDoug Van Epps is the director of the Office
ties of the program, the office has developed mediator
of Dispute Resolution at the Michigan Supreme
Court. In addition to overseeing the Community
training standards, standards of conduct for mediators,
Dispute Resolution Program, this office oversees
and policies and procedures for promoting effective and
the development of ADR practices throughout
accountable local dispute resolution center practices.
Michigan’s trial courts. He is an active facilitator
The office also routinely evaluates mediation services,
and presenter on the integration of ADR into
coordinates task forces and committees charged with
court management practices. He can be reached
at vaneppsd@courts.mi.gov.
DISPUTE RESOLUTION MAGAZINE
W IN T ER 201 3
7
recognized chiefly as court
New York State’s supprograms, and this has
port
of community dispute
As centers continue to diversify
made effective local fund
resolution centers, mantheir referral base, changing the
development much more
aged through an annual
challenging. Put differently,
legislative appropriation
public perception of being of
because so many commuprocess, provides a clear
service only to courts is one area
nity programs provide their
contrast. In 2011, the New
service within the walls of
York State Unified Court
of challenge they will continually
the courts or through court
System received a $140
referrals, as the “alternative
million funding reduction,
need to address.
to the judicial process,”
resulting in a $4 million
many people — and many
decrease in community
possible funders — think of
dispute resolution funding.
them as extensions of the courts rather than community
The 41 percent decrease in program funding resulted
organizations worthy of support.
in the layoff of approximately 80 staff members, office
As centers continue to diversify their referral base,
closures, consolidation of service areas and reduction
changing the public perception of being of service only to in hours of operation. (See the article by Kleiman in
courts is one area of challenge they will continually need
this issue, page 16).
to address.
This drastic result could, of course, take place even in
states where funding is based on filing fees; a legislature
State-Level Funding
could decide to reappropriate dispute resolution fees to
The two predominant state-level funding sources
other purposes. Still, the point here is that the relatively
are general fund appropriations and court filing fee
more secure filing fee-based funding mechanism may
assessment revenue. Other center funding sources
have some advantages over an annual appropriations
include a combination of fees for service, grants and
process. However, even a filing fee system should not be
locally raised non-restricted funds.
considered a fail-proof method for long-term funding.
Michigan’s community dispute resolution initiative
The primary disadvantage of a filing-fee funding model
was originally funded by a $2 assessment per civil court
is that filing fee decreases result in reduced program
filing, earmarked for the Community Dispute Resolution
funding. In Michigan, as elsewhere, civil filings are
Program (CDRP) Fund. In the 1990s, the fund generated declining: Between 2007 and 2011, Michigan’s limited
approximately $1.2 million and, because it was interestjurisdiction court — courts having jurisdiction up to
bearing, as much as $85,000 in additional interest revenue
$25,000 — civil filings decreased by over 95,000 cases,
could be used either to offset administrative costs or
or 25 percent. Similarly, the number of small claims
provide grants to the centers. In times of low interest
filings decreased by over 26,000 cases, or 31 percent.
rates, such as today, however, the interest totals less than The combined effects of declining case filings, an interest
$2,000 per year.
rate of just over 1 percent, inflation (although currently
In response to lobbying of legislators by centers,
low) and rising administrative costs have resulted in an
in 2000 the legislature added an additional $500,000
18 percent decrease in the CDRP fund from its all-time
annual general fund appropriation to the CDRP fund.
high in 2009.
Later, this appropriation was merged with the $2 fee
assessment into a new formula that resulted in the
National Funding Challenges
CDRP fund’s receiving 5.2 percent of all civil filing
In a recent survey of community centers, the National
fees received by the Michigan Department of Treasury.
Association for Community Mediation (NAFCM) identiUntil recently, this generated approximately $1.8 milfied a recession-related trend of declining funding for
lion annually for the program.
community dispute resolution and concluded that
There are some advantages to this approach but also
“[m]any of the challenges facing today’s programs are
some limitations. Perhaps the key benefit is that the
directly tied not to service demand or evolving conflict
annual process of funding CDRP centers is typically
trends, but to funding hurdles and hardships.”2
The authors of the NAFCM report, in a companion
not subject to the vagaries of the annual state budget
appropriation process. Another advantage is that because law review article, went on to paint a fairly grave picture
of community mediation funding, noting that in 2010,
statutes setting the amount of filing fees and their
66 percent of survey respondents reported that their
distribution are infrequently amended, the total amount
organization was negatively impacted by the recession
of funding available for community mediation efforts has
and poorly positioned for sustainability in 2011.3
been fairly predictable.
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D IS P U T E R E S O L U T ION MAGAZINE
The authors’ recommendations for responding to the
the formula provided little incentive for growth or
centers’ funding challenges were to: (1) fundraise smartly; efficient management.
(2) seek specialized professional development; (3) enhance
In response, and working in conjunction with the
public awareness; (4) explore economies of scale, e.g., in
centers, the SCAO developed a performance funding
developing standardized forms across service areas; (5)
model incorporating the factors of case complexity —
diversify funding sources through social entrepreneurial
measured by the time spent on a case — and volume.
ventures; and (6) better collect and evaluate data.
Approximately one-third of all available
While these remain important recommendations, they funding is now disbursed on the basis of performance
speak chiefly to local efforts community centers can take
measures, and while the formula is not perfect, it has
to bolster local funding. Additional steps might include
been a significant step toward awarding funds on the
collective and collaborabasis of performance
tive efforts by centers to
rather than entitlement.
obtain increased state and
Centers may need to collaborate
federal funding through
Ensuring Quality
the executive, legislative
of Process
far more extensively to identify and
and judicial branches of
While it might seem
obtain additional funding that would
government.
that promoting quality
Despite the inherent
of service would take a
proverbially “raise all boats.”
challenges associated with
back seat to responding
state-level filing fee or
to financial pressures, the
legislative appropriations
reverse appears to be true.
approaches to funding, centers may need to increasingly
Centers have actually stepped up quality-assurance efforts,
act in concert to diversify their funding approaches in
not only to ensure that clients have the best possible
the years ahead. In addition to the local efforts NAFCM
mediation experience but to help show prospective referral
has identified, centers may need to collaborate far more
sources and funders that referrals of clients or dollars are a
extensively to identify and obtain additional funding that good investment.
would proverbially “raise all boats.”
The centers typically use a co-mediation model
A challenge, yes, but there has been some success in
in which mediators and staff debrief cases, allowing
this area. In Michigan, centers receive funding through
everyone involved to learn from experience and talk
multiple sources:
about ways to improve services. Many centers also ask
•The Michigan State Department of Education,
clients for feedback, through satisfaction surveys or
for special-education mediation.
other forms, and review those comments. Additionally,
•The U.S. Postal Service, for employment mediation. there is a clear trend toward centers conducting periodic
•The U.S. Department of Agriculture, for loan and
reviews of mediators through observations conducted
insurance claims.
by experienced practitioners, and most centers also hold
•The Michigan Department of Civil Rights, for EEO
local advanced training seminars to develop mediators’
claims.
skills and address questions that invariably arise as the
•The federal Access and Visitation Grant, for parent- complexity of cases increases.
ing time and custody mediation.
Opportunities Ahead
The State Court Administrative Office and network
Providing mediation services through 18 centers to
of centers continue to seek out additional service areas,
all of Michigan’s 83 counties will remain a significant
including those that can be supported with additional
challenge, but a number of opportunities may lie ahead
revenue.
for centers to “think differently” about expanding their
services.
Performance Measure Funding
Parties can be hundreds of miles apart. Although
A key function of a state office is to disburse program
striving to provide mediation venues close to the parties,
funding. Originally, Michigan’s program funding was
with the growing availability of low-cost technology,
entitlement-based. Centers received the total of funds
centers have begun discussing how to manage mediation
generated through the civil court filing fees collected
effectively using tablets, Skype, GoToMeeting video
in their area.
conferencing or other web-based tools. While bringing
This led to significant funding inequities related to
parties together for face-to-face meetings remains a defindemographics, since far fewer cases were filed in the more ing feature of community mediation, the realities of fundrural parts of the state. More problematic, however, was
ing, client preference and geography are likely to compel
that once a center met a minimal threshold for funding,
centers to adopt readily available technologies.
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9
Assessing the role centers can play in helping courts
the rapidly emerging focus on identifying litigants’ underlymeet specific performance objectives may present an
ing issues, community mediation centers are well positioned
additional opportunity. The Michigan judiciary has
to offer mediation and meeting facilitation services.
recently taken bold steps to measure and publish local
Community mediation also squarely addresses “access to
court performance measures. The Michigan Supreme
justice” issues that many bar associations across the nation
Court has adopted an Administrative Order requiring
have identified as being problematic. Centers should be in
all courts to comply with State Court Administrative
touch with their state and local bar associations to learn
Office guidelines for
about current access to
collecting and publishing
justice initiatives and
court performance data.
how they can help with
As communities search for new
Among the performance
them.
ways to integrate young people,
measures, modeled
In an era where
after the National
local
funding remains
centers may have an important role
Center for State Courts’
precarious, as two writers
to fulfill in facilitating victim and
“CourTools” document,
describe it, defining
are compliance with
their program’s goals in
offender conversations.
case disposition time
responding to community
guidelines, perceptions
conflict remains a critical
of fairness, user satisfactask for centers’ boards of
tion and collection rates. Dispute resolution centers, by
directors. Board members might also take the opportunity
providing early mediation services, are well poised to
to assess how their individual programs could work more
help courts meet a number of case management-related
concertedly to pursue state and national funding streams to
performance objectives.
continue the pioneering work begun only three decades ago,
Centers have been increasingly developing restorative
to support neighbors helping neighbors resolve some of life’s
justice services, in which juveniles are held accountable
most critical challenges.
for their actions and victims and community members
The nation’s network of community mediation centers
have a role in repairing the harm. As communities search has contributed significantly to citizens’ having access to
for new ways to integrate young people, centers may
high-quality, affordable and prompt dispute resolution
have an important role to fulfill in facilitating victim and
services. The centers remain a tremendous resource for
offender conversations.
attorneys seeking mediation training and experience as
Centers are also applying hybrid mediation processes
mediators, as well as for clients whose cases might not
to truancy, suspension, and expulsion-related conflicts in
need litigation and who can’t afford private mediation. In
schools and are assessing their role in addressing bullying, short, attorneys would do well to reach out to their local
although the mediation process itself is not a recomdispute resolution centers to learn how best this important
mended vehicle for addressing this pressing problem in
community resource can be sustained. We can only hope
America’s schools.
that with additional local and state support, the centers
Many centers have branched out into providing
will survive the current financial downturn and achieve
revenue-generating training programs for people whom even higher levels of service in the years to come. u
the center does not expect to serve as volunteers.
Endnotes
Such programs range from half-day workplace conflict
1 Mich. Comp. Laws §§ 691.1551-.1564 (1988).
management workshops to full 40-hour mediation
2 Justin R. Corbett & Wendy E. H. Corbett, Nat’l Ass’n
training programs that may be attended by managers,
for Cmty. Mediation, The State of Community Mediation 2011,
human relations staff, state office workers, university
22 (2012).
professors and others.
3 Wendy E. Hollingshead Corbett & Justin R. Corbett,
Centers should also assess how they fit into court
Community Mediation in Economic Crisis: The Reemergence of
dockets designed to address specific community issues,
Precarious Sustainability, 11 Nev. L.J. 458, 471 (2011).
including drug courts, drunk-driving courts, mental
health courts, veterans’ courts and business courts. With
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D IS P U T E R E S O L U T ION MAGAZINE
Fitting the Fuss to the Community
Mediation Center Forum
By Cheryl Cutrona
C
onflict resolution is a growth industry. While
trials may be “vanishing,”1 community access
to justice needs abound. Unfortunately, adequate
funding does not. This is the story of the Good Shepherd
Mediation Program (GSMP), a neighborhood justice
center in Philadelphia, Pennsylvania, that has been
providing community mediation and
related services since 1984. Because
of support from the Sisters of Good
Shepherd, a dynamic staff, dedicated
volunteers, and its willingness to
develop programs in response to
changing court and community
needs, GSMP has flourished. Yet
despite our best efforts to encourage
peace, reconciliation and social justice, financial stability and widespread
public understanding of the benefits
of mediating remain elusive. And
while we no longer have to convince
the Yellow Pages that we should not
be listed under “Meditation,” it is a
challenge to convince people that
community mediation, rather than an
ongoing conflict or even a trial, is a
fitting forum.
fit within the Sisters’ mission of reconciliation. The
study revealed that crime and violence resulting from
escalating, unresolved disputes — particularly involving
youths — were the social problems community residents
were most concerned about. At about the same time,
after the success of the community mediation centers
funded by the Department of Justice
following the Pound Conference in
1976,2 community mediation centers
were being established throughout
the country. Building on their
long history with the Philadelphia
Family Court, the Sisters of Good
Shepherd established the Good
Shepherd Mediation Program as a
new way to fulfill their mission in
the neighborhood where they had
established deep roots and built vital
connections.
In 1986, I participated in Lawlor’s
second basic mediation training and
became a volunteer mediator. A few
years later, I joined GSMP’s board of
directors. In 1991, when Lawlor was
elected to lead what was then the
Washington Province of the Sisters
of the Good Shepherd, I was hired to succeed Lawlor as
executive director, and I have been in the job ever since.
