Archive of all Volumes > Vol. 11 - 2018

 

Vol. 11 - 2018

             This issue of the American Journal of Mediation is one of milestones.

            In reverse order of importance, first is that this is the initial Journal to be published under my aegis as Editor In Chief, a responsibility not sought but clearly understood to be a great honor. We also welcome two new members to the Editorial Board, Richard B. Lord and J. Allen Schreiber.

            Second is that we have once again partnered with the ADR Section of the New York State Bar Association in the NYSBA/ACCTM National Championship ADR Law Student Writing Competition which offers perhaps the richest prize of any law school writing contest in the United States.  Forty articles were submitted this year from thirteen law schools contending for the $10,000 first place prize.  The College and the New York State Bar Association are proud to announce that as you read this issue of the Journal, law students throughout this country and Canada are diligently preparing their entries for next year’s competition. 

            In the pages that follow you will have the pleasure of reading “Should Lawyers Owe a Duty of Candor in Mediation” by our grand prize and New York winner, Grace Watson Keesing, Esq. (New York University).  In addition, several members of the Editorial Board have chosen their favorite articles for inclusion in the Journal, each accompanied by a brief introduction explaining why.  We are confident that after enjoying these articles you will agree that the future of academic scholarship in the area of ADR is exceedingly bright.

            Many thanks to the members of our Editorial Board and Fellows of the College, Charles Crumpton (HI), Jill Sperber (WA), Jay Sandak (CT), Peter Grilli (FL) and Stew Cogan (WA), who served as judges for this year’s competition.

             Special thanks as well to John Wilkinson, Jackie Nolan-Haley and David Singer from the New York State Bar Association who worked together with Lawrence Watson, Jr., Lela Love and me as members of the joint planning committee and as volunteer judges. All should be proud of the product of our endeavors.

             Our lead article for this edition is “non-academic” in nature but exceptionally thought provoking for members of our mediation profession.  Vicki Assegued, M.A., Executive Director of The Center for Restorative Justice & Mediation muses upon the meaning of being a neutral in “I’m Not Neutral about Neutrality: I’m Partial to Multi-Partiality”.  Submissions discussing your approach to this central tenet of the mediation process are welcome for consideration for publication in a future issue of the Journal.

            The final milestone is directly related to the first. After more than a decade of distinguished leadership as Editor In Chief, Lawrence M. Watson, Jr. is stepping aside.  Simply put, without Larry there would be no American Journal of Mediation. His leadership and dedication to the College, this Journal and the mediation profession is unequaled among his peers. We owe him a debt of gratitude that cannot be measured.

            A thank you is also due to Kathy Talbot who will continue her involvement with the College but will no longer be the “nuts and bolts” person who made sure this Journal was published every year.  If Larry spent one thousand hours on our behalf, Kathy put in tenfold to our benefit.

            In lieu of any poor attempt on my part to inspire the readers of this Journal, I would rather reprint Larry’s words from Volume One published in 2007.  Our goal is unchanged, and the Editorial Board pledges our commitment to these ideals.

“Our editorial philosophy will reflect the goal of professional service. Each issue of the American Journal of Mediation will feature carefully selected articles researched and written by members of the nation’s ADR academic community – scholarly articles dealing with important concepts of ADR one generally expects to see in publications of this nature. In each issue, however, we will also be publishing pragmatic and practical contributions from leading ADR practitioners – features having an immediate application to a dispute resolution professional practice.  As opportunities arise, we will highlight and discuss the latest developments in ADR theory and practice; we will weigh in on where our profession is going and the challenges it meets along the way.” 

            We welcome your submissions that further this philosophy. 

John W. Salmon
Editor In Chief

 

I'm Not Neutral About Neutrality - I'm Partial To Multi-Partiality

VICKIE ASSEGUED, M.A.
Executive Director
The Center for Restorative Justice & Mediation

Vicki Assegued, M.A., has a Master’s degree in Restorative Justice and Conflict Resolution, and over 20 years of experience as a program developer, director, consultant, facilitator and trainer, for the juvenile and criminal justice systems, secondary and higher education, various organizations and non-profits. She is the Executive Director of The Center for Restorative Justice & Mediation (cfrjm.com). Vicki won The Probation Department Community Partner of the Year Award and The United Way Community Hero Award. She is available to provide training, in the philosophy and practice of Restorative Justice, and in beginning and advanced Mediation Skills. Vicki can be reached at vicki@cruzio.com or cfrjm.com.

