E-News
January-February 2006
A Professional Mediator’s Resource Guide
In This Issue
President’s Message
 President’s
Message, by
Kevin Cornwell
Dear Colleagues:
 Yakima County
Employees
Mediate Contract
 Florida School
Mediation Pays
Off
 Northwest ADR
Conference, April
28-29
 Hurricane
Damage
Mediation
Program Unveiled
 Mediation Makes
Good Business
Sense
 Win, Lose or
Draw? Mediation
Takes Hold in
Florida
 British Workplace
Mediation
Reduces
Tribunals by 80%
Happy New Year!
As I write this, I am sitting in New Orleans at the FEMA Area Office where I
have the privilege of temporarily serving the organization as a Dispute
Resolution Specialist. It is said that “travel is compressed living.” If so,
travel to a disaster area and working on the disaster for 12 hours a day, six
days a week, is ultra compressed living. It leads to plenty of frayed nerves
among the workers and plenty of conflicts to resolve. My job here is
basically like being a one-person DRC, although that acronym down here
means Disaster Recovery Centers.
I am honored and humbled to be here for the month of January. It is
encouraging to be able to report that ADR has a profile out here in a disaster
zone. The devastating property and human toll is staggering. And this, a full
four months after the disaster! I am reminded of the work we collectively
are doing in our profession to make a small contribution to easing the strife
and making the interpersonal differences a little smoother. We are all
ambassadors for ADR.
So as you usher in the New Year, remember, your actions are making a big
difference. And thanks for making that difference.
Kevin R. Cornwell
President, WMA
Yakima County Employees Mediate Contract
January 20, 2006
YakimaHerald.com
A Yakima County employee union began informational picketing Thursday
outside the county courthouse as part of a contract dispute with the county.
Members of the Washington State Council of County and City Employees
carried picket signs throughout the day.
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Mediation Links:
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Editor: Darrell Puls
Additional picketing is scheduled twice each week until the union reaches a
contract agreement with the county, said Tom Barrington, staff
representative for the three locals that are part of the council.
Although members have given strike authorization, the locals are not on
strike. The units, representing about 300 county employees, have been
without a contract since the end of 2004.
"The employees are tired of waiting for the county to get off the dime,"
Barrington said. He said primary issues are wages and benefits.
The locals represent general courthouse employees, juvenile services and
county appraisers.
The union and the county are in mediation. The next scheduled meeting is
Feb. 8, he said.
Florida School Mediation Pays Off
Suspension decline after 'restorative practices' are instituted
January 20, 2006 Ann Arbor News BY CASEY HANS
Fewer students are being suspended in South Lyon
Community Schools, a feat that officials credit to
an alternative behavior program that is being tried
in at least two buildings.
Whitmore Lake Public Schools also has bought into
the program. Superintendent Scott Menzel said
there has been a noticeable decrease in behavior
problems and suspensions at all levels.
Called "restorative practices,'' the concept allows students to work out
differences using mediation, done either in a formal setting or in a discussion
"circle.'' During these sessions, which take about one hour, offenders of such
misdeeds as bullying and verbal abuse sit with fellow students they have hurt
and agree on how to handle the situation.
Locally, the program is being launched by Bill Sower, a Green Oak Township
resident, former W.J. Maxey Boys Training School teacher and owner of Safe
Successful Schools LLC. Sower said districts can have an impact by changing
the way their schools react to bad behavior and disrespect. "What we want to
do is impact the whole culture of the school,'' he said. "We don't have to
settle for a school culture of disrespect.''
After three years in a restorative practices trial, South Lyon has substantially
decreased both in-school and out-of-school suspensions, even as student
populations are increasing, officials said. The western Oakland County district
also serves a portion of Green Oak Township.
The middle school went from 1,187 suspensions in 2002-03 to 381 in 200405 and Principal Dave Phillips said that, to date, it appears that numbers will
decrease further for the current year. "The trend is continuing,'' he said. "It
really impacted the culture of our building and the incidents of destructive
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behaviors have decreased tremendously. The whole idea is a systemic look at
the school. It seems to be paying off for us.''