Rooted in Reconciliation
Unlike most community mediation centers, the Good
The Roots Sprout New Branches
Shepherd Mediation Program was started by a Roman
Building on Lawlor’s charisma and the Sisters’
Catholic nun. The Sisters of Good Shepherd arrived in
100-year history with the Philadelphia Family Court,
Philadelphia in 1892 and opened a residential facility
GSMP has grown from serving two police districts in
for troubled girls. After nearly 100 years of providing
the northwest corner of Philadelphia to serving the
services to delinquent and dependent youth, Good
entire city of Philadelphia. Today it is Philadelphia’s
Shepherd Corporation phased out its youth residential
only neighborhood justice center.
programs when the Philadelphia Family Court began to
Over the last 28 years, GSMP has expanded beyond
rely on private foster homes rather than institutional
handling parentplacements for
youth, small claims
dependent youth.
and landlordDetermined
The Sisters of Good Shepherd established the
tenant mediations
not to abandon
to a multitude of
the Germantown
Good Shepherd Mediation Program as a new
programs designed
neighborhood, in
way to fulfill their mission in the neighborhood
in response to the
1982 Sister Brigid
changing needs of
Lawlor conducted
where they had established deep roots and
the Philadelphia
a survey to identify
built vital connections.
community. Being
community conconnected to a
cerns that would
DISPUTE RESOLUTION MAGAZINE
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11
worldwide order of Sisters has also helped the program
establish connections with Sisters and community mediation
centers around the globe.
and fee-based advanced mediator trainings throughout
the year. These opportunities expand and refresh the
mediators’ skills while keeping them up to date with
changing professional standards, court rules and statutes
that impact the practice of mediation.
Community Mediation Services
Disputes are referred to the Good Shepherd Mediation
Program by court personnel, police, attorneys, school
Court and Community Services
administrators, government agencies, neighborhood
As a neighborhood justice center, GSMP goes beyond
leaders, members of nonprofit organizations and others.
providing community mediation services. The staff and
About one-third of the referrals received result in actual
volunteer mediators have implemented services designed
mediations, and of those, about 85 percent settle. The
in response to specific needs brought to the program
disputes are mediated by staff and volunteer mediators.
by the Philadelphia Family Court and the Office of the
Albie Davis, an early proponent of mediation, said that
District Attorney’s Juvenile Unit.
community mediation is the “soul” of the ADR movement.3 If that is true, then dedicated, volunteer mediators Pre-hearing Conference Facilitation
could be its heart.
in Dependency Court
Volunteer mediators and student interns are the
Pre-hearing conferences were implemented in 1997
backbone of the program. The volunteer mediators are
as part of a Court Improvement Project designed to
a diverse cadre of trained
modernize a dependency
men and women who concourt system where children
sistently give their time and
languished in foster homes for
Training community volunteers
effort to help others resolve
years because families failed to
is a win-win arrangement. The
their problems. Many of them
avail themselves of the courtnot only serve as mediators
ordered services they needed
program gets the volunteer
but use their skills to help
to resolve the problems —
mediators it needs to be able
train others, participate
such as drug or alcohol abuse,
in professional developmental health difficulties or
to provide free and low-cost
ment activities designed to
housing needs — that had
enhance their mediation
resulted in the removal of the
mediation services to the
skills and offer their peacechildren in the first place.
community. And attorneys,
making talents to the comThe 1997 Adoption and
munity in other capacities.
Safe
Families Act (ASFA)
social workers and others get
requires that termination of
the training and experience they
Training
parental rights procedures
Training community volbe initiated within 15 to 22
need to start a private practice.
unteers is a win-win arrangemonths after children have
ment. The program gets the
been placed in foster care.
volunteer mediators it needs
In response to ASFA, a local
to be able to provide free and low-cost mediation services task force was formed that included representatives from
to the community. And attorneys, social workers and
the court, the defenders association, the City Solicitor’s
others get the training and experience they need to start
Office, GSMP and social service providers. The resulting
a private practice.
Model Court project included pre-hearing conferences
Since GSMP began training mediators in 1985, nearly
that use mediation strategies and communication pro2,000 adults have participated in mediation training.
cesses to encourage dialogue and cooperation.
What started out as a free workshop is now offered for
Before the Model Court project, families typically had
a fee, although scholarships are available to individuals
less than 10 minutes in court and often left bewildered
from the community who agree to volunteer after they
by the outcome. Court-ordered services often were not
complete their apprenticeship. Continuing legal educaput in place, but no one discovered this until the next
tion credits for attorneys and continuing education units
court date, which might be six months later. As a result,
for social workers are available. Individuals who complete
Cheryl Cutrona is the executive director of the
the mediator training may also choose to apprentice with
Good Shepherd Mediation Program. She teaches
experienced staff and volunteer mediators.
Mediation Advocacy and Practice, ADR, and
Because some court rules and professional associations
the Domestic Relations Custody Clinic at Temple
require mediators to participate in continuing mediation
University Beasley School of Law and mediates and
education, the program sponsors free volunteer gatherings
arbitrates for several government and private providers. She can be reached at ccmed8r@aol.com.
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D IS P U T E R E S O L U T ION MAGAZINE
children could not be returned to their homes because
Victim Offender Conferencing
the problems that had led to their placement had not
Another program that was designed to meet local
been addressed.
court needs is Victim Offender Conferencing, a restorPre-hearing conferences give families an opportunity
ative justice project that offers juvenile offenders and
to discuss what they need and give service providers a
those they have harmed an opportunity to meet face
chance to explain what can be offered to meet those
to face in a structured, secure environment to facilitate
needs. The facilitator helps open lines of communication, restoration, healing, reconciliation and/or negotiate
builds trust and gives the parties an opportunity to ask
restitution. If the victim declines the invitation to conferquestions in an environment free from the formalities that
ence with the offender, the offender’s family participates
can make the courtroom feel intimidating. The facilitator
in parent-youth mediation where the discussion centers
writes out any decisions
on the consequences of
the parties agree on.
the youth’s actions to
This report and recomthe youth, the victim,
Pre-hearing conferences give families
mendation form is then
the family and the
an opportunity to discuss what they
forwarded to the court
community.
so the judge may take
Victim Offender
need and give service providers a
the parties’ wishes into
Conferencing (VOC)
chance to explain what can be offered
consideration in renderwas initiated through the
ing a decision.
efforts of GSMP and the
to meet those needs.
As a result of its
Balanced and Restorative
success, the Model
Justice (BARJ) Task
Court project was
Force of the Family
fully institutionalized throughout the Philadelphia
Court of Philadelphia, which was formed to implement
Dependency Court system. Over the past 14 years 20,290 programs in compliance with revisions to the Juvenile
conferences have been held, serving 158,944 participants Act in Pennsylvania. VOC offers first-time offenders
and resulting in parties’ recommendations to the judge in between the ages of 10 and 18 an opportunity to take
89 percent of those conferences.
responsibility and be held accountable for their actions
within a framework that balances the needs and responCustody Mediation at Domestic Relations Court
sibilities of victims, offenders and communities. The
Thanks to seed money from several private foundaVOC protocol was developed by GSMP and a task force
tions, GSMP has institutionalized free mediation at
comprised of representatives from the Philadelphia Office
Domestic Relations Court. Unfortunately, the program
of the District Attorney, the Defenders Association,
costs were not picked up by the Family Court when the
victims’ advocates, and Family Court administrators.
foundation seed money ran out, and private foundations
VOC was formally evaluated in 2001-2002 by
have indicated that if the court wants the program,
Andrea Bodtker, a doctoral candidate from the Temple
it should pay for it. The bar foundation will not fund
University Department of Communications.5 Her
results demonstrate that 86 percent of the victims who
it because mediation is not the practice of law. The
participated in VOC reported that they believe that the
program’s board of directors and I want to continue the
agreement reached was fair. In follow-up questionnaires
program despite the lack of funding because it provides
and interviews, 57 percent of the victims reported feeling
a vital service to indigent and low-income families; so
“completely better” and 43 percent feeling “somewhat
far, GSMP has supported Domestic Relations Court
better” following the conference. Of the offenders who
mediation through revenue earned from fundraising and
completed the questionnaire, 86 percent believed the
fee-based training and consulting.
agreement reached was fair and 86 percent indicated that
GSMP mediates an average of 150 custody matters
they felt extremely sorry for hurting the victim. Seventyat court each year. In fiscal year 2011-2012, the program
one percent of the offenders reported feeling that the
conducted 182 mediation orientations. Of those, 39 (21
victim has forgiven them for what they did.
percent) were screened out due to domestic violence
In 2003, Family Court tracked the 144 offenders
and/or a criminal record that posed a safety threat to the
who participated in the GSMP VOC project from 2000
child.4 Parenting arrangements were successfully negotiated in 128 (90 percent) of the 143 that were appropriate through 2002. The report indicates that 88.2 percent of
for mediation. Post-mediation surveys indicate that 92
the youth who participated in victim offender and/or a
percent are very satisfied with the mediation process
family conference have not been re-arrested for other
and that 84 percent believe that their children will
offenses.6 VOC continues today, although funding for
be much better off because they chose to mediate their
external evaluation has evaporated. GSMP continues to
parenting arrangements.
track recidivism in-house: Our tracking still demonstrates
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13
that juvenile offenders who participate in VOC are less
likely to be re-arrested for delinquent acts or crimes.
Challenges
Even though the Good Shepherd Mediation Program
is a respected agency that delivers important community
services, the organization faces strong challenges similar
to those faced by community mediation centers all across
the United States, particularly financial stability and
difficulty getting people to the mediation table.
We Built It and They Aren’t Coming
Like the farmer in “Field of Dreams,” we have built
it — but not many have come. Mediation centers across
the country struggle with ongoing outreach and marketing. Educating the public about the benefits of mediating
is challenging. Because the cases do not come to us, we
go to them by offering mediation services in the courts
(such as the Custody Mediation service at Domestic
Relations Court described above).
Because we know that only about one-third of the
cases referred to mediation actually make it to the table,
we have looked for ways to serve the people for whom
mediation is not possible or appropriate. We developed a
community mediation model of conflict coaching, based
on the book Conflict Coaching,7 in which our mediation
coordinator offers conflict coaching every time the
responding party declines the invitation to mediate, and
our mediators suggest conflict coaching to any disputants
who may benefit from it. But despite all efforts to explain
and promote it, conflict coaching is accepted less than 10
percent of the time we offer it.
Another tough sell is elder mediation and related
services. GSMP expanded its Family Passages Initiative
to include Elder Dispute Resolution Services, designed
to help aging adults, their families and caregivers as they
wrestle with decisions about living arrangements, sale of
the family home, caregiving responsibilities, mental and
physical capacity, finances and other matters. Providing
communication and conflict resolution support reduces
stress, encourages informed decision-making and ensures
that the elderly person is involved in decisions as much
as possible. The interventions offered include mediation,
family group conferencing, conflict coaching and conflict
resolution training for the staff of senior centers and other
organizations that serve the elderly. Despite the increased
aging population and a documented need for services
designed to help seniors stay in their own homes, we have
had difficulty convincing service providers who work with
the elderly to refer matters for mediation. We are trying to
ascertain whether the problem is insufficient outreach, turf
issues or the fact that the court is not involved in referring
these disputes to us. Because we strongly believe that
mediation is ideally suited for these matters, we cannot
fathom why we are not flooded with referrals.
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Guerrilla marketing goes only so far. The rising cost
of printing and postage, and our desire to be green, have
stopped us from disseminating as much printed material
as we once did. And the cost of annual reports, training
catalogs, brochures, business cards and newsletters is
significant.
The advent of social marketing has helped somewhat. Using mass emails to market training workshops,
with links to our website and PayPal, has greatly
increased our training registrations. After a few years of
debating whether to use Facebook, Twitter, LinkedIn
and other social media options, we finally jumped
aboard. But while these tools may have increased the
program’s visibility, we can find no direct correlation
to an increase in a demand for our services and a corresponding increase in revenue.
The Never-ending Quest for Financial Stability
Although it has been on our strategic plan for as long
as the Good Shepherd Mediation Program has been in
existence, we have never achieved financial stability.
In the 1990s, grant money was abundant. Interest
rates were high, so foundations had a lot of money to
distribute. After September 11, when the stock market
declined, interest rates plummeted and nonprofit organizations multiplied, foundations had much less money
to distribute to nonprofit agencies. More recently, the
economy has decimated the interest rates and grant funds
have declined drastically. When grant funds are in short
supply, mediation centers compete with nonprofit organizations that provide basic human services such as food
and shelter. And when people are homeless and starving,
organizations and foundations are much less likely to
channel funds to organizations that help resolve conflict.
In its early years, GSMP income came primarily from
foundation grants. Over the years, as the program grew, it
boosted its revenue from fee-based training and consulting
services and decreased its reliance on foundation grants.
But the program has also become increasingly dependent
on contracts with government agencies, which can be slow
to pay invoices, and this has led to cash flow problems,
sometimes forcing us to rely on cash reserves and a line of
credit. Furthermore, the fees that were negotiated 14 years
ago with government agencies have not increased.
