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Settlement Conferences, Narrative Mediation & Med-Arb
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.
Restorative Justice as an Alternative Process
Today, we continue in our review of the alternatives within ADR and will look at restorative justice or restorative practices. My law and mediation practice is based in the principles of restorative justice. Today’s post looks more at a few of the processes often associated with restorative justice that are sometimes used instead of conventional litigation or court processes.
Early Neutral Evaluation
Today, I’ll continue my series on the Alternatives in Alternative Dispute Resolution that I began earlier this summer after facilitating a workshop on this issue In July for the West Virginia State Bar. In September, I’ll be joining the Virginia Mediation Network to facilitate the workshop for that fabulous group of mediators. Today’s process is more common in Canada than in the areas where I practice, but Early Neutral Evaluation may save the parties a great deal of anguish, time and expense.
Transformative Mediation
Transformative mediation was first described by Robert A. Baruch Bush and Joseph P. Folger in The Promise of Mediation. They describe it that the transformative theory starts: “(…(F)rom the premise that inter-relational crisis is what conflict meant to people. And help in overcoming that crisis is a major part of what parties want fro a mediator…In the transformative mediation process, parties can recapture their sense of competence and connection, reverse the negative conflict cycle, reestablish a constructive (or at least neutral) interaction, and move forward on a positive footing, with the mediator’s help. “ Transformative mediation is not therapy. The mediator's goal is not to alter the relationship. Rather, the mediator strives to balance the parties' negotiation power while creating opportunities to address underlying issues, within the context of resolving the presenting dispute.
Facilitative Mediation: A Good Model for Many Types of Conflicts
In facilitative mediation, the mediator works to facilitate negotiation between the parties using interest-based or win/win strategies. The parties work directly with the mediator and may include discussions regarding feelings and expectations. The mediators guide the parties in making informed decisions. The mediator does not advise the parties or attempt to influence their decisions. Parties may have attorneys, but typically, the lawyers do not attend the mediations. Facilitated mediation can be used at any stage of litigation. Brenda Waugh offers a free monthly workshop to assist you in understanding your options in mediation.
Evaluative Mediation: A Frequent Choice in Civil Litigation
Many of the attorney-mediators in civil legal cases trained in an evaluative style of mediation. Bush and Folger in The Promise of Mediation sum it up as mediation that requires mediators to “steer them towards outcomes in substantive conformity with legal rights.” Kate Shonk, in Choose the Right Mediation for You observes, “Mediators are more likely to make recommendations and suggestions and to express opinions. Instead of focusing primarily on the underlying interests of the parties involved, evaluative mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations. “
The Alternatives in Alternative Dispute Resolution
Legal conflicts run the gamut between a single contract that is entered into for one transaction between strangers to a family will contest and it is not surprising that different forms of ADR are suitable for different people, different kinds of conflicts and at different stages in both the legal and emotional part of the battle. Today I am going to begin a ten part series of posts that will explore the alternatives in ADR. I’ll begin with processes that depend on a neutral facilitator such as mediation (including evaluative, facilitative, and transformative mediation), neutral evaluation, and arbitration. I'll then turn to some processes that have components of ADR but do not require a neutral. Finally will look at a few methods that don't fit neatly into any category.
Picking the Best School When Sharing Custody
When parents are sharing custody but live in different school districts, deciding the best school for the children to attend can be challenging. I’ve been involved in many situations when the parents disagree on where their child should attend school. Usually, we can’t find an easy answer, but with mediation or collaborative practices, we work together to evaluate the options and reach the best decision for the family. In reaching a decision, we often look at the following issues.
On the Road Again! Presenting on Why Lawyers Need to Understand the Options in Alternative Dispute Resolution
Brenda Waugh will participate in a full day training sponsored by the West Virginia State Bar on July 24, 2019 in Bridgeport, West Virginia, “Resolution Beyond Trial.” Her topic will be “ADR is not Alternative Anymore—What Every Lawyer Should Know About ADR.” During her session, she will outline the practical and ethical requirements for lawyers to be familiar with ADR form so as to present them to clients. She will also lead the group in an interactive session to describe the various forms of ADR such as restorative justice, mediation and collaborative divorce.
