Peace Be With You … And With You?

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Exclamation_markUnder the heading of hard bargaining tactics gone bad (and bad lawyer advice), we can now add this story.  When a group of eight faculty members at the General Theological Seminary in Manhattan decided to stop working in order to protest their newly hired dean and president, Rev. Kurt H. Dunkle, all purgatory broke loose. Under advice of their counsel, the faculty wrote a rather strongly worded letter outlining their demands regarding the dean.  (See the nasty details of the dean’s behavior here.)

Unimpressed with the tone of the letter, the Board of Trustees for the Seminary considered the letter, instead of the opening bid that the faculty intended, as a mass resignation.  They dismissed the eight faculty members (leaving the students at the Seminary with only two instructors.) In this case, the eight faculty members’ hard bargaining tactic to have their foul-mouthed, micromanaging (in their descriptions) dean dismissed ended up focusing attention on their perceived “bad” behavior rather than that of their dean. Read more »

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eMediation–Marquette Students Rock

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Category: Marquette Law School, Mediation, Public
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MediationIn a new competition hosted by Cornell University this past fall, students tested out their skills at dispute resolution over the internet. We finally received the results in December so my apologies for the delay in singing our praises.

Students could choose to play the role of the plaintiff, defendant or mediator in a mediation that was completely conducted via email. Judges then graded their performance using the transcript of the mediation. I encouraged students to participate as part of the ADR class and was delighted with the results. While we all learned more than we wanted to about technical glitches, I hope the experience was educational as well. And, impressively, Marquette students dominated the competition.

As mediators, we placed 1st (Jill Aufmuth) 4th (Jillian Dickson-Igl) and tied for 5th (TJ Wendel). As defendants, we placed 1st (Tea Norfolk), 3rd (Alexander Golubiewski), 4th (Heather Hough) and 5th (Marcus Hirsch). And, as plaintiffs, we tied for 1st (Ryan Session and Dillon Raunio), placed 2nd (Casey Shorts and Frederick Hostetler), 3rd (Kelsey Burazin and Kyle Silver), 4th (Paul Gunderson and Ryan Ybarra), and 5th (Adam Gilmore and Antwayne Robinson). Another way to measure how well we did is that out of the 17 teams that placed, 12 of those teams were from Marquette. A very impressive record!

My congratulations to all the students that placed and appreciation to all those ADR students who participated. Well done.

 

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Restorative Justice Conference: “Grief Is Inevitable; Misery Is Optional”

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Category: Criminal Law & Process, Marquette Law School, Mediation, Public, Speakers at Marquette
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There is no way the legal system – or anyone else — can undo the terrible wounds left on people who have had a loved one murdered. But can the system or those involved in different aspects of it help survivors of a murder victim go forward in leading their lives?

That was the underlying question at the remarkable and emotionally intense 2013 Restorative Justice Conference held last week at Marquette Law School’s Eckstein Hall. “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community” brought together about 200 people from Wisconsin and much of the country to examine the post-murder lives of family members.

But among the many speakers, six stood out – because, as survivors of victims, they personally had gone through the grieving and dealt with the legal system and so many other problems. Three from Texas, two from Minnesota, and one from the Milwaukee area told their searing stories in a pair of panel discussions on Friday morning, the second day of the conference. Read more »

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Restorative Justice and Mediation in Ireland

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I have the privilege this week of serving as the keynote speaker at the annual Irish Mediator’s Institute conference in Dublin, Ireland. I will talk to this professional mediation organization about the incorporation of restorative justice principles into high emotional conflicts. In this time of family, community, political, national, and international conflict and discord, the principles of restorative justice that call all of us to truly listen to those with whom we disagree, so that we can better understand the deep harm we are inflicting by our name-calling and demonizing others, can help us to recognize our shared humanity and a path to building peaceful relationships.

I will have no shortage of examples of the harm caused by our angry divisions. Whether I talk about the American presidential race, the continuing conflicts in Northern Ireland, or the harm caused by the BBC’s alleged cover-up of sexual abuse claims against a popular children’s television star, the harm has rippled out to affect thousands of people. From the family level to international relations, we see much abusive and threatening language being used instead of people sitting down and respectfully listening to each other’s perspectives and concerns. So many of us speak and act in anger without thinking about the harm that we can cause others by our actions. Restorative justice calls us to reflect about who is being harmed and to identify the nature of that harm and then to work on bringing healing to the people who have been affected.

At the Law School, my students and I have been a part of victim/offender dialogue sessions in which murderers and rapists sit down with their victims (or family members of their victims) to have exceedingly difficult conversations. These meetings always occur because a victim has made a request for that meeting. What we routinely experience is that even with people who have suffered the deepest harm, victims find some peace in having these very difficult conversations. Offenders can answer questions, express their deep remorse, and acknowledge (often for the first time) the incredibly profound harm they have caused. Victims (or survivors as many like to be called) are able to give voice to the devastation they have suffered, get answers to questions that were never addressed in the judicial system, and find some peace in the offender’s apology. Offenders routinely report that they believe answering the victims’ questions is the best thing they have ever done for someone else.

