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October 2005                                                      A Professional M ediator’s Resource Guide

                         President’s Letter
In This Issue            Dear Colleagues:
 President’s Letter
                         As you are probably aware, October 20th has been designated Conflict Resolution Day by
 Award to Group         the Association for Conflict Resolution ( I encourage you to join in
  Chair                  one of the many opportunities locally and nationally to celebrate this day, week and
 New Members            month. The cities of Seattle and Vancouver, Washington
                         ( nmonth.htm ) have also similarly
 Certifications         endorsed this celebration. Many states and local governments are doi ng the same. By
 Re-Certif ications     happy coincidence, increasing awareness of Mediation and A lternative Dispute Resolution
                         is one of the themes your WMA Board and Leadership are trying to emphasize this year.

                         Now, more than ever, as we as a country face the challenges of national disasters,
Articles of Interest
                         conflict and uncertainty, we invite you to get involved at your local community level to
Transforming             help celebrate this positive development.
Through Restorative      Sincerely,
                         Kevin R. Cornwell
The Future of            President, WMA
                         Chair of UMA-RUAA Work Group Receives 2005 President’s
Olympia Report
Uniform Mediation Act
Signed Into Law          WMA was pleased to present its 2005 President’s Award to local attorney Nicholas Wagner
                         for his outstanding work as chair of the UMA-RUAA work group at its annual meeting. This
                         work group, which included WMA, was asked to review, revise, and recommend the
Short Stuff              Uniform Mediation Act (UMA) and the Revised Uniform A rbitration Act (RUAA) to the
Review:                  Washington State Legislature for passage.
A Practical Guide for
Resolving Government     Without Nick’s legal knowledge, skill as a mediator and arbitrator, and political savvy, it
Contract Controversies
                         is unlikely that this project would have been brought to a successful conclusion - the UMA
(2d Ed)
                         was signed into law on April 22, 2005 and the RUAA on May 13, 2005.

                         Whenever the work group got bogged down on an issue, it was Nick’s patience,
Contact Us               understanding, and willingness to see new possibilities that lead the group forward. Much
Editor: Darrell Puls     of the language crafted to address the often competing concerns of the work group’s
                         members, was Nick’s.

                         His dedication and commitment to this project, and his superb facilitative skills have
                         made it possible for the Washington State mediation community to be beneficiaries of a
                         strong UMA-RUAA that works for Washington’s many member organizations.

                         Congratulations Nick! And thank you for your dedication and commitment to the UMA -
New Members!
The following mediators have joined WMA in 2005:
Richard Blumenthal, Cheryl Cheney-Stoudt, Jeffry Coulton, Roxanne Cull, Micky Forbes,
L. Jean Garaham, Cheryl Harvey, Judge David Hulbert, Kirby Juhola, C. Richard Ksalin,
Kathy Kiwala, Arie Liebhaber, Robin Low, Sally Mayo, Irene Mazur, Theresa Meade, Cheryl
Metcalf, Coral Miller, Erin Nelson, Clare Pederson, Phillip Stephen Pino, Roger Ridgway,
Catherine Schatzel, Carin Smith, Nathaniel Sukolsy, Johnette Sullivan, Duy Duc Vo, and
Jaffrey Wishko.

The following members have completed the certification process and are now
certified by WMA:
Nate Sulkowsy, Robbie Kenreuther, Pattie Dinsmore, Jeff Morris, Steve Pino, Sandra
Kurjiaka, and Richard Blumenthal.

The following members have completed the recertification process:
Deborah Diamond, Karen Zaugg, Laurie Slater, Kathleen Nichols, Vivien Sharples, Ron
Feld, Don Desonier, John Nemes, Mark Kuciemba and Robin Low.

Articles of Interest

Transforming Relationships Through Participatory Justice
By The Law Commission of Canada

Executive Summary ( )
Wherever there are people, the possibility of conflict exists. One of the ways we deal
with conflict is through the justice system. But, over the past several decades, some
Canadians have become dissatisfied with how the formal justice system responds to
conflict. Conflicts are framed in legal language, rather than in terms of how individuals
experience them; remedies often do not provide adequate redress for those who have
been harmed; and the process is frequently time-consuming, costly and confusing.

