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Welcome to the NYSDRA blog! This blog serves as a tool to highlight current headlines, discussion topics, best practices, and viewpoints to engage directly with statewide practitioners, volunteers, partners, and advocates. NYSDRA members are welcome to post after logging in to the website. All entries will be approved by the website administrator prior to being published.

 

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Negotiation versus Mediation

Posted By Shari Greenleaf, Special Education Program Coordinator, Monday, January 22, 2018

There are some people who believe that mediation is just another form of negotiation; they couldn’t be further from the truth!

Negotiation

Negotiation is the process that two sides use to try to reach an agreement over a dispute.  Negotiations can take a lot of different forms:  unions and employers pounding out a new contract, haggling with a street vendor over the price of an item to purchase, or coming up with a payment amount to settle a lawsuit.  Usually negotiation takes place between the two parties and there is no neutral party to help the parties come up with an agreement.  Most importantly, often there is an inherent disadvantage to “showing your cards” or being too honest about the bottom line of your position.  Each side in a negotiation is trying to get as much as possible and sharing information may get in the way of “winning” in the negotiations.

Negotiation is often useful for parties who are clear about their needs and have the capacity to articulate their position.  Negotiation is useful for parties who are comfortable with the process and have been trained in how to engage in negotiate.

Mediation

Mediation, on the other hand, is a process that includes the participation of a trained neutral party (the mediator) who role is to provide a forum for the parties to communicate and create the solution to the dispute that exists. 

A usual precept of mediation is confidentiality; nothing that is said or offered in mediation can be used later in subsequent court hearings or negotiations.  Confidentiality gives parties the freedom to be more forthcoming with solutions to the dispute without giving away too much.  The open exchange of information and ideas often results in reaching agreement.

Mediation also benefits from input from the mediator.  Mediators can reflect what the parties share and in doing so can ensure that information is heard.  Mediators can help conflicted parties by providing a safe space for feelings to be vented and then permit moving beyond emotion.  Mediators also can help parties find clarity by breaking down the dispute resolution process into smaller digestible bits; the old adage is you eat an elephant one bite at a time and the same can be true for breaking down a dispute into manageable components.

Mediation is most useful for parties who are “stuck” or for parties who have a difficult time communicating with each other.

Negotiation versus Mediation

Much like the fictitious battles between Godzilla and Mothra, it is practically impossible to say who wins in a dispute resolution battle between negotiation and mediation.  Instead it is best to recognize the inherent strengths of each process and ensure that parties employ the best method of dispute resolution based upon the nature of the dispute, the abilities of the parties, the progress that has been made in resolving the dispute and the availability of a trained mediator.

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Mediation and Marriage

Posted By Josh Aron, Monday, January 8, 2018

Marriage is one of the most unique relationships people will experience in their lives.  There are distinct challenges that couples deal with in marriage that don’t arise in other types of relationships. Generally, people are not as prepared to deal with marriage as they might be with friends or co-workers because with those types of relationships there are learned experiences to fall back on.  Whereas with marriage, we typically only experience it from afar until we are actually married.

Therefore, it shouldn’t be surprising when marriage doesn’t reflect the bliss experienced at the wedding or the initial “honeymoon period“.  Marriage can and often is a rocky turbulent relationship with many peaks and valleys.  This is reflected in the fact that approximately 50% of marriages end in divorce or separation.  

Marital Mediation is a tool that can be used to deal with many issues that arise from marriage.  Couples utilize mediators to work through issues to stay married. Including issues dealing with money – prioritizing finances or issues with infidelity, intimacy issues, problems with their children or just communication breakdowns in general. 

Marital Mediation can also be used to follow through with divorce.  Hiring an attorney can be an expensive ordeal that not many couples can afford.  Using a mediator to facilitate divorce is a cheaper, quicker process where there are no “winners” or “losers”.   It is a less contentious affair and the couple has agency in determining the outcome.   

So the next time you hear about a couple having a conflict, suggest they seek mediation instead of calling their BFF or divorce attorney. 

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When Metaphors Meet Manure: Mediation as a Good Agricultural Practice

Posted By Charlotte Carter, Former NYSDRA Executive Director, Tuesday, January 2, 2018

Published in Country Folks, March 7, 2011

Contact information updated, January 2014

Conflict and negotiation are part of our everyday life.  We usually manage those situations fairly well on our own.  Sometimes our usual strategies just don’t work, and the situation escalates.  At that point we consider walking away, ending a personal or professional relationship, or giving the problem to lawyers or a judge to resolve.  Unfortunately, litigation is costly, at least one side looses, and business or personal relationships are rarely improved. 

 

My work gives me plenty of opportunities to hear about conflict and agriculture.  One of the many great things about agriculture is the abundance of metaphors.  So, how is conflict like manure?  There are more similarities than you might think! 

 

First, conflict is like manure because it happens every day.  It seems to be a by-product of everyday life.  And, if it is not dealt with promptly and effectively, it accumulates.  As one wise farmer told me:  “When you are mad at someone, you hate the way he ties his shoes!”  We tend to lose our objectivity, and everything the other persons says or does becomes a fresh insult. 

