NEWSCASTER
Ohio Mediation Association

A Bi-Monthly Publication July 2003

President: Martha Antolik (937) 264-2336 E-mail: mantolik@coax.net
President Elect/Newscaster Editor: Shirley Cochran (513) 732-7397 Fax: (614) 863-4775 E-mail: scochran@insight.rr.com or scochran@co.clermont.oh.us
Vice President: Jay Patterson (614) 447-8564 E-mail: jsphaedrus@ameritech.net
Treasurer: Dan DeStephen (913) 775-2067 Fax (937) 775-6152 E-mail: dandestephen@wright.edu
Secretary: Ed Krauss (614) 752-9595 E-mail: Ed.Krauss@cdr.state.oh.us

 

Mark your Calendars for our exciting 2003-2004 meetings!!

August 1, 2003 A Domestic Violence Mediation Program from Clermont County

Juvenile Court. Presentation by Lou Ann Wood, Mediator and

Carolin Baker, Manager of the Clermont County program.

October 3, 2003 WAVE: youth peer mediators organization from Cleveland, Ohio who were recognized by the White House Carol Close, Coordinator and several peer mediators will be at our meeting

December 5, 2003 Victoria Solomon, J.D., L.I.S.W., will be presenting “Ten Gifts a Mediator Brings to the Table”.

February 5, 2004 TBA

March 26, 2004 Annual Meeting at Fawcett Center OSU The Future of Credentialing and What it Means to Ohio Mediators. NOTE DIFFERENT DATE AND LOCATION THAN REGULAR MEETINGS!

All meetings to be held at 11:30 AM at the MCL Cafeteria at Westerville and Schrock Roads in Westerville until further notice (Directions on back page)

 

President’s Column
By Martha Antolik

What is the role of a statewide mediation organization? Is our primary goal to be a source for networking? Who needs to network—and why? Should the Ohio Mediation Association direct its energies to the needs of struggling private practitioners who may be wondering if perhaps a move to another career field might be in order? Or, should our highest-priority focus be the mediator who’s working for the courts or the schools?

These are questions that we’ll be asking you soon as we look to keep OMA relevant to Ohio’s mediation community now and in the future.

Our field of dispute resolution has been hard hit by the downturn in the economy. Some court and municipal programs throughout the state have either faced sever cutbacks due to a shrinking financial base of support—and some have died. The Ohio Commission on Dispute Resolution and Conflict Management, which has supported OMA in numerous ways throughout the years, recently survived the possibility of being “zeroed-out” of the state budget. These are hard times and the hope of those who serve OMA on the executive committee is that members still want to be members, and can and will remain active in the field.

And speaking of questions for members–OMA will be undertaking a project with the Ohio Community Mediation Association to hold a series of statewide forums about the Uniform Mediation Act. What we’re hoping is that you show up and give us your thoughts, ideas and feedback. Stay tuned for more information about this project, which is being supported by the Ohio Commission on Dispute Resolution and Conflict Management.

 

OMA Has New Secretary

Ed Krauss, Director of Community and Court Programs for the Ohio Commission on Dispute Resolution and Conflict Management, has accepted the position of Secretary for OMA. He will be responsible for maintaining the membership database and for taking minutes at meetings.

Comments and corrections regarding membership information should be sent to Ed at ed.krauss@cdr.state.oh.us, or faxed to 614 752 9682. His phone number is 614 752 9681.

 

Commission Survives Budget Axe

As most of you know, the Ohio Commission on Dispute Resolution and Conflict Management has just come through several tense months, not knowing if it would be in the State’s budget for fiscal years 2004 and 2005. On June 20, just before its operating budget expired on the last day of June, the Commission learned it was included in the final budget bill that came out of the House/Senate Conference Committee.

The campaign to keep the Commission open included letters, emails, phone calls, and personal contacts with legislators for much of the past four months from across the state. The six members of the Commission, and their Commissioners [board of directors], wish to express their sincere thanks for this warmhearted and generous outpouring of support and expressions of confidence in the value of their work.