While we wish we could keep our costs steady,
administrative expenses such as salaries, health insurance
(which we provide as an employee benefit), insurance,
utilities, printing, office supplies and facility management
all continue to grow. Today, fewer foundations accept
grant proposals for general operating support, and even
when we look for money for existing programs, we find
that foundations often want to fund programs that are
new and innovative rather than those that are already in
place. Foundations that do accept proposals for project
seed money limit administrative overhead to between 8
D IS P U T E R E S O L U T ION MAGAZINE
and 11 percent, while our costs have soared to more than
15 percent. At that rate, we have a hard time affording
necessary support services such as human resources, grants
administration, outreach and marketing, and development.
A Question of Fees
For many years, GSMP provided community mediation
at no charge. Today our fee structure is based on a persession sliding scale, but as a 501(c)(3) public charity,
the program never turns anyone away for inability to pay.
Because the community cannot bear it, we have chosen
not to increase the cost of community mediation. We
review our training and consulting fees every year, but each
increase prompts some organizations to complain that they
cannot afford it, so the program has resorted to offering
discounts to very low-budget, nonprofit clients.
It all does not add up: general operating costs have
risen while mediation fees, fundraising, grant funds and
government contract fees have not. So we have not
achieved our goal of financial stability.
What Does the Future Hold?
Despite funding difficulties and persistent challenges in
trying to help people understand the benefits of mediation,
the Good Shepherd Mediation Program will survive. For
now, fee-for-service contracts, training and consulting
keep the program going and support our free and low-cost
mediation services. But until the national economy
improves, GSMP will likely focus on strengthening current
programs and looking for ways to motivate volunteers
rather than respond to unfunded community needs. u
Endnotes
1 Mark Galanter, The Vanishing Trial: An Examination
of Trials and Related Matters in Federal and State Courts, 1 J.
of Empirical & Legal Stud. 459 (2004).
Psychology for Lawyers
Lawyers who can harness the insights of
psychology will be more effective interviewers
and counselors, engage in more successful
negotiations, conduct more efficient and
useful discovery, more effectively persuade
judges and others through their written
words, and better identify and avoid ethical
problems. In short, by learning more about
psychology and how to apply it, lawyers will
be more effective, more successful, more
ethical, and even happier.
2 As a result of the Pound Conference, a task force was
formed for the purpose of developing proposals for judicial
reform in the United States. The task force recommended
funding a pilot project that resulted in the Department of
Justice’s establishing neighborhood justice centers in Atlanta,
Kansas City, and Los Angeles in 1978, and two more, in Dallas
and Honolulu, in 1980. The courts diverted small claims and
criminal disputes to these nonprofit, community-based centers
staffed by trained, volunteer mediators. Over the next 25 years,
community mediation centers cropped up all over the country.
Tim Hedeen & Patrick G. Coy, Community Mediation and
the Court System: The Ties that Bind, Mediation Q., Summer
2000, at 351-367.
3 Sally Engle Merry, Albie M. Davis: Community Mediation
as Community Organizing, in When Talk Works: Profiles of
Mediators 245, 245 (Deborah M. Kolb ed., 1994).
4 In 2011, Pennsylvania custody law was revised and now
requires the court to consider the criminal record of parents
and other adults living in the household prior to awarding
custody. The statute enumerates crimes that may pose a threat
of harm to the child. 23 Pa. Cons. Stat. Ann. § 5329(a) (West
2012). The Good Shepherd program is now working with the
court to develop a screening instrument — similar to the
domestic violence screening tool — to determine whether
mediation is appropriate.
5 Andrea Bodtker et al., Victim-Offender Conferencing
Project Final Report (Dec. 17, 2002) (unpublished manuscript)
(on file with author).
6 Memorandum from Judge Field, Admin. Judge of the
Phila. Court of Common Pleas Family Div. (June 6, 2003)
(on file with author).
7 Tricia S. Jones & Ross Brinkert, Conflict Coaching:
Conflict Management Strategies and Skills for the
Individual (2008).
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DISPUTE RESOLUTION MAGAZINE
W IN T ER 2013
15
Mending the Fabric of Community
C
By Mark Kleiman
ommunity mediation, a child of the 1960s, has
demonstrated its practical value to communities
across this country and around the world. I have
been involved in the field for 32 years, as founder and
director of Community Mediation Services, Inc., (CMS)
the mediation center for Queens County in New York
City. With some 100 employees and 200 volunteers, we
apply the values of mediation in a holistic way to foster
collaboration throughout the community. What follows
is a discussion of some of the lessons I have learned
during the center’s creation and evolution and through
its programs, relationships and struggles.
Context
I believe that community mediation centers can be an
agent for changing the polarization that today impedes
civil discourse. The community mediation field is built on
values — empathy, communication, empowerment and
respect among them — that can move our competitive,
winner-take-all society toward greater collaboration and
relationship-building. At CMS, we attempt to instill
these values into individuals, relationships, communities,
governmental agencies and institutions. For us, constructive dispute resolution and collaborative problem solving
are not simply ways to resolve conflict but preferred ways
to interact and build community. Whether it is helping
parents and their teens communicate about school issues
or creating a community coalition to explore effective
responses to crime or homelessness, a community mediation center can be a forum and catalyst for thoughtful
consideration of difficult issues.
Origins of Community Mediation Services
Although the values and goals that exemplify mediation have driven the development of CMS over the past
32 years, its evolution is different from most other centers’. CMS began as a court diversion program for youth
that only later discovered mediation was at its core.
My personal evolution shaped the development of
CMS. A degree in chemistry and physics gave me a scientist’s view of the world and an appreciation for problem
16
W I NTER 2 0 1 3
solving and evidence-based approaches. I taught adolescents in middle school and attained a law degree. After
law school I worked with the Legal Aid Society Juvenile
Rights Division, where I represented juveniles in Family
Court. There I discovered the court system’s limitations
and rigidity when faced with the complexity of family
issues as it tried to make time-sensitive decisions based
upon judgment and law. Worse, it applied adversarial
approaches that alienated, polarized and divided families
in situations that required understanding and healing. I
was motivated to look for more humane alternatives.
In my work with youth I saw that listening and understanding respectfully, as well as offering candid and clear
discussions about options and opportunities, could transform a childish, reactive rebel into a thoughtful, mature
decision-maker. Rather than react to the images these
young people were projecting, I learned to speak to and
cultivate the adult within. For many, this was a welcome
contrast to the response of the court, which often seemed
dismissive and biased.
In 1980 I learned about an evidence-based youth
mentoring program and was inspired to found the
Queens Adolescent Diversion Program (QADP), the
precursor of CMS. In this program college interns were
trained as mentors in three intervention strategies
premised upon a respectful and empowering relationship
with the youth. The mentors facilitated goal-setting along
with strategies for reaching the goals; helped the young
person and parents negotiate the details of their relationship; and promoted self-advocacy within the community.
Those strategies and values, developed at the University
of Illinois at Urbana-Champaign by Edward Seidman and
William S. Davidson, were fundamental to the development of future programs at CMS.
D IS P U T E R E S O L U T ION MAGAZINE
Mark Kleiman is the founder and executive
director of Community Mediation Services, Inc.,
based in Jamaica, Queens, New York. He is a
founding member of the New York State Council
on Divorce Mediation, the Family and Divorce
Mediation Council of Greater New York and
Mediators Beyond Borders. He can be contacted
at mkleiman@mediatenyc.org.
Two years later, after reading an article in the New
Mediation
York Times about divorce mediation, in particular the
We have considered ourselves a community mediawork of John Haynes and his role in its development and
tion center from the beginning, even though our initial
the creation of the Academy of
efforts to expand beyond funded
Family Mediators, I signed up for
family mediation and youth
a training with Haynes and other
programs to community disputes
In my work with youth
leaders in the field. This training
proved difficult. The New York
began my conscious awareness
state court system created a
I saw that listening and
of mediation; during the training
community mediation system
understanding respectfully,
I realized that what we were
in 1983, and in 1990, CMS
using in the adolescent diversion
was granted sub-contracts to
as well as offering candid
program was mediation.
establish five mediation centers
After receiving funding for a
in a newly established network
and clear discussions about
parent-teen mediation program
of community after-school
options and opportunities,
in 1983, I incorporated CMS.
centers. This award increased
Its mission was then and is now
the profile of CMS and enabled
could transform a childish,
designed around the empowerus to develop relationships with
reactive rebel into a
ment approaches mentioned
the city Board of Education to
above. CMS sought to work
design peer mediation programs
thoughtful, mature
with adolescents referred by
and parent-child mediation
the Family Court. Few other
to assist schools with truancy
decision-maker.
agencies were interested in this
issues. Most important, this
work. Therefore, we had little
network impressed the court
competition when we received a
system: when it issued the first
contract to divert PINS (“persons in need of supervision,” contracts for the centers in 1995, we were named the
truants, etc.) from the Family Court into a short-term
Queens contractor.
assessment and referral model in which we were able to
The CMS Mediation Division now has ongoing
use mediation and goal-setting. This contract led to the
relationships with the Family, Criminal, and Civil
addition of 12 staff and the growth of the agency.
Courts, from which we receive more than 1,500 cases
In the 1980s, the predominant narrative in the area of per year. Community walk-ins as well as New York City
juvenile justice centered on juvenile rights; in the 1990s,
information line (“311”) referrals make up an additional
the focus was on juveniles as predators and welfare moth- 500 cases. The court and community referrals range
ers as incompetent. These narrowly defined readings of
from noise complaints to housing and merchant-vendor
families at risk were politically and ideologically driven
issues as well as harassment and property crimes. Our
and have circumscribed our work. I am pleased to say
volunteers also mediate cases referred from our family,
that over the past 10 years a dramatic change in the
youth development and school-based programs as part
perspective of government and the courts has affirmed
of a comprehensive intervention strategy. All volunteer
our approach. CMS, and community mediation more
mediators are trained in basic skills and some receive
generally, are now accepted as important components of
further training in specialty areas such as parent-child,
several service systems, including child welfare, juvenile
divorce and restorative justice, to name a few. In addiand criminal justice, and court diversion.
tion, we receive fee-generating referrals from New York
A Success Story from Community Mediation Services
Fostering Personal Change
A mother brought in her adolescent son, Paul,
concerned about his cutting school. We learned
he was also hanging out with a gang. While the
caseworker helped to reestablish his schooling, a
mediator assisted mother and son in coming to
shared understandings. In addition, Paul was referred
to our Youth Mediation Corps, which trains young
people in communication and problem-solving skills
related to community projects. Paul came in one day
distressed that he hadn’t confronted another young
man who, in a clear challenge to fight, had “bumped
into” him on the street. In what proved to be a critical
moment, Paul went from confusion and self-criticism
over failing to fight to recognition that he was developing a new, less aggressive value system. Paul graduated
from high school, spent three years in the Army, married and moved from the neighborhood.
DISPUTE RESOLUTION MAGAZINE
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17
state agencies for special education mediation, early
intervention mediation, and Lemon Law arbitration.
Focus on Families
CMS’s most significant contribution has been in family mediation, where we seek to substitute mediation for a
more judicial response to family issues by offering services
that foster healthy communication and create supportive
relationships within families. Complemented by casework
and mentoring, these interventions resolve present conflicts as well as help the family plan for the future.
CMS was the first in New York state to mediate
parent-teen cases and still remains one of the few certified by the Unified Court System (UCS) to do training
in this arena. But child custody is where we have had the
most influence. In 1996, the UCS asked us to design the
first custody mediation training curriculum for the courts.
Though now in the process of revision, that curriculum
was the first standard articulation of a child-centered
approach to custody resolution. In 2005, we successfully
developed the first custody mediation program in all the
New York City Family Courts. In 2009, unfortunately,
the economy caused its demise.
Youth Development
Our programs for adolescents exemplify our comprehensive developmental approach. This includes personal
goal-setting, education/employment/career strategies and
exposure, leadership skills, and service learning, along
with family and community mediation. We teach each
adolescent to use the skills and strategies embedded in
mediation. The object is to empower a young person to
become an independent, thoughtful, and empathetic adult.
Over the years we have helped steer thousands of
young people from the Family and Criminal Court into
court diversion and violence intervention and prevention
18
programs. In addition, we receive more than 400 referrals
annually from the district attorney’s office for workshops
in relational and anger management. These programs
help young people and adults of all ages develop their
mindfulness and negotiation skills and avoid the possible
negative consequences of the court process.
The results of our youth programs speak to the power
of the models we use. For example, in one of three
programs with the Department of Probation, we are currently working with a special group of youth who are on
juvenile or criminal probation and have never cooperated
with any other program. Unlike the many probation officers they have encountered, we don’t threaten them with
a violation. Rather, in twice weekly group meetings and
over dinner, mentors ask these young people about their
goals and the obstacles they confront. They then support
thoughtful decision-making and action steps. Over the
first six months, we have had 75 percent attendance, a
tremendous achievement in this population.
In more general work, CMS has been applying collaborative models in the community by being the developer,
contractor or partner in coalitions of community members, stakeholders and organizations that reduce violence
in schools, prevent homelessness, reduce youth crime and
integrate community involvement in child welfare.
Practical Realities
These 30 years have seen many disappointments as well
as successes. Nonprofit organizations are among the most
efficient ways of implementing needed services to the public,
but funding is vulnerable to political, ideological, and financial circumstances. Some of the programs listed in the chart
below lost funding as the result of decisions that involve
agency structure or discretionary funding that evaporated.