 

Second, when conflict or manure accumulates it becomes a problem, at first in the barn, and then for the family and business.  If those problems are mismanaged they can offend the neighbors, and create a toxic environment.  Unresolved conflict uses up a lot of our time, attention and energy; it can pollute our lives and those who live or work with us.   

 

On the other hand; when manure is handled well it enriches the environment and produces bountiful crops.   With some expert management and advanced technology, manure can generate clean energy.  But if the management or technology fails, and especially if sparks fly -- it can be explosive!  

 

It is a widely accepted practice to consult nutrient management experts to make plans for the proper handling and application of manure.  Similarly, conflict management experts can help manage conflict and differences of opinions about family or business matters. 

 

New York has a great resource to help producers and agribusinesses manage conflict and make plans effectively.  More and more people are using mediation to resolve conflicts, to work together to solve a problem, and to collaborate on a plan that will work for everyone.  Mediators are trained and experienced experts in conflict management, communication and negotiation.  The New York State Agricultural Mediation Program (NYSAMP) provides free or low cost services in every county in New York. 

 

When is it time to get some expert help with conflict management or tricky business planning?  Some of the signs that it is time to ask for help from an expert are that the conflict is escalating, it is interfering with our ability to get our work done, or that it is damaging personal or professional relationships.  When we are trapped in an escalating conflict we find ourselves going over and over our own story, blaming the problem on others, loosing perspective and even “demonizing” the other person.  

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Look Out for the Lemon

Posted By Elise Friello, Lemon Law Arbitration Program, 9/20/16, Tuesday, December 19, 2017

While many people think the Lemon Law Arbitration Program is a consumer protection program, my position requires me to respond to questions posed by manufacturers, dealers, and leasing companies too.  In one recent case, I received a frantic phone call from a dealer who sold a used car.  A consumer told the dealer she was planning to file a Lemon Law case.  In 35 years of owning the dealership and selling used cars, he prided himself on always being able to resolve consumer complaints directly.  He was concerned about his reputation in the community should someone find out, but more importantly, he expressed disappointment that he was not able to help this consumer.  I explained a bit to him about the Used Car Lemon Law, including the consumer’s choice between two remedies should she win – full refund of the purchase price or a comparable replacement vehicle. 

 

I also discussed the mediation process with him.  I explained the difference between mediation and arbitration, and noted that not all disputes are appropriate for mediation, and that mediation is voluntary (unlike arbitration).  I heard back from him a few weeks later indicating that the consumer agreed to mediation.  I later heard from the consumer who indicated that she never wanted to file a Lemon Law claim, but felt stuck.  She thanked me for speaking to the dealer and giving him enough information to help the parties find a way to resolve their issues.  While the Attorney General’s Office may have accepted her case into the program, she explained that she would not have received what she wanted, which was $500 to cover tow costs and an apology from the dealer, who she had known since she was 10 years old.

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Mediation and the Japanese Art of Kintsugi

Posted By Susan Ingram, Esq., Thursday, December 14, 2017

Kintsugi is a centuries-old Japanese master craft for repairing broken pottery with lacquer mixed with powdered gold. If you’ve ever been to a museum exhibit of old Japanese ceramics, you may have noticed the patterns of gold veins that run through some of the pieces. These pieces had been broken at some point, and the gold clearly shows where the repairs had been made as the master craftsman put the piece back together again.

In our Western minds, this may seem like an unusual way to repair something that’s broken. We typically would look to make the piece “as good as new” and would expect it to be repaired so that the cracks could not be detected, and the piece would appear to be identical to what it was before.

Not so with Kintsugi, which repairs the piece in a way that makes it “better than new.” With the application of the lacquer, it is as strong or stronger than before. But most importantly, it has been transformed into a totally new piece – one whose beauty is further defined by the golden threads that run through it. And, of course, no two repaired pieces are ever alike, as each was originally damaged in its own unique way.

What an extraordinary image – and one that I find extremely relevant to the work I do as a divorce and family mediator. Couples going through separation and divorce experience many emotions (including sadness, anger, despair) during the process. They can feel that they will never be able to “repair” their lives and move on to happier times. But this does not have to be so.

The beauty of the Japanese Kintsugi pottery is derived from the broken pieces having been repaired so that the pottery is transformed into something different and “better than new.” Like the pottery, relationships often emerge from mediation looking different, but having a stronger foundation, so that the parties can positively move forward with their new lives.

Reprinted with permission.  Susan Ingram, Esq. is a private practitioner in New York, NY specializing in divorce and family mediation.  For more blog posts (including a second Kintsugi-related blog) and information about Susan Ingram, please visit https://www.susan-ingram.com/

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Juvenile Justice in New York: a broken system in search of improvement

Posted By Charlotte Carter, NYSDRA Executive Director, Tuesday, December 5, 2017

Did you know that juveniles are treated as adults in our criminal justice system? Until April of this year New York was one of only two states (the other is North Carolina) that prosecutes all 16 and 17 year olds as adults. Our legislature finally acknowledged that adolescents are children, and that prosecuting them in the adult system does not work for them – nor does it improve public safety. This shift opens huge potential for expansion and funding for family mediation services and restorative practices.  

