Commercial Section

E-NEWSLETTER

Monday 6 October 2003

Commercial Section of the Association for Conflict Resolution

Edited and Compiled by Tom Oswald ( e-mail )

Overview of the Contents of This Newsletter

This newsletter is provided for your information as a member of the Commercial Section of ACR and represents the yield of several Section members’ contributions.  We hope you find it an informative and illuminating source of professional and theoretical information.

The information box below will serve as your table of contents for this e-newsletter.

Please click below to go visit the Commercial section webpage on the ACR website. there you can see information about Committees, Officers, biographies, and some other static organizational information.  Click here: ACR Webpage on the ACR website.

In This Issue

Election Results by Cindy Alm

Your New Co-Chairs

Next Week’s ACR Conference in Orlando

Teleseminar Update

Section Opportunities

Deposing Arbitrators by Steve Yusem

Commercial Mediation by Howard Emmerman

Advanced Practitioner Membership survey by Jim Rosenstein

Initiatives in Mediator “Quality Assurance” by Jim Rosenstein

Next Section Board of Advisors Teleconference

 

 

 

 

 

 

 

 

 

 

 

 

 

Nominations and Elections

WILLIAM N. MILLER was elected as commercial section co-chair for 2003-2005.  He will fill the vacancy created by the conclusion of Tom Oswald’s term.  He will begin his term at the Section’s Annual Meeting in Orlando.  Jeff Allen will continue in his second year as co-chair. 

 

 

 

Will is the former Director of Dispute Resolution for the Virginia State Division of Consumer Protection.  His certifications are with the Supreme Court of Virginia and the National Center for Dispute Resolution. He is chair of the Commercial Section’s Ethics Committee.  He is also the recent past President of the Virginia Chapter of ACR and a Charter member of their Board. 

 

 

 

JEFFERY ALLEN, Oakland CA, attorney/mediator/arbitrator, will continue to serve the second year of his overlapping two-year co-chair term.  Jeff brings the Section a great deal of volunteer organization leadership experience having been extensively involved with his county and California Bar and serving several years as a national president for a youth soccer league.

 

 

 

 

Highlights of the Orlando Annual Conference

Reception
The Commercial Section Advisory Board extends a personal invitation to you to join us in greeting and networking with current and prospective Commercial Section members on Friday, October 17, 2003 from 6:30 p.m. to 9:30 p.m. during the ACR Annual Conference in Orlando, Florida.  This is a terrific opportunity to network with like-minded commercial ADR practitioners from around the world.
Introductions and announcements will occur at approximately 7:00 p.m.  We understand your stringent conference schedule and your attendance at any time during our three (3) hour reception would be greatly appreciated.

Annual Meeting

Each year at the ACR Annual conference, the Commercial Section holds an annual meeting.  This event is generally our only face-to-face meeting of the Section for the whole year.  We will install Will Miller as incoming Co-Chair and hear reports form committee heads.

Commercial Presentations at Orlando

This year will feature five commercial content presentations delivered by four members of the Section Board.  The presentations and the presenters are as follows:

Anatomy of a Commercial Mediation, by Jeff Allen and Tom Oswald

Success Coaching for Mediators, by Tom Oswald

Post Commercial Arbitration Issues, by Steve Yusem

Complex Land Use Disputes, by Jim Rosenstien, Phoebe Sheftel, Steve Yusem

Commercial events and scheduling at Orlando:

 

Teleseminars

Out-going Co-Chair Tom Oswald innovated a series of commercially oriented, telephone bridge Teleseminars for Section members only.  The objective was to:

  1. provide increased value to our members
  2. increase communication among the members
  3. generally create a stronger nexus for our shared professional concerns and interests

The first Teleseminar was held two months ago and was regarded as an excellent success with about 50 participants.  Our top-level ACR leadership joined us for a frank and open discussion about ACR and the Commercial Section.  A great deal of information and perspective was shared and all participants came away with a richer understanding for the Section and our relationship with ACR as a valued element of it.

The second Teleseminar was a presentation by our own Jack Cooley on preparing for court mediation.  Jack spoke about how to prepare both as an attorney and as a mediator.  This teleseminar was also well attended and the participants came away reporting that their time was well spent.

