Juvenile Justice Reform Law Incorporates Mediation into Georgia Code
Over a year ago, we wrote a post lauding Richland County, South Carolina’s “Youth Arbitration Program,” a dark horse for the advancement of both American juvenile justice and the field of ADR. Happily, this year we can report that Georgia’s Juvenile Justice Reform Law (“JJRL”), which takes effect January 1, 2014, will take a similar step by formally incorporating mediation into the Georgia juvenile code.[1]
HB 242, the bill that became JJRL, was based on three primary recommendations from the Special Council on Criminal Justice Reform for Georgians (“the council”), one of which was to reduce youth recidivism rates.[2] ADR processes such as mediation have proven particularly effective at accomplishing this goal. (This was part of what made the Richland County ADR program so remarkable: it had reduced youth recidivism to 11 percent; by contrast, Georgia’s youth recidivism rate currently stands as high as 65 percent,[3] which is fairly typical of state averages generally.[4])
The success of these ADR programs in the juvenile justice system is in part due to the fact that the majority of youth offenders commit only low-level crimes, but ultimately lack access to the rehabilitative services they need to learn, heal, and move forward.[5] Mediation, then, offers a restorative approach that both demonstrates constructive problem-solving, and provides a therapeutic outlet for offenders and victims alike. Importantly, JJRL also requires the Georgia Department of Juvenile Justice to provide youth offenders with a continuum of services, including evidence-based programs aimed at reinforcing reduced recidivism.
As always in mediation, the parties under JJRL are not required to reach an agreement. But the same was true of the Richland County program, which, as of 2012, had seen 90 percent of its then-1,300 youth referrals successfully complete the program. And ultimately, these figures are more than just statistics: they represent positive changes in the lives of children, families, and communities. We hope that JJRL can help facilitate the same positive changes in Georgia. (After all, if South Carolina can do it, surely so can we!)
[1] O.C.G.A. §§ 15-11-20 through 25.
[2] The Pew Charitable Trusts Issue Brief, “Georgia’s 2013 Juvenile Justice Reform: New Policies to Reduce Secure Confinement, Costs, and Recidivism,” July 2013.
[3] The Pew Charitable Trusts Issue Brief, “Georgia’s 2013 Juvenile Justice Reform: New Policies to Reduce Secure Confinement, Costs, and Recidivism,” July 2013.
[4] There is no official national average of youth recidivism because each states defines recidivism differently; rather, youth recidivism rates are compiled by state. According to The Sentencing Project, a sampling of state recidivism rates includes: Alaska at 66%; Hawaii at 57.3%; Michigan at 37%; North Carolina at 56.6%.
[5] The Pew Charitable Trusts Issue Brief, “Georgia’s 2013 Juvenile Justice Reform: New Policies to Reduce Secure Confinement, Costs, and Recidivism,” July 2013.
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FMCS, government mediation agency, outed for abusing funds amidst budgetary crisis
During the partial federal government shutdown, the Federal Mediation and Conciliation Service (“FMCS”), like many federal agencies, made news for being a victim of the Congressional deadlock. For the FMCS, an independent government agency tasked primarily with resolving labor disputes between unions and government, the shutdown meant postponing ongoing mediation sessions across the country and furloughing all but “a handful of people.”[1] But the story of an FMCS employee whose leave was not prompted by the recent shutdown, and the FMCS’s excessive spending in a period of apparent austerity, has managed to fly mostly under the radar – until recently.
Berkina Porter was the director of administrative services at the FMCS until she was placed on leave in February 2012. The action was apparently taken in response to Porter’s repeated objections to the agency’s dubious spending practices. A look at just a few of the alleged abuses of funds – corroborated by hundreds of pages of documents and an independent Inspector General – will make your head spin.
