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The Joint Alternative Dispute Resolution Committee has worked since 1986 to further the many forms of ADR in Virginia.

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Take-Aways from JADRC's May 2018 'Effective Advocacy in Mediation' Teleconference

Posted By Claudia Farr, Monday, August 13, 2018

By Claudia Farr

I had the good fortune to listen in on the Joint ADR Committee’s May 9 mentoring teleconference geared to young lawyers, with moderator Julie Hottle Day and panelists Donita King and the Honorable Stanley Klein. Here are some take-aways from their outstanding discussion on representing clients in mediation:

  • Become well-versed in ADR – you need to understand ADR options in order to explain them to your client, which is a lawyer’s ethical responsibility. See Rule 1.2 and Comment 1 of the Virginia Rules of Professional Conduct and VSB’s Serving the Client Through Alternative Dispute Resolution.
  • You may want to do a little discovery before recommending mediation to your client. However, you don’t necessarily have to wait until all discovery is complete to adequately assess a case.
  • Whether you need formal rather than informal discovery before mediating depends on your case. For example, a regulatory case may need formal discovery, a child custody case may not.
  • With insurance cases, the earlier you mediate, the more willing a carrier may be to settle. If you wait too long, the carrier may have already paid much of its reserve in litigation costs.
  • In choosing a mediator, choose one with the strengths you need. For example, does the case need someone who can relax the parties? To offer an evaluation? Both?
  • Creating an environment to build rapport is key – location, set up, session length, breaks, lunch, and comfort are all important. And don’t forget to take the other side into consideration too.
  • To avoid fatigue and stay on your “A” game, avoid marathon mediation sessions, especially in family law cases, where no more than a half-day session at a time may be best for the parties.
  • Some mediators like having a pre-mediation call with everyone on the phone to discuss logistics, followed by confidential one-on-one calls with each attorney, without clients or opposing counsel, to get a deeper understanding of case dynamics.
  • Consider the value of joint sessions, in addition to caucuses. Joint sessions allow the parties and the mediator to get on the same page regarding the mediation process.
  • Prepare your clients for mediation. Discuss the emotional drivers as well as the numbers. Prepare them for the process, where patience may be the most important thing to bring into the room. Prepare them for reality -- what expectations are reasonable, and those that are not.
  • Let your clients talk. Mediators like to hear from them as well as from their lawyers.
  • Outside parties at the mediation can serve a positive role. Your client’s trusted family member or friend could be more objective than the client. An outside expert’s input could provide additional objectivity.
  • Mediation confidentiality is crucial. All outside parties must be agreed upon by all parties to a claim or dispute. All outside parties must sign the mediation consent form as well, and adhere to its confidentiality provisions.
  • Mediated agreements are generally drafted by the parties’ counsel, sometimes after signing bullet points at the mediation table for the purpose of creating a formal agreement later.

Great tips and insights all. And please share your own thoughts on effective advocacy in mediation. Whether you are a lawyer, client, mediator, or any combination thereof -- post a comment!

Tags:  clients  discovery  Donita King  joint sessions  Julie Hottle Day  logistics  mediator  outside parties  rapport  Rule 1.2  Serving the Client Through Alternative Dispute Res  Stanley Klein  Virginia Rules of Professional Conduct 

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Coming Soon to an Appellate Court Near You ...

Posted By William H. Shewmake, Tuesday, July 10, 2018

By Will Shewmake

I want to let readers know about a new pilot appellate mediation program that that will become effective on January 1, 2019.

Few cases on appeal in Virginia appeared to be settling, and the Joint ADR Committee Council thought a need may exist for an appellate mediation program that could help facilitate alternative resolutions crafted by the parties instead of leaving them at the mercy of an often-all-or-nothing appellate court decision. To explore the possibility of an appellate mediation program, the Joint ADR Council reached out to Chief Justice Lemons, who in turn requested that the Council study the issue and report back to him with specific recommendations. The Council’s Chair, Deborah Blevins, established a committee for the task, and she recruited many of the “players” in the appellate field, which included Justice Millette, Judge Russell of the Court of Appeals of Virginia, experienced appellate attorneys, and mediators, including Sally Campbell with the Division of Dispute Resolution of the Office of Executive Secretary.