 

 

Presenter for June 2003 Susan Tucker, Community Outreach Director Summit County

Informal Hearings prepared by Sandra Fredrick ************************************************************************

At the June OMA meeting, Susan Tucker presented information about Summit County DR Court’s Informal Proceedings program. The procedures for this program are set out in their local rules and they specify that only post decree parenting issues are to be addressed at these hearings, and that the parties involved must not have motions pending before the court.

The parties fill out a request form that is reviewed by the Community Outreach Director, Susan Tucker, to ensure the case is appropriate for the informal hearing process. The parties meet one time with Susan for approximately two hours. Susan uses mediation skills to help the parties identify and clarify issues, but says she is more directive with parties than she would be in a traditional mediation. In these hearings it is not uncommon for her to tell the parties what the court expects from them and what they can expect from the court. She says that Judge Nicely and Judge Dezso have established clear guidelines as to what is expected of parents under certain circumstances.

If the parties reach a consensus, they write up their agreement using an Agreed Entry form. It is necessary for the parties to prepare the agreed order themselves to prevent Susan from being perceived as illegally practicing law. Susan takes the agreed order to a judge to sign. Once signed, the parties take the order to the clerk’s office to be filed. There is no fee, other than the filing fee, for this service.

 

Dan Dobbs is the Family Court Services Coordinator in Summit County who was also to be present that day. He was not able to be with us since he is serving with the armed forces. We send good wishes to Dan from the OMA. Thanks again to Susan Tucker of Summit County for presenting to the OMA.

Food for thought………..

Susan commented that she found the telling of the story very significant to the process looking for the underlying issues. During our discussion we found it interesting that they would be able to predict an outcome of any set of circumstances in the legal setting. I personally found the idea of allowing parties to write their own agreement thought provoking. Would they feel more committed to the agreement? There were some at the session that would not consider allowing the writing of the agreement. Would it depend on the type of mediation? I have heard it stated before by mediators to never give up the pen or marker?

Lawyer as Problem Solver Award Goes to Charles A. Asher and to the United States Air Force The ABA Section of Dispute Resolution Lawyer as Problem Solver Award cosponsored this year by the Section of Public Contract Law will recognize Family Lawyer and Mediator Charles A. Asher and the United States Air Force with the Lawyer as Problem Solver Award.  Mr. Asher will be recognized for his investment of enormous time and resources and his application of insight and creativity in developing a web-based instrument to help divorcing parents reduce the adverse consequences of conflict and divorce on their children. The United States Air Force will be recognized for its outstanding dispute resolution programs in contract, workplace, and labor-management disputes in which it established the procedural guidelines for integrating ADR as an essential part of the processes by which the Air Force resolves its disputes. The tickets are $50 and can be purchased on line at www.abanet.org/annual/2003 or call the Section Staff office at (202) 662-1680. The presentation will occur on Friday, August 8 in Room 104-Exhibitor Level of the Presidential CLE Center Moscone Convention Center – South. The purpose of the award is to recognize lawyers who in their professional capacities use their lawyering and problem-solving skills to forge creative solutions.  The Section of Dispute Resolution is dedicated to assisting lawyers and neutrals in acquiring and applying skills that permit innovative and efficient resolution of conflict.  The award is given to a member of the legal profession who has exhibited extraordinary skill in either promoting the concept of the lawyer as problem-solver or resolving individual, institutional, community, state, national, or international problems. Recipients are acknowledged for their use or promotion of collaboration, negotiation, mediation, counseling, decision-making, and problem-solving skills to help parties resolve a problem in a creative and novel way. Jack Hanna 202-662-1690 740 15th Street NW Washington, DC 20005 Fax 202-662-1683 hannajack@staff.abanet.org Web: http://www.abanet.org/dispute Save the Dates: ABA Annual Meeting, August 8-10 San Francisco Section of Dispute Resolution Annual Spring Conference April 15-17,2004 New York City Celebrating Ten Years of Service to the Dispute Resolution Profession

Friday, May 30, 2003 ABA Journal E-Report © American Bar Association

DISPUTE RESOLUTION CLAUSES KEEP THE FAITH

Many Clients Asking for Mediation Under Christian Principles

BY MARGARET GRAHAM TEBO

The question some lawyers’ Christian clients are asking these days is, “What would Jesus do?”

