PMM PDX Metro Mediation

PMM PDX Metro Mediation PMM helps facilitate mediated solutions in Family Law and Elder Law cases.

07/08/2018

[This author is an amazing writer. Well worth the read. ajb.]
Embarking upon the journey of becoming a mediator led me into learning a new language, one that would be spoken both internally – (in how I would think about the mediation participants and their circumstances) - and externally – (in how I would interact with them). Since I realized that the way I mediate is determined by what I am thinking, I was motivated to become very cognizant of my thoughts, so that I wouldn’t be driven by any unconscious biases.
Instead, I wanted to develop my sense of shared humanity, so that I would observe, and interact with, everyone equitably. By learning how to encourage and accommodate each participant’s individuality, without inserting my own judgment, or expectations, I hoped to skillfully connect with everyone in the mediation and fairly support them all through the process of resolving their conflict.
As I began developing this approach of being allied with everyone, I wanted a way to explain it to the participants, during the opening statements of the mediation, so they would know what to expect. I was originally instructed to describe myself as “neutral” in an attempt to assure the participants that I wouldn’t be taking sides.
While I wanted to dutifully follow this instruction, being new to the field and eager to do everything right, I soon became uncomfortable with the word and the concept of being neutral. I understood the importance of not being one-sided, and yet, I wanted a better word for more accurately describing my method of siding with everyone rather than no one. “Neutral” felt unnatural because it seemed rather lifeless and inactive, as if the mediator is not really present for, or sincere about, the process.
To me, neutral sounds like a car idling, stopped at a red light. My mediation is a go, moving forward with a green light. I snap into gear, actively engaged, riding directly alongside the participants, and not hanging back passively in the gearless-ness of neutral.
When I looked up synonyms for neutral in the thesaurus, I found:
“Disinterested, uncommitted, uninvolved, inactive, indifferent, detached, unconcerned and nonchalant.” These words are actually antonyms for my active and involved approach to mediation and the overall essence of the process.
And, when I looked up “neutral” in the dictionary, these definitions seemed equally antithetical to the spirit of mediation.
Definition #1 of Neutral: “Not helping or supporting either side in a conflict”
I wondered, if I’m not helping or supporting either side, then what am I doing as a mediator? I actually want to support every side, and to have participants count on me to do so.
Definition #2 of Neutral: “Having no strongly marked or positive characteristics or features”
On the contrary, I want to have plenty of positive characteristics, such as being trustworthy, kind, knowledgeable about the process, open-minded, fair, and many other strongly marked features that assure the participants that they are in skillful and caring hands.
Definition #3 of Neutral: “A disengaged position of gears in which the engine is disconnected from the driven parts”
I like this imagery. If we imagine that the “driven parts” are the participants, and the mediator is in a “disengaged position of gears,” then there is no “engine” running the process because the mediator is “disconnected.” This is exactly how the word “neutral” feels to me – disconnected and disengaged.
My research about the word neutral diminished my neutrality about it, and I came to realize I would not be using it to explain my role as a mediator. So, I still needed a word to describe this aspect of what I am and how I work.
Impartial? No, that felt even further off the mark than neutral. Impartial seems to imply that I don’t really care and I’m not invested in the people, process or outcome.
So, I kept searching for a different word to use, one that would actually capture the essence of my equal engagement, fairness and consideration for all parties. And when it happened, that I found the word, and the wonderful concept of, “multi-partiality,” I knew I had, at long last, found my vernacular soul mate.
The concept of multi-partiality accurately expresses my equal alliance with, respect for and care about everyone in the mediation, and characterizes my dedication to the mutually collaborative nature of the process. It also frees me from describing myself as neutral, and instead, being someone who is fully engaged, with every gear I’ve got - my mind, heart, spirit, energy, knowledge and skills….and my humanity, which connects me to the humanness in all people.
As a multi-partial mediator, I create a space where people can participate equitably in the entire process. They can share their experiences, be heard and understood, and work together to discover and agree upon solutions that will create a solid framework for moving forward. To support this process, I use a variety of mediation skills, such as asking open questions that encourage true expression to emit and emote from everyone present. I allow equal time for each participant to answer and to speak their truth, creating an exciting space for new information and insights to emerge, and a safe place for differences to co-exist together.
