Mediation and Musicians

One area I specialize in is conflict mediation and negotiation coaching for musicians and others working in the music industry. Its fair to ask why I think mediation and negotiation training can be so useful to this community.

First, I should confess that although I played several instruments when I was young (piano, trombone, tuba and bass guitar), I was decent but not great, and I don't play much any more. I do sing on occasion, but thankfully for the public at large, only around the house to my wife and son (much to their amusement -- at least, I hope they're amused), so I can't say that counts as a performance. But, the experiences I have had with playing music instilled a love and respect for music as an art in me. Beyond that, I've always been a huge music fan, and have always had extremely eclectic tastes in music. Finally, my older brother, Stephen, is a consummate guitar player and performed for years back in Pennsylvania, where I grew up. These days he doesn't perform (at least not regularly), but he still plays. So, for all of these reasons, I've always had a strong affinity for both music and musicians, and I'm grateful to both musicians and the music industry for giving me so many opportunities to hear so many different things.

Mediation and negotiation coaching can be helpful to the music industry because the people in it tend to get into more high conflict situations than most people do. Its not that they are any more argumentative than the average person; far from it. But, most of them are doing what they do because they are truly passionate about music. Most bands, managers, promoters, and labels -- even very successful ones -- aren't just doing it for the money. When all the participants are passionate about what they are doing, and passions run high, its easy to get into conflicts and have a hard time finding a constructive way out. Artistic differences can lead to difficult conflicts which, if they can't be resolved in a creative way, can end with everybone's aspirations being frustrated.

Beyond the strong passions of the people involved, music has also become an increasingly complicated business over the past few decades. Over the past twenty years, the Internet and other new technologies which have created a host of new ways music can be sold, shared, and heard, and created a corresponding number of new challenges and opportunities for musicians, managers, promoters, and labels at the same time. Rapid change and increased complexity greatly increase the possibility of misunderstandings and conflicts.

In addition to the conflicts that are unique to them, musicians face the same types of conflicts other people do. That can be conflict with a neighbor, a family member, a landlord, an employer (if they have a day job), or any other person they have an important relationship with. In many of those situations, a lawsuit may do more harm than good; and even if the conflict is legal in nature (for example, a divorce or custody dispute), mediation is usually a better, less expensive, and less stressful alternative to litigation.

Mediation is one tool that people in the music industry can use to help resolve conflicts, whether those conflicts are legal or personal in nature. But even if a full-blown mediation isn't called for, most people who are having a tough time getting along with someone else can benefit from negotiation training or coaching; a lot of times, just having an outside perspective from someone used to defusing conflicts can go a long way. But I try to do more than just deal with the conflict at hand. My goal is to put the people I am working with in a better position to negotiate and resolve conflicts on their own going forward.

In future blog posts, I'm going to put out some information about how musicians and others in the music industry are using mediation and good negotiation techniques to work out problems (whether legal or personal) when they come up. I'm also going to provide some good basic negotiating tips readers can use to tackle some of their conflicts when they come up, and I'll do my best to illustrate and explain them in a way that will make them relevant to those in the music industry.

Here are a few links to start, that illustrate that mediation can and is being used in a broad range of contexts relevant to musicians and the music industry:

Click here for a story about how mediation is being incorporated in an anti-piracy law as a way to try to resolve conflicts between copyright holders and consumers in New Zealand.

Click here for a story about the high cost of litigating intellectual property disputes (including trademarks and copyrights) and the benefits of trying mediation instead.

Click here for a story about a police complaint mediation process that includes an example involving musicians who got into a conflict with the police.

Click here for a story about the inherent power of music to help either cause or resolve conflicts depending on its use -- in other words, music's inherent mediation qualities.

Mediation and Grandparent Visitation Rights

As our conceptions of what makes a family a family have changed, the law has come to recognize "new" legal rights. Fifty or sixty years ago, it would have been taken for granted that grandparents would get to see their grandchildren, probably on a regular basis. But, as our society has become more and more mobile, and other cultural norms have changed, that isn't always the case anymore. However, as a result, over the past few decades there has been an increasing willingness to recognize the legal rights of grandparents to visitation with their grandchildren.

