Legacy_May_2017SZ_article_Imbalance

“Addressing the Imbalance of Power in Mediation” (short)

As it appears in Legacy Magazine, an Independent Insert found in the Miami Herald and Sun Sentinel (May 5, 2017)

Mediation/Arbitration:  An Alternative to Litigation: “Addressing the Imbalance of Power in Mediation”

By Stanley Zamor

 

Power is perceived.  And when litigation opponents are engaged in negotiations, they tend to negotiate from their position of perceived power. But are the positions of power sometimes imbalanced? And if they are imbalanced, how can there be any fair negotiations?

 

We’ve all heard about the biblical story of David and Goliath. Or the statement that, “You can’t fight City Hall…” Both illustrate one party being perceived weaker than their opponent, yet, we know how David beat Goliath eventually become a King, and that City Hall has lost, a lot.  Mediation is conducted under various principles, one such principle is that a mediator has a duty to manage the imbalance of power and facilitate a process of negotiations where the parties feel empowered.  Mediation is one of the only processes where a person without legal representation, can actually find themselves in fair negotiation against an army of lawyers.

The Imbalance of Power:  What’s the Big Deal?

Ok, so let’s be honest. We deal with the imbalance of power all the time and all day.  Whether it is your boss changing your shift or demanding you to stay later to complete a project, or the home association raising the HOA dues. We deal with power imbalances all the time and sometimes there is a need for the imbalance of power.  However, when we want to find ourselves in litigation negotiations, we often seek to have a level playing field.

Often, even if we are in a position that is not favorable, with far less resources than our opponent, we still want to be treated with respect and consideration.  When a perceived weaker party is treated with respect, they often are willing to negotiate, even if they have far less resources to negotiate with.  When a skilled mediator is able to address power imbalances, by empowering the parties, litigation opponents feel more at ease to resolve the matter amicably.

How Mediators Manage the Imbalance of Power?

There are various techniques and tools available to a skilled mediator when addressing the imbalance of power during a mediation. A few are as follows: A high level of communication skills (both verbal/nonverbal); a strong awareness of the human condition, being creative and thinking out of the box; a keen ability/timing to know when to “reality-check” the disputants and the exploration of needs vs wants.  Although there are many other techniques, different mediators have different styles that dictate what they may use.

Now What?

Now that you know, that one of a mediator’s duties, is to address imbalance of power, be frank when you hire a mediator and ask, “How will you address the imbalance of power when we mediate?”  Although the mediator facilitates the process, the process belongs to the parties, and they have right to feel empowered during the entire mediation.

 

Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator.  Mr. Zamor serves on several federal and state mediation/arbitration rosters and has a private mediation and ADR consulting company where he mediates/arbitrates and facilitates workshops. He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.

szamor@i-mediateconsulting.com

www.i-mediateconsulting.com

www.LinkedIn.com/in/stanleyzamoradr

(954) 261-8600

As a Mediator, I Just Must Believe in Santa Claus

keep-calm-mediatorIn a conversation with a friend, where we were speaking about gift ideas for our families, I asked her, “How do wrap, or present, the Santa Claus gifts to your young children?” She gave me a face and said, “Huh? What you mean by presenting a Santa Claus gift?” I stated, “Well, I wrap most of the gifts in generic holiday paper, but I wrap the Santa presents in bright distinct paper.  This shows the appearance and importance of the gift.  They may see other gifts under the tree, but it is not until the morning of Christmas do they see the Santa present.  I try to show them that Santa presents are different, and are usually something that is more thoughtful and heart-felt.” She looked at me bewildered, chuckled and said, “I don’t believe in Santa. And I just give my kids gifts. You know, I give them what they ask for… they look under the tree and there the presents are. There is no need to pretend that there is a Santa Claus.”  I, gently arranged my posture to lean in and said, “Hmmm. Think of Santa Claus, not as a person, but as a symbol. In today’s world, we are living in a time where there is just too much stuff going on.  Too much ugliness. Too much hate. Too much REAL violence and selfishness.  Our humanity is deteriorating.  Our children’s innocence is being robbed.  Would it not be wonderful to show them that, although they need to be aware of the harshness of these times, they can still believe in something grand and magical?  They can close their eyes and wish.  They can create a joyous fantasy that turns into realty once they unwrap a magnificently wrapped present.  This is almost like “willing” a success future, willing joy and a positive outcome, envisioning and creating a reality that is possible to achieve when practicing positive behavior. Behavior like respect, adherence to the rules of being a good boy/girl, being good to others…etc. Would it not be fun to witness the build-up of anticipation, and to watch the shear release of joy when their desires are fulfilled as they unwrap the Santa present? Or most importantly, would it not be awesome, to encourage giving of yourself to others and showing the importance of serving others?  What can be more joyous than that? The giving to others and/or, to those who may be less fortunate than you. All this can be taught through the symbol of Santa Claus.

