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Bar Journal - September 1, 2002

Making Mediation Work in New Hampshire: The Case for Revising NH Superior Court Rule 170

By:
MAKING MEDIATION WORK

 

"A dispute is a problem to be solved together, not a combat to be won."1 

I. INTRODUCTION

Mandatory mediation is required by the courts as a form of alternative dispute resolution2  to lighten the court dockets by allowing parties to try to resolve their disputes outside of the courtroom.3  This use of mediation within the legal system is widely debated in New Hampshire and throughout the country.4  Attorneys and alternative dispute resolution professionals debate issues such as: What types of disputes are suited to mediation? Should only attorneys be allowed to mediate in a court-sponsored program? When should mediation take place during the legal process? Because these issues are not easily resolved and have been treated differently in all jurisdictions, mediation is difficult to definitively classify.

In general, mediation is a non-binding negotiation between the parties facilitated by a neutral third party, the mediator.5  The mediator generally meets with parties and, if the parties wish, their attorneys. The mediator's role is to enable the parties to communicate and to assist them in making a mutually acceptable agreement, in an attempt to avoid litigation.6  Though not all disputes are appropriate for mediation,7  the process can help to resolve a dispute in an economically efficient manner for the court. In addition mediation can empower the parties by allowing them to participate in the process and have control over the outcome.8 

Under New Hampshire Superior Court Rule 170, all civil cases in four of the ten counties in New Hampshire must go to mediation prior to trial.9  Mediators for this program are assigned to disputes on a voluntary basis and, under Rule 170, must be attorneys.10  This article will focus on the court-mandated mediation program in New Hampshire and ways in which it may become more effective in settling cases and achieving party satisfaction.

The current program in New Hampshire could become more effective in two ways. First, the parties could be given the right to choose a mediator from a list provided by the court in which the dispute is pending. Publishing individual mediator qualifications on this list would allow parties to make an informed choice. By allowing the parties and attorneys to match their dispute to mediators' qualifications, higher settlement and satisfaction rates should follow.

Second, introducing non-attorneys into the mediator pool would also make the program more effective because parties would have a wider variety of mediator expertise and mediation styles to choose from. Settlement rates in New Hampshire are satisfactory at 50-70%,11  but court-mandated mediation would be far more effective if parties have a choice of a mediator who can use a style of mediation that will be conducive to settling their dispute. For this to happen, attorneys representing clients in a dispute must be educated about the different styles of mediation and be able to match a mediator's style to their client's dispute.12  With bar members who can direct clients toward a style of mediation that will be beneficial for their particular dispute, and qualified attorney and non-attorney mediators who can provide these different styles and experiences helpful to the resolution, satisfaction in and success of the mediation system in general should increase.

This article will first describe current and predominant styles of mediation in use and analyze their effectiveness for different types of disputes. This article will then recommend ways to improve the New Hampshire mediation program.

II. MEDIATION PROCESS AND STYLES

Currently, there are two predominant styles of mediation in use, facilitative mediation and evaluative mediation.13  Another mediation process, transformative mediation, has gained very little acceptance in the mandatory mediation area and will be discussed only briefly. Facilitative, evaluative, and transformative mediation all consist of a negotiation between the parties facilitated by a neutral third party, the mediator.14  The success of a mediation session may be affected by many factors and some disputes are better suited to one form of mediation over another.15  Many mediators will use multiple styles of mediation within the same session in a hybrid form of mediation.16  When using this hybrid mediation, the mediator will incorporate different aspects of facilitative and evaluative mediation based on the dynamic between the parties and the type of dispute.17  A hybrid form of mediation is that most often in practice in Rule 170 mediations in New Hampshire today.18 

A. Facilitative Mediation

In facilitative mediation,19  also known as "pure" or "traditional" mediation,20  the mediator structures the process to allow the parties themselves to come to a mutually satisfactory agreement.21  Ideally, the solution in facilitative mediation comes directly from the parties' recognition of their underlying interests, rather than simply the adversarial positions they may have held entering the mediation.22  To foster open communication between the parties, facilitative mediators often conduct their meetings with both parties in the same room.23  This encourages open communications between the parties.24  Though the facilitative mediator may meet separately with each party in a private meeting called a caucus, the mediator generally does this to try to understand that party's position, not to influence their position.25  The facilitative mediator does not meet with an individual party for the purpose of coercing the party into changing their position.26 

The facilitative mediator will not generally give an opinion on the strength of either side's position.27  Rather, she proceeds with the assumption that the parties are "intelligent and capable of understanding their situation" and, through the mediator's guidance, can develop their own, mutually beneficial solution.28  The facilitative mediator merely enables and guides the discussions without giving advice, recommendations, or legal opinions as to the outcome of the case in court.29  For this reason the facilitative mediator is said to be "in charge of the process, while the parties are in charge of the outcome."30 

