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MEDIATION IN AG-RELATED CASES Twenty Plus Years

MICHEAL THOMPSON Director Iowa Service

State of Texas AGRICULTURAL COURSE 2008 May 15-16, 2008 Lubbock

CHAPTER 12

MICHEAL L. THOMPSON Trained USDA Forestry Services personnel in mediation and conflict resolution (2001-03). ADDRESS:1236 29th STREET Trained federal for the US Federal Judicial WEST DES MOINES, IOWA 50265 Center re: mediation (1992, 1997, and 1999). PHONE: (515) 224-9206 (H) Mediator for Public Employment Relations Board – (515) 331-8081 (O) mediated over 150 public sector labor relations cases including grievances and negotiations cases. Performed fact EXPERIENCE finding and arbitration services. (1985-07) 1985 to Present: Executive Director, Iowa Mediation Appointed mediator with US Postal Service (1997) and Service, Inc. (formerly Iowa Farmer Creditor Mediation have mediated numerous disputes (97-07). Service). Duties include managing a staff of 8 and mediator Provided training in conflict resolution, negotiation, group of 50 that provide neutral services for farmers, and mediation to Attorney General of Iowa (1999-07). creditors, and others in Ag related disputes. Specific Mediated disputes for Department of Veterans responsibilities encompass personnel management, training Administration (1997-07). and development, budgeting, organizational development, Appointed Special Master to US District – 1000 legislative activities, community relations, and specialized asbestos cases (1986-88), 100 fungicide disputes (1992-97), intervention activities such as mediation. Assisted in the numerous cases (1995-98). design of Ag mediation including debtor creditor cases, hog Mediated hog disputes (siting, environment, smell, and issues, and nuisance disputes. Mediated over 1200 cases. water quality) (25) 1994-2007). Mediated organizational dispute for different 1984 to 1985: Executive Director, Travis County Mediation organizations – therapists and doctors (1997-2007). Service, Inc. Managed a staff of 3 and mediation group of Facilitated Pork Crisis Task Force and Horticultural 50. Specific responsibilities included personnel Task Force for Iowa Dept. of Agriculture (2000). management, training, development, budgeting, Mediated flood and natural disaster disputes between organizational development and community relations. Federal Emergency Management Act personnel, Iowa Mediated complex cases. Department of Natural Resources, Iowa cities, and Iowa citizens (1994-96). 1980 to 1984: Executive Director, Houston Neighborhood Mediated numerous small business disputes for the Center. Managed a staff of 8 & 100 mediators who Iowa State Extension Service Small Business program provided mediation services to Houston. Specific (2000). responsibilities included personnel management, training, Facilitated issues for State of Nebraska Dept. of Ag development, budgeting, organizational development & and associated group re future of Ag (1998-2007). community relations. Assisted in providing professional development for mediation programs in US – Nebraska, Oklahoma, 1976 to 1980: Assistant Director, Kansas City Wyoming, Minnesota, Texas, Illinois, Arkansas, Kansas, Neighborhood Justice Center. Duties included training and Missouri, Idaho, Alabama, Colorado, North Carolina, South development, budgeting and personnel management Carolina, North Dakota, South Dakota, Wisconsin, Oregon, activities. and Washington (1986-05). Mediated between state of Iowa, US, state RELEVANT CONSULTING AND TRAINING ombudsman, and farmers re: corn aflatoxin case (1997). ACTIVITIES Mediated Platte River Basin dispute for Nebraska, Wyoming and US (1994-96). Facilitated issues between Iowa Department of Natural Mediated personnel dispute for Department of Veteran Resources and Iowa Department of Economic Development Affairs (Iowa City, Omaha, Lincoln and Chicago) and (2004-06) trained staff from DVA in the area of mediation and conflict Facilitated for Iowa Utilities – Interruptible Energy resolution (1996-07). issues (2005). Trained staff from Department of Veteran Affairs in Trained Iowa Board of Public Utilities in mediation mediation and conflict resolution (1996-05). and conflict resolution (2002-03) Mediated Broadlawns Medical Center dispute between Mediated railroad right of way dispute with public administration, staff, and physicians (1997-98). utilities and Iowa Board of Public Utilities (2003-04) Trained trainers programs in conflict resolution for Facilitated emergency management issues with various City of Dubuque, Polk County, Fort Worth, Lubbock, State Departments of Agriculture, Emergency Management of Oklahoma Supreme Court, Albuquerque, Nebraska Agencies and other state agencies (2003-07). , Asian Foundation -- Sri Lanka and Korea, Mediated cases for Iowa State Medical Association – Department of Veteran Affairs, and National Association of Medicare Project (2003-07). Workers. Trained Department of Human Service (DHS0 staff in Mediated Polk County/RACI dispute (gambling, horse mediation and conflict resolution (1998-2007). groups, and County