Using Alternative Dispute Resolution in Public Sector Employment

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					                        Using Alternative Dispute     Comments From the Chair   Ask the Neutral              ADR Sections
                        Resolution in Public Sector   by Deborah L. Berecz      by Kelly Reed                Annual Meeting
                        Employment
                        by Zenell Brown                                         3rd Annual ANDR Institute
                                                                                2004
                        Upcoming Mediation
Vol 11                  Trainings
No. 2
April, 2004             Page1-4                       Page 5                    Page 6-7                     Page 8




   Alternative Dispute Resolution Section of the State Bar of Michigan
Chairperson
 DEBORAH L. BERECZ
 St. Joseph
Chairperson-elect
                                           Using Alternative Dispute
 RICHARD HURFORD
  Taylor
Executive Committee
                                          Resolution in Public Sector
 BARBARA JOHANNESSEN
 Rochester Hills
 ALAN KANTER
                                                 Employment
 Bloomfield Hills
 ALLYN D. KANTOR
                                                                       — by Zenell Brown
 Ann Arbor
                                    a litigious society,
                        America isbreeding ground forand the workplace is       resolution (ADR) offers the public sector HR
 ASHER TILCHIN
 Farmington Hills
Council                   a fertile                      lawsuits.              manager an opportunity to manage employment
 DAVID BAUMHART, III    “Employment rights are held dearly in our society,
 Detroit                                                                                     disputes in a cost- and time-efficient
 STEPHEN BRANDSDORFER   and their enforcement is                                             manner. Some ADR processes may
 Grand Rapids
 RICHARD BRAUN
 Detroit
                        demanded.”1 During the past
                        two decades, there has been a
                                                               ...it is time for             be used to stave off the filing of
                                                                                             lawsuits; others may be more
 CHARLES CLIPPERT
 Bloomfield Hills
 DONNA CRAIG
                        proliferation of employment             public sector                appropriate once the lawsuit has been
                        rights and, consequentially, an                                      filed. Some processes are informal;
 Bloomfield Hills
 ANNE BACHLE FIFER      increase in lawsuits. One of           employers and                 others are formal. The choices on the
 Grand Rapids
                        the key activities of human
 SUSAN D. HARTMAN
 Ann Arbor              resources (HR) management            employees to whet               ADR menu are many: it is time for
                                                                                             public sector employers and employees
 R. CRAIG HUPP
 Detroit
 CATHERINE A. JACOBS
                        is to ensure compliance with
                        laws and regulations.
                                                                 their palate                to whet their palate instead of waiting
                                                                                             in the overcrowded buffet line for
 Lansing
 CHARLES B. JUDSON      Therefore, managing the              instead of waiting              courtroom resolution.
 Traverse City
                        increase of employment law
 JON KINGSEPP
 Bloomfield Hills       disputes is an ongoing              in the overcrowded                      Alternative Dispute
 MARCIA ROSS
 Farmington Hills
 HON. LYNDA A. TOLEN
                        challenge for the HR
                        manager.
                                                               buffet line for                      Resolution Processes
 St. Joseph
 ROBERT TREMP
 Traverse City          In the public sector, lawsuits            courtroom                     The ADR choices include: mediation,
                                                                                                arbitration, mediation-arbitration,
 JAMES VLASIC
  Southfield
                        range from discrimination in              resolution.                   conciliation, unilateral conciliation,
Ex-Officio              recruitment to wrongful
 HON. JAMES ALEXANDER                                                                           cooperative problem-solving, dispute
 Pontiac                termination. Federal, county,
                                                                                panels, fact-finding, mini-trials, summary jury
 MARY BEDIKIAN          and municipal governments often find themselves
 East Lansing                                                                   trials, civil appeals settlement programs, early
 HARVEY BERMAN          named as defendants in lawsuits. Regardless of
 Ann Arbor                                                                      neutral evaluation, and confidential listening.2 All
                        how the suits resolve, governmental entities invest
 MICHAEL COAKLEY                                                                forms of ADR motivate the parties to resolve their
 Detroit                substantial time in mounting defenses and pay
 LAURENCE CONNOR                                                                disputes, assist the parties to feel that they have
 Ann Arbor              substantial attorney fees and costs. The increased
 AMY GLASS                                                                      been heard, create the opportunity for each side to
                        number of lawsuits is also burdensome on
 Kalamazoo                                                                      hear the other side’s story; and, hopefully, fashion a
 DALE IVERSON           employees. They are denied timely resolutions and
 Grand Rapids                                                                   mutually acceptable settlement.3
 BENJAMIN KERNER        usually face economic hardships while their cases
 Detroit
 J. PATRICK MARTIN
                        are pending in court. The proliferation of lawsuits     Currently, two of the most common ADR
 Bloomfield Hills       also creates backlogged court dockets. Although         processes used in the public sector are arbitration
 MARK McALPINE
 Bloomfield Hills       the public sector employer may be helpless to           and mediation.4 Both offer the benefits of limited
 JOEL SCHAVRIEN
 Southfield
                        control the number of disputes, alternative dispute     cost and time as compared to litigation, and their
                                                                                                                         Continued on Page 2
                        The ADR Newsletter                                                                                   April, 2004
                        Continued from Page 1
                        expanded use would offer the HR manager increased                              Mediation
                        opportunities to resolve employment litigation.
                                                                                   Mediation, another common form of ADR in the
                                                Arbitration                        public sector, is a communication-based process.
