Risks of Mediator Proposals

As a facilitative mediator, I’ve never been a fan of mediator proposals. This article by a judge-turned-mediator, The Danger of Mediator Proposals, does a great job explaining why. In addition, I would note that, while mediator proposals can help parties settle on a dollar figure, parties who focus on money alone will miss the non-monetary components that could contribute to a better resolution. Indeed, if parties look to underlying needs and interests, they may not need to resort to the tactic of a mediator proposal.

“Begin Mediation With an Apology”

“Begin mediation with an apology.” This is common advice in Christian mediation, but it’s surprising to hear it from a lawyer who does employment and commercial mediation. Eric Meyer is both a mediator and an advocate in mediations, and he wrote an article on eleven practical tips, especially for attorneys who represent parties in mediation, to help make remote mediations successful. In fact, many of his tips apply to both in-person as well as on-line mediations, such as thinking strategically about the timing of the mediation in the life of the case, and determining whether the case needs a facilitative or an evaluative mediator.

I especially appreciate his terse advice regarding written mediation summaries prepared by each advocate ahead of the mediation: “ad hominem attacks, legalese and passive voice” do not add value.

But I’m most intrigued by his advice to begin the mediation with an apology. He seems to think this is especially helpful in online mediation, because “there is always a place for compassion at remote mediation.” Mediators have complained about the difficulty of expressing and interpreting compassion in online mediations, and this is one way to address it directly. But it’s worth considering in all mediations.

He recommends that both plaintiff and defendant begin with an apology. This is right out of the Christian mediation playbook. Indeed, the preparation for Christian mediation (often referred to as “conflict coaching”) includes encouraging each party to examine their own contribution to the conflict, in accordance with Jesus’ teaching to “get the log out of your own eye” first, before going after the “speck” in your neighbor’s eye (Matthew 7:5). When each side is willing to acknowledge, confess or apologize to the other, Christian mediators know the parties are ready to meet face-to-face.

Mr. Meyer’s recommendation isn’t based on obedience to biblical commands, but rather on strategy. As he notes, the other side will be caught off guard – “but in a good way.” In our mediation trainings, we demonstrate mediation of a wrongful death case where the defendant’s opening includes an “I’m sorry” to the plaintiff widow; the audience is stunned. Most admit they’ve never seen that happen in actual cases, while acknowledging how powerful it is. Opening with an apology can go a long way towards negotiating a good resolution.

But it’s also risky. I recall a mediation where the defendant apologized in his opening; it backfired. Not only did it not display the “compassion” that Mr. Meyer seeks, it hardened the plaintiff, who perceived it as insincere and self-serving. Had the defendant alerted me before the joint session, I may have been able to help him prepare a more effective apology (because this was not a Christian mediation, we had not discussed it). But maybe not.

Mr. Meyer urges, “Say ‘I’m sorry’ for something – literally anything!” I applaud his recognition of the power of apology, and of the value in talking about non-monetary options, but I wouldn’t advise treating the apology so glibly. He also suggests “saving face” by having the mediator deliver the apology. Again, this should be considered thoughtfully, as it too is risky (“She didn’t have the guts to tell me herself?”).

Nevertheless, it’s refreshing to see a litigator appreciate the value of apology, and his advice could get some parties in the right mindset. Even considering apologizing forces a party to get a bit humble, and to look at the other guy as something less than pure evil—and that mindset in itself can promote a mediated resolution.

Mediation Training Online

Can a mediation training course fully online equip a participant to mediate effectively?

That’s the question I set out to assess this spring, at the behest of Michigan’s State Court Administrative Office, which oversees mediation training for both courts and community mediation programs in Michigan.  The basic training for general civil mediation is a 40-hour course, offered several times a year by a variety of trainers around the state, including as a for-credit course in law schools. The government-ordered lockdown that started March 23 curtailed several trainings that were planned or already underway, preventing them from completing in person. Those trainers appealed to the State for permission to teach or finish their trainings online. Seeing that in-person trainings might not be feasible for months, the Office of Dispute Resolution authorized those trainings to occur online as a pilot project, and asked me to evaluate their efficacy.

The trainings all occurred via Zoom. I observed portions of four trainings—three for law schools and one offered through a community mediation center. Fortunately for the participants, the trainers are all excellent, experienced mediation trainers who quickly adapted to Zoom. Most of the participants were also new to online education, so everyone learned together.

Conclusions: All three trainers agree that online mediation training is inferior, and I concur. I see two major drawbacks: one is the artificial way that roleplayers must conduct the caucus online, and the other is the difficulty in learning how to establish rapport and empathy through an online format. Also, the social aspect of training is diminished – participants don’t “mingle” as well, and they don’t have as many informal inter-actions with the trainer(s). It’s not as fun. With effort, the trainer can create opportunities for social interaction, but it’s unlikely to develop as fully as it does in person.