government) (1997). Mediated DHS, Juvenile Court and families in child Mediated and trained the City of City Rapids Fire welfare cases (2002-047. Department and local union (1996-97). Trained staff and faculty at Iowa State University in Mediated the New Iowa Schools Development conflict resolution and mediation (2003). Also provided Corporation issues for the Iowa State Educational mediation services for individual cases (2003-04). Association, Iowa Association of School Boards, and School Administrators of Iowa (1996). Developed courses for students and Trained , , government officials, teachers at the Kansas City School District, Des Moines businessmen and law students for the Asian foundation in School District, Houston Independent School District, Tama Korea (1993-94) and Sri Lanka (1995). School District, I-35 School District, West Des Moines Trained staff from the National Association of Human School District and Rock Island School District. Rights Organizations in conflict resolution (1994/99). Taught courses in personnel administration, conflict Facilitated for Department of Education -- Special resolution, mediation, negotiations, communications at: Education (1995) for implementation of federal rules and University of Iowa School of Social Work; Drake Law facilitated the development of technical assistance guidelines School; University of Iowa Law School; University of (1996). Houston Graduate Schools of Law and Social Work; Iowa Provided mediator training for the Iowa Civil Rights State University (Extension); University of Texas Law Commission mediators (1994/95/96/97/98/99). School; Texas Tech University; Rockhurst College; and St. Facilitated the Ag-Credit Act for Farm Credit System Edwards Univ. of Omaha, Farmers Home Administration, Prairie Fire, Farm Provided training and technical assistance to the Unity Coalition, Farm Bureau, and various other groups. following organizations with respect to management, (1987) conflict resolution, personnel issues, budgetary matters, and Facilitated numerous sessions for various state/local the training of trainers to: Polk County Mediation Service agencies and non profits (Polk County, Young Farmers, City (1979,1987), Dallas Mediation Service (1980). Tarrant of Cedar Rapids, Church of Christ, and the Clarinda School County Mediation Center (1979, 1980, 1981, 1983, 1988), District) (1995-2002). Bexar County Dispute Resolution Service (1983), Travis Facilitated the ISU Extension Service Group Process County Dispute Resolution Services (1986, 1987, and for handling layoffs and RIFs. (1991). 1988), Albuquerque Mediation Service (1983, 1985), Mediated the consolidation of the Dallas Center – Lubbock Dispute Resolution Service (1987, 1990, 1991), Grimes (1999), Prairie City/Monroe School Districts (1990), Oklahoma Supreme Court (1989), Mississippi Department Southeast Warren School District, Colo-Nesco School of Agriculture and Farm Bureau (1986), San Diego Dispute District (1994), and Highland Community School District Resolution Services (1990), Colorado Council of Mediators (1995). (1991), Wisconsin Academy of Family Mediators (1988), Facilitated for the Iowa re: and the state offices of Farmer's Home Administration in professionalization of Mental Health Workers (1990). Missouri (1989, 1990, 03), South Carolina (1988), North Facilitated the environmental dispute process between Carolina (1988), Nebraska (1989, 90, 95, 97, 04), Arkansas the Iowa Department of Natural Resources, City of Iowa (1987), Illinois (1987, 1988, 1990), and Texas (1987). City, Johnson County, and the University of Iowa (1989) Also provided training and technical assistance to Facilitated for FEMA and flood agency providers re: Department of Agriculture officials in Canada, Australia, flood funding (1993-94). and Mexico (1988) and consulted with officials from the Ad hoc mediator and victim offender facilitator for Soviet Republics (1992-93). Polk County Mediation Service (1987-2004). Trained Eastern Iowa Presbytery and Des Moines Facilitated staff reductions and organizational renewal Presbytery in conflict resolution processes (1992-93). approach for USDA-RECD and for various non profit organizations (1995-02) EDUCATION Mediated personal injury and race relations cases for BA, University of Missouri -- Kansas City, 1970 state of Illinois (1996 M.P.A., University of Missouri -- Kansas City, 1976. Designed and trained in the fields of negotiations, Specialization in Organizational Development and Labor mediation, conflict resolution, communications, MBO, Relations community development, facilitation, group process, or the handling of grievances for the following organizations: AWARDS Missouri Division of Natural Resources, IES Industries, Victor Wilson Scholarship (1976). John Deere Corporation, Bankers Trust, US Department of University of Missouri -- Kansas City Outstanding Graduate Agriculture -- Farmers Home Administration (national Student Award (1976-77). office and 9 states including Nebraska and Wyoming); Houston Young Lawyers Blue Bell Award for Outstanding Statesman Group; Omaha Farm Credit System; Service