The Communicator Newsletter of the Association of Missouri Mediators, Inc.

Vol. XII, Issue I ______Spring 2010

Jane Rippeto, President ■ Stephen Stark, President Elect ■ Kathleen Bird, Secretary ■ Kathy Robinson, Treasurer ■ Board members: Susan Amato, Ronnie Beach, Patty Hagenah, Michael Maguire, Jim Reeves, and Bruce Feldacker, President emeritus

Post Office Box 2257, Jefferson City, MO 65101 Email: momediators@mediate.com Website: www.mediate.com/amm

AMM News

Governor Recognizes Role of Mediation AMM members from around the state traveled to Jefferson City on March 17, 2010 to witness Governor Jay Nixon signing a proclamation declaring April as mediation month in Missouri. Governor Nixon graciously showed his mediator guests the historical artwork and artifacts in the ceremonial Governor’s Office. As attorney general, Governor Nixon established a dispute resolution program for resolving consumer complaints. AMM members attending enjoyed lunch afterwards at a local eatery.

Pictured left to right. Back row: Stephen Stark, Paul Ladehoff, ElGene Ver Dught, Ralph Kalish, Bob Hellrung, Gary Waint. Front row: Kim Kirn, Katrina Everhart, Larry Swall, AMM President Jane Rippeto, Governor Nixon, Sarah Read, Jim Keller, Catharine Barrie, Karen Brown, Jim Levin.

President’s Message As I write these words, I am contemplating the concept of motherhood and the rebirth that is Spring. With Mother’s Day just past, I revel in the joy of my own family. We had a group of eighteen go out together, all linked by motherhood, boyfriends, girlfriends, and babies! The night before I attended a beautiful wedding and thought about the journey the couple has undertaken, and the start of their own family. One of my gifts was a wall decoration that reads: “Marriages are made in Heaven, but then so are Thunder and Lightning”. I liked it so much I purchased one for my own home.

I mention this spirit of family because of my own practice in family mediation and how important I feel our work as peace and hope builders is in this challenging world. I also mention the idea of family as a way of conceptualizing the work of this organization and your Executive Board. Just like a family, we are bound together in a common purpose and must keep working together in order to be successful. And just like a family, we must blend our different styles and concerns to make it all work out for each of us. On a rainy Saturday, April 24

th, in Boonville, your Board met in a retreat at the historic Hotel Frederick.

This was a significant donation of time and energy by all members and I wish to thank you all. My special thanks to those who made the event possible: Kathleen Bird, sponsor; Kathy Robinson, facilitator; and Stephen Stark, official reporter. We made amazing progress and it was an energizing exercise for us all. Our gathering with Governor Nixon on March 17

th to accept the Proclamation announcing April as

Mediation Month in Missouri also went very well. Thank you to all in attendance. It was great to meet some new folks and share some conversation over lunch. My special thanks to board member Bruce Feldacker for making the arrangements for our special day in the Governor’s office.

Finally, we are extremely proud and excited about our Annual Conference on Friday, October 22, 2010, at the Kauffman Center in Kansas City. SAVE THE DATE! We have arranged for scholars from various disciplines to present their research and theories regarding the practice of mediation, and we have invited our own members to present as well. So, you see, I feel that AMM is a thriving, growing family of professionals who all care passionately about our work and our future as a profession. We are a like-minded, strong willed group of individuals, just like a healthy family! And I wouldn’t have it any other way. I appreciate everyone’s contribution to our growing family of mediators. Let’s make some Lightning and Thunder together. Jane M. Rippeto, M.A. President, AMM

AMM Annual Conference Set for October 22 in Kansas City

The annual conference moves to Kansas City in 2010 to celebrate “Springing from Theory to Practice.” The Kauffman Foundation has consented to the use of its conference center near the Plaza for the day. Judge Jay Daugherty, chairman of the Supreme Court ADR Commission, will discuss the work of the Commission in reviewing court rules and possible legislation to support mediation and other dispute resolution processes. Dr. Laura Janusik returns to further share her expertise in brain function and communications, and to discuss the state of current research and its applicability in mediation practice.

Professors Marilyn Coleman and Larry Ganong, University of Missouri Department of Human Development and Family Studies, will discuss family mediation in light of thirty years of researching and writing on remarriage and step-families. Multiple workshops on a variety of mediation topics will also be scheduled. An afternoon mini conference is scheduled for civil mediators and lawyers who represent clients in mediation. A panel of civil mediators from across the state will discuss the progress made to integrate the use of mediation in litigation for resolving civil disputes, along with several workshops. Consult the AMM website for updated information as the summer progresses.