I listen with equal attention and authentic interest to all parties, encouraging them to share their perspective of the situation, what led them to see it in that way, and where they want to go with it. By creating this spaciousness for everyone to talk and listen, stress can go down, mutual understanding can grow, and initial perspectives and desires, that once seemed immovable, can even change. With the tension being released, the participants can expand their bandwidth to shift from any antagonism and miscommunication they may have had, to understanding, acceptance, empathy and collaboration. By being a part of this effective and positive process, the participants can expand their tolerance and compassion for each other, thereby tapping into their own experience of multi-partiality.
I find a vast difference between the concepts of impartial and multi-partial. Whereas impartial feels like I may not even notice the personalities of the participants, multi-partial is about honoring and bringing out each individual personality. And, while being impartial means that I won’t favor anyone, multi-partial means that I favor everyone equally. Impartial sounds like I don’t have my heart in it, while multi-partial means that I’m super invested in providing the best possible process that I can. And this process can lead to win-win outcomes for all, which is also a concept fully aligned with multi-partiality….I keep working equally with everyone until everyone is an equal winner.
If I drift away from multi-partiality, and tell people what to do, or begin to take sides, I am putting myself in the role of the judge, and then the process becomes more about me, as an authority figure, rather than about the participants, as the experts in their own lives. If I take it upon myself to decide who is right and who is wrong, it would display a lack of trust in the participants to work it out together. On the other hand, by being multi-partial, I am assuring them of my confidence in their ability to have a successful mediation and outcome. Multi-partial means that I trust and validate each of their realities and truths, even if they differ from mine or from each other’s.
If I favor one party over the other, I can exacerbate the conflict, and they will be left without the anchor of fairness holding the process together. This would then deny the participants of the experience of a collaborative and transformative mediation process, and perhaps leave them with a distorted notion about what mediation really is. The essence of mediation is only maintained when the process is driven by, and belongs to, the people, who are fully welcomed, exactly as they are, by a truly multi-partial mediator who supports everyone equally.
Many people are accustomed to not being valued in this way, to not having a voice in their own circumstances, and instead, allowing, or getting pressured into having, authority figures making decisions for them. A mediator can experience the great joy of breaking that mold in which people are disempowered, and instead, view everyone as having equal value to each other and to oneself. Multi-partiality is all about letting people know that their voice matters, that their concerns are listened to and taken into account, and that their ideas for making change are worthwhile contributions that will be applied towards finding mutual solutions.
My choice to be multi-partial doesn’t mean that I don’t have feelings or that I won’t possibly be pulled in different directions during the mediation process. I have cried and laughed while mediating. I am human and my emotions have a wide range. The goal is to not get sidetracked by my own ideas, emotions or biases, but to stay fully tuned in to the participants’ experiences. The way I do this is to remain very aware of my internal self. As soon as I notice that I’m becoming partial, I consciously acknowledge the presence of the thought.
Rather than getting down on myself for having biases, I actually enjoy the process of noticing them, because it allows me to learn more about myself, and to engage in the practice of putting those biases aside in order to mediate well. By making a conscious choice to not be influenced by my biases, it allows me to open myself more fully to the reality of each person, excited to discover who they are, what matters to them, and how I can support them fully, regardless of any initial judgment I may have had.
I welcome my internal awareness of my biases, because I want to know what’s driving my external words and actions, in order to stay clear and effective throughout the process. Once I am aware of the bias, I remind myself that this mediation isn’t about me, and that my biases are biased and not useful in this process. My goal then is to quickly let go of these biases and move smoothly back into acknowledging and valuing each person’s experience equally.