The Official Code of Georgia, Title 19, Chapter 7, Section 3, Subsection b (O.C.G.A. 19-7-3(b)) states: "(b) Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, a divorce of the parents or a parent of such minor child, a termination of the parental rights of either parent of such minor child, or visitation rights concerning such minor child or whenever there has been an adoption in which the adopted child has been adopted by the child's blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents."

O.C.G.A. 19-7-3(c) states: "(c) Upon the filing of an original action or upon intervention in an existing proceeding under subsection (b) of this Code section, the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation. The court shall make specific written findings of fact in support of its rulings. There shall be no presumption in favor of visitation by any grandparent. An original action requesting visitation rights shall not be filed by any grandparent more than once during any two-year period and shall not be filed during any year in which another custody action has been filed concerning the child. After visitation rights have been granted to any grandparent, the legal custodian, guardian of the person, or parent of the child may petition the court for revocation or amendment of such visitation rights, for good cause shown, which the court, in its discretion, may grant or deny; but such a petition shall not be filed more than once in any two-year period."

Breaking this down, grandparents can seek visition in Georgia in two ways:

1) They can file an original (ie, stand-alone) court case seeking visitation. However, to do this:
- there can't be any other cases before a Georgia court that involve custody or visitation for the child;
- the parents of the child must be separated or divorced;
- the grandparents can't file this type of action more than once every two years; and
- the grandparents can't file this type of action in any year that another custody action has been filed for the child.

2) They can join an existing case involving custody, divorce, adoption, or termination of parental rights.

Whether the a grandparent files an original action or joins an existing case, to establish visitation rights, they must show the court two things: (a) that the child's health or welfare will be harmed if visitation is denied; and (b) visitation is in the child's best interests. Neither of these things is assumed to be true by the court, and the burden of establishing them is on the grandparent.

If you are a grandparent seeking visitation rights with your grandchildren, why should you consider mediation?

1) Under current Georgia law, it may be very difficult for you to establish your rights to visitation. Even though Georgia recognizes the right of grandparents to petition for visitation, you cannot petition if both biological parents are alive, married, and are still part of a single family unit. Even if the parents are no longer together, many courts are reluctant to interfere with a parent's right to make decisions for their children absent truly compelling reasons to do so. The burden of establishing your right will be on you, and that won't necessarily be easy to do.

2) In many cases, the reason why visition rights are an issue is that the relationship between the grandparents and one or more parents of the children has broken down. In most cases, it is possible to re-establish that relationship or at least establish mutually agreed-upon ground-rules for visitation if the parties are willing to sit down and negotiate, especially if the focus is kept on the best interests of the grandchildren rather than any personal issues between the parties. Most parents recognize that their children are likely to benefit from contact with their grandparents, even if they don't get along that well with those grandparents. Most grandparents are willing to agree to certain conditions regarding their visitation (such as, for example, refraining from making any negative comments about the parent) with their grandchildren. In the majority of cases, a mediated agreement is possible and is much better than the alternatives.

3) Suing in court is extremely expensive and emotionally draining for all sides. It can also put the grandchild in an very difficult position and runs a real risk of emotional damage to them, if and when they realize that the remaining adults in their lives are fighting over them. It should be your last resort, not your first choice.

4) Mediation is a structured process that is time-proven to yield results. By getting an objective third party involved and agreeing to a structured procedure for negotiation, you can get directly at the critical issues and avoid getting side-tracked into arguments and fights with each other over non-critical things. An experienced mediator will work to make sure that all sides come to understand each other better and reach an agreement that everyone can live with and abide by.

If you are a grandparent and you feel you have been cut off from one or more of your grandchildren, and you want help approaching their parent or parents about this issue, please contact me to see if I can help you.

Why Mediation?

