Articles and Book Reviews by Judge Josefina Rendón
Note: This article was originally posted in http://www.mediate.com/articles/RendonJ6.cfm
Several years ago in Houston, I attended an interesting presentation on agreement writing and other mediation issues for advocates. The difference between the two presenters struck me enough to still remember after all these years. One presenter talked in terms of moves, strategies, bluffs and get-away-with’s. The other talked in terms of good practice and ethical standards. Though the first mediator never advocated unethical conduct, the second struck me as a professional whose values and ethical standards were at the forefront of his practice. Ethics for him seemed to be a way of life and the way to practice.
At the time, I was editor of The Texas Mediator (Quarterly publication of the Texas Association of Mediators) and, after the presentation, I approached the “ethical mediator” and asked him to write for our publication. Any article would have sufficed, not only because he seemed both knowledgeable and articulate, but because I had the intuition that, whatever he wrote, he would color with the brush of ethics and standards of conduct and that this would be valuable to our readers. Sure enough, he submitted an article about ethics. As a result of reading that ethics article, a former president of the Texas Association of Mediators (TAM), Laury Adams, called me to get the author’s contact information to invite him to speak at a meeting of the Association for Conflict Resolution –Houston (ACRH). He has since been invited to speak on other matters at other conflict resolution conferences and has written several such articles in other publications. For years, he has been a well-regarded and much sought after mediator. He is now the Director of the Institute for Sustainable Peace in Houston, Texas. The presenter’s name is Randy Butler.
I also remember an ethics presentation by another mediator at a TAM conference who stated that it is good practice to offer to return the money to one party if the mediator thinks the other side has no intention of paying the mediator’s fees. This surprised me because I thought at the time that this act was too self-sacrificing and beyond the call of ethics. I felt that we mediators, more often than not, get too few mediations and too many cancellations to be offering the return of fees already earned. But I still remember his message and his name, Greg Bourgeois. Very much like Butler, he is a successful and highly-regarded mediator in Austin, Texas.
A couple of years later, Bourgeois called me for an unrelated matter. He introduced himself, assuming we had never met. To his surprise, I told him how vividly I remembered that “first encounter.” Pleased, he then proceeded to tell me how he first experienced the same message as a litigator when a mediator under similar circumstances offered to return him the money. Bourgeois also vividly remembered the lesson and the mediator who taught it. He also remembered to seek that mediator again.
I share these memories to highlight the impact that, I believe, ethics, professionalism and good standards of conduct can have on both our profession and ourselves. Years later, I still remember the ethical lessons taught. But almost as important, I remember the people who taught them. These are the people I would want to represent me and my profession to the public. These are the people who will make me look good simply because we practice the same profession. These are the people I would hire as lawyers, as mediators or in whatever profession they may choose to practice.
Model Standards of Conduct for Mediators
Related to the above facts, this article discusses the Model Standards of Conduct for Mediators as revised and approved in 2005 by the American Bar Association’s Section of Dispute Resolution, the Association for Conflict Resolution and the American Arbitration Association. They involve nine standards: 1) self- determination, 2) impartiality, 3) conflicts of interest, 4) mediator competence, 5) confidentiality, 6) quality of the process, 7) advertising and solicitation, 8) fees and other charges and, 9) advancement of mediation practice. It is important to note that the sequence in which the standards are mentioned are not meant to signify that one standard has priority over another. (http://www.mediate.com/pdf/ModelStandardsofConductforMediatorsfinal05.pdf) Below is a summary of the standards of conduct.
1) SELF-DETERMINATION - A mediator shall conduct a mediation based on the principle of party self- determination. The Standards define self-determination as “the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”
2) IMPARTIALITY - A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality. The Standards define impartiality as freedom from favoritism, bias or prejudice.
3) CONFLICTS OF INTEREST - A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality. The language under this standard also reminds mediators to make reasonable inquiries to determine whether there is a conflict of interest and to disclose any such actual or potential conflict to the parties, to withdraw from mediation if appropriate and to avoid subsequent relationships with the mediation participants that would raise questions.
4) COMPETENCE - A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties. This would include training, experience in mediation, skills, cultural understandings and other qualities. A mediator should attend educational programs and activities to maintain and enhance his/her knowledge and skill. A mediator should have available for the parties’ information relevant to the mediator’s training, education, experience and approach to conducting a mediation. The standards also suggest that a mediator should also be willing to withdraw from a mediation upon determination of lack of competence to address the situation.
5) CONFIDENTIALITY - A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.
