Utah Supreme Court Opinion on Mediation

February 1, 2008
An interesting case out of the Utah Supreme Court today….

The case was a civil case which involved a man being injured and he filed suit against the company for negligence. The case went to mediation and in the mediation a settlement was discussed, the mediator prepared a Memo of Understanding (MOU).. but the man who was injured would not sign it because there was a term in the MOU he did not agree with. The opposing side did not believe an agreement had been reached and the injured man took them to court to try to enforce the oral agreement. The trail court judge ordered the parties in the mediation to disclose what had happened in the mediation and if an agreement had been made. The attorney who was representing the company refused to disclose this information. The trail court found that she had to disclose the information and she appealed this decision to the Supreme Court to decide if she had to disclose the content of the mediation.

The Utah Supreme Court: First, upheld the confidential nature of mediation and ruled that the attorney did not have to and could not be compelled to disclose information from the mediation session… which is great news for the mediation world.
They second ruled that an agreement made in mediation is not enforceable unless and until it is put in writing and all involve parties sign it. We have been struggling with this issue in Utah for years…. the binding nature of a mediated agreement and if it matters if the parties sign it or not… This opinion has now answered that question.

It was a good day for the mediation community in Utah in that the Supreme Court supported the confidential nature of the process and outlined when an agreement reached in mediation is binding.

In short they found “we expressly recognize the importance of maintaining confidentiality in the mediation process and hold that Utah law requires agreements reached in mediation to be reduced to a writing and signed by all the parties to the agreement in order for the agreement to be enforceable by a court.”
The decision was written by the Chief Justice Christine Durham.

To read the complete opinion go to
http://www.utcourts.gov/opinions/supopin/Reese2020108.pdf

Helping Someone Gain Insight

I listen to many Pod Casts. I recently listened to one in which David Rock, the author of a new book called “Quiet Leadership” is interviewed. In the book he talks about how leaders should be taught how to help their staff think, instead of just tell them what to do. He talks about ways in which we can “help people think better, not tell them what to do”. This style of leadership is connected to mediation in that as mediators our job is to help people improve their thinking, not do the thinking for them.

David Rock outlines six steps to help some one improve their thinking….. Here is a short note on each…

1. The goal should be to help the other person “think about thinking.” To step back from
the details and drama of a situation and help the person think better.

2. Listen for Potential. When you are working with someone who is struggling….. help them
to focus on what they are doing well, the positive.

3. Speak with Intent…Simplify. Help the person to feel safe and comfortable. Think about
what you are saying and how you are saying it. Keep it short and simple, do or say in 15
minutes what it could take 60 minutes to do or say. Focus on what is Useful versus what is
Interesting.

4. Dance toward Insight. Do not tell the other person what to do and then try to convince
them it is the right thing…. guide them on a process to find their own answer.

5. Create New Thinking. This is a great step which is hard to outline. You begin with the
persons current reality and explore different ways in which the conversation could proceed.
The trick is to watch for the topic which sparks the persons energy to rise… that is your sign
to move in that direction.

6. Follow-up. This is another great piece in the interview. To make a change you have to
focus your attention on that thought and/or intention everyday. When you focus the brain,
you build new neural connections….

This is a great book not only for leaders but for mediators. David Rock is a Life Coach and believes that people want to make decisions and they want to have new insights to their concerns and problems. Most leaders, and I would say most of us as humans, are trained or learn to tell people what to do, we are not good at helping them have insights.

If you want to listen to the full interview, it is only about 30 minutes long, here is a link
http://results.podbean.com/2007/02/18/landed-fm-radio-interview-with-david-rock-ceo/

Let me know what you think…….

If you are interested in the book check it out at my Amazon store, the link is
http://astore.amazon.com/rcblog-20

Control

Control of the Process
In basic mediation training we are all taught that we are in “control” of the process of the mediation… not the outcome. So, what does being in control of the process mean? Does it mean that you exert yourself at all costs? Do you set ground rules? Do you ever give over the “control” to maintain control?

I remember a case I mediated in which I had a very energetic party. It was a young Guardian ad Litem (GAL) in the case and he was fairly new in this role. The case was complex and the level of conflict was high so this GAL has a lot of energy wrapped up in the case.
The case involved a young child who had been abused physically and the parties were trying to determine the custody and visitation arrangements between the mother and the father. The abuse had been perpetrated by mother’s ex-boyfriend who was now being charged with criminal child abuse. So, neither of the parents directly caused the abuse, but the state child protection workers wanted both of the parents to take some responsibility in the form of failure to care charges.

The GAL was very animated and involved in the discussions regarding the care of the child. In order for me to suppress his energy and involvement in the mediation would have taken a lot of interventions and in doing so, I would have had to shut down many things that were happening in the mediation. It also happens that when he came into the room, I asked him to sit at the end of the table; instead, he pulled in right in-between the parents and their attorneys. This put him in direct line with those having the conversations.

So, he was put in the middle due to the seating arrangement as well as in regard to his role as the GAL. So, what did I do? I went with the flow. The GAL had lots of energy around the issue, he was working and engaging appropriately with both parents, so, for a portion of the mediation I basically stayed out of his way and he worked out the issues of custody and visitation.

He worked it out between the parents like a mediator would. The GAL was doing a fine job of negotiating custody and visitation, moving back and forth between the parents. The mother and her attorney were in the mediation room and the father and his attorney were in a caucus room. The GAL was the one moving back and forth negotiating the plans, instead of the mediator. I would not always do this, in fact, I would rarely do it. The reason I allowed it in this case is that I believe that we as mediators need to be aware of what is working and not working in the room. And in this case, it was working.

As mediators, we have to be flexible, we have to work with what is going on in the room and not force people into the format or the structure that we believe is best for them. Instead, we need to work with them and help them to find the format/structure that will work best for them in addressing the issues they have come to work on in mediation.

The other issue in this case was that of seating arrangements. When ever you have someone in- between the parties in conflict, they are going to end up being very involved in that conversation. My preference would have been for the GAL to be opposite me at the other end of the table and the parents to be side by side with their attorneys and the State Child Protection workers and their attorney across the table. Then, I, as the mediator, am in the middle of the conversations and in this case the parents could have had conversations without someone in the middle. Seating is very important and you have to think about it. In this case I could have been more assertive when the GAL first sat down and asked him to move, but I did not. Once I made that decision I had to work with it and not disrupt the flow of what was happening in the process.

So, as with all other things in mediation…. Control is a relative and flexible concept. I guess that is why we all love the work so much.