See, Santa Claus needs to be real. I know, I know. How can I still believe in Santa Claus? Well, given the recent assassination of the Russian Ambassador, the Berlin truck incident claiming 12 lives, plus our (America’s) usual domestic sociopolitical ugliness, I just need to. Maybe it is also the occupational hazard of being a professional mediator/arbitrator, where I believe in transforming conflict into solutions, creating resolve and peace, where no one else believes resolve/peace is possible. AND maybe it is my belief in serving others. I believe in helping others, having empathy for others, creating opportunities of success for others, being that pillar of strength, standing for others, fighting for others, crying and sharing with others. Giving from the heart to others. And that is what the symbol of Santa Claus is supposed to be about; giving of yourself with no expectation of receiving. Even though the commercialization of Christmas disappoints me. And the lack of religious focus and care for the season is lessened at times… I look passed that and focus on the wonder, anticipation and the joy of giving. So, I choose to believe in the symbol of giving, generosity, selflessness, heart-felt gifts, and serving others… I choose to believe in Santa Claus.  And most importantly, for me, this is the season of the birth of LOVE, Jesus.”

Her face seemed a bit, saddened, she then replied, “Wow. Thank you for that.  When I was still married to my children’s father the holiday season brought us more stress than joy. So I guess I never focused on what it could be or should be…”.

As a mediator is seems that if we are to encourage resolution and peace-bridge building, believing in a symbol like Santa Claus and what this winter season is supposed to be in paramount.  So, I believe in Santa, because I believe we need more selflessness, love, and service to others.

 

Uncomfortabl pic

I AM Just Asking. Are Mediators/ADR Professionals Uncomfortable with Conflict Outside Their Conference Room?

In Brief: Where are my fellow Mediators/ADR Professionals? I expected to see/hear more from my colleagues hoping to uplift their communities as our country suffers from a deteriorated Law Enforcement & comUncomfortabl picmunity trust, ignorance, hate and violence. Why is it that when I ask established colleagues for their insight on addressing the current turmoil found with Law Enforcement-Community divides they give me the “I’m uncomfortable look”, they start to blink a lot and avoid eye contact, or they mumble “…they’re not my clients…” WOW!? I just shake my head and say “We don’t have clients. We service individuals, businesses, communities in varying stages of conflict and we help these participants through these difficult issues…”.

It is increasingly clear when the world is being turned upside down and communities are at odds, Mediators/ADR professionals should feel the duty to actively step-in and step-up by offering their conflict resolution skills and to assist with brainstorming solutions and peacebuilding. Are we not the Bridge-Builders of dialogue? Instigators of open honest/transparent communication? Encouragers of respectful cross-cultural, racial and religious background acceptance? Why are so many of my colleagues not comfortable with conflict outside of their conference room walls. I sometimes don’t get it. But then again, I guess for many, this is just a profession and not a calling.

