Mediation & Collaborative Practice Stevens County Bar Association Feb. 9, 2012


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An introduction to mediation and collaborative law for Stevens County Bar Association lawyers by Bruce Pruitt-Hamm, JD (Certified Mediator and Collaborative Practitioner)

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Mediation & Collaborative Practice Stevens County Bar Association Feb. 9, 2012

  1. 1. Stevens County Bar Association CLE: Colville, WA February 9, 2012 © Pruitt-Hamm Law & Mediation Services, PS
  2. 2.  Collaborative Practice is fundamentally a new model and set of rules about how to solve legal disputes. Instead of racing to court, Collaborative participants agree not to go to court. Instead of spending thousands of dollars answering nearly irrelevant questions, Collaborative participants agree to provide each other with all relevant information. Instead of focusing on what is wrong with the other person, Collaborative attorneys and participants work together as a team to resolve their differences. In traditional litigation, each side often hires expensive experts who come up with opposite opinions. In the Collaborative approach, all experts work for both participants. Traditionally, the court and attorneys determine when progress occurs. In Collaborative Practice, you control the pace. Instead of having your court file open to anyone with access to the internet, most if not all of your personal information is kept private in Collaborative Practice.
  3. 3.  Where do Collaborative Practice and Mediation fit in to the range of dispute resolution services called Alternative Dispute Resolution (ADR)?
  4. 4.  Business Disputes CPR Institute For Dispute Resolution "Mediation success rates for business disputes, i.e. cases that result in settlement during or shortly after the mediation, quoted by CPR and other leading ADR organizations, generally are in the 80%-90% range." - Kaskell, Peter H. "Is Your Infringement Dispute Suitable for Mediation?" (Alternatives March 2002) 4,000 operating companies have signed CPRs Corporate Policy Statement on ADR. 1,500 law firms have signed CPRs Law Firm Policy Statement on ADR. Almost all federal and state courts now use some form of ADR.
  5. 5. EmploymentGibbs, David H. "After Waffle House, Arbitration Gets New Trilogy of Employment Law." AlternativesFebruary 2002."The court notes that out of about 80,000 employment discrimination charges filed in 2000 withthe EEOC [Equal Employment Opportunity Commission], the agency found reasonable cause in only8,248 [10.3%]. In 2000, the EEOC filed 291 lawsuits and intervened in 111 others.""The number of employment discrimination cases tripled during the last decade.""The average litigation cost for a single plaintiff case is estimated at more than $93,000 and that ofa class action $462,000."Phillips, F. Peter. "Current Trends in Management and Resolution of Employment Disputes." For theDefense July 2002.Discusses the classic three-stepped ADR program and its modifications (1. Local ManagementReview, 2. Nonbinding Mediation, and 3. Binding Arbitration) as used in companies such asAnheuser-Busch, United Parcel Service (UPS), UBS PaineWebber, Texaco, and GE Corporate."Nearly all disputes submitted to systematic employment dispute resolution programs are resolvedby agreement, prior to the arbitration stage." Halliburton, Johnson & Johnson: fewer than 2% of disputes proceed to the third stage, arbitration. GE: in 1998-9, few disputes went to formal mediation and only one went to arbitration. U.S. Air Force: in 2000, [2,728] disputes were subject to ADR; 79% were resolved before arbitration. U.S. Postal Service (mediation-only): since 1997, formal complaints to the EEO [Equal Employment Opportunities Trust] have decreased by 26%, 76% of the claims were resolved or not pursued, and "participant satisfaction on a variety of parameters measured, on average, substantially above 90%." EEOC: "of 7,490 charges mediated during FY99, 5,254 (70%) were successfully concluded."
  6. 6. Trial And Civil Courts"Report to the Legislature on the Impact of Alternative Dispute Resolution on the MassachusettsTrial Court." Prepared by the Supreme Judicial Court/Trial Court Standing Committee on DisputeResolution. February 2, 1998.Middlesex Multi-Door Courthouse (MMDC), 1992. Study compared the success of cases from acontrol group (traditional litigation) and experimental group (Multi-Door: case evaluation,mediation, standard arbitration, complex case management, summary jury trial, mini trial) on avariety of dimensions. Cases were randomly assigned to control or experimental group. Higher satisfaction rate for MMDC participants in terms of case processing time, litigant and court costs, and resource requirements. Over 25 more attorney hours were spent on control group than MMDC cases. One-third (33%) more motions were filed in control group cases; more documents per case were processed for control group cases.Massachusetts Motor Vehicle Tort Litigation Case Evaluation Program, 1992. Study assesseddegree of user satisfaction, amount of attorney time spent on case, and time to proc ess thecase in comparison to a control group (traditional litigation). Cases were randomly assigned tocontrol or experimental group. Average scores for user satisfaction were higher for the experimental group. "In terms of median time from filing to "disposition", experimental cases had median time more than thirty (30) days shorter than control group cases."