Those clients are seeking religious guidance for their legal relationships, and are incorporating mandatory dispute resolution clauses into contracts that call for using biblical principles in arbitration or mediation. In at least two cases, courts have accepted such clauses.

At the heart of the movement is the Institute for Christian Conciliation, part of Billings, Mont.-based Peacemaker Ministries, a nonprofit association founded in 1982. The central idea is the concept of Christian conciliation, coined in the early 1980s by a group of lawyers who met regularly for Bible study and prayer. The group concluded that certain Bible passages call upon Christians to settle their disputes within the church family.

Increasingly, lawyers are being asked by clients to incorporate conciliation clauses into legal documents, says Lynn Pace, director of the Institute for Christian Conciliation, which was founded in 1993. Such clauses typically require the parties to attempt to resolve their disputes using Christian principles, first by negotiating with one another, then by attending mediation sessions moderated by a Christian conciliator certified by the institute, says Pace, an attorney.

Ultimately, if necessary, the parties may seek binding arbitration following the rules for Christian conciliation, she says. According to Pace, there are about 90 conciliators nationwide. Some are lawyers; the rest are mostly clergy and professional counselors.

The institute has even promulgated the Rules of Procedure for Christian Conciliation, a set of guidelines that require parties to use both legal and biblical principles in mediations and arbitrations, Pace says.

At least one court has found the clause to be a binding arbitration agreement. In Encore Productions Inc. v. Promise Keepers, 53 F. Supp. 2d 1101 (D. Colo. 1999), the court found that the parties had contractually agreed to binding arbitration by a Christian conciliator.

In another case, Prescott v. Northlake Christian School, 244 F. Supp. 2d 659 (E.D. La. 2002), the court confirmed an award by a Christian arbitrator. The opinion said the arbitrator had the authority to find that a Christian school breached its employment agreement with a teacher because it did not follow biblical principles as called for in the contract. The arbitrator said those principles required the school to attempt conciliation before firing the teacher.

The parties had agreed to submit themselves not only to the civil law but to biblical authority, said the court, and an arbitration award cannot be overturned simply because the arbitrator fashioned a remedy that would not have been available to the court.

Such arbitration clauses between similarly situated individuals are generally enforceable, says Northwestern law professor Steven Lubet. Problems of enforceability might arise if such a clause were used in a contract in which the terms are not negotiable, such as in a secular employment contract.

“I think it would be a real challenge to enforce an adhesion contract like that, where someone is forced into a religious arbitration over the terms of their employment where the employer is not a religious organization, but is, say, a big department store owned by someone who wants to use this clause,” says Lubet, an expert in alternative dispute resolution.

Lubet notes that Judaism has long had a tradition of parties agreeing to settle disputes by a panel of rabbis, though those decisions are not typically legally binding in secular courts because there is no similar arbitration language.

A typical conciliation clause for a contract offered by the institute reads: “The parties to this agreement are Christians and believe that the Bible commands them to make every effort to live at peace and to resolve disputes with each other in private or within the Christian church (see Matthew 18:15-20; Corinthians 6:1-8). Therefore the parties agree that any claim or dispute arising from or related to this agreement shall be settled by biblically based mediation and, if necessary, legally binding arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker Ministries.”

One attorney who has used the Christian conciliation clause is JoAnn Schmitz, a solo practitioner in Colorado. At first, she says, she worried that the process would weaken her client’s rights in a dispute. But she included an opt-out clause, so she agreed to include conciliation language in the client’s contract. She says she also found that under the rules, parties may negotiate a requirement of mutual agreement for the case administrator selection, specific requirements for the mediator’s or arbitrator’s training, limits on administration expenses and other typically negotiable elements. The process also allows for parties to bring secular law into the discussion and to have attorneys present.