6) QUALITY OF THE PROCESS- A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants. This standard lists several situations in which the mediator should protect the quality of the process, such as: committing the attention essential to an effective mediation; promoting honesty and candor between and among all participants; not misrepresenting any material fact or circumstance; not mixing his/her role of mediator with another professional role; postponing, withdrawing or terminating the mediation if it appears that it is being used by the parties to further criminal conduct or if the mediator is made aware of domestic abuse or violence among the parties; exploring potential accommodations, modifications or adjustments that would help possibly disabled parties to comprehend, participate and exercise self-determination.
7) ADVERTISING AND SOLICITATION - A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees. This would include not making any promises as to outcome of mediation.
8) FEES AND OTHER CHARGES- A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation. This standard specifies that a mediator’s fee arrangement should be in writing unless the parties request otherwise and that the fees should not be contingent on case outcome but should instead depend on relevant factors such as complexity of the matter, mediator qualifications, time required and customary rates.
9) ADVANCEMENT OF MEDIATION PRACTICE- A mediator should act in a manner that advances the practice of mediation. A mediator promotes this Standard by engaging in some or all of the following:
1. Fostering diversity within the field of mediation.
2. Striving to make mediation accessible to those who elect to use it, including providing services at a reduced rate or on a pro bono basis as appropriate.
3. Participating in research when given the opportunity, including obtaining participant feedback when appropriate.
4. Participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation.
5. Assisting newer mediators through training, mentoring and networking.
According to this standard, mediators should also seek to learn from other mediators, respect differing points of view within the profession and work to improve the profession and better serve people in conflict.
Local Legislation, Ethical Guidelines or Standards of Conduct
In their search to set the example of ethics and professionalism, mediators should certainly follow the Model Standards of Conduct for Mediators adopted by the national organizations listed above. Furthermore, mediators should also look for local laws, standards and/or guidelines that may have been promulgated by their local legislatures, government agencies or professional organizations. Some of the language regarding these laws, standards or guidelines may be more specific to the needs of the local or target clientele. Also, in some states, some mediator conduct may be required not just suggested.
For example, in Texas, Chapter 154 of the Texas Practice and Remedies Code enacted in 1987 specifies statutorily required conduct of the mediator’s regarding confidentiality. The Texas Supreme Court has also promulgated Ethical Guidelines for Mediators. These Guidelines were adopted with some variations by the Texas Mediators Credentialing Association.
In the race to succeed, to make mediation our day job and to promote ourselves to others, the subject of ethics may often take a back seat. Many of us already think that we are ethical and professional enough, so we concentrate on the practical how-to skills and the search for business and may often ignore ethics as an area of study and professional development. But ethics should be a subject that we study, discuss and practice everyday.
Going back to the ethical professionals mentioned earlier in this article, like them, we can set the example for others, whether our peers or the public, on how to act professionally and ethically. It is not just the money we spend on marketing that will bring us business, it is also how we comport ourselves in our practice. Ethics and good standards of conduct are, definitely, ways by which we can promote ourselves and our profession.
More important, ethical conduct is, or at least should be, a matter of character. It should define us both as human beings and professionals. It should be at the forefront of what we do. Each of us should work towards having a personal ethical vision and a clear idea of the best standards of professional conduct. It is not only good for business, it should be good for the soul.
Josefina M. Rendón is a mediator and Associate Municipal Judge in Houston, Texas. The author of over 100 articles & book reviews, Rendón is also the former Judge of the 165th Civil District Court, former President of the Texas Association of Mediators and former President the Association for Conflict Resolution-Houston. In 2011 Rendón was awarded both the Justice Frank Evans Award at the State Bar of Texas convention and the Susanne Adams Award at the Texas Association of Mediators Conference. Each award is given annually to persons who have performed exceptional and outstanding efforts in promoting or furthering the use of mediation and who set an example for the rest of the mediation community in Texas to follow.