The Committee decided that while the appellate courts’ docket loads may not necessitate a mediation program, such a program could provide an invaluable service to litigants in helping them resolve disputes using certified mediators who bring to the table considerable appellate experience. Appellate practice and the standards involved are far different from trial litigation, and for those unfamiliar with the appellate process, it can sometimes be difficult to evaluate a case on appeal. Trained appellate mediators could therefore help litigants make informed decisions about whether and how to resolve their disputes, thereby potentially decreasing their costs, and assisting them in resolving disputes on their terms, not terms handed down by the court.

The Committee then concluded that it would be best to recommend a pilot program, which would let the courts assess the success (or failure) of the program, and whether the program should be expanded or modified in some form or fashion. The Committee unanimously agreed that: 1) any program needed to be voluntary; 2) given the unique nature of appellate litigation, it was important that the mediators enjoy considerable appellate experience either as a jurist or appellate advocate, and 3) parties were more apt to opt for mediation if they were advised by the court of the program and the appellate process was stayed for a period so the parties could avoid substantial costs while they explored mediation. The Committee’s recommendations were warmly received, and the Supreme Court of Virginia approved a pilot appellate mediation program effective January 1, 2019, largely based on the Committee’s report, with some revisions. The Committee’s recommendations to create a new appellate mediation certification and to establish certain criteria for obtaining that certification will be presented to the Judicial Council this fall.

I encourage you to read the full report of the Committee at this link, but here is the condensed version:

In the Supreme Court of Virginia, after a petition for appeal is granted in a case where all parties are represented by counsel, the Clerk would send a letter to counsel, advising them of the program. If all parties notify the Clerk in writing within 14 days that they intend to mediate, all deadlines are then suspended for thirty days, except for statutorily required appeal bonds. With the letter, the Clerk would also provide a list of certified appellate court mediators (assuming the Judicial Council approves the appellate mediation certification), while emphasizing that the litigants are free to use any mediator of their choosing.

In the Court of Appeals, upon recording the record in a domestic relations case that qualities for the program, the Clerk would notify counsel of the program, and the proceedings would likewise be stayed for thirty days if all parties within fourteen days notify in writing the Clerk of their intent to mediate. Only issues involving equitable distribution and/or attorneys’ fees qualify for the Court of Appeals’ program, and the Court of Appeals program, like the Supreme Court program, is limited to cases in which all parties are represented by counsel.

Because the Committee believes that a certified appellate mediator should possess considerable appellate experience in order to facilitate a constructive dialogue about the issues that may impact the possible outcome of a case, the Committee has recommended that a certified appellate mediator possess substantial appellate experience in addition to undergoing a 22-hour mediation training course. The Committee’s recommendations to the Judicial Council that an appellate mediation certification be established and the criteria that should be adopted for obtaining that certification will be considered by the Judicial Council later this year.

I know the Joint ADR Council would appreciate your thoughts on the pilot program as well as the proposed training and experience necessary to become a certified appellate mediator.  I also ask that you seriously consider using the program if you have an appellate case because your feedback is important as we move forward with the pilot program.

Tags:  appellate mediation  Joint ADR Committee Council  pilot program 

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It Takes A Committee

Posted By Claudia Farr, Friday, May 4, 2018

Some of the best guidance I received as a young associate came from the late David F. Peters, a former partner at Hunton & Williams, with whom I had the pleasure of working. Dave was not only a brilliant lawyer – he was also deeply committed to giving back to the greater community through pro bono service and active membership in service-oriented organizations. He introduced me to both, much to my benefit. He let me know that in his experience, working with others to solve problems and achieve common goals is one of the most rewarding things in life. That has remained true for me, and I think for many of us, particularly within the Joint ADR Committee.

