Where Is Our Place at the Table?

VirginiaThe Newsletter of theADR Joint Alternative Dispute Resolution Committee WINTER 2017 • VOLUME XV, NUMBER 2 Message from the Chair News and Notes Where Is Our Place The next Joint ADR Com- mittee Council meeting will be Wednesday, Feb. 7, at at the Table? 10 a.m. at VBA on Main in Richmond, 1111 E. Main St., By Deborah Wood Blevins, [email protected] Suite 905. Committee members are welcome to attend. he Joint ADR with time, I ask Public parking is available in Committee’s myself: What did I the Bank of America Center TSymposium learn? What will stay (enter on East Cary Street, on Monday, Sep- with me in my future between 10th and 12th). tember 25, 2017, work? And where do Two-hour street parking is in Richmond was a we as a committee available where posted. rousing success by go from here? any objective mea- The Virginia Bar Associa- First, I learned tion's 128th Annual Meet- sure. Attendance, that we are not alone. ing will be Jan. 18-20 at the content, finances and There are many of us Williamsburg Lodge. “What evaluations were all who think about the Neuroscience Teaches About outstanding. broader potential for Managing Conflict” will be “A Place at the lawyers to serve cli- presented by Professor Larry Table: A Sympo- ents and our legal Bridgesmith of the Vander- sium on Attracting Deborah Blevins system. I heard cre- bilt University School of Law. See vba.org/vbaannual2018 21st Century Clients and Efficiently ative thinking about the big picture; Solving Their Problems” focused I saw camaraderie forming among on how lawyers can use ADR skills people with a common intellectual to give them a competitive advan- curiosity; I felt the excitement of tage in practicing law. those who did not want to leave at As the shine of the day dims Continued on the next page

Inside this issue ADR Symposium Recap ...... Page 3 Our committee will co- Revisions to Mediator Recertification Guidelines ...... Page 5 present a CLE at the Virginia Managing Forgiveness Issues ...... Page 6 State Bar Annual Meeting Q&A on VACCR ...... Page 8 in Virginia Beach, tentatively set for June 13-17. Stories from Beyond the Courtroom ...... Page 10 PAGE 2 JOINT ADR COMMITTEE WINTER 2017 Chair's message and employment. The best “legal” are interested in these issues. In outcome may not be the “best” out- the short term, we are sponsoring Continued from page 1 come for the person. a CLE at the VBA Annual Meet- the end of the day. ing. “What Neuroscience Teaches And where do we go from here? About Managing Conflict” is going Second, and this is no surprise, Again, I give credit to the comments to be presented by Professor Larry these people are team players. All that came from the small group dis- Bridge-smith of the Vanderbilt Uni- day long, people came up to me cussions at the Symposium. versity School of Law. At the VSB and offered to help in the ongoing Annual Meeting in Virginia Beach work of the Joint ADR Committee. There are real, systemic im- next summer, we are partnering with Almost every member of Council pediments to problem-solving and the Family Law Section to present helped in some way in putting on the use of ADR techniques in the “The Lawyer as Problem-Solver: the Symposium – from sponsorship everyday practice of law. Some of Respectful Dispute Resolution for to recruiting speakers to buying in- these are cultural, like the “muscle People Who Think They Hate Each dex cards – we were pulling the oar memory” of trial preparation. Some Other” (alternatively “Formulating together. of them are personal, like the “type A, competitive adversarial attor- Good Questions & Finding Com- Third, from the small group neys who get in the way of settle- mon Cause”). discussion responses, I learned that ment.” Some are financial, like the Do you have ideas? Are you collectively we agree with Justice cost and time involved in pursuing willing to help? It’s not too late – in Millette’s assessment of what law- formal mediation. fact, we’ve only just begun. Con- yers should be doing. It is critical to tact me or any member of Council. listen, really listen, to clients so that Overcoming these barriers is Please also, use our blog to contrib- we understand what their needs, our future. I believe we start by ute information about how you are goals and interests are. Early inter- continuing to talk, and continuing following up to spread the messages vention and problem-solving very to support each other. The Council conveyed during our wonderful often result in the best outcomes of the Joint ADR Committee is ex- September symposium. for people across a broad spectrum ploring ways in which we can raise of subject matter disputes: corpo- awareness through educational pro- It’s all good, rate, commercial, securities, fam- grams, and also provide social con- ily and domestic relations, labor nections among those of us who Debbie New Year's Volunteer Opportunities - Be Involved! 