Phillips said the concept is used for problems in the classroom, on buses, in
the lunchroom and even in the community when troubles spill over into the
schools. "It makes a big difference in the culture of my building,'' he added.
Sower said his approach is threefold: addressing academic deficits,
specifically helping students struggling with reading; identifying students with
behavior problems who are disruptive; and use the restorative practices
method to build a sense of respect in the building.
Whitmore Lake's Menzel supports the effort. "Traditional punishment doesn't
really get to the point of achieving anything,'' he said. Restoring the balance
in school is critical, he said. "That's the kind of world we should live in.
Overall, people have left
most of these sessions
feeling like they're
accomplishing something.''
Sower was a special
education teacher at
Whitmore Lake Middle
School after leaving
Maxey, then went out on
his own to train others in
the concept. He now works
with districts that want to
reduce student
suspensions and create a
culture of respect. He is
working this month as an interim elementary principal in Whitmore Lake and
training staff in the concept.
Menzel said the program also has been effective at the middle schools and
high schools.
In South Lyon, students at Centennial Middle School and Salem Elementary
School and now at Kent Lake Elementary School currently have the benefit of
the program, which is run by Debbie Little, the district's restorative practices
facilitator.
Little used to run the middle school in-school suspension room. Today, she's
either in a formal conference with parents and students or in a "circle'' where
students talk their problems through. "It's kids taking responsibility for their
actions,'' she said. "And seeing how their actions affect others.'' Little said
those involved do a written contract and she follows up in a few days to see
how things are working out. "In-school suspensions don't do anything,'' she
added. "They create a sub-culture. We need to take every opportunity we
can to teach kids.''
Phillips stressed that the district does not take a soft approach. "We have a
code of conduct and we enforce it,'' he said. But with the new system, the
need for such enforcement is declining.
Sower said making students accountable can often be a more effective
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punishment than sending them home or taking other punitive measures. "I
know from working with juvenile offenders that many would rather take the
punishment than face the people they've hurt,'' he said. "They don't really
understand that their behavior has hurt other human beings.
"I'm talking about taking care of the needs of victims. Their needs aren't
being addressed.''
NW ADR Conference – Mark Your Calendars!
The 14th Annual Pacific Northwest Alternative
Dispute Resolution Conference sponsored by the
University of Washington Law School is set for April 28
and 29, 2006.
Thirty-seven breakout sessions are currently scheduled.
ADR luminary Kenneth Cloke, author of Mediating
Dangerously (San Francisco: Jossey-Bass, 2001) and
Resolving Personal and Organizational Conflict (San
Francisco: Jossey-Bass, 2000), will be the keynote speaker at the Saturday
luncheon, where his topic will be “Mediators Without Borders.”
California attorney Myer Sankary, is co-chair of the
Middle East Peace Network, focused on cross-cultural
relationships and identity development among Arabs,
Jews and Jews from Arab countries both in the United
States and in the Middle East. Sankary will speak from
1:00-2:30 Friday afternoon on persuasion and
mediation.
WMA Board member Darrell Puls will give a 90-minute presentation on Friday
afternoon on the benefits and empirical foundations of apology in mediation
and litigation.
The conference will be held at Gates Hall at the UW Law School. Registration
materials should be available soon. Don’t miss it!
Louisiana Commissioner Unveils Hurricane
Mediation Program
Insurance Journal, December 27, 2005
Louisiana residents whose Hurricane Katrina
or Hurricane Rita insurance claims are in
dispute will soon be offered a possible
solution at no cost to them beginning in early
January, 2006, according to the Louisiana
Department of Insurance. Commissioner of
Insurance Robert Wooley has established a mediation program through which
a neutral third party meets with the policyholder and the insurance company
in an attempt to resolve the dispute and quickly settle the claim.
