January 7, 2011 – 5:10 pm
Some of the rules governing mediation in Michigan may change in 2011. As I mentioned in November, Michigan’s court rule on mediation was adopted in 2000 and has not been amended since then. A new Court Rule on Confidentiality in mediation is being considered. The current rule (MCR 2.411(C)(5)) is two paragraphs; the proposed rule is two pages. So far there has not been much comment so it may well be approved this year. The State Court Administrative Office is proposing brand new Mediator Standards of Conduct, and they too may be finalized in 2011. The current Standards are two pages; the new ones run to eight, and are not only more comprehensive–they apply to both general civil and domestic relations mediation. Neither of these rules will change mediation practice in Michigan, but they will give mediators significantly more, and better, guidance than they have today.
November 22, 2010 – 2:49 pm
Michigan’s Court Rule on mediation is now ten years old. The provision on confidentiality in mediation has proven to be both too broad in some ways, and too narrow in others. In November 2008, the State Court Administrative Office convened a committee to recommend changes to the court rule on mediation confidentiality. The committee members included attorneys, some of whom are ADR providers and some of whom are ADR “consumers,” as well as law professors, mediation trainers, an ADR Clerk from a local court, a CDRP center director, and me — over two dozen in all. The committee met several times as a whole, for some wide-ranging discussions on the intricacies of confidentiality. A strong influence was the Uniform Mediation Act, which some states have already adopted. For various reasons, we chose not to recommend adopting the UMA, but to incorporate its best provisions into a new court rule.
Confidentiality in mediation gets very complicated! While we all agree in principle that it’s a good thing, it turns out to be very difficult both to define it and to ensure it. I was humbled by the many wise people on the committee who understood its intricacies far better than I could. We finally agreed on a draft rule this summer, and it was submitted to the Michigan Supreme Court for their approval. The Court just ruled last week that the proposed rule should be published for comment. If everyone agrees that this rule is an improvement, Michigan should have a new court rule on confidentiality in 2011.
Here is a link to the proposed Michigan Court Rule on Confidentiality: http://courts.michigan.gov/scao/resources/publications/reports/ODR-MediationConfidentialityReport.pdf
September 13, 2010 – 10:14 pm
Having done two arbitrations in the last month, I’m reflecting on some troubling aspects of Christian arbitration.
How can a witness be cross-examined to cast doubt on credibility, without violating biblical commands to love one another? Should a Christian arbitrator permit cross-exam that dredges up dark incidents in the witness’s past, for the sole purpose of attacking the witness’s credibility? When does it turn into gossip, or slander? Is it kind? Is there another way for a lawyer to raise doubt about credibility besides by humiliation and innuendo? This is obviously an issue for any Christian litigator in court, but Christian arbitration is supposed to be conducted according to biblical standards. So how different should cross-exam be, when it’s in a Christian setting?
Should a party be permitted to question the motive of the other party? In one case, the party’s brief expounded on the theory that the other side was motivated by greed. In Christian mediation, mediators often recommend a ground rule of, “No assuming motives”—that neither party is permitted to speculate on what motivated the other party to do something, since such speculation is usually negative and sometimes worse than the truth. If parties shouldn’t speculate on motives in mediation, should they in arbitration? Is it helpful for the arbitrator to be supplied with a possible motive for the other side’s [unacceptable] behavior, or is it simply unkind? Should the arbitrator impose a rule of “No assuming motives” in arbitration, or is that excessive?
Must each provision in an arbitration award be legally enforceable? Can the arbitrator include a recommendation that a party apologize to the other, for example?
Christian arbitration literally fulfills I Corinthians 6:5 (that there are indeed people within the church “wise enough to judge”) so it’s important to get it right.
August 10, 2010 – 4:56 pm
A common way to compose an arbitration panel is for each party to select an arbitrator, then those two select the third arbitrator. The arbitrators selected by the parties may be neutral, or partisan. Marty Weisman, a respected Michigan attorney and arbitrator, has written about the challenges associated with party-appointed arbitrators (e.g., in an article for this year’s Michigan’s Advanced Negotiation And Dispute Resolution Institute [ANDRI]). Marty points out that, if the selected arbitrators are partisan (non-neutral), they may act as advocates for the party who selected them. They end up canceling each other out, and the neutral arbitrator is the one who decides the case—so parties would’ve saved time and expense by simply choosing one neutral arbitrator. Even if the party-selected arbitrators are designated as “neutral,” they still struggle between their need to be impartial and their inherent (even subconscious) bias in favor of the party who chose them. Thus, Marty recommends one neutral arbitrator instead of a panel that includes party-appointed arbitrators.
I experienced this tension in an arbitration I did recently. I was a party-selected arbitrator, designated as partisan, yet encouraged to be fair and just. Our neutral arbitrator was a respected former judge. Not being a litigator, I saw myself as an advocate for justice as much as I was an advocate for the party who selected me. In our deliberations, the three of us fairly quickly agreed on a resolution, which was a confirmation to me that we had reached a just result.
After our decision was announced, however, the party who selected me expressed her disappointment with the award, implying that I had not advocated enough on her behalf. I see this as yet another disadvantage of party-selected arbitrators: the losing party is unhappy, not only with the outcome, but also with their choice of arbitrator. The party might also feel this if there were only one arbitrator, but it would not be the same sense of betrayal as when the party has selected an arbitrator who ends up “letting them down.”
I have done arbitrations for years, but usually solo, not as part of a panel. I thought this was a positive experience, until I learned “my” party’s dissatisfaction. Now I am left to wonder, if another party-selected arbitrator appointment comes my way, should I refuse?
I just did two mediation workshops at the EEOC’s Excel conference, held this year in Orlando, Florida. I have now become acquainted, though not yet familiar, with all the mediation that takes place within the Federal government. It sounds like most federal agencies have mediation programs in place, replete with trained, experienced mediators, including military bases and VA hospitals. I was impressed with the caliber of the mediators I met. My workshops built on the Riskin grid, encouraging mediators to consider how they could move beyond their favorite style of mediation when the situation requires—and how to recognize that. One of the Federal government’s policies regarding employee disputes is that the mediator must come from another agency. This is presumably to ensure the mediator’s neutrality and impartiality, and probably also aids in mediator confidentiality. But, as we discussed in one of our workshops, it deprives the parties of the chance to choose someone from within their agency who understands the culture, jargon, etc. Thus, one facet of party self-determination—the choice of mediator—is compromised somewhat. Nevertheless, it was encouraging to hear how well mediation has become integrated into the Federal government workplace.
