ACR Dallas NEWSLETTER, Vol. 4, No. 3, July 7, 2010, Page 1

Reading and Your Environment
By Gene Roberts, ACR Dallas President

Two items recently crossed my desk and I wanted to share them with you.  One was from LinkedIn.com's ADR, Conflict Resolution, and Mediation Exchange.  The other was from the Harvard Gazette.
The LinkedIn discussion asked this question:  "What books should every mediator—no matter their background or style of mediation—have read?"  This question elicited fifty-five comments with suggestions including William Ury's Getting to Yes, Kenneth Cloke's Mediating Dangerously, and 48 other books.  You can find a listing of these "must reads" at:  http://disputed.com/pdf/Recommended%20Books%20for%20Mediators.pdf. 
The other article notes that psychologists at Harvard, MIT, and Yale concluded that "interpersonal interactions can be shaped, profoundly yet unconsciously, by the physical attributes of incidental objects."  The researchers studied how touch "influences social judgments, perceptions of people, and decision making."  For example, subjects seated in a hard chair were less flexible in their negotiations (showing less movement between offers) than those seated in soft chairs.  Those in hard chairs judged their adversaries as "more stable and less emotional."  You can find that article at:  http://ht.ly/239ZA.
What do these two items have in common?  They reinforce that our job as professional neutrals is a difficult job and that while we must continually train and prepare, and at the same time, regardless of the intellect that we can try to impose upon a conflict, we must be aware of how our environment may influence whether the conflict is resolved.  As professional neutrals, we must take advantage of all of the tools that we have—whether through our education or the environment that we provide—to help those who are before us resolve their conflict.

July and August are traditional holidays for ACR-Dallas.  Our next meeting will be September 28.  Dr. Julie Bell and Robin Pou, authors of Performance Intelligence at Work:  The 5 Essentials to Achieving the Mind of a Champion will speak to us.  Dr. Bell, a sports psychologist, and Robin Pou, a successful entrepreneur, will show us how to change negative "what-not-to-do" thinking into proactive thinking.  The lessons from their book can be applied to our clients and to ourselves.  I encourage you to mark your calendars for this meeting and to bring a friend or colleague.
Summer is a good time to catch up on your reading.  A large amount of materials are available to improve your practice. Take some time, during this two month hiatus from ACR-Dallas, to enjoy a good book or two that will improve your practice. ------Peace, Gene

ACR Panelist Says,
‘Be Tough With the Lawyers’

            Lon R. Williams, Jr., a partner with Bracewell & Giuliani’s Dallas office, with more than 25 years of human resource, labor and employment law experience, and one of the panelists in the April 25 ACR Dallas meeting, said, “Mediators should be tough with lawyers. Set the ground rules and stick with it. Take control of the situation from the get-go.”
Williams said in labor relations, “Litigation is wasteful, and only benefits the lawyers.” Williams counsels management on employment discrimination, wrongful discharge, equal employment opportunity, occupational safety and health, wage and hour, and related issues. He also is a trained mediator and has participated in more than 100 mediations, most of which involve employment issues.
He advised mediators to “be creative. . . step out in the hall. . .”  with only the attorneys to get the negotiations moving. He also suggested taking the parties into caucus away from their attorneys .
Williams received his bachelor’s degree from SMU and has a master’s degree and law degree from Georgetown University.  He has been selected as a Texas Super Lawyer for the last six years and as one of the “Best Lawyers in America” for the last four years.
Don Swift drove from Wichita Falls to take part in the panel discussion. He lauded restorative justice mediation and recounted experiences in Indianapolis with a community justice center. Because of that “A community was being healed.” The mediator in those cases has to be “a victim’s advocate,” and empower them. He said a judge ordered mediation on request of the victim. Settlement contracts were sent to the judge. The program had a 90% success rate, Swift said.
While a Human Rescources (HR) director in industry, he used mediation rather than discipline. “Mediation is an extraordinary tool for the HR director,” he said. He cited an example of a factory in Montgomery, Alabama where the work force was half black and half white employees, and 70 per cent women. There was lots of conflict, but it was not from malice, but from miscommunication. Rather than progressive discipline, he used mediation successfully.
For the last fifteen years, Don Swift has assisted businesses with their quality management and human resources needs, including serving as director of human resources for companies in Michigan, Alabama, and Texas.  Don is a 1976 graduate of Ball State University and is a trained mediator.
Michael Olvera, senior vice president and senior corporate counsel for Affiliated Computer Services (ACS), said his company uses mediation and arbitration extensively. An employee in conflict can request help in resolution by mediation or arbitration. He pays a $50 fee for mediation or a $100 fee for arbitration. ACS uses two organizations exclusively, American Arbitration Association (AAA) and Judicial Arbitrators and Mediators Services (JAMS).
Olvera is board-certified in Labor and Employment law  and provides  legal advice on human resources matters including harassment, discrimination, terminations, restrictive covenants, disability, leave, wage and hour, safety, union campaigns and international employment for the company that  employs more than 70,000 people.  Michael has also worked as in-house counsel for Dallas Area Rapid Transit (DART), Electronic Data Service (EDS), and the U.S. Department of Labor.  He received his undergraduate degree from Stanford University and his law degree from the University of Texas. 

