Cynthia Alkon (Texas A&M) moderated this program and started with this simple question – why are you bullish on mediation?
Jim Alfini (South Texas)
He is generally positive because mediation has been able to thrive in all kinds of environments, for example the move to Zoom during the pandemic was swift and smooth. And now it is the predominate mediation space. At the ABA Mediation Institute, major mediation providers – JAMS, ICC, CPR, AAA, and others – confirmed this.
Cyber security is now an important piece of mediation. The providers are spending a lot of time on this issue. They constantly worry about hacking “What’s changed is not the ‘if’ but the ‘when’” you are attacked. These organizations are targets because of the sensitive nature of the information they have. Bad actors come at them from many different angles. Also, there are many differences to note. Several commentators have opined that confidentiality and security is beyond the sole responsibility of the mediator (Susan Exon) and mediators should not promise absolute confidentiality in the online environment (Noam Ebner). It is critical to work on this end of the equation.
Michael Colatrella (Pacific)
Presented 5 reasons to be bullish on mediation
- An increased use of mediation in business. While this is hard to prove in the US (lots of anecdotal evidence), there is plenty of evidence in the UK with as there is an annual survey showing a steady increase.
- Increased use of special education mediation. California has invested $100million in special education mediation.
- Increase in the federal agricultural mediation program. 40 states have these programs. It handles all kinds of disputes that occur in the agricultural sector.
- Post-Pandemic increase of online mediation. Surveys have shown that these mediations are just as successful as in person mediation with settlement and party satisfaction. The cost effectiveness is clear. The EEOC has done surveys showing the settlement rates and party satisfaction are higher with 90% recommending using it again.
- The Singapore Convention. The convention makes international mediated agreements enforceable across international boundaries. As a result, mediation will increase in this space.
Kelly Browe Olson (Arkansas Little Rock)
This presentation focused on the Arkansas Special Education Mediation Project, specifically the facilitated meetings on the front end. Mediations typically are about behavior issues of students and teachers – is the IEP being followed – but they cannot change the IEP under federal law. These facilitations are for creating the IEP in the first place, which includes professionals required to be a part of the process, not just the parents and school. Facilitation meetings are typically not positional as the relationship has yet to deteriorate. She made sure to highlight the work of CADRE – https://www.cadreworks.org/. In Arkansas, facilitation meetings are open to attorneys, whereas in mediations they are not allowed to participate in mediations – although that will change in the not too distant future. The research shows that parent engagement is critical, and their engagement depends if they feel like they are heard and taken seriously.
She is bullish on mediation because online mediation creates access across the state. Also, it makes things fair when parents are not allowed on campus. Post pandemic, her program’s settlement rate is 91%, and she finds that the “officialness” of mediation often helps parties behave better.