To begin with, “about two dozen of the agency’s approximately 240 employees had purchase cards, [but] none had the required authorizations or training on how to use them.”[2] One of those purchase cards, belonging to an agency customer service specialist named Marcus Lawson, was using company funds to make monthly payments on a $29,400 three-year Lincoln MKS lease. (Of the lease payments, Lawson later stated that “that was the nature of the way things were going on at the time.”)[3] This despite the fact that the median annual salary of an FMCS employee is $120,000.[4] During an annual conference, the agency was paying a group of private mediation instructors $1,500 a day – $163 an hour – to train mediators; part of that amount was hourly compensation for time spent traveling, against Federal Acquisition Regulations.[5] Contracts with inflated labor values were allegedly being given to mediators based on personal relationships.[6]
What does $9,000 worth of bottled water look like? We may never know.
The list goes on: in a two-year period, the agency bought at least 38 LCD projectors costing up to $9,500 each, as well as over $30,000 worth of picture frames.[7] About $9,000 annually was being spent on bottled water. $29.95 a month was being paid to get the Golf Channel in the agency’s own DirecTV subscription. Charges showed up at grocery stores near employees’ homes on the weekends. And despite there being no record of invoices or even a contract with a certain company called The Papers Edge, FMCS had paid that company almost $21,000 for “phone system installation and other services” in 2009,[8] and a total of $85,000 over a two-year period.[9] That company had been incorporated in Pennsylvania in February 2008 by a then-top official of the FMCS.[10]
In response to pressure from Porter, some time around late 2010 FMCS director George Cohen agreed to allow David Berry, the Inspector General for the National Labor Relations Board, to review the agency’s purchase card program. In February 2012, Berry confirmed in a letter to Cohen that agency purchase cards had been used “to circumvent FMCS procurement process and other internal controls,” but ultimately, did not recommend disciplinary action.[11] After the allegations became public, the agency released a statement saying that the records in question only surfaced because of a “disgruntled FMCS employee.”[12] Cohen vaguely stated that the agency had taken “immediate actions” to comply with federal regulations.
FMCS is well known to folks in the ADR world, but this negative press is a poor introduction of a relatively unknown federal agency to the general public. For over 65 years, FMCS has helped pioneer mediation and supported the ADR movement. Now that the federal government has reopened, the FMCS will be able to resume its important work, and hopefully, these revelations will not undermine the mission of this agency.
[1] Katherine Gregg, “With federal mediators furloughed, R.I. pension talks on hold” (Oct. 15, 2013) (available at http://www.providencejournal.com/breaking-news/content/20131015-with-federal-mediators-furloughed-r.i.-pension-talks-on-hold.ece )
[2] Sean Reilly, “Whistle-blower on leave; culprits off ‘scot-free,’” Federal Times (June 23, 2013) (available at http://www.federaltimes.com/article/20130623/PERSONNEL03/306230007/Whistle-blower-leave-culprits-off-scot-free-)
[3] Reilly.
[4] Luke Rosiak, “Part 1: Bureaucrats at tiny federal agency FMCS buy legions of luxuries with purchase cards,” Washington Examiner (Oct. 1, 2013) (available at http://washingtonexaminer.com/bureaucrats-at-tiny-federal-agency-fmcs-buy-legions-of-luxuries-with-purchase-cards/article/2536649)
[5] Luke Rosiak, “Part 4: Federal officials cede power to contractors who write themselves sweetheart deals,” Washington Examiner (Oct. 4, 2013) (available at http://washingtonexaminer.com/federal-officials-cede-power-to-contractors-who-write-themselves-sweetheart-deals/article/2536808)
[6] Rosiak, Part 4.
[7] Rosiak, Part 1
[8] Reilly.
[9] Luke Rosiak, “Part 2: Reckless spending goes straight to the top at FMCS,” Washington Examiner (Oct. 2, 2013) (available at http://washingtonexaminer.com/reckless-spending-goes-straight-to-the-top-at-fmcs/article/2536695)
[10] Rosiak, Part 2
[11] Luke Rosiak, “Part Three: FMCS executives forced whistleblower to retract fraud complaint,” Washington Examiner (Oct. 3, 2013) (available at http://washingtonexaminer.com/fmcs-executives-forced-whistleblower-to-retract-fraud-complaint/article/2536768)
[12] Rosiak, Part 3.