Member News

Ronnie Beach is the 2010 recipient of the Acorn Award conferred by the Heartland Mediators Association. Former member Robert Benjamin has been awarded the John M. Haynes Distinguished Mediator Award by the Association for Conflict Resolution. Katrina Everhart made a presentation at the national conference of Mediators Beyond Borders in Washington DC. She is organizing their online group as well. Bob Hellrung and Larry Swall are often seen at the Capitol discussing appropriations for the MARCH program for state fiscal year 2011. Randy Hoerschgen and his wife were in the right place at the right time and saved an 11 year old girl who was drowning in a hotel pool in Memphis, Tennessee. Dawn Kuhlman has been elected to the board of the Missouri Chapter of the Association of Family and Conciliation Courts. Paul Ladehoff made a presentation on effective cross-cultural communication at the ABA Dispute Resolution annual conference in San Francisco. John Lande spoke to law professors at the same conference on revisiting core concepts. Suzan Ponder-Bates has been appointed by the Governor to serve on the Child Abuse and Neglect Review Board. Richard Reuben also presented at the ABA Dispute Resolution annual conference on Town Hall Meetings: conflict, governance and free speech. Jim Reeves joined the prominent group of Missourians at the conference by presenting on Mudslinging, Manners and Mediation. Kathy Robinson’s daughter has been accepted at Colby College in Maine and will start school in the Fall. ElGene Ver Dught, high bidder, is the proud new owner of AMM’s wireless printing center.

Missouri Headlines

MARCH Inc. is 2010 Recipient

of AFCC Innovative Program Award

MARCH Inc. has been awarded the Irwin Cantor Innovative Program Award by the Association of Family and Conciliation Courts, an organization with over 3,800 members from 27 countries. The award will be formally presented at the annual conference in Denver on June 3, 2010. March Executive Director Larry Swall and several board members and advisors will be present to accept the award. Last Fall MARCH was showcased as one of four state mediation programs at a national meeting of state child support directors in Washington D.C.

Two AMM Members Appointed to the Bench

Dan Chadwick and Dennis Eckold, two longtime members of the Association, have recently been appointed as judges by Governor Jay Nixon. Dan was appointed as a circuit judge for the 43

rd Circuit

which serves Caldwell, Clinton, Davies, DeKalb and Livingston counties. He previously served as associate circuit judge for the circuit and as a visiting judge for other circuits. For the past several years he has engaged in private law practice and mediation. Dan has long been a champion of mediation, serving on the original committee that created and organized the statewide MARCH mediation program. Gov. Nixon said, “Judge Chadwick’s long-time experience on the bench and his private practice work in resolving disputes makes him an ideal choice to return as a judge.” Dennis was appointed as Associate Circuit Judge for the 6

th Circuit, Platte County. He has been a lawyer in private practice since 1983 and a

mediator for the past ten years, handling civil and family law cases. Dennis is a former AMM board member and had a starring role as the frustrated homeowner in the AMM Construction Dispute mediation video.

ADR Commission is Surveying Mediators

The Missouri Supreme Court’s Alternative Dispute Resolution Commission is in the process of surveying judges, lawyers, mediators and arbiters about their use of dispute resolution processes. The general survey is measuring the use of various processes and involvement and satisfaction with those processes throughout the state. The survey for mediators seeks input on continuing training requirements and other matters. To comment, contact the Commission at moadrcommn@gmail.com or contact a member of the commission. Commission members are Hon. Jay Daugherty (Kansas City), chairman, Robert Bailey (Columbia), James Condry (Springfield), Michael Geigerman (St. Louis), Maurice Graham (St. Louis), Nancy Kenner (Kansas City), John Phillips (Kansas City), Sarah Read (Columbia), Richard Sher (St. Louis), and Karen Tokarz (St. Louis).

