Maryland Mediation Blog

Recently, a small group of people gathered to honor the birthday of a middle aged woman ("birthday girl"). She, her two young adult daughters, and three other women dined at a family owned Mediterranean restaurant. The waitstaff are always friendly and accommodating, and the aging owner delivers a free plate of assorted desserts to his regular customers.

Usually the volume in the restaurant is such that you can hear the conversation at your own table, and if you really listen, perhaps that of the table next to you. This evening was different because of the frequent and abrasive remarks of birthday girl sitting two tables away. "This bread isn't fresh!" She barked.

When the waitress apologetically replaced the bread, birthday girl did not acknowledge the waitress. When the appetizers were delivered, birthday girl hissed, "this tea does not have enough ice!"

"I'm sorry Ma'am." The waitress responded apologetically. "I will bring you another glass."

When the waitress returned with another glass of iced tea, birthday girl snarled, "why didn't you give us more olives?" By this time, birthday girl's daughters and friends looked as if they wanted to crawl under the table.

"Yes, Ma'am, I will bring you more olives right away." The waitress said as she scurried back to the kitchen.

Birthday girl could have obtained everything she wanted without embarrassing herself, her daughters, friends, and the waitress.

Especially when you are angry, how you communicate effects how you are heard. Emotions significantly effect communication and negotiation. If you are having difficulty getting your point across, or settling a dispute your emotions may be in the way. You do not have to lose the emotion, but, you may need to communicate more "creatively."

Mediation is confidential way to resolve problems. A mediator is a neutral third party who can help you communicate and negotiate more effectively. Mediators assist people in dispute to communicate more effectively, despite the strong emotions in the room, examine issues, identify solutions, and negotiate agreements.

In my Maryland mediation practice it is possible to schedule a mediation the same week you call. You may be able to reach an agreement in one session. Mediation costs $100 per hour per person. There are no up front retainers.

Do you have a dispute which you have not been able to resolve? Are you thinking about filing, or have you filed, a lawsuit?

Is your argument well supported by law? Or, are you hoping the passion of your moral and/or ethical argument will persuade a judge to overlook the fact your argument is not supported by law?

Are you comfortable with 50:50 odds in court? What happens if you go to court and do not win?

Do you know what you say in court is not confidential?

Would you consider a confidential alternative to going to court?

Mediation is a confidential win - win process. A mediator is a neutral third party who facilitates communication between people in dispute. A mediator assists people in dispute identify issues and alternative solutions, and negotiate and reach an agreement. A mediator is not a judge and does not decide who wins or loses, or who has the best argument.

If you are unable to reach an agreement in mediation you still have the right to go to court. Furthermore, what you discuss in mediation may not be discussed in court.

In my Maryland mediation practice it may be possible to schedule a mediation session the same week you call.

Depending on the nature of your dispute, you may reach a resolution in one session.

The cost is $100 per hour per person.

Mediation of disputes by trained students (peer mediators), helps prevent bullying and violence in schools and resolve conflicts among students. Peer mediation is used in Maryland schools and schools throughout the United States. Peer mediation is a confidential and voluntary process. Peer mediators are trained in conflict management and negotiation skills, which they learn through role-play, and problem based learning.

Peer mediators help keep the peace in schools. They help students in dispute resolve conflicts, but do not make decisions about which student has the winning argument.  Peer mediators seek to move students in dispute from blaming each other to finding a mutually satisfactory resolution to their dispute. Peer mediators help students with issues such as cheating, stealing, classroom and/or extracurricular disputes, rumor spreading/gossip, relationship problems, harassment, racial and cultural conflicts, and fighting. Problems that are more serious, for example, sexual abuse, assault, suicide, drug use, and possession of weapons require professional intervention.

Children more readily speak to their peers than to adults. Peer mediators mirror the diversity found among the students with whom they will mediate, for example, culture, gender, and race. Peer mediators learn communication skills which help them help their peers prevent and resolve conflict. Students with more serious conflicts may be helped by peer mediators to keep disputes out of the judicial system.

Peer mediation seeks to empower students, help them listen to one another, put themselves in the shoes of another student involved in the dispute, discuss the dispute, and think critically. Peer mediators help students improve self-esteem. Additionally, peer mediators help students gain communication and conflict management skills which are used both in and outside of school.