Another way that I put aside my biases is by reminding myself that, under different circumstances, I could be in anyone’s shoes, going through what they are going through. I also remember that I was born into a certain place, time and family that shaped much of who I am and determined what lens I look through to see the world. Other people have very different backgrounds and lenses to look through. As soon as I remember this, I can let go of my judgment and return to being multi-partial. In this way, I hope to exemplify and encourage mutual acceptance, despite our differences.
One of the amazing gifts of being a multi-partial mediator, is this chance to go beyond my own self, to have the opportunity to get a glimpse of seeing life thru someone else’s eyes. The variety of personalities that I encounter allows me to receive all types of people into my world and honor them for exactly who they are. My viewpoints get enriched beyond what I was already seeing. I cherish this broadening of my horizons, because each encounter expands my experience and my mind, and therefore, my ability to be multi-partial. By understanding and accepting people, as they are, I recognize that everyone has something to offer when given the context and safe space to do so.
Since the multi-partial mediator creates this welcoming environment in which people can openly express themselves, there can be moments during mediation when this expression becomes quite emotional and even confusing. This is sometimes a necessary part of the process, to get to, and then through, these difficult places, in order for transformation to occur. And, this can also be a precarious time, requiring skillful facilitation. As a multi-partial mediator, I allow for these turbulent moments while also remaining very attentive to the state of the participants. If the conversation is no longer constructive, I am ready to step in at any time to re-state, clarify or re-direct the interaction, in order to keep the process feeling respectful and supportive for everyone.
As a mediator, I have agreed to create this productive setting for the people who have chosen to participate in this process, whether the mediation is challenging or flowing smoothly. I sincerely apply myself to the process because I greatly admire people who are willing to show up for mediation and to engage in resolving their conflict, even without knowing how it will go. They are being vulnerable, and may initially feel like they are taking a risky leap into the unknown. They are trusting that I will create the right environment with them for everything to go well. So, each and all of them deserve to be valued with the highest regard by me, and to have their hopes, concerns, and goals equally considered throughout the entire session.
This philosophy, with the steps and communication skills applied to make it come alive, doesn’t only belong to the mediator. The participants can observe, and experience, what the mediator is doing, and then incorporate this same multi-partial approach into the way they interact with each other, both during and after the mediation. For example, by watching the mediator acknowledge and thank each person for sharing their views, the participants can witness the effectiveness of listening to each other with appreciation. By observing the mediator’s focus on the positive aspects of each person, the participants can learn about seeing the best in others. By seeing how smoothly a conversation can go, when the mediator gives each person plenty of time to speak, the participants can structure their future conversations to provide space for everyone to equally express themselves.
These are just some of the many techniques that the multi-partial mediator welcomes the participants to witness, experience and absorb during their mediation session, and carry forward into their future interactions, if they choose to. Whatever methods the mediator has learned and uses, are available for others to learn and use. Because of the common humanity amongst the mediator and the participants, everyone has access to developing and applying these same philosophies and techniques. And, indeed, the mediator continually learns from the participants, as well. This concept of sharing information and skills amongst equals, honors the agency and authority of each person, which exemplifies multi-partiality.
Multi-partial is not just a word to use instead of neutral. It’s actually an entirely different concept for approaching mediation. Having new vocabulary like this is a vital part of the ongoing expansion of the field of Conflict Resolution as it continues to grow. New ways to describe what we do, can lead to new ways of doing what we do. When I lost my neutrality about the word neutral, and became very partial to the word and concept of multi-partiality, my experience of being a mediator was greatly enriched. For me, this all-inclusive approach of being allied with every participant, brings out the wonderful possibilities inherent in resolving conflict, and also exemplifies the overall collaborative, transformative and vibrant spirit of mediation.

