Disputes Less Suitable for Mediation

Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process, suggests that the following types of disputes or circumstances make mediation less desirable:

·        The party needs to establish binding precedent;

·        The party needs to deter future claims by establishing a “hard-ball litigation – no settlement reputation” (aka the Walmart strategy);

·        The party seeks validation or vindication by a person in authority who declares that the client was blameless, but the other party was a low-down, dirty SOB;

·        The party wants or needs to go for a litigated “jackpot” damage award, no matter the statistical chance of winning that award;

·        The parties are embroiled in a value-based conflict on which they see no room for compromise;

·        The party will not be effectively represented in mediation, either because he or she is unrepresented or represented by inexperienced or unskillful counsel;

·        One or more parties refuses to participate in good faith in the process; or

·        The parties cannot bring into the process one or more persons essential to a resolution.

I would add to this list disputes in which:

·        A party seeks retribution; or,

·        A weaker party needs the power of the court or of law to balance a significant imbalance of power or resources.

The Maryland Handbook for Lawyers identifies four types of disputes in which mediation would not be successful or is not considered appropriate:

·        When a party victimizes the other party;

·        When alcohol or drug abuse plays a significant role in the dispute or undermines a party’s ability to effectively participate in the mediation;

·        When only a court can offer a remedy to the dispute, especially in matters of first impression or those matters requiring injunctive relief; or,

·        When relationships cannot be healed. 

I would challenge two components of this last list.  

While the mediation community continues to debate whether victims of spousal abuse or domestic violence should ever participate in mediation, several authors suggest that with sufficient safeguards the process may offer an attractive alternative for abused spouses.  One of my former students, a victim of spousal abuse, wrote a seminar paper advocating the use of med-arb in divorce proceedings involving abused spouses.  After her experience in the West Virginia court system, in which a judge openly expressed his bias against her, she preferred a process giving her more control, especially, over the outcome.

I also suggest that mediators successfully handle many cases in which the parties either had no pre-existing relationship (auto accident cases) or do not wish to preserve the relationship (divorcing spouses with no children). 

As mediators, lawyers, and their clients gain more experience with mediation, fewer and fewer types of disputes will seem less amenable to the process.  Even if mediation only succeeds in improving the parties’ communication, in identifying their underlying interests, in narrowing the issues in conflict, or in helping them more carefully evaluate their litigation option, it can move the dispute towards a quicker, more cost effective resolution.  

This article first appeared in the St. Louis Lawyer, Dec. 2006, and was reprinted in The Insurance Receiver, Winter 2006 and at http://mediate.com/articles/young18.cfm (footnotes in original omitted in this posting).  By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.

Preparing the Case for Mediation

In the last month, I have provided several ways to think about the "who" of mediation.  Most recently, I have examined the role of lawyers in mediation.  This post closes out that discussion.

So far we have considered the lawyer's role in counseling clients about the mediation option, preparing clients for mediation, and now preparing the case for mediation.  That last step involves a strategic planning process involving the client. The lawyer will likely:

• Discuss the costs, risks and benefits of not reaching a settlement.
• Discuss the best result each party can hope for in litigation.
• Discuss the worst result that could happen in litigation.
• Ensure that the client knows the facts and issues of the case.
• Examine the legal and factual strengths and weakness of each party’s case.
• Explore the client’s position, goals, and interests.  Establish a list of priorities, possible trades, and rapport-building “throw away” items. 
• Surmise the opposing party’s position, goals, and interests. 
• Explore the client’s emotions that the dispute, the other party, or aspects of the mediation may trigger.  Allow the client to express those emotions before the mediation, but reassure the client that a skillful mediator will help the client manage the emotions and their appropriate expression during the mediation.
• Advise the client on how to best put forward his or her interests.
• Advise the client about any confidential information which should, as a matter of strategy, not be disclosed to the other side or disclosed only when strategically appropriate.
• Help the client set reasonable expectations for mediation.
• Identify sources of objective criteria that will allow principled bargaining over money.
• Develop additional strategies for handling the money issues involved.  I'll discuss many of these strategies in later posts.
• Prepare the client to expect unforeseen evidence or arguments that may arise during the course of mediation.
• Prepare the client for questions the mediator or the other party may pose to him or her.
• Identify possible impediments to a negotiated solution, including relationship issues, data or information problems, conflicting interests, structural sources of the conflict, and value-based sources of conflict.
• Brainstorm possible solutions to the situation, especially focusing on solutions that can satisfy the interests of both parties.  Ask the client to identify and list all the responses he or she can make to satisfy the other party’s interests. 
• Ask the client to identify and list all the responses the other side can make to satisfy the client’s interests.
• Determine whether any limits exist on a party’s ability to settle.
• Discuss negotiation styles.
• Develop an opening offer strategy.
• Practice, in role-play, the agreed strategies and styles.

How lawyers prepare clients for mediation depends on their client representation skills, their experience with the process, their attitudes towards mediation, their expectations about the process, and the client’s expectations about the process.  Over twenty years ago, I represented a client in mediation for the first time.  Instantly, I was a “true believer.”   After that transformation in perspective and professional goals, I have spent the last two decade assembling the skills I need to teach students about mediation, represent clients in the process, and serve as a skilled neutral.  While mediation may no longer be the latest fad, lawyers still have plenty to learn about effectively using the process on behalf of our clients. 

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm. By providing this information, the author does not intend to create an attorney client relationship with anyone reading or relying on this post.       

Representing a Client in Mediation: Pre-Mediation Counseling

When I teach representational skills to my students, we consider the phases of the mediation process: (1) counseling your client about mediation; (2) preparing your client for mediation; (3) preparing your case for mediation; and (4) appearing in pre-mediation, mediation, and post-mediation sessions.    This post will focus on the first phase of the process.  Later posts in this series will consider in more detail the role of lawyers in the mediation itself.