My Top 5 Lessons Learned at the Restorative Practices Conference in Minneapolis
Last week, I returned from the Restorative Practices International conference in St. Paul Minnesota and am frankly swamped at my office! But I want to finish out a post before I forget about the conference, so I'm going to come up with my top five lessons learned at the conference. It's no surprise to me that these tend to involve interaction between
Thinking about "Collaborative Practices" for Mediators
This week I've been working with Marshall Yoder to prepare for a workshop where we will share our experience with mediators throughout the region. The conference is scheduled for October 9, 2018, in Front Royal, Virginia. Front Royal is a wonderful town to visit in October, the location of the start of the Skyline Drive through the Blue Ridge Mountains!
A Restorative Justice Based Practice of Law
I’m putting the finishing touches on my breakout session for the RPI conference next week in St. Paul about restorative lawyering. What’s that? Both Dan Van Ness and Howard Zehr describe restorative justice as being a continuum, with some practices fully restorative and others not at all restorative. Most RJ program practices can be placed someplace on that continuum. I have found that in my everyday practice of law and mediation, my practices may also be placed on that continuum and I work to find the ways to make them more restorative.
Can We Say That? More Resources on First Amendment Rights of Students
Today's blog post is my second about free speech rights for students in school. My first post addressed what rights the First Amendment guarantees to all citizens and how they may be limited. Today, I'll move and discuss precisely what limits school officials can place on students in public schools. (Remember that private schools that do not receive federal funds have different standards!)
Can We Say That? A Summary of First Amendment Rights for Students
With the wave of activism among American’s youth, I find that I’m getting calls from students, and their parents, about what free speech rights students have at school, and outside of school. In the past, I've been involved in research and litigation involving the free speech. During law school, I working as a research assistant on the issues of free speech and religion. The first case that I argued at the West Virginia Supreme Court addressed the free speech right of the student body president to intervene when security officers began arresting students at a football game. Since then, the laws have changed a little, but the fundamental meaning of the first amendment remains solid. The government is limited by the First Amendment in when and how it may infringe upon any citizen's right to speak freely.
Collaborative Divorce: What the Parties say
In my last post, I described my excitement when members of my collaborative practice group worked with a couple to complete the first collaborative divorce in West Virginia. I explained the benefits, from my perspective as a collaboratively trained attorney. After the hearing, we had a chance to sit down with the parties and talk a little bit about their experience with collaborative divorce.
A Collaborative Divorce in the Mountain State
Last month I had the great honor to work with a couple who decided to use collaborative law to help them file and finalize their divorce. In the very first collaborative case in West Virginia involving attorneys trained by IACP and members of a collaborative practice group. Yes, the first one! And a mere two weeks later, the second case made its way through the courts.
What's the Difference Between Litigation and a Long Train Ride?
Last week, my daughter, my mother and I took a train ride together. Years ago, my mother added the ride from Toronto to Vancouver to her "bucket list." After finding a great sale for winter trips, we planned the trip and departed on January 29, 2018. Little did I know that I was about to learn a little bit more about what it might feel like to be a litigant in the American legal system.
A friend and fellow mediator, Jeff Molenda, often quotes John R. Van Winkle's book, "Mediation: A Path Back for the Lost Lawyer." In the first section of his book, "The Litigation Train," Van Winkle claims that at the end of the twentieth century in the United States our litigation system is broken and has to come resemble a long, expensive train ride.
Want to Help a Victim of Crime? Think Twice About Setting Up a GoFundMe Account
After a tragedy, folks often gather to help out those who have suffered, any way they can. At one time, we probably would bake casseroles for each other and plan a church service. Today, one of the things that I've noticed happening is that folks set up a Go Fund Me account to help cover medical or funeral expenses.
These accounts often raise funds for the victims and may be helpful. However, I am concerned that sometimes they may not be as effective as other ways to help the victim or their families. In fact, in some situations, the accounts may cause further harm to the family.