Announcing the mediation program, Wooley said it is mandatory for
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insurance companies but voluntary for policyholders. He is requiring all
insurance companies in Louisiana to notify their policyholders with claims
disputes about the program, regardless of whether a check has been issued.
"One good thing about mediation is that the insurance company pays for it,
so there is no financial burden on the policyholder," Wooley contended. "Plus,
mediation is very informal and requires that no attorney be present, unless
you choose to bring one with you."
Wooley said mediation is non-binding, so neither the policyholder nor the
company is legally obligated to accept the mediator's settlement
recommendation. "Even if a policyholder accepts a settlement at mediation,
they have up to three days to change their minds as long as they notify their
insurer," Wooley added. He also said that choosing mediation does not
prevent a policyholder from participating in other dispute resolution
procedures.
The mediators being used for this program are chosen from the Louisiana
State Bar Association's approved list of mediators by the program's
administrator, the American Arbitration Association (AAA). AAA will also use
as mediators those persons who are qualified under the Louisiana Mediation
Act.
Policyholders wanting to try mediation as a possible means to solve their
disputed residential property claims can call AAA at (800) 426-8792, or they
can contact their insurance company or agent to schedule the proceeding.
AAA can also be found on the Web at www.adr.org.
Study Shows that Federal Mediation Makes Good
Business Sense for Labor and Management in
Collective Bargaining
December 2005
WASHINGTON, D.C. – The Federal Mediation and Conciliation Service
(FMCS), a U.S. government agency responsible for mediating collective
bargaining contracts, said today that research has found that the agency’s
mediation services saved U.S. businesses and workers approximately $9
billion between 1999 and 2004—a strong indicator that including a federal
mediator in negotiations makes good business sense for both labor and
management.
The study, commissioned by the FMCS to assess the impact of mediation on
collective bargaining negotiations, was conducted by the Employment Policy
Foundation (EPF), a nonprofit, nonpartisan public policy research foundation
that focuses on workplace trends. After an analysis of six years of FMCS case
data, EPF researchers determined that mediation saved $9 billion in workers'
wages and company profits. These savings come from work stoppages that
FMCS is estimated to have prevented and work stoppages that had a shorter
duration as a result of early FMCS intervention. The average annual savings
included $80.7 million in retained company profits, $640.5 million in retained
union members’ wages, and $781.8 million in retained workers’ wages
among workers in ancillary industries.
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The study also showed that early involvement by a federal mediator reduces
the duration of any work stoppage that does occur. If mediation starts before
the contract expires, work stoppage
duration can be reduced by an average of
46 percent. EPF estimates that this
reduction in work stoppages resulted in an
average annual benefit of $217.9 million.
“For every four days the parties do not use
FMCS after the contract expires, another
day is added to the work stoppage,” said
FMCS Acting Director Scot L.
Beckenbaugh. He said this finding would
be particularly helpful in encouraging parties to contact FMCS prior to
contract expiration.
“This study underscores the benefits of mediation in resolving labor disputes
for companies and employees,” Beckenbaugh said. “These findings bear out
what those of us working in the field have experienced individually over
many years, which is that mediation makes good business sense for both
sides in a dispute.”
Findings from the study will be used to educate and inform management and
labor about the benefits of using mediation to resolve disagreements during
collective bargaining and in the workplace, Beckenbaugh said. “This will
dispel the myth that a request for federal mediation by a party during
negotiations is a sign of weakness,” Beckenbaugh said. “In fact, the results of
this analysis show just the opposite—that it is the smart thing to do.”
Beckenbaugh said the agency hopes the findings will make it easier for
parties in a dispute to call for mediation. “The earlier we get the call, the
greater the opportunity to help the parties craft an acceptable agreement,”
Beckenbaugh emphasized.
EFP estimated that, without FMCS intervention, the costs of work stoppages
to the U.S. economy over a six year period would have been 71 percent
greater—$21.7 billion instead of $12.7 billion—and would have impacted 76
percent more workers, 4 million instead of 1.85 million. Without FMCS
mediation, the number of work stoppages in an average year would be 61
percent higher.