Counseling the Client about Mediation

In counseling a client about mediation, a lawyer may wish to cover the following topics:

• The advantages of mediation over litigation in potentially reducing the cost of and time expended in resolving the dispute.
• The disadvantages of mediation in that the outcome is not binding unless reduced to an enforceable agreement. 
• That mediation creates no legal precedent.
• Whether the case is “ripe” for mediation.
• Whether the client has sufficient information or discovery to make informed decisions at the mediation.
• Whether the parties should request a pre-mediation conference.
• The scope of confidentiality provided by rule or statute and any additional expectations about confidentiality that the parties may need to cover in the agreement to mediate.
• Whether the parties need a standstill agreement.
• The choice of mediator.
• The location of the mediation.
• Who should attend the mediation and whether the client should bring an expert witness, a fact witness, other supporters, or anyone else.
• What pleadings, demonstrative evidence, or other information the client or lawyer should bring.
• The stages of the mediation process.
• The distinction in the role of a mediator compared to a judge or arbitrator.
• The techniques mediators may use.
• When mediation may not be appropriate for the situation because of domestic abuse, extreme imbalances in bargaining capacity, or when the client is impaired by drugs or alcohol.
• That mediation is a voluntary process that the client may terminate at any time.

The lawyer should take time to ensure that the client is ready for a process that may be new to him or her and has adjusted his or her expectations about the process to ensure successful participation in it.

This excerpt from an article first appeared in St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm.

Borrowing the Lawyers' Power in Mediation

I view the presence of lawyers in mediation as an opportunity to partner with skilled colleagues.   In the last mediation I conducted, I intended to borrow their power.  My appointment to the case came through a sophisticated country judge sitting in a courthouse in an adjacent county.  The case involved the sale of a private residence.  The buyer, a woman nearing retirement, had hoped to return to her central Appalachian roots after spending most of her life working in a manufacturing plant in northern Virginia.   The building inspection, however, came back with a comment about the aging roof and cracks in the foundation.  It spooked her a bit.  Then an appraiser not familiar with the realty market in that county provided an appraisal for the bank that was about one-fifth lower than the price the woman had offered on the house.  Now, she felt exploited.  Without an agent she trusted to help her work through these emotional responses, she backed out of the deal.   (These facts come from the complaint and not from confidential mediation communications.)

When I first moved to Virginia, I was shocked to find that lawyers participated in every, or nearly every, real estate closing.  At first, I guessed that lawyers had maintained a strong lobby that had kept this part of the real estate business in their hands.  This past summer, I learned from another country judge -- who presides in a courthouse located about thirty-five miles from the Cumberland Gap -- that titles to real estate located in Virginia are especially complicated.  Some of them may go as far back as the first settlements in the New World.   Jamestown, after all, is a popular tourist attraction that people visit after they tour the old Williamsburgcolony, Monticello, and the Yorktown battlefield.  A lawyer who had joined us for lunch exclaimed that some of his biggest malpractice worries related to the accuracy of his title opinions. 

The revised Model Standards of Conduct for Mediators, a set of aspirational ethical guidelines, provide that the mediator may only accept cases in which he or she has the competence needed to satisfy the reasonable expectations of the parties.  The mediator must discuss the situation with the parties and take appropriate actions, if he or she learns during the course of the mediation that the mediator cannot conduct the mediation competently.  Based on the results of the discussions with the parties, the mediator may need to withdraw or seek appropriate assistance.  Virginia’s mandatory Standards of Professional Conduct contain a similar provision.

Thus, when I got the court-appointment to mediate this real estate case, I quickly called the lawyers for the four parties – the seller, the breaching buyer, the seller’s listing agent, and the buyer’s agent --  to advise them that (1) I am not licensed to practice law in Virginia; (2) even though four states have licensed me to practice law, I am on inactive status in each; (3) I had never handled a real estate lawsuit while I was actively practicing law; (4) my code of professional ethics precluded me, as a mediator, from giving legal advice, and (5) if I gave legal advice, I was likely engaging in the unauthorized practice of law.  Did they still want me?

As the day of the mediation approached, I had a few butterflies in my stomach.  If one or more of the lawyers expected me to evaluate the legal strengths of the parties’ cases -- something I would hesitate to do anyway and would only do after providing certain procedural safeguards -- I was not going to meet their expectations.  But I hoped that I could enlist the lawyers to provide their own candid analysis of their clients’ cases.  They would provide the legal analysis and advice as I played quite consciously “dumb.” 

Some of you may recall the character, Joseph Miller, played by Denzel Washington in the film Philadelphia.  He plays the lawyer for another lawyer, Andy Beckett, whose firm has dismissed him from a high-paying, high-status job when his superiors suspect he has AIDS.   Throughout the film, Miller says:  “Explain this to me like I’m a six year old.”  And so, throughout the mediation I asked the lawyers to explain relevant Virginia real estate law to me “like I was a six-year old.”  Of course, I could guess at the law, but the real audience was the explaining lawyer’s client, the other lawyers’ clients, and the lawyers.  I set up this interaction in a private meeting with the lawyers after each client had made an opening statement.  I asked them to help me by explaining their legal theories without rancor, without escalating the conflict, and with some candor.  I probed their presentations with general questions.  I would then ask if a certain theory or piece of evidence created a “soft spot” in that client’s case.  The lawyers felt secure enough, in joint session, to make concessions about the strengths of their cases or defenses, typically through a shoulder shrug or a slight nod “yes” or the body language signally “maybe.”  

Without this give and take among the lawyers, we would not have settled the case.  In other words, the lawyers did the heavy lifting that day.  I just suggested to them how to do the lifting and when I needed it done.

This article excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original are omitted in this posting).

Lawyers’ Increasing Sophistication in Mediation

Lawyers are increasingly more skillful in representing clients in mediation.  Many lawyers are now trained as mediators.  Law schools increasingly teach the skills required to represent clients in mediation.  

A recently published book finally puts in one place much of the good advice on representing clients in the process.  SeeHarold Abramson, Mediation Representation: Advocating in a Problem-Solving Process (NITA 2d ed.).  

Dwight Golann has also authored a new book called Resolving Disputesthat he says reflects the perspective of lawyers representing clients in ADR processes.  Several law firm websites now have pages dedicated to preparing clients for mediation. 

Some lawyers are so skillful that they are “borrowing” the mediator’s power by influencing the structure of the process; getting the mediator to focus on the issues identified by the lawyer; getting the mediator to support a “hard bargaining” strategy; asking the mediator to explore imaginative options; using the mediator’s neutrality to enhance the attractiveness of the client’s offer; asking the mediator for information about the other side; using the mediator to educate an unrealistic opponent; and asking the mediator to apply impasse-breaking techniques.  