I recently read an article on www.mediate.com that talked about the reasons why a party should choose mediation or arbitration over litigation. It was fine as far as it went, but it didn't cover any new ground. It gave pretty much the same reasons that I talk about on my website, and which are well-known (and well-worn) among mediators and many others: (1) its less expensive; (2) the parties have more freedom to design and determine their own results; (3) its quicker;(4) the result is more certain, since the parties have to agree with it, as opposed to submitting themselves to the will/whim of a court (this is especially true for mediation and non-binding arbitration, although even with binding arbitration the parties have more freedom to define the scope of what issues the arbitration will cover and the possible options for how things will be resolved than they usually have in court); (5) unlike court proceedings, which are matters of public record, its a private process; and (6) if its important to them, the parties have a much better chance or retaining some level or relationship between them going into the future.

Again, the article was fine as far as it went. But these are just the reasons dancing on the surface. There are much deeper reasons why parties should choose mediation and arbitration over litigation any and every day of the week.

Mediation and arbitration are a paradigm shift away from modern litigation practice, and therein lies their real value. In litigation, the parties are exclusively in opposition to each other. Litigation is a form of "civilized" war, and as William Tecumseh Sherman observed, "War is hell."* Like war, litigation is costly, expensive, and destructive, and all sides -- even the eventual victor -- lose on some level, in terms of blood, sweat, and treasure. Also like war, litigation is usually characterized by long periods of boredom and tension, relieved only by brief moments of abject terror in court, often followed by horror on all sides at the results. All litigators know that a long, drawn-out litigation is a terrible waste of time and energy, and should only be undertaken when there are literally no other options. Litigation is a scourge to be avoided if at all possible.

Mediation and arbitration, then, are nothing short of a way out of hell, an escape from this scourge. A good mediator, like the musician Orpheus from greek legend (who entered Hades to rescue the soul of his lost love), can enter into the middle of a conflict and lead the parties out of their private hell (although hopefully with a better end result than Orpheus, who made the mistake of looking back at his love before they were out of Hades altogether and thus lost her forever).

Properly done, mediation breaks the parties out of opposition against each other and turns their energies towards attacking the problems that have arisen between them. A skilled mediator can move the parties out of a zero sum game into a position where they can use their creativity to come up with a fair solution, or even a win/win solution where they both end up better off than they were before. Arbitration, at a minimum, is a vast improvement over the time and expense of litigating in court, and if its well designed, can lead to results that will help the parties avoid similar conflicts in the future.

So, if you are involved in a litigation, or even an ongoing, long-term conflict, the choice is clear: you can stay in your private hell until you get to an end result one way or the other, as ruinous as it may be; or, you can make the paradigm shift to mediation and arbitration and look for a way out.

How's that for a dramatic way to express the reasons why parties should mediate or arbitrate rather than litigate?

FOOTNOTE:

* "War is hell" is really a paraphrase (or one possible variation) of what Sherman said in one or more of his speeches and writings. In a speech to cadets at the Michigan Military Academy on June 19, 1879, Sherman is reported to have said:

"I’ve been where you are now and I know just how you feel. It’s entirely natural that there should beat in the breast of every one of you a hope and desire that some day you can use the skill you have acquired here. Suppress it! You don’t know the horrible aspects of war. I’ve been through two wars and I know. I’ve seen cities and homes in ashes. I’ve seen thousands of men lying on the ground, their dead faces looking up at the skies. I tell you, war is Hell!"

As recounted by Dr. Charles O. Brown in the Battle Creek Enquirer and News (18 November 1933). See also http://en.wikiquote.org/wiki/William_Tecumseh_Sherman.

There is some historical controversy over whether Sherman actually used the phrase "War is Hell" despite this eyewitness report, but it is clear he expressed this sentiment in at least some of his writings, even if he didn't use this exact phrase.

General Civil Mediation Training Review

As a professional mediator, I am constantly on the lookout for training opportunities I can use to improve my skills. Training can’t replace experience; but nothing beats a combination of solid training and experience. Because of this, from time to time I am going to “review” some of the mediation training programs I’ve attended, both to explain my background and as a resource for anyone thinking about taking a particular training course.