FMCS mediation prevented an estimated 1,265 work stoppages over the sixyear period and saved employees, employers and others doing business with
them approximately $1.3 billion annually in wages and profits that otherwise
would have been lost.
Since 1970, there has been a 90 percent reduction in the number of work
stoppages. In 1977, work stoppages peaked at 3,111, but only ten years
later, the number of work stoppages dropped to 921. Since then, the work
stoppage incidence rate has steadily fallen. In 2004, work stoppages were
the lowest ever, at 273.
Yet, work stoppages in 2004 had a significant impact on American companies
and workers. During stoppages, employees do not work and forgo wages.
Production lost during the stoppage directly impacts company profits. Despite
the lowest strike rate in decades, the 273 work stoppages in 2004 had a
direct impact on wages and company profits—these stoppages caused $954.5
million in lost wages and $147.9 million in lost company profits.
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Stoppages also indirectly can impose costs on companies and employees that
normally exchange goods and services with the company that is experiencing
a work stoppage. EPF estimates that the indirect impact of the 273 work
stoppages in 2004 amounted to $267.3 million in lost wages and impacted
338,643 jobs in ancillary industries.
“The study demonstrates the continued need for mediation, especially in the
most difficult situations where there are work stoppages,” said Beckenbaugh.
“This underscores the importance of FMCS’ core mission, which is to prevent
or minimize work stoppages.” Beckenbaugh explained that even a small
number of work stoppages annually can adversely impact communities,
companies and workers. “We do our best to keep that from happening,” he
said.
Beckenbaugh also emphasized that the EPF study may be understating the
true impact of federal mediation because of the very conservative
assumptions that were used in building the work stoppage impact model.
“We are asked to mediate approximately 5,000 contract
negotiationsannually, and this analysis was based on the low number in each
of the assumptions used to calculate the results. Even with such a
conservative analysis, the results are quite dramatic,” he said. “Hopefully,
the study will increase the parties’ and the public’s understanding of the
demonstrated value of mediation in labor-management negotiations.”
Source: http://www.fmcs.gov
Win, Lose or Draw? Mediation Takes Hold in
Florida
Jacksonville Daily Record, by Bradley Parsons
Jan. 16, 2006
Lawyers typically measure success in wins and losses. But in an era when
cases can cost hundreds of thousands of dollars to try and millions to lose,
attorneys are increasingly turning to mediation, forgoing the thrill of victory
to avoid the agony of defeat.
Money is just one factor driving mediation’s rise as an alternative to trials.
The approach is cooperative instead of adversarial, making it a calmer
environment to settle emotionally-charged cases involving divorce, child
custody or personal injury.
“It’s a different mindset than a lot of attorneys are used to,” said Brett Lucas,
a partner at Saalfield, Shad, Jay, Lucas & Stokes, who also has a growing
mediation practice. “Attorneys are trained to advocate, to argue their side.
But mediation forces you to understand where the other side is coming from.
You understand there are going to be differences and that you’re going to
have to work through those issues.”
Florida statutes define mediation as a process where a neutral third person
shepherds two or more conflicting parties to a resolution. Mediators for civil
cases must have five years experience practicing law and must be trained
and licensed.
According to the Florida Dispute Resolution Center in Tallahassee, mediators
reviewed more than 120,000 cases for state courts in 2001 compared to
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about 5,000 cases decided by civil trials. In Duval County, every civil trial
must first go through mediation.
Many local attorneys used to view
mandatory mediation as a formality to
get through on their way to trial, said
Jim Cobb of Peek, Cobb, Edwards &
Ashton. But firms now understand the
value of the process.
A trial is a coin flip, he said. Mediation
can help solve a complicated legal
dispute quickly, saving all parties from
the time and expense of a trial.
Sometimes, even a win at trial can be
costly when it forces both sides to relive what was often a painful ordeal.
“I tell my clients that the worst settlement is better than the best trial
verdict,” said Cobb. “It can be a very painful experience to recount the death
of a loved one or to fight over custody of a child.”