As a result, some have suffered or been eliminated, ending
effective — and, I believe, invaluable — services.
Program & Tenure
Queens Adolescent
Diversion Program
30 years
Youth Mediation Corps
20 years
Custody Mediation across
New York City Family Courts
5 years
Parent Education Program
for Custody Cases
Status
Lost funding when state agency
reorganized in 2009
Impact
60 cases per year are no longer
diverted from Family Court
Lost funding during budget cuts
of 2006
Contract not reissued; program
reduced to one city-wide coordinator
in 2009
Lost funding for entire state in court
system cuts in 2009
Statewide Community
Mediation Programs
30 years
Unified Court System cut funding
by 42 percent, unprecedented in
the 28 years of the program
40 youth per year and hundreds
who were affected by their projects
70 percent of 1,700 cases annually
once reached agreement; now far
fewer with no effective supervision
Thousands of parents annually,
90 percent of whom expressed
satisfaction with the program
In 2010-2011, 36,802 cases were
handled and 19,522 mediations were
held, involving more than 96,000
people. The cuts will make such
extensive work impossible.
W I NTER 2 0 1 3
D IS P U T E R E S O L U T ION MAGAZINE
Community mediation centers enable communities to organize around the
issues they find most important, whether that involves looking for solutions
to a crisis or discussing long-term issues.
Nonprofits stand or fall not only due to outside influences, of course, but also as a function of the skills and
decision-making of their leaders. My ability to design
innovative programs and develop relationships across the
courts and other service systems was not matched by an
expertise in fundraising from other sources or building
a high-powered, moneyed board, and administrative
overhead did not allow us to make up the difference by
hiring a skilled development team. Our entrepreneurial
approaches to funding have had mixed success, and
training contracts and fee for services components
require the same degree of resources for marketing as
does fundraising. Limited resources equal limited growth.
I have also seen many positive changes that auger well
for community mediation and its use across service systems. Many initiatives are now guided by a cost-benefit
analysis that measures the cost of change versus the
consequences of inaction. For example:
•Criminal and juvenile justice systems have recognized the importance of restorative approaches for
young offenders; evidence-based programs, mediation, mentoring and goal setting are replacing traditional methods of probation and court diversion.
•Child welfare has similarly changed the way it looks
at families. The stress of poverty, illness and education are seen as causes of child neglect and abuse
rather than irrevocable deficiencies and criminality.
Viewing the parents as partners in a process of
support, collaborative planning and education has
resulted in dramatic decreases in placements.
•Youth Development programs see mediation as
a legitimate vehicle for bridging the differences
between parents and teens and goal-setting and
strategic thinking as requirements for survival.
whether that involves looking for solutions to a crisis
or discussing long-term issues. Community mediation
centers create platforms for community dialogue with
governmental agencies and service providers as well as
landlords and merchants, which can bring increased
coordination within the community, greater success in
addressing problems and more effective implementation
of policies and legislation on the local level.
In another distant and promising collaboration, CMS
has for the past three years been involved with a project
launched by the international group Mediators Beyond
Borders that has allowed CMS to gain even greater experience and expertise by partnering with the Jerusalem
community mediation center Mosaica. Like Mosaica,
CMS has many local issues of diversity, and we want to
enhance the legitimacy of both systems while learning
from each other. Mosaica’s success with creative projects
responding to the highly charged issues it faces can give
us insights into community-building in a county that
boasts 167 distinct languages, and our success working
with both the courts and in various service systems can
help people in Mosaica, who are now supervised by the
Ministry of Social Welfare and Services. Today, more
than ever, we all want to demonstrate, even on a community level, the kind of respectful communication that
is needed to resolve issues on a larger stage.
Future Potential
Community mediation centers can play an extremely
constructive role in a variety of settings. Our own
experience demonstrates that a more holistic approach to
service delivery, as well as coalition-building, can foster
transparency and communication across service systems
and improve the strained relationships that have developed between many government agencies and the diverse
communities they serve. Blending mediation and other
means of strategic problem solving into work with individuals, families and communities can complement and
reinforce the efforts of case workers, parole and probation
officers, teachers, youth workers and judges.
Community mediation centers enable communities
to organize around the issues they find most important,
A Personal Note
The satisfaction I have gained from my experience in this
field has been due in large measure to the uniquely committed, passionate, idealistic but pragmatic individuals I have
been honored to know and work with. We all believe in the
potential of community mediation to empower people and
communities to be more supportive, work collaboratively to
resolve conflicts and create healthier environments. u
Postscript
In light of the tragedy of Newtown, I suddenly realized that
community mediation centers are the only institutions whose
mission is solely to help people address violence preventatively.
Parent-teen, divorce, school-based, and neighbor-neighbor
issues all can be precursors to violence. Skills-building,
mediation, restorative justice and developing and promoting
collaboration in the community all reduce violence. It is done
with respect and humility, not diagnosis or blame. Society needs
to expand institutions that foster the best in people rather than
depend on those that only react to the worst.
DISPUTE RESOLUTION MAGAZINE
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19
Parachuting In
By David Matz
O
ne day I read in my town’s newspaper that there
had been heated friction between students of a local
university and a number of elderly residents, all of
whom lived in several square blocks of apartment buildings.
These buildings were just a few streets from my home.
Conflict in my own backyard? I am a professor of
conflict resolution and a professional mediator; wasn’t
this the kind of thing I am supposed to know something
about? Of course it wasn’t my business, but still: Could
I sit quietly? Wasn’t there a Good Samaritan obligation
here? (Besides, as friends have suggested, what wouldn’t
I do for a good classroom story?)
But how to proceed? I got hold of the university’s
personnel directory and found that an assistant dean of
students had been a student in an undergraduate course I
had taught 15 years before. It was a long shot, but I called.
“What are you folks doing about the off-campus students?”
“Nothing,” the assistant dean replied. “It is off-campus
and so not our problem.”
“But they are off-campus because you don’t have
enough dorm space.”
“OK, but what can we do about it?”
“Here’s a suggestion. If you will send a meeting notice
to the students living in those apartments, I will conduct
the meeting. You don’t even have to be there, though
pastries and coffee would be nice.”
Twenty-two students showed up. All, needless to say,
had no connection to the friction with the elderly, but
they all agreed, rather passively, that something might be
done. So I asked how many would be willing to attend a
meeting with some of the elderly residents to discuss what
that something might be. Ten or eleven said they would.
In the newspaper story, the state legislator representing the neighborhood had been quoted as saying
something innocuous about the importance of people
being good neighbors. When I called his office and asked
if he would convene a meeting of the elderly residents
at a community center on the corner, he agreed, eager
to demonstrate that he was doing something. More than
50 elderly
residents
showed up. At first
they said there was no
problem (“those students
are just like my grandchildren”), but this benign front broke
down as people talked about late-night noise, cars
on the lawn, vomit in the hallway and even some rude
remarks directed at the elderly residents. I suggested
a meeting with the students, and many of the elderly
residents were enthused.
So, with the sponsorship of the state legislator and
the university, we had a joint meeting. It was a love-in.
By unanimous agreement, none of the villains was present, and no one knew who they were. Still, no one now
denied that a problem existed.
I asked what might be done about it and easily filled
a few flip charts with the suggested ideas. What emerged
was a set of rules for courteous behavior in the neighborhood, an agreement that the rules should be posted in
and around the apartment buildings, and consensus
that violations could be reported to the dean’s office.
Enforcement was indeed the focal point for much discussion, as no one, least of all university officials, wanted to
be responsible in the event of a violation. So those present
agreed that the rules might be “self enforcing.” In short,
“let’s give them a try.”
The rules were posted, and a month later the same
local paper ran a story saying that all the neighbors
Conflict in my own backyard? I am
a professor of conflict resolution
and a professional mediator; wasn’t
this the kind of thing I am supposed
to know something about?
20
W I NTE R 2 0 1 3
D IS P U T E R E S O L U T ION MAGAZINE
David Matz is a professor of conflict resolution
at the University of Massachusetts/Boston and
a partner in The Mediation Group of Brookline,
Massachusetts. He has taught and practiced
mediation and negotiation in the United States,
Israel, Nigeria, China and England, spending
much of that time introducing mediation practice
and training in different settings. He can be reached
at davidematz@gmail.com.
I tried parachuting into
conflicts several other times. In
I still think that parachuting is a good idea and that a
three I was thrown out (“We
can handle this ourselves, thank
community group, not tied to an academic calendar,
you.”), in two I was accepted,
might be able to capture volunteer energy and help
and one of those came to an
agreement. My hypothesis is that
resolve local conflicts.
my offer of help had the best
chance of being accepted when
I could find an adequately legitiinterviewed thought the problem had been solved. At
mate sponsor for my entrance.
the end of the term I got a call from a student who was
Later I tried to create an internship in the dispute
worried about how the rules would endure the transition
resolution graduate program at UMass/Boston (where
to new student tenants in the fall. Would he be willing
I teach) using the parachute model. It failed because I
to convene and lead a meeting of students in the fall? He couldn’t guarantee that the students would have a useful
agreed, but only if I would coach him. I did, he did, and
educational experience in the semester of time available.
the notices reappeared in the neighborhood. I asked the
I still think that parachuting is a good idea and that
people in the dean of students’ office if they would take
a community group, not tied to an academic calendar,
responsibility to keep this going at the end of each term;
might be able to capture volunteer energy and help
resolve local conflicts. Even when the intervener gets
they declined. No student called me during the next
tossed out, parties learn that such help is possible,
term, and the idea petered out.
perhaps for the next time. u
Senator George Mitchell and Judge Richard Posner
to Keynote at 15th Annual Spring Conference
Thursday Morning Plenary
JUDICIAL DECISION MAKING AND THE ECONOMICS OF
NEGOTIATION
Richard A. Posner, Judge, United States Seventh Circuit Court of Appeals and
Senior Lecturer, University of Chicago Law School, will discuss his finding from
his new book The Behavior of Federal Judges — A Theoretical and Empirical
Study of Rational Choice. His topic will consider an economic analysis of alternative
dispute resolution and settlement in light of his research on judicial decision
making. Judge Posner has written more than 2,500 published judicial opinions
and nearly 40 books on jurisprudence and economics.
Senator George
Mitchell
Judge Richard Posner
Friday Morning Award Plenary Presentation
FRANK SANDER LECTURE: REMARKS FROM SENATOR GEORGE J. MITCHELL
Senator George J. Mitchell will be presented the D’Alemberte Raven Award for his outstanding service in dispute resolution.
Senator Mitchell has had a long and distinguished career. He served for several years as Chairman of DLA Piper. Before
that he served as a federal judge; as Majority Leader of the United States Senate; as Chairman of peace negotiations in
Northern Ireland which resulted in an agreement that ended an historic conflict; and most recently as U.S. Special Envoy
to the Middle East. In 2008 Time Magazine described him as one of the 100 most influential people in the world.
15th Annual Section of Dispute Resolution Spring Conference
ApriL 3-6, 2013
Fairmont Chicago Millennium Park Chicago, Illinois
ambar.org/spring2013
DISPUTE RESOLUTION MAGAZINE
W IN T ER 2013
21
Streetworkers (def.) noun. pl.: youth advocates who work in urban neighborhoods
(typically where they grew up) with at-risk youth and gangs, intervening to prevent violence.
Takin’ It to the Streets:
How a Community Mediation Center
Responds to an Emerging Need
By Gail S. Packer
“We’re 38,” says one
mediation process. And
of four Streetworkers
how to take advantage
as they meet with me,
of the fact that each
their role-play coach.
Streetworker would
I think to myself (with
bring to his or her new
a mental shrug), “Gee,
role as a mediator lots
they don’t look that old.”
of complicated personal
So, with puzzled
history and real-life
curiosity, I reply,
hands-on engagement
“Thirty-eight?”
with conflict.
“Yeah. We just figCDSC has sigured out that altogether,
nificant experience
the four of us have
assessing the needs of
spent 38 years in jail.”
a community, so we
Building bridges,
were especially tuned
people to people, face to
into the cultural and
face. The motto of the
racial dimensions of
Community Dispute
the Streetworkers.
Settlement Center
Assembling a team
(CDSC) took on new
of trainers for this
Streetworkers affiliated with StreetSafe Boston.
meaning as we designed
program, however,
and conducted mediation
was a real test.
training for Streetworkers in Boston. Established in 1979,
As we were recruiting the training team and designing
CDSC has trained hundreds of mediators. Even so, we
the training, I engaged in a great deal of self-reflection
discovered that working with Streetworkers, who would
and pre-training angst. What could a “nice Jewish girl,”
be mediating on the street corners of Boston’s urban
from a privileged Boston suburb and nearing middle age,
neighborhoods, presented a unique opportunity — and
possibly teach the Streetworkers? How could I connect
unique challenges.
and relate? We looked for trainers who had an openness
How did the Streetworkers know about mediation
and curiosity of mind, soul and spirit, a readiness to learn
and connect with CDSC?
as much from the Streetworkers as they would teach. We
The connection began in 2004 with Chris Byner, the
also needed people who were humble and adaptable.
director of external programs at Boston Centers for Youth
Gail S. Packer, Master of Social Work, has
& Families, who supervised the Streetworkers at the time
been executive director of the Community Dispute
and recognized that mediation could be an essential comSettlement Center, Inc. since 1988. Her responponent of their daily work. Through CDSC’s community
sibilities include program development, design and
connections in the Boston area and network of friends
delivery of trainings, fundraising and oversight
of staff and 70 pro bono mediators. She can be
and colleagues, Chris’ quest to find mediation tools led
reached at gspacker@communitydispute.org. The
the Streetworkers to CDSC’s doorstep.
author would like to thank Jim McGuire from
The challenge for CDSC was how to translate mediaJAMS and Chris Byner, without whose vision this project would
tion skills to a setting without the structure of a table,
not have happened. Chris has consulted with many cities around the
the privacy of walls, or the formality of a conventional
country to help establish Streetworker programs, including Chicago,
which was the subject of the documentary film “The Interrupters.”
