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The Unwitnessed Miracle of Mediation (Originally Published March 2001)

Readers of the Bible know of early-day miracles — the cripples who could suddenly walk, the sightless who could finally see, the virgin who gave birth. They may not, however, remember a mention of another small miracle of sorts — the miracle of mediation, the process of a neutral third party balancing the scales of justice for two people faced with a problem. Yes, the apostle Paul suggested to the Corinthians mil-

lennia ago that disputes should be settled by community members rather than through adjudication. So why haven’t more people witnessed the magic of mediation — and why aren’t more reaping its rewards?

Paul Warren points his index fingers toward each other and tries to make them meet. They miss by about six inches and he stops in a ciassic “they-went-that-a-way” pose.

Wanren then pulls back his hands, spreads out his fingers and tries again. This time his right pinky glides into the groove between his left index and middle fingers. He smiles.

Warren isn’t a bored man passing time. He’s not a clown entertaining children. He’s the founder of the Commercial Mediation Association in Norfolk, and he’s demonstrating how people can resolve their problems when they think of multiple solutions — not just one — and then work to link their ideas.

Wairen’s demonstration makes mediation look painless, and as long as one hand doesn’t try to claw the other, it can be.

All that’s needed is a mediator, a room, the two parties, and a few hours. Essentially, it’s a process made dp of a lot of listening on the mediator’s part, and a lot of talking or» the disputants’ part. And talking isn’t hard. Who. after all, doesn’t like to talk, especially about himself?

Certainly not Curtis Clark.* He participated in his first mediation session two weeks ago. At stake was his six-year-old son, and he wanted to be sure the mediators understood his position. He read from a journal he had kept through the years:

Curtis divorced Theresa, his son’s mother, four years ago. They argued regularly throughout the years about the boy’s care — what type of car seat was best, who the boy could play with, how late be should stay up. Somehow, though, Curtis and Theresa had always been able to compromise.

But something had changed in the last five months: Theresa is now living with a boyfriend, one she’s thinking about marrying. Suddenly she and Curtis are fighting more than ever. If Theresa forgets to have her son do his homework on a night he stays with her. Curtis refuses to let her have another overnight visit for weeks. When she returned the boy to Curtis house a few hours late (because of car trouble, Theresa says), she was told she would need to start visiting the boy at Curtis’ house, instead of hers.

After more than a dozen similar “judgment lapses,” as be calls them, Curtis has had enough: He wants the ban on overnight and out-of-sight visits enforceable by law, even though the couple has joint custody of the boy. He’s filed a case with the Norfolk Juvenile and Domestic Relations District Court, and they’ve referred him to mediation.

The two mediators listen, take notes and keep Theresa from interrupting while Curtis talks. (“Remember to write it in your note pad if (here’s something you’d like to say when Curtis is done speaking.”) When he’s finally finished, one of the mediators summarizes his story. (“What I hear you saying is...”) When it’s Theresa’s turn, they do the same for her. (“I just heard you say ...”).

In a moment of anger, Curtis raises his voice and addresses Theresa directly. Before Theresa responds, die mediator calmly suggests an alternative to Curtis: “Why don’t you just talk to me and (the other mediator.]” When Theresa mentions the time Curtis smashed a plate in anger, Curtis shoots back with sarcasm: “I’m allowed one mark on my record.” But the exchange stops there, again thanks to one of the mediator’s superior “hearing”: “What I heard, Curtis, and I’m not sure if you heard this, is that Theresa says she’s done stuff, too.”

The mediators used what’s called a facili- tative approach while working with Curtis and Theresa. Their goal was to keep them talking and to pinpoint what each wants and why — without offering any possible solu¬tions, not even subtly. With the evaluative approach, mediators cover the same ground but gently present ideas: “Have you thought about... "What if we..." "Why don't you try..."

Both approaches yield good results. According to the American Bar Association,

mediation’s success rate is 80 to 90 percent. Compliance, not because mediation is le-

gally-binding but because the parties decide the outcome, is estimated to be at 99 percent.

And on a practical note, mediation is less expensive, approximately one-tenth that of hiring a lawyer. (Lawyers are welcomed, but not required, at mediation sessions). Prices can range from $25 to $200 an hour for a mediator, and some even work for free.

Yet die thing people (end (c like the most about mediation is being heard, and therefore, valued.