Continue reading "Peer Mediation - Students Helping Students Resolve Conflict" »

What is the value of your dispute? What is your friend willing to pay/offer? How much can you obtain in small claims court? What will it cost you to file a claim? Will you hire an attorney? If you have a contract, will you end up paying more to enforce the contract than it is worth?

How much time do you think a judge will give you and your friend to bicker in the court room? What will you do if the judge tells you to go out in the hall and work it out? When your friendship took on another dimension did you discuss how you would resolve a business dispute? Did you consider if a financial dispute does not kill your friendship that litigation surely will?
Mediation allows friends in dispute to maintain a relationship and in many cases repair it. There are no two people more qualified to debate and resolve the issues of your conflict, than you and your friend. Mediation, unlike litigation is a confidential process. In a court room any one can enter and listen. Mediation is voluntary. Should you and your friend not resolve your dispute in mediation, you have the right to litigate in court, where a stranger (judge) will decide the outcome of your dispute.

In my Maryland mediation practice, mediations are scheduled in a safe, peaceful environment, in two-hour sessions. The fee for mediation is split equally between the parties in dispute. A mediator is a neutral third party, who does not decide which party is right or wrong, or who wins or loses. A mediator assists people in dispute rationally and respectfully discuss the issues in dispute, possible solutions, and negotiate a resolution to the dispute. You and your friend can control your destiny and each walk away with at least some of what you want. If, and when, you litigate a dispute in court, one of you will leave a total loser. Who it is may unfortunately surprise you.

Do you have a home improvement project and a friend who will complete it for less? Do you have a friend who is a photographer, and while he or she does not usually do weddings, has agreed to photograph yours? Are you opening a business? Do you need the skills of your friend to run the business? Is your secretary on indefinite leave? Or, has she quit? Have you in desperation accepted the offer of a friend to work for you?

How did you communicate your expectations to your friend? How much money does your friend expect to receive? Are you sure you agreed to pay, what your friend expects to receive? Did your friend say how long the job would take to complete? What will you do if the job takes significantly longer to complete, or is not completed to your satisfaction or specifications? Did you communicate to your friend the job is temporary or on a trial basis? Did the two of you agree on all the terms? Are you sure?

Friends help friends for free. When friends work for friends, they become employers, employees, or clients. People who work for clients use contracts, which spell out the terms of service and protect both parties in case of dispute.

If you are afraid to insult a friend by insisting on a written agreement, what do you think will happen when there is no agreement and you have a dispute? If your friendship cannot survive the writing of an agreement, will it survive a disagreement?

If you have a dispute with a friend with whom you are doing business, how will you resolve it? Will you go to court? If you do not have a written agreement or contract, what evidence do you have of an agreement? Do you think your friend will agree with what you say when you explain your verbal agreement to the judge? For what relief will you ask the judge? What makes you think you will get it?

(Continued in Part II: Mediation & Business Disputes with Friends)

Construction is costly enough without minor conflicts and disagreements bursting into full blown disputes. Disputes between engineers, architects, contractors, subcontractors, suppliers, and/or owners increase the use of all parties' precious resources that is, time and money.

In my Maryland mediation practice, there are many fact patterns which are heard again and again in construction mediation, such as: the simple act of an owner visiting a construction site causing workers to think they are being second guessed rather than understanding the homeowner is excited about the completion of his/her project and wants to watch the progress; or home owners hiring subcontractors, whose prices appear more than competitive, which fails to camouflage underlying problems, such as the subcontractor's inability to accurately bid the cost of materials and labor, or shoddy performance issues; or architectural firms hiring subcontractors to provide services for agreed upon prices, then halfway through the job subcontractors running into unforeseen difficulties and refusing to continue without more money.

Mediation is a process which assists parties resolve disputes without litigation. In construction mediation, the mediator, a neutral, third party, assists the parties with such issues as contract claims and construction disputes. The aim of construction mediation is to assist the parties to resolve their disputes in as timely and cost effective a manner as possible, while maintaining the business relationship to the extent necessary to continue the project.

