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News - The views and opinions expressed in these articles are solely those of the original author and are not necessarily endorsed by the Maine Association of Mediators.  

  • January 29, 2018 3:24 PM | Elizabeth Andrews (Administrator)

    Years ago, someone gave me a mug that said, on one side, “talk is cheap, and on the other side, “until you hire a lawyer.” According to a posting on the Internet, it was P.T. Barnum who first coined this phrase, a variation on a much older saying, “Talk is cheap, but whiskey costs money.” The original intent of that phrase was to belittle mere braggadocio, and to remind us that actions speak louder than words.

    The utterances of President Trump are a reminder that even when we don’t value our own words, they may have a cost.

    “Credibility” is defined as “the quality of being trusted and believed in,” and the word itself dates back to the 1590’s, from Medieval Latin “credibilitas.” However, the concept is so fundamental to human society that it must have existed long before that particular term was coined. Even as children, we learn not to trust someone who goes back on his word.*

    According to Wikipedia, “Credibility has two key components: trustworthiness and expertise, which both have objective and subjective components. Trustworthiness is based more on subjective factors, but can include objective measurements such as established reliability. Expertise can be similarly subjectively perceived, but also includes relatively objective characteristics of the source or message (e.g., credentials, certification or information quality).”

    Lawyers, mediators and arbitrators (and sometimes even politicians) know how important credibility is. The parties to labor negotiations know how important it is. The fact is that credibility plays an important role in our lives almost daily. We believe/trust that the credit card company will honor our transactions, and keep our personal data safe; we believe/trust that the bus, the train, the uber driver, will arrive on time. And occasionally we are disappointed: our credit card is wrongly rejected, or our personal data is hacked, the bus is delayed. And when individuals or businesses or governments lose credibility, when we stop trusting them, the consequences can be severe.

    The importance of credibility in our daily lives is reflected in the many ways that it finds expression in colloquialisms. “Talk is cheap,” is one; “say what you mean and mean what you say” is another;** to “walk the talk” is another way of saying the same thing. When you repeatedly say things that are manifestly untrue, when you repeatedly contradict what you said before, when you repeatedly scorn and mock others because of their race, gender, religion or physical attributes, you pay for that kind of talk with the coin of your personal credibility. And when you are the President of the United States, you are also paying with the nation’s credibility. It is fair to say that one year into his presidency, no one on Capitol Hill trusts the President to keep his word, and none of the other countries in the world trust the United States. That is a heavy price to pay for cheap talk.

    *The Popeye cartoons enjoyed by a generation of children featured the character J. Wellington Wimpy who was famous for his mendacity in telling others, “I’ll gladly pay you Tuesday for a hamburger today.”

    **This phrase appears to have originated in a passage from Alice In Wonderland, by Lewis Carroll: “Then you should say what you mean, "the March Hare went on. "I do," Alice hastily replied; "at least--at least I mean what I say . . .”

    About the blogger:

    Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).

  • November 15, 2017 4:31 PM | Elizabeth Andrews (Administrator)

    Beverly Wellner and Janis Clark - the wife and daughter, respectively, of Joe Wellner and Olive Clark - each held a power of attorney affording her broad authority to manage her relative’s affairs. When Joe and Olive moved into a nursing home operated by Kindred Nursing Centers, Beverly and Janis used their powers of attorney to complete all necessary paperwork. As part of that process, each signed an arbitration agreementon her relative’s behalf providing that any claims arising from their stay at the facility would be resolved through binding arbitration. After Joe and Olive died, their estates (represented by Beverly and Janis) filed suits alleging that Kindred’s substandard care had caused their deaths. Kindred moved to dismiss the lawsuits, on the grounds that they were barred by the arbitration agreements. The trial court denied Kindred’s motions, the Kentucky Court of Appeals agreed, and the Kentucky Supreme Court consolidated the cases and affirmed. The court initially found that the language of the Wellner power of attorney did not permit Beverly to enter into an arbitration agreement on Joe’s behalf, but that the Clark document gave Janis the capacity to do so on behalf of Olive. Nonetheless, the court held, both arbitration agreements were invalid because neither power of attorney specifically entitled the representative to enter into an arbitration agreement. Because the Kentucky Constitution declares the rights of access to the courts and trial by jury to be “sacred” and “inviolate,” the court ruled that an agent could deprive her principal of such rights only if expressly provided in the power of attorney. The U.S. Supreme Court reversed.