Every mediator in Georgia who is registered with the Georgia Office of Dispute Resolution (Link to GA ODR) is required to take a 28 hour basic civil mediation course and observe five mediations (a 12 hour observation seminar can be used to fulfill this requirement). I live in Athens, Georgia, home of the University of Georgia, and mediation training is offered locally through UGA’s Fanning Institute. It was an easy decision to take my civil mediation training at Fanning based on logistics alone, but it turned out to be an even better decision than I realized at the time I made it.  

All law schools purport to teach using the “Socratic Method”, a system where students are challenged to learn by answering questions posed to them by their professors. The idea is that this forces students to engage with the material and learn to think and reason like lawyers, rather than just memorizing the material put forward by the professor. The reality is most law professors are terrible at it. If you’ve been to law school, you’ve probably had several classes where the professor starts out trying to use the Socratic Method and gives up after a week or two in favor of straight out lecturing. It turns out that the Socratic Method makes the professor work as hard or harder than the students, and most professors (even very good ones) just aren’t up to it. There are some exceptions, and they tend to be the professors you remember the best, but they really are few and far between.

Raye Rawls is the person at the Fanning Institute who offers mediation training. If you are already a mediator in Georgia and have trained with Raye, you know why it was lucky I decided to train at Fanning. Raye is the best practitioner of the Socratic Method I’ve ever met. She covered the material and engaged the class in discussion about it in a way that left me feeling more energized after class than I did before it started – high praise, considering the classes lasted the entire day. I recommend her course for anyone interested in basic mediation training. You can’t do any better than Raye, and you could definitely do a lot worse.

A few other highlights of the program at Fanning: (1) it’s relatively inexpensive compared to the other training programs I looked at (although I didn’t have to take travel/hotel costs into account); (2) the training was broken up into several weeks in Friday/Saturday sessions, meaning that I didn’t have to take too many days away from my practice to attend; (3) an observation seminar was scheduled for the Sunday/Monday following the last training session, so it was possible to complete that training while the course basics were still fresh in my mind; (4) the class size (about 10 people) was a good size for this type of course, and I enjoyed meeting all of the other members of my class; and (5) the facilities at the Fanning Institute were excellent. Athens is easy to get around in, and has a perfect college-town vibe. There are also hotel accommodations right across the street from the Fanning Institute at the Georgia Center on UGA’s campus, and several good hotels around town if you need to stay overnight. 

Here’s a link if you are interested in finding out more about mediation training at the Fanning Institute: Fanning Mediation Programs

If you are planning to come to Athens for mediation training and will be here overnight, you can find information about where to eat and things to do in Athens here: The Flagpole

Can Mediation Help With The Foreclosure Mess?

A topic that has been on my mind for the last several months is what mediation may have to offer when it comes to the mortgage/foreclosure crisis. I've gotten some feedback about this from a variety of sources; unsurprisingly, most mediators I have spoken with about this can see a lot of potential value. For many others (bankers, lawyers, and even consumers) the value is less clear, although that may be partly because (as I describe in the next paragraph) the terms "foreclosure mediation" and "mortgage mediation" are loaded.  In this post, I want to briefly outline a few general thoughts I have had on this topic.

First, a quick caveat: there are a lot of individuals and companies out there that call themselves "mortgage mediators" or "foreclosure mediators" who are outright scam artists. They take money from desperate homeowners with promises to get them relief and enable them to stay in their homes, and do little or nothing to help them. With the most insidious of these scams, they may even intentionally structure things so that a foreclosure happens and they purchase the property out of foreclosure for pennies on the dollar, then rent the property back to the owner, in effect taking any equity the homeowner may have built up in the process. Many of these individuals and companies are under investigation by the government, but as in any crisis situation, there will be a lot of people out there preying on other people's misery, and it will be difficult for the government to catch and prosecute them all.

To distinguish what I am talking about here from those types of scams, I am going to use the term "loan mediation" instead of foreclosure or mortgage mediation.

