Identity-Based Conflict

As a New Mexico arbitrator and mediator, I see a lot of conflict that arises from a variety of sources, and I also work to keep up with new (and old but shifting) theories of conflict. I recently had the pleasure of attending a teleseminar by Maria Simpson, Ph.D.," discussing identity-based conflict," as opposed to resource-based conflict, as a "less well-understood" but very significant dynamic of conflict. What she teaches can add a lot to our understanding of the sources of and effective responses to conflict.

NM Medical Review Commission - Stats

Recently I wrote about the New Mexico Medical Malpractice Act and the N.M. Medical Review Commission generally.  As a Panelist for the Commission and a mediator/arbitrator/ALJ, I believe medical malpractice cases should have a high potential for mediation or other alternative dispute resolution (ADR) process.  I also strongly suspect that ADR could be used more effectively and efficiently than litigation to resolve many of these disputes, which Acting Commission Director Michael Rueckhaus describes as "some of the most complex and time-consuming cases that are filed in court."

To appreciate the complexity and contention of these cases, it is illuminating to examine the annual statistics reported in the 2010 Annual Report (June 28, 2010) concerning what happens to medical malpractice claims after they have been heard and voted on by the Commission. 

Arbitration in NM not in Line with US Supreme Court Decisions

In March of 2011, I wrote about a number of recent and interesting SCOTUS decisions concerning arbitration, including Rent-a-Center, West, Inc. v. Jackson, 130 S.Ct. 2772 (2010), and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758 (2010).  As I wrote in March, "[i]n the last few years, the legitimacy and reach of arbitration and arbitration clauses have been considerably expanded by the U.S. Supreme Court," with these and other cases.  Thereafter, in April, the Court issued an even more striking arbitration related decision, AT&T Mobility LLC v. Concepcion, No. 09-893 (Apr. 27, 2011), which held that California law declaring unconscionable the ban on class-wide arbitration is preempted by the  Federal Arbitration Act.

However, in a decision just published in the New Mexico Bar Bulletin this month--but dated April 8, 2011, before the date of Concepcion--the New Mexico Court of Appeals came to a different conclusion.  See Felts v. CLK Management, 2011-NMCA-062, cert. granted.  It turns out the State Court of Appeals hadn't gotten the memo on the direction of prior SCOTUS drift à la arbitration.  Then again, neither has the NLRB or California, by some accounts.

NM Medical Review Commission - Overview

In the summer of 2010, I signed up and began to regularly appear as a panelist for the New Mexico Medical Review Commission, pursuant to the New Mexico Medical Malpractice Act, NMSA §§41-5-1 et seq.  (eff. Mar. 1, 1976).  Although a voluntary engagement, I have found it enriching:  I practice my general hearing examiner skills, meet some really neat, knowledgeable doctors and lawyers; get all the coffee I want late at night; and have also learned a lot about medical malpractice generally, which I would eventually like to incorporate into my mediation practice.  This blog will discuss the overall structure and purpose of the Medical Malpractice Act and the Commission, in preparation for a later blog on Commission case statistics.

Judicial and Public Servant Ethics in NM

As a professional "neutral" (arbitrator, mediator and ALJ) in New Mexico, I am always alert to ethical issues, and public perceptions of neutrals and "justice" generally in my community.  As many know, New Mexico has suffered for several years under charges related to the political and corruption financial misconduct of various elected officials and public officers.  Unfortunately, the reputation of her judiciary has also taken a hit in the last year.  It is good, however, to see the State Supreme Court take a strong stand for the Code of Judicial Conduct of late, in two of the following cases, and to make a decisive ruling against a non-judicial public officer in the final case.

Employee Deemed Constructively Discharged After Successful Mediation

In a recent employment law case, the New Mexico Court of Appeals affirmed a jury verdict awarding an NMSU employee almost $125,000 in damages for retaliation and constructive discharge claims. The decision was largely unremarkable in its analysis and discussion:  that actions occurring before the statute of limitations can be considered under the continuing violation doctrine; and that the sufficiency of evidence is a high standard of review under which the appellate courts will not substitute their judgment for that of the fact-finder.

Far more intriguing to me, however, what was left unsaid in the decision:  how the Court came to conclude that an employee was constructively discharged in spite of obtaining an apparently successful and agreeable settlement through mediation that altered the original, offenses conditions of employment.

How a Mediator Can Help in Foreclosure - More Thoughts

I've written in a previous blog about the role and utility of mediation in foreclosure matters.  Here are a couple of additional tips and pointers raised by participants in a discussion group devoted to foreclosure mediation.

In the group, like in my prior blog post, we discuss the effectiveness and value of mediation at all.  One practitioner weighed in with the view that even though such "mediation" is really more like facilitation of the loan modification, short sale etc. process, real value can still be provided to the parties.

What are the Essential Qualities of a Good Mediator?

As a professional mediator in Albuquerque, I like others always strive for personal excellence, and continued professional development.  This blog discusses the essential qualities of a good mediator, as identified in the Model Standards and by practitioners.