CVS Will Send EEOC Cases to Mediation

Mediation will be the preferred method for resolving employment discrimination claims filed against CVS Caremark, under an agreement the company entered into on June 29 with the Equal Employment Opportunity Commission (EEOC), according to a July 6 bulletin from Smart HR Manager.
The agreement to mediate declares that any eligible discrimination charge filed with the EEOC in any of its 53 offices naming CVS or Caremark as the employer/respondent will be referred to mediation, as appropriate. The company will designate a corporate representative to handle inquiries.
The program's purpose is to resolve workplace disputes before an EEOC investigation or potential litigation.
The EEOC has entered into 200 such agreements on a national or regional basis with large employers, mainly Fortune 500 companies -- "one of the largest employment-related ADR programs of its kind nationwide, with approximately 12,000 mediations conducted annually" -- according to an EEOC statement. 

Advice for Settling Difficult Cases

John DeGroote spoke at the May 25 meeting on “Lawsuit Settlement:  Seven Ways to Get There Faster, Better and Cheaper.” 
He suggested that the mediator learn what is not written in the pre-mediation statement by telephoning the parties the morning before mediation.
“Decision trees are the answer,” he said, and showed a sample decision tree on the screen. The decision tree starts with “If No Settlement,” and branches out like a family tree with ramifications for each party if the case does not settle. The next branches are “Summary Judgment Granted” and “Summary Judgment Denied.” If it is granted the winning party’s tree stops growing and the case is closed. If summary judgment is not granted, the possibilities branch off from that into “Plaintiff’s Verdict” and “Defendant’s Verdict,” with likely percentage of demand each might receive if victorious. Branched out from “Plaintiff’s Verdict,” are three estimates of what he might be awarded, “Low,” “Medium,” and “High.”
The mediator then asks, “Do you really understand your chances?” DeGroote said if two sides value the case differently, at least one is wrong.
If you can’t settle a case completely, you can settle it half way, he said. Get agreement on as many points in the conflict as you can. Both sides can then be sure of those points.
DeGroote talked about a “High/Low Agreement.” In a private caucus with the Plaintiff the mediator asks him to put a cap on what he demands. Confidentially, he would be willing to cap his demand at a certain amount. Then the mediator has a private caucus with the Defense and asks him to give him confidentially a bottom dollar he would accept to get the case settled. The High/Low Agreement saves time in negotiating inflated demands.
If mediation fails the case can go to non-binding arbitration, or both sides agree to let the mediator set the amount of settlement in what DeGroote called “The Mediator’s Proposal”. The mediator writes the amount, and presents it to one of the parties, without them knowing which one. The mediator presents the written number one party. If he does not agree to it, the mediator declares an impasse and the other party never knows what amount the other refused. If the second party agrees to it, the case is settled. If he does not agree to it, he has no way of knowing which party had first look.
DeGroote called Rule 68 “The Forgotten Rule.” After face to face mediation fails, the Plaintiff can write a check for his top dollar amount, with full release on endorsement, and a time limit of 30 days to cash it. Or, the mediator can ask the Plaintiff to pick a number for settlement, send the offer to the Defendant with 10 day expiration. Or, the Defendant can put an offer in writing to expire in 10 days. DeGroote said the mediation is never over until the trial date. The mediator should follow up and continue to try to get the parties together.
The most important quality parties look for in a mediator is that he/she has knowledge of the case. “Let the parties know you understand the case,” DeGroote said.
DeGroote is an attorney, served as Chief Legal Counsel and President of BearingPoint, Inc. (formerly known as KPMG Consulting, Inc.), and blogs on settlement-related issues at http://www.settlementperspectives.com/.  He has attended hundreds of mediations in 20 states, and has very good experience of what works and what doesn’t. 

