Michael Greene (Texas A&M) posed questions to each panelist to get them started, and their remarks are below.
Lisa Blomgren Amsler (Indiana)
She started with a discussion of the dispute system design process in general, discussing stakeholders, processes and structures, context and culture, resources, as well as all kinds of implicit assumptions with each which include norms and the law. She brought this to Texas where she is told that 60% of the civil trial docket in Texas is regarding family matters. Her question to local practitioners is this – is there something wrong with the system design in this state. According to the Texas Bar Collaborative Law / ADR Innovations Team, the lawyering market diverts people from collaborative approached into litigation. Lisa asked if and how people would design their own system for their specific divorce.
Isabelle Gunning (Southwestern)
Her talk focused on bringing back to the fore a forgotten history of the modern mediation movement. Mediation grew along two different fronts – the field tends to look back to the 1970s and community mediation when people wanted to reclaim from the judicial system their day-to-day conflicts. She wants us to focus on the civil rights side, the work of which was to create more non-violent approaches to resolve these larger societal conflicts. What does bringing this part of history do for us in the current racial reckoning and how does that impact our mediation values beyond confidentiality and impartiality/neutrality? How do we bring justice and fairness back into it? Look towards restorative justice – practitioners of color are taking on these challenges now. If our work as mediators is to do more than being a safe space where issues are simply placated and calmed, we need to look at anti-racism, justice, and equality. She has advocated for this and recognized Derek Bell comments that social equality is subordinate to the white community’s position that their superiority will be maintained. She noted that some community mediation organizations specifically say they do not work for social justice. She suggested we use Isabelle Wilkerson’s call for “radical empathy” to understand another experience from their perspective, not how we would feel if we were in that place. If we understand that there is a caste system, we should be elevating those at the bottom. Note, what are the values behind the values of impartiality and neutrality. I hope we reclaim these values of equality, justice and fairness. This work is essential.
Michael Moffitt (Oregon)
Starting 25 years ago, he heard only heroic mediation stories but no real cautionary tales. Why was this? Potential answers – mediators are perfect, we don’t discuss unpleasantness, mediators aren’t getting sued. His 2004 conclusions were – mediators are not getting dues because the legal framework in which mediators operate, and this will not last because of the model of medical malpractice claims as there was once a time when doctors were never sued. In the past few weeks he looked for lawsuits against lawyers, and there aren’t many of them, and he found these kinds of claims – confidentiality breach, bias, breach of fiduciary duty, undisclosed conflicts of interest, fraud, legal malpractice (as mediator), infliction of emotional distress, and negligence. But there are no cases where the mediator was found liable, and he’s been looking for them – really looking hard. From a policy perspective – we have enduring policy questions that are distant from the lived experience of mediation parties including: immunity provisions, confidentiality statutes, limited complaint mechanisms, and no licensure/certification. Speaking for users, there’s no evidence of whether people are happy or not. There have been several ideas including licensure. But without licensure we can’t ask a complaint mechanism to do much for us, but without licensing there is nothing to take away.