1. Bring at least one new member into our Committee 5. Help us develop a statewide law school ADR tour- 2. Read our blog All Things ADR and post comments nament to share your ideas and build its impact 6. Submit a brief article to our newsletter, Virginia 3. Join our Young Lawyer ADR Pro Bono project to ADR benefit schools and communities 7. Join a subcommittee 4. Join our Young Lawyer ADR Mentoring project to 8. Tell us how’re we doing and what you’d like from prepare the new wave of lawyers in ADR your Joint ADR Committee Let’s Connect! Email Debbie Blevins, Chair; or Jim Cosby, Vice Chair

© 2017 The Virginia Bar Association; All rights reserved. The views expressed herein are not necessarily those of the VBA. Virginia ADR – The Newsletter of the Joint Alternative Dispute Resolution Committee. Editor: Claudia Farr – phone 804-588-3790; email: [email protected]. Design by Marilyn Shaw. The Joint Committee welcomes unsolicited short articles, news and book reviews. Submissions should be sent by email to [email protected]. The Joint ADR Committee reserves the right to edit, in collaboration with the author, or to decline to publish any submission. WINTER 2017 JOINT ADR COMMITTEE PAGE 3 A Great Day's Recap: ADR Symposium By Claudia Farr and Marina Mayes, Joint ADR Communications subcommittee

n September 25, 2017, the Joint ADR Committee Obrought together lawyers, mediators, arbitrators and other dispute resolution professionals for a full day of presentations and discussion on attracting 21st century clients and efficiently solving their problems. Here’s a look at the sessions that day. Here and Now in Dispute Resolution MARK E. RUBIN: Executive Director, Virginia Center for Consensus Build- ing at Virginia Com- oderator Mark Rubin, along increasing nationwide, encouraging monwealth Univer- Mwith panelists Lawrie Parker the exchange of expertise among sity, providing public and Bryan Hanson, introduced the professionals. policy mediation and audience to resources that can sup- training in mediation port lawyers in solving their clients’ Rubin discussed the work of and negotiation problems. the Virginia Center for Consensus Building at Virginia Commonwealth LAWRIE PARKER: Parker discussed the high-qual- University. Through mediation and Founder and Execu- ity and low-cost services provided related conflict resolution training, tive Director, Pied- by the not-for-profit community the center helps stakeholders reach mont Dispute Resolu- conflict resolution centers in - Vir consensus solutions to public policy tion Center, providing ginia for individuals, families and conflicts. In many cases, legislation mediation, restor- organizations. Taking a systemic, ative justice, multi- can then be crafted by the stake- networking approach, the centers holders themselves, and progress party facilitation and also help communities address prob- related training through the General Assembly lematic issues through public dialog smoothly and efficiently. BRYAN HANSON: facilitation and consensus building. Graduate Student Hanson described how non- The message for lawyers? Ombudsman, Virginia lawyer dispute resolution experts Think about these resources as Tech; Board Presi- can help lawyers understand ADR dent, Association for you consider increasing your ADR and shift focus from win/lose ap- Conflict Resolution, a skill levels and helping your clients national professional proaches to appropriate, interest- solve their problems. association of ADR based outcomes. He noted that practitioners events such as the symposium are Continued on page 4 PAGE 4 JOINT ADR COMMITTEE WINTER 2017 Symposium Recap professionalism, cooperation and creativity continue to resonate. Continued from page 3 – The Changing Face of The Value of Having Good Problem-Solving Problem-Solving Skills SAMUEL JACKSON: THE HONORABLE LEROY F. MILLETTE Mediator; adjunct pro- JR.: Retired Justice of the Supreme fessor of negotiation Court of Virginia, now providing me- and ADR, University of diation and other dispute resolution North Carolina School services with The McCammon Group of Law; Co-chair, Com- mittee of Mediator he Honorable LeRoy F. Mil- Ethical Guidance, Tlette Jr. provided a jurist’s per- American Bar Asso- spective on problem-solving during ciation, Dispute Resolution Section lunch. By sharing stories of his ex- periences as a lawyer, jurist and now JULIA MORELLI: Pres- mediator, his remarks encouraged ident, Holistic Solu- tions, Inc., providing each person in the audience to an- mediation, facilita- swer this important question: “Why tion, coaching, online be a lawyer?” Is the answer to be a dispute resolution gladiator or to be a problem-solver? and