Dispute Resolution Center Harris County, Texas

Mediation Matters July 2020

David Harrell is Co-Chair of Locke Lord’s Litigation Department and chairs the Firm's International Arbitration practice group. He has extensive first and second-chair trial and arbitration experience in the areas of energy litigation, commercial litigation, and land use/permitting litigation. David's energy litigation experience includes representations of operators, producers, transporters, marketers, and royalty owners. He has litigated contract disputes, royalty disputes, environmental claims, throughput and processing claims, and permitting claims, both onshore and offshore.

His commercial litigation resume includes representations of plaintiffs and defendants in contract disputes, fiduciary relations issues, usury claims, real estate litigation, fraud, securities collection, deceptive trade practices, Lanham Act, and first party insurance defense.

David E. Harrell, Jr. Appointed 2020-2021 DRC Board Chair

2020-2021 DRC Board of Directors

Chair: Mr. David E. Harrell, Jr.

Treasurer & Chair-Elect: Mr. Robert Painter

Members:

Mr. Ben Agosto, III

Ms. Desiree Borges-Tosado

Ms. Catherine Bratic

Ms. Annette Disch

Hon. Genesis Draper

Ms. Laura Gleen

Ms. Linda Glover

Mr. Jack Goldstein

Mr. Kevin Jacobs

Hon. Erin Lunceford

Mr. Greg Moore

Ms. Alice O’Neill

Ms. Anna Rotman

Mr. Ali Zamanian

Ex Officio Members:

Mr. Bill Kroger - President, Houston Bar Association

Ms. Mindy Davidson - Executive Director, Houston Bar Association

Mr. Nicholas Hall - Executive Director, Dispute Resolution Center

Visiting the DRC

2021 Virtual Annual Conference

February 19-20, 2021

Please be aware that all visitors (mediation clients and their family members or support, attorneys, and mediators) are subject to screening upon entering the building at 49 San Jacinto. You are required to wear a mask and may have your temperature taken with an infrared (contactless) thermometer and/or may be asked if you are feeling feverish, have a cough, shortness of breath or difficulty breathing, or have been in close contact with a person who is confirmed to have COVID-19.

Individuals not wearing a face mask and/or whose temperature exceeds 100.4 °F or individuals who indicate yes to any of the screening questions may be refused admittance to the building.

For everyone’s safety, face masks must be worn in the DRC office.

The DRC is housed in a building managed by Harris County and is required to follow their protocol regarding employees and/or visitors.

+ = Entry to 49 San Jacinto

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Mediator Tip

The value of thorough exploration

There are several benefits to taking time after the opening to focus on the parties’ underlying issues and interests. Exploring is primarily driven by the mediator’s honest curiosity – a non judgmental seeking of understanding. The mediator wants to see what is going on – what has happened, how each party perceives it, the disappointments and frustrations and perhaps anger, as well as the

“shoulds” and “shouldn’ts” (what the parties think should and shouldn’t have happened and what should happen now to resolve it). There are lots of things that are helpful in taking time to explore the dispute thoroughly before looking for settlement solutions and offers and counter offers:

Building a listening oriented process It is in the nature of conflict that one side often stops listening to what the other is saying. Taking time to explore the issues also enables the mediator to build upon the opening session to establish the principle of listening. Most marriage therapy techniques are centred on the therapist assisting the spouses to listen properly to the other. Some schools of mediation, for example Gary Friedman and Roger Mnookin of Harvard Negotiation Project and Jack Himmelstein believe it is so much more important than anything else to get the parties to understand each other that they avoid separating them into caucus sessions out of principle (ref, Challenging Conflict: Mediation Through Understanding).

Establishing the main points of dispute Over time, and in the midst of the emotions that lead to and arise from disputes, the parties may have lost sight of the real issues at stake. As a mediator, you can bring a clear mind and vision to a confused situation by encouraging parties to ask clarifying questions that may lead to a better understanding of the underlying issues. This does not mean trying to establish a common understanding of everything at the outset. Rather, it is about establishing a common understanding of what is actually in dispute. One party may think it is about one thing and the other may be focused on a different issue. Clarifying each party’s perspectives enables the parties and the mediator to see the terrain that has to be worked if an agreement is to be reached.