    The Federal Arbitration Act, the Court held, makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U. S. C. §2. A court may invalidate an arbitration agreement based on “generally applicable contract defenses,” but not on legal rules that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue,” AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 339. The Act thus preempts any state rule that discriminates on its face against arbitration or that covertly accomplishes the same objective by disfavoring contracts that have the defining features of arbitration agreements. The Kentucky Supreme Court’s clearstatement rule failed to put arbitration agreements on an equal plane with other contracts, and by requiring an explicit statement before an agent can relinquish her principal’s right to go to court and receive a jury trial, the court did exactly what the FAA prohibited: adopt a legal rule hinging on the primary characteristic of an arbitration agreement.

    The Court remanded for consideration by the Kentucky Supreme Court of the validity of the Wellner document, independent of its application of the flawed rule.

    581 U. S. ____ (2017), Thomas, J., dissenting; Gorsuch, J., took no part in the consideration or decision of the case.

    About the blogger:  

    Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).

  • October 13, 2017 4:19 PM | Elizabeth Andrews (Administrator)

    The parties to this litigation agreed to submit all of their claims, counterclaims and cross-claims to mediation before Attorney Jerrol Crouter on June 10, 2016. In the mediation, the parties agreed to a settlement which required them to “exchange mutual releases of all claims that exist as of the date of the release.” The settlement term sheet provided that “any disputes as to the language of this Term Sheet or the final settlement documents will be submitted to arbitration” with Attorney Crouter. There was a significant delay in the execution of the releases, and in the interim a leaky dishwasher in the restaurant operated by 3Crow and Hixson caused damage to the property that they leased from Rockwell, and 3Crow terminated its lease before the agreedupon termination date of February 28, 2017. An arbitration hearing was held before Attorney Crouter on December 8, 2016. The essential disagreement between the parties was whether the effective date of the releases should be the date of the mediation or the date the releases were signed [by the date of the hearing no releases had been signed]. In a pair of decisions issued on December 19 and 28, 2016, Attorney Crouter ruled that all of the parties’ claims were released with the exception of three (3) claims that he specifically identified, which arose after the date of the successful mediation. Rockwell then brought suit in Superior Court to vacate the awards.

    Plaintiff Rockwell’s argument was that the arbitrator was limited to two choices: (1) the releases should be effective as of the date of the mediation or (2) the releases should be effective as of the date they were signed. Rockwell argued that the arbitrator exceeded his authority by “carving out” claims that arose subsequent to the date of the mediation, from the releases. The Court rejected this argument. Neither side had challenged Crouter’s authority to arbitrate the dispute, the language of the settlement set forth in the Term Sheet gave the arbitrator broad authority to resolve “any disputes,” and the arbitrator’s decision to carve out claims arising after the date of the mediation was not arbitrary or capricious.

    Rockwell v. 3Crow, LLC and Joshua Hixson, et al., Business and Consumer Court, BCD-CV-15-62; BCD-CV-16-026 (Murphy, J. May 22, 2017).

    About the blogger:

    Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).

  • September 02, 2017 11:55 PM | Elizabeth Andrews (Administrator)

    In a per curiam opinion that issued on May 30, 2017, the Maine Supreme Judicial Court affirmed a judgment of the Superior Court denying an application to vacate arbitration awards and confirming those same awards.

    In 2011, the Woodland Pulp Mill in Baileyville, Maine, constructed a 4.5 mile natural gas pipeline connecting the mill to the interstate Maritimes & Northeast Pipeline, which runs from Nova Scotia to Massachusetts. In 2013, Xpress Natural Gas entered into a contract with Woodland to lease space on its property for a CNG/LNG facility and to lease capacity on Woodland’s pipeline to supply gas to its facility. Subsequently, a dispute arose when Woodland claimed that Xpress was “nominating” (ordering) more gas than it was using - in effect, using the pipeline to store gas when the price was low that it could later sell at a higher price. Although the parties’ contract was silent on this issue, Woodland claimed that the contract included an implied term incorporating a standard industry practice that required Xpress to “balance” its nominations with its usage. The contact contained an arbitration clause that defined a “Dispute” as “any dispute, claim or controversy arises out of this Agreement, including the performance, breach, validity, interpretation, application or termination thereof . . . which the Parties are not able to settle or resolve . . .” and went on to provide that:

    Any Dispute that is not [mutually] resolved . . . shall be finally resolved by binding arbitration in accordance with the then current expedited commercial arbitration rules of the American Arbitration Association . . . and judgment on the award may be entered in any court having jurisdiction thereof.