The keynote speaker at NYSDRA’s conference was Joseph Popcun, the Assistant Secretary for Public Safety in the Governor's office open the conference. Joes oversees the State's criminal justice, corrections and victim assistance agencies. He also contributes to the development of the Governor’s public safety agenda, maintains contact with stakeholder and constituency groups, and participates in budget negotiations.

Joe has some progressive ideas about the needs for reform in the criminal justice system, particularly in juvenile justice. Since our first meetings in 2014 he has become a champion for mediation and restorative practices, and for the CDRC network. He understands and respects the work we all do. And he is a visionary and incredibly articulate:

 

First, this year, the Governor succeeded in passing Raise the Age legislation which will raise the age of criminal responsibility to 17 years of age in October 2018 and, then, 18 years of age in October 2019.  Between now and then, there is a tremendous amount of work to do and the opportunity to reorient the juvenile justice system.  In the past, the criminal justice system was ill-equipped to deal with youth.  .   .   .The Raise the Age law is designed to afford more opportunities to intervene with youth before they become entangled in the adult criminal justice system.  This effort will require a comprehensive approach at the local level where schools, law enforcement agencies, probation departments, social service departments, and elected officials build the capacity to serve these minors.  .   .   .

 

[NYSDRA] and its members should explore ways to support the continuum of service providers and intervene (where appropriate) with youth, justice-involved individuals, and victims.  As there is a continued policy focus in these areas, expanding partnerships with these service providers (or potentially becoming a provider yourself) could provide a promising platform to expand and enhance dispute resolution services.

 

Joe Popcun has emerged as a champion in our outreach and advocacy efforts. Connecting emerging juvenile justice needs with the resources offered by NYSDRA and the statewide network of community mediation centers will be a focus for the coming years. Sarah Rudgers-Tysz, NYSDRA Board President Elect and Mediation Matters Executive Director; and Dan Kos, Assistant Coordinator, NYS Unified Court System, Office of ADR, are taking the lead on the Raise the Age and juvenile justice services outreach. There have been some exciting developments in our partnership building with Robert Maccarone, Deputy Commissioner and Director of DCJS, Regional Youth Justice Teams, and other agencies. We understand that DCJS will be issuing an RFP soon, and Dan and Sarah have worked very hard and effectively to be sure the principals understand the structure, capacity and needs of OCA/ADR, the CDRC network and NYSDRA.

 

The Raise the Age advocacy team is receiving very positive feedback, and we are excited about the prospects for our network to help meet emerging needs for statewide services including mediation, conflict coaching, school based programing, and restorative practices in juvenile justice systems.

 

If you are interesting is joining these efforts please contact us!

 

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Intuition: What is the Role of Intuition in Dispute Resolution?

Posted By Shari Greenleaf, Special Education Program Coordinator, Thursday, November 30, 2017

Intuition is defined as “the ability to understand something instinctively, without the need for conscious reasoning” in the Oxford Living Dictionaries.[i]  Thus, intuition is knowing but is distinguished from knowing based upon conscious thought.

Anyone serving as a mediator, arbitrator or other roles in dispute resolution practice uses their intuition as a part of their practice. As practitioners, we should consider how we use our intuition during dispute resolution sessions and how we might strengthen our intuition.

How We Use Intuition

Intuition is used frequently as we engage in dispute resolution. Sometimes we combine our cognitive observations with our unconscious knowing.  Arbitrators use intuition to supplement observation to determine whether a witness is credible or “believable.”  Mediators observe how a party is acting (body language, eye contact, etc.) and then uses intuition to gauge the emotions that person is expressing.

Intuition also guides dispute resolution practitioners when we make decisions about how long to hold silence in a session, when a caucus is needed, when to explore underlying issues expressed by the parties, and many other pivot points during sessions.  We are diligently focused on the parties during dispute resolution sessions; with so much of our conscious thinking consumed by being present with the parties, it is no wonder that our intuition is active!

How We Strengthen Intuition

Our intuition is not static.  We can take action to strengthen our intuitive capabilities, for use in both our everyday life as well as for dispute resolution.  Try one of the following to strengthen your intuition:

1.    Quiet your mind.  Engage in meditation, take a head-clearing walk or sit quietly with your eyes closed. Be aware of what happens during and after these opportunities to open your unconscious up to intuition.

2.    People watch.  Spend some time at a shopping mall, train station, library or other location just watching people.  What you can tell about relationships when you see people together?  Do you think a person is sad or tired or preoccupied?  Can you make predictions about what a person might do next?

3.    Be aware of your daily moments of inspiration.  We all experience “flashes” of inspiration or clarifying instincts out of the blue.  When that happens to you, take inventory of where this happens for you and when.  Are you more intuitive when you are very busy and consumed or when you take a breather?  What is your energy level and emotions when it happens?  What triggered the flash of instinctive knowing (words, a visual cue, etc.)?  Use these insights to see if you can replicate these opportunities for intuitive thinking.

4.    Explore artwork.  Look at a photograph, painting, sculpture or other piece of art and be aware of your initial, visceral reaction.  What are your initial responses to the artwork and does it change if you continue to examine the piece?  What thoughts or emotions are triggered in you by looking at the object?

Befriend your intuition!

