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Why We Should Care About Civil Mediation

August 14, 2016 By T.S. Oliver

Why should anyone who is not in the legal profession or the mediation business care about alternative dispute resolution? Here are few reasons why everyone should get to know this kind of conflict management. But first, let’s take a look at what mediation is…and isn’t.

The American Bar Association gives us this mediation definition:

“Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.   Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired.”

The bottom line – mediation gives parties equal footing in the resolution of their dispute. And most mediation is the result of a court order, making ADR a great alternative than going to court. Rather than have a judge or an arbitrator hand down a judgment, ADR by a professional mediator focuses on exploring the issues that led to the dispute and finding areas of agreement that are going to last.

Mediation is not Arbitration. Arbitration is basically like hiring a private judge. Here’s a brief video on the difference between mediation and arbitration provided by the Indiana State Courts:

http://youtu.be/KLdia39awl0

Here are four reasons you should consider mediation before you (or your attorney) file a lawsuit:

  1.  Mediation resolves your problems…now! The U.S. legal system is built to drag litigation on. This is, in part, because of a lack of staff and resources. But is also because our legal framework assumes that there is an imaginary battle of opposing forces. There is the good versus evil, the innocent and the guilty. Court is about adversaries and is designed to find guilt. But civil cases that go to court often are more complex.
  2. Mediation costs are much, much lower than litigation. At around $250 per hour, mediation can settle disputes in one day, and often in one morning. Think five hundred dollars or a grand is a lot of money to settle a dispute? Think about how much work the disputant’s lawyers will but into a case that could last a year or more. They bill at $300 per hour and up. Mediation saves all those legal fees, which is why many lawyers fear mediation. And value of saving sleepless nights…priceless.
  3. Mediation, by nature, collaborative. Beyond the resolution of legal conflict, mediation gets to the core of differences between the interested parties. Most times, conflict is about something other than what is in dispute. In mediation these are called “underlying issues.” Think about divorce mediation or dispute resolution between partners in a small business. Is the problem really about who gets the blue couch? Trained mediators get to the heart of the dispute and find core issues.
  4. Mediation goes beyond courts. All the mediation techniques that work in heading off lawsuits also work outside of the legal system. Alternative dispute resolution methods are used in corporations, non-profit organizations, governments and in international diplomacy.

Now the trick is to convince attorneys that mediation’s benefits outweigh all those billable hours. And if you are an attorney who understands the value of mediation, the trick is to find trained mediators who will follow its best practices.

Private Dispute Resolution Service offers mediation, mediation training and conflict resolution services to those who want to manage conflict in their legal affairs, their organizations and their lives.

 

Filed Under: Forum, Front Page, News

Understanding Tennessee Rule 31

December 23, 2014 By T.S. Oliver

We are lucky to live in Tennessee, where the State Supreme Court provides guidance for Alternative Dispute Resolution. We are even more fortunate that our state has a strong provision for mediation–a way for disputing parties to settle their conflict out of court in a way that passes legal muster and has staying power.

Let’s take a closer look at Tennessee Supreme Court Rule 31 (you can read the full text here) and what makes it good for those in a dispute.

First, Rule 31 defines mediation as “an informal process in which a neutral person conducts discussions among disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute” (Section 2 (i)).

Second, it’s important to note that Rule 31 applies only to mediation as a result of civil or domestic court cases. Conflict resolution outside of these proceedings (i.e. organizational dispute resolution and other non-legal conflict management) can be handled however the parties wish. However, Tennessee’s mediation requirements are so robust that they can, and should, be used as a guide for non-civil conflict resolution.

To mediate cases referred by a court in Tennessee, the mediator, or Neutral, must be Tennessee Supreme Court Rule 31 Listed and in turn adhere to the standards set forth in TSC Rule 31.

These include standards such as maintaining confidentiality of all dispute resolution proceedings except where required by law to disclose, maintaining impartiality and promoting a balanced process and ultimately assisting the parties in reaching an informed and voluntary settlement.

Tennessee’s (ADR) rule also provides for simplicity. The neutral need only file a report stating that the matter was or was not resolved. In fact, the Supreme Court rule requires that the mediator’s report only state this condition along with the names of the parties. No other details about the settlement are allowed.

If you are in a dispute and you need confidentiality. Mediation under Rule 31 is key.

But what really makes Tennessee’s mediation law powerful is that it gets to the heart of what conflict resolution really is. In doing so, it requires that the mediation process be guided by the parties involved. If the parties mutually create and agree upon the terms of a resolution to their problem, it is very unlikely that they will be back in conflict anytime soon. It is then the mediator’s job to make sure that the terms of the resolution pass legal muster. That means that each mediation results in a contract (not disclosed to the court) and that this contract be a binding agreement, keeping the parties out of court again.