In researching this area, I have come across many models for "loan mediation" that are, in my view, much closer to classic debt counseling and debtor attorney work than mediation. For example, the FDIC has been promoting a program over the last few months that would allow for loan modifications provided the borrower met certain specific criteria, and it was clear (at least based on the criteria set out by the FDIC) that the homeowner had a good chance of making the modified loan payments and staying in their home. The FDIC's proposal seems like a vital plan to me, and many lenders are considering and/or announcing similar programs.  However, I have heard at least one detailed description of "loan mediation" that involved the mediator coaching borrowers to meet the requirements of this type of program and helping them apply for a loan modification from their lender; in other words, serving as their advocate with their lender.  That type of "loan mediation" really just puts the mediator in the role of a professional debt counselor or debtor's rights attorney.  Aside from possible concerns about the unauthorized practice of law and subject matter expertise, that just isn't really mediation -- its advocacy.

I think there is going to be a real need for exactly that type of advocacy in the future as we work our way through the foreclosure mess, but I think mediation has a separate and potentially valuable role to play. So while I honor the work that debt counselors and debtors attorneys have ahead of them, I think it should be left to them, since it is their area of professional expertise.  I'd propose a different role for mediators looking to help with the foreclosure mess.

My own vision for what a loan mediation would be is something much closer to a "classic mediation"; it would be a specific event where both parties come to the table prepared to negotiate, with or without outside advocates, and seek to reach an accommodation. The mediator's role would be, unsurprisingly, to mediate between the parties, rather than necessarily taking one side over the other. Arguably, it would be best for the mediator to have at least some subject matter expertise (they should at least be familiar with the outlines and parameters of the lender's loan modification program), so that they can help the parties determine what their options are quickly and efficiently.  But the role of the mediator here would not be to direct the course of the parties; rather, it would be to help the parties navigate the negotiation process and explore all of their options fully.

Having this sort of mediation event makes sense for a variety of reasons. One of the most important is that it would create an event for both parties to focus on as a "loan modification event". One of the common complaints both borrowers and lenders have about the foreclosure process is the lack of communication between the parties.  Sometimes, it's the borrower's fault; overwhelmed at the prospect of losing their home and the unfortunate circumstances that have brought them to the brink of financial ruin, they cannot bring themselves to call their lender.  Other times, its the lender's fault (or at least, the loan servicer's fault); the borrower contacts them, but because the loan has changed hands or the lender is otherwise overwhelmed with inquiries, no dialogue happens.  By making mediation part of the loan foreclosure process, the parties can create an event (other than an actual foreclosure) which they can focus on for settlement purposes.  

For want of a better way to put it, mediation can also give both parties a "good excuse" to compromise and meet in the middle.  A lot of times, in our day-to-day interactions, we can get locked into particular positions, and become inflexible.  A person working for a lender may get so used to saying "no" that they start to do it reflexively, without really stopping to think if that answer makes sense in this particular case.  A borrower may be so emotionally caught up in their situation that they can't see a way out other than to either fight or run away, not realizing that there are actually other options.  A big part of the value of mediation is that the parties know they are coming together specifically to try to find a compromise.  Sometimes, just knowing this and seeing that the other party is willing to sit down for the same purpose can inspire people to think creatively and come to a compromise they never could have reached otherwise.

Mediation would also create an opportunity for the parties to have a dialogue and work out how to proceed in the event that a loan modification will not be possible.  Taking the FDIC program as an example, if a borrower clearly did not meet the FDIC's criteria, the parties would still have a choice; does the bank simply foreclose, and force the borrower out?  Or, is it possible for the parties to reach an agreement for the borrower to remain in their property for a time before voluntarily leaving and turning over the property to the bank?  Are there any other options out there that might put both the bank and the borrower in a better position than they otherwise would be?  Neither party is likely to find out unless they have an active dialogue, and the best way to do that is to do it face-to-face.

Although I think it is clear that mediation can bring a lot of value to the foreclosure mess, it is fair to ask exactly how mediation could be implemented in a way that would maximize this value.  That is a topic that I intend to address in a future posting.

Facilitative vs. Evaluative: The Great Debate

Ironically, sometimes even mediators can have a raging debate. One such debate is the argument between many (although certainly not all) mediators about whether a “Facilitative” or “Evaluative” approach to mediation is best.

