Circle Conferencing: When You Listen, They Speak

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Imagine being 14 years old and getting into trouble for walloping the school bully. Add in some layers. You started the fight on school grounds. There were witnesses. The police were called. The other kid’s parents have filed an assault charge. It gets worse. The next day after you return home from school your mom meets you at the door in tears. A representative from the local housing authority has called to say that your behavior is grounds for eviction. Your younger siblings stare at you open eyed. They’re about to be displaced, too. When you push past them to go to your room, you are flooded with feelings of shame, humiliation and anger.

This scenario may sound overly dramatic, but it’s a real one, repeated too often in Iowa City. In response, our local housing authority has implemented a Family Group Conferencing mediation program to put time and space between an offending minor’s action and an eviction.

As background, the Iowa City Housing Authority spends over 5 million dollars annually in a progressive program that gives rent money to qualifying Iowa City families so that they can live in the same neighborhoods as their doctors, teachers, city council representatives and convenience store workers. In essence, the bulk of Iowa City’s low income housing is invisible. The ICHA pays owners of rental properties a portion of a family’s rent, and in exchange, it pledges to the community to keep neighborhoods safe by expelling tenants who break the law. This strict policy extends to the minor children of families who live in low income housing. While eviction for a teenage child’s mistake seems heavy handed, the community’s trust and stake in the program must be honored in order for the program to exist. Consequently, when a minor gets in trouble, the intervention is swift and serious.

One of the pieces of this intervention is a facilitated mediation that asks the offender and family members, along with representatives from the housing authority and law enforcement, and other key supporters of the offender – teachers, counselors, friends or extended family – to come together and sit in a circle and talk. Family group conferences are highly structured, in part to ensure fair and equal participation. Every attendee has a turn to speak. A question is posed by the mediator, perhaps one focusing on the impact of the violent or illegal behavior, or one asking about possible changes that could be made to protect against future incidents, and then one by one each person in the circle speaks. This is an opportunity for the offender to be heard, for the circumstances behind the violent act to be contextualized, and for the group to share in the solutions and decisions that will affect the family.

There are no guarantees that the conference will enable the offender and the family to remain in their home. Still, the family group conference gives the family a chance to state their case, and more than that, allows the offender to hear from other caring adults. The takeaway is that family group conferencing provides families an opportunity to share in the decision making process. There is great power in people gathering in a circle, all listening to the one speaking.

No Settlement Doesn't Mean No Benefit

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At the end of each small claims mediation, but before our handshake across the table, I give an evaluation form to each participant to fill out. While they’re doing this, I write up the mediation agreement or dismissal. On this day, however, I sat doing nothing. There had been no agreement. Later, reviewing the evaluations, I was dismayed that one of the participants gave our afternoon a low score. He wouldn’t recommend mediation to a friend, according to the box he checked, and in the open comments section he scrawled, “Too much wasted time with no result.” The other participant gave the session high marks and wrote a favorable comment. Why did these two participants have such different experiences? Here’s the rest of the story.

I begin all small claims mediations the same way. After we’ve settled into our seats at the table and made introductions, I talk for less than a minute about the mediation process. I always stress confidentiality, informality, and encourage the participants to speak freely to one another. I also invite them to make phone calls or request a visit with the magistrate if they need more information. I want them to feel empowered by the information that they share at the table or get from an outside source. At this point I usually shift backward in my chair to signal that the real talk can now begin... I am getting out of their way. Despite this gesture, there is usually an initial period when the parties talk to me rather than one another, as if I were acting as a stand-in judge.

At this mediation the plaintiff, a business owner, had filed a claim to recover losses from a bad deal. The defendant was represented by an attorney. The specifics of the case are confidential, but both participants were polite and attentive; both were thoughtful listeners and questioners.

After almost an hour of information sharing between the parties, the attorney began to deliver a formal summary of his case. Didactic points were layered for the plaintiff like an algebra problem: “If this then this, which can only mean this.” There was table thumping and a slightly agitated tone. Once the attorney shifted to this tactic, I interrupted. I refocused the participants on their options: a compromise, a dismissal or a trial before the judge. The mediation ended quickly at this point and we returned to court.

Can you guess which participant gave the session a low score? I must confess that I wouldn’t have guessed either one. I thought the afternoon was a success. Both shared information and evidence, some of which they’d not known or seen prior to sitting down together, and the conversation had been self-directed and focused. The attorney, however, rated the mediation a waste of time.

Most likely the attorney didn’t value the time together because it failed to deliver the outcome he wanted. Perhaps, too, he felt his client would resent the extra hour of billed time. But, here’s the takeaway: When mediations don’t lead to an agreement, the time together can still be useful for sorting out misunderstandings, or, in this case, getting clear on the facts as seen from the other side’s perspective. And, though there was no settlement or dismissal, surely the hour together helped the participants improve their presentations before the judge.

Confucius Says...Mediate!

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Here’s a statistic to chew on: There are more mediators in China, per person, than there are laywers, per person, in the United States. This contrast can be explained by different social, philosophical and historical influences in the two countries. A brief overview provides some interesting implications for the future of mediation and lawyering in both China and the U.S.

