Settlement Conferences, Narrative Mediation & Med-Arb

Just a quick selfie before beginning our session in Richmond (with Rachel Campbell).

I have been on the road a lot this month! I really enjoyed a workshop with the Virginia Mediation Network in late September on The Alternatives in Alternative Dispute Resolution. In early October I had the pleasure of participating in a symposium on Restorative Justice at the University of Richmond. But today, I’m returning to my series on the options in Alternative Dispute Resolution. Today, I am going to address a few options, in more general terms. Some are early in development, and I have not fully described them. Others involve processes that many practitioners do not include under the ADR Umbrella.

SETTLEMENT CONFERENCES

Judges, retired judges or a neutral “settlement officer” may convene a settlement conference to discuss the potential for settlement of a case.  The judge or settlement officer does not decide the case but assists the parties in evaluating the strengths and weaknesses of their claims.  The discussion then influences negotiations for settlement.  Some courts require mandatory participation in settlement conferences close to the date a case is set for trial.   Virginia judges may refer parties to a mandatory settlement conference pursuant to the Judicial Settlement Conference Program.  The parties then select a retired judge from a roster maintained by the Supreme Court who convenes and conducts the process. Details on the Virginia program are available here.

NARRATIVE MEDIATION

Narrative mediation requires finding a way for multiple stories to co-exist.

Narrative mediation is a new form or style of mediation when the mediator works to generate a new story or a new narrative that supports the resolution of the conflict.  In the process, the parties share their stories and examine them for the potential ways that the two narratives intersect.  For more information, I recommend John Winslade, Practicing Narrative Mediation (2008).

CONCILIATION

Conciliation is difficult for me to define.  In Mediation and Facilitation Training Manual, Foundations and Skills for Constructive Conflict Transformation (4th Ed.) Jim Stutzman defines it as “A process in which a third party attempts to help parties to collaborate, but less structured or formal than mediation.” As a broad term, I’ve heard it used to encompass all mediation-like processes.  In Italy, conciliation is a particular process, often used in labor and consumer disputes, where the third party plays a direct role and is seen as an authority figure or develops and proposes terms of the agreement.  In that process, attorneys tend to have a less active role.

MED-ARB

Med-Arb combines mediation and arbitration.  Parties who prefer a mediated resolution, but also want the case concluded, select this process. The mediation begins like an evaluative style mediation.  The mediator may caucus with the parties, facilitating negotiations.  If they reach an impasse, the mediator assumes the role of the arbitrator and makes the decision.  This process raises a significant number of ethical issues, and any mediator who undertakes it should research those issues and be confident that his or her role is well defined and acceptable to the parties. For more information see Richard Fullerton, The Ethics of Mediation-Arbitration, 38 Colorado Lawyer 31, May 2009.

I’ll cover more details about arbitration in my final post in this series. Stay tuned!