their counsel. He related that he and training in mind- body awareness for a He recounted a homebuilding started talking to the lawyers and variety of clients trial from his early law practice, their clients early on, asking, “Who noting that his client was not fas- better to solve the case than you? MELINDA BIANCUZ- cinated about the legal analysis, or If you make the decision, you’ll ZO: Attorney at Gib- even winning the case. What his cli- believe in it more than if I do, and son Dunn focusing ent really wanted was to solve the there will be no need for a show on government con- problem and get on with his busi- cause hearing.” The take-away? tracts, cybersecurity ness. The principle here? Focus on Tailored solutions negotiated by the and data privacy; professional background the real-world needs of your client. parties and their counsel can work in Certified Project As a circuit court judge presid- better than court-ordered solutions. Management ing over many family law cases, he He also emphasized the value noticed two kinds of lawyers: those throughout litigation of joint prob- anelists Sam Jackson, Melinda who simply prepared their cases for lem-solving by attorneys, noting as PBiancuzzo and Julia Morelli dis- trial, and those who worked with examples that e-discovery is espe- cussed the ADR models and tools to their clients ahead of time to help cially appropriate for a shared give which public and private sectors are them prepare for a life-changing and take, and that parties may create shifting as a means to prevent, man- process. The lesson learned? Take their own scheduling orders. age and resolve internal and exter- the time early on to talk with your nal disputes. These were just a few of Jus- client and look at the big picture. tice Millette’s remarks, all of which Jackson led a discussion on Also, think creatively in consider- had a profound impact on the mem- early collaborative intervention, to ing resolutions that might benefit bers of the audience and their ap- include individually tailoring ADR your clients more through coopera- preciation for the role of lawyer as dispute clauses in business con- tion than litigation. problem solver. The touchstones he tracts, proactively assessing cases, Especially in family law cases, conveyed to us – focusing on the and using customized, post-dispute he realized that the people who client’s real-world needs, seeing the processes designed by the parties knew the case best were the parties big picture, working together with Continued on page 5 WINTER 2017 JOINT ADR COMMITTEE PAGE 5 Revisions to Mediator Recertification Guidelines Now in Effect The Judicial Council of Virginia recently approved significant revisions to mediator recertification guidelines, effective Nov. 1, 2017. Dispute Resolution Services Manager Sally Campbell and her staff have worked steadily over the past year on proposed revisions and soliciting mediator feedback and concerns. Many mediator suggestions made their way into the new guidelines (starting on page 10). The major changes: • Eliminate the continuing education distinction between “general” and “family” courses Symposium Recap Return of the • Reduce the number of Continued from page 4 Counsellor at Law continuing education hours required for dually certified JACK W. (JB) BURTCH: Attorney at Burtch mediators and counsel with the help of a neu- Law, PLLC, practicing • Allow “core” course training tral consultant. labor and employ- (courses needed to become Biancuzzo elaborated on how ment law, including certified in the first place) to the long-successful practices in le- alternative dispute count as continuing education gal project management can apply resolution and mediation; adjunct pro- • Eliminate the case requirement to the design of dispute resolution fessor of law at the • Increase the continuing systems. Before or after a dispute University of Richmond School of Law arises, we can collaboratively map education requirement and manage a desired pathway to- • Eliminate the requirement for B Burtch, using real-life exam- ward resolution with all parties. non-ethics courses Jples, discussed with the audi- Morelli discussed ways to culti- ence what it means to be an attor- • Allow 8 hours of continuing vate “eustress,” a positive, healthy ney and counsellor at law – a dual education credit carryover for response in the body and mind to role for lawyers. His in-depth look one certification cycle the stress of pressure and demands. at the fundamental principles of le- • Allow continuing education In her presentation, she gave an gal counselling and the related rules credit for thorough and overview of conflict coaching, along of professional conduct provided an thoughtful mediator self- with practical tips on cultivating self- engaging end to the Symposium’s