Within our committee, members can be collaborative innovators. We float ideas in meetings, articles, and/or blogs. Those ideas later take shape through continued research, thinking and discussion, then often, with the help of external partners, sponsors, and volunteers, bloom into reality. Now that’s a rewarding process and achievement, and it takes a committee that connects!

In that regard, I am particularly struck by Judge Annunziata’s article, “Shaping ADR’s Future: Views from the Mid-Atlantic Global Pound Conference,” appearing in the 2018 spring edition of our newsletter, Virginia ADR. In it, she invites us, in light of that Conference’s findings, to continue to strengthen the dispute resolution practice in Virginia and to develop among bar members a “new range of skills and strategic Advisors”1 to prevent and resolve problems for clients. There’s the idea – and together our committee can help shape the future of dispute resolution in Virginia. Let’s make a difference!

Notes

1. Quoting Jeremy Lack, "A Summary of The Preliminary Global Pound Conference (GPC) Data In 2016: Trends And Themes, International Mediation Institute" (IMI) 2017.

Tags:  collaborative innovators  David F. Peters  Global Pound Conference  Hunton & Williams  International Mediation Institute  Jeremy Lack  Judge Annunziata  Virginia ADR 

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To Opine Or Not To Opine - That Is The Question

Posted By Deborah Blevins, Monday, April 16, 2018

How do we balance the core principle of self-determination with the mediation style of Neutral Evaluation? In practice, this is the hardest line for me to walk as a mediator. And I wonder – how do other people handle it?

In my opening remarks, when I go over the two styles of mediation offered in the mediation consent form, I usually try to distinguish those styles by saying something like this:

“Do you want to know what I think? There is a way to mediate where I never say what I think. If we are not all together, I will just take your own ideas and arguments back and forth to each other. That is Neutral Facilitation. In Neutral Evaluation, I do that, but I also will tell you what I think, to the extent you want to know. Sometimes people ask me questions based on my experience, like how long might something usually take? How much does it usually cost? How are other cases like this settled? And if I can answer based on my experience I will. But if I tell you what I think, it is not binding on you in any way. It is just my opinion, and you don’t have to listen to it. I’m only always right when I’m at home, anyway.”

And then everyone laughs, and we go on. But in the middle of the mediation, in the hard part of helping parties negotiate a deal, I sometimes feel the weight of influence on my shoulders. If I let it slip off me and onto the parties, I fear I have done them a disservice. So, I say again: “Remember, you don’t have to listen to me. This is up to you.”

What are your experiences as a mediator, or as an attorney or party participating in a mediation? Have you seen this done well? Not so well? Please share your stories.

Tags:  mediation  mediator  Neutral Evaluation  Neutral Facilitation  self-determination 

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Mediator Self-Reflection

Posted By Sally Campbell, Thursday, March 1, 2018

I understand anecdotally that “self-reflection” can benefit almost anyone who wants to improve his or her work, from lawyer to golf pro to dog trainer. What specifically does it look like for the mediator? I’ll toss out the paragraphs below as a starting place. Is self-reflection a lot more complicated than this? Is it simpler? Is there one set of instructions for novice and master alike? Does the novice need a written list of theories and principles to assist in self-analysis? I would appreciate your thoughts.

  1. Become a mediator:
  2. Learn the mediation process: hear the theory, memorize the process and grapple with the skills. Mimic the experts. Practice with a mentor. Ask open-ended questions. Paraphrase, summarize, reframe.

  3. Pause there:
  4. Mediate in a routine fashion, making the same decisions and interventions that worked (or didn’t) last time. Do what you saw the experts do, even if you’re not sure why they did it. Be competent running the process, but not a master or artisan.

  5. Seek continual improvement (this is the self-reflection part):
  6. Practice deliberately, with an eye toward improvement. Be open to new ideas. Be curious. Be alert, sensitive and engaged in your practice, willing to try new things. Read. Talk to mediators you respect. Examine, challenge and evaluate your knowledge and skills.