Uncovering useful information Most parties know things – have information – that they would prefer not to reveal but which may be relevant, and this may need to be brought out if a settlement is to be reached. The mediator’s role at this stage is to observe. What parties say may have inconsistencies or other hints that may be worthwhile to pursue. At this early stage of the mediation, it is often better to note, rather than elicit, any options, common ground or agreements in principle that have been incidentally raised by any of the parties. These may serve as a good source of ideas for the next stage of the mediation – when they move into negotiating.

Mediator Tip Continued...

Helping a party understand its needs and interests As the parties’ stories unfold, the mediator can probe more deeply to understand their underlying interests and needs, and ensure that they also gain a fuller understanding of their own. These are what will enable the resolution later, and it is crucial to unpack them as much as possible. More often during caucus sessions than joint meetings, the parties can open up to the mediator about their real needs and interests without fear of weakening any negotiating position or exposing vulnerabilities. Such confidential sessions can give the mediator an opportunity to move beyond the posturing and encourage the parties to focus on their real needs and interests. Understanding underlying issues The author recalls a dispute where one party, a Government, was convinced that the second party, a communications company, was simply resisting and fighting settlement out of bad faith. It appeared to be objecting to every little detail and not working towards a productive outcome. The company was very anxious that the Government was enacting new laws that would lead to the decimation of its business and, more than anything, wanted to be sure that the legislation was introduced in an orderly fashion with proper consultation taking into account good international practice. It feared for its business while the Government saw it as obstructionist, preventing it from moving forward with certain changes to the legal system. Taking the time to explore with each party what it was trying to achieve and what its needs were laid the foundations for the agreement that followed. It turned out that, more than anything, the dispute was over the process that was to be followed. So long as the company was confident that the Government was taking into account its business in changing the legislation, the parties were able to work together. Understanding the other party’s needs and interests better It is not only important for a party to understand its own needs better, but it is crucial that it also be thinking about the needs of the other party. The more it understands the constraints and demands the other faces, the easier it will be to find a realistic solution. Indeed, getting a party to think about the way the other party views the dispute and its likely response to aggressive behaviour or settlement offers is often called “reality testing,” which is discussed further below. A key purpose of mediation, and indeed what some view as its primary goal, is to foster fuller understanding between the parties so that, knowing where each one is coming from, they are capable of, and responsible for, finding the solution. Spending time with one party considering the way the other party views the dispute also helps introduce a dimension of what Scottish philosopher Adam Smith called the “impartial spectator” (ref, Theory of Moral Sentiments). It is not the mediator’s role to judge either party, but a party explaining the situation to a third party and then also taking time to consider the needs of the other may become more objective. Shifting the normative to the pragmatic Parties’ thinking is often clouded by their views on what “shouldn’t” have happened and what “should” be done now to resolve the problem. It is often because they have not agreed on what “should” happen that they are in the mediation in the first place. This disagreement on underlying views of the norms of morality, fairness, and justice will often also have led to the downward spiral from a disagreement to a breakdown of trust and the outbreak of hostility between the parties. Continued on next page...

Mediator Tip Continued...

So much of what enables us to work together in society depends upon shared norms of morality, fairness, and justice. When another party simply doesn’t accept one’s view of the way things should be, the relationship breaks down. A key aspect of mediating is to enable the parties to shift, and it is often a subtle process, away from the “shoulds” and “shouldn’ts” towards an understanding of the interests – what the parties really need out of the situation. The ultimate goal of taking time after opening the mediation to explore the dispute is to work out the parties’ real needs and what as a matter of fact can be agreed under the circumstances. To paraphrase and invert another Scottish philosopher, David Hume, you can’t assume that what you think “ought” to be the case “is” (or can be made to be) the case (ref, Treatise on Human Nature). Once these opinions are unearthed and replaced with a realistic view of what the other party might actually be persuaded to do to settle, finding a zone of possible agreement that can resolve the dispute is infinitely easier – and faster too. Understanding previous settlement offers By exploring the history of previous settlement discussions, the offers made and the reasons for their rejection, the mediator can better assist in identifying possible areas for future negotiation. At least initially, the benefit of asking about previous offers is not so much to find a compromise between them as to get information about what was driving the parties then, what assumptions they held at that time, what their perceptions of their options were, and examine how these might be viewed differently now.