                                                                                   “Mediation is a process in which a neutral third
                        Arbitration is similar to litigation. In arbitration, an   party facilitates communication between parties,
                        arbitrator as neutral third-party hears the position       assists in identifying issues, and helps explore
                        and evidence of each party. Like a judge, the              solutions to promote mutually acceptable settlement.
                        arbitrator follows procedural rules and makes a            A mediator has no authoritative decision-making
                        decision, called an award. The award is a reasoned         power.” MCR 2.411(A)(2)
                        decision based on the record. Arbitration may be
Zenell Brown            binding or non-binding; therefore, the award may
supervises the                                                                     The mediator facilitates communications between
Dispute Resolution
                        be binding or non-binding. If the award is binding,        the disputants to ensure that each side hears the
Unit of the Wayne       the parties may appeal the award only if the               other’s point of view so that they can empathize and,
County Friend of        arbitrator exceeded the scope of his or her authority      hopefully, resolve the dispute. Mediation often
the Court, which        or for other narrowly defined reasons. The court           begins with the parties giving their interpretation of
provides mediation      which reviews an application to enforce the award          events. One side will begin by telling its story, often
on referee and          generally does not conduct a plenary review; rather,       venting the emotional burden of the story, and close
judge-referred cases,   the court has the right to review the arbitrator’s         by giving its rationale for the desired result. The
and screens each in     award to determine if the award draws its essence          mediator ensures that each side speaks and the other
pro per parenting       from the agreement of the parties and does not             side listens. The mediator is unlike a judge and is
time motion for         require either party to engage in an unlawful act.5
possible mediation.
                                                                                   not concerned about what the law may say on the
An attorney with                                                                   issue or who appears to be right in light of the law.
                        Arbitration is a common ADR process found in the
the Friend of the       public sector because of the prevalence of unions
Court since 1997,
                                                                                   After the venting stage, the mediator moves the
                        and union contracts in the public sector. For              parties’ focus to their interests and needs. The
she also trains peer
mediators in the
                        instance, the American Federation of State, County,        disputants generate possible solutions based upon
Detroit Public          and Municipal Employees’ Steward Handbook states           those interests and needs. The mediator does not
School system.          that after step 4 in the grievance process, “If a          judge any of the proposed solutions and allows the
                        grievance is still not resolved, the final step is a       parties to decide which ones are acceptable. The
                        hearing with a professional arbitrator whose decision      mediator may meet with each party privately in a
                        is final and binding.”6                                    caucus to help the individual parties generate, clarify,
                                                                                   and explore options. Caucuses are confidential and
                        Some criticism of arbitration is based on myth. The        also allow the mediator to explore the possibility of
                        critics state that arbitration ignores legal precedents    hidden agendas and test the reality of proposed
                        and rules, is only good for claims involving major         resolutions. If the parties reach agreement, the
                        disputes, and is conducted in secret. In reality, most     mediator drafts it. The agreement may be
                        arbitrators are attorneys or retired judges who usually    comprehensive, addressing concerns not directly
                                       arbitrate matters in which they have        related to those that prompted the mediation. If the
                                       some subject matter knowledge.
      The mediation                    Arbitrators tend to follow procedural
                                                                                   parties do not reach agreement, the entire
                                                                                   proceeding remains confidential, and the parties are
           process is                  rules including rules of evidence,          free to progress to the next step in litigation or to use
                                       although they are not bound to do so.
       an overlooked                   Arbitrators, when alerted to the
                                                                                   another ADR process.
                                       existence of outside law bearing on the
            HR tool.                   subject matter of the case, tend to take
                                                                                   The mediation process is an overlooked HR tool. It
                                                                                   is rarely provided for in union contracts or
                                       due notice of the applicability of          mentioned in employee handbooks. It appears that
                        statutes and case law bearing on the disputed matter.      the public sector employment dispute finds its way
                                                                                   to mediation via court order after the employer and
                        Unfortunately, absent a court order requiring the          employee have incurred the expense and time of
                        public sector employer and employee to submit to           retaining counsel and filing suit. If the disputants
                        arbitration, it is rarely used outside of the union-       sought out mediation prior to court filings, they
                        management grievance process. A motivated HR               would realize savings in both money and time.
                        manager could capitalize by using arbitration as a
                        means to resolve other disputes—especially non-            One of the major criticisms of mediation is that the
                        union employee discharge cases—where legal                 parties can spend a lot of energy in the process and
                        structure and process are desired but without the          not reach resolution. In some instances, resolution is
                        costs and time of litigation.                              not possible. In other cases, the parties are not
                                                                                   forthright and truthful during the process, and only