    The parties selected an Arbitrator,* and hearings were held before him on October 13 and 14, 2015. In a decision dated November 25, 2015, the Arbitrator concluded that “The failure to include a specific provision in the [contract] addressing the issue of potential imbalances created a significant ambiguity as to the parameters of Xpress' rights and obligations” and agreed with Woodland that the parties’ contract contained an implied term requiring Xpress to balance its nominations with its usage, in accordance with standard industry practice. The Arbitrator gave the parties 30 days (later extended) to negotiate such a provision but when negotiations failed the Arbitrator held another hearing, on February 19, 2016, and issued a supplemental decision which defined the terms of the “balancing” provision.

    In denying Xpress’ appeal from the Superior Court and confirming the Arbitrator’s awards, the SEC began by recapitulating the applicable legal standard [note: all legal citations have been omitted from the following text]:

    The standard for showing that an arbitrator exceeded his powers is “an extremely narrow one” in large part because the parties have bargained for the arbitrator’s construction of the contract at issue . . . We generally resolve any doubts in favor of the arbitrator’s authority and will uphold the arbitration award — even if it contains errors of law or fact — “if any rational construction of the agreement could support [the arbitrator’s] interpretation.” Id. (quotation marks omitted); . . . (“If this [arbitration] award can in any rational way be derived from the agreement, viewed in the light of its language, its context and any other indicia of the parties’ intention, it will be upheld.” (emphasis added)).

    Contrary to Xpress’s contention on appeal, the arbitrator did not exceed his authority pursuant to 14 M.R.S. § 5938(1)(C). Considering that the parties themselves could not determine Xpress’s rights pursuant to the agreement, the arbitrator found that the agreement was ambiguous, examined the intent of the parties in entering the agreement, and implied a balancing obligation to remedy the ambiguity. . . . (“A contractual provision is considered ambiguous if it is reasonably possible to give that provision at least two different meanings.” (alteration omitted) (quotation marks omitted)).

    In issuing the supplemental award, the arbitrator did expand upon Xpress’s implied obligation to “reasonably balance” its nominations and consumption of natural gas by adding terms including remedies for any future imbalances . . . The arbitrator did so, however, only after finding that the parties had understood in entering the agreement that Xpress would “adjust its use [of the pipeline] to accommodate Woodland’s [balancing obligations],” that the balancing terms proposed by Woodland were appropriate “for the foreseeable future” but could be revisited if Xpress’s business grew, and that the remedies for future imbalances proposed by Woodland were “appropriate and consistent with reasonable industry standards . . .” Given these findings, the arbitration awards did not “directly contradict the language of the agreement . . .”

    ____________

    *Attorney Peter DeTroy, who died of cardiac arrest on May 28, 2016. The lead attorney for Woodland was William S. Harwood of Verrill & Dana; the lead attorneys for Xpress were Peter Brown of Preti Flaherty & Belliveau (who handled the arbitration) and Tim Norton of Kelly Remmel & Zimmerman (who handled the appeal).

    About the blogger:

    Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).

  • August 28, 2017 11:29 PM | Elizabeth Andrews (Administrator)

    There are unique aspects about condominium disputes that make consideration of early intervention mediation a good idea. Unlike most types of litigation, condominium disputes often put neighbors who share common property interests and see each other daily in an adversarial position. Assessments for legal expenses cause resentment among association members and often exacerbate an already emotionally charged situation. Prolonged litigation can divide the community and adversely impact the value of all owners’ units.

    Because these disputes often involve a relatively modest amount of fines, property damage or unpaid dues, at least initially, the attorney’s fees andexpenses of litigation can often be out of proportion to the amount in controversy. Once the onset of litigation and the passage of time cause attorney’s fees and fines for violations to increase, disputes become increasingly difficult to resolve. Despite the ability to collect fines and attorney’s fees if associations prevail in litigation, Courts frequently reduce the amount of those claims, leaving associations with attorney’s fees significantly in excess of what is awarded by the Court, not to mention the collection difficulties from unit owners that subsequently follow.

