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ADR NEWS
A publication of the Tennessee Alternative Dispute Resolution Commission
VOLUME 7, ISSUE 2 SUMMER 2007
Contacts
Tennessee Alternative Dispute
October 12, 2007
Resolution Commission
• Hayden D. Lait, Esq.
ADRC Mediation Workshop
Chairperson, Memphis
• Allen S. Blair, Esq.
at Vanderbilt University Law School
T
Memphis
• Hon. Ben H. Cantrell
Nashville his year the ADRC will welcome Teresa A. Wakeen, J.D.,
• Gayden Drew IV, Esq. President of Wakeen & Associates Mediation Services,
Jackson as the main speaker for the annual mediation workshop.
• J. Wallace Harvill, Esq. Ms. Wakeen has served exclusively as a professional mediator since
Centerville
1992. Having successfully mediated over 3,000 disputes nationwide, she is
• Tommy L. Hulse
known for her integrity, tenacity, ingenuity, and ability to bring parties
Kingsport
together to settle the most difficult and complex of litigated disputes.
• C. Suzanne Landers, Esq.
Memphis She is a frequent speaker and trainer of dispute resolution topics
• Glenna M. Ramer, Esq. for many distinguished organizations including the International Academy
Chattanooga of Mediators, the International Maritime Law Conference, American Bar
• D. Bruce Shine, Esq. Association, Society of Professionals in Dispute Resolution, Pepperdine
Kingsport University’s Strauss Institute of Dispute Resolution, the University of
• Edward P. Silva, Esq. Washington School of Law, Pacific Northwest ADR Conference, and the
Franklin Washington State Office of the Attorney General.
• Howard H. Vogel, Esq. Ms. Wakeen serves as Vice President of the International Academy
Knoxville
of Mediators and is a member of CPR's Panel of Distinguished Neutrals.
Supreme Court Liaison A graduate from the University of Wisconsin (B.A., 1980, J.D., 1983), she
• Justice Janice M. Holder became a Beta Gamma Sigma member while pursuing an M.B.A., and has
Programs Manager trained at the Program on Negotiations at Harvard Law School, the
• Andrea D. Ayers, Esq. Advanced Mediation Program at CDR Associates, and the Masters Forum
Programs Assistant at the Strauss Institute for Dispute Resolution.
• Margaret D. Lamons Prior to her career as a full-time mediator, Ms. Wakeen was
Associate General Counsel for CUNA and Affiliates. Her corporate practice
Send questions and comments to:
included areas of commercial and business litigation, multi-party contract
Tennessee ADR Commission
Administrative Office of the Courts negotiations, and antitrust advising. Prior to joining CUNA, Ms. Wakeen
Nashville City Center, Suite 600 was a litigator in products liability, medical malpractice, and general
511 Union Street commercial and business matters.
Nashville, TN 37219 This year’s workshop will offer sessions on negotiation, effective
Phone: 615-741-2687 marketing, new Rule 31 reporting requirements, and panel discussions.
Fax: 615-741-6285 All actively listed Rule 31 Mediators will be mailed registration materials
Email: andrea.ayers@tscmail.state.tn.us for the event.
Web: www.tncourts.gov
www.tncourts.gov
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Andy Griffith: TV Land Mediator
by Paula M. Young*
T he Andy Griffith episode of “A Feud is a Feud” tells a folksy tale about the challenges a mediator faces and the techniques he
uses to help parties resolve disputes. The episode opens with Andy walking down the second story steps of the house
he shares with Aunt Bee. It is the middle of the night. Aunt Bee greets a young couple at her front door. They tell her that they want
a quick marriage under the protection of darkness. Bee asks: “Are you absolutely, positively sure?” “Dead sure,” the young groom
answers, foreshadowing the potential threat that lurks in the night.
The Opening Statements of the Parties
Andy turns to Bee, who is now seated at the piano and says: “Are you ready?” She begins the first notes of the Wedding March.
He examines the marriage license and says: “Josh. Hannah. Please join hands. Dearly beloved….” Through the front door barges
a shotgun-toting Pa Carter. He is a stout man with overalls and a dirty felt hat. He points the double-barrel shotgun at the young
Wakefield groom. He announces: “Hannah, if you just became this feller’s wife, you better take a good look at him because in about
a second you’re going to be his widow.” Andy pauses. He attempts to reframe the last statement. “Do I understand that you don’t
take too favorably to this young man as your son-in-law?” Pa Carter answers: “Do you know who this low down varmint is. He’s….?”
Then Pa Wakefield barges through the front door. He too carries a double barrel shotgun. He too wears overalls and a dirty felt
hat, but he is taller…thinner…with a full beard. He points the gun at Andy and says: “If you’ve said the words to hitch ‘um, you better
find some words to un-hitch ‘um.” Andy pauses, then tries another reframe: “I’m getting the feeling this is not a very popular marriage.
