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FEBRUARY 2001 MEETING AND CURRENT ACTIVITIES

Topical Luncheons

Each month the ADR Forum Committee sponsors a topical luncheon at the CBA CLE Offices at 1900 Grant Street, 3 rd Floor Classroom from 12:00 – 1:30 p.m. Cost, which includes a sack lunch, is $12.00 for members of the CBA ADR Committee and $15.00 for all others. You may attend at no cost if you do not want a lunch. To RSVP, please call Barb Martin at 303-860-1115 or e-mail her at bjmartin@cobar.org. 1 CLE credit is available for each program. Mark your calendars and plan to attend:

MARCH LUNCHEON

There is no luncheon planned for March, instead the ADR Forum Committee urges everyone to attend the Colorado Judicial Institute. Look for details in the following column.

APRIL LUNCHEON
April 11, 2001
“ADR AND THE COLORADO OMBUDS”

The guest speakers will be three prominent ombuds. They are:
Roberta Steinhart, University of Colorado
Health Sciences Center;
Jenna Brown, University of Denver
Mary Lou Fenili, University of Colorado at Denver

COLORADO JUDICIAL INSTITUTE ADR FORUM
Don’t Miss This!

WHO? The Colorado Judicial Institute, in conjunction with the ADR Forum Committee and the Office of Dispute Resolution, is pleased to announce an all-day forum.
WHEN? March 9, 2001
WHERE? The Denver Athletic Club. 1325 Glenarm Place
WHAT? The Forum will include moderated panel discussions and interactive workshops. The discussions and workshops will explore a number of timely issues including:

  • Whether dispute resolution practices are meeting the needs of Colorado citizens
  • What steps can be taken to improve the quality of dispute resolution approaches
  • The public policy issues at stake.


WHY? To gather together individuals and groups interested, practicing, teaching, learning and using ADR to discuss issues, developments and processes.

The Keynote speaker for the morning session will be Denver District Attorney, Bill Ritter.
The lunchtime speaker will be Colorado Attorney General, Ken Salazar.
The closing speaker will be Colorado Supreme Court Chief Justice, Mary Mullarkey.

The morning and afternoon sessions will have concurrent workshops focusing on four areas:

  • The Courts
  • Government (State and Federal)
  • The private sector
  • Community-based activities

During the morning session, participants will discuss innovative practices presently being utilized and issues currently of interest. Examples of the topics likely to be discussed include mandatory arbitration clauses, business courts, confidentiality, accountability, ombudsmen, peer review, community mediation, violence prevention and restorative justice.

The afternoon session will include many of the same topics in the context of what the future could bring.

Watch for your invitation in the mail. You can also obtain a registration form or to obtain further information, please contact the Colorado Judicial Institute at 303-220-0609.

Application has been made for CLE credit. See you there!

VOLUNTEER MEDIATION PILOT PROGRAM

The County Court Volunteer Mediation Program is a program that will provide free mediation services for civil cases brought in Denver County Court and Small Claims Court. Starting on February 12 th , three Denver County Courtrooms and two Small Claims Courts will begin referring select cases to mediation. The program will rely on volunteer mediators. Trained mediators with some mediation experience who are interested in volunteering their time should contact Miles Davies at 303-796-0447, e-mail mdavies834@aol.com

LONG RANGE PLANNING MEETING

The ADR Forum Committee met on February 2 nd to discuss the future direction of the Committee and to decide how best to advance the mission of the Committee which is: To provide a forum for educating the legal community, the judiciary and the general public on issues relating to Alternative Dispute Resolution.

We discussed organizing a retreat with various ADR groups, including, for example, community based mediation groups, bar associations, JAMS and CDR.

We also discussed providing members of the Speaker’s Bureau to present ADR oriented material to various sections at the CBA Annual Convention which will be held in September in Vail.

There were many great ideas and much enthusiasm from those in attendance. A second Long-Range Planning Meeting is scheduled for March 2, 2001 at 11 a.m. – immediately prior to the next business meeting. Everyone is welcome.

ADR In Practice

As a new feature, this column will be devoted to printing stories, lists, suggestions and other items that relate to the day-to-day use of ADR.