to the legal Community (1981). Missouri Division of Aging; Fort Dodge Educational Agency; Grant Wood Educational Agency; Iowa PUBLICATIONS Department of Education; US Department of Justice -- "Mediation and Pre- Services", Pre-Trial Services Community Relations Services; Lynn Insurance Company; Association Monograph, 1979. National Association of Attorneys Generals; National "Violence in America", American Psychological Association Association of Social Workers; the American Bankers Monograph, 1982. Association; the Iowa Bankers Association; the American "Crisis in Rural America: The Genesis of Farmer-Lender Bar Association; the Texas Rehabilitation Service; Mediation", NIDR Forum, Fall 1990. Vocational Rehabilitation Service (Iowa), Wisconsin Civil "Alternative Dispute Resolution and Agriculture", Attorneys Rights Commission; Iowa State Educational Association, General and New Methods of Dispute Resolution, July Iowa School Board Administrators, and the Iowa 1990. Institute. The Evolution of Dispute Resolution: A Contemporary Analysis (handbook), The Asian Foundation, Seoul, South Korea 1993. Mediation In Ag-Related Cases Chapter 12

MEDIATION IN RURAL AMERICA community mediation model, which also resulted in in 1986. Both programs functioned within a Since the early 1980s, mediation has gradually different organizational framework (institutional to emerged in the United States as a viable way to help community), but each advocated the use of mediation parties settle conflicts. While the use of mediation as a mandatory tool, to be tried before creditors could flourished in urban settings, being applied in areas such initiate foreclosure or forfeiture on agriculture as community justice, civil rights, divorce, and other . Creditors in each state were aghast at these related areas, it did not occur in rural communities developments, and “the lender of last resort,” USDA’s until the mid-eighties, when Iowa and Minnesota Farmer’s Home Administration, refused to participate. developed farm mediation programs. Since the mid- Despite a rocky start, each program established its eighties mediation advocates have expanded the scope bona fides – mediation was provided on a neutral basis to include more types of disputes and a broader and many apparent impasses were resolved. By 1987 community served. The focus of this paper is to detail many other states in the Midwest and Southwest the development of mediation in rural areas, and to developed mediation programs. Most other states contrast the differences between the practice in the (twenty to thirty) choose to implement agriculture rural communities and their urban counterparts. mediation on a voluntary level. Regardless of the As noted, the use of mediation in rural America voluntary/mandatory approach, mediation was seen as began in the Midwest and it coincided with the a growing part of rural landscape. In 1988, President financial farm crisis of the mid-eighties. The initial Reagan signed the Ag Credit Act of 1987 into law, and concerns were financial, but the trauma associated with this law specified that the Department of Agriculture’s the farm crisis reached far beyond the bank balance, as Farmers Home Administration participate in state families disintegrated and rural Americans faced certified programs. In less than two years, mediation maladies such as alcoholism, drug abuse, divorce, and had developed a foothold in rural areas. spousal abuse—problems that already existed but were In mediating farmer/creditor cases, mediators exacerbated by the financial pressures on farm encountered an array of problems, which were already producers. Initially, all the pressures were on farmers, known to mediators in urban areas. The foremost which created an impression that the crisis revolved problem was preparing farmers and creditors to use around “bad management.” Soon, however, creditors, mediation. Preparation encompassed the development ranging from small town bankers to the largest Ag of cash flows and financial statements as well as creditors (Farm Credit System and the United States financial options to resolve tricky economic situations. Department of Agriculture’s Farmers Home Preparation also included intervening upon family Administration, hereinafter USDA FHA) were facing issues that were extremely emotional, and addressing the “credit crunch.” Farm Credit was perhaps the most those issues in a manner that would still leave an severely impacted and had to be bailed out, as did opportunity to resolve problems with creditors. On the many banks with large agricultural loan programs. The other hand, preparation of creditors was equally net result was that farmers and creditors experienced difficult, as many did not believe there was any room conflict on a grandiose scale that led to stereotyping of to negotiate while others could not discern the the other party as an enemy. Ultimately each party difference between their interests and their legal concluded that legal action would be necessary to position of foreclosing. resolve problems. As the parties armored up for the fight, the