The facilitative mediator's goal is to assist the parties in fleshing out each party's interests underlying their positions.31  Facilitative mediators are concerned that parties communicate directly, rather than through the mediator or their attorneys, and share all information available.32  The attorneys' role in the mediation is to provide the legal advice that the mediator will not. Because alternative dispute resolution is conducted early in the legal process, mediation is beneficial because high discovery costs associated with litigation as well as the emotional toll a trial can take may be avoided.33 

Facilitative mediation can be highly effective where the parties' conflict involves emotional issues or if the parties have an ongoing relationship to preserve.34  Consider this, for example: A brother who owns a retail company disagrees with his sister, the manager of one of the stores. They argue about the direction of the company and the brother terminates his sister's employment with the company. Among other claims, the sister sues her brother for monetary damages for wrongful discharge. Though she is suing for monetary damages, it may be the sister's emotional pain of feeling rejected or betrayed that underlies the dispute. This dispute may be effectively settled in a facilitative mediation. There, by talking to each other directly, the brother and sister may agree that an apology by the brother and a written recommendation from him highlighting his sister's abilities is a satisfactory resolution. The award of the monetary damages as originally requested would unlikely resolve the sister's hurt feelings, whereas the apology and the letter addressing the underlying emotional conflicts may leave both parties more satisfied.

Facilitative mediation can be helpful in other areas where parties have ongoing relationships to preserve, such as probate issues,35  a landlord/tenant dispute, or divorcing parties with children.36  Because facilitative mediation concentrates on serving the actual interests of each party so that each comes out satisfied, the relationship is more likely to be preserved. This is unlike court resolved conflicts where one or more parties frequently perceive that they have lost. While facilitative mediation can be helpful, one significant disadvantage is that, because the true issues may take time to draw out from the parties, the process can be time-consuming and take skill on the part of the mediator.37  To move the parties toward a faster resolution, mediators may be inclined to take a more active role in the mediation and influence parties to settle on a resolution that does not resolve the underlying issues. This may be especially problematic in a mandated mediation program where attorney-mediators volunteer time that could otherwise be spent on clients.

Facilitative mediation is also less effective where a power imbalance exists between the parties, such as where the parties have unequal financial positions, levels of education, work status, or where one party has previously been victimized by the other.38  If an employee is suing a former employer for discrimination or sexual harassment, the employee may experience this type of disadvantage. A skilled facilitative mediator often will be able to equalize the positions or "level the tables," but in extreme situations, such as prior physical or mental abuse of one party by another, mediation may not be effective or appropriate.39 

B. Evaluative Mediation

In evaluative mediation, the mediator, in a role similar to a judge, strongly encourages the parties toward settlement and will directly influence the resolution.40  As in a settlement conference, the evaluative mediator will use the probable result at trial as a measure of a reasonable solution.41  Based on the belief that the likely outcome at trial will be the most just result for the parties,42  the evaluative mediator will guide the parties toward such an agreement.43  The mediator will evaluate the probable result at trial by reviewing the pleadings and documents filed by the parties, identifying weaknesses of each side's case, and predicting what a judge or jury may do.44  The parties may speak directly to each other in evaluative mediation, but are generally represented by attorneys who also actively participate in the process.45  The evaluative mediator will often meet in caucus with each party individually, or occasionally along with the attorneys, to attempt to coerce46  the parties from their individual positions. Because legal knowledge is needed to assess the strength of each party's case, the evaluative mediator is generally an attorney.47 

In comparison to the facilitative mediator who assumes the parties are intelligent and capable of understanding and evaluating the situation themselves, the evaluative mediator assumes that the parties need guidance and want an assessment of the strengths of their positions.48  Evaluative mediation grew out of, and is most prominent in court-mandated mediation programs49  where a mediator wishes to move a dispute forward quickly.50 

Evaluative mediation does not address the underlying emotional issues in disputes,51  and works best where the conflict is between two otherwise uninvolved parties over a simple division or allocation of money or property,52  referred to as a "positional bargaining" situation.53  "Positional bargaining" occurs in disputes such as personal injury cases or where one party is an insurance company and the only issue is the monetary amount one party will pay to the other.54  While evaluative mediation will probably not preserve any continuing relationships, pressure from the mediator may result in quicker resolutions. As a consequence, evaluative mediation may be beneficial by easing court dockets by strongly influencing the parties to come to an agreement for settlement during mediation, rather than going back to the court for litigation of the dispute.

