Ex Parte Contacts a No-No Even if Done to Keep the Peace

Recently, the New Mexico Supreme Court disciplined a Municipal Court Judge for ex parte contacts held in relation to a criminal property damage claim in a small New Mexico community.  See In re Micheal G. Rael, Sr., Inquiry No. 2011-040.  In a case that is illustrative of "the ethical dilemmas judges in small communities face,"

Revisiting the "Mutual Gains Framework"

Like any mediator or conflict coach, I sometimes despair over the state of public discourse, and how divided the populace seems to be on just about any substantive issue. 

In 1996, Lawrence Susskind & Patrick Field published Dealing with an Angry Public, in which they first noted "concerns about the distrustful attitudes that citizens have toward government and corporations, and the inability of these institutions to respond to public concerns in a robust, inclusive and effective way."

In response, the authors put forth a number of principles to regain public trust:
1- acknowledge the concerns of the other side;
2- encourage joint fact finding;

Peace Circles & Community Conflict

I've previously written about talking or peace circles while providing a "primer" on ADR terms, theories and concepts.  Talking circles originate in indigenous cultures, and are closely related to theories and techniques seen in restorative justice generally.  Such restorative justice (a.k.a. reparative, reconciliation or integrative justice) techniques have been used with considerable success to bring healing in the face of both wide-spread cultural conflicts, and to parties affected by property damage crimes.   See ADR Terms, Theories and Concepts - A Quick Primer.  

Jack B. Hamlin and Justine Darling describe a 2010 experiment using talking circles to address a socially and emotionally complex community issue: homelessness in Ocean Beach, California.  See ACR Conflict Resolution Quarterly, vol. 29, no. 4, Use of Peach circles in Large-Scale Community Conflict: A Case Study.  The study provides great learning potential.

Loan Modifacation Gaffes Not Grounds to Set Aside Foreclosure

I have previously written about my work as a foreclosure mediator.  See Foreclosure Mediation - Limitations and Concerns and How a Mediator Can Help in Foreclosure - More Thoughts.  A common defense raised on behalf of homeowners in mediation is that a Bank has breached either HAMP guidelines or the duty to bargain in good faith for certain action taken in processing a loan modification request, or in proceeding with foreclosure while a loan modification application is pending.  As I've noted before, a couple of state court case around the nation have indicated a willingness to entertain claims concerning a duty to try to settle foreclosure cases, or to exercise a duty of care in processing a loan modification request. See Foreclosure Mediation, supra.  However, recently the New Mexico Court of Appeals appears to have rejected this line of foreclosure defense.

Judges Weigh in On Value of Pressing for Settlement

The Spring 2012 issue of the ABA Journal of Litigation interviewed two federal Judges, Judge Dan Polster of the Northern District of Ohio and Magistrate Judge Jeremiah J. McCarthy of the Western District of New York, regarding their mediation philosophies.  Id., Judicial Mediation:  Two Judges' Philosophies.  Ultimately, they both believe--and I think most decision makers would agree--that parties and the judicial system are almost always better off with voluntary settlement, so much so though that "even aggressive judicial settlement efforts" may be warranted, although caution is always required.

Foreclosure Mediation More Like Facilitation

As a foreclosure mediator, I've previously written about some of the benefits and limitations of mediation foreclosure.  See  Foreclosure Mediation - Limitations and Concerns and How a Mediator Can Help in Foreclosure - More Thoughts.  Recently, Susan M. Yates and Heather Scheiwe Kulp have written about mediation foreclosure, and note that "foreclosure mediation" often does not look much like "mediation" as we ADR practitioners typically think of it.  I have also noticed this, and frequently discuss it with my foreclosure mediation clients.  

I describe it as more of a "facilitation" process in which I help the homeowner and the right and left hands of the bank speak together about foreclosure and loan modification. 

Administrative Standing in NM

In New Energy Economy, Inc. v. Hon. Linda M. Vanzi, 012-NMSC-005, the Supreme Court answered the question, "What level of participation in an administrative rule-making proceeding gives a participant the right to defend that new rule in an appellate court during a subsequent appeal?"  After very fine and comprehensive analysis, discussed below, the Court holds that  "those who have participated in a legally significant manner in administrative rule making ... have the right to participate as parties to an appeal if they express such an intention."

Dangers of Applying the "Beguilingly Simple" Plain Meaning Rule

Previously, I have written about the New Mexico Medical Malpractice Act (MMA) and it's Review Panel on which I serve.  See NM Medical Review Commission - Overview and  NM Medical Review Commission - Stats.  Because I do serve on the Review Panel, med-mal cases are always of interest to me, obviously.  However, one recent decision also teaches important lessons on statutory construction generally, which is quite relevant to an arbitration practice like mine.  Specifically, Baker  v. Hedstrom M.D., et al., 2012-NMCA-073 (cert granted), teaches us to "exercise caution" in applying the "beguilingly" simplistic "plain meaning rule."

Schools and ADR Opportunities

Schools are integral institutions to today's society--they educate our children, they are the social stomping grounds where our children learn much more than "the 3 Rs," they employee many talented hard working folks, and they can be social hubs for the communities in which they reside.  Not surprisingly, alternative dispute resolution (ADR) opportunities can abound in these multifaceted environments!  Gearing up for the new 2012-2013 school year, the Summer 2012 Dispute Resolution Magazine is devoted to discussing how mediation and other forms of ADR intersect with the school environment.

Effect of Belief in Bias

An interesting note in the September 2012 ABA Journal:  belief in bias or belief in the existence of negative stereotypes about a group to which you belong, can block your success.  Research by Steven Spencer, psychology professor at the University of Waterloo shows that when a group of students were told men do better on a graduate level math test, the men in fact did better.  However, there was no difference if the students were told there was no score difference based on gender.