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The Importance of Being Sorry
Things heated up for San Diego Mayor Bob Filner over the summer. Beginning on July 11, 2013, the first of what would quickly become eighteen women stepped forward with allegations of sexual harassment against the 70 year-old mayor. That same day, Filner went on camera to publicly apologize for his conduct, effectively admitting wrongdoing but still managing to make thinly-veiled excuses for it. By mid-August, he had completed a two-week behavioral therapy program and entered closed-door mediation with city officials and alleged victims’ attorneys, where he remained until last Friday. Through it all, Filner insisted he had done nothing that would warrant his resignation, repeatedly rejecting it as a reasonable option. But last Friday, after almost a week in mediation, Filner announced that he had voluntarily agreed to resign.
This outcome was predictable to anyone following the case – particularly if that person was a woman. Here’s why.
In conflict resolution, apologies matter.[1] A lot. This is particularly true in a conciliatory process like mediation, where, unlike litigation or even other ADR processes such as arbitration, both parties’ senses of fairness and justice matter – where it is left to each party to decide whether or not it accepts a particular option. In other words, as a non-binding form of dispute resolution, if one party to a mediation simply does not want to compromise, it doesn’t have to. (As an aside, the process was not without its advantages for the beleaguered mayor: unlike litigation, mediation is private, so it offered an opportunity to settle the claims in a structured environment without the publicity of a courtroom.)
Researchers in the field of behavioral biology in conflict resolution have produced some useful data on the role of apologies in conflict resolution (such as this article co-authored by my boss, Doug Yarn). “In the face of a heartfelt apology, victims . . . report feeling a near instantaneous erosion of anger and pain”[2] – notwithstanding logical, quantitative reasons to pursue a claim, such as the likelihood of prevailing in an adjudicative process like litigation. The obvious alternative to a meaningful apology is no apology at all, but some researchers in the field believe that “partial” apologies are similarly insufficient to induce resolution.[3]
Filner’s mea culpa seems to fit neatly into the latter category: it accepted responsibility for misconduct, but only partially. For example, though he acknowledged that his behavior was “inappropriate and wrong,” he also made sure to point out that it was “behavior that would have been tolerated in the past.” This admission-excuse hybrid epitomizes the apology as a whole: in part Filner seems to genuinely accept fault, but he tempers his apparent compunction with qualifying language designed to divert blame. He added that he has come to the conclusion that he “must and will change [his] behavior.” In other words, he’s just a man from a bygone time who used to be able to grope women without anyone reprimanding him; if we could all just give him more time to adjust to this new society in which women actually complain about being sexually harassed, then he can better control his impulses in the future.
It is worth noting that the now-former mayor issued a second, post-settlement apology on Friday when he announced his resignation, which clinical psychologist David Wexler termed a “spoiled apology” because Filner’s expressions of remorse and responsibility were qualified by assertions of innocence and self-victimization.[4] The point is that if the effectiveness of an apology is measured by the victim’s subjective assessment of it, Filner could have improved the appeal of his apology simply by removing these kinds of defiant qualifications from the text of his statements.
Of course, we don’t know how any of the eighteen alleged victims perceived Filner’s pre-settlement apology, or whether it had any impact on what the women’s optimum outcome looked like. What we do know is that the effectiveness of an apology can be an important determinant in shaping a party’s bottom line at the negotiation table. But while they can play an important role in conflict resolution, it should be remembered that apologies can also be admissions against interest that could later be used as evidence of liability. It’s a fine line to walk, but particularly in a situation like this one, where the dispute has a running chance at being resolved through a conciliatory process, both counselors and disputants would do well to remember that an effective apology could change the tone – and thus the outcome – of the negotiation.