A facilitative mediator believes that their main role is to facilitate dialogue and communication between the parties. They place a premium on the idea that any resolution of the conflict should come directly from the parties themselves, and that the parties’ freedom to choose a resolution must be protected at any cost. A mediator who is completely dedicated to the facilitative model will be reluctant, or may even refuse, to provide any direct feedback to the parties about their respective positions. They will focus instead on getting the parties to fully develop and communicate their position to the other side, in the belief that in doing so the parties will come to a fuller recognition of the strengths and weakness of each position and in turn recognize otherwise hidden settlement possibilities.

An evaluative mediator, on the other hand, believes that an important part of their role is to provide the parties with direct feedback in addition to facilitating dialogue and communication between them. An evaluative mediator puts a premium on the idea that the parties need an objective framework within which to view both their own position and the position of their opposition, and that by providing this, they will both increase the chance that the parties will reach a settlement and decrease the amount of time it takes them to get there. A mediator who is completely dedicated to the facilitative model will not hesitate to give the parties direct feedback and evaluation of this position, and may even do away with parts of the “traditional” mediation process that call for the two parties to meet in a joint session, opting instead to head straight into one-on-one meetings between the mediator each of the parties.

Another way to describe this difference is to say that a facilitative mediator is focused more on mediation as a process (in the belief that by sticking to and honoring the process, they will create the best conditions for settlement), while an evaluative mediator is focused more on the bottom line results of the mediation (in the belief that by doing so, they increase the chances for a settlement).

So, the debate rages: which approach is best?

My own feeling (and I suspect the feeling of many other mediators) is that neither a facilitative nor evaluative approach is always the best approach. While most mediators have to work with the style they are most comfortable with most of the time, all mediators should be capable of either type of mediation depending on the circumstances, and should even be capable of switching between each style in the midst of a mediation if the situation calls for it. If you don’t have that kind of flexibility as a mediator – if you get too locked into one model over the other – you will miss out on settlement opportunities.

Let me apply the idea that a flexible approach is best to an area where I myself mediate, to try to illustrate what I mean by this.

Let’s assume that I am mediating a construction dispute or other commercial litigation matter, where a lawsuit has already been filed and both parties have attorneys. In that type of situation, it’s fair to say that as a mediator, I need to be prepared to evaluate the claims and defenses of the parties involved, and to give each party my thoughts and feedback. On the other hand, I think even in that situation, it would be a mistake to jump directly into an evaluative approach, without starting out from a facilitative approach. Jumping directly into an evaluative mode in an attempt to “short circuit” the mediation will prevent both the mediator and the parties from ever arriving at a full and rich understanding of the positions of both sides, and is likely to result in settlement options getting too narrow too soon. A better approach is to start out in a joint session usually a facilitative approach, giving each party a full and fair opportunity to present the strengths and weaknesses of their case, and to focus on getting each party to fully understand both their own and their opponent’s position.

However, unless that process in and of itself leads the parties to a settlement resolution (not impossible, but not likely if the parties haven’t been able to solve their differences outside of mediation already), keeping a “facilitative only” approach going once the process moves to private caucuses probably won’t be productive. In my view, one of the great opportunities of private caucuses is that they give the mediator the opportunity to give the parties feedback (either directly or through aggressive “reality testing” by asking the right questions) without the other party being present. If the mediator is not willing to do that, the caucus process will devolve into the mediator simply shuttling back and forth with settlement offers, something which the parties could really have done on their own. Once they are stuck in simple back-and-forth “positional bargaining” mode, the parties are likely to harden their positions, and real opportunities for creative settlement solutions are likely to be lost. But even then, in the private caucuses, the mediator should avoid getting too locked into evaluative mode; the mediator has to keep their mind open to the possibility that the parties positions may be changing and developing in ways that weren’t apparent in the joint session, and needs to keep “facilitating” that change as a neutral third party, instead of getting locked into their own opinion about who is “right” and who is “wrong.”