Construction mediation helps parties resolve construction disputes before the cost of the dispute exhausts the parties' resources and destroys the business relationship. A construction mediator facilitates communication between what are often "very strong personalities," who are not interested in compromising or "splitting the difference," and guides the parties' heated debate on a journey from the unrealistic to the rational, ideally arriving at a negotiated resolution.

People have historically looked to the judicial system to resolve disputes. There are, however, alternatives, which may be better for your situation. One alternative is mediation, which allows people to resolve disputes before going to court, or instead of going to trial. Mediation seeks to provide a win-win situation. If, however, the parties are unable to resolve their dispute, they may still go to court and obtain a decision from a judge.  

Each of the 24 circuit courts in the State of Maryland has a family mediation program where contested custody and visitation cases are referred. Circuit court mediation programs provide a trained, neutral, third party to assist parties resolve their disputes. A mediator may or may not be an attorney. Attorney-mediators do not represent either party in a mediated dispute and do not provide legal advice.  

For cases which are referred by the court to mediation, the court sets the fee a mediator can charge. Currently, the fee in the State of Maryland is $200 per hour. Court ordered mediation sessions are usually scheduled for two hours. The fee is split equally between the parties. While the courts often assign a mediator to a case from the court's list of qualified mediators, parties and/or their attorneys may agree to choose their own mediator. In cases where the court does not assign a mediator, either party may request mediation through the court or hire an outside mediator.

Some of the counties have mediation programs for other issues related to divorce, such as marital property, alimony, and pension distribution. Some counties have mediation programs for civil, non-domestic cases, such as real property, environmental, employment, workers' compensation, contract and personal injury. There are also mediation programs within Orphans Courts, where disputes involving a deceased's property, such as, who gets the family photos, or the family home, are mediated.

Mediation provides the parties flexibility to resolve their dispute on their terms and often with more creativity than a judicial decision would provide. Mediation is confidential and voluntary. Unlike litigation, mediation is a non-adversarial process and therefore allows relationships to be maintained and sometimes even repaired, which is particularly useful where the parties in dispute are family members or people who need to continue to work together.

It never ceases to amaze me that every homeowner I know wants and expects to enjoy his or her own property. So, if this is true, why are there so many neighbors who can't enjoy their property because another neighbor while enjoying his/her property has ruined it for another? I mean, if I am enjoying my property, then I must have some idea how important it is for my neighbor to enjoy his/her property. And if my neighbors enjoy their properties then why aren't their neighbors able to enjoy their respective properties on down the block?

A neighbor spends hours working on his garden and lawn. He sees his next door neighbor spend hours working on her yard. It stands to reason the first neighbor has some appreciation for a nice looking lawn. After all, he spent hours in the beginning of the season working on his. However, large brown patches soon multiplied on his lawn. Then they moved next door to her lawn. Now both lawns look like a bad advertisement for urine resistant blue grass.

At least these lawn worries stayed outside. Copy that scenario and add a common wall between the houses. The next scenario has one neighbor with a home based business pulling out his hair while he tries to work at home all day and his neighbor's dog on the other side of the wall barks all day.

Yet another set of neighbors in a stately old neighborhood are mixing it up because he made a do-it-yourself change to his property which caused his neighbor's property and home to flood during heavy rain. Mr. Do-It-Yourself was approached by Mr. I-Keep-Getting-Flooded, and did not see the wisdom in fixing the problem he created.

Mediation is a safe, confidential way for neighbors to address their grievances with one another before their differences escalate to full blown dispute and they end up facing each other in court. Rather than quietly seethe with frustration, exhibit hostility, or react violently toward one another while waiting months to get into a courtroom, neighbors can quickly address and resolve these issues in mediation.

Small conflicts between neighbors often mushroom into full blown disputes which prevent homeowners from fully enjoying their properties. Neighbors may be in conflict related to fallen trees, misplaced fences, barking dogs, and property lines, to name a few.

Neighbors must live with each other during the conflict and afterward. Mediation brings neighbors ("parties") together for confidential dispute resolution. Mediation is faster than litigation. A skilled mediator can handle strong personalities and assist the parties to resolve their dispute.