Consider your intuition and how it manifests you as you engage in dispute resolution.  Although intuition is an instinctive and unconscious knowing, we can become more consciously aware of our intuitive abilities and ensure it supports our dispute resolution practice.

 

 


[i] https://en.oxforddictionaries.com/definition/intuition

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Hats off … and on

Posted By Shari Greenleaf, Special Education Program Coordinator & Christine Tauzel, NYSAMP Director, Thursday, November 16, 2017

 

 

Dispute resolution practitioners take many forms:  CDRC staff, volunteer mediators, private practitioners, NYSDRA staff and NYSDRA individual members.  One thing all of these dispute resolution practitioners share is that they are people who wear many hats!

Each of us fill many different roles as we navigate our daily lives.  We are mediators and arbitrators; we may also be parents, neighbors, farmers, medical patients, spouses, community members, friends, volunteers, sons and daughters.  We often find ourselves struggling to fulfill our obligations to the different constituencies we serve.  We juggle competing needs from the many roles we play in our lives and often overlook how much we gain from our many hats.

Here are some ways we can benefit from wearing multiple hats:

  • Stretch and grow!  Sometimes we feel we can’t learn a new task or take on a new role.  Then we do and learn so much about ourselves!  Every new parent is sometimes filled with “I can’t do this” moments – until we realize we can do this and we have done it! Our many hats gift us with these kind of moments of personal growth.
  • Help! It may be hard to keep balance as we juggle our roles; then we realize that we can ask others to help us as we keep those hats intact on our heads!  Giving to others gives us great joy; the research of social psychologist Elizabeth Dunn proved that people found greater happiness spending money on others as compared to spending it on themselves.  Asking for help may be hard sometimes but we can do it knowing that others may find happiness by giving to us.
  • You’re doing great! As we work hard to take care of all of our hats, we may overlook how skillful we are at getting it all done.  Our efforts to take care of every role may leave us feeling that we haven’t done enough.  However, those around us are looking for us to be our best selves – not some perfect paragon that exists only in our imaginations. Celebrate how great you are and the beautiful hats you have!
  • Let it go! Sometimes we need to make a shift.  Our parents may be aging and need more assistance from us; a new baby in the house leaves us sleepy; a new job may be sapping our usually boundless levels of creativity; or we might have health challenges that limit our energy.  As we travel on our life’s path, there may be times that we have to temporarily set aside some hats until we have the strength, energy and time to devote to that role.  Those hats we set aside (whether as a food bank volunteer or a budding author) likely will be there when we want to pick it back up again.
  • Celebrate the hats of others! As part of a community, it helps to recognize the multiple hats that other people wear.  We can encourage others as they show us their varied hats and we show them ours!

So our hats go off to everyone for all the hats they wear!  They look so      good on you!

 

 

 

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The Gate's Open

Posted By Christine Tauzel, New York State Agricultural Mediation Program Director, Tuesday, October 17, 2017
Updated: Monday, October 16, 2017

 

Cows, horses, pigs, sheep, goats, lamas - what will an animal do when the gate’s left open?  The stories; funny, frustrating, heart- warming or sad would fill the page.  Most animals think it’s an invitation to go right on through!

What happens to a discussion or argument if the “conversation gate” is open?  Often more information comes out, feelings, beliefs or values are expressed more clearly and these become the foundation for “going through” to a better understanding and perhaps agreement.

 So if the gate is jammed and people are stuck saying the same things over and over, how can it be cleared?  Try experimenting with a simple tool known as “open ended questions”.

In a conversation, an open ended question invites the speaker to provide more information. It encourages the speaker to add details, explain why they think a certain way, describe how they see a situation, correct misunderstandings and to offer their own ideas.

In contrast, a closed question can limit an answer to one word or even just a grunt!

Can you identify the open ended and closed questions in these pairs? If someone asked you these questions, how would your answers be different?

“Who’s going to plow the field on the flat?”  OR   “What are the plans for the field on the flat?”

 

 “Why did you do that??!!!???”  OR   “Can you tell me what happened?”

 

 “Did you go to the movies with your friends last night?” OR “What did you decide to do last night?”

 

Are there times and places for questions with simple, direct answers?  Absolutely.  However, if you want to open the conversation gate and get “unstuck” try using open ended questions. See how far it can take you. 

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Farewell and Fairness

Posted By Robert Stankus, Special Education Mediation Program Manager, Thursday, October 12, 2017

NYSDRA has begun “Blogging by the Alphabet” by addressing issues relevant to our membership in alphabetical order.  I agreed to tackle the letter “F” for two reasons. 

First, I have announced my retirement from NYSDRA and a farewell post seems in order.  Farewell is “an exclamation used to express good wishes on parting” so it is appropriate that I say farewell as I leave the staff of NYSDRA.

Second, fairness is a critical concept to NYSDRA.  Fairness can be defined as “impartial and just treatment or behavior without favoritism or discrimination”.

We at NYSDRA believe in neutrality of dispute resolution practitioners and in full disclosure of potential conflicts of interest, in order to avoid even the appearance of unfairness.  We should never abandon those principles.  Furthermore, we should strive to expose and weed out those who attempt to corrupt dispute resolution principles in order to avoid litigation or deprive people of their right to due process and justice.