In China, mediation is a way of life. Law suits are regarded as a last resort; a vulgar embarrassment to the honor of the individual, the family and the community. Chinese mediation, called “tiaojie” is performed by government officials, but only if the first round of mediation within a family or community fails. Mediation is rooted in the tradition and values of Chinese culture, and can be traced back 4,000 years through folklore. According to one story, a king ruling over a land of disgruntled countrymen must devise a plan to restore peace. He observes that those in the mountains feud over borders, those by the river bicker about home ownership, and everywhere, everyone complains about the inferior pottery sold at market. His solution is to leave his palace to live among the people. By living on the land, fishing in the river and learning to make excellent pottery, he models good citizenship. Within one year, so goes the story, residents offer their land to one another, concede their houses to one another, and make and sell superior pottery. Harmony is restored through the king’s intervention and wise leadership.

In Chinese culture, rites of behavior, modeled by this ancient king, set the moral compass. Confucianism, another guiding influence on Chinese values, teaches that when people behave according to taught patterns, social expectations guide them to live the “right way.” A fear of shame, of losing face, keeps them in line. Consequently, the elders in a family or community, those who set the example, mediate conflicts. In a culture that places value on respecting authority, and entrusts authority to oversee others with benevolence and generosity, the harmony that comes when citizens are content, is the culture’s highest value.

In western countries, our moral compass is set by a different standard; one based on justice, impartiality, and fairness. Our judicial system punishes people after they break the law. We place value on individualism and autonomy, which we cherish above the harmony of the whole. Our cultural tradition values independence and opportunity, and while our elders have had their chance, with stories to prove it, each of us has the right, even the obligation, to do it our own way. In fact, this is the highest value of our culture…the freedom to make our own decisions about the way we live.

And yet, there’s change in the air. In the U.S., as prisons and courts overload, mediation as a means of alternative dispute resolution is on the rise. In China, as the internet and media disrupt traditional culture, the govenrnment is responding by further developing its legal system. Consequently, lawyering is on the rise. As the world flattens and we trade customs across cultures, our common desire for peace connects us. Here’s the takeaway: Working to get along with one another is as old as history. Ancient teachings from all cultures share similar messages about conflict and peace. Case in point, in approximately 500 B.C., Confucius said: “What you do not wish for yourself, do not do to others.”

For more information on Mediation in China


New Support Guidelines Strive for Fairness

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A few weeks ago I joined over 100 lawyers and mediators from Eastern Iowa for a full day seminar to learn about the new State of Iowa Child Support Guidelines that will go into effect July 1, 2009. Guest speakers at the conference included Judge Anuradha Vaitheswaran, Co-Chair of the Committee to Review Child Support Guidelines, who provided a brief overview of Iowa’s child support history and explained why the new changes are necessary.

Judge Vaitheswaran believes that the new Child Support Guidelines will address some inequities in the old model. As background, in the late 1980’s, the federal government ruled that states must standardize their support guidelines, and review these standards every four years. Iowa’s guidelines are based on the premise that both parents pay an amount "reasonable and necessary for supporting a child." Until now, Iowa’s every-four-year revisions have been based on consumer price index (CPI) cost of living adjustments.

Economic changes and rising health care costs, however, have rendered the old model inadequate. According to Judge Vaitheswaran, the July 1 guidelines will ease the burden on low-income parents who do not have custody of their child or children, while also more equitably determining how medical insurance costs factor into parental support payments. Additionally, the new guidelines will cut down on the “notch effect” inherent in the bracketed income models used to determine support. Previously, the brackets used broader increments for reporting monthly earnings. This meant, for example, that a parent deducting union dues from her income (which should lower a support payment) could in some cases increase her child support responsibility, while at the other end of the spectrum, a parent's higher income might land that parent in a bracket where they were paying less than their income afforded. The new formula uses small divisions to avoid these types of inequity.

Additionally, the event, sponsored by the non-profit Mediation Services of Eastern Iowa (MSEI), featured a panel of local judges who addressed the impact of mediation on family law cases in their courts. Judges Thomas, Grady and Turner underscored the value of mediation in easing the court's burden. They suggested introducing mediation into the divorce process earlier, as well as multiple sessions to help the disputing parties avoid a court trial.

Several attorneys attending the conference stressed the importance of explaining to divorcing parents the differences between joint custody (sharing decision making regarding a child’s welfare) and joint physical care (sharing care of the child between households). Parents should understand that joint legal custody does not require joint physical care. Understanding this distinction helps parents to know their choices and make informed decisions.

Here’s the takeaway: As the recession impacts households, including families’ ability to sell their homes, qualify for credit, and in some cases, afford the costs of divorce, couples are feeling unprecedented economic strain. New Iowa Child Support Guidelines may affect current child support payments by as much as 10%, which may send some couples back to court for child support modifications, while newly divorcing couples may find the charts more equitable for all involved.

For an overview of Iowa's Child Support Guidelines
For information about MSEI