reflection after a co-mediation awareness, understanding the mind/ sessions, and a great segue to con- body connection, and taking a holis- versations and networking at the re- Questions? Contact Dispute tic approach to problem-solving. ception. Resolution Services. PAGE 6 JOINT ADR COMMITTEE WINTER 2017 Managing Forgiveness Issues in Mediation By David T. Deal1 mong the ancients, forgiveness was not a virtue, but over the ages, for various reli- David Deal is an attorney and gious and social reasons, forgiveness has certified mediator. As an attorney, emerged as a popular topic relevant to con- Dave worked on environmental and Aflicts and their resolution.2 Once associated mostly with natural resources matters for the elimination of debt obligations, forgiveness has come Environmental Protection Agency, to be associated more with reconciliation and healing in Department of the Interior, the wake of hurtful behavior affecting individuals per- American Petroleum Institute and sonally. While the topic often has a religion-based com- Fulbright & Jaworski. Currently, he ponent or is associated with policy-based initiatives to address large-scale efforts at reconciliation, such offers mediation, restorative justice and consensus as South Africa’s landmark Truth and Reconciliation building services through DealWork Dispute Commission, this short article focuses solely on medi- Resolution Services. He also coordinates the ating conflicts involving interpersonal forgiveness. Northern Virginia Mediation Service’s restorative Mediators are no strangers to forgiveness-related justice program, which receives referrals from issues. Domestic relations is a particularly fertile area Fairfax County’s public schools, juvenile court and for addressing forgiveness: domestic violence, spouse- police force. spouse, parent-child, sibling-sibling, and extended- family conflicts. However, forgiveness-type issues can the offending behavior, swallowing what for them may also surface in conflicts triggered by other matters: have been emotionally deep pain, and a response to a theft, desecration of property, personal injury, estate simplistic, demanding, intrusive and self-serving re- planning, fraud, workplace tensions and partnership quest for relief, much of which may lead to what restor- disagreements, to name a few. ative justice practitioners call “revictimizing.” Given the ethical need for neutrality and respect Second, for addressing a specific conflict, careful for self-determination, mediators should not, of course, attention to language is imperative: forgiveness might presume to make forgiveness an objective of any case not be the term of choice. For example, most media- they are handling. On the other hand, forgiveness does tors have experienced situations where terms like apol- arise, and mediators should be prepared to handle the ogy or acknowledgement, if deemed genuine, can reset matter if presented. Drawing mostly, but not exclusive- the conflict and become the foundation for a satisfying ly, on my restorative justice experience, here are some meeting of the minds. In restorative justice, where reso- thoughts that might put the mediator at ease. lution of the conflict often involves personal harm and First, the term forgiveness means quite different the need for real healing, careful accounts of cases in things to different parties. For the party seeking- for the literature ironically reveal that the term forgiveness giveness for offending behavior, forgiveness may offer is rarely used, even though outside the conflict the term personal relief for regretted actions and a pathway to is closely associated with healing.3 What the cases show re-establish an important personal or business relation- is that the term forgiveness is so loaded that injured par- ship. However, seeking forgiveness can be awkward ties respond much better if the perpetrator uses less and is not risk-free; an offender’s efforts can be rejected. value-laden terms like apologize and couples it with ex- For the aggrieved party, the term forgiveness may im- pressions of empathy and efforts to understand how the ply something far deeper: offering forgiveness, whether sought or not, may feel like shorthand for excusing Continued on page 7 WINTER 2017 JOINT ADR COMMITTEE PAGE 7 Forgiveness the offense, relationship of the parties, cultural norms, religious affiliations, and many others. Mediators inter- Continued from page 6 ested in understanding this research should consult the highly regarded Handbook of Forgiveness, edited by a offended party feels. In addition, the mediator should Virginia Commonwealth University professor of coun- make sure a party seeking forgiveness does not assume seling psychology.4 While not a mediator’s cookbook, that upon apologizing they are entitled to