In family courts, judges have approximately seven minutes per case. No matter how hard he would have tried, Curtis never could have read the journal entries he felt were important to his case in a brief, cook- two-microwave-meals time span. He had the chance to let go of anger in a safe, constructive manner, at his own pace.

By gently coaching Curtis and Theresa to listen to each other’s concerns and ideas, tire mediators were in a way teaching them skills they might use in the future -r- skills* that are particularly important in an ongoing relationship.

But mediation can help even in cases where the parties most likely won’t be in contact again. Wjth extra-sensitive disputes like those involving sexual harassment, mediation is ideal for both sides. The alleged victim can tell her story in a more private setting, and because mediation is confidential, the process is shielded from the news media. There's a lot of flexibility, too, when thinking of ways to settle a dispute. (See re lated story.)

Another benefit of mediation is that a dispute can be resolved in a matter of days or weeks - not months. A session can generally be scheduled within a day or two, which is rarely the case with a court hearing. In Norfolk, disputants generally wait four or five weeks for a court date. Virginia Beach's courts are even more crowded. There the wait is three or four months. In the meantime, the problem that needs solving can grow* much worse. In a dispute over an ongoing construction project, a months-long wait can mean million-dollar loses. In a dispute over the care of a child, it can mean irreparable damage to the youngster’s psyche.

Recent participants in mediation seem to agree with the experts who tout the process’ benefits. On evaluation forms, they wrote: *I felt the mediation process was a great al-tentative to appearing in court. We were both able to express our concerns in an informal environment. I would recommend all cases go through mediation.” “I believe that mediation is a very resourceful tool to open up communication and empower both parties." “It was a comfortable atmosphere that helped relax me and made discussing our issues much easier. I’d definitely recommend it for everyone.

It's easy to see why mediation has been used die world over for centuries. Before the Renaissance, the Catholic church in Western Europe was considered the central

mediation and conflict management organization in Western society, with clergy medi-

ating family disputes, criminal cases and diplomatic disputes for nobility. Other reli- '

gious leaders, including Jewish rabbis in Europe, also embraced the concept

In America, the Puritans, Quakers and Chinese and Jewish ethnic groups have long employed dispute resolutions techniques. Even before Europeans arrived, Indian tribes were practicing mediation. The Na-. vajo Nation is credited with establishing a program in their tribe, known today as the Navajo Peacemaker Court, in which a tribal leader will mediate to reduce conflict within the community.

So why them, with all the benefits that mediation offers and its long track record, aren’t even more people opting for it? Can we blame it on Judge Judy? Bobby O’Donnell on The Practice? Richard Fish on Ally McBeaYl Greg on Dharma and Greg? Lowell “The Hammer” Stanley? It seems every other program and every other commercial on every other station delivers the same message: Sue, sue, sue.

David McDonald, the founder of the Mediation Center of Hampton Roads, which handles about 50 cases a month, thinks part of the problem is just the nature of native Virginians. Yes, slowly but surely we’re getting more cosmopolitan, especially in Hampton Roads, but many will never be ready to let go of the past.

“Ben Franklin wanted to be in Virginia at the end of the world because he knew it would take 50 years for it to catch on here,” McDonald jokes. “That’s definitely the case in Virginia with mediation.”

Or, a finger could be pointed not at the natives but at the fly-by-nighters. While the military does much to boost Hampton Roads’ economy, it doesn’t always allow people to grow roots — and that means fewer people are inclined to build strong relationships with others in the community. If they encounter a problem, they’d rather go tb court than work on their relationship through mediation. “We’re so transient here, it’s challenging “ says Bob Glover, executive director of the Dispute Settlement Center, Hampton Roads’ only not-for-profit community mediation center. “The idea behind mediation is to connect with other people and for people in the community to help solve community problems.”

Even though no one headed to court over it, the debate surrounding a new location for the Union Mission was a missed opportunity for mediation, says Glover. “They let people talk about their concerns,” he notes, “but that wasn’t enough. A mediator could have listened, too, and worked with both sides to find a solution that everyone could have been happy with.”

Paul Warren, who specializes in commercial mediation, may face even greater challenges than those who generally work on family, community and small-business disputes. In 1993, Virginia passed a law that allows trial courts to refer parties to an evaluation session in which the possibility of mediation can be explored. However, courts that do make referrals generally do so only for domestic cases.

"Because the Virginia system (of mediation) is (linked primarily to) family courts." Warren says, "Virginia i literally 25 years behind in commercial mediation."