Nevertheless, I don’t think the drawbacks are serious enough to dispense with all mediation training until it’s safe to train in-person again. The skill gaps can be addressed when the mediator observes actual mediations, and is observed by an experienced mediator—both requirements for mediating at community mediation centers or receiving court referrals. Michigan requires a trainee to observe two mediations and be observed once (MCR 2.411(F)(2)(c)) in order to be eligible for court rosters; perhaps graduates of online training courses will need to be involved in more actual mediations before they’re eligible.

A corollary question is whether online training equips mediators to conduct in-person mediations, online mediations, or both. While the mediation process is standard, the two formats require some different skills; ideally, mediators would be trained for both.

Suggestions for making online mediation training effective:

  • Less than 8 hours/day: 8-hour training days are standard for in-person courses but feel excessive online; shorter training days, with frequent breaks, even hourly, would help participants retain attention.
  • Two trainers: The training needs to have two leaders present at all times, one of whom is adept at handling technical challenges.
  • Limited class size: I recommend no more than 18 participants. Most people cannot see more than 25 boxes on Zoom, and it’s a lot of work to re-assign roleplay groups continually. I observed three courses that each had 24 participants, and both the trainers and the participants agreed that was too many.
  • Technical requirements: All participants need to meet certain technical requirements: have computers (not just smart phones); have two-way video (see and be seen); have two-way audio (hear and be heard). They also need reliable broadband access, and a quiet place from which to participate. These are useful for all Zoom meetings, but they become critical in a 40-hour course.
  • Pre-training practice session: A practice session prior to the training familiarizes participants with Zoom and tests their technical capabilities.
  • Caucus roleplays: Zoom cannot give roleplayers the experience of moving parties in and out of caucus, so trainers need to create alternatives, and then discuss the “artificial-ness” of the training caucus compared with in-person mediation and online mediation where the mediator is the Zoom host.
  • Building rapport/showing empathy: Mediators must work harder to develop and use these skills online, in part because body language is not as evident.
  • Whiteboard/flipchart: This is an essential mediator tool that should be practiced in the training. Zoom alternatives include “chat” and “Share Screen” but require thought, preparation and practice.
  • Encourage social interaction: Trainers intentionally need to insert opportunities and activities for participants to interact and “mingle.”

I look forward to implementing these ideas when I lead my first post-lockdown 40-hour mediation training in September, at least part of which is likely to be online.

 

 

 

 

 

Apology for a Face Mask

The coronavirus pandemic has spawned a new category for apologies: the messages conveyed by face masks.

Michigan Senator Dale Zorn has issued an apology for wearing a face mask with a pattern that resembled the Confederate flag during a Senate vote in the state Capitol in Lansing last month. Senator Zorn is a Republican who represents Monroe and Lenawee Counties in southeast Michigan.

In an interview with WLNS-TV 6 in Lansing, Senator Zorn said his wife made the face mask. He said it was not a Confederate flag, and was more similar to the Kentucky or Tennessee flag. (In fact, it’s nothing like the Kentucky flag, and only vaguely similar to Tennessee; it’s more like the Confederate flag than like any other flag.) He told his wife the mask “would probably ‘raise some eyebrows.’” It did. So, the next day, he issued an apology.

Here’s the statement he issued to The Monroe News on April 25th:

“I’m sorry for my choice of pattern on the face mask I wore yesterday on the Senate floor. I did not intend to offend anyone; however, I realize that I did, and for that I am sorry. Those who know me best know that I do not support the things this pattern represents. My actions were an error in judgment for which there are no excuses and I will learn from this episode.”

What’s good about this apology:

  • He doesn’t offer an excuse – indeed, he says “there are no excuses.”
  • He takes responsibility, and doesn’t blame someone/something else.
  • He states that he’s sorry, without placing conditions on that.
  • He doesn’t use words like “but” or “if” to qualify or undermine his apology.
  • He acknowledges the impact, sort of, implying that it offended some.

What’s not so good:  As usual with these public apologies, we’re left to wonder if the speaker really understands the gravity of his offense. If he didn’t intend to offend anyone, what did he intend by choosing to wear a provocative item in a public forum? Regardless of what one intends, the Confederate flag is controversial and offensive to many, even up here in the North. So his apology just does not come across as credible.

It’s encouraging that his apology says he does “not support the things this pattern represents,” but that implies he knew it’d look like he did support those “things.” Perhaps he thinks that using the flag as a face mask is a sign of disrespect to it? He says he “will learn from this episode,” but the apology would be more convincing if he was clear about what exactly he’s learning.