Much is being written these days about arbitration and the belief that it is being used in ways that deprive people of their rights, like the right to due process.  This is being done in some private contractual relationships that consumers may enter into unwittingly.

Some contractual dispute resolution clauses are fair while some others seem to go out of their way to make the processes burdensome and inaccessible.  Dispute resolution clauses which waive the customers’ right to proceed in court, their right to a jury trial, and their right to participate in a class action when coupled with burdensome or unfair dispute resolution provisions usually result in consumers who are frustrated and discouraged from accessing dispute resolution to solve disputes.  Imagine being a consumer going to an arbitration over a dispute with Company X and finding out the arbitrator is an employee of that very company.  Do you think you will believe the dispute resolution process is fair?

These draconian consumer contract provisions do deprive people of their right to due process and are inherently unfair.  The pursuit of justice by consumers is frustrated and may ultimately be denied.

One of my many parting wishes for NYSDRA is for success in its continued commitment to the fairness of the processes in the services we provide.  I hope NYSDRA will be able to provide leadership in a struggle to keep our dispute resolution processes (including arbitration and mediation) as fair as fair can be.

Farewell!

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Empathic Listening

Posted By Claudia Kenny, NYSAMP Statewide Director, Tuesday, September 19, 2017

Empathic listening - what exactly is this? And how do you do it?

When I think of empathy I think of it as an active state, a choice and something of a practice, something we can learn to get good at.  There are some different components of empathy that we can practice and that can help us learn to be empathic listeners.

Practicing presence- Be present for another person by resting attention on what they are saying.  Sometimes this is referred to as listening from the heart.  To be able to listen from the heart you need to be present or rest attention with self as well. Resting attention with self and other requires letting go of thinking. 

Silent Empathy- This is thinking about and understanding another’s experience from their frame of reference.  Sometimes referred to as standing in another’s shoes.  You can practice silently guessing some of their values and deeper needs and trying to understand what is most important to them as you listen.

Following vs. leading- We listen to where the speaker wants to go with the conversation and try not to lead them to where we think they ought to go. 

Focus on connection rather than an outcome - Empathic listening is not about fixing, changing someone or making anyone feel better or solving a problem.  It is about understanding and connecting to another’s experience. 

Reflecting back understanding and meaning in a way that allows the speaker to feel heard.  This could be by using some of the same language they used almost word for word. It could be choosing some of their thoughts or feelings to reflect back. It also could mean guessing some of the needs or values that might be important to them in the situation.  You do not need to agree with them to show that you understand and respect their internal frame of reference.

Finally we can practice loving kindness by suspending judgement or holding each person in respect- knowing that they are doing the best they can and wishing the best for them. 

Any of these skills can be practiced individually and together they form the active state of empathic listening.  Try to consciously practice empathic listening in your next mediation or other interaction and see how it changes the interaction for both you and those around you.

 

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Disability Etiquette for Mediators

Posted By Shari Greenleaf, Special Education Mediation Program Coordinator, Tuesday, September 12, 2017

     Molly Misinformed is a mediator awaiting the arrival of the parties to a dispute.  She is full of anticipation and geared up to help her community members solve an issue causing conflict.  As the parties enter the mediation room, Molly sees that one person is sitting in a wheelchair and has a dog with a red vest on.  Molly wants to help this person so she stands up and begins pushing the wheelchair to the table.  She then reaches down and pats the dog while saying very loudly, “Your dog is so cute.”  While still standing Molly decides to engage in small talk and says, “So, why are you in a wheel chair?”

     Clearly, Molly is indeed misinformed and is need of a lesson on how to respond appropriately to a person with a disability.  Community mediation needs to serve all members of the community, including people with disabilities and all mediators should be well-versed in disability etiquette.

     People with disabilities are people first; they deserve the same dignity and respect as all members of our community.  The most important rule in disability etiquette is don’t make any assumptions about the person with a disability and (as much as possible) interact in the same way you would with anyone else.

Basics of Disability Etiquette

1.       When you meet a person with a disability, greet them and offer to shake hands as you would with anyone else.  A person with a prosthetic limb may shake hands with their left hand instead of their right hand; but they will let you know how they want to shake hands.

2.       Offer to help and provide accommodation but wait to hear whether or not the person with a disability needs assistance.   Accept a refusal to help gracefully as each person knows what assistance or accommodation they need or do not need.  Pulling a chair out may seem kind but it is not helpful if the person was counting on holding onto that stationary object for balance.

3.       Do not speak loudly, more slowly or dumb down your language unless the person with a disability asks you to do so.  It is disrespectful to shout at people with disabilities or talk to them like they are children.

4.       Be respectful of physical contact with a person with a disability.  Do not touch their bodies, their wheelchair or their service dog unless asked to do so.  A person using a wheelchair often views their equipment as an extension of themselves.  It is intrusive to touch their wheelchair, crutches or cane.  A service dog is not a pet but is working companion.

5.       Speak to the person with a disability, not to their companion or sign language interpreter.  For those who read lips, it is easiest for them if you face them directly.