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Should Lawyers Owe a Duty of Candor in Mediation

 2018 NYSBA - ACCTM National Student Writing Competition - 1ST PLACE

GRACE WATSON KEESING, ESQ.
New York University
Introduction:  Lawrence M. Watson, Jr.
 

This year’s $10,000.00 Grand Prize Winner of the NYSBA/ACCTM National Law Student ADR Writing Competition was submitted by Ms. Grace Keesing, a recent graduate of New York University Law School. Ms. Keesing’s article examines a specific concept within a broader subject that is close to a civil trial mediator’s heart; should mediation parties, particularly trial lawyers representing clients in mediation, have a duty of good faith and fair dealing in participating in  court annexed mediation processes? At the heart of that question, and serving as the subject of Ms. Keesing’s insightful analysis, is the question of whether lawyers engaged in civil trial mediations simply accept a duty of honesty to the process. “Should Lawyers Owe a Duty of Candor in Mediation” is a thought provoking and important presentation that we are proud to feature in this issue of the Journal.

 Arguably, while the rules might be different for mediations voluntarily convened by the parties, a court ordered mediation by the trial judge presiding over the case is much closer to an extension of the judicial process itself. In carrying out a court ordered mediation, a lawyer is still an officer of the Court. We all recognize in the judicial arena, applicable ethical rules for a trial lawyer’s input to the process demand a significantly high level of candor. Quite beyond simply being honest with the tribunal, our rules go so far as requiring trial lawyers to advise the court of case law or factual data contrary to the lawyer’s arguments if they are not advanced by the opposition. Admittedly, a mediator is not a “tribunal”, and a mediated settlement negotiation is not a jury trial; but the damage to the integrity of a civil trial mediation is just the same when misrepresentations, omissions, or false and misleading data are introduced to the parties’ decision making. As this article points out, public confidence and trust in the mediation process are critical to its continued role as a major part of our judicial culture.  

Ms. Keesing’s treatment of this subject generated one of the highest overall rankings by the NYSBA/ACCTM panel of judges in the short history of this competition. This is a truly remarkable piece that fittingly serves to highlight my passing on the position of Editor in Chief of the American Journal of Mediation to my learned friend, John Salmon with Salmon & Dulberg Dispute Resolution in South Florida.  John has been with the Journal since its inception over ten years ago. He has contributed significantly as a standing member of the Editorial Board and we know he will continue to serve with distinction over the next chapter in the life of this publication. I will continue as a member of the Board and look forward to many more productive years under John’s leadership. 

In passing, I must extend my deepest thanks to each member of the Editorial Board  for their many substantive contributions to each issue of the Journal, to ACCTM Executive Director Steve Sawicki and the Board of Directors of the College for their vision and dedication to the concept of our Journal, and most especially, to Kathy Talbot whose administrative support and direction has been our heartbeat over the years.  


Lawrence M. Watson, Jr.
Editorial Board, Past Chair
Emeritus Fellow ACCTM   

AUTHOR BIOGRAPHY:

Grace Watson Keesing is an Australian lawyer specializing in litigation and dispute resolution. Prior to commencing her current role as a barrister, Grace was Associate to the Chief Justice of Australia and a sessional academic at the Australian National University. She also worked for several years as a litigation solicitor in a leading Sydney law firm. Grace completed her LLM at New York University in 2018 as the recipient of a Hauser Global Scholarship and a John Monash Scholarship. 

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"Expose Your Pig": The Procedural Failures of Sexual Harassment Mediation and Danger To Abuse Victims 

NICOLE DUKE, Student
Benjamin N. Cardozo School of Law
Introduction:  Lawrence M. Watson, Jr.
 

