Ethics and Service of Process in the Digital Era

I'm a professional "neutral"--arbitrator, mediator and ALJ--who is also an avid tweeter and blogger.  What began as just one more way to try to build market presence quickly became something I intrinsically enjoy--although, as apparent from my increasingly sporadic by-line dates, I have more trouble finding time to do it as my business does grow!

At any rate, because of my involvement in various social media, I am especially sensitive these days to how the digital era is challenging lawyers and decision makers in many ways.  The Facebook  issue has been well trod by me and others, but new issues seem to arise every month, a couple of which I'd like to talk about.

Best Practices for Judges and ALJs to Ensure Adequacey of the Record

If you attended the 2011 annual conferences of either the National Association of Hearing Officials (NAHO) or the National Association of Administrative Law Judiciary (NAALJ), or ever attended the Fair Hearing Course of the National Judicial College, you know that an issue ALJs and arbitrators regularly wrestle with is whether and how vigilantly to ensure the creation of an adequate record. In a nutshell, "it depends," as we lawyers and neutrals all like to say.  As I've discussed elsewhere, a neutral generally will leave it to counsel to develop the record if the parties are represented, and there will be a greater obligation for the decision maker to step in if the parties are unrepresented, and/or if it is a non-adversarial proceeding involving substantial rights such as to income or licensing.  

Interestingly, the debate has finally extended to--or been formally recognized to extend to--the the judicial Courts as well.  In Turner v. Rogers, No. 10-10, 564 U.S. ___ (June 20, 2011), the U.S. Supreme Court concluded that judges can and must intervene

A Pressured Judiciary--Fact of Life and Cause for Alarm?

As a neutral decision maker of many years, I am always intrigued by the pressures that can be brought to bear on the process, and how judges or decision makers handle that pressure.  When I was a hearing examiner with the New Mexico Public Employee Labor Relations Board both the Director and I would periodically receive communication from the then-Governor's Chief of Staff, urging one resolution or another as "appropriate."  I had also occasionally received calls from or at the behest of a union president who had recommended me to the Board, seeking some particular outcome or action.  These and similar moments inevitably create some tension, but in my experience ALJs are generally able to sidestep the tension.

Because of this background, though, I have both sympathy and a healthy dose of "so what's new" for state court judges who find themselves pressured by an angry electorate.  You may recall, in 2010, three Iowa Supreme Court Justices lost their seats during retention elections in response to Court having earlier ruled that an Iowa statute limiting marriage to one man and one woman violated the State's Equal Protection Clause. It is

Difficult Questions in Mediation and Conflict Coaching

As a mediator and conflict coach in New Mexico, I am often confronted with how to question my clients so as to best explore an issue or dispute “trigger.” 

Conflict coach Woody Mosten frames it as getting to the “dangerous questions.”  He calls them dangerous because they require lots of honesty, sensitivity, and a willingness to work through issues.  They also require that you have already built up sufficient trust

Neuroscience, Emotions and Conflict Resolution

As a mediator in New Mexico, I strive to keep apprised of current literature and emergent theories in the mediation field.  One exciting trend is the rise of growing understanding of the importance in neuroscience and emotions in the field of mediation.  These trends are highlighted in the Summer 2011 ACResolution Quarterly Magazine, in a number of excellent articles I'd like to summarize here.

Court Abused Contempt Powers in Crowd Control

As an arbitrator and hearing officer/ALJ in New Mexico, I am occasionally confronted with the issue of proper use of contempt and contempt-like powers.  I have from time to time been frustrated with the arbitrator and hearing examiner's relative lack of powers to compel compliance.  However, reading a recent New Mexico court decision, it occurred to me without such powers we are also insulated from their potential abuse in heated situations. 

On Perceptions of Justice

As a professional "neutral" (mediator and arbitrator) in New Mexico, I am keenly interested in due process, fair hearings and equal access to justice.  In 2008, the ABA Judicial Division Lawyers conference began a multi-year "Perceptions of Justice" (POJ) project to address concerns over public perceptions as to how the judicial system handles race and ethnicity, and its first phase has now completed. This blog post discusses the recommendations, findings and observations of six separate "town hall meetings" held across the nation from February 2009 to February 2011, as part of Phase 1.