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The primary tenet in mediation is neutrality. As a neutral, the mediator is charged with being impartial throughout all communication and involvement with the parties in the conflict.
This means that a mediator cannot take a side or advise either party in the dispute. There is no judge, no arbitrator of right or wrong. The sole purpose of mediation is to allow those in dispute to create a resolution that works for them. (more…)
Today a federal judge ruled that Attorney Kenneth Feinberg, the “mediator” handling the the claims against BP as a result of the Gulf Oi Spill, is not independent of BP and must stop presenting himself as such. In other words, the judge ruled that Feinberg is not acting as a mediator of claims, as initially stated when he assumed his role, but more of a claims adjuster – an agent of BP. (more…)
The 2010 Alaska Senator campaign has been news worthy for many reasons – today the GOP candidate Joe Miller filed a federal lawsuit to bar misspellings of Lisa Murkowski’s name from being counted as a valid write-in votes. According to the Alaska Dispatch, the original judge assigned the case, U.S. District Court Judge John Sedwick, has recused himself from the case, however, due to issues that could bias the judge’s neutrality or at the very least give him the appearance of bias.
A reasonable person with knowledge of the above facts would conclude that my impartiality might reasonably be questioned. I recuse. The Clerk of Court will please re-assign this case to another judge.
It is important to note that although the Judge gives a clear statement that he has a negative opinion of the plaintiff, Joe Miller, at no point does the Judge indicate that he would be biased or unfair towards him. However, as he has a negative opinion of Miller, he cannot effectively act as the judge in this case. At the very least, his prior relationship with the plaintiff gives the appearance of bias and gives either side a cause to challenge any ruling they do not like.
The appearance of bias is an important distinction that impacts mediators as well. Mediators, like judges, are charged with being neutral participants in the conflict resolution process. The neutrality of the mediator is paramount to the success of the mediation.
Even the appearance of bias can impact the mediation. A mediator can be neutral, but if either one of the disputants has reason to even perceive that the mediator is biased towards one of the participants or a particular outcome it can negatively impact the success of the mediation as well as the long-term effectiveness of the agreements reached.
Although the oil spill has been contained, the effects continue for the Gulf Coast residents. Kenneth Feinberg was appointed weeks ago to mediate the claims process, however issues are far from resolved. CBS News reports:
When Feinberg took over the claims process three weeks ago he promised checks to individuals in 48 hours, businesses in seven days.
Before Feinberg took over, BP paid out $395 million. In the past three weeks, Feinberg has paid $185 million. Of the 60,000 claims before him, half are still being processed despite his promises of a quick resolution. Only 16,000 have been paid. Fourteen-thousand have insufficient paperwork to back them up.
Although Feinberg was appointed as the “mediator” to resolve claims related to the BP oil spill and administer the $20 billion fund set up by BP to cover losses, his role appears to much more that of “claims adjuster” as opposed to a mediator.
Mediation is neutral, voluntary, confidential, and transparent. A mediator must be chosen by the participants if mediation is to be successful – otherwise mediation does not occur.
Claims adjusters are not mediators. Although Feinberg is not an employee of BP, he has been charged with determining how and when the $20 billion is settled among those who experienced a loss as a result of the oil spill; his role seems far more aligned with a claims adjuster than with a mediator.
A comprehensive mediation program allows for the claimants and the BP adjusters to meet with a mutually chosen mediator who can facilitate a resolution to the claim that makes sense to both sides.
Additional Information:
Mediators do not give legal advice, but do give legal information throughout the mediation process. Providing information allows the parties to make the most informed decisions for their futures as possible, while not impinging on mediator neutrality.
The focus of the mediator is to facilitate communication and resolution among the parties in conflict. The mediator’s role is not one of saying what is best. Through mediation the focus of the resolution process is to minimize conflict and find the best solution for all parties. Mediators are neutral participants in the process.
An attorney’s focus is to find the best solution for a particular client. An attorney will give legal information and advise as to the best outcome for his or her client only. As in any litigated process, the focus of the resolution process is for the attorney’s client to win and achieve the best solution for the particular client. Attorneys, acting as legal consul, are ethically barred from being neutral participants in the process and are charged with advocating solely for a particular client’s interests.