  7. 7. Divorce and Family LawThe Journal of Consulting and Clinical Psychology (2001, Vol. 69,No.2, 323-332) has reported a study on families who had beenrandomly assigned to mediate or litigate their child custody disputes.In comparison with parents who litigated custody, parents not livingwith their children who mediated custody maintained more contactwith their children and had a greater influence in co-parenting 12years later. The 12-year follow-up data indicate that, even incontested cases, mediation encourages both parents to remaininvolved in their childrens lives after divorce without increasing co-parenting conflict.
  8. 8. In a study by Jessica Pearson and Nancy Thoennes, “Divorce Mediation:Reflections on a Decade of Research, published in the book “MediationResearch” (Kenneth Kressel and Dean G. Pruitt eds., 1989), the authorsreported the following:Disputants consider mediation less damaging to relationships with formerspouses than traditional courtroom proceedings.Voluntary participation in mediation does not appear to produce highersettlement rates than mandated participation in mediation.Users find that mediation identifies the real issues in a dispute.Users find that mediation is less rushed and less “superficial” thancourtroom proceedings.Of those who reached an agreement in mediation, two-thirds of both menand women agreed that the spousal support was fair, and more than two-thirds of both men and women were satisfied with the division of property.
  9. 9. In a study by Michael Benjamin and Howard Irving, “Research in FamilyMediation, Review and Implications,” published in 13 MediationQuarterly 53 (1995) and research by Joan Kelly, “A Decade of DivorceMediation Research,” published in 34 Family and Conciliation CourtsReview 373 (1996), the authors found the following:Mediation produces agreement in 50 to 80 percent of cases.Researchers have not noted a statistical difference in the treatment ofchild support payments, although mediating fathers are more likely toagree to pay for “extras” for their children and are more likely to agreeto help with college expenses.In one study, couples in the adversarial sample reported spending134% more (more than twice as much) for their divorces than those inthe mediation sample.
  10. 10.  -$72,000 Litigation with Trial -$35,000 Litigation with Settlement -$25,000 Collaborative Divorce -$8,000 Mediation with Settlement Further research at:
  11. 11.  Of divorcing couples who chose to use Collaborative Practice, the following show what percentage- Knew of the option/Considered: the following dispute resolution options 95%/51% -Litigation 85%/40%- Mediation 41%/22%- Self-divorce
  12. 12.  Better outcome Focus on Clients priorities Less confrontational More respectful More Client control over outcome
  13. 13.  - Needed legal representation - Clients spouses wanted CP
  14. 14.  Was CP considered by CP disputants to be expensive or not for the outcome? 81% reasonable- Disputant’s own atty. 79% reasonable for MHPs 81% reasonable for FPs
  15. 15.  CP: 90% settled; 75% of all disputants were somewhat or extremely satisfied with CP overall Litigation: 30% of all "winners" were satisfied; 70% of "winners" not
  16. 16. Schedule I- Community Assets D isposition/ Va lue Propose d by: D ra ft CL Stlmt. T ria l R e sult D iffe re nce Ite m H W H W H WReal PropertyTotal Assets $190,654 $190,701 $163,165 $104,430 ($27,489) ($86,271) Schedule VI- Summary Community Property D isposition/ Va lue Propose d by: W ife -CP H W Ite mCombine d SP & CP Equity $190,677 $190,677 $67,130 $200,465 ($123,548) $9,787Spousa l Ma inte na nce Awa rd ($150,000) $150,000 ($135,000) $135,000 $15,000 ($15,000)Post Se conda ry Awa rd ($200,000) $0 ($175,000) ($25,000) $25,000 ($25,000)Post D OS R e concilia tion $11,270 ($11,270) $0 ($11,270) $11,270GR AN D T OT AL ($148,053) $329,407 ($242,870) $310,465 ($94,818) ($18,943)Litiga tion Costs $5,000 $5,000 ($23,000) ($32,000) ($28,000) ($37,000)T OT AL ST LMT . & T R AN SACT ION COST S ($143,053) $334,407 ($265,870) $278,465 ($122,818) ($55,943)
  17. 17.  Facilitated Problem-Solving Mutual Decision-Making Processes
  18. 18. Teslers Simplified Flow Chart
  19. 19.  Basic Communication & Listening Skills Basic Facilitation Skills
  20. 20.  Paraphrasing; Mirroring; Reframing Listening for Feelings Encouraging; Drawing People Out; Participation Opportunity Equalizing Intentional Silence (Think "Groan Zone") Mutualizing, Normalizing; etc "Switch Moccasins" tools (Empathy tools)
  21. 21. The “Groan Zone”
  22. 22.  Task & Morale (Substantive/Psychological) Functions Agenda: Creation & Management; Getting Consent; Issue Reframing Translating Positions into Interests: What Want, Why Option Generation: Brainstorms; Listing Ideas; Anonymous Written Ideas (Groupware) Post-Brainstorm Processing: Prioritizing (Straw Voting); Taking Turns; Merging & Categorizing
  23. 23.  Discussion & Evaluation: Why/What/How- Positions to Interests to New Ideas; Groan Zone Recording: Summarizing; Note-taking; Digital Recording
  24. 24.  Take Away Lesson: Dont fail to have a Final Mtg.; get the agmt. & consent of the parties "on the record“ 2010 Div. III case re mediation agmt. w/o writing & w/ admission enforced as CR2A stipulation/Agmt. ◦ In re the Matter of the Parentage of: PIPER ALDEN, ELLEOT ALDEN, SARA BURNS, Appellant,and RYAN HODGE, Respondent. No. 28638-0- III Court of Appeals of Washington, Division 3. (December 2010) ◦ In re Marriage of Ferree, 71 Wash.App. 35, 856 P.2d 706 Wash.App. Div. 2,1993.
  25. 25.  Between Meetings: Plan the Work and Work the Plan; Setting Next Mtgs., Agenda Topics & Homework
  26. 26.  YouTube: ◦ Findlaw: CP & Mediation: 2:04 ◦ Today Show on CP: 7:22 ◦ Seattle CP Interview: 9:33 IACP Video w/ Webb & Ousky 20:00