22
W I NTER 2 0 1 3
D IS P U T E R E S O L U T ION MAGAZINE
We successfully balanced the composition of the team
by age, gender and experience with at-risk youth but
were not able to match their demographics as to ethnic
diversity or gang-related experience. As a team, we had
to rely on our individual and collective approach of
genuine openness, underscored with respect and dignity.
Remarkably, it worked,
with little pushback from
— and actually much
engagement with — all
the Streetworkers.
For the training, we
created role-play simulations from their real-world
situations. We summarized
— and laminated on
a business card — key
steps in the Streetworker
mediation process with
symbols of a TV remote
control:
DVD: Deal with
Violence Differently:
Stop: Assuming
Start: Listening
Pause: Paraphrase
Replay: Ask Questions
Zoom In: Uncover Interests
Fast Forward: Create Options
If Chris Byner’s comment after the training is any
measure, we more than fulfilled his expectations. “Given
the nature of work that Streetworkers do on a daily basis,
mediation is decidedly one of the most important skills
in their toolbox, if not, the most important!” he said.
“Whether it’s resolving conflict between two rival gangs,
two gang members, or parents and teens, they are now
able to confidently address some potentially dangerous
situations in formal and informal settings. We have to
use our mediation skills all of the time.”
Since 2005, CDSC
has provided mediation
skills training to 68
Streetworkers affiliated
with two community-based
programs, Boston Centers
for Youth & Families/City
of Boston and StreetSafe
Boston/The Boston
Foundation.
We paid extremely
close attention to language
and along the way redefined
how to measure success
in mediation. During one
of our training sessions, a
Streetworker recapped his
successful mediation with
two teens outside a basketball court who had agreed to “do the fair ones,” meaning
the teens had agreed to have a physical fight with no
weapons, only their hands. Once the fight was over, they
played a game of hoops together. Another Streetworker
brokered a truce between two gang members just before
they were released from prison, preventing retribution
involving their respective groups. Peace in the community
was preserved. u
Save the Date!
11th Annual Advanced Mediation & Advocacy Skills Institute
November 21–22, 2013 | Omni Nashville Hotel | Nashville, TN
This two-day interactive institute features rare opportunities to learn from some of
the leading mediators and mediation advocates in North America. Each panel provides
an opportunity to learn from an expert mediator, high powered in-house counsel,
and a skilled outside attorney. Each phase of the mediation process will be discussed,
followed by small group discussions led by experts in the field. The opportunity for
mediators and advocates to interact in small facilitated groups provides a unique environment to enhance your skill, knowledge and understanding of the mediation process.
DISPUTE RESOLUTION MAGAZINE
W IN T ER 2013
23
Providing Dispute
Resolution
Expertise to the
Community
By Rishi Batra
A
s schools and other public institutions struggle for
funding, law schools and their students have new
opportunities to fill unmet needs by providing
consulting expertise in facilitation and dispute resolution.
Such partnerships can provide valuable service for the
institutions while giving students a chance to apply their
skills to issues in nearby communities.
At The Ohio State University Moritz College of Law,
we wanted students in our Multiparty Mediation course
to have an experience in which they could use the
mediation and facilitation skills they had learned in the
classroom in a larger, community-oriented setting. To
that end, we worked with a local school district that had
recently established a new policy for cell-phone use in its
high school. The district superintendent had heard that
the policy was causing complaints and conflicts, but he
was unsure how to collect and resolve these systematically.
We saw this as an opportunity for our students to provide
substantive information about how the policy could be
improved and, more importantly, to create dialogue among
the many stakeholders to resolve the underlying discontent.
The students served as a consulting team for the
high school. After an initial meeting between the course
professors and the district superintendent, the students
were assigned a project with two goals: help gain the perspectives of stakeholders, and gather information about
cell-phone policies from other schools for comparison.
The students divided themselves in teams of two to meet
with the different interested groups identified by the
school, such as parents, students, teachers, and administrators. Using the facilitation skills taught in our class,
the students conducted interviews with the different
stakeholders, often with one student acting as the facilitator, the other as recorder, and then switching roles.
Two other students served as group coordinators, moderating the interaction inside the law school classroom, planning assignments, and synthesizing group findings.
The results were illuminating for all involved: The
interviews revealed common interests, such as a desire
for uniformity of implementation, which administrators,
students and parents all thought was lacking. Teachers
were frustrated about what they saw as a lack of clarity
24
W I NTER 2 0 1 3
about cell-phone use between classes, and parents were
frustrated that they were not contacted when cell phones
were confiscated. Surprises also surfaced: Teachers, it
turned out, were bringing their own lockboxes to school
to secure confiscated cell phones.
Our students compiled a report of the various interests
and mapped out a clear plan for the school, including
announcements of clarifications to the policy as well
as a facilitated follow-up group meeting. Back in their
own classroom, the law students were able to reflect on
their performance and the consulting project as a whole,
offering suggestions about how to improve communication among members of the consulting team and how to
increase the diversity of stakeholders. For instance, the
students noted that the district had identified all of the
stakeholders with whom they met. The team thought the
findings may have been different had there been greater
diversity of voices and they brainstormed how they could
broaden the group of stakeholders in future projects.
We see this model as a way for law schools to use
their dispute resolution expertise and provide direct benefit
to local organizations. Schools, governments and nonprofit
groups often have projects that can benefit from conflict
mapping and systematic dialogue, but many lack the expertise, funding and personnel to get started. By reaching out to
these organizations, law schools can provide valuable learning opportunities for their students and bring about positive
change in the communities around them. u
D IS P U T E R E S O L U T ION MAGAZINE
Rishi Batra is a visiting assistant professor
at Whittier Law School. He was previously
the Langdon Fellow in Dispute Resolution
at The Ohio State University Moritz College
of Law. He can be reached at rishib@gmail.com.
Valuable guides from the ABA
Dispute Resolution Section
Civic Fusion: Mediating Polarized
Public Policy Disputes
Bringing together the forces of political debate,
this book outlines civic fusion and the process of
successful public policy mediation. To help mediators
understand how powerful the tool of mediation is and
help them reach their full potential, this outlines what
civic fusion is and provides real world examples of
cases with positive outcomes.
2012, 6x9, 400 pages, PC 5100022
$59.95 – DR Members: $49.95
Psychology for Lawyers: Understanding
the Human Factors in Negotiation,
Litigation, and Decision Making
Introducting practicing lawyers and law students
to some of the key insights offered by the field of
psychology, this guide offers a crash course in those
aspects of psychology that will be most useful to
practicing attorneys. Included are discussions and
insights on perception, memory, judgment, decision
making, emotion, influence, communication, and the
psychology of justice.
2012, 7x10, 600 pages, PC 5100021
$174.95 – DR Members: $144.95
Early Neutral Evaluation
This valuable guide is a tool to teach lawyers,
litigants, neutrals, judges, court program
administrators, and public policy analysts what early
neutral evaluation (ENE) consists of, why and under
what circumstances it can be used most productively,
and the difference between it and mediation.
2012, 6x9, 200 pages, PC 5100008
$49.95 – DR Members: $34.95
Stories Mediators Tell
This new book is a collection of inspirational stories
shared by experts in the field who want others to
experience the art of mediation. Their stories share
advice on how to handle certain situations.
2012, 6x9, 366 pages, PC 5100020
$49.95 – DR Members: $34.95
Lawyering with Planned
Early Negotiation
To help you in your negotiations, this guide
discusses how you can be more successful using
planned early negotiations. The strategies in
this book can help you become a more effective
negotiator, which can increase your professional
satisfaction, generate good will, relieve stress, and
increase your effective billing rates with creative fee
arrangements.
2012, 6x9, 200 pages, PC 5100005
$74.95 – DR Members: $59.95
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Judges Under Fire
Human Rights, Independent Judges
and the Rule of Law
A compilation of true accounts of cases where the
rule of law was jeopardized, this guide illustrates
what can happen when the judiciary is stripped of its
independence and prevented from following the rule
of law. While it provides some lessons from foreign
nations where the rule of law has been sublimated
to opportunistic leaders, it also provides a chilling
reminder that it can happen here.
2011, 6x9, 200 pages, PC 5100006
$39.95 – DR Members: $34.95
The Organizational Ombudsman:
Origins, Roles and Operations – A
Legal Guide
The book provides a detailed rationale for the
creation of ombudsman offices, suggestions for
structuring and documenting an ombudsman
program and how to address issues that arise
in litigation, a comprehensive presentation of
various legal issues associated with organizational
ombudsman programs, including collecting cases
that deal with imputed notice and confidentiality,
and much more.
2010, 6x9, 642 pages, PC 4740068
$89.95 – DR Members: $71.95
Challenging Conflict: Mediation
Through Understanding
This revolutionary book shows how through
mediation, parties can escape the trap of conflict
rather than remain ensnared within its grasp at
enormous cost to themselves and others. Through
the telling of ten riveting stories of actual commercial
mediations, the principles and methodologies of the
understanding-based approach come alive.
2008, 6x9, 305 pages, PC 4740067
$37.95 – DR Members: $29.95
Making Money Talk: How to
Mediate Insured Claims and Other
Monetary Disputes
Learn how to deal with the peculiar problems of
traditional bargaining through proven models
and techniques that will help you to gain a
better understanding of the dynamics of money
negotiations, identify the recurring problems
presented in those cases, acquaint and arm yourself
with new tools to handle those challenges, and much
more.
2007, 6x9, 269 pages, PC 4740066
$42.00 – DR Members: $32.00
To order, visit ShopABA.org
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11/2/12 9:47 AM
Using Fear and Guilt to Persuade:
What Might Empirical Research Tell Mediators?
By James H. Stark and Douglas N. Frenkel
This is the second installment in a two-part article
on persuasion research and its potential lessons for
mediators. The first part appeared in the Fall 2011
edition of this magazine.
Y
ou are a law-trained neutral mediating an employment discrimination dispute. The 59-year-old
plaintiff alleges that she was passed over for a
promotion in favor of a younger male and then fired six
months later from her office manager position because of
age and gender discrimination. The company denies the
charges, claiming that the plaintiff was laid off because of
economic exigencies caused by the recession. Although
her prior work evaluations were all good and there have
been several provable incidents of sexist workplace
remarks by supervisors, the plaintiff’s case is anything but
a slam dunk. For one thing, she made a scene in front of
her co-workers when she was passed over for promotion,
referring to her supervisors in ways that even she now
concedes were “unprofessional.”
Both sides are represented by counsel at the mediation, which has been in process for more than six hours.
After an initial settlement demand of $200,000, a lengthy
and heated factual exchange and a wide variety of nonevaluative mediator interventions, the parties seem tired
and angry and are still $45,000 apart. You think that the
plaintiff and her lawyer are not being realistic about their
settlement goals. Various attempts at persuasion, including an unfavorable evidentiary prediction, have not made
them change from their most recent position. If anything,
she and her lawyer seem to be getting less reasonable as
the mediation progresses. You think she has a substantial
chance of losing the case altogether if it is tried but that
there is a good chance the case will settle quickly if she is
willing to drop her demand by, say, $25,000.
You are mulling over alternative ways of impressing
this upon her. One option is to try to evoke fear, saying,
for example: “I think you have a substantial chance of losing
at trial. Win or lose, the incident in which you ‘dissed’ your
employers in front of your co-workers will almost certainly
be rehashed in detail. They may try to portray you as a loose
cannon, disloyal, not a team player. With so many people
looking for work in this economy, your conduct — even if
it was justified — may look bad to a jury. In a slow news
cycle, this might even be the kind of story that a newspaper
or local TV station would want to cover. And if that occurs,
26
W I NTER 2 0 1 3
the negative publicity could really hurt your prospects of being
re-employed — no matter what else happened at trial.”
Another approach is trying to tap into her possible
guilt, for example: “I know you’re a single mom who has
been struggling lately to raise your teenage son, first on your
unemployment benefits and now with part-time work. How
will you feel about how you fulfilled your obligations to him if
— after a long wait for the trial — you lose your case, knowing that you had the chance to receive some decent money in
mediation but turned it down?”
If you are uncomfortable with either of these options,
you are not alone. Many mediation theorists and practitioners might recoil at the suggestion that a neutral
would actively seek to evoke fear, guilt or other “negative” emotions to produce a shift in attitude. Perhaps you
are concerned that one or both of these options could
manipulate or even overwhelm the plaintiff’s decision
process. Apart from these normative implications, there
are more basic questions: Do such approaches to persuasion work? If so, how and in what circumstances?