Lubet says that finding new methods of resolving disagreements is generally beneficial, so long as religious forums are not forced on parties who don’t wish to participate.

“In a pluralistic society, it’s good to experiment with other means of dispute resolution, but it’s not good to impose it on people who have had second thoughts,” he says.

SOUTHERN CALIFORNIA MEDIATION ASSOCIATION FILES HISTORIC AMICUS BRIEF IN ROJAS CASE Courageous Stand Against Conventional Wisdom in Mediation World Essential to Preserving Mediation Integrity; Brief Supports Petitioners’ Claim that the Mediation Confidentiality Statute Does Not Apply to Raw Data or Non-Derivative Evidence Disclosed in Discovery During Mediation LOS ANGELES –  The Southern California Mediation Association (“SCMA”) announced (May 22, 2003) its historic, first-ever filing of an Amicus Curiae brief, in support of the petitioners in Rojas v. Superior Court, 102 Cal. App.4th 1062 (2002).  Rojas held that the mediation confidentiality statute, California Evidence Code § 1119, does not apply to raw data or “non-derivative” evidence disclosed in a mediation, and provides only a qualified protection for “amalgamated materials” such as charts and diagrams prepared by an attorney and disclosed in a mediation.

In Rojas, tenants requested that a developer produce photographs and related materials in discovery.  The developer had previously used the photos in a related case, which was subsequently settled.  In Rojas, the developer then claimed that the settlement negotiations in the earlier case amounted to a “mediation” and that the materials were “prepared for mediation” within the meaning of the Evidence Code.  The Court of Appeal ruled that the developer should produce the photos notwithstanding the “mediation confidentiality” arguments he asserted.  SCMA supports this position.

“We realize that this position may seem counter-intuitive to some,” stated SCMA President, Esther Carson Bleuel.  “We also acknowledge that this may not be the conventional wisdom.  However, as a board, we deliberated long and hard before voting overwhelmingly in favor of taking this position.  In the final analysis, we are absolutely not against mediation confidentiality; far from it – rather, we are in favor of mediation integrity.”

The SCMA brief, written by Wendy Lascher of Ventura and SCMA Board Member Jeff Kichaven of Los Angeles, supports the majority opinion of Justice Lillie of the Court of Appeal that permitted discovery of the photographs and other documents that were the subject of this dispute.  The brief makes it clear that the California Evidence Code provides a valuable mechanism to keep confidential documents and evidence that are “prepared for mediation,” when those materials are so designated in advance.  Rojas merely prohibits parties from exploiting the confidentiality statute or obstructing the administration of justice.  In particular, the SCMA brief makes the following points:

I.      Affording absolute confidentiality to all evidence belatedly claimed to have been “prepared for mediation” would destroy the integrity of mediation and the integrity of litigation as well. A. A rule of absolute confidentiality conflicts with the legislative goal of encouraging mediation. B. The Foxgate decision does not require that evidence prepared for mediation automatically be afforded absolute confidentiality. C.  In this instance, Evidence Code Section 1119 does not apply because the settlement proceeding in the earlier related case was in fact, not a mediation.

II.     A party who intends to claim mediation confidentiality must identify evidence as prepared solely for mediation at the time the evidence is disclosed at the mediation.

“SCMA has a responsibility to provide leadership and support to the mediation community,” stated SCMA Board Member, Jeff Kichaven. “The SCMA board feels it is vital to protect the integrity of mediation and to encourage public confidence in its use.  The primary goal and value of mediation is to foster informed self-determination in the resolution of conflict.  In the context of litigated cases, mediation helps courts manage crowded dockets, serves the interests of clients in achieving settlements when reasonably possible, and assists the public in the administration of justice.  Mediation can serve these goals only if its integrity is preserved, and that requires the Supreme Court to affirm the Court of Appeals’ decision in Rojas.  We didn’t think anyone else in the mediation community was going to step forward and say so – that’s why the SCMA Board was so courageous in voting as it did.”