something the book’s contributors do explain the significance of that sounds like forgiveness; forgiveness is a gift and these factors for a wide range of situations, and posi- cannot itself be transmuted into a debt. tion the mediator to understand and convey to the par- Third, meetings with the parties separately before- ties that forgiveness is best viewed not as an event or a hand offer a good op- decision but as a process portunity to explore the that often takes time. matters and concerns de- The term forgiveness is so scribed above. If, howev- Endnotes er, forgiveness surfaces loaded that injured parties 1. This article draws on without warning during respond much better if the the author’s presenta- the mediation, a caucus tion, “Handling For- would be a simple way to perpetrator uses less value- giveness Issues While discuss the topic and, if laden terms like apologize and Facilitating Restorative desired, stay on the path Conferences,” at the In- of discussing forgiveness couples it with expressions ternational Institute for but in a way that averts of empathy and efforts to Restorative Practices any misunderstandings conference, Learning that could derail the me- understand how the offended in the 21st Century: A diation. party feels. Restorative Vision, Oc- Fourth, for the party tober 2017, Bethlehem, contemplating forgive- Pennsylvania. ness of another, mediators should also be mindful that 2. See The Forgiveness Project,www. religion-based prescriptions bearing on the applica- theforgivenessproject.com (last visited October 5, tion of forgiveness vary appreciably. If the party has 2017); see also Marina Cantacuzino, The Forgiveness a religious view, does that view deem forgiveness to Project: Stories for a Vengeful Age (London: Jessica be a moral duty, a conditional moral duty depending Kingsley Publishers, 2015). on some form of repentance, or a moral virtue to be 3. Marilyn Peterson Armour and Mark S. Umbreit, applied on a case-by-case basis? If, instead, the party “Victim Forgiveness in Restorative Justice Dialogue,” has a more secular or humanistic view, that offers the Victims & Offenders: An International Journal of Evi- mediator more leeway. Either way, the mediator should dence-based Research, Policy and Practice, Volume 1, tread carefully in this domain and seek a respectful un- 2006-Issue 2. See also Mark S. Umbreit, with Jennifer derstanding of the party’s bounds. Blevins and Ted Lewis, The Energy of Forgiveness: Fifth, for the party contemplating forgiveness, me- Lessons from Those in Restorative Dialogue (Cascade, diators should also be mindful of a huge body of social 2015). science research examining the myriad factors that bear 4. Everett L. Worthington Jr., Editor, Handbook of For- on the wisdom of offering forgiveness: the nature of giveness (New York: Routledge, 2005).

The Joint ADR Committee welcomes members of the Virginia State Bar and The Virginia Bar Association to join our group. Find details on our webpage, or contact us to get involved: The Honorable Deborah W. Blevins, Chair M.F. Connell Mullins Jr., Secretary/Treasurer James C. Cosby, Vice Chair William H. Shewmake, Immediate Past Chair PAGE 8 JOINT ADR COMMITTEE WINTER 2017 Virginia Association for Community Conflict Resolution: Here for Lawyers Serving Clients and Community

awyers may not know what VACCR executive director of VACCR, and is and why its work is important and VACCR Board member Lawrie Parker, Lrelevant to lawyers. Jeanne Franklin who is also executive director of the recently interviewed Christine Poulson, Piedmont Dispute Resolution Center.

VACCR, the Virginia Association for Community Conflict Resolution, is a consortium of nine com- Lawrie Parker is the founder and munity-based conflict resolution centers in Virginia. executive director of Piedmont What do VACCR members do? Dispute Resolution Center. She has LAWRIE: The short answer, the mission, is that the worked in mediation and not-for-profit centers promote and facilitate positive restorative justice for 24 years as a dialogue and decision-making across Virginia so that certified mediator, trainer and more conflicts are resolved constructively or even pre- program developer. She sits on the vented. Each center is a little different but generally is Supreme Court of Virginia’s staffed by a small paid professional staff and assisted by Dispute Resolution Advisory Council, its Mediator a panel of professionals who provide mediation, train- Complaint Panel, and on the Boards of the Virginia ing, facilitation and related services to individuals or to Mediation Network and the Virginia Association for larger groups and communities. Community education and co-parenting workshops are also center initiatives Community Conflict Resolution. that strengthen families and communities.