                                                                                                                              Continued on Page 3
   Page 2
The ADR Newsletter                                                                                    April, 2004
Continued from Page 2

feign commitment to resolve the disputes. The               During the brainstorming step, one person will act
mediator may not be able to discern this quickly, so        as scribe to write down all of the possible solutions,
the process continues until it becomes clear that a         and they should be posted for all participants to
party is not genuinely interested in settling. Because      view.
mediation bears little resemblance to traditional legal
processes, some lawyers are averse to using                 The third step is finding the best option. The
mediation in place of litigation.                           parties will determine the criteria by which they will
                                                            evaluate each of the possible
Mediation not only offers parties who are truly             solutions. Some possible criteria         The public
interested in reaching a resolution an opportunity to       include best practices and industry       employer should
do so, but it also offers an opportunity to retain full     standards. The parties will then
control over what the resolution will be. One of the        evaluate each of the possible             not limit itself
major benefits of mediation is that agreements are          solutions against the standards.          to arbitration
customized and tailored to the parties’ interests and       The chosen solution must meet the
needs. Therefore, the parties are more likely to            parties’ mutual interests, and the        and mediation.
adhere to the agreements reached. The resolutions           parties must agree that it is the best    Other ADR processes
are typically more comprehensive than lawsuit               solution under the circumstances.
decisions or arbitration awards. Furthermore,               After one issue is resolved, the parties  offer cost savings,
mediation’s mutually acceptable agreements help             move on to the next interest until all    time savings,
preserve the relationship between the parties, if that      issues are addressed and a solution is
is a desired outcome. In employment situations, the         chosen for each.                          and other benefits.
parties may not wish to terminate the employment
relationship. Because mediation does not have a             As with mediation, it is not uncommon that, after
win-lose outcome, it allows the parties to continue         much time and effort is spent on the issue, the
the employment relationship after mediation is              parties will decide that the best resolution is either to
completed.                                                  maintain the status quo or to drop the issue.7 The
                                                            benefits of interest-based bargaining are similar to
Finally, the confidentiality of the mediation process       those associated with mediation. Therefore, it might
allows each party to continue in the litigation             work well in the contract negotiation process where
process if no agreement is reached. No one has              the employer and unions will have an ongoing
relinquished any legal rights by participating in           relationship and both parties have interests and
mediation. In addition, as more courts are ordering         concerns in how the relationship will mature.
cases to mediation to curb backlogged dockets, it
would be strategically advantageous for public sector       New Jersey’s Early Settlement Program
employers to offer mediation as early as possible,
                                                            Arthur D. Finkle8 shares the story of the State of
even prior to filing of lawsuits.
                                                            New Jersey’s implementation of its early settlement
The public employer should not limit itself to              program: The program used mediation to resolve
arbitration and mediation. Other ADR processes              major disciplinary actions involving
offer cost savings, time savings, and other benefits.       employees represented by collective
                                                            bargaining units. From 1992 to
                                                                                                       Even when there
Interest-based bargaining is one example, where the
employer can maximize the opportunity to negotiate          1999, the state estimated it would         was not a resolution,
with individual employees or union representatives          have spent $4,500, and the unions
                                                            would have spent $3,500, on each
                                                                                                       management saw the
(as applicable) and resolve disputes.
                                                            case routed through the Office of          process as providing
             Interest-Based Bargaining                      Administrative Law (OAL). The cost         a better view
                                                            of mediation was $450 total for each
In interest-based bargaining, the first step is             case. Also, in the early settlement        of the employee’s
identification of interests. Both sides identify their
interests. The interests are then grouped together on
                                                            program, cases were typically resolved
                                                            within 5 months as opposed to the
                                                                                                       perspective, interests,
a master list. The parties agree which issue they will      14 months for cases referred to the        and concerns.
address first. Once that issue is identified, the parties   OAL. New Jersey resolved an
move to step two: brainstorming. In brainstorming,          average of 197 cases yearly, saving the state
both sides think of all the possible solutions to           $800,000 annually. Management favored the
address the interest. No judgments are made on the          program since it allowed for a fast remedy and
suggested solutions. The parties may not seem to be         empowered the disputants. Even when there was not
able to come up with many possible solutions after          a resolution, management saw the process as
the obvious ones are identified, but should press on        providing a better view of the employee’s
to ensure that all possible solutions are identified.       perspective, interests, and concerns.
                                                                                                       Continued on Page 4
                                                                                                                             Page 3
         The ADR Newsletter                                                                                         April, 2004
         Continued from Page 3
         The unions expressed similar opinions.                     Endnotes:

                                 Conclusion                         1 Mathiason, Garry G., Achieving Workplace Justice Through
                                                                    Binding Arbitration (1994), available at www.shrm.org.
         In a complex workplace of employment laws and              2 Finkle, Arthur L., Alternative Dispute Resolution: Variations
         rights and in a society that is litigious, it is           on a Theme (2001), available at www.ipma-hr.org.
         incumbent that the human resources managers in             3 ibid.
         the public sector become knowledgeable about
         different types of ADR processes. They then need           4 Buford, James A., & James R. Lindner, Human Resource
         to identify areas where these processes would be           Management in Local Government (Ohio: South-western,
                                                                    2000)
         effective in resolving disputes and stave off the filing
         of lawsuits or promote a more rapid resolution of          5 Maurer, Keith, “The Truth About Arbitration,” Michigan Bar
         lawsuits. ADR processes offer the public sector            Journal (May 2003), p. 23.
         employer several tools to manage employment                6 AFSCME Steward Handbook, available at www.afscme.org.
         related disputes and to ensure that public resources
         are expended on forwarding the organization’s              7 Pennington, Alan D., Interest Based Bargaining, available at
                                                                    www.ipma-hr.org.
         mission rather than on draining away time and
         money in litigation.                                       8 Finkle, supra.