Those participating in mediation should seek their own legal advice from a licensed attorney, to ensure rights are protected. This does not negate the savings and efficiency of mediation, as the attorney would simply review the agreement, not negotiate the agreement. Should an attorney make recommendations contrary to the mediation agreement, the parties and mediator can meet to determine how the mediating parties wish to proceed.
It has been nearly three months since day one of the environmentally tragic oil disaster in the Gulf of Mexico. News has just arrived that for the first time since the explosion of the Deepwater Horizon drilling rig back in April, the cap placed by BP engineers has successfully stemmed the flow of oil into the Gulf. While this is not a permanent fix, this gives us all (Gulf residents in particular) hope that the relief wells set to be complete in August will hold and be able to contain this unyielding and unprecedented flow of crude into the Gulf. Just as the oil continues to flow, the individuals directly affected by the disaster continue to suffer damages. These individuals must be careful with their choice of remedy for their damages and make an informed decision on how they wish to pursue recovery.
CNN Money reports that Gulf residents are feeling sidled by the fact that “good or bad, BP is the only game in town”. While Gulf fishers have been having a relatively simpler task of demonstrating their losses, other local businesses like restaurants or fishing charters are having a tough time concretely demonstrating losses like decreases in foot traffic or lower numbers of reservations are caused by the oil spill. These small business that are looking at the reality of losing future income from individuals, such as returning tourists. These damages can’t be factored into BP’s hard documentation based claims assessing machine. Businesses that are in this position can make sure their claims are fairly evaluated by opting to pursue their losses through mediation. Resolving your claim in front of a CFR Certified Mediator will circumvent your claim getting sidelined as it will require the parties to come together to reach a solution that is agreeable and fair to all parties.
Kenneth Feinberg, the former chair of the 9/11 Victim’s Fund, has been chosen to act as the BP claim czar. In a recent interview he discussed the limitations he foresees being placed on loss claims. Most specifically, Feinberg is critical of “public perception” losses. He cites, for example, a loss to a beach-front resort that does not have tangible oil damage on their shore, but suffers a decrease in business as tourists are wary of the Gulf shores. These losses, Feinberg degrees, are not going to be compensable. Only the personal attention your claim with get by mediating with CFR Medication will guarantee your loss is evaluated with the personal attention it deserves. With CFR Mediation, you can make sure the outcome is one you agree to.
Additionally, Feinberg has indicated that under his charge, the BP fund will not be interested in any “halfway measures”. This approach forces claimants to make a gamble though, in that claims for losses already incurred will not be paid unless the victim consents to accept an estimate of their future damages and releases BP from all future claims. This is potentially dangerous to go at alone as you risk substantially undervaluing your claim; opting to mediate with CFR Mediation will ensure neutrality and fairness in evaluating your claim.
It is no secret that BP has an incredibly high volume of claims to evaluate. CNN Money detailed BP’s early procedure of distributing initial payments to claimants based on estimates supported by minimal documentation. Most of these payments were uniform. But, now that BP has become stricter with their claim analysis, more than 45,000 claims have been sidelined awaiting “more documentation”. By submitting your claim through CFR Mediation you can make sure your claim is individually and honestly evaluated by BP.
CFR Mediation was created to provide a holistic solution to those who find themselves in a conflict or dispute: expert vetted mediators focus on the actual resolution, while behavioral health experts facilitate preparation and provide conflict coaching – if needed – address emotional barriers to successful resolution.
This holistic approach is unique to CFR. Our goal is to remove the difficulty in choosing a provider, ensure purposeful focused mediation, protect mediator neutrality, and provide a positive respectful environment for individuals to resolve their conflicts.
Why Mediation?
As a master’s level psychotherapist with over 15 years experience, I have witnessed countless individuals and couples make the difficult decision to divorce or address a conflict head on. Too often, making the decision to resolve the issue resulted in “retaining attorneys and, inadvertently, embarking on an emotional roller coaster that added more stress, confusion, and uncertainty to an already emotional issue.
Mediation allows those actually involved in the dispute to create the resolution. A quality mediator is able to facilitate a resolution efficiently and effectively as they focus on the interests of the participants not the emotional based positions. The mediator is neutral and focuses on resolution that works for the parties involved.
Emotional Barriers to Resolution
The mediator, regardless of professional background, is not there to assist participants in working through their emotions. CFR sees this an Achilles Heel in the process. Emotions are always present, whether or not they are supposed to be. Some participants are able to put their emotion aside and focus on resolution; some are not.