I have seen restorative justice work in almost every setting where this is conflict. The processes do not “solve” every problem, but it reminds the participants that we are all part of a human family. What we do and say matters and can cause harm or bring great joy to others. The way out of our pain and anger is not to lash out but to listen to each other “with out hearts as well as our heads.”

It will be a wonderful experience to work with the Irish mediators and to explore with them how they can incorporate restorative justice into their work.

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Victim/Offender Mediation in Turkey

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Category: Judges & Judicial Process, Mediation, Public
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After a delegation of members of the Turkish Parliament visited Marquette Law School last month, I had the privilege of traveling to Istanbul to moderate a victim/offender mediation conference for two hundred fifty Turkish prosecutors and judges. There were fourteen of us restorative justice “experts” from ten different countries who were there for three days to talk to the ballroom full of lawyers, who wanted to learn how to best implement Turkey’s already enacted victim/offender mediation process during criminal prosecutions.  It was a fabulous experience.

The United Nations’ Development Programs for Judicial Reform organized and oversaw the planning of the conference. Because the panel members came from many countries (Albania, Austria, Belgium, Brazil, Canada, Italy, Scotland, Spain, Turkey, and the United States), we had simultaneous translations of the conference into several languages. The Turkish audience was lively and eager to participate in the dialogue. Over the first two days we spent much of our time taking questions from the floor and answering them from the perspectives of different cultures, judicial systems and philosophies. The Turkish prosecutors and judges, like prosecutors and judges around the world, are working to improve the delivery of justice despite their significant caseloads. They hope that by using restorative processes that they can provide a more just system while reducing the number of cases that must go to trial.

I have a number of observations about the conference. Read more »

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Turkish Delegation Comes to Marquette Law School

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Sixteen dignitaries from Turkey, including members of the Turkish Parliament, representatives from the Ministry of Justice, and professors, spent March 1 at Marquette Law School (MULS) to learn about Wisconsin’s experiences with restorative justice and mediation. The law school’s Restorative Justice Initiative organized a meeting with them and Wisconsin Supreme Court Chief Justice Shirley Abrahamson, Wisconsin Supreme Court Justice Ann Walsh Bradley, retired Wisconsin Court of Appeals and Barron County Circuit Court Judge Edward Brunner, Milwaukee County Chief Judge Jeffrey Kremers, Milwaukee County Circuit Court Judge Mary Triggiano, United States Attorney for the Eastern District of Wisconsin James Santelle, and Milwaukee County District Attorney John Chisholm, along with other prosecutors and Wisconsin restorative justice professionals. Professor and restorative justice scholar Mark Umbreit, from the University of Minnesota Center on Restorative Justice and Peacemaking, as well as MULS Professors Andrea Schneider and Michael O’Hear, also attended the meeting. The Turkish delegation is working with the United Nations’ Development Program on judicial reforms and traveled to the United States for a week-long visit to learn about the use of mediation and restorative justice in our American court system. The group had meetings in Washington D.C. and New York and then came to Marquette University for one day. The Turkish Parliament has already incorporated Victim-Offender Dialogues into the Turkish criminal code and is working on drafting mediation legislation and part of the civil justice system. I will be traveling to Istanbul later this week to be part of a workshop on restorative justice for judges and prosecutors in Turkey.

All forty of us professionals, along with a group of my law students, met for our discussions in the MULS Conference Center. Our visitors were incredibly impressed with our wonderful new law school building and programs. Dean Joseph Kearney gave everyone a warm welcome thanking our visitors for “bringing the world to Marquette Law School.”

All of us learned a great deal from each other during the questions and answers (including those of us from Wisconsin hearing what others are doing in our own state.) Read more »

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A Jewel in Our Midst

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Category: Civil Procedure, Legal Education, Marquette Law School, Mediation, Milwaukee, Negotiation, Public, Wisconsin Civil Litigation
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Throughout the history of legal education, there has been a consistent call for greater levels of experiential learning and especially clinical education in the law school curriculum. This call has received renewed strength in the Carnegie Report released in 2007. It reminds us again of the importance of building skills for lawyering, for serving as counselors to those who seek our assistance.

Marquette University Law School, for over thirteen years, has been polishing a gem that provides our students with a rich opportunity to some of the very skills required to be an effective lawyer (you might remember the list from the first blog…communication, listening, writing, negotiation and time management, to list only the top five survey responses). This gem is the Small Claims Mediation Clinic.

The Small Claims Mediation Clinic is housed in the Milwaukee County Courthouse and provides pro se litigants an opportunity to access student-led mediation services in an effort to resolve the disputes themselves. This program was the brainchild of former Wisconsin Supreme Court Justice Janine Geske and I have had the honor and privilege to work with Janine at the Clinic for several years and have served as the faculty member for a number of semesters. Read more »

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Mandatory Foreclosure Mediation: A Good Idea?

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Category: Marquette Law School, Mediation, Negotiation, Public
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The Florida Supreme Court has ordered a review of its 18-month-old mandatory foreclosure mediation program.  Should a similar process come to Wisconsin?

