EXCEPTION TO MEDIATOR CONFIDENTIALITY IN GEORGIA

HOW DEEP ARE YOUR ROOTS?

THE "ART" OF THE MEDIATOR

THE ARBITRATION FAIRNESS ACT OF 2009

THE PROFESSION OF MEDIATION IS A CALLING

YOUR "A" GAME

EXCEPTION TO MEDIATOR CONFIDENTIALITY IN GEORGIA

This decision appears to create a new exception to Mediator confidentiality in Georgia when a party to a mediated settlement Agreement contends in Court that he or she was not competent to enter into the signed Agreement.

The Supreme Court of Georgia held that "the mediator may testify regarding relevant mediation communications, if a court determines that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available and that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality." Wilson v. Wilson, 653 S.E. 2nd 702

Mrs. Wilson filed for divorce against her husband and the case was referred for Court Ordered Mediation, pursuant to a standing Court Order, where a settlement was achieved and the Mediator drafted the Agreement, which was signed by both parties. Subsequently, the Husband contended that the Agreement was "unenforceable" because he was "not competent" to enter into the Agreement.

The Court held that this Mediation was governed by the Court Mediation Rules, was handled by a Mediator who was competent to conduct the Mediation pursuant to the Court Rules, and it was the Mediator's role was to prepare the the Settlement Agreement. Both parties had the right to "opt out" of the Mediation, but neither did.

The Mediator did not testify as to any "substantive settlement discussions" or any "specific confidential communications", but only testified as to his own general impression that both the Husband & Wife had the appropriate mental capacity to engage in the Mediation process and final settlement Agreement.

There are a number of other interesting comments in in this case which I will discuss in detail in later notes.

MAKE MEDIATION YOUR PASSION - best of luck!

HOW DEEP ARE YOUR ROOTS?

What is the oldest living thing in the world?

A tree! There is a Sequoia tree in California that has been alive for 3,500 years!

The Sequoia tree grows in the Sierra Nevada in central California in approximately 75 groups, which are called "groves". These "groves" are scattered over a 260-mile long strip of land, which is less than 15 miles wide.

How tall is the largest Sequoia tree?

They can be over 300 feet tall!

How deep are the roots of a 300-foot tall Sequoia tree? Especially after 3,500 years of growth?

20 feet, 30 feet, 100 feet deep?

The roots of a Sequoia tree are very shallow - only 3 feet deep!

How can the roots of a 300-foot tall tree be only 3 feet deep?

The Sequoia tree only grows in "groves", because each individual tree's roots intertwine with the other Sequoia trees surrounding it. Only together, can they stand upright and survive. They are never alone. They cannot survive as an individual - they cannot survive independently.

Without the support of the rest of the trees in the grove, no tree can survive. They are all hooked at the roots. Their strength comes from their dependence on all of the others.

As Mediators, like the Sequoia trees, together we can take everything that is thrown at us, not only because of those who have gone before us who have paved the way of Mediation, but also those who come after us.

We learn from each other, we receive support from each other, and we stand on the shoulders of great Mediation educators, trainers, and practitioners to whom we owe a debt of gratitude.

Are your roots too deep because you are trying to do it all alone?

We cannot be the Lone Ranger and be our best.

We are not alone - we all support and protect each other. Each one of us is important to all others. We need each other.

If your roots are too deep - pull up your roots - be more involved - help and let yourself be helped.

THE "ART" OF THE MEDIATOR

Sometimes the "Art" of painting is the purposeful, planned placement of pigments in a particular presentation, post persistent planning and preparation (as is the "Art" of poetry alliteration).

As Mediators, no matter how extensive our preparation and planning, we can never be certain that our Mediation will turn out precisely as we envisioned before we began.

A painting consists of the brush strokes of the individual painter, after having specially chosen specific colors for each brush stroke. Each color and texture is chosen based upon the experience and knowledge of the painter.

The brush strokes of a painter are not unlike the "brush strokes" of a Mediator. While I can teach a person how to mediate a matter, each one of you who has ever mediated a case knows that Mediation is an "Art" to be developed and honed over a lifetime of experience.

As a complicated painting can become a "masterpiece", a complicated mediation can be brought to successful resolution, masterfully.

As the weeks go by, we will talk about the "Art" of the Mediator, Mediation Issues, and other related topics. If you have something meaningful to you, which you believe will be beneficial to this effort, please send it to me. If you would like to subscribe, I would be honored if you would do so. I will look forward to talking with you.

THE ARBITRATION FAIRNESS ACT OF 2009

This month, The Arbitration Fairness Act of 2009, will be introduced as a Bill to the Congress. The purpose of the Bill is to prohibit the enforcement of binding mandatory arbitration clauses in consumer, employment, and franchisee contracts.

Over the last decade, businesses of almost every kind have added Arbitration clauses to their contracts in the sale and purchase of consumer items including cell phones, copiers, and hundreds of other consumer products. Arbitration Clauses have been added to authorizations to receive medical treatment, for the admission to a hospital or to a nursing home, and even when you accept a new job offer.

These Arbitration Clauses are usually placed in the "fine" print and on the back page of many of the "Agreements" which we all agree to, even though we may not realize it until we file a dispute.

It is alleged that consumers, employees, and small businesses are at a distinct disadvantage and that this is a way for big business and multi-million dollar conglomerates maintain and expand their advantage over individuals.

Whether you agree or disagree with this Bill, you should contact your Representatives and Senators to express your view.

THE PROFESSION OF MEDIATION IS A CALLING

The Mediation profession is a "calling", very much like a preacher or missionary may receive that leads them into the ministry or the mission field. The Mediation profession seems to choose you, you do not choose the profession.

A friend of mine, one of the most successful Mediators that I have ever known, when ask to speak at a Mediation Conference on the topic of "WHAT MAKES A GREAT MEDIATOR?" simply replied: "Either you've got it, or you don't."

Having been a Mediator for over 20 years and, as a Mediator Trainer and Coach, when I heard him make this statement, I was taken aback! I was truly shocked at his attitude. My immediate response was that his response was flippant and simplistic.

Upon reflection however, while his comment may seem to be flippant and simplistic, there just might be a grain of truth to his statement.

Over the next few weeks, I will be "brainstorming" about characteristics that do make a great Mediator.

YOUR "A" GAME

As a Professional Mediator, you must bring your "A" game every day, to every Mediation.

But what if you are feeling "down"?

Every one of us has our ups and downs. We all have problems that seem insurmountable that bring us "down".

You've got a BIG case today - you're not feeling your normal self - but everyone is counting on you - so, what do you do?

Put on a smile, "act" happy, greet others with a good word.

Cope - don't mope!

Get up, look up, and link up with others!

Pick yourself up, lift your head up, and relate to others.

Cleanup, eat, exercise, and get some energy.

It is always easier to "act" your way into a good way of "feeling" than to "feel" your way into a good way of "acting".

Pray, meditate and listen for that "still small voice". (1 Kings 19:12)

Get it together - just do it - but be the best that you can be - your clients are all counting on YOU!