WORKSHOP MINUTES
Track 1
Workplace Disputes Section
June 17, 1999
CURRENT ISSUES IN MEDIATION ADR
The Workplace Disputes Section workshop on ACurrent Issues in Mediation/ADR" was held on Thursday June 17, 1999, at the US Postal Service, 475 L=Enfant Plaza SW, Washington, D.C. The Workshop, facilitated by Geoff Drucker, Acting Chief Counsel, ADR US Postal Service, was attended by representatives from 18 federal agencies. The session opened at 9 a.m. and closed at 11 a.m.
The goals of this workshop were to provide participants with a general overview of confidentiality, including the various federal acts that apply to ADR; offer participants an opportunity to discuss mediator styles; and to explore the challenges of high tension cases.
The panel members and their topics were:
1. Steve Shapiro, FERC, ADR Specialist, Administrative Litigation Section
TOPIC: ADRA, FOIA, The Privacy Act.
Steve gave an overview on the ADRA and its application to confidentiality.
Neutrals can=t disclose any information arising out of the mediation process
unless:
All parties consent in writing.
By court order.
Required by statute.
Parties can=t disclose anything arising out of the mediation process unless
All parties consent in writing.
By court order.
Required by statute.
For enforcement of an agreement.
The executed agreement arising out of mediation is not a confidential document.
The ADRA has been affected by the recent 5th Circuit Court of Appeals ruling: In Re Grand Jury Investigation, 148 F3d 487 (5th Cir. 1998). The Court ordered release of files relating to Department of Agriculture mediations. Steve distributed an article by Charles Pou entitled Ghandi Meets Elliot Ness, ABA Dispute Resolution Magazine, Fall 1998, discussing the effects of this opinion.
2. Jerry Roscoe, Attorney, Mediator, Arbitrator, ADR Associates
TOPIC: Mediator styles and approaches to mediation: Facilitative, transformative and evaluative.
Jerry gave an overview on the various process approaches that mediators take and selection concerns parties might have. His theme: Do you want AJust a@ resolution or a @Just Resolution@?
Jerry noted that it is important to consider the style of a mediator in relation to the issues, the dispute, and individual party=s needs. A directive mediator can help the parties evaluate their position and the strength of their case in the litigation process. A judge acting as a mediator brings great knowledge of the law and can offer evaluations and comparisons to potential outcomes (e.g., in court or in a business setting). Each of the styles carries strengths and weaknesses, and ought to be considered carefully.
A facilitative mediator can offer the parties a process that allows them to control the outcome. Parties need to be aware that a facilitative mediator will not offer opinions or evaluations related to the outcome. A transformative mediator switches theories and considers the environment when he or she mediates. Transformative mediators allow the parties to control the process in its entirety, choosing the goal of the mediation even if the goal is to improve communication in the future.
Parties should consider the situation they are involved in when interviewing and selecting a mediator. Think of what the mediator brings to the process and what the parties want him or her to offer. Do the parties need an evaluative mediator who will thereafter offer the parties a facilitative mediation? All of these creative options are up to the parties to the dispute and need to be considered when selecting a mediator.
3. Linda Netsch, Attorney, ADR Team USPS
TOPIC: Dealing with difficult people and cases.
Linda offered the group a unique opportunity to hear about designing a process to deal with difficult people and cases. She shared her experience designing a training program on sexual harassment for the Citadel.
Prior to 1994 this military school was an all-male institution. In 1995 after a federal court mandated a change in the enrollment, one woman attended for a week and left after being booed and harassed by the male student body. The school, with pressure from the federal government, entertained the idea of offering a training course on sexual harassment to all the cadets. Linda and three other individuals from a private firm were asked to design a training course for the institution.
The program was designed with some fundamental collaborative elements. The trainers relied on the cadets= desire for self-determination and allowed the cadets to both vent and ask questions about having women in the school, without fear of punishment. A facilitation team from within the class was created. The trainers offered a train the trainers' class to a group of peer cadets. In class the cadets were allowed to vent and share their own perceptions about what was and was not sexual harassment. They were allowed to disagree with each other and to share their own feelings and perceptions without criticism. The men were asked to create their own sexual harassment policy and thereafter it was discussed with the trainers and compared with the school=s policy.
The peer facilitator/trainers were then allowed to train their peer cadets in a similar style with the outside trainers support and assistance. The program initiated last year was successful and it will be conducted again this year.