Fear Appeals
For more than a half-century, primarily in the areas
of public health and advertising, social scientists have
studied the effectiveness of fear appeals in seeking
to influence behavior change. Early researchers saw
such appeals in purely emotional terms: the fear these
messages aroused created unpleasant effects, which
drove subjects to seek relief by accepting the message’s
recommendation.1 But more recent public health
research has found that fear appeals produce not
only emotional but cognitive responses and that their
effectiveness may be highly tied to, if not determined
by, the thinking they engender.2
According to modern theorists, fear appeals can
be broken down into two parts: (a) the threat or danger
facing the subject, and (b) the recommended action or
solution that the subject can take to avoid the harm.
Each of these, in turn, is made up of two additional components, seen from the subject’s perspective. A threat is
judged by the subject on the basis of his perception of (1)
its severity and (2) its relevance — his chances of suffering its effects. The recommended action is appraised in
terms of two different kinds of efficacy: (1) the likelihood
that it will succeed in eliminating the threat and (2) the
subject’s own ability to carry out that action.3
D IS P U T E R E S O L U T ION MAGAZINE
A typical experiment might manipulate these four
effective, so long as they convey both serious problems
variables, placing each subject in one of eight possible
and strong, feasible solutions.
experimental conditions. A 1987 breast cancer-based
study4 is illustrative. College-age female subjects were
Guilt Appeals
first given either a high-threat essay (coupling dramatic
The use of guilt as a persuasive tool is commonly
written and photographic descriptions of cancer, as well
found in efforts to induce greater volunteerism or charias the side effects of radical chemotherapy or mastectable giving and to influence consumer purchasing. By
tomy, with a focus on student susceptibility to the disease directly or indirectly confronting audiences with discrepdue to stress and poor diets) or low-threat essay (which
ancies between their personal standards and their actual
had far less intense depictions of breast cancer and its
conduct, guilt appeals seek to trigger unpleasant feelings
effects and told subjects that students rarely contract
that will motivate people to seek relief by making amends
the disease). In addition, the essay described either a
for their self-perceived shortcomings.
high or low likelihood that the desired response (breast
Efforts to persuade by capitalizing on guilt take several
self-examination) would be effective in early cancer
forms. The most direct involves the presentation of a mesdetection, and presented a high (breast exams are easy to sage drawing a subject’s attention to the inconsistency of
do correctly) or low (breast exams are difficult to do corher behavior with her own standards or ideals. Anticipated
rectly, lumps are hard to detect) self-efficacy message.
guilt can also serve as a persuasive device. Subjects are
Studies of this kind suggest that the success of a
asked to forecast how they will feel in the future if their
fear-based appeal depends on how subjects process the
current action or inaction produces harmful effects or
fear-inducing information. When a subject assesses
causes them to fall short of their own standards.
the threat as low (because it is not severe, she is not
Like fear appeals, guilt-based persuasive messages have
susceptible to it, or both), little fear is aroused and she
a “problem-solution” structure: (a) the guilt-inducing sughas little motivation to process the message further or
gestion that the recipient’s conduct or inaction violates her
do anything in response. Thus, low-threat fear appeals
personal norms or some social or moral principle, and (b)
are not persuasive. But when the subject’s perception of
the recommended change in behavior that can make up
both components of the threat-vulnerability combination for the lapse and thus reduce the guilty feeling.
is strong, she becomes
The extent of
motivated to do someresearch in this area
thing to protect herself.
is rather limited as
Recent public health research has
What that something
compared to empirical
is depends on what
work concerning fear
found that fear appeals produce not
she thinks about the
appeals. The field’s one
only emotional but cognitive responses
effectiveness of the
meta-analysis, based on
recommended action.
approximately 30 years
and that their effectiveness may
If she believes in the
of guilt studies, sumbe highly tied to, if not determined by,
efficacy of the recommarizes the research
mended coping action
as follows: as with fear
the thinking they engender.
(both generally and in
appeals, more intense
terms of her own ability
guilt messages arouse
to carry it out), the
a greater amount of
subject is likely to seek to control the danger by carrying
emotional response. But unlike fear appeals, guilt appeals
out the recommended action, i.e., she is persuaded. But
can go too far: as they become more intense or explicit,
if she does not see herself as able to carry out a response
they become dependably less persuasive.6
Illustrative of the experimental methodology in this area
that will be effective, the subject is more likely to seek to
is a 1995 study of advertisements aimed at encouraging
control her fear through denial of the danger, avoidance
working mothers to purchase dental floss for their children.7
of a decision, suspicion of the source, wishful thinking
5
Subjects in the study were given informational statements
or other resistance. Overall, the literature tells us that
appeals that generate the most fear can be the most
that attempted to stimulate varying degrees of guilt: low
James H. Stark is Professor of Law and Director of the Mediation Clinic at the University of
Connecticut School of Law. He can be reached at james.stark@law.uconn.edu. Douglas N. Frenkel
is Morris Shuster Practice Professor of Law and directs the Mediation Clinic at the University of
Pennsylvania School of Law. He can be reached at dfrenkel@law.upenn.edu. Their video-integrated text,
The Practice of Mediation (Aspen Law and Business 2d ed. 2012), is used widely in law school classrooms. The full article on which this is based will be published at 28 Ohio State J. on Disp. Resol. 262
(2013).
DISPUTE RESOLUTION MAGAZINE
W IN T ER 2013
27
(“Keeping your child’s teeth clean and fresh...that is FLOSS-IT’s
job!”), medium (“You shape your child’s dental health, so don’t
let your family down.”) and high (“It’s YOUR responsibility
to make sure that your kids have healthy teeth and gums...don’t
make any mistakes...DO IT RIGHT!”)
The results of this study showed first that the amount
of guilt felt was higher in response to moderate- and
high-guilt appeals than to low-intensity messages; second,
that as guilt content rose from moderate to more blatant,
such appeals generated anger and negative source
attributions, (e.g., “The company is trying to manipulate
my attitudes and feelings”); and third, that purchase intent
declined as guilt levels rose. Strong guilt messages are
perceived as attacks on the self and efforts to limit one’s
freedom, coming from sources not entitled to criticize
one’s conduct. Psychological reactance — resentment,
anger and a desire to lash out against the message and
the messenger — is often the result. Similar outcomes
have been reported in studies involving transgressions in
close or intimate personal relationships.8
Interestingly, the use of anticipated guilt — illustrated
by the mediator’s second option in the employment
discrimination case described above — produces different results. In one recent study,9 undergraduate student
subjects were asked to get tested to join the bone marrow
donor registry during National Bone Marrow Awareness
Month. While all students were given the same written
description of the diseases for which bone marrow transplants might be life-saving and of the simple procedure
for getting tested, the experiment varied the intensity of
its anticipated guilt component. One group was given a
“naturalistic” appeal that underscored the seriousness of
the blood diseases that could be treated by donation and
urged subjects to join the donor registry, concluding, “You
may save a life!” The remaining subjects were given a high
anticipated-guilt message that added brief stories about
two children with leukemia — one who died for lack of a
transplant, the other who flourished after getting one —
and a closing exhortation to “think about how bad you might
feel if you decided not to help when it is so easy.”
Compared to those who read the naturalistic appeal,
students who read the more intensive message reported a
higher estimate of the guilt they would feel if they failed
to volunteer and a higher level of intention to take the
first step to becoming a donor. Regardless of their level
of intensity, such efforts to persuade were not met with
psychological reactance; subjects generally found nothing
objectionable about them.
In terms of effectiveness, both fear and guilt appeals
may share one limitation that is significant in at least
some mediation settings: their impact may be temporary. Fear appeals appear not to have lasting impact, at
least as measured by the extent to which subjects actually carry out their intended behavior change (e.g., to
28
W I NTER 2 0 1 3
stop smoking) over time.10 The impact of guilt appeals
may also be ephemeral: For example, when surveyed a
week or so later, students in the bone marrow experiment who had taken no action toward becoming a
donor reported feeling less actual guilt than they had
anticipated they would.11
Mediation Applications and Questions
While this research has its origins in other fields, its
findings may raise important questions for mediation
practice. As stated, rather than evoking purely emotional
reactions, successful fear appeals appear to trigger thinking, both about the threat and the subject’s ability to
avert it. If this empirical literature is to be credited, the
thinking triggered by effective fear appeals apparently can
act to neutralize defensive and destructive tendencies
such as anger, overconfidence, shame or denial. Viewed
in this way, well-executed fear appeals by mediators
— usually contained in an evaluative message — may
actually work to enhance participant self-determination,
at least in some cases.
Applied to mediation, fear appeal research may also
point to the wisdom of directness, if not bluntness, in
describing the severity of the risks and consequences of
non-settlement options. Pulling punches or speaking in
shorthand in delivering an evaluation may produce insufficient belief in the seriousness of the threat to trigger
real openness to change. Moreover, if the perceived efficacy of a recommended action is an essential determinant
of whether a fear-arousing message is accepted, merely
stressing the risks and noxious consequences of a trial (or
other alternative to settling), without more is unlikely to
suffice. Embedded in message resistance may be a party’s
belief that the opponent will never agree to settle. Or a
party may doubt his or her own ability to afford or sustain
the commitments needed to resolve the dispute.
A successful effort to persuade by sowing doubt or fear
may therefore need to unpack the reasons for a party’s
resistance to the message and provide at least general
guidance, if not assurance, as to what action or offer will
produce a resolution. It thus may follow that a negative
evaluation may not be persuasive unless conducted
relatively late in a mediation and only after a fair bit of
caucusing. Once a mediator knows that one side will
likely accept a specific offer, assuring the (fearful) opposing party that by making that offer she can put the threat
behind her should be a relatively easy task.
Both direct and anticipated guilt appeals also show
persuasive promise in mediation, but direct appeals do
pose unique skills challenges. Finding a level of intensity
that arouses motivating guilt but avoids psychological
reactance seems difficult under any circumstances. If
overdone guilt messages typically trigger resentment and
anger even in personal relationships, the challenges for
D IS P U T E R E S O L U T ION MAGAZINE
outsiders (like mediators) to leverage such bad feelings
would seem even more daunting. And if that mediator
has pledged to remain neutral and impartial, any obvious
“guilt trip” might seem particularly likely to fail.
In addition, if fear and guilt appeals do not reliably
produce lasting change in attitudes and behaviors, what
about settlements that are brought about through such
persuasion but require long-term commitments? If, for
example, a mother’s agreeing to increased and regular
child access for a father she hates was in any substantial
measure the result of fear or guilt, might the type of persuasion used affect her willingness to abide by its terms
over time? For many mediators concerned about the
stability of agreements reached with their assistance, this
measure of the quality of message acceptance could be an
important consideration.
Implications for the Mediator Role Debate
Taken as a whole, the empirical research suggests
that both fear and guilt appeals, skillfully executed, can
be effective in changing minds. But as noted earlier,
this begs the normative question: Are such “negative”
emotional appeals an appropriate exercise in mediator
persuasion?
As political scientist Drew Westin recently observed,
“‘feelings’ are millions of years older than the kind of
conscious thought processes we call ‘reason,’ and they
have been guiding behavior far longer.”12 Mediation is
often a highly emotional process in which the parties’
feelings hold strong sway on their communication
patterns and decision-making processes — sometimes
in ways that do not serve them well. Mediators who
engage in any form of evaluation, sowing doubt about
a disputant’s position or negotiating stance, do so
knowing at some level that this may produce anxiety or
even fear. Mediators who try to help parties honestly
confront their own past bad behavior and contributions
to a dispute directly or through orchestration of role
reversals and apologies understand that these interventions may bring to the fore feelings of regret, guilt and
shame. All such interventions seem well within the
mainstream of accepted mediator practice.
Why is this so? If one thinks closely about the socalled “negative” emotions of fear and guilt, they are not
really negative at all. Fear, of course, is highly adaptive
when it helps humans escape danger or minimize risk.
The ability to empathize with those we hurt is at the
root of conscience and is what enables us to act morally
toward one another. In the context of mediation, a
healthy dose of fear induced by the mediator may help
disputants reconsider overly confident decisions that may
not be in their long-term interest. A dollop of induced
guilt may help disputants come to terms more fully with
the negative effects of their behaviors on others, thereby
developing greater objectivity about their situation. So
long as fear and guilt appeals are not exaggerated by the
mediator, both kinds of interventions can produce more
fully considered decisions — the kinds of outcomes every
neutral should want to endorse. u
Endnotes
1 See Paul A. Mongeau, Another Look at Fear-Arousing
Persuasive Appeals, in Persuasion: Advances Through MetaAnalysis 53 (Mike Allen & Raymond W. Preiss eds., 1998).
2 See generally Howard Leventhal, Findings and Theory in the
Study of Fear Communications, 5 Advances in Experimental Soc.
Psychol. 119 (1970).
3 Kim Witte & Mike Allen, A Meta-Analysis of Fear Appeals:
Implications for Effective Public Health Campaigns, 27 Health
Educ. & Behav. 591, 593-95 (2000).
4 Patricia Rippetoe & Ronald W. Rogers, Effects of
Components of Protection-Motivation Theory on Adaptive and
Maladaptive Coping With a Health Threat, 52 J. Personality &
Soc. Psychol. 596 (1987).
5 See, e.g., Kim Witte, Putting the Fear Back into Fear Appeals:
The Extended Parallel Process Model, 59 Comm. Monographs 329,
337 (1992).
6 Daniel J. O’Keefe, Guilt and Social Influence, 23 Comm. Y.B.
67, 83 (2000).