For those cases that move on to trial, mediation can still help frame the legal
issues and set a ballpark figure for possible monetary damages. Trials often
owe their eventual settlements to the groundwork laid at mediation, said
Lucas. “I think it allows a more objective analysis in cases where you’re
trying to figure out the value of pain and suffering. It can temper
expectations in a lot of situations,” he said.
With experience as both a plaintiff and defense attorney, Lucas believes he
has the ideal resume for a mediator. He looked at mediation at first as a
complement to his legal practice, but he now divides his time evenly between
them.
Lucas said lawyers are increasingly looking to become mediators. Unlike
trials, mediation doesn’t require months of preparation. The hourly rates
charged by mediators are set by the market. But a mediator in high demand
can charge as much per hour as a lawyer at a corporate firm, he said.
The key to generating that demand is credibility. A successful mediator must
have the trust of both sides. Guiding adversaries toward common ground
doesn’t work unless both sides think it’s in their best interest to follow.
“Mediation is more art than science,” said Lucas. “Sometimes you have to
push, sometimes you have to back off. The process is based on trust. Both
parties can develop trust between them if both sides trust the mediator.”
Lucas doesn’t see any down side to mediation, but Cobb has some concerns.
In his view, lawyers don’t get enough trial experience and the prominence of
mediation and settlements is a big reason why. “It is a mixed blessing. In
getting rid of a lot of cases, mediation performs a necessary service for the
state’s overworked courts,” he said. “But it’s hard to find a young lawyer with
a lot of trial experience and mediation is what’s doing it. If cases don’t go to
trial, lawyers don’t get a chance to try them.”
Law schools have recognized the shift. The University of Florida offers a class
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that puts students in a mediation clinic for a semester. The students serve as
mediators for small claims and Alachua County Court cases. Professor Alison
Gerencser said admission is competitive for the eight seats in the mediation
class. “Law students know they’re not going to be trying cases,” she said.
British Workplace Mediation Reduces
Employment Tribunals by 80%
Jan. 17, 2006
Source: http://www.niacr.org/pages/news.htm
Dispute Resolution Regulations, effective since October 2004, were intended
to reduce the instances of litigation and referral to Employment Tribunals.
Over a year since the introduction of the Dispute Resolution Regulations,
experts are asking “what has been their impact and what are the future
trends in this important new area of HR management”?
An answer is provided in new research conducted by Total Conflict
Management revealing that organisations which have used workplace
mediation have seen an 80% reduction in cases going to tribunal. Another
survey by the CIPD shows that managing conflict at work and preparing for
tribunals, costs the average employer nearly 450 days of management time
every year.
Background Information:
Dispute resolution is regarded by many as one of the biggest new issues to
hit HR in over a decade. The Government has shown particular interest in
this area and is encouraging the growth of dispute resolution and workplace
mediation within UK organisations. The recent, Mediation Week, sponsored
by both the Department for Constitutional Affairs and Her Majesty’s Court
Service, is testament to the Government’s growing commitment.
Sarah Veale, Head of Equality & Rights at the TUC, speaking in advance of
the conference said that: "The TUC supports the concept of mediation and
welcomes this conference. Union officials and representatives spend a
significant part of their time trying to resolve disputes that arise in the
workplace. Involving a union in mediation will ensure that employees feel
that the process will be fair to them".
David Liddle, Founder and Director of Total Conflict Management commented
recently: “In my ten years as a specialist workplace mediator, I have
witnessed first hand the negative impact of workplace conflict. With nowhere
to turn, employers and employees tear their hair out (and sometimes each
others!) when they are faced with a fall-out at work. Unresolved workplace
conflicts are extremely damaging and are an unspoken reality for many
organisations. In response, mediation is proving to be one of the most
effective tools for resolving long standing and often highly charged workplace
disputes. As a mediator, I listen to all sides before bringing disputing parties
together to help them as they reach a mutually acceptable outcome”.
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