What does VACCR do? Christine Poulson is the executive CHRISTINE: VACCR supports the work of its mem- director of the Virginia Association ber centers by creating opportunities for information- for Community Conflict Resolution, sharing, networking and collaboration. We work to de- where she advocates for the velop and share resources efficiently among members expanded use of community-based and to promote the use of ADR. dispute resolution. Previously, she Your speaking with us seems an example of your was the executive director of the networking and interest in possible collaborations. Conflict Resolution Center in What are some messages that you’d like to convey to Roanoke, Virginia. She has also served as a conflict lawyers about VACCR and the work of the centers? resolution trainer and taught leadership and LAWRIE: First, we’ve been around a long time. We conflict resolution at Virginia Tech. pre-date the Virginia statutes that authorized court-re- ferred ADR, and have been credited in good part with legitimacy and a record of consistently high-quality the early growth of ADR. Second, centers provide an services. array of conflict resolution and dialogue services including training, strategic planning, mediation, facilita- We’d like lawyers to know that VACCR member cen- tion and restorative justice services. ters are ready to help lawyers serve their clients. We

Since we’ve been around so long, we’ve acquired Continued on page 9 WINTER 2017 JOINT ADR COMMITTEE PAGE 9 VACCR clients looking for help directly, and from community Continued from page 8 organizations or businesses. Can you provide some examples of how centers have accept direct lawyer referrals and otherwise work with facilitated dialogue on important community issues? attorneys. In some cases, we are able to assist their clients who cannot afford additional services. LAWRIE: Different communities have different con- Lawyers have always served on center boards and as flict resolution needs, some of which seem insurmount- neutrals on the panels. We also recruit lawyers to con- able. But there is hope. One issue we’ve worked on is duct some of our trainings. community-police relations. A Virginia police department and the African-American community asked for What else do you think lawyers should know? our help to strengthen their relationship. The resulting CHRISTINE: VACCR centers offer a variety of train- dialogue and joint police-citizen conflict resolution ing and mentoring opportunities. Whether a lawyer trainings were quite beneficial; we can imagine this be- wants to become a certified mediator or to enhance dis- ing replicated elsewhere in Virginia, in communities pute resolution skills, the that feel a need for it. centers are available. We Another example is how suggest lawyers connect We encourage millennial communities handle with the center within lawyers to take a serious look at mental health issues. their geographic areas What does a community to keep abreast of offer- becoming neutrals. need to do to prevent and ings. respond to mental illness LAWRIE: The success and longevity of ADR has cre- and substance use disorders that harm individuals and ated “generations of neutrals”; some of the original the common good? We have facilitated such a dialogue. guard is moving on now and we encourage millennial With more outreach and resources (including human) lawyers to take a serious look at becoming neutrals we can help communities face tough questions. and contributing to their communities by volunteering We also work in restorative justice – so powerful in ad- with a center. It is such valuable service and immensely dressing and preventing crime! And we work in the satisfying. schools in conflict prevention training. Are there focus areas or issues that lawyers would You mentioned legitimacy. How do you ensure the particularly value? quality of center services? CHRISTINE: VACCR members contribute to in- CHRISTINE: Training and Virginia Supreme Court creasing access to justice – a special lawyer concern. mediator certifications (GDC, J&DR, and circuit court Through centers’ family mediation services, which fea- levels), supervision, mentoring, evaluation forms, and ture prompt scheduling of mediations, people in distress working closely with the neutrals. A benefit of working can get more timely access in some locations to reso- through a center is peer review, debriefing and continu- lution and relief than through the J&DR courts alone, ing education. especially when the court date list is long. Mediators encourage participants to consult with their attorneys LAWRIE: Our neutral panels include persons from all and especially before signing mediated agreements. walks of life, including the law. Neutrals bring unique One adviser told us to say that we keep children from experience and perspectives that are shared through crying themselves to sleep at night. We don’t always peer support and education. talk like that, but it is true – in family disputes, time can And you have a new Advisory Council? To what be of the essence in getting relief and keeping children end? out of the middle of parental conflicts. CHRISTINE: VACCR member centers want to grow LAWRIE: But VACCR centers do more than fam- their services and amplify their impact by responding ily mediation. We handle an array of civil cases from to unmet community dispute resolution needs. The J&DR and General District courts, from lawyers, from Continued on page 12 PAGE 10 JOINT ADR COMMITTEE WINTER 2017 Stories from Beyond the Courtroom Trust, Emotional Intelligence and Influence By Jimese Pendergraft Sherrill