Similar to a dispute resolved in litigation, there is a danger in evaluative mediation that the parties may not be fully satisfied with the resolution and may feel coerced and unfulfilled.55  In cases where more creative solutions would better serve parties, such as family disputes, evaluative mediation can result in an undue burden on parties to settle.56  In this type of dispute, parties may wind up with a solution based on the opinion of the mediator, rather than a more creative solution providing what they really want or need.57 

C. Transformative Mediation

Transformative mediation is less a "style" of mediation than it is a different process itself.58  Transformative mediation is modeled after the early form of faciliative mediation and gives the highest degree of control of both the process and the outcome to the parties, with the mediator acting merely as a guide for working through emotions.59  In transformative mediation,60  the mediator generally follows the idea that parties and their relationship should be "transformed" by the mediation process through recognizing each party's needs and "empowering" those parties through that transformation.61 

Transformative mediators may have a background in therapy or counseling, though legally trained mediators also take part in this type of process.62  The process tends to be similar to a counseling session rather than a dispute resolution, dealing with repairing and transforming the parties and their relationship rather than resolving a legal conflict.63  A successful transformative mediation session may not result in an agreement based on the dispute, but nonetheless may be deemed successful because of the change the process effectuated in the parties and/or their relationship.64  In the mandatory mediation program the goal is to come to an appropriate resolution both parties may agree on, whereas the transformative mediation may not result in an agreement at all, but still be considered successful. Because the goals of the processes are at odds, transformative mediation is not an appropriate process in court-mandated mediation.

D. Hybrid Mediation

Though the distinction between facilitative and evaluative mediation may appear clear, a hybrid form tailored to each party's needs is the form most practiced by court-appointed mediators in New Hampshire's program currently.65  Though some practice purely one style or another, generally, mediators in the rule 170 program will begin with a facilitative style and move toward a more evaluative model, after receiving consent from the parties, if a settlement does not appear forthcoming.66  In doing so, the mediator is able to combine techniques of facilitative and evaluative mediation by facilitating the discussion between the parties while, when necessary, helping the parties along in the process by using more evaluative techniques like "reality testing" their positions to lead the parties toward a reasonable resolution. If skillfully performed, this provides parties with the best of both styles, and often can result in settlement.

E. The Importance of Matching a Mediator to a Conflict

It is important to use the appropriate style of mediation to resolve different types of disputes.67  Some conflicts are better suited to one style of mediation over another and, therefore, matching a mediator's style to a dispute is vital to the chances for settlement. Mediation works best when it is "an eclectic process" where mediators with all different backgrounds are able to be matched specifically to parties' disputes.68  As previously stated, evaluative mediation may be the best way to efficiently and economically reach a resolution in conflicts where property or money is to be divided or allocated. If, however, the parties have a long-term relationship that must be maintained or emotional attachments, a more facilitative style allowing for creative solutions, may be beneficial. If the object of the mediation is merely to decide on a dollar amount for a settlement, evaluative mediation, where the mediator takes an active role in directing the parties toward a certain outcome, is well-suited. An evaluative mediator, however, probably would not have the same level of success with a dispute involving highly emotional circumstances where a facilitative mediator may be able to draw out the underlying interests involved. Some mediation scholars agree that a hybrid form such as that described above, is quite beneficial to the parties.69 

The style of mediation that parties and their counsel choose can greatly affect the success of the process depending on the type of conflict. In the past the issue of whether a mediator should evaluate has been hotly contested,70  to the extent that many in the alternative dispute resolution field favor one style of mediation over another so drastically as to discredit the other as a valid mediation form.71  Even so, it is now generally accepted that mediators may evaluate.72  The role and level of participation of the mediator in the parties' settlement can vary greatly depending on the style of mediation chosen. The role of the mediator, who has no authority to impose a settlement on the parties, is far different than that of third party participants in other dispute resolution processes, such as neutral evaluation or arbitration.73  Facilitative and transformative mediators work to guide the parties to come to an agreement by collaborating and using creative solutions, whereas the evaluative mediator strongly directs the parties toward an agreement, still entered into voluntarily by both parties.74  Minds differ as to the appropriate amount of participation of a mediator. Regardless of the style used, the mediator's role is to assist the parties in coming to a mutually satisfactory resolution, avoiding further litigation.75 

Ideally, for a mediation program to effective evaluative, facilitative, and hybrid forms of mediation should be available for the different disputes that arise. Whether it is truly possible to have all types of mediation practiced when a jurisdiction only allows attorney-mediators is also a contested subject.76  Most likely it is possible, but attorneys need to be aware of the dangers of relying on traditional law based thinking in the arena of alternative dispute resolution.