In July 2011, Wisconsin had the 10th highest foreclosure rate in the United States, only four spots behind the State of Florida.  Several initiatives in Wisconsin have attempted to inject mediation into the foreclosure process, with varying amounts of success.  Purely voluntary processes are flailing – with lenders refusing across the board to even attend the voluntary mediations.  More suggestive processes are seeing varying amounts of success. Read more »

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A Plea for E.N.E.

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One of the oldest maxims in writing is to never apologize for your work.  With that said, I do need to couch this article.  I stand by my premise 100%.  However, there are always exceptions to a rule.  One of my biggest influences in mediation is a former judge, and former Wisconsin Supreme Court Justice.  I am not saying that a judge cannot mediate, but that you need to go in with your eyes open.

Too often when litigators are choosing a mediator (or even worse when a sitting judge is ordering mediation at a scheduling conference) the conversation goes something like, “So, should we use Judge X or Judge Y?”  What does being a former judge necessarily have to do with being a mediator, let alone a good mediator?

As the late great comedian Mitch Hedberg said,

When you’re in Hollywood and you’re a comedian, everybody wants you to do things besides comedy. They say, “OK, you’re a stand-up comedian — can you act? Can you write? Write us a script?” . . .  It’s as though if I were a cook and I worked [] to become a good cook, they said, “All right, you’re a cook — can you farm?”

I am certainly not the first to recognize this disturbing trend.  Read more »

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Milwaukee Foreclosure Mediation Program: Theory to Practice

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Category: Marquette Law School, Mediation, Milwaukee, Poverty & Law, Wisconsin Law & Legal System
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Andrea Schneider and Natalie Fleury have a new paper on SSRN that describes the Milwaukee Foreclosure Mediation Program and analyzes the MFMP’s design by reference to dispute resolution theory.  The MFMP responded to the ongoing foreclosure crisis in Milwaukee, emerging from an initiative involving Marquette Law School and several government agencies, elected leaders, and community organizations.  The MFMP creates voluntary mediation opportunities for homeowners and lenders in the hope of renegotiating payment terms such that both sides will benefit.  So far, the results seem impressive, with home-retention agreements reached in more than forty percent of mediations and high levels of satisfaction reported by program participants.

Andrea and Natalie conclude as follows:

The opportunity to put years of writing and work in the field to use to help out the city, state, and court system was an honor and unique opportunity for the law school. Both professors and students witnessed law school teachings put to work and had a rewarding impact in their own backyard.  It also has given us, as designers, far greater insight into the local government and local community than we would have had without this collaboration. Most importantly, mediation has worked in exactly the way that we theorized. The communication between the parties is vastly improved through the program than it would be otherwise. Parties have control over the outcomes, not perfectly, but again, much more so than they would have in the alternatives. And the program provides for efficient solutions as the city continues to struggle with foreclosures. Moving forward, we have to map student availability and interest with the needs and opportunities presented by the program. But we have witnessed the putting of theory into practice in a wonderful way while recognizing that we would have all preferred that this particular need not exist.

Their paper, entitled “There’s No Place Like Home: Applying Dispute System Design Theory to Create a Foreclosure Mediation System,” will appear in the Nevada Law Journal.

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Respecting Others’ Positions

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Category: Mediation, Negotiation
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Professor Calboli made an interesting point in her comment to one of my previous posts, where she used the phrase “respecting others’ positions.” This gave me an idea for another post. What does it mean to respect others’ positions? Values-based disputes are often very hard to negotiate and accordingly, mediators are introduced to help bridge the gap. A problem I have witnessed, at least in my work, is that mediation is overly used and valued. Consensus is sought for consensus’ sake and mediation is implemented without any regard to negotiative theory. There are times when people will not, and based on their values, should not agree. If one’s best alternative is preferable to what is offered at the table, one should walk away from the table. If one’s bottom-line cannot or will not be met, it is both self-deceptive and disrespectful to continue to push for “consensus.” Having twenty conversations in order to change the plan of care to something more in-line with what you want is not truly consensus—in some ways, it’s possibly coercive.

This does not mean people should shut down and stop working toward their goals; it merely means that people should seek to achieve their goals away from the table. Read more »

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Israel Reflections: Dinner with the Baraks

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Category: International Law & Diplomacy, Marquette Law School, Mediation, Public
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As followers of the blog know, one of the high points of our trip to Israel was dinner with Justice Aharon Barak and his wife Judge Elika Barak.  We were also joined by their daughter, Tamar, who is a mediator.  Interestingly from the dispute resolution perspective, Justice Barak was the judge who brought mediation to Israel through the Supreme Court, permitting cases to be referred to mediation.  In this post, student Olga Kordonskaya reflects on the evening:

The Baraks were open and willing to discuss various topics, including dispute resolution and their professions. Justice Barak spoke about criticisms made of him and discussed them in various contexts to help us understand what role he saw for himself in the judiciary. Justice Barak, who brought mediation to Israel, shared his opinions on mediation and its role in Israel and as a vehicle of dispute resolution. Judge Barak, with a different perspective as a labor judge, discussed the role of mediation in the labor courts, as well as her experience as a judge there and the challenges that the labor courts face.

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