    What happened in a mediation that made you intervene? Evaluate the results of your action. Examine the mediation theories and principles behind it. Does your investigation reveal options for change and improvement? What change will you make? Write down your thoughts. Keep a journal. Seek to understand why interventions worked or didn’t.

    For example:

    Why did I do “A”? How did the parties react? What would’ve happened if I had done “B” instead? Would that have worked better or worse? Why? What mediation theory or principle supports “A”? “B”? What do I need to do or learn to be prepared to replicate “A” or try “B” next time?

    To start the self-reflective journey, The Making of a Mediator (Michael Lang and Alison Taylor) is a great resource. I wished I’d had time to read more Ellen Langer (The Power of Mindful Learning, etc.) than just a review. Virginia mediator Jeannette Twomey, creator of the Mediator Peer Consultation program and founder of Mediate Virginia, is a rich resource and passionate advocate for mediator self-reflection.

     

Tags:  continual improvement  Jeannette Twomey  Mediate Virginia  mediator  Sally Campbell  self-reflection  The Making of a Mediator  The Power of Mindful Learning 

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What Was DRS Thinking?

Posted By Sarah P. Campbell, Thursday, January 4, 2018

Mediator Recertification Rules Revisions

By Sally Campbell
Dispute Resolution Services Manager

This past fall the Judicial Council adopted revisions to the recertification rules for certified mediators. DRS spent the previous year and a half vetting potential changes with certified mediators and statewide mediation entities.

It’s that vetting-with-the-mediators part that got a little hairy.

In 2016, when DRS proposed dropping the “mediate 5 cases in 2 years” recertification requirement, it had been around for decades. Every recertification cycle, mediators grumbled about case documentation. Experienced mediators suggested experience-based waivers and didn’t want to let go. From DRS’s perspective, no one liked it much.

But mediator response to our suggestion gutted that point of view. They said, “Hey, you have to practice to be a good mediator!” and “It’s not fair -- people could get the certification credential and stay credentialed, but never need the same experience as those of us who mediate a lot.” Didn’t DRS see that this weakened the value of mediator credentialing and certification?

No, not at all. Practice the craft, for sure. But, given the privacy barrier surrounding mediations, consider what points to good mediator skills or poor mediator skills. Research shows extensive experience does not necessarily equal expert performance. Practicing poor skills over and over maintains poor skills, meaning quantity of mediations isn’t necessarily a measure of quality. By all means, practice. But add these to your practice if you haven’t: seek feedback from mediators you respect; reflect deliberately on your work; co-mediate; read; join or create a peer consultation group. Practice deliberately with an eye toward improvement.

Want to distinguish yourself from other certified mediators? Maybe the outside world does equate quality with quantity. Market yourself. Dangle that number of cases you mediate out there where potential clients can see. Entice them with your long history of certification.

What was DRS’s thinking, then, with this proposal? Here are the insights that drove it:

  1. Few, if any, regulated professions (mediation is a profession, yes?) require proof of experience for continuing credentialing (think lawyers, doctors, hair stylists, pipefitters). What is it about the mediation profession that mediators should be more scrutinized?
  2. The Standards of Ethics bars mediators from serving if they cannot do so with competence. Proving 5 cases mediated in 2 years comes in a poor second to outright competence.
  3. Quantity of practice doesn’t necessarily correlate to quality.
  4. Recertification requirements should be meaningful.

A final few thoughts on the case requirement. If dropping it leads to more uncertified mediators becoming certified, maybe that means more mediators will be well-trained, which would only reflect well on the profession. The credentialing gives parties a mechanism to report poor mediation practices, protecting the public and bolstering public confidence in mediator certification. It also gives mediators in Virginia remarkable statutory immunity. Wins for the public and the mediator, all the way around.

(For information on other revisions to the recertification requirements, see page 5 of the Joint Alternative Dispute Resolution Committee's Winter 2017 edition of Virginia ADR.)