                                 Upcoming Mediation Trainings
         T he following thebymediationtocourttrainings have
         requirements of
                         40-hour mediation
            been approved SCAO fulfill the
                                              rules, MCR
                                                                    all of the dates listed for each training session in
                                                                    order to complete the 40-hour training. For more
                                                                    information, visit the SCAO web-site at
         2.411 (general civil) or MCR 3.216 (domestic               www.courts.michigan.gov/scao/dispute/odr.htm.
         relations). Please note that participants must attend


                           General Civil                                      Domestic Relations
         Training sponsored by Institute for Continuing Legal       Trainings sponsored by Mediation Training and
         Education:                                                 Consultation Institute:

         Grand Rapids: June 3-5, 18-19                              Ann Arbor: April 21-25
         Register online at www.icle.org/mediation, or call         Ann Arbor: July 25-29
         1-877-229-4350.
                                                                    Ann Arbor: December 1-3, 6-7
         Training sponsored by Oakland Mediation Center:
                                                                    Domestic Violence Screening Protocol Training
         Bloomfield Hills: April 20, 22, 24, 27, 29, May 1
         Contact: Nanci Klein at 248-338-4280                       Saginaw: April 18

         Training sponsored by Dispute Resolution Center of         Ann Arbor: April 28, August 10 (tentative),
         Central Michigan:                                          December 8
                                                                    Register online at www.learn2mediate.com, or call
         Lansing: April 29-30, May 1, 14-15                         1-800-535-1155
         Contact: Karen Beauregard at 517-485-2274
         Training sponsored by The Dispute Resolution Center

         Ann Arbor: October 15-17, 22-24
         Contact: Kaye Lang at 734-222-3788




Page 4
The ADR Newsletter                                                                                      April, 2004



                        Comments From the Chair
                                           — by Deborah L. Berecz
                 THE POWER                                  complaints made him so angry, he acknowledged that
                                                            he felt hurt and even stunned that his wife was leaving
     If I can listen to what he can tell me,                him. When gently (I hope) pressed as to why that hurt
                                                            so much, he acknowledged that he still loved his wife
     If I can understand how it seems to him,               and did not want the divorce. Fresh out of the
     If I can see its personal meaning for him,             classroom of Ken Cloke, I tried to empathize and did          Deborah L. Berecz,
     If I can sense the emotional flavor which              not rush him as he explained the loss he was                  ADR Section
                                                            experiencing. We then talked about whether it might           Chairperson
       it has for him,
                                                            be helpful if his wife understood the "space" he was in
     Then I will be releasing potent                        and how that might best be communicated to her.
       forces of change in him.
                              - Carl Rogers                 Confession: When this husband bolted out of our
                                                            prior session, I thought it likely that all future sessions
                                                            with this couple would need to be conducted only by
Kenneth ClokeAnnual Negotiationquotation atthe
   month's 3rd
                  provided the above
                                     & Dispute
Resolution Institute (ANDRI), co-sponsored by
                                               last
                                                            caucus. But I took a calculated risk and put them
                                                            together-even on the same side of the table. The