    Mediation early on in condominium disputes gives the parties an opportunity to explore resolution before legal expenses become "the tail that wags the dog" and before the heightened emotions and polarization that occur when a lawsuit is filed. Engaging in mediation procedures that create an environment where conversations are about resolution instead of litigation promotes community harmony, which is in the best interests of all unit owners. Provided the concept is properly presented and fairly administered, mediation at an early stage of the condominium dispute can be used with or without attorney involvement. Chances for resolving disputes are often improved just by affording the unit owner the opportunity to have his or her side heard by a neutral person. The cost and scheduling of mediation can usually be tailored to the nature of the dispute and the needs of the parties.

    About the Blogger:

    Peter Schroeter, Esq. is a Mediator with the firm of Shaheen & Gordon. He is a member of the National Academy of Distinguished Neutrals, rated AV by Martindale-Hubbell and recognized by Best Lawyers in America in mediation.

  • August 02, 2017 11:15 PM | Elizabeth Andrews (Administrator)

    Plaintiff Thomas Makowski was employed by Maine Standards as a sales manager, starting in 2011, and one of the terms of his employment was that he could telecommute one day a week from his home in New Hampshire. After Maine Standards was acquired by an English company, he signed an employment agreement which contained the following language:

    All claims between the Company and Manager with respect to this agreement shall be resolved by binding arbitration . . . administered under the rules and regulations of the American Arbitration Association with the Federal Rules of Evidence applicable in all respects thereto.

    Makowski was terminated in April 2016 for not appearing at work, but claimed that his absence was necessitated by a medical appointment. He was reinstated but was again terminated in June, and filed suit, claiming that his termination violated his employment contract and constituted unlawful retaliation for exercising his rights under the federal and Maine Family Medical Leave Acts. Maine Standards moved to stay the case pending arbitration.

    The Superior Court stated that the issue before it was whether Makowski’s statutory claims of unlawful retaliation qualified as “claims with respect to [the employment agreement].” The court noted that all of Makowski’s claims for breach of contract were based, at least in part, on actions by the company to end his telecommuting arrangement. At the same time, Makowski claimed that the unlawful retaliation began when he stayed away from the office (to attend a medical appointment) on one of his telecommuting days, and that the telecommuting arrangement evolved into an accommodation under the family medical leave statutes.

    The court held that because Makowski’s statutory claims were “factually intertwined” with his contractual claims, the statutory claims were also arbitrable, and granted the motion to stay the case pending arbitration.

    Makowski v. Maine Standards Co. LLC, Maine Superior Court (Warren, J.) Cumberland Dkt. No. CV-16-276, June 19, 2017.

    About the blogger:

    Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).

  • July 19, 2017 10:34 PM | Deleted user

    “Would you take me to go look at the yellow flowers?”

    It seems like a simple request, but it was, in fact, perfectly tailored to meet both my nephew’s needs and his in the moment.

    I was visiting my family. My mother had suggested that I go look at the yellow flowers in her garden and I brought my two-year-old nephew along with me to see them.

    He spent less than 30 seconds looking at the yellow flowers. What caught his eye was the ceramic turtle nearby. While I checked out the flowers, he happily played with the turtle. Then, while I waited, he continued to play with the turtle. Finally, after a bit, I brought him back inside where the rest of the adults were.

    We adults resumed our conversation, which was not very exciting for a two-year-old boy.

    “Aunt Meredith,” he asked, “would you take me to go look at the yellow flowers?”

    Time stopped for a second, at least on my end, as I processed this request.

    “I don’t think you want to go see the yellow flowers,” I said. “I think you want to see the turtle.”

    “Yes!” He beamed. “Would you take me to see the turtle?”

    My nephew is two and he can create a win-win situation and sell it to me as being all about me.

    I’m not asking you to go that far. I think it’s better to be transparent and tell the person how the proposed solution could benefit everyone involved.

    Still, he is only 2. And we were able to have a conversation where we each saw and spoke about the benefit that the other person could get out of the same event.

    When we are in conflict, we can lose sight of anything other than what we want. We can’t see what the other person wants and we don’t care what the other person wants. We get tunnel vision.

    When you find yourself getting tunnel vision, when all you want to do is focus on is the turtle, take a step back and look for a way to meet both your needs and the needs of the other person. Look for the turtle AND the yellow flowers.