Tags:  craft  Dispute Resolution Services  mediator skills  mediators  practice  recertification  rules revisions  Sally Campbell  Standards of Ethics  Virginia ADR 

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Consider ADR, Regardless of Where the Dispute Arises

Posted By Administration, Monday, November 20, 2017

By Joseph W. Milam Jr.,
Judge, 22nd Judicial Circuit

As a judge who sits in a predominately rural circuit, I routinely encounter lawyers who demonstrate patience, civility, and tireless dedication to their clients. These traits make such lawyers naturals for ADR. Despite this, I am concerned that not all lawyers in rural areas are inclined to pursue ADR.

Some lawyers tell me that their clients want, and expect, their day in court. A lawyer has to be responsive to her/his client, but perhaps such a sentiment ought to be probed further to discern what the client is really saying. Is the client interested in a courtroom, or is she/he more interested in having an opportunity to be heard? In either event, ADR cannot be summarily dismissed. ADR sessions can be conducted in a courtroom-type setting. If a client wants an opportunity to vent, many note that ADR actually enhances the ability of stakeholders to have their say.

Although most lawyers acknowledge the efficiency with which disputes can be resolved by ADR, as compared to traditional litigation, I have heard other lawyers express the concern that unless finality is assured, ADR will delay a trial and increase costs. The success of ADR should not be measured solely by whether or not a final disposition is obtained. In the course of ADR, creative lawyers might resolve an insurance coverage issue or a disputed defense, or reach an agreement limiting a trial to liability only (with stipulated damages) or limiting a trial to damages only (with stipulated liability). Such partial resolutions may significantly reduce costs and expedite a trial. They may also reduce or even eliminate appeals. ADR affords stakeholders an opportunity to see and better understand the other side of the dispute. This alone can be productive as far as promoting an agreed disposition.

Virginia’s courts remain willing and able to conduct trials, and adjudicate disputes. Good litigators know how to navigate the judicial system, and to represent their clients in court. They also know that ADR should also be considered as a means of resolving clients’ disputes, regardless whether the dispute arises in the boardroom or the cornfield.

Tags:  ADR  judge  Judge Joseph W. Milam Jr. 

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Mentee-Mentor Opportunities Matter in ADR

Posted By Claudia Farr, Thursday, October 12, 2017

Jeanne Franklin posted great comments for our consideration a few weeks back on diversity in ADR and access to justice.   Thanks Jeanne!  

On the mentoring topic, I agree that a focus on developing more opportunities for mentor-mentee relationships would be useful.  As in law and countless other fields, real, meaningful mentoring can make a profound difference in an individual’s ADR career path.  Many if not all of us can all remember mentors, formal or informal, who took us under their wing at some stage in our careers.  These people listened to us, advised us, challenged us, and inspired us.

In Virginia, certified mentor-mediators provide feedback and coaching to mediator certification candidates through mediation observations and co-mediations.  This presents one of the first opportunities for an emerging new mediator to learn from a more-experienced mentor not only how to mediate, but perhaps also how best to network, learn from peers, and market their practice once certified, among other things.  A little inspiration can also emerge.  

Once a mediator is certified, the usefulness of mentoring does not end.  Even in mid-career, the value of having a mentor, not necessarily a certified mentor-mediator at that point, can take an individual’s ADR practice to the next level.  So yes, let’s consider how best to encourage and enhance useful mentee-mentor relationships, formal and informal, throughout a new practitioner’s ADR career. 

At the Joint ADR Committee’s September 25, 2017 Symposium, I saw a large training room full of potential mentors, of all ages, some perhaps already paired with mentees through a law practice, ADR practice, or both.  How can we carry forward the wisdom of that room and Virginia’s larger ADR community to new and mid-career practitioners?  And, as Jeanne queries us in her post, how could we expand our role in outreach and recruitment of persons we see as potential valuable mediators in the communities where we practice?  Some things to consider. 

Tags:  ADR  mentee  mentor 

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Diversity in ADR: How Can We Achieve This?