i. Lawyer, Know Thyself

Anyone who has ever been in law school knows that a typical class is filled with strong confident personalities, each of whom holds strong opinions. This confidence is one factor that draws individuals into legal training. As lawyers are trained in the adversarial system, they are used to evaluating a dispute for what would be a reasonable outcome and working toward that outcome. An attorney's job consists largely of giving advice and making decisions on the strength of their client's position.77 

Some believe that due to lawyers' predisposition toward evaluation from the typical personality of an attorney and the legal training they receive, lawyers, particularly litigators, are generally unable to mediate in a purely facilitative way.78  Though this may be an extreme view, the possibility exists that attorneys may fall back on traditional legal training, and rely on an evaluative model of mediation. This is not to say that an attorney can never be effective as a facilitative mediator. Only that attorneys who mediate must be aware of a possible predisposition to evaluation, making the need for proper training in both types of mediation even more important.79 

Another consideration in a mediation program is that when a mediator is using an evaluative form of mediation they must be qualified to give an assessment of the likely outcome or the merits of each party's claim.80  Therefore, if evaluation were the norm in a mediation program, only attorneys would be qualified to mediate.81  This can result in a mediator pool offering far fewer choices to parties,82  as the program in New Hampshire does now. In addition, because of the possible predisposition of lawyers previously discussed earlier, should the field be closed to non-lawyer mediators there is a possibility that lawyers could convert the whole process into an "adversarial paradigm"83  defeating the purpose of an alternative dispute resolution procedure.

With all mediation programs it is important to establish appropriate mediator qualifications for attorneys or non-attorneys. This section will conclude with recommendations for revising Rule 170 to create a better mediation program in New Hampshire.

F. Mediator Qualifications

Regardless of whether non-attorneys are allowed to take part in the court-mandated mediation process, an important part of creating a successful mediation program is ensuring that court-certified mediators are qualified for the position. New Hampshire's standards for court-appointed mediators are embodied in Superior court rule 170. Rule 170 provides that, "all neutrals (neutral evaluators, mediators, arbitrators) shall be attorneys approved by the Court."84  However, the rule goes on to provide that, "the neutrals will not be acting as legal advisors or legal representatives."85 

In addition, Rule 170 provides that in deciding whether an attorney is qualified to be a neutral, "the Court may consider length of practice, trial experience, and alternative dispute resolution experience."86  The rules provide that " the mediator does not have the authority to impose a settlement on the parties" and that the mediation is "to facilitate a settlement acceptable to the parties."87 

The rules also provide that once mediation is selected as the preferred form of alternative dispute resolution, the parties will be provided, by court order, with the mediator's name, address, and assigned time and date for the session.88  This is significant because under the rule neither the parties, nor the attorneys, have the right to select a mediator based on that mediator's qualifications, expertise, or style. This may greatly reduce the effectiveness of the mediation if a mediator's style or expertise is not well matched to a dispute.

The requirements in the rule are contradictory considering the different styles of mediation available and the different experience non-attorney mediators may bring to the process. If mediators are not "acting as legal advisors or legal representatives"89  as stated in Rule 170, then there is really no reason to require that mediators be attorneys as long as requirements in the certification process assure that mediators are properly trained. Attorneys are trained in negotiation and this can benefit the parties tremendously. Individuals with other expertise, however, may be equally as capable of aiding the resolution of a dispute. Instead mediators should be allowed, under Rule 170, to participate in court-certification based on educational requirements or other experience, but not solely on the basis of a law degree.

Many disputes may require expertise in areas that attorneys may not always be able to provide. For example, cases involving knowledge of in-depth medical information, labor, or construction disputes may benefit from expertise other than that an attorney may have. Non-attorneys who are willing to participate in the program without compensation, as attorney-mediators currently do, and undergo the required mediation training, should be able to participate in the Rule 170 program. Parties participating in Rule 170 mediation should have the opportunity to choose a mediator whose qualifications, experience, and style best suit their dispute, regardless of whether that individual is an attorney. The program should benefit by increased settlement rates and greater party satisfaction if given this opportunity.

i. A Survey of State Mediation Programs

There is no recipe for the perfect court-mandated mediation program. Each state maintains its own mediation program, some more effectively than others, but none are the same.90  As indicated by the following programs, mediation is largely at the discretion of the courts in many states' programs.91 

The variety of different programs for court-mandated mediation, as seen in Florida, Washington, D.C., Massachusetts, and Vermont, proves that there is no one right way to form a mediation program. It is significant that the majority of states now do allow non-attorney mediators in court-run programs.92  Also significant is that in April of 1999, the Dispute Resolution Section of the American Bar Association recommended that dispute resolution programs should adjust eligibility criteria to allow non-attorneys to participate, instead basing eligibility on "appropriate training and qualifications to serve as neutrals, regardless of whether they are lawyers."93  The following is a brief survey of programs in Florida, Washington, D.C., Massachusetts, and Vermont, indicative of programs currently in place in the United States.