6.       Be patient and do not rush the person with a disability.  It may take a person a little more time to enter the mediation room, to sit down at the table or to speak.  There is no need to try to hurry the person along or try to finish their sentence.  Don’t focus on how quickly the parties move or speak - just relax and pay attention to what is said at the mediation.  If you can’t understand what a party says, just ask them to repeat themselves or clarify what they said.

7.       If you are sharing a document (such as a proposed agreement to resolve the mediation), please make sure you put it within reach of the person with a disability.  Even better, get in the practice of reading the proposed agreement out loud for all parties.  This ensures everyone hears the same thing and can eliminate problems for those who have reading disabilities, those who have visual impairments and anyone who can’t read printed text.  You can share the draft written agreement after reading it out loud.

8.       Please do not call attention to the disability.  Asking about the nature of the disability, how the person acquired the disability or other intrusive questions are not appropriate.  By initially asking if the person needs any assistance or accommodation, you can respectfully acknowledge that you are aware of the disability and are willing to meet the person’s need.

     The most important thing to remember when a party to a mediation is a person with a disability is this: a person with a disability is a person first and deserves to be treated with respect and dignity.  A community mediator who is aware of disability etiquette is best able to serve all members of the community, including people with disabilities.

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C is for Confidential

Posted By Charlotte Carter, NYSDRA Executive Director, Wednesday, September 6, 2017

Confidentiality is fundamental to mediation: Standard V of the Standards of Conduct, and considered so critical that mediations conducted by community dispute resolution centers are protected by Article 21-A of the NYS Judiciary Law. Confidentiality and privacy are critical to consumers as well; Justin Corbett the big data collector and processor of Advancing Dispute Resolution noted in his keynote address at NYSDRA’s conference two years ago that confidentiality was the most important factor to people who were considering using mediation.

It might seem straightforward, but the subject quickly gets complicated. What if a mediator learns something during a mediation session or a caucus that raises serious concerns? (Check here for the Mediator Ethics Advisory Committee’s opinion on what a mediator should/could/may do upon learning during caucus that one participant is secretly recording a mediation.) What do you say to a referral source (a judge, for example) who poses reasonable follow up questions? Is it sufficient just to change the names? (No!) What compelling “stories with wings” (Cynthia Kurtz, NYSDRA workshop) can you tell to legislators, government officials, grantors and other potential referral sources and/or funders to convey the value and potential of mediation to our communities and to social justice causes? How do you tell that story and also demonstrate your commitment to confidentiality? Have you ever caught yourself saying “This is confidential, but. . .”?

I’m not going to presume to provide answers; where’s the fun in that? I do hope some of these questions make you uncomfortable, determined to dig deeper, and to raise the bar of mindfulness in our conversations about what we do and why. 

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Beyond Bad Feelings Lies Successful Mediation

Posted By George Mossad, Tuesday, August 22, 2017
Updated: Monday, August 21, 2017

You just went through a mediation session with your former landlord, a guy you thought you never could never come to an agreement with.  You now sit there surprised and frankly just impressed that a signed agreement sits on the table in front of you both.  How did you get from swearing you’d take your landlord to court and sue the pants off of him to now coming to an agreement in mediation?

Often times people who participate in mediation start at completely different places with little hope of ever resolving their dispute.  However, as many people come to realize, the mediation session enables people to talk with each other in a way that enables them to find the common ground between them.  Difficult emotions can be shared in a safe space under the guidance of a trained mediator and those emotions are put aside, temporarily or not, for the sake of reaching an agreement.

In a 2014-2015 annual report published by the New York State Unified Court System, 74% of all cases conciliated, mediated, and arbitrated at Community Dispute Resolution Centers resulted in mutual agreements or final decisions.  More recently, a 2015-2016 report shows that that success rate has increased to 75.2%.  In matters involving the custody visitation divorce where emotions very often fly high, New York State saw an 81% dispute resolution rate in 2015-2016 alone.  Regarding landlord tenant and other housing matters, New York State saw a whopping dispute resolution rate of 83%.  Moreover, while there aren’t statistics regarding the emotions of the people involved in mediation, one can only imagine how many of these cases involved bad feelings. Nevertheless, the percentages speak to the fact that when individuals leave aside their personal feelings, temporarily or not, agreements come to fruition.

People come into a mediation session not sure what to expect but also holding onto the emotions that resulted in a disagreement.  Tempers flare, insults may be thrown, accusations hurled, and everyone is pointing fingers at each other.  However, by the end of the mediation session the majority of people, as shown above, walk away with an agreement in their hand and have mended the fences.  People who mediate can reach an agreements, but many do so only after being able to leave their troubled emotions behind. So the next time you’re in a conflict with your landlord or anyone else where emotions are high, remember that beyond bad feelings lies successful mediation.

 

 

 

 

 

 

 

 

 

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The Art of Apology

Posted By Claudia Kenny, NYSAMP Statewide Director, Wednesday, August 16, 2017

Apologies can restore trust.  A thoughtful apology can mend a relationship while a thoughtless one may cause further conflict. Often our attempts to apologize and make peace fall flat.  When you are the author of an action that negatively affected someone you care about and you sincerely want to land an apology here are the steps.

1.       Find out what the impact of your actions were on the other person.

Ask how your actions impacted the other person.  Then listen.  How did they feel at the time of the incident?  How are they feeling about everything now?   Invite the individual to fully express in whatever way feels most helpful. 