At least one scholar argues that mediation’s adoption of attorney dominance of the process, evaluative interventions, marginalization or abandonment of joint sessions, and a focus on monetary settlements represents a successful adaptation of the process to the needs of “litigotiation.” 

Other scholars have found that “lawyers believe [] their primary role in mediation is to provide a check on unfairness” and to protect their clients from undue pressure from the mediator or “unfair bargaining advantage that the other party may have.”  Studied lawyers reported that in mediation they tried to reduce conflict, act reasonably, and facilitate settlement.  Based on the research, these scholars ask us to “bring in the lawyers” to mediation.

I agree, and discuss that topic in my next posting. 

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original omitted in this posting).

The Vanishing Civil Trial

A recent study shows that nearly all federal cases settle before trial.  In 1962, judges and juries resolved 5,802 civil cases, defined as tort, contract, prisoner, civil rights, labor, and intellectual property cases.  These trials constituted about 11.5 percent of the dispositions of the 50,320 cases filed with the courts.  

By 2002, parties had increased civil case filings to nearly 259,000 – an increase of 146 percent over 1962 filings-- but the dispositions by trial fell to 1.8 percent.  These statistics, taken from data compiled by the Administrative Office of the United States Courts, show that federal judges tried fewer cases in 2002 than they did in 1962.   

Judge Patrick Higginbotham reported that in 2001 “each United States District Court judge presided over an average of just over fourteen trials a year.  Over half of these trials lasted three days or less in length and 94 % were concluded in under ten days.”  

In other words, most judges spent less than forty-two days presiding over trials.  Each judge handled six “other contested matters,” but taken together, the traditional trials and the “other contested matters” averaged a day or less in length.  In 1962, the average federal judge conducted 39 trials each year.

State court statistics give a similar, but yet incomplete, picture.  Based on data provided by the National Center for State Courts for 22 states, civil jury trials fell by 33 percent during the period of 1976 through 2002.  Bench trials fell to 15.2 percent of total civil dispositions in 2002.  

Scholars and commentators are not quite sure what to make of the data.  Some suggest that increasing use of ADR, especially mediation, explains the drop in the number of trials. 

What the data says to me is that lawyers play a more significant role as agents of settlement than as litigation advocates.  I explain to my students that they will far more likely use over their lifetimes the negotiation and mediation skills that I teach than they will likely use the rules of evidence or their appellate advocacy skills.   

This article excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original omitted here). 

The Who of Mediation: Lawyers in the Mix

In late October 2005, I conducted a mediation involving four parties, all of whom were represented at the mediation by counsel.  The presence of lawyers at the mediation was itself unusual according to some limited empirical research.  Two studies in Arizona, two studies of California courts, and a study of sixteen courts nation-wide indicated that in divorce and child custody mediations held since 1992 to 2001, seventy-two to ninety percent of the mediations involved one pro se party.  Thirty-five to fifty-six percent of the mediations involved two pro se parties.  

Data assembled by the National Center for State Courts showed that lawyers played no role in mediation in forty-three percent of the 205 court-related divorce mediation programs studied.  Other sources report that up to eighty-eight percent of family law cases, not necessarily in mediation, involve one pro se party.  

Moreover, sixty-nine to seventy-two percent of cases filed in a Wisconsinurban area court involved at least one pro se party.  If a court referred these parties to mediation, they likely did not retain counsel to represent them in the process.

Lawyers as Spoilers?

Some mediators prefer that lawyers do not participate in mediation.  They consider lawyers potential “spoilers” because the traditional adversarial role they play. Perhaps their mindset, may keep them from exploring creative solutions to the dispute.   Some mediators also believe lawyers take an adversarial point of view to information gathering and exchange.  Accordingly, lawyers may view information as simply enhancing a client’s legal case and should, therefore, be used for winning.  It should not be shared except at trial and certainly should not be shared to explore value creating trades or other settlement options at mediation.  

Other commentators contend that lawyers compromise the mediation process by jealously viewing it as an intrusion into their domain of competence.  They also argue that lawyers cannot adapt “professionally to a situation of controlled and defused, rather than polarized and contentious, conflict.”

 Lawyers’ Views of Mediation

These lawyer attitudes found expression in some recent research.  Beginning in 2000, Julie Macfarlane, a Canadian law professor, analyzed forty lawyers working in Torontoand Ottawa on their attitudes about a new rule requiring mandatory mediation of commercial cases.  She developed five “ideal types” to characterize the comments of the lawyers.  

The “pragmatist” viewed mediation as an extension of the adaptive settlement role these trial lawyers played before courts required mediation.  Mediation, they believed, offered an early opportunity to assess and prepare a case, to limit the rising costs of litigation, and to provide to business clients the rapid resolutions of disputes they sought.   Yet, these lawyers still saw themselves as taking the lead in the mediation process.

“True believers,” another group indicating positive attitudes towards mediation, used quasi-religious metaphors to talk about how mediation had affected their orientation to practice strategies and conflict resolution.  They felt “converted” or “transformed” in the ways they sought to meet clients needs and expectations and in identifying the changes they had experienced personally and professionally.  They viewed mediation as a new form of adversarial process and recognized the distinct skill set it required.  

A true believer often ensured that his or her client played an important role in the mediation process.  They were more likely to use non-lawyer mediators who could handle and appreciate the heightened emotions of the parties to the disputes.

The “instrumentalist” used mediation simply to advance the client’s unchanged adversarial goals.  The instrumentalist either used the tool strategically to fish for information or to reduce the expectations of the opposing party.  The lawyer played the dominant role in the process.  He was more likely to use an evaluative mediator and was surprised if the process resulted in non-monetary or integrative, rather than distributive, solutions. 

The “dismisser” regarded mediation as the latest fad, offering little over traditional unassisted lawyer-sponsored negotiation.  He acknowledged that mandatory mediation required earlier preparation of the file, but viewed this development as an intrusion on his or her autonomy and control.  The dismisser often viewed the utility of the mediation process as providing a “reality-check” for his unruly client or for opposing parties who, at least from his viewpoint, were poorly represented.  The dismisser sought evaluative mediators with judge-like authority. 