In Florida's thriving mediation program,94  referral of a civil dispute to mediation is at the discretion of the court.95  Florida allows non-attorneys to mediate in county courts,96  as well as family and marital disputes.97  At the circuit court level, however, not only is an approved mediator required to be an attorney, but the mediator must also be "a member in good standing of The Florida Bar with at least 5 years of Florida practice . . . or be a retired trial judge from any United States jurisdiction."98  Though the rules do not specifically prohibit evaluation by a mediator, the practice of facilitative mediation is highly encouraged by the prohibition of coercion by the mediator99  and emphasis on adequate training programs.100  Mediators in Florida may be compensated or uncompensated depending on the agreement made with the parties prior to the mediation.101  Because mediation in Florida has been used in the court system since the late 1970s, the program has undergone many changes and is one of the longest running in the country.102 

In the United States District Court in Washington, D.C., mediation is also left to the discretion of the court, but is highly encouraged.103  In fact, unless parties can show cause that mediation would not be beneficial for their dispute, a judge may order the parties to participate.104  Mediation is only available, however, in cases where the parties are represented by counsel.105  D.C.'s court-certified mediators are chosen by the court, from members of the U.S. District Court Bar, to participate as mediators in the program.106  Once chosen, these mediators participate in the program uncompensated, as in New Hampshire.107 

Massachusetts also leaves referral of disputes to mediation to the discretion of the court.108  Parties with disputes pending in Massachusetts courts have the opportunity to match a mediator to their dispute from a court- approved and provided list, which includes attorneys and, on the trial court level, non-attorneys as well.109  The court will appoint a mediator from the list if the parties cannot agree on one from the list provided.110 

Except small claims, all civil actions pending in Vermont courts are required to go to some form of alternative dispute resolution.111  Like Massachusetts, county court-certified mediators in Vermont need not be attorneys.112  Potential mediators must submit information annually to the court including "educational background, experience, and fees charged."113  The fee to be paid to the mediator by the parties is agreed upon prior to the mediation.114 

The programs discussed above should be considered when revising New Hampshire Superior Court Rule 170. Interestingly, mediators in Massachusetts,115  Florida,116  and Vermont117  are generally compensated, whereas mediators in Washington, D.C. and New Hampshire work only on a pro bono basis. This is especially interesting because many attorney-mediators advocate for allowing non-attorneys to participate as mediators in programs to enhance the mediator pool and provide parties the best mediators to match their dispute.118  Though mediators in Massachusetts and Vermont are compensated, they apparently do not fear competition for fees from non-attorneys. Where compensation is not a factor in New Hampshire there is even less cause for attorney-mediators to be concerned by competition with non-attorneys for mediation opportunities.

Unfortunately, the belief is that in programs including non-attorneys as mediators, attorneys representing clients who are involved in a dispute will not choose non-attorneys to resolve their client's conflicts.119  Unless a dispute requires legal or subject-matter expertise that only an attorney can provide, however, members of the bar should strive to match a mediator's style and experience to their client's dispute, regardless of whether that mediator has a law degree, to better enable settlement.

III. CONCLUSION: RECOMMENDATIONS FOR RULE 170

With proper training, allowing non-attorneys into the court-mandated program in New Hampshire will not degrade the mediator pool, but will strengthen it by offering parties mediators with greater diversity of expertise and experience. As New Hampshire Superior Court Rule 170 reads now, very little guidance is given as to what qualifies a mediator to serve in the court-mandated program aside from the requirement that mediators be attorneys. New Hampshire Superior Court Rule 170 should be revised to remove the attorney-mediator requirement and instead institute clearly articulated educational requirements, relevant experience, and training that mediators must complete prior to being certified by the court.

Revising the Rule 170 mediation program so that parties have the right to choose a mediator, rather than the court simply appointing one to them, will allow attorneys and parties to match their dispute to a mediator's expertise and style of mediation. Ultimately, the above changes may increase settlement rates of cases mediated, improve party satisfaction with the process, and effectively alleviate crowded court dockets.