Now is the time to understand their point of view.  Resist the temptation to disagree, defend yourself or to rush through this part.   Try to stand in their shoes and really understand their perspective.  You may not see things the same way but you can still listen and understand. 

Give them plenty of time. Ask if there is anything else they want to say.  You will notice an energy shift when the person feels fully heard, a softening or sense of calm.

2.       Ask the person if they are willing to hear from you now.  If not they may not feel fully heard yet so cycle back to listening.

If they are willing to listen to you, now it is your time express sadness for the effect of your actions that stimulated or contributed to the pain they experienced.  In this situation you don’t have to be either right or wrong.  Just a person who made some decisions that had a negative effect on another person.  You can mourn that the negative impact your decision had on the other person.  Resist explaining, justifying or defending your actions.

After you have expressed your mourning or regret, give the other person an opportunity to express how they are feeling after hearing about your sadness. You may have to cycle back to step one with more listening.  

3.       You can leave the apology there or go a little further.  If things are going well you might ask if the other person would like to know what was going on with you when you did what you did. 

If the person seems hesitant cycle back to steps one and two (listening and mourning the impact your decision/action had on them). 

If they are willing to hear about your experience you will want to express a feeling and a need you were trying to meet rather than what you were thinking.  Something like, “at the time, I was so tired and I just needed to relax.” Again steer clear of elaborate explanations.

4.       Now it is time to find out if there is anything you can offer to make things right. 

Let the other person know how much you care about and value your relationship.  This step is sometimes called restorative action.  Look for something you can do that involves an action and is doable.  Sometimes just being willing to hear about the other persons experience and expressing sadness over the impact your action had on them is enough but sometimes this extra action is needed. 

 

 

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Arbitration Clauses-What are you REALLY getting with your new purchase?

Posted By George Mossad, Wednesday, August 16, 2017

What am I talking about?  The fine print.  Yes, I’m talking about that small writing you probably didn’t read that came with your credit card or new phone.  Have you ever wondered what you’re agreeing to?  What if I told you that you were agreeing to shield the company you bought the product from, from any legal claims that could otherwise be rightfully brought in a court of law?  I’m talking about one single line in a large stack of small print documents - the arbitration clause.  Many companies today have included these clauses in order to avoid individual or class action litigation and media scrutiny. 

“What’s wrong with arbitration?” you may ask.  Nothing at all!  In fact, arbitration can be a very cost effective and time saving way to resolve a dispute.  The problem is rooted in the use of questionable arbitration procedures.  Many companies today are using arbitration clauses to circumvent the legal system which could benefit the consumer, and are instead subjecting consumers to in-house arbitration, and less than transparent decision making.

At the very core of arbitration and other dispute resolution techniques is the principle of neutrality.  Without a separate third party source outside the corporation (like NYSDRA or AAA), that neutrality is questionable.  On a regular basis, consumers around the world are being required to sign away their constitutional right to sue in a court or law, either individually or as part of class action lawsuits, and instead be subjected to the possibility of an unfair arbitration proceeding. 

In the past, many companies like AT&T, McDonald’s, Haliburton, and many others have attempted to enforce their clauses, some of which have been successful.  Most recently, SquareTrade filed motions to compel such arbitration against consumer plaintiffs. 

While the road might seem long ahead, courts have already begun to refuse to enforce these kinds of proceedings in an effort to safeguard individual constitutional rights. 

What can consumers do?  Read the fine print. Educate yourself on the topic (SquareTrade moves to compel arbitration in class action suit over protection plans;  No Arbitration For Halliburton Sexual Assault Case, Court Holds; Federal regulator moves to mostly ban arbitration clauses).  Support the use of arbitration and other dispute resolution techniques, but insist the processes are fair.  Talk to your representatives. 

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What Pushes Your Hot Buttons?

Posted By Christine Tauzel, NYSAMP Program Director, Monday, July 25, 2016

Every year in August, the New York State Agricultural Mediation Program (NYSAMP) participates in Empire Farm Days. The event is the largest outdoor agricultural trade show in the Northeastern U.S. with an astonishing range of exhibits, seminars, demonstrations, and activities featuring the latest innovations, newest technologies and cutting-edge techniques in agriculture.

Last year, NYSAMP asked “On the farm, what pushes your buttons?” And people told us with answers ranging from the predictable: spouses, government, and weather to the surprising: tomato-snatching chickens, cell phones, and arguments over the last piece of pie.

When we train people to use mediation or conflict management tools we often stress how important it is to be aware of, and to develop tools for managing, our hot buttons, biases and triggers.

As an agricultural mediation program, it is also critical that we keep our finger on the pulse of today’s New York farmer. What makes them tick? What really gets to them?

This year we will continue our unscientific survey at Empire Farm Days in Seneca Falls on August 9th, 10th and 11th. Stop by Lot # 502 on West Seneca Acres Avenue and tell us about what pushes your “hot buttons” on the farm. Claudia Kenny and Chris Tauzel from NYSAMP will be there along with volunteer mediators and staff from local Community Dispute Resolution Centers. It would be great to see and hear from you!