Hace varios años en Houston, Texas, asistí a una interesante presentación sobre acuerdos escritos y otros temas de mediación para abogados. La diferencia entre los dos exponentes me pareció tan diferente que todavía los recuerdo después de tantos años. Un exponente habló en términos de movidas, estrategias y “trucos del negocio”. El otro habló en términos de buenas prácticas y normas éticas. Aunque el primer mediador nunca abogó por una conducta no ética, el segundo me pareció un profesional cuyos valores y normas éticas estaban a la vanguardia de su práctica. La ética para él parecía ser una forma de vida y parte de la conducta natural de su práctica. En esos tiempos, yo era la editora de The Texas Mediator (revista trimestral de la Asociación de Mediadores de Texas) y, después de la presentación, me acerqué al "mediador ético" y le pedí que escribiera para nuestra revista. Cualquier artículo hubiera sido suficiente, no sólo porque él parecía estar bien informado y era buen exponente, sino también porque tuve la intuición de que todo lo que escribiera lo hubiera pintado con un pincel de ética y buenas normas de conducta y que esto sería valioso para nuestros lectores. Efectivamente, presentó un artículo sobre la ética. Como resultado de la publicación de ese artículo sobre la ética, una ex presidenta de la Asociación de Mediadores de Texas (TAM), Laury Adams, me llamó para obtener información sobre el autor para invitarlo a dar una charla a los miembros de la Asociación de Resolución de Conflictos -Houston (ACRH). Desde entonces, este exponente ha sido invitado a hablar en otras conferencias de resolución de conflictos y ha escrito varios artículos en otras revistas. Por muchos años, ha sido un mediador muy solicitado y de mucha estima. Actualmente es el Director del Instituto para la Paz Sostenible en Houston, Texas. El nombre del presentador es Randy Butler. También recuerdo una presentación sobre ética por otro mediador en otra conferencia de TAM quien afirmó que es una buena práctica el ofrecer devolverle el dinero a una de las partes si el mediador cree que ela otra parte no tiene la intención de pagarle los honorarios al mediador. Esa sugestión me sorprendió ya que pensé en el momento que ese acto era demasiado abnegado y más allá de los requisitos éticos. Pensé que los mediadores, a veces tienen pocas mediaciones y demasiadas cancelaciones para además tener que ofrecer el reembolso de cuotas ya ganadas. Pero todavía recuerdo su mensaje y su nombre, Greg Bourgeois. Al igual que Butler, Greg es un mediador exitoso y muy respetado en Austin, Texas.
Game, Set, Match: Winning the Negotiations Game By Henry S. Kramer Book reviewed By Judge Josefina M. Rendón
Though its title has game metaphors and uses examples from football, baseball and chess, the book "Game, Set, Match: Winning the Negotiations Game" speaks more of war games and war metaphors. In fact the author, who has taught negotiation simulation at Cornell University, says he starts his first day of class with excerpts of Ken Burns’ series on the Civil War. Kramer also offers to "arm" us with secrets and to teach us how to "plan strategy" by quoting U.S. Defense Department papers and just about every American general and military strategist known.
Examples of quotes are: “There is no substitute for Victory”(Gen. McArthur). “Never appeal to a man’s better nature. He may not have one. Invoking his self interest gives you more leverage” (Robert Heinlein). “The object of war is not to die for your country but to make the other bastard die for his (Gen. Patton).
Kramer states that “this book is about ‘winning’ the negotiations game.” Accordingly, rather than exploring win-win outcomes, he writes about establishing a perceived win-win outcome, which includes a section on how to let the other side think it won.
This is a fascinating book partly because it is so different from the collaborative and facilitative orientation that most mediators are taught. It is also an important book for all mediators regardless of their mediating or negotiating orientation in that it illustrates the hard-ball, win-is-all approach to negotiation that is so common, if not prevalent, among many parties and attorneys in mediation. Mediators are certainly most effective when they understand the tactics, reasoning and preferences of all the negotiators they deal with. This book will decidedly help expand a mediator's knowledge and skills.
Note: This book review was originally published in The Texas Mediator (publication of the Texas Association of Mediators)
An experienced Houston mediator recently complained about a divorce mediation that ended in an impasse. At best the husband had been too stubborn. At worst the husband had purposely and successfully sabotaged the mediation. She suspected the latter.
The mediator had conducted the mediation as well as she had hundreds of others. This included explaining the process and telling them they both would have the chance to speak through uninterrupted statements and two-way exchange. She explained clarification and listing of issues, taking one issue at a time and generating options. On a flip chart she clearly listed and separated the child custody issue from property and other issues.
Nothing worked. The husband was very difficult and would not stick to any one subject. He jumped from one to another totally unrelated issue and back again without resolving any. He was also loud and, at times, interrupted both his wife and the mediator. The exasperated mediator finally declared an impasse and that particular mediation went into her professional annals as one of her most difficult mediations.