opposing parties were forced to look for Other problems encountered by these programs options, as litigation was too expensive and did not included the following: readily resolve the underlying problems. Within this framework, mediation was promoted as a means of Professional training and development of resolving the issues. (Attorneys General and New mediators, which encompassed the development Methods of Dispute Resolution, National Association of skills sets of mediation as well as content areas of Attorneys General Monograph, ADR and such as farm finance, legal issues such as Agriculture, 1987.) bankruptcy (Chapter 12), dealing with loss; and Iowa and Minnesota led the impetus toward training advocates to use mediation. developing mediation in rural communities, although Mediator issues such as: each state took a different approach. The Minnesota Extension Service developed a pilot project on confidentiality; mediation, which evolved into a program model that good faith bargaining; was mandated in the 1986 Omnibus Farm Bill. (Farm interest based bargaining; and Credit Mediation, Kathy Magnum and Joyce Walker, resolving power disparities 1986). Iowa used a nonprofit model patterned on a 1 Mediation In Ag-Related Cases Chapter 12

Acceptance by those communities that served Department of Agriculture, mediation was offered in farmers and creditors and reducing competitive other conflicts such as environmental issues, interaction with those entities. conservation, rural development, rural housing, civil While the mediation communities were already rights, forestry service issues, and other issues as familiar with these issues, rural communities and “deemed appropriate by the Secretary of Agriculture”. members of its infrastructure were not aware of the Note however, that each of these divisions/agencies of issues. Accordingly, the biggest issue was one of the Department of Agriculture approached mediation transferring the mediation technology to rural practices in a different way. The differences occurred communities and members of the infrastructure that in part because of specific legislation detailing a served agriculture and rural communities. Specifically, mediation approach, while other differences were a this meant convening and providing training in the result of the differences in the infrastructure. For rural areas, and developing training programs for rural example, rural housing cases were initiated from a institutions such as Farmer's Home Administration centralized clearinghouse and were (now Farm Service Agency) state banking groups, and conducted over the telephone. On the other hand, the Farm Credit system. As a rule rural constituents forestry and conservation issues focused upon appreciated the mediation training, although many determinations of fact by USDA personnel, and USDA found it difficult to maintain a neutral stance, as staff was unclear on how to deal with this dynamic. individuals were aligned with one or more of the Finally, many cases were extremely complicated parties. because multiple agencies were involved in the In a similar vein the outreach to farmers and interaction where one agency made a determination creditors was a massive undertaking. Iowa and while other agencies were responsible for payment or Minnesota served over 20,000 clients in a three-year adverse actions of the same cases. Ultimately period, and most of these folks did not understand the questions regarding who had authority to negotiate word mediation. When this was coupled with the issues abounded, and mediators faced difficulties in emotional stress, the prospects for success were maintaining neutrality. predicated upon preparation as well as the presence of In addition to the federally mandated skilled mediators. In addition, travel was an issue, as mediation activities, mediators made a case for mediators, farmers and creditors often would travel mediating other disputes, which included: hundreds of miles to convene sessions. In all too many cases the convening site was not neutral, and mediators Family disputes, especially generational and were forced to adjust to less than perfect situations. spousal problems, including divorce proceedings, Finally, mediators faced significant neutrality issues, as especially property disputes and modifications farmers and their advocates perceived mediation as a related to child custody, both of which dominate vehicle for saving the family farm. If mediation did rural communities; not accomplish this end, mediators were assailed and many mediators preferred not to participate. On the Public policy issues (large and small) that impact opposing end, creditor expectations were also agriculture or rural areas -- from water disputes to unrealistic; as many presumed that long-term the impact of immigrants upon Ag sectors relationships could be easily repaired. including but not limited to communities, Despite the difficulties, mediation prospered in businesses, churches, governmental groups and large part because creditors, particularly USDA, farmers; experienced the advantages of the