Finally, the “oppositionist” viewed mediation as a danger to the legal system, to the role of adversarial dispute resolution, and to his or her role as a winner-takes-all advocate.  He or she viewed mediation as a response to government inefficiencies and court back-logs.  He or she viewed mediators as unskilled and manipulative.  Accordingly, mediation felt risky for him or her because of the perceived loss of control. 

 Several factors seemed to affect these attitudes.  Lawyers who had had more experience in mediation tended to view it more favorably.  Also, when the leadership in the local legal community strongly supported mediation, lawyers in that community also tended to show more support for the process. 

In addition, attitudes of lawyers reflected the attitudes of the businesses or industries from which they drew their clients.  Some of those clients were more litigious and some more settlement-oriented.

Macfarland asked whether we could expect to see, over time, more convergence in the attitudes of lawyers.  With time, they would participate in more mediations and become more aware of the different skill set mediation requires that is distinct from the traditional positional bargaining skills they already have.  At the time of the research, one lawyer explained: “I’m still at a loss as to what role I really play.”

A recent study by the ABA Committee on Dispute Resolution examined what factors affect an attorney’s advice to clients to try ADR.  At least sixty percent of the 2,330 attorneys surveyed had served as an advocate on behalf of a client in a case using ADR or they had served as a third-party neutral. 

The survey concluded that if an attorney had any experience with ADR, he or she was much more likely to recommend ADR to a client.  The article concluded by recommending that more attorneys be encouraged to participate in ADR, with the message of the study seeming to be “try it, you’ll like it.” 

A study conducted in 2001 of Arizona lawyers, most of whom had tort or personal injury practices, showed that lawyers were less likely to discuss ADR options with their clients or opposing counsel if they were less familiar with the processes.  Attorneys who expected mediation to produce earlier and satisfactory settlements also thought the benefits of ADR outweighed any costs associated with the processes.  Less knowledgeable attorneys were less likely to believe that ADR would produce benefits for their clients. 

Taken together, the studies suggest that mediation conducted by skillful mediators sells itself.  Over time, lawyers who have good experiences in mediation and feel competent in the new process will recommend its use to clients.  The research may also suggest that as lawyers become more skillful in the process they may be less reliant on mediators offering evaluative or judge-like styles.

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original are omitted in this blog posting). 

Wisely Choosing a Mediator: Process Skills, Expertise, and More on Style and Approach

I want to continue my discussion of how best to choose a mediator.  I started the discussion here.  This posting will focus on a few more factors to consider.  

Mediator's Process Skills and Expertise

 Mediation skills do not come naturally to any of us.  Some people call mediation an art.  Some people call it a craft.  Mediators acquire their skills through hard work and hands-on experience.  Good mediators spend their spare time reading books about interest-based negotiation, mediation and conflict resolution.  We do pro bonowork to gain additional experience early in our mediation careers when no one will hire us.  So don’t be afraid to ask how many mediations the mediator has done and the nature of the disputes she has mediated.  You might even ask about her settlement rate.  But you should “avoid at any cost [a mediator] whose only goal is to achieve an agreement.” And “[b]e wary of a mediator who overstates the advantages of mediation.”

            Mediators learn listening, paraphrasing, reframing and astute questioning skills.  Our questions can be probing, but as non-threatening as possible.  Mediators learn techniques to facilitate communication between the parties.  We develop a firm understanding of the stages of mediation, but also demonstrate flexibility in handling the mediation agenda.  Mediators can explain the process clearly and effectively to the parties. 

            Mediators gain sensitivity to the needs of parties for equality, respect, security, face and safety.  We learn to spot and deal with high conflict personalities.  We understand the psychological barriers to negotiation.  And the really good mediators handle emotional expressions skillfully without cutting them off prematurely.  We know if, when and how to engage in joint sessions and private caucus with parties.  We know the rules of confidentiality.  We also know and adhere to the aspirational or ethical guidelines that apply to our practices and we practice consistently with the most rigorous set of ethical rules. 

Mediator's Legal and Substantive Experience

Some people believe that only attorney-mediators or retired judges serving as mediators should mediate litigation-related disputes.  These comments begin to frame one of the debates about the qualities of the most effective mediators.  Many parties assume that the mediator should have substantive expertise, with the ability to do very rigorous case evaluations or legal reality testing.  They argue that these mediators possess intimate experience with juries, know the judges in which the dispute is pending, and have personal knowledge of the legal issues and recent verdicts that may affect a party’s negotiating leverage.   Judges and well-respected lawyers may also provide the high status or authority parties seek.

If you seek this sort of expertise, then you are looking for a mediator who possesses great credibility and reliable analytical and evaluation skills.  You will probably want to ask the mediator what type of legal practice he or she has and how many years of experience the attorney has in that practice area.  How much trial experience does the attorney-mediator have?   How many mediations in the relevant subject-matter area has she done?  When the judge was on the bench, what was the nature of the caseload he handled?  Does the judge have a disposition and personality that is appropriate for the mediation context? Can he successfully shift from an adjudicator’s behavior to a mediator’s behavior?

Similarly, if the dispute involves a highly specialized or technical nature – like construction, environment, securities, computer technology, child custody, tax, or insurance coverage -- you may want to hire an engineer-mediator, biologist-mediator, broker-mediator, computer scientist-mediator, therapist-mediator, accountant-mediator, or claims manager-mediator.  You would ask that prospective mediator similar questions about his or her subject-matter expertise.   

One writer suggests that lawyers choose other lawyers and retired judges as mediators simply because it is their way of adapting an otherwise unfamiliar process to “look like something that is more familiar to them.”  Another commentator says: “Many advocates, especially lawyers, insist that subject-matter expertise is not only important but imperative in the mediation of their disputes.  This does not, however, explain why retired judges, who normally possess no such expertise are used by lawyers more often than other [attorney-mediators].”  However, if legal expertise were enough to carry the day in mediation, then the Microsoft mediation -- conducted by well-respected Judge Richard Posner, Chief Judge of the Seventh Circuit Court of Appeals -- should have been a great success.  Instead, that mediation is a textbook example of how the failure to master the process skills and apply a well-developed body of mediation and negotiation theory led to impasse on more than one occasion and the rejection of the deal by state attorney generals whom Posner had excluded from the process.