ADR Section and ICLE. Two nationally recognized             difference in this man, who had earlier stormed out of
                                                            the room, was remarkable. When his wife
speakers, Ken Cloke and Raye Rawls, and an                  acknowledged his hurt and loss, the atmosphere in the
outstanding panel of our home-grown experts made            room immediately changed. He began focusing on
the 2004 ANDRI informative, thought-provoking and           problem solving rather than chronicling her crimes.
instructive.                                                For the remainder of the session I was struck by the
I'd heard Ken Cloke at an ACR (Association for              difference in the tone of the discussion. It still got
Conflict Resolution) conference in San Diego a couple       heated at times, and tears flowed for both, but they
years ago. A lawyer, judge, and mediation trainer, with     had turned a corner. The crow bar of understanding
a Ph.D. in history, Ken Cloke is the kind of                had broken open the possibility of change and
thinker/speaker with whom you'd like to spend a             compromise.
couple days, simply taking in a portion of the wisdom       Some time ago, I remember mediating a dispute
he's stored up after years in the conflict resolution       between a city and a business owner. I can't recall the
field.                                                      precise nature of the complaint, but through the lens
But does the Rogers quotation sound plausible? Does         Cloke provided, I recall how important it was to the
being understood really free a person to change, to         business owner that the city's representative
compromise? Dr. Cloke and Carl Rogers contend that          understand how upset he was at the city's action
being understood functions as a crow bar which breaks       (anger), how he worried about the impact on his
open the possibility for change and compromise. He          business (fear). But most important to him, was the
cites the example of how a parent who sees her six year     injury to his reputation (the need to be cared
old son run onto a busy street to retrieve an errant        for/loved). After reflecting on a variety of other cases
ball, reacts with anger when snatching up that child to     I've handled, as either advocate or neutral-insurance
safety. Any parent has been there and was likely even       defense, family, business disputes-I realize that Rogers
surprised at feeling anger. Why anger? Because the          and Cloke nailed it. Anger and conflict usually derive
parent feared for the child's safety. And why is the fear   from a more basic human need-the need to be cared
present? Because the parent loves and cares for the         for.
child.                                                      Sometimes we expect to go to a conference or seminar
Bottom line: underlying all conflict or anger is fear.      and walk away with some new trick or gadget to get
And underlying fear is care and concern, i.e., a need to    our clients to more quickly and easily resolve their
love and be loved.                                          disputes. But it's imperative that we also get a healthy
                                                            dose of theory and philosophy periodically so that we
How does this help me as a mediator? I had mediation        can more thoughtfully analyze the dynamics in a
clients in my office this morning who illustrated the       mediation session. Ferreting out the real interests
utility of Dr. Cloke's proposition. These clients were      fueling clients' disputes requires a tool (or a dozen
initiating a divorce proceeding and their emotions          tools) from our technique store room. But it also
were still pretty raw. At the previous session, the         requires a philosophical understanding of conflict so
husband was so angry he walked out. I met with him          that we know which tools to employ when-and how
separately the following week and he immediately            vigorously.
began to vent and fume. I simply listened, seeking
clarification periodically, and he continued for some       As neutrals and users of ADR, we are fortunate in
time. When he had exhausted the litany of his wife's        Michigan to have high quality ANDRI conferences
crimes, I asked him why he thought those things made        sponsored by the Section and ICLE. Mark your
him so upset. At first he simply reiterated the             calendars now for March 15, 2005!
complaints but when pressed again as to why those