Not to far away, up in Washington D.C., where Warren worked in the 80s and early ’90s, things are much different In 1987, a program was started to encourage the use of alternative dispute resolution — which includes case evaluation, mediation, and arbitration.

It was a simple program: Every case had to go through some form of alternative dispute resolution. It was found that a single two-hour session reduced the court’s caseload by well over 50 percent, reports Warren, and for him, it meant he was able to work on hundreds of cases. Today, Warren, who is also a lawyer, splits his time evenly between litigating and mediating.

But don’t get the wrong idea: He, Glover and McDonald aren't all gloom and doom about the state of mediation in Hampton Roads, and they’re certainly not sitting back waiting for Virginians to embrace the concept on their own.

Warren is encouraged that the American Institute of Architects has added to its standard contract a clause stating that any claim can be subject to mediation. (About 50 percent of construction contracts copy the Institute’s standard contract.) He’s also working to get more experts in various commercial fields certified by the Supreme Court of Virginia in mediation. If someone is trained in mediation and understands the business involved in a dispute, he helps the parties save even more time and money because he understands the language they’re speaking. This month, Warren’s teaching a mediation class just for construction professionals.

Glover and the Dispute Settlement Center train mediators as well and are reaching out to agencies like the Norfolk Office of Neighborhoods and Catholic Charities. Through the Office of Neighborhoods, his staff is training civic organizations on how to be more effective when faced with disputes, and at Catholic Charities of Hampton Roads, social worker Alice Alvord is working on her mediation certification, which involves a 20-hour training class, two observations and five co-mediations. She plans to mediate custody disputes between grandparents and parents right at the Catholic Charities office, instead of referring them out.

Glover could be putting himself out of business. One of the mediator trainees at the Settlement Center, Brenda Exmore, is part of a team of seven Norfolk State University faculty and staff members that is seeking mediator certification. The school's goal is to form its own center as a resource for students, faculty and staff.

“Maybe this could be a community resource as well,” speculates Marvin Feit, dean of NSU’s Ethelyn R. Strong School of Social Work. “People could come in from the local community and possibly work on things like police disputes.”

If given the chance, Glover would most likely congratulate Feit for trying to be a competitor of sorts. “We want a cultural understanding of mediation ” he explains. “We want people to have greater access to mediation, and to think of it first for their neighborhood and business disputes.”

McDonald, who opened the Mediation Center of Hampton Roads eight years ago while he also worked in the Virginia Beach Consumer Affairs Division, may have the most reasons to feel optimistic about the future of mediation in Hampton Roads. One year ago, business was good enough for him to leave his day job. And it’s still going strong, even though McDonald jokes about wishing he could afford a billboard on 264 that says “Mediate. Don’t Litigate ”

In July, judges began referring aJI contested cases filed in the Norfolk Juvenile and Domestic Relations District Court for mediation orientation. As of the end of December, that meant 140 cases were given the chance to mediate.

McDonald is campaigning to get all cases '— not just contested ones — referred, and he's looking forward to the possible enact¬ment of the Virginia Administrative Dispute Resolution Act of2001. If it passes, all state agencies issuing contracts would be required to include a clause saying that disputes would be handled through mediation.

In the meantime, McDonald continues to serve clients like the United States Postal Service, to train mediators, and to talk to groups such as the DePaul Medical Center Employee Assistance Program and the elementary guidance counselors in Virginia Beach.

“I was actually talking to the counselors about a co-parenting class I teach,” says McDonald of a presentation in late February, “and what they seemed most interested in was peer mediation.”

It’s a subject McDonald knows about as a professional — and as a parent. His daughter, 10-year-old Marlee, is following in Daddy’s footsteps. She’s a peer mediator at Larchmont Elementary, one of 16 students trained to work with third, fourth and fifth graders facing a dispute.

According to Anne Christie, the school’s guidance counselor, discipline isn’t a problem at Larchmont, but mediation helps im¬prove the students' relationships with one another.

“Mostly we hear things like ‘he stole my crayon,* or ‘he’s teasing me’” Marlee says, careful not to reveal too much information because mediation is confidential, she reminds a questioner. She attended the two training sessions required for new mediators, but she may not have needed them.

“When I was in second grade, two of my neighbors were fighting ” she explains. “We arranged some chairs like a mediation and I was die mediator. They didn’t fight anymore, and that’s when I thought ’mediation is cool.*” Maybe Dad can put that on a billboard.*

•Names and other details have been changed to protect the parties 'identities.

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Rory Graham