DRS Board Committees
DRS Board Chairman, Ray Green announced that the DRS Board created the following Committees as directed by the County Commissioners.  Committees may be comprised of DRS Board members and members from the community.  The DRS Board Chair shall appoint DRS Board members to serve as the Committee Chairs. 
Committee Chairs may appoint other persons to serve as members of their committee. Persons may serve on multiple committees. Committee Reports should be presented in a discussion format, with opinions and viewpoints supported by a majority as well as noteworthy dissents.
Judiciary Committee,             Martin Lowy – Co-Chair, Mike Petty – Co-Chair, D’Metria Benson, Marilea Lewis, Mike Miller,     Ryan Brown – Ex-Officio, Duane Gallup – Ex-Officio.

DRS Board’s Mission
Mission:  Make recommendations for consideration in the DRS Board Report to County Commissioners, and for inclusion in the FY11 provider contract.  Canvass the Judiciary to determine preferences and concerns regarding the current ADR, DRO, and DMS programs. Define expectations for implementation of the County Dispute Resolution System, including referred case eligibility criteria, mediator criteria, and performance and other assessment measures.
Volunteer Mediator Pool Committee: Melodee Armstrong – Chair, Stacie Gibson, Joe Hewitt, Norberto Kanner, Pam Malacek, Irene Zucker.
Mission:  Make recommendations for consideration in the DRS Board Report to County Commissioners, and for inclusion in the FY11 provider contract.  Canvass volunteer mediators and mediator trainees to determine preferences and concerns regarding ADR, DRO and DMS programs, including user eligibility criteria, mediator qualifications and training, and performance and other assessment measures.  Identify means to gain support of professional mediators, and to ensure the success of a volunteer mediator program. 
Note:  Volunteer Mediator is defined as one performing services pro bono and may or may not be an attorney.
Strategic Planning Committee: Suzanne Duval – Chair, Mike Amis, Bob Bliss, Duane Gallup, Cris Gilbert, Jenifer Oborny,           Linda Thomas, Mark Whittington.
Mission:  Make recommendations for consideration in the DRS Board Report to County Commissioners, and for inclusion in the FY11 provider contract.  Review past, current and proposed plans and analyses to define, create and recommend a Strategic Plan for the Dallas County Dispute Resolution System.  Assess current practices, and benchmark others to determine a level of best practices criteria for the ADR, DRO and DMS programs.  Assess and forecast short and long-term needs and assessment measures for current programs and services, and public demands for additional community outreach programs.
Finance / Facilities Committee: Mark Carroll – Chair, Ryan Brown – ex officio, Duane Gallup, Stacie Gibson, Cris Gilbert, Nicky Kanner, Cecilia Morgan.
Mission:  Make recommendations for consideration in the DRS Board Report to County Commissioners, and for inclusion in the FY11 budget for provider contracts.  Develop best practices guidelines for financial management, and the reporting of relevant statistical information, and performance and other assessment measures.  Assess and forecast short and long-term financial requirements and availability of funds for responsible development of a County Dispute Resolution System.  Conduct review and consideration of current or expanded services provided by ADR, DRO, and DMS programs, and other community outreach programs and services as may be identified in the strategic planning processes.
Technology Committee: Martin Lowy – Chair, Pam Malacek, Eric DMS Database, Duane Gallup.
Mission:  Make recommendations for consideration in the DRS Board Report to County Commissioners, and for inclusion in the FY11 provider contract.  Assess current technology used by Dallas County, ADR, DRO, and DMS programs, and compare and contrast with other readily available technology.  Forecast short and long-term requirements for support of a County Dispute Resolution System, including ADR, DRO, and DMS programs.  Consider short and long-term system installation, training, maintenance and support requirements for operators, technicians, support personnel and others to use, manage, and maintain technology.
Professional Mediator Committee, Susanne Duvall – Chair, Mike Amis, Melanie Grimes,
Joe Hewitt, Gene Roberts, Irene  Zucker, Mel Wolovits.
Mission:  Make recommendations for consideration in the DRS Board Report to County Commissioners, and for inclusion in the FY11 provider contract.  Review past, current and proposed strategic plans for the Dallas County Dispute Resolution System, and provide analysis of the short and long-term impact on the professional mediation community.  Canvass the professional mediator community to determine preferences and concerns regarding current ADR, DRO, and DMS programs, and provide input on the scope of DRS services, funding, eligibility criteria and performance and other assessment measures.  Identify means to gain support from professional mediators, and to ensure the continued success of the professional mediation community as a service provider.  Note:  Professional Mediator is defined as one performing services for a fee and may or may not be an attorney.
(End of ACR Dallas NEWSLETTER July 7, 2010)