CFR has designed its service model to address and mitigate any negative impact emotion may have the process. We assign qualified behavioral health experts (masters level clinicians) as CFR Mediation Coordinators to every CFR case. The mediation coordinators connect with each person at intake and facilitate the process, while also being available throughout the process to provide conflict coaching services to participants to address emotional issues that otherwise impede successful participation and resolution.
As a practicing clinical social worker (LCSW), I want CFR clients to believe in the mediation process and agreements reached; and know that their feelings, needs, and desires were heard and respected as appropriate, while not being allowed to negatively impact the outcome.
Our goal is to limit mediation time, in most any situations to less than 10 hours of face-to-face resolution. We do not allow meditation sessions to occur once or twice a week for weeks or months. It is our belief that resolution efforts must be purposeful, in instances where one or both parties are not purposefully engaging in mediating towards a resolution, we will not continue to provide services; as to do so would be unethical.
This holistic approach is unique to CFR. Our focus is to address the complete conflict. Ensuring an efficient and effective resolution, that heals as opposed to creating additional discomfort and stress.
Additional Reading:
Yes. Often the idea of mediation is dismissed as an option due to the disagreement, hurt feelings, distrust, and other negative feelings that surround the conflict. The thought is a natural one. How can mediation work when the smallest thing triggers conflict?
This holds true for divorce mediation as well other disputes; examples include workplace issues, employees/employer addressing ADA accommodation issues, business partners, neighbors, or condo associations.
Despite the seeming impossibility of bringing those with opposing positions to a mutually agreed to resolution, mediation is an extremely effective means resolution. A skilled mediator facilitates both parties in identifying the shared interests present in most any dispute. The mediator provides a neutral buffer as well as keeping both parties focused on reaching agreement – facilitating communication and focusing on the interests not the emotions that mess that surround the issue.
In general, if both parties are genuinely willing to try mediation then, it makes sense as initial means of intervention. Mediation is confidential and agreements reached are voluntary. The accepted perspective is that all participants are equal and have the same input in the resolution. If disputing parties are willing to try, mediators can get them talking and working towards a resolution.
See Also:
Anyone who has ever been in or witnessed an argument knows that intervention targeted at getting both sides to engage in a rational discussion focused on total resolution is not easy. Seldom do those in dispute find themselves eager to sit down with one another and openly discuss the issues involved as they actively work towards a solution.
How then can both sides be brought to the table to sit down with a neutral third party and actively participate in mediation, not just to address a misunderstanding but to resolve issues that can have a lasting a profound affect on future livelihood and personal wellbeing?
More and more often courts, employers, and organizations are mandating mediation as a first line intervention in a dispute. Despite the mandate, most often the level of participation and agreements reached in mediation are still voluntary.
There are many potential issues that may be at play in one or both party’s reluctance to sit down and mediate an issue. A few barriers to engagement in mediation include:
This list, far from addressing all the potential barriers to engagement, does not mean that mediation cannot be successful. Instead, these are issues that must be addressed in the development and implementation of workplace, court annexed, organizational, and private ADR programs and practices.
If a program is designed to address all potential barriers to engagement in the mediation process, then mediation can be an effective means of conflict resolution in most situations.
CFR is designed to ensure that the process of resolving conflicts is not additionally stressful. Getting to the point of deciding to bring in a mediator is difficult enough. At CFR, we believe that mediation is the best means of intervening in a conflict – resulting in an efficient and effective resolution that all parties agree with.
Accessing mediation through CFR is easy.
The first step is contacting us either by phone toll free at 866-922-2370 or through our website inquiry form.
One we receive your request for information, a CFR Mediation Coordinator will contact you at your convenience (24 hours a day, 7 days a week). During this first call the mediation coordinator will answer any questions that you may have, explain the process, and, if your ready, initiate the case.
Once the case is initiated, the CFR Mediation Coordinator will send you the intake paperwork packet, collect the fees, and establish your initial mediation appointment with the best CFR Certified Mediator.
The CFR Mediation Coordinator will continue to be available throughout the mediation through CFR to facilitate the resolution process and provide conflict coaching if desired.
All communication with CFR personnel is confidential. We respect your privacy and have designed our program to protect the confidentiality of all CFR mediation clients.