For those who see themselves going beyond the conference room, being uncomfortable while creating an impact, and working on sustainable solutions, I would love to hear from you szamor@i-mediateconsulting.com

Fla. Supreme Court Appointments Stanley Zamor to Mediator Ethics Advisory Committee (MEAC)

I am proud to have been recognized and appointed by the Florida Supreme Court to serve on the Mediator Ethics Advisory Committee (MEAC) till 6/30/2020. The MEAC is responsible for rendering ethical opinions based upon written questions from mediators who are subject to the Rules for Certified and Court-Appointed Mediators, rules 10.200-10.690.  View the appointment.MEAC Appointment AOSC16-36    MEAC opinions are published on the Courts website at www.flcourts.org

MEAC Appointment June 2016

The Promise of Mediation: Medical Malpractice and Litigation Made More Humane, It’s Possible

“When in the worst of circumstances, we can find the best in people…” This is a statement I use during mediations. Whether mediating between disputing companies or families, all disputes must have at least two people prepared to negotiate and address high emotional concerns. Similarly, when a patient is dealing with the perception of improper care, misdiagnosis, or wrongful death due to negligence, they feel emotionally hurt, betrayed and demand satisfaction. The harmed and damaged patient seeks legal counsel and they usually file suit, a malpractice claim against the physician, his/her practice and any other person who can be attached to the claim. When a physician is faced with a malpractice claim, they also feel emotionally hurt and betrayed by the patient and immediately seek the advice of their insurer and legal counsel in order to protect themselves, preserve certain rights they may have, and to avoid admitting negligence. The physician often never gets a chance to speak directly to the patient again, and the patient often never gets a chance to address the physician directly with their concerns and emotional pain. With a legal action filed, the adversarial lines are drawn, the litigation process engaged, and the dispute is now reduced to numbers, statistics, and expert opinions. At this point, is it possible to address both parties’ needs/wants and provide each party with a resolution that resolves the case in a less adversarial manner? Yes, through the process of mediation. Mediation offers an opportunity to reach an amicable resolution often not found in litigation. Mediation offers its participants an opportunity to share their story (in their own words), to humanize the dispute, to share and gain perspective of what happened, and often it gives an opportunity to say “sorry” (should an apology be appropriate).

 

Florida has long been a known as the “…So Sue Me State…” where tort reform remains a hot topic and precedent continues to be made on both sides of the issue. Recognizing the time, cost and the immense consumption of resources involved when litigating a medical malpractice case, the use of mediation as an alternative to litigation is now being seen as an invaluable way to resolve disputes. Under Florida Statute 766.108, Mandatory mediation and mandatory settlement conference in medical negligence actions

(1) Within 120 days after the suit is filed, unless such period is extended by mutual agreement of all parties, all parties shall attend in-person mandatory mediation in accordance with s. 44.102 if binding arbitration under s. 766.207 has not been agreed to by the parties. The Florida Rules of Civil Procedure shall apply to mediation held pursuant to this section…

This provision of the Florida Statutes provides for the process of mediation to be engaged and used to resolve mediation medical malpractice disputes.

 

 

The Process of Mediation

Mediation needs to be referred to as a “process” or “conference”; it is not a court hearing or a court session. Mediation is not an extension of the court system, and should not be considered something you check-off in a box on the way to trial. Mediation is a confidential, voluntary process facilitated by a mediator who is an unbiased neutral (an expert at resolution and not solely an expert in a particular subject matter). Whether court appointed or agreed to by both parties, a mediator is engaged (not hired) to assist with the negotiation process under the unwavering principle of party self-determination. Mediation is an opportunity to reach a settlement agreement that is mutually sufficient; and is an alternative to litigation where disputes pertaining to wrongful death, catastrophic injury and negligence can be resolved. Mediation seeks to reach a “Win/Win” solution to a dispute. The mediator can be Circuit Civil Supreme Court Certified and posses the ability and skill to assist the parties with their dispute. Although often court ordered, a mediation is not a court event, but rather it is an informal conference where the parties can appear pro se (self-represented) or with legal representation. Whether the parties have an attorney, or appear pro se, it is the mediator’s role and task to ensure a fair and balanced process.

There are various aspects of the mediation process, but none as important as the Opening Statement. An Opening Statement is where the mediator introduces themselves, the process and has the opportunity to set up the entire process. The Opening allows for the mediator to build rapport and the tone for a fair and balanced process is set with a good opening statement.