In jurisdictions, like Virginia, that prohibit a mediator from providing legal advice, allow the mediator to provide legal information only in highly constrained circumstances, and limit evaluations to three situations, the legal experience of the mediator is potentially irrelevant, a trap for the ethically careless mediator, and a risk to party self-determination.  The mediator, unlike an arbitrator, is not deciding the matter.  And real risks come with this highly evaluative style.  I will deal with that topic in a future article.   Another writer says: “An aggressive [presumably lawyerly] questioning style and a tendency to focus on fault and historical fact often limits a lawyer’s creative problem-solving ability and can aggravate positional behavior.”

Most mediators, including myself, will tell you that having good people skills, process expertise, and other qualities are far more important than knowledge of a particular area of law.  Even the author quoted above concedes:  “Mediation can also be successful even if a mediator is not well versed in the subject matter of a case.  In fact, a mediator who does not have subject-matter expertise but who offers an open mind could be more effective….A mediator who lacks subject matter expertise [] might provide the parties with a read on how a jury member—who most likely will not have subject matter expertise – would react to each party’s position.”  Many experts in the field, including myself, believe that non-lawyers bring backgrounds, skills and professional experience that may help the parties see the dispute in a new light.  Non-lawyers also may have better skills at handling the inter-personal relationship issues existing in the dispute and the emotions fueling the dispute.

As Hal Abramson says in his new book: “Just because someone is trained as an attorney or judge does not mean the person is qualified to serve as a problem-solving mediator.  A former judge, for instance, can successfully advance settlements by bringing to bear her vast experience in evaluating and deciding cases.  But, only a person formally trained in problem-solving mediation knows the nuanced structure of the mediation process and the refined techniques of mediators.”    But a short time later, Abramson concedes: “You are better off with a mediator who has some substantive understanding of the dispute.  However, you should unambiguously instruct the mediator to not give any substantive opinions, unless both sides specifically request the mediator to do so.”   He believes a mediator with some substantive knowledge can perhaps “hit the ground running,” better understand what is really at stake, and can more credibly communicate with the parties and their lawyers.  But Abramson cautions that a knowledgeable attorney-mediator may have extreme difficulty hiding his opinions and so may exhibit conduct in the mediation that undermines his neutrality or the parties’ perception of his neutrality.

If I were looking for a mediator, I would find someone with substantial process knowledge and skill, who had solid training and extensive hands-on experience before I would hire a less experienced attorney-mediator or retired judge-mediator.  In a perfect world, the mediator would have significant process and substantive expertise, and would know when to leave the substantive expertise out of the mediation.  This discussion should again highlight how selection of the mediator must consider the specific facts and circumstances of a particular dispute.

Mediator's Style or Approach

            In an earlier posting found here, I discussed the different mediator styles or approaches.  I won’t repeat that discussion here.  However, Woody Mosten has yet another tool for considering a mediator’s style or approach – the Mediator’s Abacus.  Envision a 12-wire abacus.  The “x’s” represent beads on the abacus wires indicating how a particular mediator might characterize himself or herself on the indicated approaches to mediation.  Thus, a lawyer-mediator is more likely to focus on the facts and law of the dispute rather than on the therapeutic, psychological, or emotions aspects of the dispute.  He may co-mediate about as often as he conducts solo mediations.  She will have a brief intake process with little documentation.  He may advise the parties to consult with lawyers as often as they like during the process, and he may ask them to have an attorney review any draft agreement before they sign it.  And, so on. 

Therapeutic_________________________________x_______Just facts and law

Co-Mediator__________________x_____________________Sole mediator

No intake process_________x__________________________Lengthy intake process

No intake documentation___x__________________________Lengthy documentation

No consulting lawyers________________________x_______Lawyers required

No lawyers at sessions________________x_______________Lawyers present

No solutions suggested____x___________________________Solutions recommended

Memorandum not binding___________________________x__Binding agreements

Multiple short meetings____________x___________________Long single sessions

Voluntary Participation____x___________________________Mandetory/court-ordered

Caucus_________________________________________x___All joint sessions

            Again, the style or approach of the mediator is an especially important factor to consider when choosing a mediator. 

This article first appeared in the St. Louis Lawyer, April 2005, reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm.

Wisely Choosing a Mediator: Factors to Consider

Most states do not license or certify mediators.  They do not require a minimum level of training, continuing education, background checks, or character and fitness reviews.  In most states, a person who has lost his or her professional license in one area can nonetheless (and easily) open shop as a mediator.  Most states do not have standards of ethics that apply to all mediators and no grievance procedure allowing a client who believes something has gone terribly wrong in the mediation to report the wrongdoing.  Most states do not have the authority to sanction or otherwise prevent the activities of rogue mediators.

A few states have standards of ethics and some entry barriers to the profession consisting primarily of minimum training requirements.  In Missouri, a person can become a “Rule 17 qualified” mediator with less time spent in training than he or she spent watching TV the same week.  But even these ethics rules and modest training requirements typically only apply to mediators who seek to be listed on mediator rosters in court-connected mediation programs. 

In other words, just about anyone can hang up a shingle advertising his or her ability to conduct private mediations.   For lawyers and clients and other mediation parties, this information should tell you that the “buyer [must] beware.”  You need to take the time to choose your mediator wisely and with care.  Mediators vary greatly in skill, training, experience, and temperament.  Parties choosing a mediator must approach the task on a case-by-case basis, considering the facts, emotions, relationships, and law of the dispute as they may affect the attributes you need in mediator.

A good mediator can enhance the likelihood the parties will reach agreement.  A bad mediator will impede the settlement process and may undermine the parties’ relationship, as well as their confidence in the mediation process as a means for resolving future disputes.  Bad mediators will cost the parties additional time and money. 

Several years ago, I read all (yes, all) the advisory ethics opinions and grievance filings involving mediators issued by the ethics panels in Florida.  It brought home to me that a lot of sloppy mediation occurs that affects the core values of mediation: impartiality of the mediator, confidentiality of mediation communications, and party self-determination.