[1] See Doug Yarn, On Apology and Consilience, p. 3 (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=320110) (concluding that “Victims desire apology. Apology is an important component of dispute resolution, and any useful model of conflict resolution must acknowledge a human preference for apologies”).
[2] Doug Yarn, On Apology and Consilience at 5.
[3] Doug Yarn, On Apology and Consilience at 7.
[4] Diane Bell, “Filner apology falls flat” (available at http://www.utsandiego.com/news/2013/aug/23/bob-filner-mayor-resignation-talk-wexler-apology/).
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Criminal Mediation: The Way of the Future?
While traditional plea-bargaining between prosecuting attorneys and defendants still dominates, a number of Kentucky courts currently provide for a different option, felony mediation. The program, which began in 2008, is praised as both a cost-saving tool for courts and a more wholesome resolution for parties. The closed mediations allow each side to give a 45-minute preview of what their court presentation would be to a ‘senior status’ and specially trained judge. Victims also have to the right to be heard in these closed mediations. Mediation can be requested by either party subject to approval by a judge or ordered by a judge outright.
How serious a crime are Kentucky officials willing to mediate? A recent court-ordered mediation revolves around the alleged sexual abuse of a minor. Patrick Shouse, 43, accused of fondling an underage girl and providing her with alcohol and marijuana, will try mediating his Class D felonies before entering the traditional court process. But don’t gasp too soon, the use of mediation is a case-by-case analysis that may be withheld at the onset or revoked in light of subsequent facts. For example, Geraldo Ortiz Jr. was scheduled for mediation for child abuse charges stemming from an April 2011 event. However, in December of last year, Ortiz was charged with a series of Class A felonies for the kidnap, rape and stabbing of his then girlfriend. The second arrest led to a prompt decision that continuing mediation on the child abuse charges would be “inappropriate.” For minor felonies and misdemeanors, however, the program remains a viable option for Kentuckians and a glimpse into the future expansion of alternative dispute resolution.
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“The Mediatrix”: A New Mediator Orientation
Guest Contributor Timothy Hedeen, Ph.D.
Two decades of mediation research and practice have revealed to me a few fundamental paradoxes, but none has so gripped my attention as mediator pressure. In typical guest-blogger fashion, I’d like to share how I’ve arrived at my latest solution to this paradox, the creation of a new mediator role, “The Mediatrix.”
While convening sessions through a district attorney’s office some fifteen years ago, I observed disputants’ strong interest in not leaving mediation without an agreement. This led me to study the role of coercion in referrals to mediation, which in turn exposed me to the literature on settlement pressure. I pulled together these strands in a 2005 article subtitled, “Some Mediations are Voluntary, But Some are More Voluntary than Others.”
At a conference presentation on the topic, a colleague recalled a mediation in which an insurance adjuster refrained from exercising his full settlement authority, leading to impasse. When pressed by his attorney afterward to explain why he hadn’t put the money on the table, he answered, “Because [the mediator] didn’t beat it out of me.” That the adjuster desired such mediator pressure led me to title this dynamic as “party-as-piñata”. It’s also reminiscent of Josh Stulberg’s 1987 list of mediator functions, which includes ‘scapegoat’.
And since moving to Georgia a decade ago, I’ve long enjoyed the nuances of Appendix C, with its guidance regarding self-determination: “At some point, persistence becomes coercion.” The Wilson v Wilson case brought into focus the issue of long hours in mediation, and the possible effect of wearing parties down toward settlement. Nationally, an ABA task force report on mediation didn’t quite clarify the matter: “Follow-through is patience and persistence but not stubbornness.” That same report does, however, emphasize that mediation participants often seek mediators who are “prepared to stay late—and as long as it takes to finish the mediation.”
So what gives? How might mediators know when they’ve delivered the pressure a party desires? How might a party indicate that they’ve reached their limit?