AFSCME Can't Force Arbitration

Back in July -- I know, this is dangerously close to 'old news' but it's still an interesting tidbit -- Judge Beatrice Brickhouse of the Second Judicial District concluded that a local AFSCME chapter could not force the City of Albuquerque to arbitrate under a compact signed in the latter days of the outgoing Chavez administration.

Mediation Community Marked by Rich Diversity of Background and Perspective

The Winter 2012 quarter of ACResolution Magazine has a very nice series of articles addressing how mediators' various professional backgrounds affect their conflict resolution work.

The issue offers a refreshingly pragmatic view point, in my opinion.  In the past few years, LinkedIn and other professional discussion groups have reflected some serious "crisis of faith" amongst alternative dispute resolution (ADR) practitioners, as we weigh the relative merits of competing mediator styles, and struggle to define ourselves within this very broad and indefinite system of processes and techniques called ADR.  

To me, much of this chatter calls to mind the admonition that we mind our own row, not that of our neighbors.  Not only do we not need to comment on and critique the different ways our neighbors have of doing things, we also do not need to judge ourselves against our neighbors.  What I appreciated about this ACResolution issue is that it neatly eschews the whole discourse of whose way is better, by simply recognizing that we ADR professionals are all uniquely shaped by our backgrounds and experiences. 

Do We Care More about the Niceties than Conflicts of Interest and Incompetency?

As a neutral Administrative Law Judge and arbitrator, I have had some hot-headed uncivil litigants appear before me over the years.  Sometimes I have threatened them with sanctions: mild, administrative stuff, such as excluding argument or evidence which the incivility concerns; halting the hearing; or--in extreme cases reflecting a pattern of disrespect--excluding counsel or their client from the hearing.  Generally, though, I chalk it up to that just being what advocates do.

Recently though, I have had cause to wonder if  society and/or the bench is going through a bit of a metamorphosis on this issue.  The April 2012 ABA Journal notes

Cultural Issues in Conflict Resolution

In Have Gavel, Will Travel, Honeyman and Cheldelin (2008) note the increasingly global and cross-cultural aspect of conflict resolution. Indeed, society itself is increasingly global and cross-cultural, so it should come as no surprise that conflict is increasingly cross-cultural.  This is all relevant for alternative dispute resolution (ADR) practitioners because we must always be aware of and sensitive to diversity and cultural competency issues.   We must provide ADR services, including conflict resolution education, that respect the

Mediating Workplace Bullying Claims*

As I have previously written, bullying is a hot topic today.   Cleaning House and Cleaning Up Our Acts - Anti-Bullying Legislation, and Bullying Legislation, Revisited.  As such, it is natural for alternative dispute resolution (ADR) practitioners to move into this field.  However, caution should be used in doing so, and practitioners should consider in each case whether mediation is appropriate and, if so, what it should look like.

In the Fall 2011 issue of the ACR Conflict Resolution Quarterly, Vol. 29 No. 1, Moira Jenkins asks Is Mediation Suitable for Complaints of Workplace Bullying? Although she herself does not appear to come to any firm conclusions, the article raises a number of helpful points to be considered by managers and individual ADR practitioners consider the issue.  First, as Ms. Jenkins observes, bullying is often not well defined, and in the workplace bullying may be confused with a number of other activities that are similar but nonetheless distinct. 

Independent Decision Makers--What to Make of It?

As an Administrative Law Judge and arbitrator, I have felt pressures to conform to the needs or desires of the executive or other party employing me.  I have written about this before, in the context of reminding folks that the judiciary is not so special in this regard.  See A Pressured Judiciary--Fact of Life and Cause for Alarm?  Indeed, it is likely that the tendency to exert pressure--even if inadvertently and/or subtly--is far greater in the administrative or arbitration contexts, where the adjudicatory decision maker is more likely to work closely and regularly with party representatives.  

That is not to say there is something nefarious is going on.  It could be as simple as having a casual conversation about procedure that gently blends into due process questions,

"Insight Mediation"--Just a New Handle for Old School Skills?

The 2011 Winter issue of the ACR Conflict Resolution Quarterly, Vol. 29, No. 2, includes an article by Cheryl Picard and Marnie Jull describing "insight mediation" as a new and emergent method or style of mediation.  Learning Through Deepening Conversations:  A Key Strategy of Insight Mediation.  The authors attempt to distinguish it from other styles or theories of mediation, and includes some new terms and language, but

Revisiting Mediation Styles and Their Correlation to Results

Over a year ago, I reviewed an article in the ACR Conflict Resolution Quarterly, Fall- Vol 28, No. 1, by James A. Wall, Jr. and Suzanne Chan-Serafin, asking “Do Mediators Walk Their Talk in Civil Cases?”  Wall and Chan-Serafin, along with Timothy Dunne have now revisited the issue of mediator strategies (what I call "styles") to analyze the relative consistency and success rates of different mediation styles, as well as the settlement rates in particular types of cases.  Again, their data reveals some surprising and not so surprising trends. 

More Inconsistent NM Arbitration Law

As an arbitrator, I get frustrated by and critical of New Mexico case law from time to time.  Well, I guess it shows.  See Arbitration in NM not in Line with US Supreme Court Decisions, NM Arbitration--State Supreme Court Bucks National Trends; but see Arbitration Clauses in NM--Agreement at the Extreme End.  

As I've written elsewhere, and repeatedly, in Rent-a-Center, West, Inc. v. Jackson, 130 S.Ct. 2772 (2010), the U.S Supreme Court has

The Context and Framework of Conflict Coaching

As I have written previously, the alternative dispute resolution (ADR) field is a broad one, which includes among other things, mediation and conflict coaching.  While I have mediated for a number of years, I am new to the conflict coaching field and continue to