Mediations are only effective when both parties are prepared to explore settlement opportunities and they wish to make a good faith effort to resolve the case. Attending mediation with the sole purpose to persuade the other party that their case is weak, and you’ve to proof it, is a recipe to failure. The mediation conference can be held at one of the attorney’s office or at a neutral location selected by the mediator. Mediators are ethically bound and strictly prohibited, from giving legal advice, opinions, and can not assist with legal strategy. A mediator’s role is to assist with consensus building, creating a non-adversarial nonthreatening environment and to help create options for an amicable settlement.

A Medical Malpractice mediation is an emotional process, but with a skilled mediator who understands how to help the parties communicate their needs and reach consensus, it can be an opportunity for venting and allowing the parties to feel their emotional concerns are heard and valued. Mediation can explore different settlement options with all parties and help everyone reach a comfortable plan of action. If the parties are ready to resolve the case, a settlement agreement will be drafted and signed by the mediation participants that same day. The mediator would then file a mediation report and the attorneys would file the appropriate documents ending the case. If a settlement agreement is not reached, then the mediator files a report with the court, only stating that there was no agreement, and the litigation process proceeds.

 

The Promise

Litigation can be a long and painful, where often litigation participants have to relive painful events repeatedly. Even when a case seems to be a simple win for one party because the facts appear to be strongly supporting their case, there are never any guarantees that a judge or jury will see the same set of facts, in the same way. Litigants rarely have closure and are unable to move forward as the cost, anxiety and the uncertainty of litigation is pending for years. Litigation in a medical malpractice case can cost anywhere from tens of thousands to millions of dollars, and can last for up to 3 years (or even longer). Contrary to the cost, timing, and uncertainty of a court decision, mediation offers an opportunity to be more time and cost efficient, address participants concerns in their own voice and create options and solutions that are often not seen in litigation. Medical Malpractice mediation can take several hours and costs as fractions of what litigation. The promise of mediation is in its process, and how the process of mediation can transform an adversarial painful dispute into an opportunity where all parties mutually benefit from a settlement they created and agree to. When facilitated by a skilled mediator the harmed party feels heard as often emotional needs are met. Simultaneously, the physician can also feel heard, address their emotionally concerns, preserves lost trust and the physician gets a chance to share their humanity during the process. Mediation can truly be a win/win for all.

 

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Stanley Zamor is a Florida Supreme Court Certified Circuit Civil/Family/County Mediator & Trainer and Florida Supreme Court Qualified Arbitrator. He is the current President, Florida Academy of Professional Mediators, Inc. (Florida’s first statewide ADR not-for-profit, est. 1988) and has a private ADR company where he mediates/arbitrates, facilitates workshops and regularly lectures on a variety of topics from cross-cultural issues, diversity, bullying, dispute resolution.

Nothing is my Fault (Post Traumatic Slavery Disorder)

We have a great show lined up for you. We’re talking about personal responsibility! Baltimore, Ferguson, you name it. Also, why does it seem like only career criminals get killed by cops when they’re resisting arrest? The poster children for the #BlackLivesMatter movement seem to have long rap sheets and have been in trouble their entire lives. If I’m wrong, please correct me.

Special guest is Stanley Zamor. He is a Florida Supreme Court Certified Mediator. He is certified in Circuit Civil and Family Court for the State of Florida. Mr. Zamor is a private mediator focusing on Commercial Litigation and Complex Family law cases.

Mr. Zamor currently serves as the President of the Florida Academy of Professional Mediators, Inc. Mr. Zamor regularly lectures for organizations and universities on the processes of Alternative Dispute Resolution (“ADR”), various legal/practical issues regarding ADR, Human Behavior and Conflict Resolution. Mr. Zamor often facilitates presentations on bullying prevention/intervention, analyzing and resolving interpersonal conflicts, Socio-Legal issues, ethics, diversity, business relationships & disputes, and conflicts regarding labor unions and business organizations.

I briefly discussed the idea that there is something called PTSD (Post Traumatic Slavery Disorder) on the show today. Check it out for yourself. It’s a doozy: Dr. Joy De Gruy Leary and her theory of: PTSD – Post Traumatic Slavery Syndrome.