This article by NICOLE DUKE of Cardoza School of Law, “Expose Your Pig”: The Procedural Failures of Sexual Harassment Mediation And Danger to Abuse Victims” both challenged a personal presumption and explained a personal concern about mediation as a dispute resolution process. After nearly 30 years of mediating civil trial disputes, on a broad level I was pretty much convinced that virtually any issue can be reconciled through the mediation process. “Help me understand the nomenclature and the tradecraft involved in the conflict, and we can get your case resolved” was my professional mantra. At the same time, having mediated a fair number of Title VII sexual discrimination claims, I was troubled by a nagging concern that at least some of the settlements reached had not really resolved anything. Ms. Duke’s insightful analysis of the dynamics in play with sexual harassment and discrimination disputes and her explanation of why those factors often don’t lend themselves to facilitated negotiations is both revealing and thought provoking. I can remember telling one particularly distraught victim of horrific sexual discrimination in the workplace that, “It looks like we can get transfers, separations, back pay, sensitivity training, even letters of apology - what we can’t get is the public exposure, shaming and personal vindication that may be needed to resolve the pain you feel.” Maybe the classic civil trial model isn’t the default dispute resolution process we assume it to be.

Lawrence M. Watson Jr.
Editorial Board – Past Chair
Fellow Emeritus ACCTM 


AUTHOR BIOGRAPHY:

Nicole Duke was raised in Yonkers, New York. Nicole is a J.D. Candidate at Benjamin N. Cardozo School of Law and received her bachelor’s degree in International Political Economy from Fordham University in 2016. Currently, she works as the Student Fellow for the Kukin Program for Conflict Resolution. The author would like to thank Professor Erez-Navot for her guidance throughout the writing process.

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Bridge Over Troubled Water: The Case For Private Commercial Mediation in India

JUHI GUPTA, Graduate
Harvard Law School
Introduction:  Richard B. Lord

A roadmap.  That’s what came to mind.  A roadmap for anyone wishing to see the benefits of mediation scaled up.  To this mediator, who was fortunate to have started practicing in a state with a robust private mediation culture founded by visionaries who saw the importance of a system of court-ordered mediation (Florida),  “Bridge Over Troubled Water: The Case For Private Commercial Mediation In India”  by JUHI GUPTA of Harvard Law School, Cambridge, MA, revealed itself to be a roadmap for those wishing to see the benefits of mediation take root where they have yet to do so, and grow to meet their fullest potential wherever mediation is still not a primary mode of dispute resolution. 

The author presented a very well-researched and detailed analysis of the state of commercial mediation in India and a plan to reach the goal of a greater appreciation for and use of mediation in commercial disputes there.  In doing so, Juhi Gupta covered terrain that I think reflects much of what has led to mediation being top-of-mind in Florida, and other mediation friendly-jurisdictions.  It should be required reading for anyone feeling like mediation has yet to reach its potential where they live, for both commercial and non-commercial cases. 

Like in India today, obstacles had to be overcome in Florida.  Early on, the legal community was a source of some resistance, even though the seeds of the Florida mediation movement were sown by lawyers.  Education of interested groups, buy-in by them, work of advocates for reforms, and monitoring of results are all discussed.  And the author makes the case that the legal profession, private sector, government and other organizations can and should play a role in helping the mediation of commercial matters become a complement to India’s civil justice system.  JUHI GUPTA’S observations are insightful, proposals are wise, and vision can be applied elsewhere.  Enjoy this well written article.

Richard Lord
Editorial Board
Fellow ACCTM

AUTHOR BIOGRAPHY:

Juhi Gupta is a dispute resolution practitioner, based in New Delhi, India. A LL.M. graduate (2018) from Harvard Law School., she completed her Training Contract at Allen & Overy, LLP in London in 2015. She is a rank holder and gold medallist from the National Law School of India University, Bangalore, India where she obtained her B.A., LL.B. (Hons.) degree. She is deeply interested in dispute resolution, both adversarial and alternative methods. She is a certified mediator and is a member of The Peaceful and Conflict Resolution Team (PACT), an organisation based in India that promotes consensual dispute resolution.