Frustration with an adversarial justice system has spurred the rise of alternatives such as
victim–offender mediation, sentencing circles, community mediation and judge-led
settlement conferencing. These alternatives are usually grouped under two broad
categories: restorative justice and consensus-based justice. Restorative justice refers to a
process for resolving crime and conflicts, one that focuses on redressing the harm to the
victims, holding offenders accountable for their actions and engaging the community in a
conflict resolution process. Consensus-based justice refers to innovative methods of
resolving mostly non-criminal conflicts. Because the participation of the parties in the
resolution of the dispute is an essential part of both restorative and consensus -based
justice, they can both be considered forms of participatory justice.

Over the past three years, the Law Commission of Canada has consulted with Canadians
about meaningful methods of resolving conflicts. The Commission’s consultations
revealed that Canadians want choices for resolving their conflicts, and that many want to
actively participate in the conflict resolution process. The Commission believes that
participatory justice— with its emphasis on the reconstruction of relationships through
dialogue and on outcomes developed and agreed to by the disputants themselves —
responds to this need. The challenge, as the Commis sion sees it, is for governments and
civic institutions to find ways to support participatory justice without limiting its
innovative potential.

As such, this report has several objectives:
• to clarify the underlying values and principles of both restorative justice and consensus-
based justice by drawing from the literature, research and ex periences that these
innovations have generated;
• to challenge thinking about the classification and division of disputes for the purposes
of fair process and just resolution, in particular the distinction between criminal and civil
• to identify the remarkably similar concerns and critiques that have been expressed
about restorative and consensus-based justice;
• to identify best practices in participatory justice across Canada;
• to address policy questions and explore the changes necessary to make restorative and
consensus-based justice processes part of the mainstream of dispute resolution practice
in Canada, without losing their creative elements; and
• to make recommendations that enhance the capacity of the justice system to provide
meaningful results for Canadians and to develop a culture of participatory justice in

The Current Experience of Participatory Justice

                              The failure of the punitive system to lower crime rates or
                              contribute to greater public safety, and the disillusionment
                              of victims and their families with the criminal justice system,
                              are some of the factors behind the rise of restorative justice
                              in Canada. Another important influence has been the
                              emergence of the community justice movement, which seeks
                              a return to local decision-making and community-building
                              independent of the formal justice system. Restorative justice
                              in Aboriginal communities, in many cases based on
traditional healing and spiritual practices, has grown in response to an overwhelming
need for emotional and spiritual healing, as well as out of the movement to assert
community control over government functions.

Many of the early restorative justice processes were developed without a specific
legislative framework. However, within the past several years, a series of court decisions,
legislative initiatives and policy statements have sought to provide parameters for the
growth and development of restorative justice processes.

The more common forms of restorative justice in use in Canada are:
• Victim–offender mediation (VOM) and victim–offender reconciliation programs (VOR Ps).
Among the earliest models of restorative justice, VOM and VOR Ps bring the offender a nd
the victim voluntarily together in the presence of a trained mediator, either before
sentencing or sometimes many years after incarceration. Most of these models
complement the formal justice system: regardless of the outcome, the offender may
receive a formal conviction, a criminal record and a traditional punishment.
• Community and family group conferencing. A co-ordinator invites the family and friends
of both the victim and the offender to participate in a discussion to explore appropriate
ways to address the offending behaviour and desired outcomes for the family or
community. The focus is usually somewhat broader than that of VOM and VOR Ps, since it
involves an evaluation of the impact of the offence on a wider group. The group develops
a plan for monitoring the future behaviour of the offender and sets out any reparative
elements deemed necessary.
• Sentencing circles. Operating in many Aboriginal communities in Canada, sentencing
circles allow victims, offenders, community elders, other communit y members and court
officials to discuss the consequences of a conflict and to explore ways of resolving it.
Some sentencing circles operate within the formal justice system as an alternative to the
conventional sentencing process. Sentencing circles are s ometimes also used for cases
that are diverted from the justice system.
• Community boards or panels. Made up of volunteers from the community, who formally
meet with offenders and victims to facilitate a discussion of appropriate outcomes,
community boards or panels are used either as a pre-charge diversion from the formal
system or as an alternative means to determine an appropriate sentence after a guilty
plea has been entered.
• Other participatory processes. Restorative justice principles have influe nced the
development of many school-based programs, including peer mediation training and anger
management education. Work also takes place in prisons with incarcerated offenders,
preparing them for reintegration into their communities.
The Commission believes that most restorative justice initiatives share the following
objectives and values.