To locate a parallel model of desired-pressure-up-to-a-point, I turned to—where else?—the Internet. There I found some very helpful service-delivery models on offer, including the dominatrix, which stimulated my thinking to new heights. And thus I present a new mediator role, The Mediatrix.
Readers are invited to submit their suggestions of “safety words.”
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Violence in Mediation: What do We Know?
We know that some jobs naturally give rise to threats to personal
safety. Law enforcement officers and firefighters know they will occasionally be in harm’s way in the course of accomplishing their job-related duties. Likewise, judges and attorneys sometimes receive threats against their life or safety from angry or mentally ill parties in a legal case. However, little is known about threats against mediators or incidents of violence that may arise between parties during the course of the mediation process. While hopefully rare, when these events occur mediators must be prepared to harness all of their training in conflict resolution in order to maintain or restore a safe environment for all or to safely end mediation.
How often do these incidents occur, how do they arise, and how do mediators react? Mediators swap anecdotal ‘horror stories’ during professional conferences and gatherings, but there has been very little actual research into these phenomena. In order to learn more about the incidence of violence in mediation, Dr. Susan Raines and Dr. Marco Turk are undertaking a survey of mediators from all types of practice—small claims, landlord-tenant, probate, family/divorce, juvenile, commercial disputes, etc. If you are a mediator, please use the link below to take part in this survey, whether you have experienced violence in mediation or not. Please encourage others in your networks to participate as well.
Results of the survey will be shared on this blog and in academic publications so as to help
the field of mediation better understand and prepare for the possibility of violence during the
process.
https://www.surveymonkey.com/s/violenceandmediation
Thank You,
Susan S. Raines, Ph.D.
Director, MS in Conflict Management Program
Kennesaw State University
sraines@kennesaw.edu
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Lawyers on Facebook: Friend or Foe?
Sun Tzu, the ancient Chinese military strategist, is widely credited to have coined the adage “keep your friends close, and your enemies closer.” Sun Tzu, however, didn’t have Facebook.
Sun Tzu didn't have Facebook
Recently, a corporate defense attorney and mediator from South Carolina preparing for a mediation conference received a “friend request” from the Plaintiff’s attorney who was representing the party on the other side of the table. As is often the case on Facebook, the South Carolina defense attorney obliged without giving the matter much thought at all.
On the day of the mediation conference, however, the Plaintiff’s attorney ambushed his cohort by projecting onto the big screen the defense attorney’s latest Facebook post that scandalously revealed that the defense attorney had celebrated his 50th birthday the weekend before the conference. Pointing to this as evidence that the birthday boy hadn’t taken the case seriously, the Plaintiff’s attorney shifted focus away from the issues at hand (whatever they happened to be), and the mediation ultimately ended unsuccessfully.
The use of social media to intimidate the other side in a negotiation is nothing more than old wine in a new wineskin, but this case readily demonstrates that these tactics are counter-productive to the goal of mediation: reaching a negotiated solution.
Was this all part of a premeditated plan on the part of the Plaintiff’s attorney? What value does personally attacking someone on the basis of a benign Facebook post add to the mediation, particularly when it has nothing to do with the case? Certainly, it gives pause for thought as to whether attorneys and mediators should be more scrupulous in choosing to accept or decline offers of “friendship” in the digital marketplace.
Read here for a first-hand account of the story.
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Thoughts on the State of the Union: Banks Should Bridge Their “Deficit of Trust” By Agreeing to Mediate Before Foreclosing
The housing market in America is a mess, to say the least. Home foreclosures continue to sweep across the country, much like that megatsunami 
from the movie Deep Impact (1998). Unlike the survivors in the film, however, your typical homeowner can’t simply “run to the high ground” to escape the unfathomable havoc that megatsumanis tend to wreak.