process. When this was coupled with the successes for many farmers, (These include the development of “factory mediation grew. By the mid-nineties over twenty- farms” that provide meat to packers and scare seven states participated in USDA certified mediation other residents because of smell, air pollution, programs largely based upon the economic incentives contamination of ground or surface water, and the (matching funds) of the 1987 Ag Credit Act. Today fear that Ag land values will be significantly over 33 states have some form of agricultural reduced. Obviously this will also encompass mediation program functioning in rural areas. Right to Farm cases as well imminent domain With the expansion of mediation to new states, there issues that encourages the reduction of farm was also the development of the Coalition of Ag property); Mediation Programs (CAMP) as an association representing these programs. CAMP participants from Hedge to Arrive cases; each certified state noted that the original act allowed USDA to expand the use of mediation within the Ag cooperative disputes; department. Through a partnership with the

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The increased use of immigrant labor in to The use of mediation has grown in rural areas, perform undesirable work in rural locales, and the as many states have found that Ag mediators are useful impact of these groups on local communities for resolving other conflicts including work with the including but not limited to the economics of Department of Human Services (Family Team providing care (medical, legal, and basic needs) to Meetings/Family Group Conferences). Additionally, a growing community that looks and acts different the field has expanded its base to include large public than most rural Americans -- this encompasses a policy facilitations as well as facilitations of larger set of issues related to economic international conflicts and recently a couple of states development while also touching upon racism; began using ag mediators to handle home mortgage foreclosures. Seed and chemical disputes – assorted cases In analyzing the impact of dispute resolution including class action cases; (predominantly mediation) on agriculture, it should be clear that it has had a favorable impact. Mediators Risk management issues related to rain and hail have emerged in Ag-related areas and the field has insurance as well as other calamities such as developed throughout the agricultural arena of the US. Katrina; Like their urban counterparts, rural mediators face an uphill battle with respect to payment of mediators – Civil rights issues, including the array of cases mediators face a difficult time in being paid brought against the US Department of Agriculture commensurate to other professions. The USDA by black farmers and Native American alleging programs have subsidized mediators in rural areas, and discrimination and forms of racism, classism, or few have developed practices that transcend the state sexism; programs. Farmers and ranchers rarely have the capacity to pay for their part of mediation costs, and Assorted community disputes that impact upon many do not have the desire to pay unless there is an rural/ag development – land usage, development absolute assurance of success. Mediation fees in of ethanol or biodiesel plants and/or other agricultural cases range from minimal costs (free or $5 economic development activities, all of which per hour) to significant fees of $250 an hour. affect the lives of rural citizens; However, when the fees are contrasted with the costs of the disputes particularly the asset base, the costs are Technological disputes that encompass genetically minimal. Mediators may have made a significant modified organisms -- problems related to mistake in charging for services, as it appears they contamination, drift, costs, and protection of have understated the costs associated with the services. GMO patents, and other issues; On another level, mediators in the Ag arena have a mixed relationship with attorneys, although it Development of local food systems; and/or appears to be better than the relationship between mediators and attorneys in urban areas. Rural Conflicts that arise over the use of natural attorneys initially welcomed the use of mediation resources that impact upon the rural environment, particularly for complex cases. However, once it which ranges from water usage (both surface and became apparent that mediation could ground water) to clean air to the encroachment of impact the economic base of attorneys; many expanded urban America upon rural lands. their practice to include mediation and other forms of dispute resolution. While the competition is None of the preceding categories is exhaustive, acceptable, it creates two concerns -- mediation being and it appears that the use of dispute resolution in rural transformed into settlement conferences and the areas will grow. Note, however, that most of the neutrality of the attorneys. While these are concerns dispute resolution activities center upon the use of for the field of