Factors to Consider in Choosing a Mediator

The Judicial Council of Alaska developed an easily accessed and well-informed guide for choosing a mediator.   It describes (1) the qualifications a mediator needs; (2) what makes a mediator competent; (3) the five steps it recommends in choosing a mediator and (4) additional resources.  

The Mediation Council of Illinois also developed a set of ten interview questions parties can pose to prospective mediators.  The questions ask about the mediator’s training -- both quantity and quality, whether he or she has had  any hands on mentoring, supervision or internship training, whether the mediator continues to “sharpen the saw” by attending continuing education programs and mediation-related conferences, and whether she consults regularly with other, more experienced mediators.  The questions then turn to the mediator’s level of experience:  How many mediations has the mediator done, overall and in the particular area of practice that relates to the dispute?   What percentage of the mediator’s professional life is devoted to mediation?  

It then turns to the mediator’s style or approach, which I discussed here.  Next, the interview considers the honesty, integrity and professionalism of the mediator by asking about any ethics complaints filed against him or her, whether the mediator belongs to mediation-related organizations like the Association for Conflict Resolution, the Association of Attorney-Mediators, or state mediator organizations, and whether the mediator provides pro bono mediation services as a community service.   It asks for roster listings, which reflect some measure of confidence expressed by third-parties in the mediator.  It also asks whether the mediator carries liability insurance for his or her mediation practice.

These two easily accessed tools provide a place to start your investigation.  And good mediators will not hesitate to respond to any question about his or her professional background.  But I recommend an even more thorough analysis.

Personal Qualities of a Good Mediator

My last posting, here, called Qualities of a Good Mediator and the Lessons New Mediators Learn, surveyed the thoughts of a number of conflict resolution experts about the personal qualities of effective mediators.  

Mediator's Availability and Affordability

            

Often, the well-respected mediators are booked months in advance.  Accordingly, the parties must determine if they can endure the wait.  If not, a rising star with a more open calendar will be the better choice.

Parties often pursue mediation because it tends to be less costly than litigation.   Parties can choose from no-cost or low-cost community mediation projects.  Or, they may engage private mediators who will charge $100 to $300 per hour.  Some mediators charge $1,500 to $3,000 per day, or charge according to the number of parties, the complexity of the case, or the money demand made in the complaint. They may charge cancellation fees.  They may charge pre-mediation fees related to intake or background phone calls or the review of papers or briefs.   

Mediators should not hesitate to discuss fee issues.  Most ethics codes, whether aspirational or mandatory, require the mediator to disclose all fees and costs in the mediation agreement, a retention letter, or the mediator’s opening statement. Most ethics codes also preclude contingency fees and referral fees because of their potential affect on mediator impartiality.  These codes may also instruct mediators to return any unused fees.

Mediator's Certification or Roster Status

Most courts will not allow mediators to mediate cases pending in the courts without some assurance the mediators meet basic training requirements.  Whether a mediator is certified, qualified, or rostered may offer some assurance that he or she has at least some minimal level of training.  

In Virginia, where I now live, entry level mediators (essentially small claims mediators) must have 20 hours of training, including two hours of ethics training.  They must also take a four-hour course on the Virginia judicial system.  Persons wanting to do more complex court-connected civil mediations need an additional 20 hours of training.  Family dispute mediators must have 32 additional hours of training in family systems, the social, emotional and psychological aspects of custody and visitation issues, an understanding of the grounds for divorce, parenting issues, support issues, property issues, debt and bankruptcy issues, tax issues, and the use of experts in mediation.  They must also take an 8-hour course giving them some expertise in screening for and addressing domestic abuse.  Virginiare-certifies mediators every two years after they show additional experience and training.  The court also requires observations and co-mediations with a certified mentor as part of the training program.  The requirements are summarized here.

In contrast, Missouri Supreme Court Rule 17.04 requires only 16 hours of basic training for mediators.  By comparison, I now have over 3000 hours of training.

When choosing a mediator, you should ask for the mediator’s list of training programs.  Most well-organized mediators keep an updated list of all the training programs they have attended.  You should then attempt to assess the quality of the trainers.   Training quality depends on the hands-on experiences offered the trainees and the quality of the feedback provided by the trainers.  Hal Abramson says:  “Information on the quality of training programs can be difficult to acquire by the newcomer although the information is widely known to dispute resolution professionals.  You should ask around.”  The Association for Conflict Resolution lists approved family mediation training programs by provider and state.  To be listed, the program must provide fifteen training outcomes.

You may also want to evaluate the quality of the mediator’s other professional training as a lawyer, therapist or accountant, for instance.  Does he or she have any specialized degrees.

And finally, does the mediator, in turn, train other mediators?  Is he or she well-recognized in the field for his or her training work?

I'll discuss additional factors in the selection process in my next posting. 

This article originally appeared in the St. Louis Lawyer, April 2005, reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm (footnotes in original are omitted in this posting). 

The Who of Mediation: Mediator “Styles” and Riskin's New Grid System

A decade after his first “grid” article, described in my last posting here, Professor Len Riskin looked again at the question of mediator style, orientation, or strategies.  Perhaps influenced by his 20-year experience in mediation, or by his understanding of “living in the moment” derived from his mindfulness meditation practice, or perhaps because of the increasingly shriller debate about which style was “best,” he took a more nuanced and fresh look at the original grid.  See Leonard Riskin, Who Decides What? Rethinking the Grid of Mediator Orientations, 9 No.2 Disp. Resol. J. 22 (2003).  

He now suggests, I think, that we mediators should be gentler with each other.  Instead of labeling ourselves and each other (bad, bad evaluator or flakey, inefficient facilitator, or weird transformative mediator), mediators can ask instead what the parties need in the moment.  Mediators can also listen better when the parties ask us for what they need in the moment.  He suggests that we consider the interventions or actions that mediators take during a mediation as if they were a series of frames in a motion picture.  In each frame, what is the mediator doing and why?  In that moment, what approach is the mediator taking?   What strategy or technique is the mediator employing?   What orientation is the mediator exhibiting?  In the moment, is that choice effective?  If not, what happens in the next moment? If so, what opportunities did the intervention create in the next moment?   The mediation process gains through this analysis a dynamism both in practice and theory that we may have missed before. 