A third Teleseminar is booked for Thursday 21 October at 3-4 PM EDT.  The bridge number is 212-461-5905 Pin number 4258#.  It is titled:

“Everything You Wanted to Know About Starting and Running a Court Mediation Program But Did Not Know Where to Ask”

Frank Motz will spend an hour with us and share his extremely substantial knowledge and experience in this area.  Frank is a Court Mediator, an attorney, has served as a magistrate, instructs mediation at the University of Akron, and conducts mediation trainings for the Supreme Court of Ohio.  Frank has consulted on the establishment of court mediation programs in many Ohio counties.

 

 

Section Opportunities

This year your Commercial Section has traveled a long way down the path to becoming a vital source of information and connection for professional ADR practitioners.   We have coalesced and matured a good deal as a Section, just as ACR has as an organization.  But there is much more work to do.  Where we are today as a Section has only come to pass due to the investment of time and effort made by your Section Leadership.  We need your help to continue that progress.  As a practitioner member, you have a professional obligation to participate at some level in the development of your field.

 

As a volunteer organization, we will only thrive if members participate and actively contribute.  You are invited to contact any member of the Board of Advisors for more information about how you can get involved.  We have leadership grooming and succession-planning initiatives now in effect.  These are designed to help you make a contribution to the Section in a manner that you are interested in, and help you progress through the ranks of responsibility as you choose.

 

We have many opportunities for people to join in.  Many hands make light work of big jobs.  If there is a professional area you are interested in that the Section is not currently addressing, find another member to team with you, and create a Committee focused on that issue or subject area.  Committee Heads sit on the Board of Advisors.  Some members of the Board of Advisors make up the Executive Committee, mostly former Co-Chairs.

 

Our requirements are that you participate and contribute in accordance with our Activist Board Policy.  We cannot afford to tolerate those who may seek to ‘park’ their name on the Board for the sake of a resume credit and the professional recognition.  If you desire to get active with a great group of forward thinking, dedicated, vibrant professionals contact any Section Board member via the ACR Commercial Section Web page or the Membership Committee Chair, Jerome Landau at harmony@doitnow.com or 480.346.1101.

 

Serve for the benefit of those who will follow you in our profession as well as for your own personal enrichment and development.  Serve to give in reciprocal measure for what you have already received and benefited from due to the efforts made by those who have preceded us and made our profession what it is today.

 

 

 

Article: Yusem on Deposing Arbitrators

DEPOSING ARBITRATORS

Stephen G. Yusem, Esquire

Norristown, PA

            Can a party who loses an arbitration case depose the arbitrator in a proceeding to vacate the arbitration award?  The answer is yes, no and yes. 

            Yes, the arbitrator can be deposed where the losing party can produce clear evidence of the arbitrator’s misconduct or bias.  See Lyeth v. Chrysler Corp., 929 F.2d 891, 899 (2d Cir. 1991); Corsini v. Prudential Secs., Inc., 1995 WL 663174 (S.D. Cal. 1995).

            No, an arbitrator may not be deposed if a losing party merely claims ambiguity or misapplication of the law to the facts.  There is nothing like a Latin phrase to sanction a rule of law, and in this case it is functus officio (meaning a task completed).  The theory is that the arbitrator’s authority ends upon the issuance of the arbitration award, after which the arbitrator may not reverse or modify it.  As the Third Circuit stated in LaVale Plaza, Inc. v. R.S. Noonan, Inc., 328 F.2d 569, 572 (3d Cir. 1967), the policy underlying this general rule is an “unwillingness to permit one who is not a judicial officer and who acts informally and sporadically to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion.”  See also Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d 327, 331-332 (3d Cir. 1991).

            But there are three exceptions to the functus officio doctrine which constitute another “yes”:

(1)   where there is a mistake readily apparent on the face of the award;

(2)   where the award does not adjudicate an issue which had been submitted to the arbitrator, in which case the arbitrator had not yet exhausted his function; and

(3)   where the award leaves doubt whether a submitted issue has been fully decided, producing an ambiguity which the arbitrator is entitled to clarify, there being some fundamental procedural irregularity in the arbitration proceeding. Teamsters Local 312 v. Matlack, Inc. 118 F.3d 985, 991-992 (3d Cir. 1997)

However, if the arbitration is subject to the Federal Arbitration Act, 9 U.S.C.