In my Maryland mediation practice a conflict was presented. A forty year old established neighborhood had open spaces as well as areas populated by dense trees. The original "settlers" were empty nesters. Some of them moved and sold their homes to "young" families. Eventually, the owner of a large open space sold it to developers who built large custom homes. Some of those homes shared a property line with the original homes.

A family (#2) with school aged children moved into one of the custom homes. One of the "young" families (#1) who lived in the original neighborhood enjoyed playing in the open space and were also excited to learn there would be children their ages moving into the new home (#2) behind their home (#1).

However, father #2 became enraged when the children of father #1 walked onto yard #2. Father #2 confronted father #1 and told him to keep his children off property #2. Father #1 attempted to comply with the wishes of father #2. However, occasionally when children #1 played ball or frisbee their toys rolled or flew into yard #2. Father #1 then retrieved the toys from yard #2.

One morning prior to 8 a.m. there came a knock at the door of home #1. In an otherwise very peaceful neighborhood, two policemen stood and explained to father #1 the wisdom of making sure he and his family never set foot again on the property of father #2.

Mediation is a terrific tool for neighbors in conflict or full blown dispute. Ideally neighbors will have peaceful and ongoing relationships. Mediation helps maintain ongoing relationships, assists neighbors to negotiate resolutions to existing conflicts, and provides communication skills to assist neighbors to work together peacefully to avoid future disputes.

The application and hearing process of the Social Security Administration (SSA) is supposed to be impartial and non-adversarial.  The Administrative Law Judge (ALJ)  who hears cases for the SSA is supposed to protect the interest of the government, and ensure the claimant's rights are protected. The ALJ is not supposed to act as if in opposition to the claimant.

A claimant has a right to a fair hearing. Fair might be construed as impartial. If the ALJ, for example, states she or he does not "believe in disability," the statement could be construed as indicating the ALJ is not impartial.

A claimant has a right to obtain an attorney. Some claimants obtain an attorney very close to the date of the hearing. Often the attorney is already scheduled to be in another legal proceeding at the same time. In that case the attorney might advise the claimant to attend
the scheduled hearing, advise the ALJ an attorney has been retained, and request a postponement of the hearing.

If the claimant follows these instructions and the ALJ responds, "Why do you need an attorney? I've had your file on my desk for two years and I've already made up my mind," this statement could be construed as indicating the ALJ is not impartial, or non-adversarial.

The Social Security Administration has a policy of recording hearings. In some cases there is conversation in the hearing room between a claimant and ALJ or the claimant's attorney and the ALJ before the formal hearing begins. Sometimes there is also conversation among them after the hearing ends.

A claimant and/or attorney may request the hearing attendant begin recording as soon as the claimant, or claimant and attorney enter the hearing room and keep recording until they leave the room. Ultimately, the decision when to record is the ALJ's.

Assuming the recording is not altered, the claimant, and/or claimant's attorney, and ALJ have evidence should there be any question regarding impartiality or misconduct.

A non-adversarial approach to problem solving allows parties to discuss issues relevant to their dispute, express their emotions, and turn a win-lose conflict into a win-win solution.

Mediation is a non-adversarial process. A mediator does not make decisions. A mediator is an impartial, third party, who assists two or more parties in dispute communicate with one another, express feelings, and focus on the mutual interests or problems of the parties in order to obtain a mutually acceptable settlement or solution.

The Social Security Administration, for example, maintains the application process for Social Security disability benefits and the hearing process are non-adversarial. The parties are the Commissioner of the Social Security Administration and the claimant, i.e., the person applying for disability benefits. The Social Security Administration alleges it is committed to assisting eligible claimants, whether represented by an attorney or not, obtain the benefits for which they are applying.

In contrast, the adversarial approach is one where the parties are in opposition, and even hostile to one another. Each party thinks he/she is correct, his/her argument is the strongest, and he/she will win. The adversarial approach produces a winner and a loser.

Litigation is an example of an adversarial approach. In a court of law, a judge or jury will determine who wins or loses. The rules of procedure provide each party may present its version of the facts. Unlike mediation, the adversarial process does not tolerate displays of emotion by the parties.

Where parties are represented by counsel, lawyers in opposition to one another argue their cases to the judge and/or jury in hopes of obtaining a decision in favor of their respective client. The judge's decision is based on the facts presented.