Biography
________________________________________
Vicki Assegued, M.A., has a Master’s degree in Restorative Justice and Conflict Resolution. She has 25 years of experience as a program developer, director, consultant, facilitator and trainer, for secondary and higher education, the juvenile and criminal justice systems, various organizations, groups and non-profits. She has won The Probation Department Community Partner of the Year Award and The United Way Community Hero Award.

05/22/2018

[AJB: This is SO exciting and innovative. We are lucky we lived at time when we can witness the melding of our lives with the digital/electronic age.]
This article appeared in NY Litigator, Spring 2018, Vol. 23, No. 1, published by the New York State Bar Association, One Elk Street, Albany, New York 12207.

It may come as a surprise that online dispute resolution has been around for more than twenty years. Described as “the application of information and communications technology to the practice of dispute resolution,” this digital technology emerged in the U.S. in the 1990’s “in tandem with the proliferation of e-commerce.”
The first players in the field were some of the big online retailers that most of us are very familiar with now: eBay and PayPal are the best examples. Early on these online vendors realized that they needed a means of resolving disputes involving small amounts of money between parties who were separated by great distances.
An early designer of these dispute resolution programs, Modria, Inc., spearheaded by tech guru Colin Rule, launched a quick, easy, low-cost dispute resolution model, using automation, that is capable of handling millions of disputes seemingly effortlessly.
eBay, PayPal and other large online retailers quickly realized that a low-cost means of resolving customer disputes would be a key component to the growth of online retail. They didn’t waste any time in launching platforms that were user friendly and were programmed to be neutral, providing the parties with human input if the online process proved less than satisfactory.
As successful as the ODR process has been for big online retailers, the road to online dispute resolution was quite a rocky one at first. Computer mediated disputes when first created were thought to dehumanize communication and create a shortcut to problem solving that was only for the wealthy.
However, since its first appearance, online dispute resolution has expanded rapidly with the increased digitization of society. Today, online dispute resolution, or “ODR,” has taken off, with thousands of ODR neutrals and supporting technicians, designers, developers and managers offering their services to the ODR community around the globe. We’ve even seen the launch of ODR conferences, websites that serve the ODR community, and the creation of ethical standards and principles that address ODR practices and procedures exclusively.
With its extensive impact, it’s not hard to understand why technology has been referred to as the “Fourth Party,” along with the disputants and any neutrals, or to agree with the prediction that the range of techniques will inevitably continue to expand as technology continues to evolve.
If you were surprised to learn how long ODR has been around, you may be even more surprised to learn that Europe and Canada are on the cutting edge when it comes to integrating ODR platforms into all sorts of disputes. In Europe, where ODR was originally made available for resolving commercial dispute, it now goes well beyond that initial use, and is available as a resource in resolving housing issues, divorce proceedings, family violence and other emotionally fraught disputes across Europe. The Netherlands implemented an ODR platform for complex relational disputes, such as divorce and landlord-tenant disputes, more than a year ago. That platform involves a 3-step process: Intake, Negotiation and Review, with optional mediation and arbitration services, an optional free diagnosis, a compulsory intake procedure and a mandatory dialogue phase that is based on model solutions, with compulsory review by a legal professional. The parties can request mediation or adjudication at any point in the process and the platform makes use of user surveys to continually innovate the service.
In Canada, British Columbia’s Legal Services Society launched a do-it-yourself legal services website for the middle-class, and others, regardless of economic status, just last year. The new site provides free tools and solutions for everyday legal problems including family issues, family violence conflicts, wills, powers of attorney and personal planning, and foreclosure. The website’s stated purpose is to empower BC residents to accomplish legal tasks on their own while providing reliable online help, up to date information, links, downloadable worksheets, documents, and plans. The site represents a shift in focus from “a system designed to support the inside stakeholders to becoming more focused on what the user needs.”