§1, et seq., case law must give way to statutory language which may create exceptions different from the functus officio doctrine.  In Colonial Penn, supra, the court described the exceptions under §10 of the Federal Arbitration Act as being “to some extent analogous to the exceptions of the functus officio doctrine.”  Colonial Penn, 943 F.2d at 333.

            In reference to court-annexed arbitration, the likelihood of deposing an arbitrator after the arbitration award, but before the de novo trial, is rather remote, either because the arbitrator is immunized by local rule or because a court-annexed arbitration proceeding is rarely stenographically transcribed, and an arbitrator’s memory would be subject to question many months or years after the conclusion of the arbitration hearing.

            The bottom line, oversimplified, is that in the absence of an arbitrator’s wrongful conduct or an award obviously procedurally defective on its face, it is likely that a Court would bar an attempt to depose an arbitrator.

This article was adapted from The Deposition Handbook, Fourth Edition, published by Aspen Law and Business.

 

 

 

Article: Emmerman on Commercial Mediation

THE EVER-INCREASING INFLUENCE OF MEDIATION

AS A MEANS OF RESOLVING COMPLEX COMMERCIAL DISPUTES 

-or- 

Why ACR Publications Have

Replaced the Federal Rules of Civil Procedure on my Bookshelf1 

By Howard C. Emmerman2 

Mind you, I have not discarded the Federal Rules or the Illinois Code of Civil Procedure. Rather, I have begun to realize that the influences of the business community are relying more heavily on other means of resolving complex commercial disputes, not the least of which is mediation. These influences already have been felt in the legal community, to the extent that very soon it is likely that all attorneys whose practice is primarily in litigation will be required to have completed formal training in mediation techniques. These training programs are very much in existence today, as are a growing number of organizations that promote mediation and other means of alternative dispute resolution.3 Moreover, mediation can no longer be considered a novel concept; initiatives are underway nationally, statewide and locally to incorporate mediation into the resolution of litigated disputes. As a microcosmic example: an interim draft of the Uniform Mediation Act is under consideration by the National Conference of Commissioners on Uniform State Laws;4 a mediation program to settle civil rights cases has been initiated by the United States District Court for the Northern District of Illinois;5 and the Law Division of the Circuit Court of Cook County has established a Voluntary Mediation Pilot Project.6 

The pressure to resolve disputes through mediation emanates not only from the courts in which these disputes are litigated and the lawyers who litigate them. The business community has begun its own initiatives to adopt ADR techniques as alternatives to litigating disputes. An example of these initiatives is found in the efforts of the CPR Institute. CPR is an alliance of global corporations, law firms, legal academics and selected public institutions. Approximately 4,000 operating companies have subscribed to the CPR Corporate Policy Statement on Alternatives to Litigation,7 which obligates them to explore the use of ADR in disputes with other signers. CPR's stated mission is "to install ... ADR ... into the mainstream of corporate law departments and law firm practice ** to make the legal profession the preferred delivery system of ADR . To fulfill its mission, CPR is engaged in an integrated agenda of research and development, education, advocacy and dispute resolution. It is the leading proponent of ADR that is managed by the parties and a highly qualified neutral, or self-administered ADR."8 The import of these efforts for the career litigator is clear: Develop new skills and a new approach to dispute resolution! 

That is easier said than done. In recent years, I have taken to answering that most often heard (and usually rhetorical) inquiry, "What type of law do you practice?" with the purportedly droll response, "I administer the involuntary redistribution of corporate wealth." Sarcasm aside, there is a measure of truth to that statement. Indeed, the inclination to regard the litigation of corporate disputes as all-out warfare has with increasing frequency been assailed by our courts. 

The adversary process in the judicial arena does not require attorneys to be clothed in a suit of armor and fight to the bitter end. The parties, the profession, and the public all lose when the attorneys fail to treat each other with common courtesy. Miller v. Bittner, 985 F.2d 935, 941 (8th Cir. 1993). 

Unlike those areas of the law such as family law disputes and civil rights litigation, where intervention by a mediator can have obvious socially redeeming aspects, commercial disputes are disputes over money or money-value equivalents; thus, the impetus for the parties to adopt an attitude of compromise rather than confrontation, is not usually strong or compelling. Nonetheless, in every one of the three case studies detailed below, the mediation process enabled the parties to settle their disputes without expensive litigation; and the attorneys, who initially risked being likened to traitors for so much as even suggesting a conciliatory procedure, became heroes.