New York State Agricultural Mediation Program (NYSAMP) offers confidential, low or no cost mediation to the Agriculture community in every county in New York. (nysamp.com)

See the article in Morning Ag Clips

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Pokémon GO to Arbitration … But Only If You Don't Opt Out Within 30 Days!

Posted By Elise Friello, Lemon Law Arbitration Program Manager, Friday, July 22, 2016

Out with the days of gaming from the convenience of your couch and in with the days of gaming from the comfort of your sneakers. Since Pokémon GO was first released earlier this month many conversations have turned to safety concerns for those using the augmented reality game. Other conversations, however, have turned to legal rights for those agreeing to Pokémon GO’s Terms of Service.

Like most agreements, whether they be for social media and music sites or mobile devices, the consumer must agree to arbitrate their dispute individually rather than bring a lawsuit in court. This means that as soon as a consumer downloads an application or buys a device they must waive their right to sue or give up using that application or device. Unfortunately, a consumer may miss a few important points when they become irritated about this sue-versus-use dilemma.

  • First, even if the consumer retains their right to sue they may still be required to bring a lawsuit in whatever far-away jurisdiction the agreement indicates and be subject to the laws of that state. (Hint: The selected jurisdiction is for the company’s convenience and not the consumer's, unless you live in sunny California.)
  • Second, not all agreements have the same effect. It may not be a sue-versus-use situation. In fact, with Pokémon GO, there is a section that allows a consumer to opt out of the arbitration provision of the agreement by writing a letter or sending an e-mail within 30 days. Yes, sending an e-mail! This means that consumers must carefully read the dispute resolution section of every agreement and be proactive in informing themselves of their rights.
  • Third, not all alternatives to court strip consumers of their rights. While arbitration is unfamiliar to many, the process can be a cost effective way to resolve disputes in a quicker and less burdensome manner than litigation for the consumer, not just for the company. Additionally, the arbitration hearing is typically held in the county where the consumer resides, not a jurisdiction chosen by the company. For example, New York State’s Lemon Law Arbitration Program provides consumers whose new or used motor vehicles turn out to be “lemons” with a fair forum to settle disputes within 45 days of filing. Consumers are often able to avoid many of the disadvantages of going to court, including finding and then paying for an attorney, as well as waiting several months for an opening in the court’s calendar.

Ultimately, the decision on whether to opt out of Pokémon GO’s arbitration provision lies with the consumer. In the sue-versus-use dilemma many consumers have no alternative if the application or device is essential. With Pokémon GO’s Terms of Service, at least a proactive and informed consumer can make a choice on how to best protect their legal rights.

Feel free to contact me at elise@nysdra.org with any questions.

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Brainstorming - Meh?

Posted By Charlotte Carter, NYSDRA Executive Director, Friday, July 15, 2016
Updated: Friday, July 15, 2016

Mediators, facilitators, and consensus builders have long held brainstorming in high esteem. We assume that it is fair, inclusive, and productive.

Beth Tener, of New Directions Collaborative, says it is “Time to Rethink Brainstorming.” She cites research that shows that we do better when we take a few minutes to think separately and then pool our ideas. Traditional brainstorming actually inhibits participation, especially for introverts, and limits the generation of good ideas.

Ms. Tener has done her due diligence and describes an easy alternative brainstorming process called 1-2- 4-All. I’m eager to try this variation in a mediation setting, or in a staff or board meeting.

What applications can you think of?

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New Mediator Ethics Advisory Committee Opinion

Posted By Sheila Sproule, J.D., Co-Chair of the Mediator Ethics Advisory Committee, Friday, July 8, 2016

I am excited to share with you the newest Opinion from the Mediator Ethics Advisory Committee, which can be found on our web page by clicking this link: https://www.nycourts.gov/ip/adr/meac.shtml#Opinions and then clicking on the link for Opinion 2015-01. The Committee -- comprised of your CDRC, NYSDRA and Dispute Resolution academic colleagues, peers and volunteers -- is copied here, so our office can acknowledge their important contribution to our understanding of mediator ethics. The Quarterly Subcommittee, who provide the full Committee with the written Opinion upon which they vote, was comprised this term of Committee members Sarah Rudgers-Tysz, Ryon Fleming and Alex Carter. We thank them for their thoughtful and informative work!  

 

This Opinion is timely, since it involves a request to video record a mediation at a CDRC. In this particular scenario, the CDRC does not have a policy regarding the recording of mediation sessions. Both of the parties in this custody and visitation case are represented by attorneys, and the husband’s attorney has requested the recording of the session/s with the husband’s consent, since the attorney is unable to participate in the session/s. The wife and her attorney, as well as the attorney for the child, have also consented to this request. After considering the concerns raised by the mediator and the center, including the impact that the video recording might have on the integrity of the process, the parties, and the mediator, and applying the applicable Standards and levels of guidance to those considerations, the Committee concluded that under this scenario the video recording should not be allowed. 

 

Please share this Opinion with who you think might benefit from reading it. As always, if you have any questions, or would like to submit an anonymous inquiry (meaning no identifying information will be provided in the written Opinion) to the Committee on behalf of a staff member or volunteer at your center, please feel free to do so by sending your inquiry by email to cdrcp@courts.state.ny.us.

 

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