The new Riskin system asks whether the mediator is using a strategy, style, technique, approach, or orientation – in that moment – at her own direction (mediator influence) or at the invitation of the parties (party/lawyer influence).   During any mediation, the answer to that question will depend on the needs of the moment.  Even the most evaluative mediator will have moments of highly facilitative interventions.  Even that mediator will have moments when he or she will focus on emotion or the need for the parties to empathize with each other, or truly understand each other’s perspectives.

As Riskin explains, by example: “At [one point on the grid evaluating problem definition], the mediation is focused on a narrow problem and nearly all of the influence to develop the problem definition has come from the mediator.  At [a second point on the grid], the mediation has a broader scope, and although the mediator’s influence in determining that problem definition still predominates, the other participants also have experienced some influence.  At [a third point on the grid], the participants have influenced the development of a broader problem definition.”  Id. at 25. 

Riskin further developed his new grid system over a series of articles: <>.  The field now identifies the two approaches as directive (mediator influence) and elicitive (party or lawyer influence). 

Lawyers, mediators, or scholars could develop additional grids relating to each meta-process in the mediation:

• Will the mediator request pre-mediation submissions (yes, because she finds them useful, therefore disclosing a directive mediator influence); 
• Will she focus only on the legal positions of the parties and not consider underlying interests (no, unless the lawyers explain that they want something more akin to early neutral evaluation, therefore disclosing lawyer influence); 
• Will she use caucus (no, because she has decided that the best work occurs when the parties are together, therefore disclosing directive mediator influence); 
• Will she make a mediator’s proposal when the parties cannot close the gap (yes, but only as a last resort and only if the parties request it, therefore disclosing shared mediator and party influence)?    

Lawyers and clients could also use these grids, Riskin suggests, to determine pre-dispositions toward influence – theirs and the potential mediator.   This knowledge would help lawyers choose the best mediator for the particular dispute involving particular parties.  Id. at  25.   They would know in advance, for instance, that they wanted an evaluation of the legal case. They could then choose a mediator willing to provide that evaluation.

Riskin’s new grids (one no longer suffices) focus on behaviors in the moment and over time rather than on labels that apply to the mediator throughout the mediation interaction.   Yet, again, Riskin has enlivened the debate over mediator styles by providing these new analytical tools.   Lawyers and clients can use them to participate in mediation at a much more sophisticated level and with more control over the process -- if they wish.

This article first appeared in the St. Louis Lawyer, Oct. 2004, and was reprinted in The Insurance Receiver, Spring 2005, at 11 and at Mediate.com at http://mediate.com/artilce/young15.cfm Footnotes in the original are omitted in this posting). 

The Who of Mediation: A New Look at Mediator “Styles”

In 1994, Len Riskin, then the C.A. Leedy Professor of Law at the University of Missouri-Columbia and Director of its Center for the Study of Dispute Resolution, inadvertently started a great debate about what “style” of mediation was “best.”  When he published the article entitled, Mediator Orientations, Strategies and Techniques, 12 Alternatives to the High Cost of Litigation 111 (1994), he described four styles of mediation based on how broadly the mediator defined the problem presented by the parties (and thus the depth of intervention the mediator was likely to take) and the role of the mediator -- either facilitative or evaluative.  According to this analytical scheme, a mediator could be: narrow/facilitative, narrow/evaluative, broad/facilitative or broad/evaluative.  

The two-dimensional grid based on this analysis supposedly predicts the strategies each type of mediator is likely to use, and, Riskin thought at the time, the amount of self-determination the parties would have in the process.  SeeLeonard L. Riskin, Who Decides What? Rethinking the Grid of Mediator Orientations, 9 No. 2 Disp. Resol. Mag. 22 (2003).  This analytical scheme came out of an invitation from a Kansas Citylaw firm whose partners hoped its lawyers would participate more effectively in mediations by, among other things, making more skillful choices about which mediator to use.  Id.at 22. Unexpectedly, the Riskin grid -- as it quickly became known – began to polarize the mediation community.  It led to the labeling of mediators. 

On the problem definition dimension of the original grid, a mediator who defined the problem narrowly would consider and help the parties resolve only the litigation-related issues.  If the mediator defined the problem increasingly more broadly, he or she might next consider business interests, then personal, professional or relationship interests, and finally community interests involved in the dispute.

Facilitative Mediation    

The other dimension of the grid focused on the role of the mediator and identified two roles or styles of mediation: evaluative and facilitative.  One can look at these two styles from several perspectives: their focus, goals, processes used, and outcome orientation.  According to several authors, facilitative mediation -- the style of mediation most frequently taught to new mediators -- focuses on providing the parties consensus building process-skills.  Mediators using this style assume that the parties are intelligent and capable and that they understand better than any mediator ever could the dispute and possible resolutions of it.   Mediators using this style intend to enhance the participation of all parties involved in the mediation, generate party-to-party discussions, and reopen and improve channels of communication.  They also use techniques designed to identify each party’s interest and needs underlying their hardened positions, help the parties evaluate unreasonable expectations, and help the parties identify solutions to the dispute through brainstorming and option generation techniques.  Facilitative mediators generally show a preference for joint sessions rather than caucus and reserve caucus for times when the parties can not talk to each other face-to-face.  The mediator remains responsible for the process, but not for the outcome. 

Evaluative Mediation

Evaluative mediators are often defined as focusing on the substance of the dispute. They assume the parties need more help in assessing or predicting litigation outcomes and formulating solutions to the dispute.  The techniques of evaluative mediators often include review of the underlying legal documents, assessment of the law or facts underlying the dispute, and active participation in the resolution of the dispute through case evaluation, the prediction of outcomes at trial, or other substance-oriented assistance.    Often, these mediators use more caucuses, in which the mediator attempts to convince the parties to accept a recommended solution. They often apply pressure to settle. They typically control the expression of emotion as not being helpful or as actually hindering the process.   The style looks a lot like shuttle diplomacy and makes the mediator more responsible for correctly translating for the other party the verbal, non-verbal, emotional, and psychological communication of the other side expressed during caucus.  These mediators see themselves as “dealmakers” willingly deciding what is best or “fair” for the parties.  One author suggests that most evaluative mediators are lawyers or retired judges who tend to “revert to their default adversarial mode, analyzing the legal merits of the case to move towards settlement.”   He suggests this “legalized” style is more akin to early neutral evaluation or non-binding arbitration.  Douglas Noll, Peacemaking: Practicing at the Intersection of Law and Human Conflict 91-92 (Cascadia  2003). 