AAM Holds Annual Meeting in St Louis The Association of Attorney Mediators (“AAM”) held its Advanced Attorney Mediator Training and Annual Meeting in St. Louis on March 26-27, 2010. AAM is a national organization made up of attorney-mediators who have completed AAM approved training and meet other qualifications for membership, which include documented licensing and mediation experience. AAM meets twice a year in various locations across the country and is an approved CLE provider by the Missouri Bar. At the St. Louis meeting panels of St. Louis mediators discussed topics such as “Business Divorces”, the use of emotion in mediation and the extension of the joint session beyond introductory comments. In addition, there were discussions about the state of the laws (present and future) governing mediation and a seminar about marketing a mediation practice. Attendees also met in small groups to discuss topics of interest in a social setting.

Award Given to MU Center for the Study of Dispute Resolution

The International Institute for Conflict Prevention and Resolution has given its 2009 “Problem Solving in Law School” award to the University of Missouri CSDR program in Columbia. CSDR was one of the first law programs to integrate alternative dispute resolution into the law school curriculum and has shaped the field for the past 25 years. Masters Program Director John Lande said that the program challenges students by “anticipating the needs of individuals and businesses … in a way that will satisfy people’s interests and needs better to preserve relationships and do things that are more consistent with business needs.”

CMC continues Kansas City mediations

The Community Mediation Center, based in Jackson County, has stepped into the breach to provide mediation to Kansas City residents after termination of the City’s 27 year old program last year. Since May 2009 the Center has served 939 people in 556 cases from 37 different referral sources. In addition to City departments and agencies, referrals are made by the Kansas City Police Department and the Kansas City School District, among others. Landlord and tenant issues are a major source of referrals. “We anticipate a growing need for mediators,” says Diane Kyser, executive director of the Center. “We like to use mediators whom we have trained, so send new recruits to our Fall training.” The Center receives support from various individuals and foundations, including the Kauffman Foundation, Community Development Block Grants and United Way. More information is available at the Center website: www.mediatemissouri.org

Other News

Legal Rulings on Mediation

California - In a federal EEOC case, the court declined to impose sanctions when no interpreter was present to assist the mediator. Lawyers for some of the plaintiffs translated for their clients. The Defendant claimed that the plaintiffs were not participating in good faith because the mediator was unable to communicate directly with the parties. US EEOC v. ABM Industries Inc. (March 3, 2010)

Kansas – The Kansas Attorney General has issued an opinion that the statutory provisions for confidentiality in mediation apply regardless of whether the mediation is court- ordered and covers mediations that occur prior to filing of a court case. AG Opinion 2010-9 (Mar. 29, 2010) Maine – A state court held that evidence from a civil mediation was admissible in subsequent criminal trial. The defendant has been sued for failure to repay a loan to purchase a motor vehicle. No settlement was reached in mediation. The defendant later altered the bill of sale to show the loan paid in full and was charged with forgery. The evidence was admissible over the defendant’s objection because it was not offered for “any substantive issue in dispute between the parties” to the civil mediation. The court stated that “although the parties are free to bargain during civil mediation, they may not use that mediation as a shield behind which to act in furtherance of a crime.” State v. Tracy (Mar. 25, 2010) Missouri – An appellate court upheld an order to pay a mediator’s cancellation fee as a “normal expense” of trying to resolving the case. The trial court had ordered the parties to mediate a wrongful death claim. One party set up the mediation but it did not take place. The court reasoned that public policy and the law favors the settlement of disputes and the expense was appropriate. Hilton et al v. Davita Inc. (Nov. 29, 2009) New York - A bankruptcy court also considered the issue of good faith in mediation. The mediator reported to the court that ordered mediation that one of the creditors only appeared to reiterate their position and was unwilling to offer any dollar figure in settlement or engage in risk analysis. The creditor complained that the mediator should not have refused its request for a pre-mediation list of issues to be discussed. The court found the creditor did not mediate in good faith and that the mediation order vested control of all procedural issues in the mediator. In re A.T. Reynolds & Sons Inc. (Feb. 5, 2010)

Ohio – Statements made in a court-ordered mediation regarding authority to settle were ruled privileged communications. The trial court imposed sanctions on the defendant after counsel told the mediator that his client would not give consent to settle the case. On appeal, the decision on sanctions was reversed on the basis that a statutory privilege exists in the state regarding mediation communications. Anthony v. Andrews (Dec. 4, 2009)

National Mediation News Roundup Connecticut – the State reports that it recovered $3.15 million in resolving consumer complaints filed against insurance companies last year. The majority of the money involved accident and health insurance claims.