We have all had our "mediation from hell" where the chemistry or the circumstances went wrong and the mediation ended in an impasse. Some mediators would classify that as an unsuccessful mediation, others would more comfortably say that they gave it their best and that the impasse resulted, not from their lack of skills, but from the parties' inability or unwillingness to agree. There are times, however, when it is in fact the mediator who lacks the necessary information and communication tools to help the parties reach a resolution.
Discovering "What Makes People Tick"
As mediators we have learned that disputes are often more people-problems than legal-problems and that if, rather than listening only to their positions, we search for the underlying interests, wants, values, and needs, we will more easily reach the heart of the matter that needs to be resolved. We have discovered that by learning more about human nature, we are able to understand people's motives better and in turn better motivate them towards an agreement or towards positive change.
Consequently, many styles of mediation have focused on "what makes people tick". A great number of mediators has long recognized that the parties in a mediation have certain values, needs and wants that should be addressed before the conflict can be resolved. In light of that recognition, some third party neutrals have explored people's personality types, how these types affect mediations and, how a mediator can use this knowledge of different personalities to move the parties towards resolution.
Others have explored ways of recognizing people's learning styles, whether visual, auditory or kinetic, and have developed vocabulary that will more closely evoke a person's learning style in order to get through to that person. (1) Also recognizing the power of language, other mediators have developed a method of using specific metaphors during a mediation to set the tone and to influence the parties into thinking in that same mode. (2)
Yet, other mediators believe that the mediator, rather than focusing on an agreement, should be aware of people's intuitive response to conflict as one of confusion, weakness and self-absorption. These mediators concentrate on transformative opportunities for the parties' empowerment and mutual recognition. (3)
Finally, other researchers have discovered that a person's cultural background is a strong, though sometimes invisible, factor that permeates the whole process of mediation and that should be explored and addressed in order to effectively communicate with the parties in mediation.
The Importance of Diversity Awareness
Left unrecognized, cultural differences can profoundly affect a mediation's outcome and potentially lead towards failure from the outset. As a result, mediating without some cultural diversity competence, may result in substandard mediation services.(4) One author has even suggested that mediating while lacking cultural diversity competence borders on the unethical. (5) On the other hand, once the mediator recognizes cultural differences and learns how to address them, a completely new and bigger tool box becomes available to the mediator.
The same experienced mediator discussed earlier took training on cultural diversity in mediation weeks after her difficult mediation. It was an eye opener. She discovered that many people from other cultures differ from Americans in their orientation towards issues and activities through time. She learned that, while most American mediators prefer to deal with issues one at a time, sequentially; (6) others take a global approach and try to resolve the issues through a more integrative manner. (7)
Our experienced mediator also found out that, in some cultures, interrupting others is not rude but expected. Interruption often means attention and participation in the conversation rather than rudeness. Interruption is in some cultures a type of "active listening" and quiet passive listening may be a sign of lack of interest or attention. Our mediator also learned that there are cultural differences in styles of communication, some being much more expressive or affective than others. She learned that, what may seem as aggressive, warlike words, may not be intended as such by someone from a more expressive culture.(8)
The mediator also found out that different people also have contrasting views on the application of rules to themselves and others. Universalists, for example, believe that rules should be applied uniformly while particularists believe rules should be applied according to the circumstances and people involved. A person's universalist or particularist orientation may affect not only how closely they follow the ground rules of mediation but also what importance they give to the details and specificity of the final agreement.
In short, what seemed to this mediator to be stubborn, bad faith behavior may have been normal, "good faith" behavior on the husband's part. She realized that her own cultural orientations differed from the parties and affected the process of mediation. Had she been aware of these genuine differences and had she possessed the tools to deal with them, the outcome might have been very different.
What Is Culture?
Culture has been defined as a set of values, norms and standard practices commonly used by a group. It has been explained as "a pattern of living that is internally approved and sanctioned" in response to a number of common everyday problems faced by human beings. It can be basically defined as the way we were brought up and taught to deal with those everyday situations we all face as human beings.(9)
In this article we will discuss only three cultural differences that can affect the communication among the participants in a mediation: communication styles, time orientation and application of rules.
We proceed with three caveats. First, these are only three of many cultural differences that can affect a mediation. Among others, are the differences in people's methods of communication (such as direct vs. indirect and low-context vs. high-context communication; their view of themselves in relation to others (individualist vs. collectivist); and their view of themselves in relation to the environment (control, harmony, constraint). Second, these differences are treated separately here for the purpose of analysis but in reality are intertwined and interrelated. Finally, these differences are described in extremes for the purpose of illustration and brevity while, in reality, they are part of a continuum. No culture, no one person, is clearly one extreme or another but, in their everyday situational encounters, people tend to prefer or lean towards one or another side of the spectrum. These orientations can still have profound effects in a mediation.