Just last night, President Obama, in his State of the Union Address, suggested that some of the nation’s largest financial institutions who took bailout money should start to pay back the American people their “deficit of trust.” Perhaps banks and mortgage lenders agreeing, as a matter of policy, to participate in mediation proceedings before moving forward with foreclosure could help begin to cover this gap.
Coincidentally, the Department of Justice issued a report last week entitled Foreclosure Mediation: Emerging Research and Evaluation Practices. Out of this report come several recommendations for federal action. Common among most of these recommendations is the notion that the federal government needs to support regional, community efforts to help both distressed homeowners and banks mitigate losses and achieve relatively positive outcomes through mediation.
Of course, this all sounds very nice and fluffy in theory, but for this sort of sweeping incentive program to have any real consequences, banks will have to either agree come to the mediation table or, more probably, be forced to. Congress shouldn’t have to pass law requiring mandatory mediation proceedings before a home can be foreclosed on. Foreclosure is a lose-lose situation for all involved, after all. Mitigating losses should, in theory, be the sole objective of homeowners and banks involved in these unfortunate circumstances. As the federal government continues to research the effectiveness of already-established foreclosure mediation clinics, the data will hopefully bear the benefits these proceedings confer on both parties: mitigated financial losses for the banks and the avoidance of potential homelessness for the homeowners.
Getting banks to agree to come to the table is a major threshold issue that can’t be overlooked. Let’s hope that the DOJ’s continued research in this area firmly establishes that mediation does, in fact, best serve the interests of all parties involved.
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Mediation in Media: Metropolis
There is a good amount of excitement in the mediation community over the new mediation-based television show, Fairly Legal. But did you know the hero in one of film history’s most influential films was a mediator?
In the epic 1927 German silent film, Metropolis, the concept of the protagonist as a mediator is one of the key themes of the film. I won’t attempt to summarize the entire film (that’s what Wikipedia is for), but the main character, Freder, evolves over the course of the film to become the mediator between those who control the city (referred to as “the head”), and the workers (“the hands”).
There can be no understanding between the hand and the brain unless the heart acts as mediator.
Obviously, Freder is not a mediator in the modern legal context, but the film’s theme of the heart serving as the mediator between the head and the hands is an interesting concept that I believe modern-day mediation still grapples with. Mediators have been unable to overcome the perception that mediation, and ADR overall, lacks the intellect and muscle so often deemed necessary to be a success in the legal world and is instead a “touchy-feely” alternative . But is this a notion mediation should reject or embrace?
Obviously there would be no benefit to the profession by portraying mediation as an opportunity for parties to meet at a table and sing Kumbaya, but is there any benefit to be had by appealing to the emotional element that can exist during mediations? Personally, I don’t think it would help improve the perception of mediation by some of those in the legal community, but I think it would be an attractive element for pro se parties. I know I have encountered several pro se parties during my court-ordered mediations who think their emotional pleas will prevail and influence the judge in their favor but it rarely does. Perhaps if there was some way to convey to pro se parties that, if they view the strength of their case rests in emotion, mediation would be their best course of action.
But what do you think? Should mediation embrace the emotional aspect, or should mediation strive to portray itself as a more traditional legal tool?
(For anyone who is interested in watching Metropolis, and I highly recommend you do, a recently restored version of the film is now available on DVD/Blu-ray and is also currently viewable on Streaming Netflix)
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Rise of the Cybersettlement
Hello. I. Am. Your. Mediator.
Indisputably.org has an interesting article about an online dispute resolution service available in New York City.
Cybersettle provides online mediation for smaller claims by replacing the mediator with a computer. All offers are communicated through the online service, thus allowing parties to negotiate without having to appear before one another.
I can see the appeal of the expedited, cheaper process, but can it really be considered mediation. To me the service looks rather extraneous and doesn’t provide anything more than a series of emails would allow with the exception of the anonymity provided to those who have the authority to make or accept the offers.
Is this a legit service or is it a simplified deviation from actual mediation?
The article can be found here.
Alternative Dispute Resolution in Georgia 