As a fellow Michigander, I’m disturbed, among other things about this story, that an elected official would display a symbol of an enemy that thousands of Michigan soldiers died to defeat.  I appreciate his apology, but it doesn’t quite appease. Another Michigan senator has introduced legislation to ban the Confederate flag from display in the state Capitol. Presumably she was not satisfied with his apology either.

Modern display of the Confederate battle flag - Wikipedia

Mediating Probate Cases: Make Sure Everyone Is Notified

The Court of Appeals has invalidated a portion of a mediated settlement agreement as to a party who was not present at the mediation due to lack of notice. In this probate case, In re Meddie Allen Brown (unpublished per curiam opinion of the Court of Appeals, issued April 9, 2020, Docket No. 342485), the decedent left three children, Randall, Barbara and Mark. Randall was personal representative and trustee, and Mark petitioned the probate court to remove him, alleging that Randall had undue influence over their father, and that he failed to keep them informed about the estate. The case was sent to mediation. Barbara did not attend. Why she did not remains a mystery.

Mediation Agreement Without Sister

In the mediation, the two brothers reached a settlement whereby Randall would pay Mark and Barbara $1,000,000 each for withdrawing all their claims. When Randall petitioned the court to close the estate based on the mediation agreement, both Mark and Barbara objected on the ground that Barbara had not been notified about the mediation and did not sign the agreement. The probate court ruled that Barbara was bound by the actions of the fiduciary, Randall, and that Barbara had received sufficient notice of the mediation and chose not to participate.

Court of Appeals: Fiduciary Must Notify

The Court of Appeals disagreed. It found that the only notice of the mediation received by Barbara was the probate court’s pre-trial scheduling conference order advising that the mediator had been selected and that mediation must be completed by June 7, 2017. The fiduciary is obligated under MCR 5.120 to notify and inform all interested persons regarding any contested matter, and Randall failed to do that. The Court also noted that Barbara could not be bound by the mediation agreement because neither she nor anyone with authority to represent her signed the agreement, as required under MCR 2.507(G).

Randall suggested on appeal that, under MCR 2.411(C)(1), the mediator is supposed to contact the parties to schedule mediation, and the fact that the mediator did not contact Barbara is further evidence that she was not considered a party to the mediation required to receive notice. The Court did not believe this relieved the fiduciary of his obligation to notify under MCR 5.120. The Court thus vacated the court order that the mediated settlement agreement was binding and enforceable upon Barbara.

The Court acknowledged that Barbara did know about the mediation, through the scheduling order sent her by the probate court. It also noted that Barbara provided an affidavit averring that she was not aware of the mediation’s occurrence until after it was completed. The Court seems to have overlooked Barbara’s lack of credibility to make the larger point that a party cannot be bound to a mediated settlement if that party does not attend the mediation, unless there is clear notice and designation of a representative who will attend the mediation on the party’s behalf.

Mediator Must Notify?

While the Court blames the fiduciary, Randall, for not notifying Barbara, the Court could have read MCR 2.411(C)(1) to make the mediator bear some of the burden as well. It requires the ADR clerk to send a copy of the mediation order “to each party,” then for the mediator to “confer with the parties” to schedule the mediation. In this case, the court sent a notice to Barbara as a party, but the mediator apparently did not “confer” with her. Why not? The opinion implies (in a footnote) that the mediator notified only Trustee Randall and Petitioner Mark, and not the third sibling, Barbara, because Barbara did not join in filing the petition. Perhaps the mediator assumed that, since Barbara was not a named party, she did not need to be notified; or that one of her brothers would represent her interests also. The mediator in this case is experienced, and it’s hard to believe that he just chose not to contact the third sibling of a three-sibling estate case, especially when it became clear that the settlement would involve her share of the estate. There must be more to the story, but confidentiality may preclude us from finding out.

This case is reminiscent of Peterson v Kolinske, another unpublished Court of Appeals case involving an estate mediation (unpublished per curiam opinion of the Court of Appeals, issued April 17, 2018, Docket No. 338327), where one of the adult children, Theresa, was unable to attend the mediation, so the mediation agreement was held to be valid only as to the siblings who signed it in the mediation. The Court of Appeals noted that, although Theresa was given notice of the mediation, she was merely an interested person, “not a party to the proceedings,” and a written agreement to alter estate distribution is effective only via a written agreement executed by all who are affected by its provisions, MCL 700.3914.

Lesson for Mediators

The lesson for mediators seems to be that, if you want the agreement to be enforceable against all the participants named in it, you need to lean on the fiduciary to make sure s/he notifies them all about the mediation, and has them clearly designate a representative if any one of them chooses not to attend the mediation. Taking the two cases together, it also appears that mediators cannot rely on the legal definition of a “party” in deciding whom to notify about a mediation, pursuant to MCR 2.411(C)(1). In probate cases, the mediator would be wise to notify all potential beneficiaries, and not to proceed unless they all plan to attend or clearly designate a representative.

 

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