Even these short descriptions show how quickly this debate becomes one of stereotypes.  Less skillful mediators, some argue, used the more heavy-handed evaluative style.  On the other hand, only touchy-feely people wearing Birkenstocks are truly facilitative.  For a more comprehensive discussion of these styles seeLeonard L. Riskin, Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed, 1 Harv. L. Rev. 7 (1996); Kimberlee Kovach & Lela Love, “Evaluative” Mediation is an Oxymoron, 14 Alternatives to High Cost of Litigation 31 (1996).  Noll, supra at 86-89, 91-99; Charles Craver, Mediation: A Trial Lawyer’s Guide, 35 Trial 37 (June 1999).

Transformative Mediation

The style discussion got even more complicated when, in 1994, R. Baruch Bush and Joseph Folger published a book entitled The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (Jossey-Bass 1994).  Bush and Folger introduced the concept of yet another style of mediation known as the transformative style.  The focus of mediators using this style is on relationship-building.  A mediator using this style views the primary goal of the process as allowing parties to experience moral growth.  Settlement itself is not the principle goal.  The mediator seeks to generate mutual respect between the parties and to get each party to truly appreciate the interests and viewpoints of the other party.  These mediators see conflict as an opportunity to transform people from fearful, defensive, and self-centered beings to confident, responsive, and caring beings.  These mediators hope to transform the parties into relatively self-sufficient problem-solvers so they can resolve future controversies that arise between them.  The mediator consciously avoids judgments about the parties’ views or decisions, including whether they are “fair.”  These mediators cede control of the process to the parties, allowing the parties to make process-related decisions, including the need for any ground rules.  They also allow for expressions of emotions.  These mediators care very much about the empowerment and recognition of the parties.  Noll suggests that the transformative mediation process is not another style, but an orientation to outcome, joined by two other orientations: the problem-solving orientation and the narrative orientation.  Noll, supra at 100-106.

The problem-solving orientation focuses on solving problems (duh) and reaching a settlement of the dispute.  This orientation sees conflict as a clash of interests and needs, as generally described by Roger Fisher, William Ury and Bruce Patton in Getting to Yes (2d ed., Penguin 1991).  The focus of this orientation is to search for common interests and to look for ways to satisfy the parties’ interests and needs in a collaborative way that “expands the pie,” if possible, or looks for value creating trades.  Its opposite approach is the distributive-adversarial-positional form of negotiation.   Noll suggests that this overall orientation is then further subdivided into the bargaining mode and the therapeutic mode based on an analysis by Susan Silbey and Sally Merry, Mediator Settlement Strategies, 8 Law and Policy J. 7, 12-19 (1986).    Under the bargaining mode, the mediator claims substantive expertise in law and adjudication.  He or she may achieve settlement by criticizing the litigation system for its cost, inefficiency and unpredictability.  Mediators using the therapeutic mode, in contrast, claim substantive expertise in managing interpersonal relationships.  The therapeutic mediator “focuses on emotional concerns, criticizing the legal system for its tendency to ignore emotions and destroy relationships.”  Noll, supra at 101. 

Narrative Mediation

The narrative mediation orientation finds its description in John Winslade & Gerald Monk’s,  Narrative Mediation: A New Approach to Conflict Resolution(Jossey-Bass 2000).   These New Zealand mediators suggest that reality is constructed from people’s conversations or discourses with each other. Id. at 41-44; Noll, supra at 104.  Conflict, according to this orientation, is normal and expected.  The mediator helps the parties construct a new narrative about the conflict that reframes the parties’ perception about it so they can solve the dispute collaboratively.  Id.   The orientation assumes that conflict reflects culturally created perceptions of unmet needs. “Problems are seen as constructed within a pattern of relationships, and social context is the key to understanding self and identity.”  Noll, supra at 104.  The mediator helps the parties change the context of the dispute to a new one in which new choices become possible for the parties.  The mediator searches for an outcome defined as a new reality without the conflict-laden story.  Id.at 106.

Trashers, Bashers, and Hashers

Even before Riskin developed the first grid, another scholar put mediators into three categories: the trashers, the bashers and the hashers.  James Alfini, Trashing, Bashing and Hashing it Out:  Is this the End of “Good Mediation”?, 19 Fla. St. U. L. Rev. 47, 66-73 (1991).   Trasher mediators, often experienced trial lawyers, “spend much of the time ‘tearing apart’ the cases of the parties.” Id.at 66.   The technique discourages direct party negotiations.  After this trasher process, the mediator suggests to the parties more “realistic” settlement options.

Basher mediators, according to Alfini, focus on the opening settlement offers the parties bring to the mediation.  The basher then attempts to move the parties to a number somewhere in between the original offers.  Most bashers are retired judges “who draw on their judicial experience and use the prestige of their past judicial service to bash out an agreement.”  Id.at 69.   Trashers and bashers will likely keep the parties in mediation until they reach a settlement.

The hashers, in contrast, encourage party-to-party negotiation.  One described himself using these terms: “[f]acilitator, orchestrator, referee, sounding board, scapegoat.”  Id.at 71.  The hasher is less likely to keep the parties at the table if one of them expresses a desire to leave.  Id. at 72.  “Flexibility is the hallmark of the hasher style of mediation…they are willing to employ trasher and basher methodologies if they believe it to be appropriate in a particular case.”  Id. at 73.     

Perplexed?  You betcha.  Especially if you, as a mediator, saw your interventions as far more complex and variable.

In my next posting, I'll explore the new grid developed by Riskin that better conceptualizes the role of a mediator. 

This article first appeared in the St. Louis Lawyer, Oct. 2004, and has been reprinted in The Insurance Receiver, Spring 2005, at 11 and at Mediate.com at http://mediate.com/artilce/young15.cfm.