Making the Case for Using a Court Qualified Mediator

April 17, 2016 1 comment

Are you looking for mediator or has your attorney set up a mediation with a mediator?  Should you care if this mediator is Qualified by the Court?

I believe there are many reasons you should consider hiring a mediator who has been qualified by the court to provide mediation services, here are a few:

You can be sure they have specific training in mediation skills.

They are held to an Ethical Code for mediators.

You can be assured they have recent training and experience conducting mediation.

They are part of the mediation community and are giving back to the community by providing pro bono work each year.

Let’s look at each of these reasons in more depth:

To be included on the Utah State Court Roster of Qualified Mediators, a provider must meet specific training and experience standards Utah State Court Mediator Qualifications
In truth the standards are not extremely high, but they have been set as a minimum standard for those being qualified by the court to mediate. There are many mediators in the community who have not completed the required training and are therefore not included on the roster. Some of these providers are experienced attorneys, therapists or retired judges or commissioners. The questions is, why should someone who has experience in another field be required to complete training in mediation? The answer is simple….. Mediation is Mediation, it is not acting as an advocate, therapist or judge and the skills used in those professions are often antithetical to the skills used by a mediator.

In most training programs for mediators, those being trained are encouraged to refrain from inserting their opinions or ideas into the disputes in which they are serving as mediator. For those who have spent their careers doing the opposite, training and practice is needed to develop new skills. With training, mediators are exposed to new skills and ways to facilitate negotiation and they practice these new skills in the training program as well as when getting the required experience to qualify for the court roster. Without this training and experience, many of those who practice mediation and have never been trained as a mediator are a “one trick pony.” I was recently talking with a local family law attorney who has attended mediation with me and with a mediator who is not qualified on the court roster (this person was a retired judicial officer). The family law attorney expressed to me that the other mediator only had one intervention to try to get parties to settle and that was to tell them what they believed would happen in court and scare them into settlement. In comparison, a mediator who has training has many different interventions they are taught to try to get parties to settle, non of which are to tell the parties what to do. Mediation is a process which is built on party self-determination, when parties are scared by a possible outcome in court, their self-determination is taken away and fear of the unknown takes over.

Ethical Code

One of the requirements to be qualified as a mediator in Utah is to take and pass an exam on the Ethical Code for mediators Ethical Code for Mediators in Utah. In addition, mediators on the Utah court roster are putting themselves under the scrutiny of the Court ADR Director to ensure they follow the Ethical Code. Why in the world would you want to work with someone who is not willing to follow their professions Ethical Code and be held to those standards? As a mediator, I have heard horror stories about things a non-court roster mediator has done, and there is no action that can be taken to help correct as issue if it arises in your case. Basically, if you work with a mediator who is not on the court roster, you run the risk of having no recourse if they act unethically (other than to pursue something civilly). If a mediator who is on the court roster has Public or Private sanctions imposed for ethical violations, those must be made public and are noted on the Utah State Court Roster; Public Sanctions  Private Sanctions. Mediators not on the roster can hide behind any breach of the ethical code and by doing this may continue to engage in unethical behavior with no recourse or public notice. By working with a mediator on the court roster, you can be assured they are familiar with the ethical code and if they breach it, will be held accountable for this and not be allowed to continue this behavior unchecked.

Up to Date With the Field

For a mediator to re-qualify for the Utah State Court Roster each year they must complete a minimum of 6 hours of training in the field of mediation or conflict resolution. The field of mediation is in it’s beginning stages and new findings and ideas come out every year. The Court requires that mediators complete a minimum of 6 hours of continuing education each year; this helps ensure that mediators stay current in the field and encourages them to learn and develop new skills.
When you choose a mediator who is not on the Court Roster, you run the risk of working with some one who is behind the times. There is so much research coming out regarding neuroscience, how the brain works and how people make decisions. Mediators should keep up on these new findings so they can grow along with the field instead of staying stuck in the past.

Giving Back to the Community

Mediators who are on the court roster are required to document a minimum of 3 pro bono ( done for the public good without compensation) cases each year. This requires mediators to not only make a living in the community but give back to the community as well. Ask mediators you are considering hiring if they do volunteer work as a mediator, are they giving back to the community or just taking?

So, the choice is yours. Do you want to work with a mediator who meets the Utah State Court requirements to qualify as a mediator?   Or are you OK working with someone who is calling themselves a “mediator” because it is a popular term and yet they have no training or skills?