ENDNOTES

1. Author unknown. See Streeter-Schaefer, Holly, A Look at Court Mandated Civil Mediation, 49 Drake L. Rev. 367, 368 (2001).
2. Stephen B. Goldberg, Frank E.A. Sander, & Nancy H. Rogers, Dispute Resolution: Negotiation, Mediation, and Other Processes 7 (3d ed. Aspen L. and Bus. 1999) (stating that the designation "Alternate Dispute Resolution" grew out of increased interest in the 1970s of an alternative to litigation to resolve disputes).
3. Prior to trial, parties in civil disputes have the choice between neutral evaluation and mediation.
4. See generally Streeter-Schaefer, supra n. 1, Campbell C. Hutchinson, The Case for Mandatory Mediation, 42 Loy. L. Rev. 85, 86 (1996).
5. See e.g. Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 Harv. Neg. L. Rev. 71, 76 (Spring 1998), Stephen B. Goldberg, Frank E. A. Sanders & Nancy H. Rogers, Dispute Resolution: Negotiation, Mediation and Other Processes. 125 (3d ed., Aspen L. and Bus. 1999).
6. See Hutchinson, supra n. 4, at 86.
7. See e.g., Streeter-Schaefer, supra n. 1, at 380 (discussing inappropriate situations for mediation such as where parties may not be able to fully take part in the process due to mental impairment or stressful emotional situations); Hutchinson, supra n. 4, at 88-89 (discussing factors to consider when deciding whether a case is appropriate for mediation).
8. See Hutchinson, supra n. 4, at 87.
9. Each state is charged with creating its own requirements for mandated alternative dispute resolution (ADR) procedures. Under New Hampshire Superior Court Rule 170, as of July 1992 parties involved in civil cases pending in Rockingham, Hillsborough, and Sullivan Counties were required to undergo supervised ADR. Merrimack County joined in July 1993. Parties involved in disputes in the other counties of the state are allowed to take part in mediation on a voluntary basis.
10. N.H. Super. Ct. R. 170 (currently court certified mediators must be members of the New Hampshire Bar).
11. See Peter Y. Wolfe, Making Mediation Successful, N.H.B.J. 38 (June 1998) (citing Jim Varn, Rule 170 Alternative Dispute Resolution Program Progress Report November 1992 through December 1994. Report of the Program on Consensus and Negotiation at UNH April 1995, David Steelman, Superior Court Rule 170 Program and Other Alternative Dispute Resolution Prospects for New Hampshire Trial Courts, National Center for State Courts, May 8, 1996) (the author has been unable to find any more current studies on party satisfaction or settlement rates).
12. See Zena D. Zumeta, Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation < http://learn2mediate.com/resources/nafcm.php> (last accessed May 13, 2002) (stating that confusion is common among attorneys and clients about what mediation is and what to expect in mediation) (Though Ms. Zumeta specializes in marital mediation, the points I have cited from her work are general to all mediation processes.).
13. See e.g., Robert B. Moberly, Mediator Gag Rules: Is it Ethical for Mediators to Evaluate or Advise?, 38 S. Tex. L. Rev. 669 (May, 1997), Zumeta, supra n. 12.
14. See e.g., Kovach & Love, supra n. 5, at 76.
15. See Wolfe, supra n. 11, at 38.
16. Interview with Kimberly Kirkland, Professor of Law, Franklin Pierce Law Center (April 18, 2002); Telephone Interview with Russell J. Hilliard, Atty., Upton & Hatfield, Concord, New Hampshire (May 7, 2002); See generally Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Neg. L. Rev. 7 (1996).
17. Interview with Kimberly Kirkland, Professor of Law, Franklin Pierce Law Center (April 18, 2002); Telephone Interview with Russell J. Hilliard, Atty., Upton & Hatfield, Concord, New Hampshire (May 7, 2002).
18. Id.
19. See Zumeta, supra n. 12 (Facilitative mediation grew out of the "volunteer dispute resolution centers" in the 1960s and 1970s where attorneys were not present and the mediators came from all different backgrounds and were not attorneys themselves. This came about, much as the court mandated programs of today, to clear court dockets and bring quicker resolution to disputes.).
20. Stanley Yorsz, A Mediator's Style Can Make a Difference in the Result of Your Mediation <http://www.bipc.com/articles-f-m/mediatorstyle.htm> (Last accessed May 13, 2002).