Although most mediations will be “hybrid” situations like the one described above, there may be some situations where one approach to mediation is clearly better than the other. For example, although I don’t currently handle divorce mediations, my friends who do have told me that a joint session is usually a bad idea, and that usually an evaluative approach is best. A facilitative purist would argue against this, but my friends’ logic is simple: divorce mediation is not meant to be divorce therapy, and the goal is to help the parties resolve their legal differences in the most painless and fair way possible. Because the emotions in a divorce case tend to be particularly strong, it’s unreasonable to believe that the parties will be able to resolve all their emotional differences in a joint mediation session, so rather than put them through that pain, it’s best to head directly into private caucuses. Once in the private caucus, my friends report that most parties and their lawyers find evaluative particularly helpful, since again their subjective motions are probably running particularly high. Divorce law also tends to be an area where many of the ground rules are set out very clearly by the law, and provided the parties agree on key facts important to the case, it can be relatively straightforward to predict what a court would be willing to do. Of course, the key here for my friends is to make sure that, in the process of providing objective feedback, they never stray into acting as an advocate or advisor for either party. That is made much easier by the fact that most parties in divorce cases have attorneys.

On the other hand, it is easy to imagine a situation where an evaluative approach really wouldn’t be appropriate. For example, if I were mediating a dispute between two teachers who share a classroom and are having a conflict over class resources, the main issue may be getting the two parties to communicate and build a rapport that will let them continue to coexist after the mediation is over, not just settling the immediate dispute. Being evaluative in that situation could easily cause put me as a mediator in opposition to one side or the other, and cause them to shut down. If anything, in that sort of situation, as a mediator my job would be to resist the natural temptation of each party to try to get me to “decide who’s right”, and my job would be to get the parties to focus on and recognize each other as individuals.

And, of course, there are some sorts of mediations where the ground rules compel a mediator to pick one approach over another. For example, in court-annexed mediations here in Georgia, a premium is placed by the relevant ethical rules on allowing the parties to arrive at their own resolution and preserving their freedom to compromise or not compromise on their own terms. Arguably, a mediator in a private mediation will have much more leeway to be evaluative that a mediator in a court-annexed program. I try to honor those ethical rules in all of my mediations regardless of the context, but it is an important point worth thinking about as a mediator.

Because I believe that a flexible approach to this debate is best, that means I have to hone both my facilitative and evaluative skills. To hone my facilitative skills, I stay current on the latest conflict resolution theories, and spend time thinking about the process of negotiation and conflict resolution. And, of course, I practice those skills every time I mediate. To improve my evaluative skills, I have designated “research days” that I keep clear on my mediating calendar so I can take the time to research the latest happenings in the different mediation areas I specialize in (currently, commercial and civil litigation, real estate, landlord-tenant, elder care, and education) or even look at specific issues if I know I have a mediation involving a particular subject matter. I also draw on my legal background and years of experience as an attorney.

Finally, it is worth noting that the entire “facilitative/evaluative” dichotomy is a simplification (at least, the way I’ve described it here). In a recent article published in Conflict Resolution Quarterly, Nadja Alexander sets forth a much more sophisticated “meta-model” covering six distinct types of mediation, and eloquently makes the point that most professional mediators move between one or more modes of mediating depending on the situation. The Mediation MetaModel: Understanding Practice, Nadja Alexander, Conflict Resolution Quarterly, Volume 26, No. 1, Fall 2008, pages 97 - 127. However, even though it’s a simplification, the basic facilitative/evaluative debate is a real one, and is likely to rage in some quarters for a long time to come, even if in reality the best approach is a hybrid, non-dogmatic one.

Initial Post

This blog is about alternative dispute resolution processes in general. Its main focus, however, will be on mediation and especially the types of mediation in which I specialize. The goal of this blog will be to provide a forum for me to air out my own views and ideas about different dispute resolution processes, which in turn will give prospective clients a better idea of the type of mediator/arbitrator/etc. I am. Although this inital post is short, I intend to add posts to this blog regularly and look forward to the chance to communicate in this way.