7 Robin Higie Coulter & Mary Beth Pinto, Guilt Appeals in
Advertising: What Are Their Effects?, 80 J. Applied Psychol. 697,
699 (1995).
8 See generally Roy F. Baumeister et al., Personal Narratives
about Guilt: Role in Action Control and Interpersonal Relationships,
17 Basic & Applied Soc. Psychol. 173 (1995); Jeffrey Rubin &
Warren F. Shaffer, Some Interpersonal Effects of Imposing Guilt
Versus Eliciting Altruism, 31 Counseling & Values 190 (1987).
9 Lisa L. Massi Lindsey, Anticipated Guilt as Behavioral
Motivation: An Examination of Appeals to Help Unknown Others
Through Bone Marrow Donation, 31 Hum. Comm. Res. 453, 460
(2005).
10 William DeJong & Lawrence Wallack, A Critical
Perspective on the Drug Czar’s Antidrug Media Campaign, 4 J.
Health Comm. 155 (1999). On the other hand, some studies
show at least some promise of long-term behavior change.
See, e.g., Ronald W. Rogers et al., An Expectancy-Value Theory
Approach to the Long-Term Modification of Smoking Behavior, 34 J.
Clinical Psychol. 562, 564 (1978).
11 Lindsey, supra note 9, at 472.
12 Drew Westin, The Political Brain 57 (2007).
DISPUTE RESOLUTION MAGAZINE
W IN T ER 2013
29
Roger Fisher, Dean of Dispute
Resolution, 1922-2012
By Bruce Patton
R
oger Fisher, Samuel Williston Professor of Law
Emeritus at Harvard Law School, passed away
peacefully surrounded by family on August
25, 2012, at the age of 90. Founder of the Harvard
Negotiation Project and later the Program on Negotiation
at Harvard Law School, co-author of the seminal and
perennially bestselling Getting to YES: Negotiating
Agreement Without Giving In, pioneer in teaching negotiation, and inveterate, self-starting peacemaking interventionist, Fisher had an extraordinary impact that has
sometimes been compared to that of Freud.
The success of Getting to YES and the simultaneous
creation of the wildly popular Negotiation Workshop at
Harvard Law School (offered as a semester course for
144 students and a weeklong summer course for as many
practitioners) helped create and legitimate a scholarly
field of negotiation and dispute resolution that grew
rapidly and thrives today, with research and courses
at virtually every law and business school and many
undergraduate colleges. But Fisher’s activism, influence,
and legacy started long before and extended well beyond
Getting to YES.
He inspired thousands of students to appreciate the
power of creativity, legitimacy, and putting themselves
in the other side’s shoes – and to believe they can make
a difference. He articulated a breathtakingly comprehensive analytic framework of tools and insights for
systematically diagnosing a conflict, problem, or negotiation and crafting an optimal strategy for dealing with it.
Indeed, this intellectual landscape is so broad that few
scholars are aware of more than a portion of it. And he
intervened directly and helpfully in an unbelievable list of
international conflicts.
As an undergraduate at Harvard College, Fisher
co-founded Students for Lend Lease and met President
Franklin Roosevelt and first lady Eleanor Roosevelt.
Soon after, he enlisted and served in World War II as an
airborne meteorologist, ultimately flying weather reconnaissance for the atomic bomb. Seeing the terrible costs
of war, he was determined to find better alternatives
whenever possible.
He became a lawyer. Asked to stay on and teach after
graduation from Harvard Law School, he declined and
suggested the school ask again after he had practiced for
10 years. He passed up a clerkship with Judge Learned
Hand after being asked to join Ambassador Averell
Harriman in working on the Marshall Plan in Paris.
30
W I NTER 2 0 1 3
Roger Fisher in Salzburg. Photo by Bruce Patton.
Afterward, as an associate at Covington & Burling,
Fisher quickly cemented his specialty in international law
by working on water issues for Pakistan and on a Saudi
Arabian border dispute. Before returning to the faculty at
Harvard Law, Fisher worked as assistant solicitor general,
a job in which he won eight consecutive cases for the
government before the Supreme Court, successfully
arguing such major cases as Roth v. United States, the
landmark pornography case.
Though back at Harvard, Fisher served for much of
the 1960s as a consultant to the assistant secretary of
defense, working to find a way to get the United States
out of Vietnam. That experience led to his first bestseller,
International Conflict for Beginners, in 1969. During the
Harvard student “strike” of this time, Fisher organized a
series of campus discussions and facilitated a five-hour
D IS P U T E R E S O L U T ION MAGAZINE
Bruce Patton is Co-founder and Distinguished
Fellow of the Harvard Negotiation Project and a
founder and director of Vantage Partners, LLC, a
global consulting firm that helps companies negotiate and manage their most critical relationships.
He is co-author of “Getting to YES” and “Difficult
Conversations.” He can be reached at bpatton@
vantagepartners.com.
live television debate that won an award for best public
service program of the year. Seeking to harness the
dramatic potential of the courtroom to stimulate interest
and deepen understanding of important public issues,
Fisher then created the public television series The
Advocates, for which he won broadcasting’s prestigious
Peabody Award. He used the program to begin interventions on arms control, the Northern Ireland conflict, and
the Middle East. Fisher’s skillful interview of Egyptian
President Nasser for an Advocates program led Nasser
to agree, on camera, to holding talks with Israel, which
stimulated the successful Rogers Initiative of 1970, ending the so-called War of Attrition.
Building on that success, Fisher soon spent most of
a year in the Middle East, which resulted in his book,
Dear Israelis, Dear Arabs and then the powerfully moving
seven-part public television series Arabs and Israelis.
Screening a segment of the latter prior to approving
broadcast of the series in Egypt, Nasser’s successor,
President Anwar Sadat, was reportedly moved to exclaim,
“I need to go to Jerusalem,” which he soon did, laying the
foundation for peace with Israel. That peace was finally
achieved at the Camp David summit in 1978, facilitated
by President Jimmy Carter and Secretary of State Cyrus
Vance, using the “single negotiating text procedure” that
Fisher had suggested to Vance two weeks before after a
set of tennis on Martha’s Vineyard.
From 1979 to 1981, Fisher worked diligently to
facilitate the release of the American diplomats held
hostage in Iran. Eventually asked by both governments to
facilitate, Fisher offered a draft framework that reportedly
stimulated the Ayatollah Khomeini’s “Four Points” statement that dropped the demand for an apology, which in
turn prompted the Algerians to offer formal mediation
in which they finalized an agreement based on Fisher’s
framework.
In 1981, in addition to Getting to YES, Fisher published Improving Compliance with International Law, which
was cited for “preeminent contribution to creative scholarship” by the American Society of International Law.
In 1985 and 1986, Fisher helped enable the first
successful summits between President Ronald Reagan
and Soviet leader Mikhail Gorbachev. In 1985 Fisher
co-authored a paper with Vadim Sobakin from the Soviet
Central Committee that redefined a good relationship
between the superpowers as a matter of how conflict is
handled rather than whether the parties agree. The result
of years of effort to promote this idea, the paper was
eventually adopted as official Soviet policy. Fisher elaborated on and generalized those insights in his 1988 book
(with Scott Brown) Getting Together: Building Relationships
as We Negotiate.
In the late 1980s, Fisher pursued peace in Central
America. Talks with President Oscar Arias of Costa
Rica led to helping Arias tweak the proposed Esquipulas
StoriesaboutRogerFisher
Andrea Kupfer Schneider graciously agreed to share
excerpts from her forthcoming article about Roger
Fisher to be published in Negotiation Journal.1
Andrea is a professor at Marquette Law School
and co-authored Beyond Machiavelli and Coping
with International Conflict with Roger Fisher.
On meeting Roger
I remember the first time that I spoke to
Professor Fisher. I was nervous. He was big in
height and even bigger in reputation. “So I understand that you are to be my research assistant,”
he said, and then smiled, with that well-known
crinkle in his eyes. My fears about working with a
celebrated professor were unwarranted; Roger was
approachable, warm, and insisted upon being called
by his first name. The second sentence he uttered,
though, was a sign of how he operated. “Well, let’s
get started – there’s work to be done.”
On using headings to tell a story
and using stories to make a point
Roger also used headings to help tell his story:
each of his books has headings that can stand
on their own. Like headlines in a newspaper, the
headings should be able to tell the whole story. He
stressed the importance of a clearly organized book,
with organized chapters, and organized headings. If
the organization could tell the story, he believed,
the text would be easier to fill in. Furthermore, his
headings were written in the imperative voice, as a
call to action, and not just a general explanation.
They would be purposive rather than reactive. So,
he wouldn’t write “Interests are Different from
Positions,” instead he would write, “Focus on
Interests, not Positions.”
On respecting others’ ideas
and realizing good ideas can
come from anywhere
Roger demonstrated his respect for students’
ideas in the way he organized the class “Coping
with International Conflict.” By the end of the
semester, each student was required to research and
write a proposal to a particular decision maker in a
particular conflict. The assignment included writing
an accompanying press release. Professor Fisher told
students that he would send good-enough papers
to the actual leaders. And he meant it: I recall two
proposals in particular – one calling for mixed-race
soccer teams in South Africa and another proposing
DISPUTE RESOLUTION MAGAZINE
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31
II peace framework to make it self-implementing. Later Fisher
brought government and guerilla leaders from El Salvador to
Harvard for consecutive brainstorming sessions that then led to
talks and eventually peace and official recognition for his role.
At the beginning of the 1990s, a series of earlier relationshipbuilding efforts in South Africa paid off with invitations for
Fisher and his colleagues to train and advise all parties in
advance of political talks that led to the end of the armed
struggle against apartheid and ultimately the creation of a
new constitution that initiated majority rule. Fisher suggested
the process and trained the mediators that allowed hundreds
of negotiators to reach consensus on the terms of the new
constitution.
In 1995, Fisher took on the longest-running war in the
Americas, between Ecuador and Peru, pioneering a technique
he called “facilitated joint brainstorming,” which brought
together significant players from both sides in a wholly nonofficial capacity to explore options with no authority or expectation
of commitment. The resulting optimism stimulated direct talks
between the countries’ two presidents and eventually in 1998 a
mediated peace, facilitated by a creative solution from Fisher. In
2005 Fisher captured some of the lessons of that effort in his last
book (with Daniel Shapiro), the award-winning Beyond Reason:
Using Emotions as You Negotiate.
The economist John Kenneth Galbraith once said that
whenever he saw a difficult problem, “it eased my conscience to
learn that Roger was already working on it.” Who now will ease
our consciences? u
a scheme for water sharing between India
and Pakistan — that were not only sent to
the relevant decision maker (with a cover
letter from Roger) but that were actually
implemented.
On not worrying about your
success rate
Every year, Roger explained to his students that if you ask for only one thing, a 100
percent success rate is fairly easy to achieve.
Instead, he urged negotiators to think like
baseball players and use batting averages as
a better measure of success. He pointed out
that if you ask for 10 things and get three of
them, you would still achieve a better result
than the person who had asked for only one
thing — and your batting average might still
qualify you for the Baseball Hall of Fame.
Endnotes
1 Andrea Kupfer Schneider, “Beyond
Theory: Roger Fisher’s Lessons on Work and
Life,” Negotiation Journal 29(2) April 2013.
Submit an Article to
Dispute Resolution Magazine
The Dispute Resolution Magazine Editorial Board welcomes the submission
of article concepts and drafts. The Editorial Board reviews all submissions
and makes final decisions as to the publication of articles in Dispute
Resolution Magazine.
In addition to articles on topics relevant to the field of dispute
resolution, the Editorial Board welcomes the submissions of
concepts and drafts related to the following features:
Book reviews
•Ethics and ADR
•Case law and legislative updates
•International developments in ADR
•Recent social science research
•Interviews with leading ADR practitioners, academics,
organizational directors
Email submissions to Gina Brown, editor, at gina.brown@americanbar.
org. Submission Guidelines are available on the Publications page of
the Section of Dispute Resolution web site: www.americanbar.org/dispute.
32
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D IS P U T E R E S O L U T ION MAGAZINE
SAVE THE DATE
ASIA-PACIFIC INTERNATIONAL
MEDIATION LEADERSHIP SUMMIT
HONG KONG, CHINA. OCT. 31–NOV. 2, 2013
Songquan Deng / Shutterstock.com
Building on the success of its first international mediation summit held at the Peace Palace in The Hague, the Dispute
Resolution Section of the American Bar Association, in collaboration with a number of cooperating organizations, will
be convening the Asia Pacific International Mediation Leadership Summit in Hong Kong from October 31 through
November 2, 2013. A welcome reception will be held the evening before the Summit opens on October 30.
The Summit is expected to draw leaders from North America and numerous other countries in the Asia Pacific Region
to learn and collaborate with respect to innovation and development of dispute resolution processes for resolving
conflicts including, but not limited to commercial and contractual disputes in a global economy.
Hosted by the University of Hong Kong Faculty of Law in its
splendid new Centennial Campus setting, the program will
feature leading practitioners, leaders of both established and
emerging ADR institutions, academics, government officials,
judges and others involved in forging the emerging global
dispute resolution profession.
Optional pre- and post- conference travel extensions
will also be offered to Vietnam, Bangkok, and Beijing.
For more information go to
www.americanbar.org/dispute.