    About the blogger:

    Meredith Richardson, Esq., CPC, is a conflict management specialist. She works as a Mediator, Dynamic Facilitator, Trainer, and Conflict Coach in Maine, New Hampshire, and New Orleans, LA. Meredith began working in conflict as an attorney, a litigator. In that role, Meredith found that the people who came to her often were quite skilled at fighting, but seemed to have lost the ability to get along. She wanted to help them to navigate conflict successfully. Mediation, Dynamic Facilitation, conflict coaching, and training all allow her to do that. http://meredithmediates.com/


  • April 17, 2017 9:33 AM | Deleted user

    Most construction contracts contain a dispute resolution clause, setting forth in advance the manner in which disagreements regarding the contract will be addressed.  Maine’s Home Construction Contract Act requires, at a minimum, a statement allowing the parties the option of adopting a method for resolving contract disputes without the time, cost, expense, and uncertainty that comes with litigation.  Typically, the statement sets forth a choice between arbitration or mediation.  Most standard form construction contracts also contain dispute resolution provisions.

    Copyright bmwwm 123RF Stock PhotoIn construction cases, disagreements often involve factual issues of workmanship, delay, cost, and differences of opinion and expectations, rather than complex legal issues.  Especially in residential cases, the parties tend to be emotionally charged and
    frustrated.  A well-trained mediator can be a productive neutral force between homeowners, who do not take lightly their investment in a significant asset (their home), and contractors, who do not appreciate their workmanship being called into question.  Both parties tend to want to put the matter behind them, and a properly run mediation session can help them achieve this common goal.

    Disputes between contractors and their suppliers or subs can also be detrimental in a business sense.  In addition to the cost, delay, and bad feelings litigation can foster, important business relationships between the parties can be put at risk.  Maine is a small state, and a good mediator can help the parties mend fences so that they can continue to support each other in the close-knit  construction industry.

    When selecting a mediator to assist with your clients’ construction disputes, an attorney with a strong background in all avenues of construction litigation is advisable.  An experienced construction mediator can more efficiently prepare for the mediation without spending the parties’ time and money to learn the fundamentals of the construction business.  In addition, an attorney who has successfully handled several construction cases over a period of many years can offer insight as to what a court may do with a particular legal position, and/or what obstacles the parties and their lawyers may face at trial.  After a successful mediation, the parties are able to move on, without the uncertainties and expense of protracted litigation.  Even when a mediation session does not completely resolve a dispute, it can often narrow the issues and/or partially bridge certain gaps in the parties’ positions and expectations, hopefully making the matter ripe for settlement down the road.

    About the blogger:

    Sonia J. Buck is a litigation attorney as well as a trained mediator.  Attorney Buck serves on many mediation rosters, including the Superior Court’s roster for mediation, arbitration, and early neutral evaluation.  Her court mediation work also includes family law cases, small claims, landlord-tenant matters, and foreclosure diversion mediation.  Sonia is a board member of the Maine Association of Mediators and was appointed to the Association’s roster for the Maine Real Estate Mediation Program. She also handles private mediations with a heavy focus on real estate, construction, business, and contract disputes.

  • April 03, 2017 3:14 PM | Deleted user
    Here are several books that mediators might find interesting and useful.

    1. In their book, Mistakes Were Made (But Not by Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts (Harcourt, Inc. 2007), psychologists Carol Tavris and Elliot Aronsonexplore and explain why it is so hard for presidents, bishops, police and prosecutors – and all the rest of us – to admit mistakes:  “Most people, when directly confronted by evidence that they are wrong, do not change their point of view or course of action but justify it even more tenaciously. Even irrefutable evidence is rarely enough to pierce the mental armor of self justification.”  The book explains cognitive dissonance and related concepts (such as the confirmation bias) and illustrates how they permeate every aspect of our society. The examples range from the tragi-comic story of cult members who gave away their earthly belongings in anticipation that they would be transported to another planet by aliens, to the truly tragic stories of innocent people convicted by police and prosecutors who persuaded themselves that the accused were guilty, despite irrefutable evidence of their innocence, or of social workers who convinced themselves that they were eliciting repressed memories of sexual abuse from children, when in fact they were implanting such “memories.”