Expressive vs. Restrained Communication -People closer to the expressive or affective extreme of the spectrum tend to show their emotions more freely and transparently. They tend to be more dramatic in their speech and this may seem exaggerated or situationally inappropriate to those in the more restrained side of the spectrum. These people let emotions flow freely and at times may show an explosion of emotion (e.g. anger or sadness) that may seem worse than intended and that, in the case of anger, may scare others into expecting violence even when not so intended.(11) People from predominantly expressive cultures touch often, maintain long intense eye contact and feel comfortable with those who maintain the same tactile and visual demeanor. In fact they may distrust those who do not look at them "in the eye" or who respond uncomfortably to their touch.
On the other hand, people towards the restrained or neutral extreme tend to be more "poker faced". Their speech, rather than fluid and dramatic, is more monotonic. They are uncomfortable with too much touching or intense eye contact. Though they may feel just as emotional or tense, these people tend to hide these emotions. They generally value stoicism in others and think little of those who are openly emotional.
What this means to the mediator- A mediator dealing with expressive parties should remember that they may correlate the mediator's honesty and trustworthiness by how comfortable he/she is with touching, eye contact and expression of emotion. On the other hand, a predominantly neutral party may perceive too much touching, eye contact and expressiveness as unprofessional behavior.
Time Movement (12)
Single-focus vs. Multi-focus - Single-focus cultures view time in sliceable chunks of hours, minutes and seconds that can be planned and scheduled. People from these cultures tend to plan meetings such as mediation in a more focused manner. They generally want to "get down to the business at hand," would mediate linearly, one step at a time, and deal with the issues in the same focused manner.
Multi-focus people, on the other hand, view time as flowing and unsliceable. They tend to focus on several tasks at once and to see the issues, including the interpersonal dynamics of the mediation, as interrelated. To them, holding more than one conversation at a time is appropriate and normal. Agreements on any specific issues would be considered tentative and contingent on the satisfactory handling of all interrelated issues.
What this means to the mediator - Single-focus people generally prefer, and respond better to, a mediator who handles tasks linearly, one at a time. Multi-focus people on the other hand prefer a mediator who treats the issues as interrelated and who accepts a multi-leveled or circular treatment of the issues.
Application Of Rules To Self & Others (13)
Universal vs. particular application of rules -Universalists prefer an orderly world of reliable rules to guide them. Faced with the moral dilemma of disclosing a friend's illegal or unethical act, a universalist would generally follow the law or ethical guidelines while the particularist would protect the friend. Rather than preferring for the uniform application of the rules, the particularist is more concerned about the strength of the relationship and the flexibility of the circumstances. Either decision could be the "correct" moral decision depending on the person's cultural orientation and upbringing.
What this means to the mediator - The more universalist a person is, the more closely he/she will follow the ground rules in a mediation, while the opposite is true for a particularist. Concerning a final agreement, universalists generally prefer written specificity and detail, while particularists prefer general agreements that lack details and are open to whatever the specific relationships and/or change in circumstances may bring. The mediator may want to emphasize consistency or flexibility throughout the mediation depending on the universalist or particularist orientations of the participants.
Awareness of cultural diversity is an important tool for a mediator in helping parties feel comfortable, trust the process, and work towards resolution. The mediator should remember that all of us are culturally unique and differ in how we solve the problems we face in everyday life and mediation.
Perhaps the first step in implementing cultural awareness changes is for the mediator to be aware of his/her own uniqueness in terms of, among others, expression of emotion, body language, style of communication, importance given to the guidelines and/or structure of mediation, and comfort with conflict. The mediator should be aware of how his/her own behavior can affect the participants' interaction in mediation.
If someone responds in a seemingly inappropriate manner, it would behoove the mediator to search for possible culturally laden explanations before assuming bad faith.
The mediator should help create, if possible, a climate in which that person can be productive, comfortable and involved. Mediating with the culturally diverse requires patience, open-mindedness, the ability to question your own values and behavior, and a good imagination.
Josefina Rendón is a 1976 graduate of the University of Houston Law Center. She has been a mediator since 1993 for, among others, the U. S. Postal Service, Equal Employment Opportunity Commission, Texas Education Agency, Department of Justice Civil Rights Section, U.S. Department of Agriculture, Harris County Dispute Resolution Center & Houston's Better Business Bureau.