                                                                                                                                  Page 5
                          The ADR Newsletter                                                                                    April, 2004


This issue’s Ask the
Neutral column was                                               Ask the Neutral
answered by Kelly
Reed, a mediator of
                                  Frequently, I notice that the participants         will assist the parties in reaching a solution. The
both general civil and
domestic relations        Q: look to me as the mediator to make a                    mediator does have playing rules in order to allow ideas
cases who is a                     decision. It is as if the participants,           to flow among the participants. Once that is
shareholder with the      including the lawyers, have selected me because they       accomplished, the body language and demeanor of the
Lansing law firm of       believe I am going to make a decision. My training         mediator, including facial expression, tone and manner
Loomis, Ewert,
Parsley, Davis &          is that the mediator remains neutral. Is there any         of speaking, i.e. content, continues the sense of
Gotting.                  time when a mediator has binding authority? If not,        neutrality. Bad: “What were you thinking when you
                          what should I do so they won’t expect me to make a         sent this letter?” Neutral: “Could you tell us what you
                          decision?                                                  wanted to convey in this letter?” One of the more
                                                                                     difficult mediation skills to master is the ability to ask
                                   The core of mediation is that the mediator is a   questions and make statements in a neutral manner.
                           A:      neutral facilitator who keeps confidential the
                                   discussions during mediation and does not            The position of neutrality must continue through
                          report the merits of the case to the court. A mediator     caucus sessions. Even though the other party is not
                          does not have binding authority. If the parties are        present and the caucus is confidential, it would be
                          looking for a binding decision through ADR, they           unfortunate for the mediator to give any hint of bias.
                          should be directed to arbitration.                         You will destroy any confidence you have built during
                                                                                     the group session. It would be easy for a party to
                          Unfortunately, the scenario described occurs frequently.   assume you are favoring the other party when you are
                          Therefore, I would like to address what a mediator can     in caucus with that other party. Even if the party
                          do when the mediator believes that the parties are         believes you favor him or her, it may encourage a
                          seeking a decision. How does the mediator assure the       resistance to move to settlement.
                          participants that the mediator is neutral, and guide
                          the participants into forming their own settlement?           Clearly stating that the mediator will not make any
                                                                                     decisions, and then maintaining a neutral tone
                             First, the opening statement must be clear: the         throughout the mediation, will discourage parties from
                          mediator is neutral and will not make a decision           seeking a decision from the mediator and empower
                          regarding the outcome of the dispute. The mediator         them to reach their own agreement.