The author, Rory Macmillan, is a founding partner in the law firm Macmillan Keck Attorneys & Solicitors. He has acted as mediator, negotiator, counsel, arbitrator, expert witness, and expert adjudicator in numerous multi-million dollar disputes involving governments, corporations, and individuals. Based in Geneva, his practice takes him worldwide. His work in international dispute resolution has been recognised by nomination for Europe’s prestigious CEDR Award for Excellence in Alternative Dispute Resolution.

2020 Hurricane Season June 1 - November 30, 2020

2020 Hurricane Names:

Arthur Hanna Omar Bertha Isaias Paulette Cristobal Josephine Rene Dolly Kyle Sally Edouard Laura Teddy Fay Marco Vicky Gonzalo Nana Wilfred

Mediation Funnies

Online Mediation

Considerations for online mediation (via Zoom, WebEx, etc.):

▪ If anyone is using a smart phone, the phone should remain plugged into a power supply since apps use battery life quickly.

▪ Typically only one session can be used at a time per account.

▪ Utilize the “fake” background options to ensure a professional background if your background is not professional looking.

▪ Be sure to test your audio and video capabilities prior to the mediation.

▪ Make sure you have a contact number for all parties (including attorneys) in the event they have issues logging in or connections fail during the session.

▪ Remember to “un-mute” your microphone displayed on the screen and remind others to do the same when speaking.

▪ Keep in mind that people are generally not used to close-up videos, so their hand gestures and facial expressions may appear exaggerated and animated.

You can’t always get what you want, but if you try sometimes, you might find, you get what you need.

Mick Jagger

The Mediation Handbook: Research, Theory, and Practice

Published by Routledge and Edited by Alexia Georgakopoulos

It is an honor that The Mediation Handbook: Research, Theory, and Practice just recently published in 2017 by Routledge Publishing and edited by Professor Alexia Georgakopoulos was nominated for consideration of the 2018 International Association of Conflict Management (IACM) 2018 Outstanding Book Award. The official Outstanding Book Award was announced at the IACM conference held July 8-11, 2018 in Philadelphia, PA. First and foremost, it is fitting for me to share that this book was largely a result of several discussions and collaborations that occurred with several conflict resolution experts and thought-leaders who are Mediate.com

members and featured authors. It included talented contributors who are regular members from the IACM conference as well. Secondly, while I am the editor of this book, the contribution of this book is a direct result of the joint collaborations of leading experts across fields in mediation/conflict management/resolution/negotiation and it features nearly 60 contributors who discuss the role of mediation as applied to a range of spectrums, including new age settings, relationships, organizations, institutions, communities, environmental conflicts, and intercultural and international conflicts. This handbook was a remarkable multidisciplinary collaboration with an excellent team of experts—many of whom are deemed as pioneers in the field of conflict studies. As the title of the book reveals, this book directly addresses the nexus of cogent theory, state-of-the-art research, and best practices to provide conflict professionals and learners with a well-rounded understanding of mediation as an effective conflict management and resolution approach in contemporary times.

Based on four signature themes—contexts; skills and competencies; applications; and recommendations—the mediation handbook provides theoretical, applicable, and practical contributions into a variety of key approaches for conflict management and conflict resolution. Authors consider modern conflict on a local and global scale. The main purpose of this handbook is for the expansion and development of the field of conflict studies. The set of works serve as a professional guide for any conflict professional, either seasoned or novice who is interested in the field of conflict resolution and mediation. Presented collectively, the chapters in the handbook present a kaleidoscope of meanings and applications of mediation for present day conflict resolution scholars, professionals, practitioners, and students who have a quest to learn about mediation from world class professionals and even several pioneers in the mediation and conflict resolution fields. Most importantly, this handbook is intended to promote dialogue, debates, and discussions about how to continue to improve and develop mediation further. It is my hope that there is something for everyone in this handbook from the novice to experienced mediator!