had a case recently involving significant, life- altering injuries, and serious questions regarding Jimese Pendergraft Sherrill is I compensability – I mediate for the Virginia a Deputy Commissioner in the Workers’ Compensation Commission. Despite my Virginia Workers’ Compensation best efforts, the claimant, his family and his attorney Commission’s Judicial did not seem to appreciate the considerable risks of Department and a certified litigation. The result? Impasse. The claimant later lost mediator and mediator mentor his case at hearing and received nothing. His lawyer told me about the outcome, stating that he wished he for the Commission’s Alternative had listened to me during the mediation. His comment Dispute Resolution Department. left me wondering what I could have done differently. She began her law career representing Ultimately, through reading and self-reflection, I claimants, but ultimately specialized in workers’ gained a greater understanding of how trust, emotional compensation defense. She also served as an intelligence, and influence theory can impact mediation assistant city attorney for the City of Portsmouth, for the better. Virginia, where she handled personal injury, Trust employment and workers’ compensation matters. In mediation, it is important for the parties and attorneys to trust the mediator. Often, trust may already Competence is measured by our capabilities and exist between the attorneys and the mediator by virtue results. Enhancing our capabilities improves our results. of their reputations and experience with one another. Thus, we need to hone our craft through continued However, establishing trust with the parties takes place learning and improvement. We need to understand more each time we mediate. How do we establish trust within deeply our unique set of strengths, weaknesses, and the timeline of a mediation? styles, and how to use them effectively in mediation. Perhaps most importantly, we need to extend trust In The Speed of Trust, Stephen Covey asserts that by extending trust we create an environment for “[c]ontrary to what most people believe, trust is not – reciprocity.4 some soft, illusive quality that you either have or you don’t; rather, trust is a pragmatic, tangible, actionable Emotional Intelligence asset that you can create.”1 According to Covey, people Emotional intelligence is the capacity for can increase trust much faster than we might think, recognizing our own feelings and those of others, and and doing so will have a huge impact on the results we for managing emotions constructively in ourselves and achieve. in our relationships. Mediation requires not merely What inspires trust in a particular relationship? a cognitive analysis of competing interests or the The answer: communication, character and rational development of a desired outcome, but also an competence. Clear, open and honest communication acknowledgment of underlying emotional factors. Often, is critical.2 Character comes with making and keeping successful mediation is as much about an emotional commitments, engaging in honest interactions, showing resolution as it is about material redistribution.5 respect, having and expressing clear values, and being Thus, mediators should actively listen and take the open to learning. Being conscious of our intent is also time to understand the parties’ emotions, needs, and important. The intent that inspires the greatest trust is one of seeking mutual benefit.3 Continued on page 11 WINTER 2017 JOINT ADR COMMITTEE PAGE 11 Stories stands to be gained … .”10 Continued from page 10 So, what could I have done differently to help the claimant, his family and his attorney appreciate the concerns. If we can genuinely empathize and help the risks of litigation and reach a mediated resolution? parties acknowledge and manage their feelings and Maybe nothing. After all, the ultimate decision was emotions, we can encourage them to think and perceive theirs. Perhaps, though, I could have earned the trust differently, and open them up to considering other of the injured worker and his family more fully. I could points of view and options. have listened better, asked more questions about their underlying interests. If I had established a more direct, Influence Theory credible relationship with the injured worker and his How else can mediators create an environment family, they may have been able to appreciate better where the parties remain open to