The site was financed with $775,000 in non-government funding, costs $60,000 annually in maintenance and requires only 6th grade literacy skills. For anyone who can afford a lawyer, the site will point out where they will get the most value for their money. Under their model, triage and the unbundling of legal services are viewed as a reliable tool for lawyers and clients to start working together. It’s interesting to see how the site works: couples can negotiate a separation agreement using a chat box, at their own pace, in privacy without meeting face to face. Then, if they agree on the terms, the site produces an agreement.
The pluses of the website are that its tools are not tied to geography or jurisdiction; it has the capability of improving access to justice; providing speedier and better outcomes and maintaining a high degree of relevance with its customers. The minuses are the potential for perpetuating power imbalances and enabling parties to avoid difficult emotional conversations that could promote a transformative negotiation experience.
In another cutting-edge development, the Ministry of Justice in British Columbia has created the Civil Resolution Tribunal, or CRT, as it is commonly known, which, according to Colin Rule, “may be the most forward-thinking court ODR system in the world.” CRT is Canada’s first online tribunal, and the Justice Ministry is considering making it mandatory in all civil cases, which would be a most aggressive, game-changing development.
In 2013 The European Commission launched a website for alternative dispute resolution of consumer disputes over goods or services purchased online. The site explains that ADR includes all the ways of resolving a complaint which do not involve going to court, such as mediation, conciliation, arbitration, ombudsmen or complaints boards. It goes on to explain that Online Dispute Resolution is an ADR procedure that is conducted entirely online. The EU’s ODR platform is designed to allow for maximum geographical and sectoral coverage across the European Union.
The EU’s authorizing directive provides the legal basis for ADR as a whole; ensures that EU consumers can turn to ADR for all contractual disputes in all economic sectors, across borders, whether online or offline purchases. It assures respect for the core principles of ADR which are identified as: impartiality, transparency, effectiveness and fairness. The legislation established an EU-wide platform to facilitated ODR of contractual disputes between EU consumers and traders over purchases made online; links all the ADR entities notified by the member states and requires that traders must provide a link to the EU ODR platform on their website.
The benefits of cross-cultural ADR/ODR services include increased confidence in trading online and across borders; disputes can be settled online in a simple, fast, low-cost way; the development of a new culture of out-of-court dispute resolution between consumers and traders in the EU; and the ability to maintain good business reputations and good customer relations based on the efficient, fair resolution of disputes.
One measure of that coverage is the number of ADR tribunals who have been approved to participate in the platform: there are almost 600 pages of providers across almost the whole of the European Union who are available to facilitate the EU Commission’s ADR program.
The website explains that “the platform is user-friendly, multilingual and accessible to everyone.” Accessibility is the key to the success of the platform. It doesn’t take much computer literacy to make use of the program. According to the website, any dispute can be resolved in 4 simple steps, with a final resolution issued in 90 days.
According to the website, 60% of EU vendors do not sell online to other countries due to the perceived difficulties of solving a problem from such sales; 40% of EU traders do not know about ADR; 30% are aware and willing to use it; 15% would like to use it but it’s not available in their sector.
On the consumer side, 45% of consumers think it is easy to resolve disputes through ADR and 70% are satisfied with how their complaint was handled by ADR. In the U.S., the expansion of ODR into court systems is still in the exploratory stage in New York, while states like Michigan, Texas, and Utah are using ODR to deliver services to their constituents and improve case management statistics. Following the lead of the ODR platforms that are de rigeur in European online trading, and the platforms that are already performing dispute resolution functions in several states in the U.S., it is easy to foresee the time when we won’t have to pick between online and offline dispute resolution for a broad array of disputes and will be able to move back and forth between various methods of dispute resolution. Although we’re not there yet, we can expect that ODR will become the new normal in the near future.