Ethics and the Role of a Mediator

Written by Stephen R. Marsh, Attorney - Mediator
THE ZISMAN LAW FIRM, P.C.
1412 Main Street, 23rd Floor
Dallas, Texas 75202
Email: SMarsh@adrr.com

Reprinted with permission.

Introduction

Two hypotheticals:

1 -- You, as a mediator in a personal injury case, are in a separate caucus and one side's representative comments that they have no authority and are at the mediation purely to see how low the other side will go.

2 -- You, as a mediator in a property sale/purchase matter, are in separate caucus and the purchaser states that while the seller thinks the property is going to be preserved as a historic site, the buyers intend to bulldoze it as soon as the paperwork is signed. What should you do?

Identifying The Hidden Issues

The first hypothetical, the "adjuster without authority" hypo actually has three different questions and is three separate problems. The issue areas are:

  1. Procedure
  2. Fraud
  3. Abuse of Process

The mediator's response to each of the three issues depends on who the mediator is, which process he is committed to and what mediation is.

Is the mediator a Judicial Officer, acting in loco parentis for the Court or is the mediator a Withdrawn Neutral?

Is the mediation process Participatory or is the mediator's role Content Free?

Is mediation an Equity Process or is it a Negotiation Conference?

Which is Right?

Currently, no model is right and no model is wrong -- as long as the parties know what they are getting into before the ethical issues arise. The ethical issues raised in the hypotheticals above only give a mediator trouble if the mediator's role is not clearly defined before the mediation begins.

Most mediators think they fall into one of two styles, though the majority actually act as members of a third style.

The first, the "Fiber optic cable mediator," is a Withdrawn Neutral whose role is to transfer information, Content Free, in a Negotiation Conference with the parties seeking their own best interest. Such a mediator is a part of the process, like the furniture, and owes the same duties as the furniture -- if the mediator has clearly made the parties aware of the mediator's function and role. Such a mediator does not intervene when the system is abused (or "tooled") because intervention destroys the system. They are easy to blame, but they are also easy to appreciate.

The second, the "Court Officer mediator," is a Judicial Officer whose role is to Participate and to see that Equity is done. Such a mediator will report to the Court when fraud or lack of authority are present (often with sanctions against one party or the other), prevent fraud or abuse, and seek to find the "right" resolution. Such a mediator intervenes in order to make the justice system just. and seeks to impose settlement They are easy to hate.

The third, the "Filter mediator, " is a "fiber optic cable mediator" who is a Neutral whose role is to aid the parties in exploring the settlement options and to filter out noise from the settlement negotiations. None of these models are "right" -- but each of them can lead a mediator to do things that are wrong.

Avoiding Problems

A mediator decides what their role is and then a mediator avoids problems and answers the ethics questions by:

  1. deciding what the mediator's role is in mediation
  2. informing the parties what that role is
  3. obtaining the agreement of the parties to the mediator serving in that role
  4. before the process begins. (Ideally, before the parties are committed to a mediation date).
  5. If the mediation is court annexed, the Court should also know and affirm the mediator's role.

A mediator sets procedural guidelines and avoids problems by:

  1. Providing the parties with the procedural guidelines in advance of the mediation
  2. Including role information in the guidelines
  3. Following the guidelines.

Note that most guidelines are set forth in Court orders referring the matter to mediation or in the mediation agreement signed and returned by the parties prior to the convening of a mediation session.

Application

1--You, as a mediator in a personal injury case, are in a separate caucus and one side's representative comments that they have no authority and are at the mediation purely to see how low the other side will go.

If the mediator is properly prepared, this becomes merely a procedural matter. The mediator's guidelines in the contract or Court's order should include a requirement as to who must attend. If the proper parties are not in attendance, then the mediator may inform the side that does not have the necessary parties attending that the mediation will need to be recessed until that person attends unless the other side agrees to go forward without the proper person in attendance. If the mediator is also responsible to report to the Court, the mediator does so. If, on the other hand, the Court's referring order clearly states that the mediator is not to report anything to the Court, or only report whether or not the case settled, then the mediator reports nothing to the Court. (*practice tip* If your court's do not use orders that include language of this type, submit proposed orders for the court's use that do. A court order clears up a large number of questions).

