Virginia's Judicial System


ADR Resource Center

Book Review: REPRESENTING CLIENTS IN MEDIATION by Eric Galton

286 pages; 1994 ~ $39.95; Published by American Lawyer Media, L.P.; Texas Lawyer Press;1-800-456-5484

In my opinion, this valuable book was published about five years before its time. Although the American Bar Association established the Section of Dispute Resolution in 1993, it seems that it was only with the advent of the first annual conference of the ABA Section of Dispute Resolution in 1999 that our prevailing system of justice signaled its public commitment to embrace ADR processes by acknowledging their positive powers to resolve and even heal conflict.

As the title suggests, Representing Clients in Mediation focuses on what Eric Galton calls "this brave new world of mediation." An attorney-turned-mediator since the early 80's, Galton was on the cutting edge of the ADR movement and he wrote this book to help lawyers understand mediation and the respective roles mediators and attorneys play to make the process work for their clients.

Whether we are attorneys, mediation advocates, or mediators, this comprehensive book should be on our book shelf for at least three important reasons:

(1)   Galton acknowledges that lawyers, mediation advocates, and non-lawyer mediators each have their unique challenges: lawyers can have trouble making the paradigm shift from being advocates to neutrals and non-lawyer mediators may not know effective ways to work with lawyers and mediation advocates.

To ensure that we are working from the same set of guidelines, he includes chapters such as, "Selecting a Mediator," "The Mediation Process," and "Pre-Mediation Submissions." In another chapter, "The Mediation Advocate's Opening Statement," Galton includes a list of goals, do's, and don'ts to increase the likelihood of a successful outcome.

(2)   In fact, Galton's checklists, together with substantive explanations, constitute the second important reason why this is a valuable reference book. Written in a conversational, tone, it has the feel of a live consultation. The twelve page "Mediation Checklist" is more than worth the price of the book because it provides a structure for lawyers and mediators to work together and it serves as a link to some of the earlier chapters such as "Preparing the Client for Mediation," "Who Should Attend the Mediation," and "The Mediation Advocate's Role in Negotiations."

Other useful lists include "Non-Monetary Interests" and "Impasse-Breaking Techniques."

(3)   Importantly, in separate chapters, Galton identifies the special factors which can affect diverse practice areas such as medical negligence, employment, vehicular collisions and others, including family law and consumer cases. For the entrepreneurs among us, he includes a comprehensive chapter on "Building An ADR Practice."

Even in 1994, Galton believed that the traditional legal system and the mediation process were becoming integrated and that each influenced the other. Now, with the third annual conference of the ABA Section of Dispute Resolution taking place in Washington in April, it seems appropriate to review Galton's promise to mediation advocates: "Mediators are committed to searching for appropriate resolutions to your clients' disputes...we are fervently committed, in collaboration with you, to improving our cherished civil justice." I think he speaks for all of us as relevantly this year as he did seven years ago.

Diane Wiltjer is a certified mediator in Virginia. She is a mediator and mentor for the Northern Virginia Mediation Service and is in private practice. She is a former officer on the Board of Directors of the Virginia Mediation Network. Her background includes education and business.


Readers' Response

Question: Should mediators be immune from civil liability for, or resulting from, any act of omission done or made while engaged in efforts to assist or facilitate a mediation?

Answer: Yes. Mediators should have some immunity from civil liability. Currently, Virginia, like many states, has a statute (Virginia Code § 8.01-581.23) that provides immunity. Immunity provides protection to, and incentives for, people to serve as mediators. Historically, most community and court-connected mediation has been offered for free or at a modest rate. Some people might be discouraged from serving as mediators in community and court-annexed settings, if they were subject to suits for ordinary negligence (or had to incur additional expenses to pay for insurance).

Critics of immunity argue that a disputant who has been "injured" by a mediator's neglect should be entitled to recover a monetary award from the mediator. Where the injury results from bad faith, or malicious or reckless conduct by the mediator, the immunity statute would not protect the mediator. On the other hand, it is probably an illusion to believe that a plaintiff in an ordinary mediation malpractice case will be able to provide that he/she suffered a loss as a result of misconduct by a mediator. And there do not appear to be many "victims" of mediation malpractice who have been deprived of any compensation due to the immunity statute. Indeed, since the immunity statute was enacted, there have apparently been less than a handful of ethics complaints to OES and only one unauthorized practice of law case.

At the same time, there is the concern that mediators are "unaccountable" for their conduct as a result of the immunity protection. One solution to this problem would be to require that, in order to have the protection of immunity, a mediator must be certified pursuant to Guidelines promulgated by the Judicial Council. Certified mediators must stay abreast of changes in law and practice and must adhere to the Standards of Ethics, thereby providing commitment to quality. Certified mediators who violate the Standards would possibly face de-certification, which would mean loss of immunity. This approach is consistent with that taken in a number of states, where immunity is limited to court-referred programs or certified mediators.

Submitted by certified mediator and attorney Samuel Jackson, Jr., who currently serves as President of the Virginia Mediation Network and as a member of the OES ADR Advisory Council and the OES-ADR Legislative Committee

 


Question: : If a mediator has reason to suspect child abuse in a circumstance where he or she is not serving as a mediator, does the mediator have a responsibility to report the suspected abuse?

You are invited to respond. Please send your response to: Readers' Response, c/o Resolutions, Office of the Executive Secretary, Department of Dispute Resolution Services, 100 North Ninth Street, Richmond, Virginia 23219.


Conferences


April 22-23
Virginia Mediation Network Spring
Training Conference; Holiday Inn Select;
Fredericksburg, VA; 804-285-3373
web: vamediation.org
Dorothy Della Noce, Guest Speaker

April 26-28
Third Annual ABA Section of Dispute
Resolution ADR Conference
Arlington, VA; Contact 312-988-5000
email: dispute@abanet.org

May 9-12
Assn. of Family & Conciliation Courts
38th Annual Conference
Chicago, IL; Contact 608-251-4001
email: afcc@afccnet.org

May 10
Central Virginia Mediation Network
Legislative Update Meeting
Contact 804-257-9238

May 24
The Vision of ADR: A Celebration of the
Past Decade and Opportunities for the New
Millenium; Richmond Marriott (see pg. 9)

June 7-10
National Conference on Peacemaking
and Conflict Resolution
Fairfax, VA; Contact 215-245-6993
web: www.apeacemaker.net

This page last modified: March 19, 2001