Catherine A. Jacobs, a
     shareholder with
Loomis, Ewert, Parsley,   National Speakers Dialogue With Participants
  Davis & Gotting in
Lansing, is a mediator        and Each Other at 3rd Annual ANDRI
   and member of the
ADR Section Council.
                                                                     — by Catherine A. Jacobs


                          The 3rd Annual Advanced Negotiation andco-
                            Dispute Resolution Institute (“ANDRI”),
                          sponsored by ICLE and the ADR Section of the
                                                                                                                     all Section members to
                                                                                                                     the Council. The
                                                                                                                     participants then
                          State Bar, occurred on Thursday, March 18th,                                               enjoyed a joint
                          2004, at the St. John’s Golf & Conference Center                                           dialogue between
                          in Plymouth. More than 125 participants attended                                           Kenneth Cloke and
                          this year’s ANDRI, which included breakout                                                 Raytheon M. Rawls.
                          sessions on topics pertinent to civil mediation,                                           Kenneth Cloke, the
                          domestic mediation, and advocates and consumers             Deborah Berecz, Chairperson of
                                                                                      ADR Section                    director of the Center
                          of ADR.                                                                                    for Dispute Resolution,
                          Among the participants were experienced judges,             in Santa Monica, California, is a mediator,
                          lawyers, Supreme Court representatives, Friend of           arbitrator, consultant, trainer, and a nationally-
                          the Court representatives, and dispute resolution           recognized speaker. Among his publications are
                          center directors. Many of the participants could be         Mediation: Revenge and the Magic of Forgiveness
                          referred to as “recovering lawyers,” meaning they no        and Mediating Dangerously: The Frontiers of
                          longer practice law but have dedicated their                Conflict Resolution. Raytheon Rawls of the
                          professional lives to mediation.                            Resolution Resources Corporation, Atlanta,
                                                                                      Georgia, holds the status of Advanced
                          Deborah Berecz, Chairperson of our ADR Section,             Practitioner/Advanced Educator with the
                          opened the Institute, inviting communication from           Association for Conflict Resolution. She has been

   Page 6
The ADR Newsletter                                                                               April, 2004


an Administrative Law Judge and is a former dean of    discussing the
the Georgia State University College of Law. In        economics of
2003, she was appointed to the Georgia                 ADR, providing
                                  Commission on        information
                                  Dispute              indicating that
                                  Resolution by the    mediation is
                                  Supreme Court of     much less
                                  Georgia.             expensive than
                                                       litigation, and
                                   The speakers        pointing out that Amy Glass and Tracy Allen
                                   fashioned a         several major
Dale Iverson, Deborah Berecz       remarkable          companies are requiring mediation in all areas
and Raye Rawls.                    forum where they    before litigation. Judges participating in the
                                   encouraged          Institute were particularly interested in this session
questions and statements from the participants. In     as the most frequent resistance to mediation is that
opening the session Kenneth Cloke made a               it adds a layer of costs to the litigation.
statement near and dear to me: “There is no such
thing as a dumb question.” This immediately set                                             In addition,
the invitation to participate. Ms. Rawls and Mr.                                            Naomi
Cloke shined as they displayed the depth of their                                           Woloshin of
skill, experience and knowledge in responding to                                            Ann Arbor
spontaneous questions from attendees. The                                                   provided
dialogue forum between speakers and participants                                            helpful
provided an excellent learning experience. Where                                            strategies to
else would you have captive such highly qualified                                            assist parties
                                                       Nearly 150 practitioners attended.
ADR advocates?                                                                               to
                                                        communicate effectively, and Douglas Van Epps,
Kenneth Cloke continued his presentation in the         director of the SCAO Office of Dispute
civil litigation track, covering topics such as         Resolution, provided his annual update on how
responding to intense emotion in mediation and          Michigan courts are using ADR.
techniques for dealing with and understanding the
role of organizational systems in creating conflict.   Compared with other seminars and institutes I have
Raytheon Rawls, on the domestic relations track,       attended, the planners of the 3rd Annual ANDRI
discussed topics such as understanding the mind        gave the participants a unique opportunity to pause
and moves of the mediator and how the mediator         and network with those in attendance during a
can establish empathy with a particularly difficult    mid-afternoon 30-minute break. Those of us who
party.                                                 insist on arriving at the last minute are grateful for
                                                       the opportunity during the Institute to say hello to
The other speakers for the advocate and consumer       our colleagues.
breakout sessions came from the pool of talent we
are fortunate to have in Michigan.                     Near the end of the opening dialogue, Raytheon
                                                       Rawls reminded the participants that, “No one
In the advocates and                                   method fits all.” For this reason, professionals
consumers track, there                                 taking part in ADR are fortunate to have the
were two panel                                         annual ANDRI to be exposed to the varying
discussions. One was                                   methods of ADR
between Circuit Court                                  and to discuss the
Judges Chad Schmucker                                  topics which are
and Cynthia Stephens and                               being addressed in
Mediators Edward            ICLE Education Director,   Michigan and
Hartfield and Amy Glass. Shel Starke.                  nationally.
The paramount issue,
“How Judges and Mediators Can Best Help Each                                The all-day event included a delicious
Other,” was covered well and remains for further                            lunch buffet.
discussion as we all promote mediation among
litigators.
The other panel consisted of Alan M. Kanter,
Richard Hurford, Asher Tilchin and Sam Morgan,