2--You, as a mediator in a property sale/purchase matter, are in separate caucus and the purchaser states that while the seller thinks the property is going to be preserved as a historic site, the buyers intend to bulldoze it as soon as the paperwork is signed.

More and more commercial property deals are bringing in mediators to make the matters go more smoothly and to speed up closings. A mediator can add significant value to such a transaction. When inequity arises, or fraud in the process, the mediator's agreed role becomes important.

If a community center mediation was used, most of them start out explaining that they will explore values with each side and work towards a settlement that meets the goals and values of the parties. In such a mediation, the sellers will never get the chance to be overreached as their values (preserving the historic site) are clearly put on the table. The mediator has no chance to be abuse or the system co-opted. A Court Officer mediator also clearly warns the parties to expect certain types of behavior to be revealed. No confidences are breached in such a system when the disclosure is pre-approved by the terms of the mediation. On the other hand, a Withdrawn Neutral has warned the parties that they are looking out for themselves, the neutral is just allowing it to happen faster in a less expensive fashion.

The only time that there is a problem is when the mediator decides to change roles or not live up to their duties (e.g. a Withdrawn Neutral suddenly decides to explore core values with the seller; a Court Officer decides that the price is fair, the new building project worthwhile and the whiny seller needs to move on and sign the paperwork, etc.).

Conclusions

Most mediation problems and issues arise because the mediators lack structural support and a clear understanding of what type of mediator they are. As mediation becomes a more mature area of practice and as the functional framework of mediation is better understood, most of the common problems and issues should be resolved. The only real issue that remains, and by far the hardest, is the issue of just which model (if any) is right and why.

We still have many more questions to answer before we can approach that question.

Copyright 2000 Stephen R. Marsh

CALL FOR HELP

The editors of this newsletter would like to begin printing ADR related stories and facts of interest. We are going to need the help of our members to succeed.

All members and non-members are encouraged to contribute a story of his or her own. We want your individual ADR stories that come from day to day use of ADR.

Some story ideas: a case which has been resolved through the use of ADR; lists of things to consider before attending mediation; or monthly case summaries involving ADR.

Please submit your ideas to Brian Fletcher by e-mailjbfletch@hotmail.com or by telephone at 303-299-8253.

LEGISLATIVE ACTIVITY

Susan Jennings, ADR Forum Committee Intern, drafted a Legislative Activity report for the last general ADR Forum Committee meeting. The report lists and summarizes ADR related bills that have been introduced in either the Colorado State House or Senate. The report also lists activities in other state legislatures.

For a copy of the report contact Miles Davies at 303-796-0447.

GRANT MONEY AVAILABLE

The City of Denver has grant money available for use with helping Denver Kids. A suggestion has been made that this money may be available for assisting with the costs of a peer mediation program in Denver Public Schools. Anyone interested in pursuing this project is encouraged to contact Miles Davies.

CBA ADR BUSINESS MEETINGS

The CBA ADR Forum Committee meets at noon the first Friday of every month at the CBA Office. So mark your calendars for, March 2 nd , April 6 th and May 4 th . All members are welcomed and encouraged to attend.

Please note that all sub-committee chairs are requested to attend the Business Meetings in order to provide a report of activities. If the chairs can not attend, then another member of the subcommittee should attend the Business Meeting to make an in-person report. In the event that no one can attend, then a written report should be submitted to our Chair, Susan Demidovich, prior to the Business Meeting. Thanks.

DBA ADR ELECTION

Congratulations to Miles Davies for winning the election for the DBA ADR Forum Committee Chair position. All members are encouraged to call Mr. Davies and express congratulations.

SUB-COMMITTEES REPORT KEY ACTIVITIES
Industry Focus/Employment Fritz Ihrig, Chair

This subcommittee is presently exploring ways to rekindle the distribution of the ADR in Employment manual.

Watch for updates in future issues of this newsletter.

Persons interested in joining this sub-committee can contact Fritz Ihrig at 303-562-1750.