Florida – Last December the state Supreme Court adopted a foreclosure mediation program for each state circuit court. Foreclosures involving homestead residential properties will be referred to mediation unless the borrower and lender agree otherwise or have already attempted mediation before filing suit. Borrowers must attend foreclosure counseling. Lenders are responsible for paying mediation fees of up to $750 and additional session fees of $350 per session. Nebraska – Mediators in Nebraska have formed the Nebraska Mediation Association with initial elections to be held on May 13, 2010. The association already has 150 members. Bryan Hanson with The Werner Institute For Negotiation & Dispute Resolution at Creighton University is the first president of the association. Oregon – Mediate.com has received the 2010 American Bar Association Lawyer as Problem Solver Award for its use of legal skills in creative, innovative and non-traditional ways. Founded in 1996, the website is the most comprehensive directory of mediators in the world, listing over 5,000 mediators. Noted mediator Jeffrey Kirvis praised the website as the Google of mediation. U.S. – Mediation has been touted as one of the fifty best careers for 2010 by U.S. News and World Report, expected to expand by 1,400 jobs – or 14 percent growth – between 2008 and 2018, above average for all occupations. The median earnings for salaried mediators in 2009 was $50,550.

Medical Dispute Mediation

The use of mediation to address medical errors is gaining favor. Several states, such as Pennsylvania, have adopted tort reform laws that require disclosure of medical error, providing for an informal apology process and dispute resolution. The “traditional” approach is to stonewall the patient to avoid taking responsibility for the harm. According to JAMA, “a foundation of the patient safety movement is nonjudgmental recognition of the ubiquity of human and system error …with a shift from a culture of blame to a culture of safety.” JAMA cites the Veterans Administration patient safety program that focuses on prevention, not punishment as the “no blame” Patient Safety Model and reports that “it is especially powerful if the physician can maintain a role as an advocate for the patient’s best interests throughout the process, including deliberations regarding potential compensation.” Physicians who have used this dispute resolution procedure report that they find this process more patient-centered and true to their Hippocratic oath to do no harm. Of local interest is the announcement by CoxHealth Hospital in Springfield last February that their CAT scan radiation equipment had been miscalibrated between 2004 and 2009 to deliver excessive doses of radiation to 76 patients. CEO Robert Bezanson held a press conference and announced “we are deeply sorry for our error and how it has affected these patients and their families. CoxHealth takes full responsibility and is doing all we can to care for and support our patients and their families.” A special team of nurse coordinators was created to assist patients and families of patients who received the therapy in question. CoxHealth attempted to contact all patients in person as “the right way to handle this communication.” Most patients expressed their gratitude to hear the news directly rather than from second-hand sources according to the hospital authorities. CoxHealth will pay for follow-up exams, testing, support and treatment recommended by the affected patients’ physicians. Reportedly, few suits have been filed so far over the error. In other news, Texas legislators are attempting to revise problems with a 2009 law that allows patients to use mediation to resolve unexpected medical bills. Specifically, the law seeks to provide redress for “balance billing,” a situation where ancillary healthcare services are provided by out of network providers who have no limitation on the amount they charge, sticking the patient with the unpaid balance. Mediators are working with the Texas Department of Insurance to iron out issues regarding who chooses the mediator and requiring the mediator to determine whether a physician or hospital is negotiating in “bad faith.”

Training Calendar

June 10-11, 2010 – Interdisciplinary Collaborative Divorce Training. St. Louis, Sponsored by the Collaborative Family Law Association. Contact collabtraining@me.com September 1-4, 2010 – ACR Tenth Annual Conference, Chicago, IL. “Many Paths: One Destination” will explore the full spectrum of peaceful conflict resolution and the value of cross-cultural connections. Go to www.acrnet.org for more information

September 17-October 23, 2010 - Mediation Training Modules. 60 hours. Sponsored by Community Mediation Center, Independence, MO. Contact 816-461-8255 October 22, 2010 – AMM Annual Conference, Kansas City, MO. “Springing from Theory to Practice.” Go to www.mediate.com/amm for updated information.

Check the training calendar at www.mediate.com/amm for other upcoming events

Professional Opportunities The Seventh Circuit Office of Dispute Resolution (Clay County/Kansas City) invites mediators to volunteer to mediate disputes on the small claims and landlord/tenant dockets. Newly trained mediators are also welcome to observe and co-mediate cases. Contact Dawn Kuhlman, ODRS at (816) 736-8403 or email to dawn.kuhlman@courts.mo.gov.