Now Mr. Carter. Mr. Wakefield. Carter! Wakefield! Great jumpin’ gosh Almighty. Now I don’t want no feudin’ in here!”
Pa Wakefield explains in an agitated voice: “Us Wakefields have been feudin” them Carters for 87 years.” He turns to Hannah:
“Do you want to go messin’ it up now?” Hannah Carter stands square to the older men: “All I want is to get married and have a nice
family!” Her father steps in: “You forgettin’ you’re a Carter. Our duty is not to bring Wakefields into the world; our duty is to send them
out of this world!” Josh tries to salvage the situation: “Sheriff, we are both 18 years old and it is your duty to marry us if that’s what we
want.”
Andy turns to the elder men: “The boy’s got a good point.” Both men train the barrels of their guns on Andy. He concedes: “You
all got a better point.”
Going to the Balcony
Bill Ury, in Getting Past No: Negotiating Your Way from Confrontation to Cooperation (1993), defines “going to the balcony” as
the time and space a party creates that allows him to distance himself from his natural impulses to strike back, give in, or break off the
negotiation. It also permits the party to gain control over his emotions. Ury suggests that you should “go to the balcony” to prepare for
the negotiation and then go there as often as needed to control your response in difficult negotiations. It also gives you the opportunity
to “keep your eye on the prize.” Mediators often create this space for themselves and for parties as a mediation proceeds.
In the TV episode, Andy finds his balcony at the kitchen table the next morning. Bee and Opie give him the silent treatment.
He probes for the reason. Opie says: “Pa, you let them scare you.” Andy explains that when he was staring down the barrels of two
guns, he considered what might happen if he did hitch the younguns. He begins telling Opie the story of Romeo and Juliet. He explains
that it involved the story of a young boy and girl whose “daddies did not get along either.” He explains how Friar Lawrence hoped that
the marriage would fix the feud, when instead it led to the deaths of the young lovers. Andy looks sideways to the kitchen ceiling and
thinks out loud: “I believe I would do things differently. I think I’d end the feud first, then have the wedding. If Friar Lawrence knew what
started the feud in the first place….” The scenes fades.
Private Caucuses: The Search for Underlying Interests and Needs
Bennett and Hermann explain in The Art of Mediation that caucuses are separate meetings between the mediator and each party
that allow the mediator to use his or her “interactive analytical, probing and persuasive skills.” During a caucus, a mediator will ask for
additional information not revealed in the opening statements of each party. The mediator may restate what he has heard to find the
underlying meaning in the words said by that party. He will look for common interests and needs that may serve as the focus of a
resolution to the dispute. Often the mediator moves the process forward simply using a series of questions designed to help each party
analyze the case more objectively.
Andy held his first caucus with Pa Wakefield. The scene opens with his patrol car driving through a dusty yard filled with two
goats, a dozen chickens and some ducks. On the clothesline, a pair of long underwear dries in the sun. He walks to the wood frame
house and finds Pa Wakefield on the porch, in a rocking chair, shooting his gun off into the woods. A beagle dog pants on a nearby
table top just over Andy’s shoulder as Andy sits in an adjacent rocking chair. Andy asks: “You doin’ feudin’ shootin’ or huntin’ shootin’.”
“Feudin” shootin’,” comes the quick reply. Andy squints into the woods. “I don’t see no Carters out there.” Pa Wakefield says in
resignation: “I was afraid of that.”
Andy pulls his chair closer. Pa Wakefield apologizes for pointing a gun at him the night before. He explains in justification:
“These younguns have no respect for their elders. You try to raise ‘em right….” Andy suggests: “Maybe your son doesn’t see the
reason for the feud. Maybe the reason for the feud is not strong enough for him.” “No,” says Pa Wakefield, “that can’t be the
problem. ”Why not,” asks Andy. “’Cause I never told him the reason.” Andy: “You didn’t! Why not?” Wakefield: “’Cause I don’t know
the reason.” Andy: “You don’t! Why not?” Wakefield: “Because my daddy didn’t know the reason.” Andy: “Your Pa never told you?”
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Wakefield: “No, he didn’t need a reason.” Andy: “Who was the last person who knew the reason.” Wakefield: “Probably my
granddaddy.” Andy: “So you mean to tell me you’ve been feuding for four generations without knowing why?” Wakefield: “Yep.” Andy
shakes his head in disbelief and moves to caucus with the second party.
He finds Pa Carter up a holler cleaning his shotgun. Andy asks: “Why are you feudin’?” Carter: “’Cause he’s a Wakefield.”