These case studies constitute my real-life initiation into the mediation process. It should be noted that in every one of the following cases, I opined that there was no chance whatsoever of a compromised settlement. My prediction record was totally consistent; it was wrong every time. In my participation in these cases, always as litigation counsel for one of the parties in a case which was in litigation or in which litigation was imminent, I learned that there is still skill, gamesmanship, and tactical considerations which the good mediation advocate must consider and utilize. Managing detente is no less challenging than is managing warfare. 

Case Study 1: The Systems Firm vs. The Freight Terminal 

My client was a publicly held systems company. A new management regime had recently been installed, and the desire to achieve a dramatic and immediate success was strong. Under its previous management, the client had entered into a contract to automate an intermodal freight terminal, installing hardware and configuring software to accomplish the daunting task of tracking and physically moving substantial freight traffic as it approached, left and moved within the terminal. Unfortunately, the system which was installed had not become operational and the outside performance dates had long passed, as a consequence of which the terminal*s ownership had terminated the contract and withheld substantial payments from my client. The contract contained a compulsory mediation clause, by which the parties were required to schedule a mediation conference. Though our facts were not good, my analysis of the parties* acts and omissions pursuant to the contract had produced some legally palpable excuses for the system*s failure, and I had advanced the theory that the terminal*s ownership had repudiated its obligations under the contract and had frustrated my client*s ability to perform. Ever the litigator, I prepared an extensive memorandum for the mediator with exhibits attached, in support of our theory of the case. Our opponent’s submissions were meager in comparison.  

At the initial mediation conference, we were clearly better prepared, our presentation outshone that of our opponents’ counsel, and my client was pleased. In our first caucus, the mediator cut to the quick. After complimenting our "clearly superior" presentation,9 he saw through our arguments and made it very clear that the non-performance of our system was likely to doom our lawsuit. Though I had advanced this very opinion to my client many times previously, the client*s representatives reacted as though they had been shot. Two days later, and after a number of my client*s senior and super-senior management operations executives had made their unscheduled appearance at the mediation table, my client accepted a substantial reduction in the amount claimed due, and the matter was resolved. 

This experience reinforced a basic guideline for representatives engaged in mediation on behalf of their principals: No matter how many times one advises his or her client of a potentially adverse result in litigation, the client is more likely to heed that advice when the client hears it from a third party. 

Case Study 2: The Doctors vs. The Medical Equipment Manufacturer 

My client was a manufacturer of non-functional prosthetic devices used in certain minor cosmetic surgical procedures. The client had been sued by two physicians who had used the client*s devices on large numbers of patients and claimed that after a period of time the devices had failed with large numbers of their patients, requiring the plaintiffs to re-perform the procedures at their expense. None of the procedures involved a threat to the patients* lives or well-being. A lawsuit had been filed by the physicians under state laws which permitted recovery of economic damages in a tort action notwithstanding the absence of personal injury or property damage. The plaintiffs sought substantial damages, both for the cost of the re-performed procedures, as well as damage to their reputations. We had subpoenaed the physician*s records and found that, while there was evidence of multiple failures of the devices, there was also a substantial possibility that we could prove the failures were caused by the physicians* negligent failure to follow the instructions enclosed with the devices. 

Clients and their attorneys were present at the one-day mediation session, which had been scheduled by agreement. Having learned from my first experience that a well-prepared litigation presentation was not necessarily likely to effect settlement and in fact could with equal probability polarize the parties* positions, I directed my opening statement not to the mediator, not to plaintiffs* counsel, but to the two plaintiffs themselves. In essence, I told them that we intended to depose their patients with the hope of exposing the physicians* failure to follow the instructions for installation of the devices. As a direct result of our efforts, these physicians* patients would be sensitized to the possibility that their doctors might have committed malpractice. I told the plaintiffs that apart from the further damage to their reputations which could result from this realization, they were exposed to the real possibility of malpractice suits being filed against them as a result of our depositions, since the statute of limitations would not run for a long time. If our defense was successful in their suit against my clients or if our defense was unsuccessful but their damage recovery was not as substantial as they had hoped, they would be left with nobody to blame and substantial liability to their patients. 

As we were caucusing separately with the mediator, I learned that this approach had worked. The plaintiffs* demands were far less than their damage prayer and the matter settled. From this experience I learned that mediation can give counsel for one party the opportunity to address the opponents directly, and to thereby dispel or at least diminish, any possibly unrealistic expectations created either in their own minds, or by their counsel. 