Colorado Lawyer Sub-Committee
Lili Lehrburger, Chair

In case you missed it, there is an interesting article, written by Nancy Thoennes, on the use of mediation in dependency and neglect cases in the February issue of The Colorado Lawyer.

Look for an ADR article in the June issue on recent trends in employment law for mediation and arbitration.

We are always looking for articles and authors. Lillian Lehrburger has announced that she will be handing over the reins of this subcommittee. Anyone interested in taking on the ADR Column please contact Susan Demidovich at 303-695- 0653 x111.

ADR in Government
Merrill Shields, Chair

This subcommittee has a meeting scheduled for various department heads of the Colorado State agencies. The purpose of the meeting is to discuss ADR in employment disputes.

Watch for updates on this matter in upcoming issues.

The ADR in Government Sub-committee meets each month at 11:00 a.m. immediately before the ADR Forum Committee meeting (normally the 1syt Friday of the month) at the CBA offices. Any interested persons are welcome to attend.

Topical Luncheons
Patrick Kenny & Susan Demidovich, Co-Chairs

The following three suggestions for topical luncheons were discussed at the February meeting: 1) Legislative initiatives, 2) ADR education in Colorado, and 3) Good faith and mediation. Watch for further details on luncheons exploring these three topics.

MAILING LIST

This newsletter and other announcements from the ADR Forum Committee may be received by placing your name on the mailing list. This list is open to both members and non-members. If you would like to place your name on the mailing list or if you know someone who would like to have their name on the list please contact Melissa McClerkin at the Colorado Bar Association offices, email: melissam@cobar.org

COMMITTEES, ACTIVITIES AND PROGRAMS TO JOIN

Are you looking for a way to become more involved? The following sub-committees, are available for you to join. Please contact the chair if you would like to participate.

Bar Convention Sub-committee
William J. Baum, 303-316-1523
Fax 303-316-1525
E-Mail: bill_baum@mail.skiwinterpark.com

Colorado Lawyer Column
Lillian Lehrburger, 303-837-1001
Fax 303-839-1031

Education/Topical Lunch
Co-Chair
Susan Demidovich 303-695-0653,ext.111
Fax 303-695-6795
E-Mail: sgdemid@aol.com
Co-Chair
Patrick Kenney, 303-757-5000
Fax 303-850-7168
E-Mail: kenneylaw@aol.com

Industry Focus Employment
Fritz Ihrig 303-526-1750,
Fax 303-526-4241
E-Mail: fgihrig@aol.com

Industry Focus Health Care
Co-Chair Barbara Crawford, 303-388-9311, Fax 303-322-3872, E-Mail: blc@yscpc.com
Co-Chair Liz Carver, 303-788-2510, Fax 303-779-4993, E-Mail: elizabeth.carver2@healthonecares.com

Legislative
Chair position to be announced soon.

Membership
Robin Amadei, 303-604-1960, Fax 303-604-6278

The Colorado Pledge
Sheila Somberg, 303-376-9016, Fax 303-744-1880

Government ADR Task Force
Co-Chair: Valerie McNaughton, 303-322-0069, Fax 303-393-1535, E-Mail: vmcnaughton@aol.com
Co-Chair: Merrill Shields, 303-436-1930, Fax 303-322-2288, E-Mail: merrillshie@aol.com

Long Range Planning
Susan Demidovich 303-695-0653, ext.111, Fax 303-695-6795 E-Mail: sgdemid@aol.com

FORUM COMMITTEE EXECUTIVE COUNCIL

CBA Chair – Susan Demidovich 303-695-0653, ext.111, Fax 303-695-6795.

DBA Chair – Miles Davies 303-796-0447, E-Mail: mdavies834@aol.com.

Chair-Elect – Patrick Kenney, 303-757-5000, Fax 303-850-7168, E-Mail: kenneylaw@aol.com

Past Chair – Van Elmore, 303-659-7342, Fax 303- 659-1051 or E-Mail: vel@rmi.net.

Secretary – Brian Fletcher 303-299-8253, 303- 777-8239, E-Mail: jbfletch@hotmail.com

Members at Large – Cynthia Savage 303-837- 3667, Fax 303-837-2340
Bruce Campbell 303-825-8400