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A House Divided - Applying Narrative Mediation To A Family Conflict

JONATHAN ROSENBLUTH, Graduate
Harvard Law School
Introduction:  Elizabeth Trachte-Huber

Brene’ Brown is a research professor at the University of Houston Graduate School of Social Work who has written several best sellers on vulnerability, courage and worthiness. In her book Rising Strong, she reminds us that we are “wired for story”.  She recounts Neuroeconomist Paul Zak’s research in which he found that hearing a story—a narrative with a beginning, middle and end- causes our brains to release both cortisol and oxytocin which cause us to connect, empathize and make meaning. Narrative mediation focuses on story not settlement. Understanding is the goal rather than a settlement, although an agreement may well result.  Narrative mediation holds particular promise for addressing disputes governed in large part by emotions, personal beliefs, and narratives – as opposed to those governed largely by objective facts.  The author, JONATHAN ROSENBLUTH, demonstrates the value of narrative mediation in the family context through a close examination of an  illustrative extended-family situation. Remembering we are all wired for story is useful for practitioners as well as parties to mediation.

The Reverend E. Wendy Huber is an Episcopal Priest, retired attorney and mediator, and certified Daring WayTM Facilitator (teaching Brene’ Brown’s work).

Elizabeth Trachte-Huber
Editorial Board

AUTHOR BIOGRAPHY:

Jonathan Rosenbluth is a graduate of Harvard Law School (’18), where he focused on negotiation, mediation, and dialogue. While in law school, Jonathan mediated in Massachusetts courts with the Harvard Mediation Program, and was a two-time Teaching Assistant for the HLS Negotiation Workshop and the HLS Executive Education week long negotiation course. Upon graduation, Jonathan moved back to his hometown Toronto. He is an avid Toronto Blue Jays fan. Jonathan remains interested and involved in negotiation, mediation, and conflict management. 

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Get Off the Courts: Using Mediation Principls To Resolve High School Sport Disputes

DOMINIC D. SATURDAY, Graduate
The Ohio State University Moritz College of Law
Introduction:  J. Joaquin Fraxedas

One of the pleasures of serving on the editorial board of the American Journal of Mediation is that we get to read a large number of interesting, creative and well-written articles. Choosing which ones to publish out of such an abundance of excellent submissions is a very difficult task. Fortunately, the burden of having to make those decisions is made lighter by the collaborative work and extensive and informed discussions among the editors about the merits of each submission which often leads to re-reading of articles.

I chose to introduce the article by Dominic D. Saturday, “Get Off the Courts: Using Mediation Principles to Resolve High School Sport Disputes” because it struck me as a particularly relevant and insightful paper.  It opens with the sad story of a high school quarterback who killed himself after the high school administrators suspended him from school for two weeks and disqualified him from participating in all varsity sports for an indefinite period of time as a result of a relatively minor offense (which he may not have even committed). The swift and harsh process of suspension and banning from sports lacked even a modicum of due process and led to a heart-wrenching tragedy.

            In this well-researched and beautifully written article the author develops a carefully crafted argument that incorporating mediation principles into high school sport disputes and disciplinary actions would not only introduce an element of fundamental fairness into the process, it would also lead to better results since the athlete would get to participate directly in the process which, among other benefits, would “encourage the exchange of new information; help student-athletes and administrators understand each other’s views; support emotional expression; stimulate creative options; and design win-win settlements.”   This wonderful article deserves to be read by school administrators, school board members, high school counselors and student athletes coast to coast.

J. Joaquin Fraxedas
Editorial Board
Distinguished Fellow ACCTM\

AUTHOR BIOGRAPHY:

Dominic Saturday is a Union Representative for AFSCME Ohio Council 8 in Youngstown. As a true believer in the labor movement, he represents Ohio’s public and private sector employees in mediation, arbitration, contract negotiations, and the daily fight for dignity and respect in the workplace. In May 2018, he graduated in the top 15% of his class from The Ohio State University Moritz College of Law with a Certificate in Dispute Resolution. During law school, Dominic clerked at the Supreme Court of Ohio for the Honorable William M. O'Neill, and he interned with the United Steelworkers legal department. He won a prestigious Peggy Browning Fund Fellowship and the Ohio State Bar Association’s Labor and Employment Section Award. In his free time, he loves golfing, umpiring baseball games, and flying radio-controlled airplanes and helicopters. When he’s not traveling the state to fight for working people, he enjoys visiting his hometown, Ashtabula, Ohio, to spend time with his father, David, a Steelworker and former union steward; his mother, Kathleen, a school administrator; and his sister, Gia, an actuary. Dominic and his girlfriend, Brenna, live in small-town Ravenna, Ohio.