BIOGRAPHY
Marcy Einhorn is the owner of Dispute Resolution Services.

05/18/2018

The Fallout Of A High Conflict Break-Up

by Joan B. Kelly, Ph.D.

Joan B. Kelly, Ph.D. is a groundbreaking clinical psychologist and researcher who began studying the impact of divorce on children in 1968. Joan is an author, therapist, mediator, and parenting coordinator with four decades of experience working with high conflict parents who are separating. She has more than 85 publications, including Surviving the Breakup: How Children and Parents Cope with Divorce (Basic Books, 1980). She lives in Corte Madera, California. She shares her expertise in the Bountiful Films’ documentary: How to Divorce & Not Wreck the Kids.
1. Talk to your children about your separation.
Studies show that only 5 percent of parents actually sit down, explain to their children when a marriage is breaking up, and encourage the kids to ask questions. Nearly one quarter of parents say nothing, leaving their children in total confusion. Talk to your kids. Tell them, in very simple terms, what it all means to them and their lives. When parents do not explain what's happening to their children, the kids feel anxious, upset and lonely and find it much harder to cope with the separation.
2. Be discreet.
Recognize that your children love you both, and think of how to reorganize things in a way that respects their relationship with both parents. Don't leave adversarial papers, filings and affidavits out on your kitchen counter for children to read. Don't talk to your best friend, your mother, your lawyer on the phone about legal matters or your ex when the kids are in the next room. They may hear you. Sometimes kids creep up to the door to listen. Even though they’re disturbed by conflict and meanness between their parents, kids are inevitably curious -and ill- equipped to understand these adult matters.
3. Act like grown-ups. Keep your conflict away from the kids.
Even parents with high levels of anger can “encapsulate” their conflict, creating a protective buffer for the children by saving arguments or fights for a mediator’s office – or a scheduled meeting at a coffee shop. It may seem obvious but so many separating parents continue to fall down on this front. When parents put children in the middle of their conflict and use them as messengers, sounding-boards, or spies, children often become depressed and angry and may develop behavioural problems.
4. Dad, stay in the picture.
Long-term studies show that the more involved fathers are after separation and divorce, the better. Develop a child-centred parenting plan that allows a continuing and meaningful relationship with both parents. Where a good father-child relationship exists, kids grow into adolescence and young adulthood as well-adjusted as married-family children. High levels of appropriate father involvement are linked to better academic functioning in kids as well as better adjustment overall. That's true at every age level and particularly in adolescents. Fathers, be more than a “fun” dad. Help with homework and projects, use appropriate discipline, and be emotionally available to talk about problems.
5. Mom, deal with anger appropriately.
In their anger and pain, mothers may actively try to keep Dad out of the children's lives -even when they are good fathers whom the children love. When you’re hurting, it’s easy to think you never want to see the ex again, and to convince yourself that’s also best for the kids. But children’s needs during separation are very different from their parents. Research reports children consistently saying, “Tell my dad I want to see him more. I want to see him for longer periods of time. Tell my mom to let me see my dad.”
6. Be a good parent.
You can be forgiven for momentarily “losing it” in anger or grief, but not for long. Going through a separation is not a vacation from parenting -providing appropriate discipline, monitoring your children, maintaining your expectations about school, being emotionally available. Competent parenting has emerged as one of the most important protective factors in terms of children’s positive adjustment to separation.
7. Manage your own mental health.
If feelings of depression, anxiety, or anger continue to overwhelm you, seek help. Even a few sessions of therapy can be enormously useful. Remember, your own mental health has an impact on your children.
8. Keep the people your children care about in their lives.
Encourage your children to stay connected to your ex’s family and important friends. If possible, use the same babysitters or child-care. This stable network strengthens a child’s feeling that they are not alone in this world, but have a deep and powerful support system – an important factor in becoming a psychologically healthy adult.
9. Be thoughtful about your future love life.
Ask yourself: must your children meet everyone you date? Take time, a lot of time, before you remarry or cohabit again. Young children in particular form attachments to your potential life partners and, if new relationships break up, loss after loss may lead to depression and lack of trust in children. And don’t expect your older kids to instantly love someone you’ve chosen – this person will have to earn their respect and affection.
10. Pay your child support.
Even if you’re angry or access to your children is withheld, pay child support regularly. Children whose parents separate or divorce face much more economic instability than their married counterparts, even when support is paid. Don’t make the situation worse. In this as in all things, let your message to the kids be that you care so much about them that you will keep them separate, and safe, from any conflict. They will appreciate it as they get older.
Biography
________________________________________
Joan B. Kelly, Ph.D. is a clinical child psychologist. For 45 years, her research, practice, teaching and publications have focused on research in children’s adjustment to divorce, custody and access issues, divorce and custody mediation, applications of child development research to custody and parenting plans, and Parenting Coordination. She has published more than 130 articles and chapters, including a classic book, Surviving the Breakup: How Children and Parents Cope with Divorce (Basic Books, 1980).
Dr. Kelly was Founder and Executive Director of the Northern California Mediation Center for 20 years, and a mediator, forensic expert, custody evaluator, therapist, consultant, and Parenting Coordinator in high conflict custody cases. She was a founding Board member and President of the Board of Directors of the Academy of Family Mediators, and received the Distinguished Mediator Award from AFM, the Distinguished Research Award and the Meyer Elkin Award from the Association of Family and Conciliation Courts. She is a Fellow of the American Psychological Association. She recently retired.

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