21. Wolfe, supra n. 11, at 39.
22. Id.
23. See Zumeta, supra n. 12.
24. Id.
25. See Stephen B. Goldberg, Frank E.A. Sander, & Nancy H. Rogers, Dispute Resolution: Negotiation, Mediation, and Other Processes 123 (3d ed. Aspen L. and Bus. 1999).
26. Id.
27. See e.g. Zumeta, supra n. 12.
28. Wolfe, supra n. 11, at 39.
29. See Zumeta, supra n. 12.
30. Id.
31. Id.
32. Id.
33. Hutchinson, supra n. 4, at 87-88.
34. Wolfe, supra n. 11, at 39.
35. See Peter Y. Wolfe & Kelly R.A. Mullen, Mediation in the Probate Court, N.H.B.J. 35 (March 2001).
36. See Streeter-Schaefer, supra n. 1, at 378.
37. See e.g. Wolfe, supra n. 11, at 39.
38. See e.g,, Susan L. Steiger, Mediation and Domestic Violence: Considerations for Mediators and Battered Women, N.H.B.J. 32 (June 1994) (discussing power imbalance and the inappropriateness of any kind of mediation in a situation where previous victimization of one party by another has occurred); Streeter-Schaefer, supra n. 1, at 380 (stating examples of when mediation is inappropriate).
39. Id.
40. Zumeta, supra n. 12.
41. See id.; Wolfe, supra n. 11, at 38-39.
42. See Wolfe & Mullen, supra n. 35, at 34 (citing Kovach, supra n. 5, at 92).
43. See id.; Wolfe, supra n. 11, at 38-39.
44. Id.
45. See id.; Yorsz, supra n. 20.
46. Interview with Peter Wolfe, Sullivan County Super. Ct. Clerk (Sept. 25, 2001).
47. See Zumeta, supra n. 12 .
48. See Yorsz, supra n. 20.
49. See Zumeta, supra n. 12.
50. Wolfe & Mullen, supra n. 35, at 34.
51. Id. at 32.
52. See e.g., Wolfe, supra n. 1,1 at 39.
53. See Wolfe, supra n. 11, at 39.
54. Id.
55. See generally Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 Fla. St. U.L. Rev. 937, 938-940 (Summer 1997).
56. Id.
57. Id.
58. Interview with Peter Wolfe, Sullivan County Super. Ct. Clerk (Sept. 25, 2001).
59. Id.
60. Moberly, supra n. 13, at 671; Zumeta, supra n. 12 (citing Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation, Jossey-Bass 1994.).
61. Id.
62. Id.
63. Interview with Peter Wolfe, Sullivan County Super. Ct. Clerk (Sept. 25, 2001).
64. Id.
65. Interview with Kimberly Kirkland, Professor of Law, Franklin Pierce Law Center (April 18, 2002); Telephone Interview with Russell J. Hilliard, Atty., Upton & Hatfield, Concord, New Hampshire (May 7, 2002).
66. Telephone Interview with Russell J. Hilliard, Atty., Upton & Hatfield, Concord, New Hampshire (May 5, 2002).
67. See e.g., Wolfe, supra n. 11; Riskin, supra n. 16.
68. See Chris Guthrie, The Lawyer's Philosophical Map and the Disputant's Perceptual Map: Impediments to Facilitative Mediation and Lawyering, 6 Harv. Neg. L.Rev. 145, 180 (Spring 2001) (citing the leading proponent of "eclectic mediation", Jeffrey W. Stemple, The Inevitability of the Eclectic: Liberating ADR from Ideology, 2000 J. Disp. Resol. 247).
69. See e.g. Riskin, supra n. 16.
70. See Riskin, supra n. 16, at 9.
71. See Riskin, supra n. 16, at 12; Moberly, supra n. 13, at 670.
72. Telephone interview with Peter Wolfe, Sullivan County Super. Ct. Clerk (April 30, 2002).
73. See Guthrie, supra n. 68, at 150.
74. See generally Zumeta, supra n. 12.
75. See, e.g,, Guthrie, supra n. 68, at 150; Hutchinson, supra n. 4, at 86.
76. See e.g., Guthrie, supra n. 68, at 157-158.
77. See Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 Fla. St. U.L. Rev. 937, 942 (Summer, 1997).
78. See Guthrie, supra n. 68, at 149; Hutchinson, supra n. 4, at 95 (discussing lawyers' tendencies toward litigation rather than negotiation).
79. The author participated in a modified Myers-Briggs test during mediation training, to give an in-depth personality and predisposition analysis. This was used only to create recognition of potential biases and predispositions. This recognition was beneficial in developing a mediation style. This training consisted of a 40-hour mediation course offered through Franklin Pierce Law Center by Nancy Yeend and John Paul Jones of The John Paul Jones Group. The training, though facilitative based, examined both facilitative and evaluative mediation and recognized that a form of mediation consisting of a combination of the two is often practiced. Nancy Yeend and John Paul Jones also formulated the modified Myers-Briggs test.