The Southern California Mediation Association was founded in 1989 to respond to the growing interest in mediation as a profession and in mediation as an effective adjunct or alternative to other forms of problem solving.  SCMA has approximately 500 members and is Southern California’s leading provider of continuing professional education for mediators.  For more information, please visit the SCMA’s web site at www.scmediation.org.

Networking & Resource Center for Mediation Program Managers — Build the Quality of Your Mediators The Keybridge Foundation, in collaboration with CRInfo and funded by the Hewlett Foundation, is pleased to announce the launch of the Clearinghouse for Mediation Program Managers website. This website will enable mediation program managers to network with other programs, share knowledge and expertise, and exchange information about current mediator management practices. Our focus is on assisting program managers as they create and manage rosters of mediators. Please visit the site at www.crinfo.com/mediation-program-managers. If you manage a roster, fill out our questionnaire of Mediation Program Roster Practices so that we can begin to collect data for the Clearinghouse. The data from many programs will in turn be helpful for you in developing or improving your own program. Whether the program serves a court system, community mediation center, state or federal agency, or private referrals, the Clearinghouse provides links, articles, and tools to support mediation program managers. Please direct feedback to adr@keybridge.org.

Monthly Presenters for OMA by Sandra Fredrick

I wanted to let the members of the Ohio Mediation Association aware that I will be coordinating the monthly presenters for our organization. I am very interested in any appealing presenters and if you feel you have a new program or approach that you would want to share with your peers it would be appreciated Please contact me with ideas as well The following are ways to contact me: Sandra Fredrick, (937) 225-4099 or I can be reached by e-mail at fredricks@mc.ohio.org I look forward to hearing from you

 

New Members and Additions/Corrections to the Directory:

New and renewing members may send applications to OMA’s President Elect, Shirley Cochran at 2897 Liberty Bell Lane, Reynoldsburg OH 43068 Contact Shirley for membership applications or to provide updated addresses, phone numbers, etc, for OMA’s mailing lists and directory. A membership application can be sent electronically for your convenience or you can download it from the OMA website www.mediateohio.org.

 

Networking & Resource Center for Mediation Program Managers — Build the Quality of Your Mediators The Keybridge Foundation, in collaboration with CRInfo and funded by the Hewlett Foundation, is pleased to announce the launch of the Clearinghouse for Mediation Program Managers website. This website will enable mediation program managers to network with other programs, share knowledge and expertise, and exchange information about current mediator management practices. Our focus is on assisting program managers as they create and manage rosters of mediators. Please visit the site at www.crinfo.com/mediation-program-managers. If you manage a roster, fill out our questionnaire of Mediation Program Roster Practices so that we can begin to collect data for the Clearinghouse. The data from many programs will in turn be helpful for you in developing or improving your own program. Whether the program serves a court system, community mediation center, state or federal agency, or private referrals, the Clearinghouse provides links, articles, and tools to support mediation program managers. Please direct feedback to adr@keybridge.org.

 

FMCS PROPOSES REGULATION THAT WOULD CREATE A PRIVATE-SECTOR MEDIATORS’ REGISTRY. In May, 2003, a regulation was proposed in the Federal Register to create a registration system under the administration of the Federal Mediation and Conciliation Service (FMCS). The registry would improve public access to experienced private-sector mediators according to FMCS officials. Officials provided 60 days for comment which will expire July 1, 2003. The plan is to have the registry in operation in 2004. Check out the access to the regulation through the FMCS website: www.fmcs.gov. The FMCS created in 1947, is an independent agency whose mission is to preserve and promote labor-management peace and cooperation. Headquartered in Washington, DC, with five regional offices and more than 70 field offices, the agency provides mediation and conflict resolution services to industry, government agencies and communities.