Mediating Professor: Mediation Theory & Practice

Last week, I had the privilege of teaching the Mediation Theory & Practice class of my UWWM colleague Brandon Peters at FAMU College of Law. I was glad to find students bright and eager to learn the practical side of our profession. Our topic was representing clients at mediation. This required putting back on the advocacy hat and thinking about the process of mediation in a different way than in my daily job as mediator. As a neutral, we are motivated to facilitate the parties in making a decision for themselves. In examining how attorneys should represent clients at mediation, we reviewed the traditional role of a zealous advocate and what issues might arise during negotiations, such as lawyer-client conflicts of interest, non-economic concerns, and other potential inhibitors to a deal. Selecting attendees was also a big topic. In discussing this, we went over scenarios of a multi-party case and explored the attributes and potential influences of both large and small contingents at mediation, while keeping in mind confidentiality as paramount. Finally, we looked at preparation for mediation, including preparing the client and managing expectations for settlement. These components cannot be underestimated in achieving a successful result at mediation. It was truly refreshing to talk with law students about what we do as full-time neutrals on a regular basis and to be reminded of the important service that alternative dispute resolution neutrals provide to our court system.

Mork Mediation: Robin Williams Estate

The widow of Robin Williams and his adult children will try and settle their dispute over the late actor’s estate this month in a court-ordered mediation. Susan Schneider Williams petitioned the court, saying his three children are claiming memorabilia that was left to her. She also claimed some of her husband’s belongings were taken from their marital home without permission. Reportedly, a bitter fight over property of the late comedian may ultimately be decided by his trustees. It has been asserted in court documents that his trust is clear and unambiguous about authority to determine the disposition of the tangible personal property. Attorneys said the entire battle for the legendary comedian’s estate should have been kept private because Robin Williams was an intensely private person who had carefully constructed his estate plan to keep it out of public view. One of the issues is establishing a date to transfer possession of items to the late actor’s wife and children after trustees received input regarding the dispersal of his property. An inventory of the personal property identified almost a thousand items. Williams’s will entitles his children to clothing, jewelry, personal photos taken prior to his latest marriage to Schneider, as well as awards, memorabilia and tangible personal property from his home. In the months after their father’s death, the children claim their stepmother spent her time appraising his memorabilia, jewelry and other personal effects for her benefit. One of the items referenced are the iconic suspenders worn on the “Mork & Mindy” show. Perhaps mediation will solve the ugly dispute between kin without a "Nanu Nanu" to the judge. See stories here-- http://lat.ms/1ytwnWU and http://ti.me/1HhvXrv

Rapid Arbitration in Delaware

Delaware lawmakers are moving quickly to approve legislation streamlining the closed-door resolution of corporate disputes, after an earlier state-sponsored secret arbitration program was struck down as unconstitutional by a federal court. Delaware lawmakers previously passed legislation allowing state judges to preside over private corporate arbitration proceedings. The Delaware Coalition for Open Government challenged the program on constitutional grounds, arguing that citizens have a First Amendment right to access court hearings. The new legislation cleared the Senate Judiciary Committee without debate and already passed the House. Delaware Senators were expected to take up the measure and send it to the governor for signature this week. The bill's supporters say the revised rapid arbitration process doesn't run afoul of the Delaware or U.S. Constitution because, unlike the earlier secret arbitration scheme, the new program would not be run by sitting state judges. Delaware's Chief Justice advocated for a new arbitration program, and the legislation was drafted by a committee of the Delaware State Bar Association. A longtime corporate darling, Delaware is legal home to more than 1 million corporate entities, and more than two-thirds of Fortune 500. Corporations choose Delaware for access to friendly business laws and the Delaware Chancery Court, which is widely recognized for its judicial expertise in matters of corporate law. The new legislation requires resolution of arbitration disputes in 180 days or less, and gives the parties flexibility in choosing expert arbitrators. Other provisions also allow for the speedy resolution of disputes, which state officials claim offer Delaware another advantage as a legal home for corporate entities. See stories here-- http://delonline.us/1FIOcZP and http://bit.ly/1CdZst6

ADR Rules & Policy Proposals Oral Argument Set June 3rd

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. The Florida Bar ADR Section Executive Council has filed its comments in The Florida Supreme Court and has been granted a brief time for oral argument along with others who commented. Among the comments by the ADR Section is a criticism that there is no provision in the proposed rules which mandates that all communications of all "Other ADR Processes" participants are confidential and privileged, as set forth in the Mediation Confidentiality and Privilege Act (though some proponents say that is for the legislature to handle). There is nothing that provides that decisions, awards, or evaluations are sealed (as are the "awards" in mandatory non-binding arbitration) and may not be considered by the presiding judge in the event that the dispute proceeds to trial. However, apparently the neutral, without agreement of the parties, can impose confidentiality upon the parties. New rule 16.100 (a)(2) states that the neutral upon commencement of an “Other ADR Process” session shall "inform the participants the extent to which communications may be confidential." The concept of an evidentiary "privilege" as to mediation communications, which is not the same as "confidentiality," is nowhere set forth in the proposals, nor do the proposed rules provide for any sanctions which can be imposed upon any party for breaching "confidentiality." In the proposal, “Other ADR Process” is defined as “[A]ny method used to resolve disputes other than litigation for which no other Supreme Court rules or standards of professional conduct exist.” The comment by the section specifically points out that rules 16.010 (b), 12.760 (d)(2), 1.840 (c)(2) incorrectly define a "Neutral" as an "impartial third party who participates in a dispute at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute." The terms "Neutral" and "Impartial" are not one and the same. The term "Impartial" as defined in Rule 11.080 of the Florida Supreme Court Rules for Court-Appointed Arbitrators “means freedom from favoritism or bias in word, action, and appearance." The same definition appears in Rule 10.330 of the Florida Supreme Court Rules for Certified and Court-Appointed mediators. The term "Neutral" means not being predisposed to the resolution or outcome of the ADR process. As such, the proposed rules need to be drafted so as to comport with the existing Court Rules. The ADR Section will divide its presentation with others responding to the presentation at oral argument set for 9:00 am EST June 3, 2015 in this matter. See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute and be sure to tune in here-- http://www.wfsu.org/gavel2gavel/live.php