80. See Love, supra note 77 at 942 (emphasis added).
81. Id.
82. Id. (discussing the weakening of the mediator pool when only attorney-mediators are used).
83. See Love, supra n. 77, at 942.
84. N.H. Super. Ct. R. 170(d)(1).
85. N.H. Super. Ct. R. 170(e).
86. N.H. Super. Ct. R. 170(d)(1).
87. N.H. Super. Ct. R. 170(g)(2).
88. Id.
89. N.H. Super. Ct. R. 170(e).
90. Carrie-Anne Tondo, Rinarisa Coronel, & Bethany Drucker, Mediation Trends: A Survey of the States, 39, Fam. Ct. Rev. 431, 433 (Oct. 2001).
91. Id.
92. Telephone interview with Peter Wolfe, Sullivan County Super. Ct. Clerk (April 30, 2002).
93. Resolution of the ABA Section of Dispute Resolution, American Bar Association, April 28, 1999.
94. James J. Alfini, Symposium: Trashing, Bashing, and Hashing it Out: Is This the End of "Good Mediation"?, 19 Fla. St. U.L. Rev. 47, 50 (Summer 1991) (discussing the history of Florida's mediation program dating back to the late 1970s).
95. Fl. R.Civ. P. 1.700(a).
96. Fl. R. for Certified and Court-Appointed Mediators Pt. I, Rule 10.100(a) (County attorneys must complete a minimum of 20 hours in a court approved training program and observe four county court mediations).
97. Fl. R. for Certified and Court-Appointed Mediators Pt. I, Rule 10.100(b) (Family mediators must meet educational requirements in Rule 10.100(b)(2) and complete a 40 hour training program approved by the court and observe 2 family mediators).
98. Fl. R. for Certified and Court-Appointed Mediators Pt. I, Rule 10.100(c)(2).
99. Fl. R. for Certified and Court-Appointed Mediators Pt. I, Rule 10.310(b) (In the 2000 revision committee notes the facilitative role of the mediator is emphasized and the line between evaluative mediation and coercion is briefly discussed.).
100. Id.
101. Fl. R. Civ. P. 1.720 (g).
102. See Alfini, supra n. 94, at 50.
103. Tondo, supra n. 90, at 435.
104. Id.
105. Id.
106. Id. (Once the court selects attorneys to be mediators, it provides professional trainers to ensure proper training.).
107. Tondo et al., supra n. 90, at 435.
108. ALM Sup. Jud. Ct. R. 1:18, Uniform Dispute Resolution Rule 6 (Though Massachusetts does not have a mediation statute, the Uniform Rules of Dispute resolution were adopted in 1998 to regulated mediation in Massachusetts).
109. ALM Sup. Jud. Ct. R. 1:18, Uniform Dispute Resolution Rule 6 (It is also notable that the Federal District Court of Massachusetts also allows non-attorney mediators in its mediation program as long as they "possess specialized knowledge, skill, education, training or experience in a relevant subject matter." United States District Cour, District of Massachusetts, Alternative Dispute Resolution Plan, Section III (B)(2), June 1, 2000).
110. ALM Sup. Jud. Ct. R. 1:18, Uniform Dispute Resolution Rule 6 (Under rule 1.07 the judge also may choose a mediator not on the approved list if he or she deems necessary.).
111. Vt. R. Civ. P. 16.3 (a)(1)(A) (Additionally parties do not have to participate in ADR in civil actions in Vermont courts if they certify that they have undergone ADR in the dispute in good faith previously, describing the process chosen and results).
112. Vt. R. Sup. Ct. Admin. Order No. 39, Rule 2(a)(2000), Vt. R. Civ. P. 16.3 (e)(4).
113. Vt. R. Sup. Ct. Admin. Order No. 39, Rule 2(a)(2000).
114. Vt. R. Civ. P. 16.3 (e)(1)(A).
115. In a roundtable discussion at the New Hampshire Bar Association, Dec. 6, 2001, on mediation requirements, attorney David A. Hoffman of Hill & Barlow in Boston, Massachusetts, stated that mediators in Massachusetts are compensated approximately $150/hour for their services.
116. Fl. R. for Certified and Court-Appointed Mediators Pt. I, Rule 10.380.
117. Vt. R. Civ. P. 16.3(e)(1)(A).
118. In a recommendation distributed by attorney David A. Barlow at the roundtable discussion at the New Hampshire Bar Association, December 6, 2001, attorneys and judges were the majority supporters for including non-attorneys in the mediator pool.
119. Telephone interview with Peter Wolfe, Sullivan County Super. Ct. Clerk (April 30, 2002).

 

The Author

Claire Rachel Howard, Class of 2002, Franklin Pierce Law Center, Concord, New Hampshire.

 

 

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