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Mediation process can
save money, educate and even patch up relationships By MICHELLE
PENTZ-GLAVE |
Mediator Philip Crump practices |
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Contractor John Doe installs
a $5,000 roof on your house, and two weeks later it's leaking like Niagara
Falls. A divorcing couple can't agree on how to divide their assets. Five
siblings are fighting about who will care for an elderly parent. Time to call an attorney?
Perhaps. But that could cost thousands and take years to resolve. More and more Santa Feans
are opting instead for mediation - a voluntary, democratic and confidential
process led by a trained professional who helps disputing parties try to work
out a mutually acceptable agreement. Mediation differs from
arbitration, where a judge or qualified official makes the final decision
based on the evidence presented; or litigation, where attorneys representing
opposing sides argue the case - in public - before a judge or jury. There are more than 20
mediators working in Santa Fe. "It's like massage
therapists; there (is an abundance) of mediators in town," said Columbia
Mediation Associates' Paul Glickman, who has been a mediator since 1983.
"I think it's because Santa Fe is a town open to alternative methods of
process. This is an alternative to the legal system, which a lot of people
are uncomfortable with or even downright angry with." Mediation also offers
feuding parties privacy. In the informal model,
they sit down with a mediator who helps them communicate and perhaps reach a
resolution. Some mediations are face-to-face. In others opposing sides sit in
separate rooms and the mediator shuttles back and forth. "The mediator really
should be neutral," said Maria Breheny, assistant director at Santa Fe
District Court's Family Court Services. "That makes it an empowering
process, because you maintain control." The session, or sessions,
might yield a written document. "We don't tell
clients what to do," said Philip Crump, a private mediator for the past
decade. "I try to create a safe place so people can say what needs to be
said in ways the other person can hear. "Part of what we do
is train people in more effective ways of communication. And that's a
valuable thing." Formal mediation first
emerged in the 1970s and came into its own in the 1980s, according to Sharon
Pickett, senior associate at the Washington, DC-based Association for
Conflict Resolution, which represents 7,000 members. In 1998 Congress endorsed
the practice by passing an act requiring federal courts to adopt official
"alternative dispute resolution" programs. Nationwide the method has
grown dramatically, according to the association: *Mediation programs on
college campuses grew from 18 in 1990 to 220 by 1999. *Ten years ago there were
an estimated 150 community mediation centers. Today there are more than 550. *In 1998, 88 percent of
U.S. corporations said they had used mediation, according to a
PricewaterhouseCoopers/Cornell University survey. "Across all levels
of society, people are recognizing they don't have to fight things out in
court," Pickett said. Acceptance is growing in
New Mexico. Over the past six years membership in the New Mexico Mediation
Association has increased eightfold to 125, association president JoEllen
Howarth said. Mediation began gathering
momentum in the late '80s and early '90s in Santa Fe and Albuquerque.
Howarth, who runs a successful city alternative dispute resolution program in
Albuquerque, said that in 10 years, 200 city employees have trained as
mediators. Faith Garfield, who
co-founded the New Mexico Center for Dispute Resolution in Santa Fe in the
early '80s, said Albuquerque always has had a strong mediation effort in the
municipal courts. "I hope to see more of that in Santa Fe," she
said. Since 1987 Santa Fe's
District Court has required couples unable to make their own arrangements for
child custody (after an initial workshop) to attend a mediation, either with a
private mediator or one of the five at Family Court Services. In the '80s Santa Fe
Public Schools introduced peer mediation for elementary through high-school
students. Mediators can assist in
many kinds of conflicts: workplace, landlord/tenant, construction, business,
environmental, divorce, family, victim/offender and labor. There are group
mediators and community mediators. Because the field is
relatively new, mediators join the profession from various backgrounds:
social work, law, education and others. Crump, for example,
worked in construction for 20 years before switching to mediation. Some states provide
professional mediator licensing, although New Mexico does not; and although
no formal degree program exists, several organizations offer training. The University of New
Mexico requires its law students to take a class on mediation. In fact many
Santa Fe mediators say they get regular referrals from attorneys. "A lot of lawyers
encourage their clients to get a settlement right now on their own terms
rather than taking two years getting to court and spending a lot of money
when the outcome is unpredictable," Crump said. "One attorney told
me, 'Let me handle the law. You handle the fight.' " Typically nonlawyer
mediators here charge from $50 to $125 an hour and both sides split the cost.
The number of one- or two-hour sessions required varies depending on
circumstances, said Garfield. The good news, the pros
say, is that more than 80 percent of mediation cases are resolved - largely
because people come to the negotiation table voluntarily. But not every case is a
good candidate for mediation, the professionals point out. Participants must
be ready to try. Groups whose views are too polarized might not come to a
solution. And anyone inebriated or on drugs is not fit to take part in a
constructive mediation. Neither Garfield nor
Glickman takes physical-abuse cases. "When someone is in
fear of life and limb, you cannot work things out," Glickman said.
"The balance of power is too out of whack." The job of mediator
requires great patience, listening skills, a sense of humor, and the ability
to instill trust and express understanding while maintaining emotional
distance. Sometimes just getting or
keeping one party in the room is the biggest hurdle. Glickman said three
elements are important: keeping clients on track; recording what they say as
a final agreement; and making dates when things promised actually should
happen. In some cases, Crump
said, mediation works magically, whereas in others "it can crash and burn." "The challenge is
resisting the urge to take clients out behind the woodshed and tell them to
get a life, get over it," he said, laughing. "The big
underpinning of mediation is that people honor agreements they've made
themselves." Contact Philip Crump
at (505) 989-8558 or philip@pcmediate.com |
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