Case Study 3: The Partnership Breakup 

I represented one of two former partners who were engaged in a dispute over allocation of the proceeds of sale of a substantial tract of real estate, the only asset of their dissolving partnership. The dispute was peppered with mutual allegations of fraudulent concealment, appropriation of partnership business opportunities and self-dealing, all reflecting the absolute and total failure of their relationship after 11 years of attempting unsuccessfully to develop the property. The accounting issues were monstrous; indeed, the most pivotal testimony in the trial would come from multiple expert witnesses who would each opine as to the proper allocation of the capital accounts of the warring partners. Each side claimed entitlement to all the proceeds, and to additional recovery against the other. The parties were a chasm apart in their respective demands. I had evaluated the likelihood of our prevailing as 50-50 at best. After three years of litigation, and almost on the eve of what would surely be at least a four-week trial, the court suggested mediation and the parties agreed on a one-day session. The submissions to the able mediator were enormous, but his ability to digest them quickly was perhaps the most significant factor in the mediation process. This was my first mediation in which the parties refused to sit in the same room with each other; we went into separate caucus rooms immediately. Obviously, no direct communication with the opponent would be possible here. The entire day was spent in long discussions with the mediator about the specifics of our version of the accounting. At the end of the day there had been some movement, most of it on the part of my client, but the parties were still far apart. After about eight hours, we all decided to terminate the mediation. 

The next morning, I called my client to compliment his honest good-faith participation in the negotiations at the mediation session, and to repeat my advice to him at the end of the mediation, that he had made a reasonable compromise offer. His response was surprising: after spending substantial amounts of money on depositions, the retention of experts, motion practice, and the other countless and expensive necessities to the preparation of a complex case for trial, he told me to accept the last demand we had received from the other side at the mediation, and to put an end to the lawsuit. I was flabbergasted; how could this client give up the battle after spending so much for so long on an emotional, high-stakes dispute? He responded that he was just tired of the matter, that the mediator*s inability to predict him as a likely winner was depressing to him, and that he wanted to move on. From this sobering experience I learned what should have been obvious: A mediation session is a cheaper and more efficient way to test the client*s stamina than is a full-blown trial. 

I have since encountered many more mediation sessions in various capacities; each has reinforced the notion that mediation is beneficial for the client even when the process does not produce a settlement. More than anything, the use of mediation in the settlement of complex commercial disputes represents one of the most significant modifications effected in my 30 years of practice and will challenge commercial trial lawyers in the next 50 years to develop distinct skill-sets in this very different approach to dispute resolution.

1This essay is an edited reprint of an article originally published at 50 DePaul Law Review 1085 (Summer, 2001).

2Mr. Emmerman is a graduate of DePaul University College of Law (J.D. 1970), a former member of the Board of Editors of DePaul Law Review (1969-70), and the holder of a certificate of Professional Achievement in Mediation awarded by DePaul University*s Dispute Resolution Center (2000). He is a partner in the law firm of Katz Randall Weinberg & Richmond, Chicago.

3Formal dispute resolution education programs are now conducted by, e.g., DePaul University*s Center for Dispute Resolution; the Center for Conflict Resolution ("CCR"). see generally, Goldberg, et al., Dispute Resolution -- Negotiation, Mediation and Other Processes, Appx. G at 673-78 (3d ed., Aspen Publ., 1999 ) for a list of organizations which offer training and education programs. Unfortunately, there appears to be little comity between these programs; a certification in one program does not always suffice for participation in others.

4See "Uniform Mediation Act -- Interim Draft" (NCCUSL, Dec. 2000).

5See "News Release -- Mediation Backed for Civil Rights Cases" (U. S. Dist. Court N. D. Ill. -- Nov. 14, 2000; http://www.ilnd.uscourts.gov/PRESS/PR111400.htm).

6Cir. Rule 20.1 et seq., Rules of the Circuit Court of Cook County (rev. 4/28/2000).

7CPR Institute for Dispute Resolution, www.cpradr.org (CPR Inst. for Dispute Resolution, New York, N.Y., 1998).

8Id.

9Thinking back on it, I have little doubt he said the same thing to the other side.