Book Review

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Two reviews of the handbook are as follows:

"Mediation has burst its banks and spilled over into many fields. It is no longer a meandering stream or a quiet backwater. It has left behind romantic beginnings and entered many new waterways. Read this book and be carried along in the surge."

John Winslade, California State University—San Bernardino, USA

"In The Mediation Handbook, we have a wonderful new resource that provides insight from some of the most innovative thinkers and practitioners in the mediation world. Drawing on the best lessons of the past and a broad vision of the demands of the future, the handbook offers a wide range of practical approaches for deepening and extending the reach of mediation in the twenty-first century."

Bernie Mayer, Creighton University, Canada

The field of mediation is very diverse and it is exactly this diversity that makes it so special. It was a lifetime honor to work with this diverse group of exceptionally talented and respected contributors around the nation and world. The handbook doesn’t reflect a western perspective, rather it reflects a global perspective of mediation and that is the only way we can have a holistic view of mediation. Peace is forged in my opinion when we invite diverse people in fields, disciplines, and expertise to collaborate. It was inspiring work and I appreciated having this calling in this point in my career to contribute to the field that I love and admire tremendously. My grandfather served three years in WWII and I feel he gave me the inspiration to write this handbook that is ultimately devoted to promoting peace in the world. I learned to listen in this project to the many voices who spoke about mediation and I learned tantamount as a result as I hope readers of this book will as well!

About the Editor:

Alexia Georgakopoulos, Ph.D., is the Editor of The Mediation Handbook: Research, Theory, and Practice published by Routledge, 2017. She is currently a Professor in the Department of Conflict Resolution Studies at Nova Southeastern University; Fort Lauderdale FL in the USA where she teaches masters and doctoral students. She is the Director of the Institute of Conflict Resolution and Communication (ICRCtraining.com), a conflict resolution training and consulting firm specializing in delivering educational training, mediation certification, and continuing mediation education to professionals in the public. As a world class

scholar and practitioner in mediation, she is a popular sought-after speaker worldwide and was featured on NBC’s Today Show to discuss international peace in a diverse world. She is a primary trainer for Florida Supreme Court Mediation Certification Programs and offers Mediation Education to professionals who are novice to seasoned mediators.

Book Review Continued...

Thank you to all our volunteers who took time to mediate with us in May and June!

Arntz, Jill

Barahona, Kimberly

Blanco, Ileana

Blasingame, Chad

Bushman, Patricia

Coleman, LeRoy

Donovan, John

Eaker, Clotilde

Gammell, Bradley

Hawash, Michael

Howard, Steven

Kreider, Stephen

Lewis, Andrew

Lopez, Jose

Lunceford, Erin

Magdaleno, Anthony

Marsh, Rebecca

McDonough, Shari

Melcher, John

Page, Brenda

Rendon, Josefina

Rokes, Susan

Slaughter, Janice P.

Smith, Naomi

St Julian, Alexa

Tabangay-Vigilla, April

Thiagarajan, Radha

Thompson, Darcy

Tice, Marc

Yates, Leslie

Houston Volunteer Lawyers has named Anne Chandler as the new Executive Director, effective June 22, 2020.

Previously serving as Executive Director of the Tahirih Justice Center’s Houston Office, Chandler brings strategic vision and leadership to her new role overseeing the nonprofit organization’s mission to provide free civil legal services to low-income people in Harris County and promote volunteerism among lawyers.

Chandler has a long history of working with volunteers, supporting legal clinics, managing grants and advocating for regional, state and federal policies that

provide justice and safety to immigrant survivors of violence.

Her diverse background also includes serving as a clinical professor for the University of Houston Law Center, Director of Immigration Legal Services for YMCA International Services, and an adjunct professor for the University of Houston Law Center and Thurgood Marshall School of Law. She was also an associate attorney at Locke Lord LLP.

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