The Future of Mediation
The Center for Accord
 By Nicholas Martin

In this final article in our series, we will project ahead to what can be expected in the
next few years, as ADR (alternative dispute resolution), and especially mediation,
become more and more firmly established as the preferred means of resolving those
disputes that we are unable to resolve on our own. What follows is based not in
guarantees but on visible trends and the perspectives of the author, in whose opinion the
time frame, more than the ultimate outcome, will be the primary variable.

At a seminar for attorneys, entitled "Mediation Advocacy," a presiding judge emphasized
that we will never again have adequate judicial resources to meet the needs of the
community through the traditional means of the past; as our population continues to
grow, we must find other dispute resolution approaches which effectively serve the
public. Mediation was cited as the key option whose use will be ex panded.

Nationwide, mediation has rapidly evolved into an increasingly widespread approach to
settling lawsuits without the need for trial. What we can expect in the future is an
increasing requirement by the courts that litigants attempt to resolve their disputes
through mediation, settlement conference, and/or arbitration first, with trial reserved as
a last resort.

In this light, our law schools will continue to place an increasing emphasis on ADR as a
central facet in the training of attorneys. We will see increasing use of it by attorneys,
who will standardly advise their clients as to which approach will best serve their needs.
Where "ADR" originally signified "alternative" dispute resolution, it will increasingly be
seen in terms of appropriate dispute resolution, as the challenge shifts from whether or
not to use ADR to which of the ADR options is most fitting for the particular dispute.

The attorney of the future will see his or her participation in the mediation process as an
integral aspect of the practice of law. He or she will find ample room to be a "zealous
advocate" within a cooperative atmosphere, and the adversarial character so commonly
associated with the practice of law will be reserved for when it is really needed.

Community mediation centers will increase in numbers to serve all segments of the
community, and will respond to a very broad range of conflicts, not only lawsuits. The
public will become increasingly familiar with mediation as a viable option, and will seek
mediation either before filing suit or as early as possible within the lawsuit process.

The number of universities offering programs in conflict resolution will continue to
expand, and more meaningful standards will evolve to define what qualifies the
competent mediator. Professional ethics and standards of conduct will become more
clearly defined, and grievance procedures will be more readily available.

Dispute resolution clauses will become a standard aspect of most contracts, including
divorce agreements. Arbitration clauses will be replaced by mediation clauses, with
arbitration, in many cases, as the next resort. Legal insurance will not only cover the
costs of ADR, but those insured will have a responsibility to mitigate ex penses by
attempting ADR before going to trial.

The current distinction between evaluative and facilitative mediation will be abandoned,
as true mediation is increasingly understood to be, by definition, only a facilitative
process. So-called "evaluative mediation," in which the mediator shares his or her
professional experience, gives expert opinions and advice, and serves as an "advocate for
the settlement" (in contrast to the parties), will be seen for the ox ymoron it has always
been. Those in need of an evaluative process will seek ADR approaches which are clearly
defined as such (moderated settlement conference or early neutral evaluation), and the
term mediation will be reserved for what it really represents: a process designed to
facilitate communication between the parties so that they may strengthen their mutual
understanding, draw their own conclusions, and design their own settlement agreement.
And as mediation becomes more and more the way of the future, more and more power
will return to the people.
Published in "Cascade Business News," June 18, 1997
Revised and updated February 23, 2000

News from Olympia
Uniform Mediation Act Signed Into Law

Governor Christine Gregoire has signed the Washington State Uniform Mediation Act into
law, with an effective date off January 1, 2006. To read the full bill, click this link:
06/Htm/Bills/Senate%20Passed%20Legislature/5173-S.PL.htm .

Every mediator needs to be familiar with the provisions of this new law.

Short Stuff     –
“A Practical Guide for Resolving Government Contract Controversies, Second Edition"

Most federal government controversies settle -- and many of those that don't, should.
Over the past decade, the use of ADR has increased dramatically, with data showing
successful resolution rates in excess of 90 percent. To meet the need for expert, practical
information about employing Alternative Dispute Resolution (ADR) methodologies i n
federal contracting disputes, the A BA Section of Public Contract Law has just published
an updated second edition of "Alternative Dispute Resolution: A Practical Guide for
Resolving Government Contract Controversies." This is a practical, clearly written guide
that explains how to effectively use ADR techniques to settle government contract
disputes and avoid the time and cost of litigation.

Written by practitioners with broad experience in using ADR for government contract
disputes, this updated and expanded book provides sound, up-to-date, and practical
advice for the experienced ADR practitioner and is a valuable tool for those unfamiliar
with the use of ADR.

To learn more about this book, view the table of contents, and order online, go to

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