 

 

 

Article: Rosenstein on Advanced Practitioner

Advanced Practitioner Membership

By Jim Rosenstein, past Co-Chair

The Commercial Section is undertaking the examination of this high profile issue as to how and if the ACR Advanced Practitioner membership category would make sense for the members of the Commercial Section. 

Brief Background:

There is an Advanced Practitioner membership category for the ACR.  However, the Advanced Practitioner membership is currently available only to Family Section members.  This has come about because of the merger that created ACR.   The Academy of Family Mediators (AFM) was one of three organizations that merged to form ACR.  Prior to the merger, the AFM had an advanced category of membership and the advanced category was carried over after the merger and is being administered through the Family Section.  In contrast, the other two organizations, the Conflict Resolution Education Network (CREnet) and the Society of Professionals in Dispute Resolution (SPIDR) did not offer an “advanced” membership category to their membership.

The work being undertaken on the Advanced Practitioner membership category by ACR is proceeding along two parallel tracks:  (1) organization-wide, and (2) within individual sections (i.e., looking at the feasibility of “field –specific” Advanced Practitioner membership categories).  The organization-wide inquiry is whether a “generic” Advanced Practitioner membership for the ACR organization as a whole can and should be developed. 

A separate inquiry is being undertaken at the section level by the sections that do not have the Advanced Practitioner membership category.   These sections are being asked whether their members are interested in having a field-specific category of Advanced Practitioner membership.

The Commercial Section does not currently have a field-specific category of Advanced Practitioner membership.  Our work would involve three steps:

  1. Assessing readiness.  The Section will assess the interest of its membership in creating a field-specific Advanced Practitioner membership category for commercial ADR (perhaps called an “Advanced Practitioner in Commercial ADR”).   If there is sufficient interest, then the section will appoint a Work Group to develop a field-specific Advanced Practitioner proposal, consisting of a work plan, timeline and budget.   If there is no interest in establishing a field-specific Advanced Practitioner membership category, the section will consider whether to develop a consensus statement of competencies for ADR practice with respect to commercial disputes.

  1. Developing and adopting field-specific Advanced Practitioner criteria.  If there is sufficient interest, a Section Work Group will be formed, charged with the responsibility for developing (with the guidance of the ACR Membership Committee) a proposal for establishing the criteria for an Advanced Practitioner membership category that is applicable to those who serve as ADR neutrals with respect to commercial disputes.

  1. Implementing the Advanced Practitioner membership category for those who serve as ADR neutrals with respect to commercial disputes.  After a field-specific Advanced Practitioner proposal has been approved by the members of the Commercial Section and ACR’s leadership, a Section Advisory Committee will be charged with the responsibility for overseeing the implementation of the new membership category by the ACR staff.

Concept:

The Advanced Practitioner in Commercial ADR is a category of membership within ACR.  It indicates that an experienced ACR member has met meaningful and measurable qualifications criteria for Commercial ADR practice that the section has established.  It should also provide a path for professional development and should contribute to defining what it means to be excellent in using ADR techniques to resolve commercial conflicts. 

Benefit:

As part of the merger, ACR agreed to establish a referral list as a benefit for Advanced Practitioner membership.  The list would state what criteria were used for inclusion on the list.  Also, an individual who is an Advanced Practitioner member could include that information on his or her resumes.

Obligations:

The obligations of an Advanced Practitioner could include evidence of continuing education, presentations at conferences, mentoring, serving as a trainer, service on section and ACR committees.

Criteria:

The criteria will be developed by a process that will encourage all section members to provide their  input in the development of the criteria.  In general, ACR guidance is that the criteria should be based on best practice knowledge and skills rather than acquired degrees and should be set significantly higher than the Practitioner Membership requirements.  Furthermore, consideration should be given to the level of practitioner experience, level of training and professional education required initially and on a continuing basis, number of references from clients and other practitioners.  

Our Questions to the Commercial Section Membership:

  1. Should the Commercial Section attempt to develop an Advanced Practitioner in Commercial ADR membership category?

  1. If the Commercial Section should not develop such a field-specific Advanced Practitioner membership category, should the Section develop a consensus statement of  commercial ADR competencies?

  1. What concerns or questions do you have regarding the Advanced Practitioner Membership concept?

 

Members are invited to respond with feedback to Jim Rosenstein.

 

 

Article: Rosenstein on Mediator Quality Assurance

 

 

New Initiatives in Mediator “Quality Assurance”

By James A. Rosenstein, Esq.