Posted By Claudia Farr, Thursday, August 31, 2017
Updated: Thursday, August 31, 2017

Earlier this summer, I shared some thoughts on the positive impact that a diverse pool of neutrals can have on ensuring access to justice.  Several of you posted insightful comments about your experience in serving diverse parties, hopes for expanding the pool of neutrals to include diverse providers, and the call for ADR consumers, particularly in-house counsel, to make a conscious effort to keep diversity in mind when choosing neutrals. 

Now the question is this:  how can the Virginia dispute resolution community best encourage and develop an expanded pool of neutrals, one that is strong, diverse, and responsive to the needs of consumers?  

Organizational partnerships could be part of the answer.  Here’s one example at the national and global levels.  The International Institute for Conflict Prevention and Resolution (CPR) now partners with the Leadership Council on Legal Diversity (LCLD) and the Financial Industry Regulatory Authority (FINRA).  As CPR’s President and CEO Noah Hanft wrote in his March 20, 2017 article “Making Diversity Happen,” this partnership combines LCLD’s Fellows Program, FINRA’s arbitration training, and mentoring and networking with CPR neutrals with “the goal of getting diverse neutrals included on rosters offering actual paid work opportunities.”  Interestingly, Virginia’s own Robert J. Grey, Jr., a lawyer, mediator, state bar leader and former ABA president, is the first President of the LCLD.

Could state-level organizational partnerships help diversify the pool of experienced mediators and arbitrators in Virginia?  If so, what might that partnership look like?

What can ADR stakeholders (mediators, arbitrators, ADR provider organizations, in-house counsel, law firms, the judiciary) do to promote more inclusivity in ADR?

What are your thoughts -- let’s hear them!

 

If you'd like to read more about diversity in ADR, these articles helped my understanding of this important issue:

“Why Bringing Diversity to ADR is a Necessity” by David Burt and Laura Kaster

“Increasing Diversity Among Arbitrators” by Sasha Carbone and Jeffrey Zaino

“The Case for Bringing Diversity to the Selection of ADR Neutrals” by Theodore Cheng

“Making Diversity Happen” by Noah Hanft

Tags:  adr  diversity 

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What’s a Successful Mediation?

Posted By Marina Mayes, Monday, July 31, 2017
Updated: Tuesday, August 1, 2017

Recently I mediated several family mediation cases over a long day with not much of an opportunity to catch up on paperwork until the very end. As I was completing the tedious report sheets I found my mind thinking back to the day’s cases and feeling pleased with each outcome in all four cases that I had mediated that day. My satisfaction certainly did not have anything to do with the overall settlement rate for that day, which we as mediators often find ourselves proudly spouting (80% success rate and so forth). Rather, my satisfaction came from the fact that in a day of four scheduled court-referred mediations, all four couples showed up, each sat through the complete mediation introduction session, and we could go through the process of information sharing and issue spotting. In the end, legal questions prevented two of the four couples from resolving their issues completely.  Ultimately, these couples decided that a decision maker, i.e. judge, needed to hear their legal arguments. At the end of one such mediation, as the parties were leaving, one turned to me and said that she was sorry for having “wasted” my time and that she had been afraid that this would happen. I immediately assured her that she did not waste my time and that a successful mediation does not always mean that an agreement is made right then and there.

How to define a successful mediation has always interested me. This is especially true since so much around mediation highlights success rates and faster case settlements. Funding proposals for mediation centers and mediation court programs often provide examples of how mediations are successful, highlighting again agreement rates between parties who go through the mediation process and reach an agreement prior to a court date. While agreements are key factors to determine if a mediation is successful, I would still caution anyone not to define a mediation unsuccessful simply because no settlement agreement was produced at the end and the parties still had to go to court to have their case resolved. After all, due to mediation, parties may have the information necessary to take the next step in the court case, and each party’s position may be clearer and more defined to where eventual settlement talks can occur in the future. Their mediation may even have been the first step in a long process to rebuild their relationship and eventually  be able to solve their own conflicts without a court altogether.

Thoughts on how you define a successful mediation?

Tags:  mediation 

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