Andy, using a standard mediator method of probing, asks: “What’s that mean to you.” Carter: “Got to shoot at him.” Andy: “Why do
you have to shoot at him?” Carter: “Cause he’s a Wakefield.” Andy: “Why do you have to shoot a Wakefield.” Carter: “Cause we’re
feudin’.” Andy: “Why are you feudin’.” Carter: “Cause he’s a Wakefield.” Andy tries one more time: “Why are you feudin’ with
the Wakefields.” Carter: “Cause we’re shootin’ at each other.” Andy: “Why are you shootin’ at each other.” Carter: “’Cause he’s
a Wakefield.”
Mediators recognize this circular argument, based on fixed positions of the parties rather than either party’s true interests
or needs. But Andy soon finds the young couple trying to get their needs met. He drives past them in his patrol car on his way back
to town. They are walking hand in hand on the opposite side of the road, hoping to find a braver justice of the peace in the next town.
He encourages them to wait until he finds a way to resolve the dispute. During the conversation he learns that neither a Wakefield
“nary” a Carter has ever been killed or injured during the feud.
Reality Testing
Andy next summons Pa Wakefield and Pa Carter to a mountain ridge for what mediators call “reality testing.” Reality testing
allows a party to see whether the position he holds is as strong as he may think. For instance, a mediator may test whether a plaintiff’s
likelihood of winning a case is really 80 percent given a problem of evidence or the theory of the case.
Andy tests the positions of Pa Wakefield and Pa Carter by helping them examine the possible result of an earnest feud. Andy
explains that he has checked all the public records and no Wakefield or Carter has ever been hurt during the feud. He explains that if
word got out that the county has had an 87 year feud without one injury or death, its people will be the laughing stock of the state. He
tells them that he has devised a plan that will accomplish in just a few minutes what the families have failed to do in 87 years.
He explains the French rules of dueling. The contestants will face back to back, take ten paces, turn and shoot. “Ten paces?”
Pa Carter asks with a worried look on his face. Pa Wakefield adds with a slight wink towards Carter: “That sounds like quite a distance.
A feller is likely to miss at that distance.” Andy quickly cuts off this escape: “That’s why I’m making it three paces.” While the men look
away worried, Andy “checks” their guns for proper working order. At the same time, he surreptitiously takes out the ammunition so no
one will get hurt. He returns the guns to the men and says: “Good luck and good bye. You will see each other in the great feudin” land
beyond.” He starts to count: “One, two…” Neither contestant moves. Andy explains: “Now you fellers are suppose to walk when I start
counting.” Carter says: “When a feller gets my age, his legs get mighty heavy.” Wakefield nods vigorously in agreement. But Andy cuts
off this escape, as well, with more reality testing: “It will be a short walk and the last time you’ll be using them.”
This charade continues with an argument over the proper rules -- 10 paces or three. Andy explains that the seven step difference
will not matter a bit, because the shotgun blast will propel the contestant backwards seven paces. The contestants next suggest that
Andy count in French because dueling is a “Frenchy affair.” They are both quietly hoping he does not know French. Andy, however,
learned a little French during the war. When he begins to count again – un, deux, trois -- the contestants remain frozen back-to-back.
It seems they do not understand French. Finally, the men again place their backs to each other, cornered by their pride and the
possible loss of face. Andy begins to count again. Each man takes a step or two. Andy fires his gun in the air. The men, thinking the
other man has gotten off a shot, run off in opposite directions.
Finding a Solution in a Shared Value
A skillful mediator never imposes a solution on the parties. In fact, he rarely suggests a solution. Instead, a mediator uses his
process skills to guide the parties to an outcome that satisfies them both based on shared interests, needs and values. Andy helps Pa
Carter and Pa Wakefield find a solution based on the shared value of courage.
The final scene finds Andy and the elder men back in Andy’s living room. He says in a hushed and confidential tone: “What if
those younguns had seen you run off? Watching you couple of cowards may have changed their minds to marry.” Pa Carter interjects
forcefully: “It’s better they don’t marry and produce a coward’s coward – like no coward the world has ever seen.”
Josh walks into the living room from the swinging door of the kitchen. He totes a shotgun that he hands to Pa Carter. He stands
opposite his possible father-in-law and emphatically states that Carter may as well shoot him right then and there because that is the
only thing that will keep Josh from marrying Hannah. Hannah steps into the room, pushes a shotgun into the hands of Pa Wakefield,
and makes the same statement. Andy seizes the moment. He explains that he has not seen such courage in two younguns ever
before. “Do you think if you mixed these two fine bloods, you buzzards would get a grandson who is a nat-u-ral born he-ro?” The elder
men turn to each other. Relief and recognition cross their unshaved faces. They turn back towards Andy, point the guns at him for the
second time in his own living room and say: “Stop blathering and get along with the marrying.”