August 26, 2003

            Recent visitors to the website of the Association for Conflict Resolution (www.acresolution.org) will have discovered that a great deal of attention is now being directed at the national level toward the related subjects of mediator qualifications and conduct.  They would have learned that four different groups – the Joint Committee on Model Standards of Conduct for Mediators (JCMSM) and ACR’s Ethics Initiative, Mediation Certification Task Force and Advanced Practitioner Workgroup – are currently hard at work developing proposals that, if implemented, could significantly impact the practice of mediation across the US

ACR’s leadership should be commended for taking on the daunting challenge of developing a nationwide (1) set of revised standards of conduct, (2) process for addressing alleged violations of these standards, (3) certification process for mediators, and (4) method of encouraging (through public recognition) excellence in mediation practice.  The purpose of this article is to encourage mediators to review these initiatives carefully (all of them are available either directly or indirectly, though the groups identified there, on the ACR website, www.acresolution.org), and to share their comments and concerns with their authors.  Please note that comments are being sought immediately, to help inform the deliberations of the groups that are working on them, some of which will occur at ACR’s Annual Conference in October.  I will limit myself at this time to providing brief (and necessarily overly simplified) overviews of these initiatives and sharing a few personal observations that will hopefully stimulate further discussions.

Brief Overviews of the Proposals.

JCMSM is engaged in a consideration of the standards of conduct jointly promulgated in 1994 by the American Arbitration Association, the Section of Dispute Resolution of the American Bar Association and the Society of Professionals in Dispute Resolution (one of ACR’s predecessors), with a view toward updating them.

ACR’s Board has adopted a process for “reviewing and resolving alleged complaints of ethical violations or unfair practices by ACR members” [emphasis added].  Pending the completion of JCMSM’s work, the standards to be applied in this process are those adopted by SPIDR in 1986, except as to members of ACR’s Family Section, as to whom its own standards will apply.  ACR contemplates a hearing and appeals process, initiated by a complaint, and heard by an Ethics Committee, with a right of appeal.  Possible sanctions (including termination of ACR membership are suggested and timelines, eligibility requirements for membership on the Ethics Committee and a glossary of applicable terminology are also provided.

ACR’s Mediator Certification Task Force is proposing a voluntary nationwide process for credentialing mediation practitioners (regardless of whether they are ACR members) that would afford competitive advantages to certified mediators while providing users of mediation services with “another valid criteria by which to gauge the qualifications of conflict management practitioners in the marketplace”.  “The Mediator Certification Program is envisioned [by ACR’s Task Force] as a basic, or entry level, rite of passage into the mediation profession.”  Certification would involve meeting both “portfolio” requirements and passing a comprehensive written examination.  The “portfolio” requirements consist of at least 80 hours of training in “mediation process skills” and 20 hours of training  “in subject matters related to any of the areas covered [in the written exam]”, documentation of “at least 100 hours of mediation or active co-mediation within the last 5 years, or 500 hours of mediation or active co-mediation over a lifetime of practice”, at least “3 letters of reference from individuals who are familiar with the applicant’s mediation work”, disclosure of any “criminal convictions or professional disciplinary actions”, and “evidence of professional liability insurance or certification from an agency or organization of coverage or indemnification”.  The written examination will test the applicant’s knowledge of conflict theory, content management and resources, cultural diversity, ethics, history of mediation, models, strategies and styles, negotiation, process structure, role of third party and systems and group dynamics.  Among the other components of this proposal are a “grandparenting” provision and processes for re-certification every three years, de-certification for violation of ACR’s ethical standards, and appealing de-certification and denials of certification or re-certification.

ACR’s Advanced Practitioner Workgroup is proposing a voluntary process for obtaining an ACR advanced mediation membership designation in a specific specialty that is keyed to the various Sections of ACR (e.g. “advanced family mediation Practitioner”) “that have elected to establish such a membership category and that have received approval from the ACR Board to implement it”.  The stated reasons for establishing this membership category are to “(1) better serve members who see a marketing benefit for such a designation; and (2) protect the public by communicating differences between ‘advanced’ and other mediation Practitioners”.  It is not clear from the proposal what differences (other than additional training and experience) are contemplated, particularly in light of the Workgroup’s guiding principle that “Advanced Practitioner membership status should represent a significant but achievable accomplishment.  It should be clearly distinguishable from the requirements for ‘Practitioner’ membership [query whether they will become synonymous with the Mediator Certification requirements, if and when they are implemented], but should not be an elite designation, intended for a limited percentage of ACR members.”  The recommended processes for establishing advanced mediator Practitioner membership categories and for qualifying individuals for this membership are sketched out in considerably less detail than has been done for the Mediation Certification Program.

