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Mediation process can save money, educate and even patch up relationships

 

 By MICHELLE PENTZ-GLAVE
The Santa Fe New Mexican
Monday January 7, 2002
(Not for reproduction)

A photo of Philip Crump, Mediator & Facilitator in his office in early 2002. 

You can tell it's a long time ago because of the CRT monitor in the corner. I'm still in the same office on Luisa.

Mediator Philip Crump practices
in his office on Luisa Street.

(photo: © Craig Fritz/The New Mexican)

Contractor John Doe installs a $5,000 roof on your house, and two weeks later it's leaking like Niagara Falls. A divorcing couple can't agree on how to divide their assets. Five siblings are fighting about who will care for an elderly parent.  Time to call an attorney? Perhaps. But that could cost thousands and take years to resolve.

More and more Santa Feans are opting instead for mediation - a voluntary, democratic and confidential process led by a trained professional who helps disputing parties try to work out a mutually acceptable agreement.

Mediation differs from arbitration, where a judge or qualified official makes the final decision based on the evidence presented; or litigation, where attorneys representing opposing sides argue the case - in public - before a judge or jury.

There are more than 20 mediators working in Santa Fe. [2017 note—there are now three full time professional (i.e., nonlawyer) mediators in Santa Fe]

"It's like massage therapists; there (is an abundance) of mediators in town," said Columbia Mediation Associates' Paul Glickman, who has been a mediator since 1983. "I think it's because Santa Fe is a town open to alternative methods of process. This is an alternative to the legal system, which a lot of people are uncomfortable with or even downright angry with."

Mediation also offers feuding parties privacy.  In the informal model, they sit down with a mediator who helps them communicate and perhaps reach a resolution. Some mediations are face-to-face. In others opposing sides sit in separate rooms and the mediator shuttles back and forth.

"The mediator really should be neutral," said Maria Breheny, assistant director at Santa Fe District Court's Family Court Services. "That makes it an empowering process, because you maintain control."  The session, or sessions, might yield a written document.

"We don't tell clients what to do," said Philip Crump, a private mediator for the past decade. "I try to create a safe place so people can say what needs to be said in ways the other person can hear.  "Part of what we do is train people in more effective ways of communication. And that's a valuable thing."

Formal mediation first emerged in the 1970s and came into its own in the 1980s, according to Sharon Pickett, senior associate at the Washington, DC-based Association for Conflict Resolution, which represents 7,000 members.

In 1998 Congress endorsed the practice by passing an act requiring federal courts to adopt official "alternative dispute resolution" programs.  Nationwide the method has grown dramatically, according to the association:

*Mediation programs on college campuses grew from 18 in 1990 to 220 by 1999.

*Ten years ago there were an estimated 150 community mediation centers. Today there are more than 550.

*In 1998, 88 percent of U.S. corporations said they had used mediation, according to a PricewaterhouseCoopers/Cornell University survey.

"Across all levels of society, people are recognizing they don't have to fight things out in court," Pickett said.

Acceptance is growing in New Mexico. Over the past six years membership in the New Mexico Mediation Association has increased eightfold to 125, association president JoEllen Howarth said.  Mediation began gathering momentum in the late '80s and early '90s in Santa Fe and Albuquerque. Howarth, who runs a successful city alternative dispute resolution program in Albuquerque, said that in 10 years, 200 city employees have trained as mediators.

Faith Garfield, who co-founded the New Mexico Center for Dispute Resolution in Santa Fe in the early '80s, said Albuquerque always has had a strong mediation effort in the municipal courts. "I hope to see more of that in Santa Fe," she said.

Since 1987 Santa Fe's District Court has required couples unable to make their own arrangements for child custody (after an initial workshop) to attend a mediation, either with a private mediator or one of the five at Family Court Services.

In the '80s Santa Fe Public Schools introduced peer mediation for elementary through high-school students.

Mediators can assist in many kinds of conflicts: workplace, landlord/tenant, construction, business, environmental, divorce, family, victim/offender and labor. There are group mediators and community mediators.  Because the field is relatively new, mediators join the profession from various backgrounds: social work, law, education and others.

Crump, for example, worked in construction for 20 years before switching to mediation.

Some states provide professional mediator licensing, although New Mexico does not; and although no formal degree program exists, several organizations offer training.  The University of New Mexico requires its law students to take a class on mediation. In fact many Santa Fe mediators say they get regular referrals from attorneys.

"A lot of lawyers encourage their clients to get a settlement right now on their own terms rather than taking two years getting to court and spending a lot of money when the outcome is unpredictable," Crump said. "One attorney told me, 'Let me handle the law. You handle the fight.' "

Typically nonlawyer mediators here charge from $50 to $125 an hour and both sides split the cost. The number of one- or two-hour sessions required varies depending on circumstances, said Garfield.  The good news, the pros say, is that more than 80 percent of mediation cases are resolved - largely because people come to the negotiation table voluntarily.

But not every case is a good candidate for mediation, the professionals point out. Participants must be ready to try. Groups whose views are too polarized might not come to a solution. And anyone inebriated or on drugs is not fit to take part in a constructive mediation.

Neither Garfield nor Glickman takes physical-abuse cases.  "When someone is in fear of life and limb, you cannot work things out," Glickman said. "The balance of power is too out of whack."

The job of mediator requires great patience, listening skills, a sense of humor, and the ability to instill trust and express understanding while maintaining emotional distance.  Sometimes just getting or keeping one party in the room is the biggest hurdle. Glickman said three elements are important: keeping clients on track; recording what they say as a final agreement; and making dates when things promised actually should happen.

In some cases, Crump said, mediation works magically, whereas in others "it can crash and burn."

"The challenge is resisting the urge to take clients out behind the woodshed and tell them to get a life, get over it," he said, laughing.

"That's the frustrating part. But we have to understand it's a process and people move at their own pace. I try to mobilize respect and understand the clients know best what they need to do.

"The big underpinning of mediation is that people honor agreements they've made themselves."

 

Contact Philip Crump at (505) 989-8558 or Contact me by email!

 

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