Keep Your Mouth Shut and Mind Open

April 5, 2016 1 comment

I recently watched a TED talk by Celeste Headlee, who is the host of the Georgia Public Broadcasting program “On Second Thought”, and she was talking about 10 ways to have a better conversation. To watch her TED Talk click here. I really liked this talk and I am going to share with you the 10 tips for having better conversation she shared. As Celeste said, if you just choose one of them and master it, you’ll already enjoy better conversations.

First a bit of research. Pew Research recently did a study of 10,000 American adults, and they found that at this moment, we are more polarized, we are more divided, than we ever have been in history. We’re less likely to compromise, which means we’re not listening to each other. And we make decisions about where to live, who to marry and even who our friends are going to be, based on what we already believe. Again, this means we’re not listening to each other.

A conversation requires a balance between talking and listening, and somewhere along the way, we have lost that balance. Most of us love to talk, we’d rather talk because when we are talking, we are in control. We don’t have to hear anything we are not interested in. We the center of attention. We can bolster our own identity. But there’s another reason: We get distracted. The average person talks at about 225 word per minute, but we can listen at up to 500 words per minute. So our minds are filling in those other 275 words.

So, here are Celeste’s 10 ways to have better conversation:

Number One:
Don’t multitask.
And this doesn’t mean just set down your cell phone or your tablet. This means, be present. Be in that moment. Don’t think about your argument you had with your partner. Don’t think about what you’re going to have for lunch. If you want to get out of the conversation, get out of the conversation, but don’t be half in it and half out of it.

Number Two:
Don’t pontificate.
If you want to state your opinion without any opportunity for response or argument or pushback or growth, write a blog.

The famed therapist M. Scott Peck said that true listening requires a setting aside of oneself. And sometimes that means setting aside your personal opinion. He said that sensing this acceptance, the speaker will become less and less vulnerable and more and more likely to open up the inner recesses of his or her mind to the listener. Isn’t that what we want? To allow the person to whom we are listening to tell us what is important to them?

Number Three:
Use open-ended questions.
In this case, take a cue from journalists. Start your questions with who, what, when, where, why or how. Try asking the other person things like, “What was that like?” “How did that feel?” Because then they might have to stop for a moment and think about it, and you’re going to get a much more interesting response.

Number Four:
Go with the flow.
That means thoughts will come into your mind and you need to let them go out of your mind. We have all probably been in a conversation where we are telling a story for several minutes and then the listener responds and asks a question or makes a comment which seems like it comes out of nowhere, or the question has already been answered. This means the listener probably stopped listening two minutes ago because they thought of this really great question or comment, and they were bound and determined to say that. And we do the exact same thing. We’re sitting there having a conversation with someone, and then we remember that time that we won the $500.00 jackpot on a penny machine. And we stop listening. Stories and ideas are going to come to you. You need to let them come and let them go. You don’t have to ask every question that comes to you or make every comment you think sounds good – listen for a change to what the person talking wants to tell you without steering the conversation in the direct you want it to flow.

Number Five:
If you don’t know, say that you don’t know.
Err on the side of caution. Talk should not be cheap. Not knowing something is not a sign that you are “less than” or not intelligent – but acting like you know something and spouting off about something you know nothing about can make you look stupid.

Number Six:
Don’t equate your experience with theirs.
If they’re talking about having lost a family member, don’t start talking about the time you lost a family member. If they’re talking about the trouble they’re having at work, don’t tell them about how much you hate your job. It’s not the same. It is never the same. All experiences are individual. And, more importantly, it is not about you. You don’t need to take that moment to insert your life experience – again, it’s not about you, it’s their story so let them tell it without getting in the way.

Number Seven:
Try not to repeat yourself.
It’s condescending, and it’s really boring, and we tend to do it a lot. This is one that I struggle with, I want to make sure I have made my point, so I just keep rephrasing it over and over. Don’t be like “Kathy”.

Number Eight:
Stay out of the weeds.
I love this one! People don’t care about the years, the names, the dates, all those details that you’re struggling to come up with in your mind. When someone adds too many details to a story they lose me… Not to be rude but we don’t care about the details, we care about you, what you’re like, what you have in common. So forget the details. Leave them out.

Number Nine:
So many really important people have said that listening is perhaps the number one most important skill that we can develop. The Dali Lama said, “If you talk you are only repeating what you already know; but when you listen, you may learn something new.”

Number Ten:
Be brief.
Celeste ended her talk sharing this: “A good conversation is like a miniskirt; short enough to retain interest, but long enough to cover the subject.” — My Sister

Next time you are engaged in a conversation that is important to you, try to remember one or two of these tips and see if by doing things differently that conversation turns out differently- hopefully Better!