A Few Observations, Comments, Questions and Concerns.

            As to the Mediation Certification Proposal:         

            I am not qualified to discuss the question of whether peer review should be added, either to these requirements or to those for the Advanced Mediator Practitioner membership category.  (For more on this subject an other perspectives on mediation credentialing, see the Fall 2001 issue of  “Dispute Resolution Magazine” (Vol. 8, No. 1), published by the ABA Section of Dispute Resolution; and contact this Section’s Task Force on Mediator Credentialing [jfilner@keybridge.org].)

            Although there is some discussion about the desirability of this certification becoming a prerequisite for Advanced Mediator Practitioner status, I think it should be made clear that it should not be required for ACR’s Practitioner Membership.  Among other reasons for this recommendation are that ADR practitioners who are not mediators would not be subject to similar requirements (at least until they were developed for other ADR disciplines).

            Would mediators who become certified under this process be entitled to hold themselves out to the public as “Certified Mediators” or some similar designation?

            I anticipate that the process of deciding which courses, programs, etc. will satisfy the training requirements will be a mammoth one (both in expense and time) with respect to training that has already been completed.  With respect to future training, I would expect that this type of Mediator Certification (if it becomes widely accepted) will spawn a new cottage industry of training programs that have been accredited by ACR as satisfying one or more of the 80 hours, 20 hours or Advanced Mediator Practitioners’ requirements.  Here too, the overhead costs associated with this accreditation are likely to be substantial, at least if the continuing legal education experience is any indicator.

            It is unclear how “total hours of mediation” will be calculated.  For example, will full credit be afforded to private caucuses as well as joint sessions, and to pre- and post- mediation work?

            The scope of the proposed written examination is truly comprehensive, reminding me of a bar exam.  Speaking for myself, just as I would not have been adequately prepared for my bar exam without a substantial commitment of time and money (bar review courses and the like) after law school , so I don’t think I could prepare adequately for this exam without a similar level of commitment, in addition to my five years of active practice, buttressed by many hours of training in theory and practice.  For example, someone like myself who focuses on business disputes, has little if any knowledge of  the impact of “social justice” and “religious/moral traditions” on conflict theory; or “counseling/therapy issues, … ‘custody’ issues, health care/medical issues… [or] supporting participants with disabilities or special needs”; or most aspects of “cultural diversity”;  or ethical aspects of “duty to best interest of child; or the history of community mediation, …labor origins, Community Relations Service; Pound Conference; prison programs, [etc., etc.]”; or “systems theory.. [and] transgenerational patterns (tradition)” aspects of  “Systems and Group Dynamics”.  I would imagine that a family practitioner or community-based mediator would have their own but different knowledge gaps that could result in failing this exam without substantial preparation.

            One thing missing is how to re-apply for certification if it is initially denied, either because the applicant hasn’t met the “portfolio” requirements or has failed the written exam.

            In summary, the Task Force seems to have set the bar rather high for a program that is “envisioned as a basic, or entry level, rite of passage into the mediation profession”.

As to the ACR Advanced Mediator Practitioner Membership Proposal.

            As noted above, if Mediator Certification is to be adopted, this certification should become one of the prerequisites for the Advanced Mediator Practitioner Membership category, regardless of whether this certification relates in any way to ACR’s Practitioner Member category.

            Similarly, the problems identified above with the training and hours of practice requirements will be applicable to the Advanced Mediator Practitioner membership classification.

            The proposal recommends that ACR “undertake an explicit programming commitment to assist those preparing to apply to become Advanced Mediation Practitioners to acquire the necessary skills and experience”.  Although this concept is laudatory, implementing it could require ACR to expand its activities into training and education far beyond its current cap.

 

 

 

Reminder for Next Board of Advisors Meeting

Next Commercial Section

Board of Advisors

Teleconference

(Board Member’s Only Please)

Thursday October 23, 2003

3-4 PM EDT

Bridge Call-In Number

212-461-5905 Pin number 1865#