We can thank a very strong Supreme Court Rule for making ADR a preferred method of civil and domestic dispute resolution for Tennesseans.

 

Filed Under: Forum, Front Page

Mediation Can Heal Social Conflict

December 23, 2014 By T.S. Oliver

The recent and ongoing controversy over race profiling and inequitable treatment of African-Americans under the law raises so many questions about the American legal system’s ability to be color blind. Protesters in many U.S. cities now carry signs on which slogans draw attention to inequality in the enforcement of the law. In my own city, Chattanooga, signs held by protesters read “Indict the System.” Though it is hard for us to imagine how one would indict a system that provide us with the act of indicting itself, this sentiment points to an important move toward resolving disputes.

As a practitioner of Alternative Dispute Resolution, indicting the system is exactly what we do every time disputants come to our mediation room.

Our legal system is based upon the idea that guilt (in the criminal sense) or fault (in the civil sense) to  one person or one side in the dispute. It then falls upon the prosecution, or the claimant, to build a story about their absolute righteousness. In that story, the other side is portrayed as less than deserving of equal treatment. The claimant, or in criminal cases, the prosecution, must tell a story in which they have come to harm by a demoralized, dastardly perpetrator. The other side must contend that the claim is morally unsound — it is made for political reasons, or the investigation was flawed, or the witnesses in support of the claim were untruthful, and on and on.

In the investigation of the Michael Brown case, the indictment hearing for Ferguson, Missouri Police Officer Darren Wilson included details about the officer’s mother’s criminal history as well as Michael Brown’s alleged delinquencies.  It included all kinds of details woven into a narrative to make both sides appear either good or evil.

Our legal system’s “winner-takes-all” approach to dispute resolution encourages this type of positional bargaining in both criminal and civil cases. The system creates a game board on which one side must win and another must necessarily lose. These stakes make dispute resolution in courts expensive and never-ending.

It also reveals the filters — or cognitive biases — that everyone carries with them throughout their lives. Race is a cognitive filter, so is social class. Was either party to the tragedy in Ferguson the result of bad parenting? Was it white vs. black? poor vs. poor? Government vs. citizen? Citizen vs. criminal? All of these categories are abstractions that we use to filter the events we perceive so that we can find meaning in them. So that we can, for ourselves, find the right side of the moral scale.

The lesson from alternative dispute resolution is that basing our judgments of us vs. them will lead to more conflict rather than resolution. A trained collaborative mediator would assume that both parties play a part in a dispute. And that resolution would require that we look at that dispute as a relationship that must bring forth the terms of its own resolution.

Mediators ask: given that both parties are part of this dispute, what does resolution look like to them and in their own words?

Mediators challenge notions of guilt as well as cognitive filters. These abstractions have little place in true dispute resolution.

The legal system, at its foundation, engenders conflict between two opposites. Mediators then spend a lot of time building trust and opening lines of communication that were broken down by the traditional adversarial approach. What if we didn’t walk around on the street with an us vs. them mentality in the first place? In conflicts what if parties were given an opportunity to better understand one anothers’ position in a confidential setting and to find the true human needs behind the demands for money, objects, and retribution.

In civil cases, this is what alternative dispute resolution provides: a confidential setting in which parties mutually provide the terms of resolution to their dispute. This terms are then written into a contract that the mediator ensures passes legal muster and has staying power.

The practice of alternative dispute resolution pertains to civil law cases but the premises of mediation upon which ADR is built can address much broader conflict.

 

 

 

 

 

Filed Under: Forum

Carol Berz Receives Tennessee Human Rights Award

September 19, 2014 By T.S. Oliver

On September 19, 2014, the Tennessee Human Rights Commission presented the Jocelyn D. Wurzburg Civil Rights Legacy Award to Dr. Carol Berz, President of Private Dispute Resolution Services in Chattanooga, Tennessee. The award was presented at the Commission’s regular meeting in Nashville.

The award recognizes lifelong work toward the principles of inclusion, equity, equality, access and diversity. In a letter to Dr, Berz, who is President of Private Dispute Resolution Services, THRC Executive Director Beverly Watts acknowledged Berz’s “dedication and leadership in cultivating more inclusive and equitable communities.”

The award will coincide with the release of the 2014 State of Human Rights in Tennessee Report by the Commission.

If you are in Nashville on September 19, please join Dr. Berz as she is recognized by our state’s human rights governing body. The commission is located in the William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue in Nashville.

Filed Under: News

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