                                                                                                                     Page 7
                                         The                                                                      PRESORTED STANDARD

                                         ADR                                                                        U.S. POSTAGE PAID
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                                         Newsletter
                           State Bar of Michigan
                           306 Townsend St.
                           Lansing, MI 48933




                           The ADR Newsletter                                                                             April, 2004
The ADR Newsletter
is published by the
ADR Section of the
                            ADR Section’s Annual Meeting Has Grown Up!
State Bar of
Michigan. The views
expressed by
                                        the ADR Section has
                           HistoricallyButconjunctiongrown theheld itsBar of over
                              Meeting in
                           Michigan's.     ADR has
                                                      with     State
                                                                       Annual

                                                            so dramatically
                                                                                      HOW TO KICK START THE USE OF ADR
                                                                                    • Proven techniques for ADR Professionals and the
contributing authors                                                                  Courts to generate interest in and increase the use of
                           the last few years in Michigan and attendance at the
do not necessarily                                                                    Mediation in Michigan
                           Annual Meeting has grown as well. So, the Section's
reflect the views of the
                           Annual Meeting is growing up and moving out of the
ADR Section Council.
                           parents' home!                                           • a look at what's going on in other jurisdictions
This newsletter seeks                                                                 where Mediation is new
to explore various         On September 9 and 10, 2004, join us at the Soaring
viewpoints in the          Eagle Resort in Mt. Pleasant for a retreat meant to      • how ADR Professionals and Advocates can be
developing field of        not only inform but also provide opportunities for         prepared for a geometricincrease in ADR usage; and
dispute resolution.        conversation, camaraderie and even some fun! Harry         why the Courts are going to love it when it
                           Goodheart III, President of the American College of        happens.
For comments,              Civil Mediations, will be joining us to facilitate an
contributions or           Open Forum Discussion on Thursday, September 9           Don't forget about the Friday afternoon Golf
letters, please contact:   from 5:30 - 7:30. This promises to be an excellent       Scramble at the beautiful Pohl Cat Golf Course! If
Anne Bachle Fifer:         opportunity to dialogue with leaders of various          golfing isn't your thing, the Soaring Eagle offers many
                           sections of the Bar and judges and justices active in    other activities and events. So bring the family and
at (616) 365-9236,
                           the ADR field.                                           join the growing community of ADR providers and
fax: (616) 365-9346
                                                                                    users for a fall break from the routine. See the green
or Benjamin Kerner                                                                  information and registration forms included in this
                           On Friday, September 10, following the Business
at (313) 965-1920,         Meeting, Mr. Goodheart will give a presentation on:      Newsletter for further details.
fax: (313) 965-1921




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