DISPUTE RESOLUTION MAGAZINE
W IN T ER 2013
33
ADR Cases
By J.D. Hoyle
FAA Requires Arbitrator to Decide Validity of a
Contract in the Presence of a Valid Arbitration
Agreement
In Nitro-Lift Tech LLC v. Howard, 133 S. Ct.
500 (Nov. 26, 2012) Nitro-Lift issued a demand for
arbitration to two former employees claiming breach of
noncompetition agreements that had been signed as a
condition of employment. The employees brought suit
seeking to have the noncompetition agreements rendered
void under Oklahoma state law. The trial court dismissed
the complaint, holding that a valid arbitration agreement
exists and that an arbitrator, not the courts, must decide
the validity of the contract. The plaintiffs appealed.
The Oklahoma Supreme Court reversed, holding that
noncompetition agreements were null and void as against
public policy in Oklahoma.
The United States Supreme Court reversed, holding
that it is well established under the Federal Arbitration
Act that arbitration agreements are severable and are
subject to judicial review, but the validity of the underlying contract is for the arbitrator to decide. To read more,
go to http://www.supremecourt.gov/opinions/12pdf/
11-1377_3e04.pdf.
Purpose of FAA Would be Frustrated by
Compelling Arbitration After Trial
In Gutierrez v. Wells Fargo Bank, No. 10-16959, __
F.3d __ (9th Cir. Dec. 26, 2012) the plaintiff filed a class
action suit against the defendant alleging unfair business
practices. The contract between the parties contained a
permissive arbitration clause that allowed the parties to
choose litigation over arbitration. After a full trial on the
merits in which neither party requested arbitration, Wells
Fargo Bank appealed an adverse judgment, sought to
compel arbitration and claimed its right to arbitration did
not mature until after AT&T Mobility LLC v. Concepcion,
131 S. Ct. 1740 (2011).
The Ninth Circuit, noting the effect of Concepcion
on a judgment after appeal as an issue of first impression,
held that Wells Fargo Bank waived its right to seek
arbitration after five years of litigation. Acknowledging
the ambiguity in the defendant’s pre-trial right to compel
arbitration, the Ninth Circuit nonetheless found the
extreme prejudice to the plaintiff to be determinative.
Furthermore, it held, sending this case to arbitration
post-appeal would frustrate the purpose of the Federal
Arbitration Act by causing further delay and expense.
To read more, go to http://cdn.ca9.uscourts.gov/
datastore/opinions/2012/12/26/10-16959.pdf.
Implied-in-Fact Contract is Not Created by
Continued Employment When Employee is
Urged to Sign Arbitration Agreement as a
Condition of Employment
In Gorlach v. Sports Club Co., 148 Cal. Rptr. 3d 71
(Cal. Ct. App., Oct. 16, 2012) the plaintiff brought
suit against the defendants alleging multiple causes of
action. The defendants sought to compel arbitration,
acknowledging that the plaintiff never signed an arbitration agreement but asserting that she consented to it by
continuing her employment after becoming aware of the
change in company policy. The trial court denied the
motion to compel arbitration, noting that the plaintiff
did not sign the arbitration agreement.
The California Court of Appeal affirmed, rejecting
the defendant’s assertion that an implied-in-fact contract
was created by the plaintiff’s continued employment. The
court stated that California law allows for employers to
unilaterally implement policies that become implied-infact contracts by continued employment. However, when
employees are urged to sign an arbitration agreement as
a condition of employment, it is not valid unless signed
by the employee.
To read more, go to http://www.courts.ca.gov/
opinions/documents/B233672.pdf.
Arbitration Award Subject to Greater Judicial
Review Because Unwaivable Statutory Rights
Are at Stake
In Richey v. Autonation, Inc.,149 Cal. Rptr. 3d 280
(Nov. 13, 2012) the plaintiff filed suit against an employer
alleging violations of the Family and Medical Leave Act
(FMLA) and California Family Rights Act (CFRA).
The defendant moved to compel arbitration under the
employment agreement. The arbitrator issued an award
for the defendant, citing the “honest belief” defense
accepted by the Seventh Circuit. The trial court denied
the plaintiff’s motion to vacate the arbitration award,
and the plaintiff appealed.
The court acknowledged that arbitration awards are
generally subject to limited judicial review but noted that
the California Supreme Court has consistently recognized
public policy exceptions that require greater judicial scrutiny, most notably when unwaivable statutory rights are
at stake. The court determined that the arbitrator’s clear
legal error in accepting a defense not recognized under
California law effectively denied the plaintiff his statutory
right to reinstatement because it impermissibly shifted
the burden of proof to the employee.
To read more, go to http://www.courts.ca.gov/
opinions/documents/B234711.pdf.
J.D. Hoyle is a law clerk with the Section of Dispute Resolution.
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D IS P U T E R E S O L U T ION MAGAZINE
Class Arbitration Permitted Where Plaintiff
Otherwise Lacked Means to Vindicate
Unwaivable Statutory Rights
In Franco v. Arakelian Enterprises, Inc.,149 Cal. Rptr.
3d 530 (Nov. 26, 2012) the plaintiff brought a class action
suit against his employer alleging multiple violations of the
California Labor Code, including failure to pay overtime
and provide rest and meal periods. The defendant moved
to compel arbitration, and the trial court granted the
motion. On appeal, the California Court of Appeals
reversed, holding that the California Labor Code conferred
unwaivable statutory rights and the plaintiff had satisfied
the factors set forth in Gentry v. Superior Court, 165
P.3d 556 (Cal. 2007). On remand, the defendant again
moved to compel arbitration, claiming the United States
Supreme Court decisions Stolt-Nielsen S.A. v. AnimalFeeds
International Corp., 130 S. Ct. 1758 (2010) and Concepcion
overruled Gentry. The trial court denied the motion.
The California Court of Appeals affirmed, reasoning
that Gentry was not overruled by Concepcion because it
does not establish a categorical rule against class action
waivers but “sets forth factors to be considered on a
case-by-case basis to determine whether a class action
waiver precludes employees from vindicating their statutory rights.” The court further reasoned that Gentry is
consistent with Stolt-Nielsen because a class arbitration
waiver that is unenforceable under Gentry must be heard
in court as required by Stolt-Nielsen.
To read more, go to http://www.courts.ca.gov/
opinions/documents/B232583.pdf.
Admission of Confidential Mediation
Communications Harmless Error When
Other Evidence Led to Same Conclusion
of Fact and Law
The Montana Supreme Court held that the lower
court erred in admitting evidence protected under
Montana’s mediation confidentiality statute, but that the
error was harmless because the court would have reached
the same conclusion if the evidence had been excluded.
In Kluver v. PPL Montana, LLC, ___ P.3d ___, 2012
WL 6740152 (Mont., Dec. 31, 2012) the plaintiffs brought
suit alleging local power companies contaminated the
groundwater under their property. In mediation, the
parties created a Memorandum of Understanding (MOU)
that settled their dispute. After consulting with a tax
attorney, one of the plaintiffs told the other the settlement
would not be as much as they anticipated after paying
taxes and they intended to back out of the settlement.
Defendants filed a motion to enforce the agreement and
at the hearing details of the mediation were admitted into
evidence. The trial court entered an order enforcing the
agreement and the plaintiffs appealed.
The Montana Supreme Court affirmed. Although the
Montana mediation confidentiality statute prevented all
communication disclosures, including non-verbal actions
intended to be an assertion, the statute did not extend to
discussions about the mediation after the mediation had
concluded. Because there was enough evidence for the
court to make the same conclusion without the improperly admitted evidence, the error was harmless. u
Manage Your ABA Email
Preferences
Join the Section of Dispute Resolution CLE
Teleconference in March
Deception in Dispute Resolution
March 12, 2013
12:00 PM – 1:15 PM Eastern Time
The ABA’s Model Rules of Professional Conduct control the conduct of lawyers
participating in various forms of dispute resolution. If you are a lawyer, Rule 4.1
requires you to be truthful when discussing “material” facts while negotiating on
behalf of your client, but a broad range of dissembling is still permissible under
the rule. Rule 4.1 is less clear in its application to lawyers serving as mediators.
Understanding how the various rules apply to you and should be read together
will help you recognize your duties whether you are serving as a neutral or a
representative in a negotiation, mediation, or arbitration.
Moderator: Joan Stearns Johnsen, JSJ Mediations, Boston, MA
Speakers: Charles Craver, The George Washington
University School of Law, Washington, DC
Art Hinshaw, Lodestar Dispute Resolution Program, Sandra Day O’Connor College of Law,
Arizona State University, Tempe, AZ
Nancy Welsh, The Dickinson School of Law, The Pennsylvania State University, Carlisle, PA
Take control of your ABA email by visiting
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now choose one or any combination of the three
following options:
1. Receive email from their Sections, Divisions,
Forums and ABA Membership (This option
must be checked to receive the monthly Just
Resolution E-Newsletter from the Section of
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2. Receive email related to their areas of interest.
3. Reduce frequency of email.
Make your ABA email work for you. Visit the new
ABA Email Preference Center today at http://
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and password.
For registration information go to www.americanbar.org/dispute.
DISPUTE RESOLUTION MAGAZINE
W IN T ER 2013
35
Section News
2013 Award Recipients Announced
Senator George J. Mitchell to Receive
the D’Alemberte Raven Award
The D’Alemberte Raven Award
recognizes leaders in the dispute resolution
community for their significant contributions to the field. The award is named for
the late Robert D. Raven of San Francisco
and Talbot D’Alemberte of Tallahassee,
former ABA presidents and pioneers with
Senator
the ABA in the area of dispute resolution.
George J. Mitchell
Senator George J. Mitchell has
demonstrated extraordinary dispute resolution skills
throughout his distinguished career. Among his many
achievements, he chaired the Northern Ireland peace
talks that ended the historic conflict and resulted in an
agreement based on a set of nonviolent principles. As the
Majority Leader of the United States Senate from 1989
to 1995, he helped Congress find consensus on thorny
issues such as the reauthorization of the Clean Air Act
and passage of the Americans with Disabilities Act. In
2009, Mitchell was appointed by President Obama to be
the US Special Envoy to the Middle East. In these roles
as well as many others, Mitchell modeled problem-solving
strategies and skills that have averted conflicts between
nations and helped parties find innovative and lasting
agreements. In 2008, Time described him as one of the
100 most influential people in the world.
The D’Alemberte Raven Award will be presented to
Senator Mitchell at the Section of Dispute Resolution
Spring Conference in Chicago on April 5, 2013.
Professor Leonard Riskin to Receive Award for
Outstanding Scholarly Work
The ABA Section of Dispute
Resolution Award for Outstanding
Scholarly Work honors individuals whose
scholarship has significantly contributed
to the dispute resolution field. Professor
Leonard Riskin, the Chesterfield Smith
Professor
Professor of Law at the University of
Leonard Riskin
Florida’s Levin College of Law and Visiting
Professor, Northwestern University School of Law, has
helped us appreciate the radically different “philosophical
maps” used by attorneys operating in traditional adversarial
and collaborative systems. His famous “Grid for the
Perplexed” helped us appreciate the wide range of mediator behaviors and issue orientations dominating mediation
sessions, and the choices available to parties in selecting
a neutral. His scholarship draws broadly from other
disciplines, encouraging in all of us a deeper reflection on
the essence of the processes of ADR, especially in his most
36
W I NTER 2 0 1 3
recent writings about mindfulness. His scholarship has
helped create a framework for greater understanding of the
ADR field, more scholarship and improved practice.
The Award for Scholarly Work will be presented to
Professor Riskin on April 6 during the Section of Dispute
Resolution Spring Conference in Chicago.
Call for Nominations for Section
Leadership Positions
The Section of Dispute Resolution’s Nominating
Committee, which is responsible for nominating individuals for Section Council positions, seeks nominations for
the leadership positions that will be filled for the 20132014 American Bar Association year. The Nominating
Committee is now accepting nominations for four at-large
Section Council positions and three executive committee
positions: budget officer, vice chair and chair-elect.
At-large council members serve three-year terms and are
expected to participate in four quarterly in-person meetings
of the council. In addition, council members work on task
forces, ad hoc and standing committees as well as various
other projects and events. The budget officer, vice chair and
chair-elect positions have one-year terms.
To be eligible for election to these positions, nominees
must have been section members for at least one year
prior to nomination. Individuals may self-nominate or
may be nominated by others by sending a letter and brief
biographical statement no later than April 19, 2013, to
David Moora at david.moora@americanbar.org.
2013-2014 ABA Section of Dispute Resolution
Committee Leadership Applications
The Section Council is seeking applicants from section
members who are interested in taking on a leadership
role with one of the section committees.
Committee leadership in the Section of Dispute Resolution
comes with substantial benefits. As a leader, you can:
•Demonstrate your knowledge and reputation in a
substantive area of dispute resolution
•Develop leadership skills with hands-on experience
and through our quarterly committee chair meetings
•Work with a diverse group of professionals focused
on improving the profession
•Establish lasting professional relationships
•Establish national (and international) credentials as
a leader in the field
Members may apply to serve as committee chairs, vice
chairs and subcommittee chairs. The deadline to submit
an application is April 15, 2013. For more information on
committees and the online application, please visit the committee page on our website: www.americanbar.org/dispute.
D IS P U T E R E S O L U T ION MAGAZINE
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