Orlando City SC Lions Owe Inaugural MLS Game to Mediation

It could be said that mediation saved the start of the Major League Soccer (MLS) season and the kickoff of the expansion Orlando City SC Lions before a crowd of over 65,000 at the Citrus Bowl stadium. The sides in MLS’s labor impasse negotiated in Washington, D.C. to avert a work stoppage. MLS had never finalized its labor contract for the past five years, a situation players and management sought to rectify following their agreement in principle last week on a new deal through 2019. The settlement created free agency for the first time in the MLS. Players 28 and older can become free agents after eight MLS seasons when their contracts have expired. Free agents earning under $100,000 this year are capped at 125 percent for 2016, with the limit lowering to 120 percent for those making $100,000-$200,000 this year and 115 percent for those earning more than $200,000. The new labor agreement increases minimum salaries but cuts the roster size of each team from 30 to 28. The union said the last few players on each side never saw much time on the field. Representatives for management and the union utilized the Federal Mediation and Conciliation Service with marathon sessions stretching into early morning hours. Reportedly, dozens of players participated in the mediation talks, with several owners also involved. A snowstorm further complicated matters for out-of-town participants. In the end, it was a great weekend of season openers thanks to mediation! See stories here-- http://bit.ly/1Ai9fLz and http://wapo.st/18kNALi and http://bit.ly/18j1ZaA

"You can't turn a no into a yes without a maybe."

President Frank Underwood on Netflix's new season of House of Cards uses this phrase when negotiating with his Russian counterpart. It reminded me of Roger Fisher and William Ury's classic book, Getting to Yes. Commonly, parties bargain over positions, their thesis goes, tending to lock themselves into those positions. The more one clarifies a position and defends it against attack, the more committed they become to it. Agreement becomes less likely as more attention is paid to positions, their argument goes, and less attention is devoted to meeting the underlying concerns of the parties. The problem with negotiating to the "yes" lies not in conflicting positions, but in the conflict between each side’s needs, desires, concerns, and fears, they say. In contrast to positional bargaining, they maintain principled negotiation methods of focusing on basic interests, mutually satisfying options and fair standards more typically result in a "yes" agreement. This method, they assert, permits reaching gradual consensus on a joint decision efficiently without all the transactional costs of digging into positions-- only to give have to dig out of them. Further, people often come into a negotiation realizing that the stakes are high and feeling threatened. Fisher & Ury state emotions may quickly bring about a "no" ending in an impasse. Therefore, they assert separating the people from the problem allows dealing directly and empathetically with the other side as human beings, making possible an amicable agreement. Importantly, they identify the skill of inventing options as one of the most useful assets a negotiator can have. They say when looking behind opposed positions for the motivating interests, one can often find an alternative position which meets not only its own interests but theirs as well. Perhaps this is where the "maybe" is achieved on the road to settlement?

Armstrong Arbitration

A three-arbitrator panel in Texas found 2-1 in favor of SCA Promotions, a Dallas sports insurer that paid cyclist Lance Armstrong millions of dollars in bonuses for winning seven Tour de France titles. SCA’s dispute with Armstrong began over a decade ago, after the former U.S. Postal Service team member won the 2004 Tour de France, the sixth of his seven consecutive victories. Following doping allegations, that case went to arbitration in 2005, and SCA Promotions was forced to pay $7.5 million in 2006. Evidence from the SCA arbitration dispute was used against him, including testimony from a former teammate and his wife, who said they heard Armstrong admit to using performance-enhancing drugs back in 1996. Armstrong was later banned for life by the United States Anti-Doping Agency and stripped of his seven Tour de France titles in August 2012. Armstrong did not admit to taking banned drugs until a January 2013 televised interview with Oprah Winfrey. SCA accused Armstrong of fraud and filed suit in early 2013, and after the case was sent to arbitration, Armstrong unsuccessfully tried for an appeal with the Texas Supreme Court to have the case blocked. In a filing yesterday, SCA Promotions asked a Texas state judge to confirm the arbitration award against Armstrong. It wants the court to enter a $10 million judgment against Armstrong and former team owner that may enable it to collect payment. Armstrong’s lawyer maintains that the dispute was fully and finally settled voluntarily years earlier. However, reportedly, Armstrong offered to pay SCA the entire $10 million, despite the absence of any legal basis for the sanction, and SCA refused the offer. Armstrong is also facing a $100 million fraud lawsuit from the federal government. See stories here-- http://on.wsj.com/17L3fUG and http://on.si.com/1zkTpzc