Paula M. Young is an assistant professor at the Appalachian School of Law located in Virginia teaching ADR and legal writing.
She can be reached at pyoung@asl.edu. She thanks her students Sean Maynard, Megan Stidham, Donald Sutton, Pete Kurelac,
and Barb Bowman for making her aware of this TV episode. The episode is available from amazon.com in the “Andy Griffith Show:
Best of Vol. 3.”
*Paula M. Young, “Andy Griffith: TV-Land Mediator,” St. Louis Lawyer 12A (March 5, 2003). Reprinted at http://www.mediate.com/articles/young9.cfm. Also
used by Prof. George Siedel at the University of Michigan Business School in his Negotiation and Dispute Resolution course.
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Clients: What They Look for in a Mediator
Note from Hayden Lait, Esq.
W
ADR Commission Chair
hile in one of my recent mediations I had the opportunity to work with an individual who had
participated in thousands of mediations over the past 20 years all over the world. This
individual was counsel for a large multi-national liability carrier. My curiosity got the best of me and
I asked what this individual looks for in a mediator. The following is the response I received.
With Regard to “What I Look for in a Mediator”:
Credibility – Must be established from the onset, especially with the plaintiff. I find that retired judges
have a lot of this. Retired plaintiffs’ attorneys are second, as the plaintiffs believe that valuing bias may
swing their way. Discussing the number of cases tried, mediated, negotiated, etc., carries a great deal
of weight.
Personality – Effective mediators must share a little about themselves in the opening to show that they
are human and can relate to all in the room. Everyone must feel comfortable and be able to vent.
Taking the time to explain consequences – I find this to be a constant with good mediators. I think
it is important for the mediator to explain the power of the mediation (being in charge of your own
destiny) vs. the risks of putting one of your most important decisions into the hands of 6 or 12 strangers.
We don’t do this when we choose a house, a car, or where our kids will go to school; why should we
do it here?
Uncovering hidden agenda/issues – Such as plaintiff’s need for an apology, or worries about work,
pensions, educating their children, retirement, a new house, etc.
Understanding all the tools and tactics – Of mediation, and knowing when to use them (ever-
decreasing offers, bracketing, mid-pointing, mediator’s proposals, etc.).
Understanding the case – Understanding the case beforehand is important. It is essential to request
submissions, and read them. I also think effective mediators do best when they pick and choose
arguments or exhibits from each side, and then know when to save cards and when to play them.
Other key elements include –
Understanding structured settlements.
Insisting that the plaintiff show up.
Insisting that other decision makers are present.
Identifying the true decision maker in the room (plaintiff, spouse, attorney, etc.).
Emphasizing the power of closure and moving on.
Giving the parties a chance to speak.
Not being afraid to make suggestions when people are stuck.
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Mediation Day Event in Nashville to Honor Grayfred Gray
October 18, 2007
B e sure to save the date for a luncheon celebration of Mediation Day on October 18, 2007,
hosted by the Tennessee Coalition for Mediation Awareness. The Coalition will present
the first annual Grayfred Gray Public Service Mediation Award to retired University
of Tennessee law professor and ADR visionary Grayfred Gray. The event will be held at the Lipscomb
Institute for Conflict Management’s Ezell Center, 3901 Granny White Pike, Nashville. More details,
including a registration form, will be sent by email to all active Rule 31 listed mediators in September.
The Administrative Office of the Courts is a member of the Coalition, which was formed in 2006 to educate
the public and the legal profession on the benefits of mediation and other forms of conflict resolution.
For more information on the Tennessee Coalition for Mediation Awareness, go to the website of the
Knoxville Community Mediation Center at www.2mediate.org (click on “new stuff,” then scroll down).
In order to increase public awareness of all the good ADR work happening across the state, the Coalition
also encourages Rule 31 listed mediators to link up with their local community mediation center or local
bar association to plan other mediation day events throughout Tennessee during October. For ideas
on ways to educate the public about ADR, see the website of the Association for Conflict Resolution
at http://www.acrnet.org/crday. If you would like to volunteer to work on the planning committee,
contact Margaret M. “Marnie” Huff at 615-812-5557.
Upcoming Events
October 12, 2007 ADRC Sponsored Mediation Workshop
Vanderbilt University Law School, Nashville
October 18, 2007 Mediation Day Event Honoring Grayfred Gray
Lipscomb Institute for Conflict Management, Ezell Center
3901 Granny White Pike, Nashville
October 30, 2007 ADR Commission Meeting
AOC Offices, Nashville
We Would Like to Hear From You!
The Administrative Office of the Courts gladly accepts articles from ADR professionals
for publication in the ADR News. For more information, please contact Andrea Ayers at
615-741-2687 or andrea.ayers@tscmail.state.tn.us.
www.tncourts.gov
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