new perspectives and the risks of litigation and the benefits of a mediated options? We can learn a few tips from Robert Cialdini, resolution. Significantly, the injured worker’s family an authority on the study of influence. Cialdini has and his attorney focused on what they felt was fair identified six fundamental principles of persuasion: compensation for the injuries – what they sought to liking, authority, scarcity, consistency, reciprocity and gain. Perhaps I should have encouraged more focus on consensus.6 While all six are germane to mediation, the risks associated with not reaching a settlement – the principles of liking, authority and scarcity may be what they stood to lose, and ultimately did lose. particularly significant. People are more easily influenced by people ENDNOTES they like. Many factors affect how much a person 1. Stephen M. R. Covey with Rebecca R. Merrill, likes another, yet research identifies one as the most The Speed of Trust – The One Thing That Changes powerful and easiest to implement – similarity.7 Everything (New York, Free Press 2006), 2. Identifying similarities between the parties or between you and the parties can quickly establish trust. Trust 2. Robert H. Hurley (2006), The Decision to Trust, then encourages the parties to share with the mediator Harvard Business Review. and each other useful information, perspectives on risk, 3. Stephen M. R. Covey with Rebecca R. Merrill, The and possible resolutions. Speed of Trust, 80-81. According to Cialdini, people are also more easily 4. Ibid., 104-108. influenced by those they perceive to be legitimate authorities.8 Mediators have a degree of legitimate 5. Trip Barthel (August 2009), Emotional Intelligence authority simply by virtue of our position, and often our in Mediation, Mediate.com. subject matter expertise. We must also establish that we 6. Robert B. Cialdini, Roselle L. Wissler and Nicholas 9 are trustworthy sources of information. The parties’ J. Schweitzer (2002), The Science of Influence,Dispute attorneys also possess legitimate authority, most often Resolution Magazine (Fall). The authors also warn on beneficial to the process, but not always. For example, page 22 that influence used inappropriately seldom, injured claimants often say, “Whatever my attorney if ever, yields long-term positive results, and may thinks is best,” a sentiment that can compromise party present ethical issues, undermine trust, and damage the self-determination. reputation of the mediator. Lastly, opportunities are more desirable when 7. Cialdini, Wissler and Schweitzer, The Science of scarce. As Cialdini points out, “[a]n effective mediator Influence, 20. should never fail to describe the unique or otherwise unattainable advantages of any recommendation or offer. 8. Ibid., 20. Moreover … in situations characterized by uncertainty, 9. Ibid., 21. presenting these unique advantages as what stands to be lost … is more persuasive than emphasizing what 10. Ibid. PAGE 12 JOINT ADR COMMITTEE WINTER 2017 More VACCR Q&A dramatic impact on the quality of life in our communities. Winds of change are blowing through Virginia’s Continued from page 9 communities, bringing chances for fresh and positive ideas, new cooperation and renewed commitment to a VACCR Board is made up of member center execu- brighter future for all of us. As community leaders, we tive directors whose time is consumed with daily op- hope lawyers will join VACCR centers in such work. erations. VACCR formed an Advisory Council to gain other perspectives, guidance and support from commu- Your hope and determination are inspiring. Thank nity leaders, a number of whom are or have been on you. the Joint ADR Committee Council. We hope they will help expand the influence of community-based dispute Jeanne Franklin is a member of the resolution by opening new doors and providing new Virginia Association for Community networking and collaborative opportunities. Conflict Resolution Advisory Council and former Chair of the LAWRIE: The council is a fresh collaboration that Virginia State Bar/Virginia Bar we hope is a foundation for the growth of community- Association Joint ADR Committee based dispute resolution (ADR). Throughout the com- Council. Through her business, monwealth – and the nation – community organizations, governments, schools and judicial and legal systems FranklinSolutions, she offers are looking beyond traditional methods for addressing mediation, facilitation and conflict management dispute resolution in collaborative ways. VACCR is at services. the center of building alliances that promise to have a

We Want to Hear from You!

If you have a point of view or ADR story that letter, please email Claudia Farr at claudia. you would like to share in an upcoming news- [email protected] with your ideas.

Have a Question About Your Joint ADR Membership Status? Contact membership coordinator Jennifer Strader Ext. 116, email [email protected] or sign at The Virginia Bar Association. Call 804-644-0041, on to your member profile atwww.vba.org .