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Why Chinese People Tend to Be Mediated By Authority

HONGYE "Maple" ZHANG, Graduate
Harvard Law School
Introduction:  John W. Salmon
 

It is natural for any professional with decades of experience in their field to sometimes think that others process information the same way they do.  I know that I have done so as a mediator. Hopefully not too often. 

This well written article should remind us all that the world is a complex place made up of innumerable cultures each of which deals with the issue of authority in different ways. Ms. Zhang discusses in detail how mediation is practiced in China and how the people in China react to the authoritative role of mediators.  

The greater our own insight into how those with whom we mediate make decisions only enhances our skill in bringing people together. I invite submissions to the Journal discussing how other cultures around the world negotiate their disputes.


John W. Salmon
Editorial Board, Chair
Distinguished Fellow ACCTM
 

AUTHOR BIOGRAPHY:

Maple Zhang was born in Heilongjiang, China. She obtained her LL.B. degree from Shanghai University of Finance and Economics (SUFE). After one year of study for the Juris Master degree in SUFE, she went to Harvard Law School to join the LL.M. program. While at Harvard, Maple served as an online staff editor for the Harvard International Law Journal. Maple is mainly interested in mediation and international arbitration. This September, she will start working as a trainee associate in the dispute resolution group of Fangda Partners’ Shanghai office. 

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Rethinking the Limitations of Online Mediation 

YUXIAN ZHAO, ESQ., Graduate
Harvard Law School
Introduction:  J. Allen Schreiber
 

I began mediating cases in the 1990s. I remember my very first mediation. The attorneys for each respective side convened in my office and we used several conference rooms. After ordering lunch, the matter was successfully resolved, and the parties left with briefcases in hand. Last week, I mediated a case. The attorneys for each respective side convened in my office and we used several conference rooms. After ordering lunch, the matter was resolved, and the parties left with briefcases in hand. It seems like the mediation process has not evolved much over the past 25 years. For these reasons, I found the article written by YUXIAN ZHAO from Harvard Law School to be particularly interesting and worthy of inclusion in this year’s publication.

In this forward-thinking article, Rethinking the Limitations of Online Mediation, Zhao introduces the idea of a “Fourth Party” as an enhancement to the traditional approach in mediating disputes.  While reading about the unique features of online mediation, I was fascinated by the conflict resolution possibilities that exist today because of our advanced technology.  I hope you enjoy this article as much as I did – giving you renewed energy to explore all the wonderful opportunities that 2019 may provide in supplementing our current approaches to resolving disputes.  

As a new member to the Editorial Board, I would like to recognize Editor Larry Watson who is leaving.  Larry has been an incredible leader as evidenced by the success of the Journal.  Thanks, Larry, for all the hard work and dedication from all of us in the College.
     

J. Allen Schreiber
Editorial Board
Fellow ACCTM

AUTHOR INTRODUCTION:

Yuxian Zhao was raised in Guangdong, China. He completed his Bachelor of Philosophy at the Sun Yet-sen University, and his Juris Doctor degree (U.S law) and Juris Master degree (Chinese law) at the Peking University School of Transnational Law. He has been working as a lawyer in the Hong Kong office of Quinn Emanuel Urquhart & Sullivan, and subsequently the Shanghai office of Haiwen & Partners for over two years before coming to the United States to join the LL.M. program at Harvard Law School. 

Mr. Zhao would like to give a special thanks to his “Mediation Gang” at Harvard Law, which includes Fatima Dermawan, Juhi Gupta, Philipp Irmscher, and Yun Ling Chong, for all the fun and memories throughout the law school and during the studying of mediation.  In addition, he also thanks Professor David Hoffman for his teaching on mediation and guidance in drafting this article.          

 

 

 

 



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