    2. For many years, economists pursued theories premised on the assumption that consumers make rational choices. It turns out that this is not necessarily so: our decisions are hobbled by all kinds of biases, as shown by the work of Israeli psychologists Daniel Kahneman and Amos Tversky, described in a new book by Michael Lewis, The Undoing Project: A Friendship That Changed Our Minds (W. W. Norton & Company 2016). Kahneman and Tversky challenged prevailing assumptions about the decision-making process and showed the ways in which the human mind errs, systematically, when forced to make judgments in uncertain situations. Their work created the field of behavioral economics, and advanced the field of evidence-based medicine, among other advances.

    3. The February 17, 2017 issue of The New Yorker contains a review by Elizabeth Kolbert of three other new books. In The Enigma of Reason (Harvard Univ. Press 2017), cognitive scientists Hugo Mercier and Dan Sperber argue that our ability to reason did not evolve to enable us to solve abstract or logical problems, but instead to help us resolve the problems posed by living in collaborative groups. In a nutshell, it was more important to our hunter-gatherer ancestors to win arguments and maintain their social standing in the group than to reason clearly. In The Knowledge Illusion: Why We Never Think Alone (Riverhead Books 2017), professors Steven Sloman and Philip Fernbach describe how and why people believe that they know way more than they actually do, which they call “the illusion of explanatory depth.” Our reliance upon other people’s expertise has served our species well in the area of technology, they argue, but not so well in the area of politics and policy making. For example, when A has an opinion on, say, the Affordable Care Act that is baseless, and B relies on it, B’s opinion also is baseless; when B talks to C and C agrees with his opinion, C’s opinion is also baseless, but now that the three of them concur, they reinforce each others’ belief and tend to reject any information that contradicts their belief (remember what Tavris and Aronson said about cognitive dissonance and the confirmation bias in Mistakes Were Made?). Finally, in Denying to the Grave: Why We Ignore the Facts That Will Save Us (Oxford Univ. Press 2016), Jack and Sara Gorman cite research that suggests that we experience genuine pleasure – a rush of dopamine – when processing information that supports our beliefs, even when those beliefs pose a real threat to our well-being, such as the conviction that vaccines are dangerous.

    X

    About the blogger:

    Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).


  • March 05, 2017 10:55 AM | Deleted user

    Many people with aging parents may be all too familiar with the following situation. A decline in the functional status of an elderly parent forces the need, sometimes suddenly and unexpectedly, for a family to have to make major complicated decisions about the parent’s well being. Forgetfulness and physical difficulties performing household activities such as cooking, cleaning and climbing stairs trigger the need to assess care giving and changes in living situations. Driving mishaps such as a fender bender or difficulty in reaching familiar destinations prompt consideration of whether it is time to “take the keys”.

    DIFFICULT DECISIONS FOR FAMILIES

    Although there has been a growing awareness among the adult children of potential problems, there may not yet have been any serious collective discussion or planning. The family members are geographically spread out and have different levels of involvement with their parents and knowledge about their healthcare and financial situation. The adult children have dissimilar financial and family circumstances that create diverse perspectives on care giving roles and financial management and asset distribution.

    In view of the medical, legal, financial and emotional challenges of the aging transition decisions that have to be made, the potential for disagreement and conflict among the family is high. There is the inevitable tension between the parent’s desire for independence and their increasing need for support. Those who have been providing for most of the care needs may be resentful of those that have not and believe that they should receive “caregiver equity”. Old issues of sibling rivalry and parental favoritism can rise to the surface, making already difficult communications that much harder.

    According to elder law attorney Martin Womer of Maine Center for Elder Law in Kennebunk, Maine, dysfunctional communications among family members is apt to occur “when it is about to become expensive” due to the need for change in the parents living situation, such as the provision of extensive care giving or moving to an assisted or full care living facility. As Womer explains, “What you often see is a sibling who has been uninvolved in what is happening, suddenly wants to be an equal participant or take control of the situation to protect his or her inheritance. If the communications about the decisions that need to be made then become confrontational or are avoided because of the tension, there can be serious adverse consequences, including litigation which destroys family relationships.”

    USING MEDIATION TO ADDRESS ELDER ISSUES

    To deal with these difficult communications and decisions, families are increasingly turning to Elder Mediation as a process to help avoid and resolve disagreement. The growing national trend is not surprising when considering that the 85 and over age group is the largest growing demographic in the United States and there are over 20 million adult children acting as caregivers, 60% of whom are still working.