mediation, neither is an insurmountable mediation. Arbitration has also gained ground, as problem. companies have sought to avoid the courts for many The lessons learned from developing mediation in disputes. Many companies have mandated the use of the agricultural arena are numerous. Most importantly arbitration on a contractual basis, even though rural the costs associated with providing services are higher consumers have a scant understanding of the process. than they are in urban areas, largely because of travel However, arbitration is not readily used, and the costs costs – Ag disputes occur in rural areas where associated are high. mediators and disputants often have to drive up to 100 miles in order to attend meetings. In many states the convening process is arduous and time consuming because of the distances involved. Note, however, that

3 Mediation In Ag-Related Cases Chapter 12 these costs are also factors for dispute resolution professionals in urban America. Because of the new Arbitration faces an equally daunting task, as usage of mediation in Ag areas, a second problem has disputants do not want to pay the actual costs emerged -- mediators are not readily available. Many associated with intervention. A greater concern is the mediators have been trained, but few are developing absence of arbitrators in rural areas, which means that full-time private practices. Accordingly, there is many have to be imported from urban areas or college concern regarding competency of the mediation towns. This is not always a good fit, as rural citizens providers. Additionally, mentoring is a serious do not necessarily trust urban arbitrators regardless of problem, as new mediators are seen as competitors. their professional expertise. Another significant issue found in rural disputes is the In concluding, it is strategic for agricultural need for mediators to understand the context of a interests to become aware of dispute resolution dispute. Many of the cases are extremely complicated, services, and it is equally important for the dispute and advocates appear to be more comfortable with resolution community to market its availability. mediators who have a minimum of contextual Cooperative programming with various institutions is knowledge as opposed to being a technical expert or essential to growing the rural dispute resolution not having any knowledge of the content. In addition, business. Obviously, rural institutions from parties often perceive the mediator to be either a Cooperative Extension to specific programs like rural or an advocate, and clients do react negatively if they water or rural utilities need to be targeted. Mediators, feel that a mediator is not fitting into the assigned arbitrators, and program developers need to identify “niche.” This is complicated by the presence of the stakeholders using our services, and specific "consultants" who transcend many roles and provide programs need to be marketed to meet those needs. legal opinions as well as mediation without concern for Additionally, it is strategic for the dispute resolution ethical considerations as long as payment is received. community to reach out to the local court systems, While these issues are significant for which continue to grow the use of dispute resolution developing the use of mediation in Ag related cases, it services. Within this context, it is imperative to should be noted that another phenomena is equally include the state and local bar associations in important -- despite the sense that rural people are marketing the dispute resolution services available. more cooperative, the caseload does not suggest this. In fact the prime lesson for mediators in the US is that agricultural interests will not go gently into the night. In a world of limited resources, agricultural interests are not content with being subordinate to urban interests, and the competitive fires are stoked. Advocates of agricultural interests take umbrage at cooperating just to cooperate, and often are as competitive if not more competitive than their counterparts in urban America. Internal conflicts between those with varying agricultural interests are equally competitive, and hence mediators must be able to deal with the intense emotional issues that are the presenting problems in many disputes. Moreover, mediators need to be aware that many community members are stoking the conflicts for economic and social gain. Within this context, mediators need to be prepared to handle competitive and difficult disputes. Mediators also need to provide an array of mediation approaches – from the interest-based model to the demand/concession approach to transformative models. Besides providing an array of mediation approaches, mediators must promote the use of mediation as a means of using the limited resources that are available. In addition mediators need to work with attorneys and other experts in providing a dispute resolution system that meets client interests while preserving the standards of practice of the mediation community.

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