    Elder Mediation provides a forum for the family members to be heard, learn what is important to each participant, face disagreement, find common ground and develop creative solutions. The process is nonbinding and confidential, participation is voluntary and decisions are made by consensus, not by the mediator. The mediator is a neutral party skilled in listening, diffusing tensions and identifying the interests of the participants. When there is no professional neutral present to help guide the family members towards finding common ground, family meetings can expose more pain than resolve problems.

    Mediation can be particularly helpful to elder law attorneys faced with the potential conflict of representing the senior, but necessarily having to deal with family members whose positions conflict with that of their client. On behalf of the senior, the attorney often works closely with one of the adult children who has been most involved with their parents’ situation. When communications occur between the attorney and other siblings with differing views on decisions that need to be made, the issue of “who is the client?” is raised for the attorney. According to Womer, “While the attorney can explain the options and legal ramifications to siblings not allied with their parents, they cannot advocate their positions, even if they have merit, without risking a perceived or actual conflict, and their ability to advocate for their client can be compromised by their effort to achieve consensus,”

    HOW ELDER MEDIATION WORKS

    Because it typically occurs when there is disagreement over aging parent decisions that have not yet risen to the level of dispute were attorneys have been hired or litigation started, the mediation process is different from that which is commonly experienced in pending probate or other types of litigation. Mediation in those settings typically starts with the submission of position papers with detailed factual and legal analysis by the opposing attorneys. At the mediation session opening presentations are made with all the parties together followed by back and forth negotiations conducted by the mediator meeting with the parties separately.

    The elder mediation process begins with an intake session between the mediator and family member, trusted advisor or referring professional who has initiated contact. Preliminary background information is obtained and there is a discussion of who should participate and how payment will be handled. The decision to move forward with the process and the details are set forth in a participation agreement signed by everyone.

    Once the agreement is in place, the mediator conducts private sessions with all of the parties, usually by telephone. The sessions provide an opportunity for a confidential exploration of each party’s interests and their view of their parent’s needs and the position of others. Womer says “that it is this type of communication, which can be critical to finding out important family dynamics, that an elder law attorney cannot have with family members not allied with their client”. Information is obtained to identify any behavioral or relationship issues that need managing at the group session and any potential neglect or abuse.

    Based upon the information developed from the private sessions, the mediator prepares an agenda and suggested topics list for the mediation session. Although the session is run as a group session, the location will have extra rooms for the parties to meet privately with each other or with the mediator to help deal with confrontational or emotionally charged communications and to conduct separate negotiations if necessary. Depending upon their physical and mental health, the participation of the parents can range from not at all to being present for the entire meeting.

    The meeting proceeds with a focus on identifying interests and facilitating understanding between the participants. It typically lasts a half day, but can be shorter or longer or continued to another session as may be agreed. To the extent that understandings and agreements are reached, the mediator will work with the participants to draft language for memorandums of understanding and agreements which are helpful to solidify decisions and provide guidance for communications on future issues. Attorneys participating for some or all of the parties at the session or available as a resource can enhance the progress towards settlement by explaining legal issues and reviewing and drafting agreements.

    Although some may be skeptical and resistant to the idea of paying “an outsider to tell them how to run family business”, Elder Mediation can save families from the potentially devastating financial and emotional costs of waiting too long and then having to make decisions in “crisis mode”. Attorney Womer believes “that it is an underutilized opportunity to resolve issues and overcome communication problems that can create ticking time bombs”. The process allows everyone to be heard and express what they want to happen in a safe environment. It helps the parties to be open-minded, respect each other’s viewpoints and develop a sense of optimism that the group can come up with good solutions, all of which are important to making the best decision for the parent’s well-being while preserving family relationships. Because the relationships involved and the decisions that need to be made are continuing, the value of Elder Mediation goes beyond the resolution of pending issues by creating a blueprint for future decision-making.

    About the blogger:

    Peter Schroeter is an attorney with Shaheen & Gordon, PA., where his practice focuses on Mediation and Dispute Resolution Services. He is a member of the National Academy of Distinguished Neutrals, rated AV by Martindale-Hubbell and recognized by Best Lawyers in America in Mediation


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