The Mediation Center is not just a place or a program – it is about serving people and making our community a better place!
Established in 1998 as an initiative by the League of Women voters, the organization provides mediation and conflict resolution services to Brown County, Wisconsin residents in contested small claims disputes referred by the Brown County Circuit Courts. The organization has removed the often long waiting periods for trials and lowered significantly the costs (estimated to be in excess of $200,000 annually) for taxpayer support of the court system and the parties involved. By arriving at mutually agreed upon solutions using a less stressful process, everyone benefits from a more satisfying process to resolve disputes.
Utilizing an all-volunteer corps of 45 experienced mediators who undergo extensive training in the mediation process, the Mediation Center of Greater Green Bay has conducted more than 10,000 mediations and boasts a successful dispute resolution rate of 87%, exceeding that of other similar organizations throughout the United States.
Over the years, the types of mediation has expanded to include:
• homelessness prevention(landlord/tenant disputes)
• elder and family issues
• diversity issues
• workplace/employment disputes
• neighborhood disagreements
• commercial disputes and insurance/accident issues
The mediation process is a voluntary and confidential negotiation facilitated by a neutral third party. Unlike a trial or arbitration, mediation does not involve decision making by the neutral third party – instead, mediators help the parties find common ground, interpret concerns, supervise the exchange of information, frame issues, define the problem and help the parties arrive at a mutually agreed upon solution to their dispute. The mediation process does not focus on “truth” or “fault” but rather on “how” an issue can be resolved to everyone’s mutual satisfaction.
Mediation with Landlord/Tenant Disputes: The largest group of mediations performed by the Mediation Center of Greater Green Bay involves landlord/tenant disputes with possible consequences including eviction and homelessness. The vast majority of our mediations involve individuals who subsist on poverty level incomes with a large proportion of those served belonging to minority Hmong and Hispanic communities. Every day in Brown County, families who have never been homeless before are at risk to lose their housing and enter a shelter or find themselves on the streets. The financial crisis of 2007 and the subsequent spikes in job loss, unemployment, and foreclosures disproportionately affected those at the bottom of the income distribution. For less-educated, low-wage workers and their families, this struggle continues in 2016.
We know that homeless children experience many stresses which can have implications for emotional and physical health – the inability to attend school/poor school attendance, psychological and social isolation affecting academic performance, stigmatization due to their unstable housing situation and a subsequent increased risk of dropping out of school. Health outcomes are worse for homeless children with noted increases in malnourishment, food insecurity, a greater incidence of mental health problems and lack of access to adequate health care. In Brown County, approximately 500 families each year face eviction and the potential to become homeless. Once an eviction has been filed in small claims court, it is nearly impossible to get it removed from CCAP (a public website where all court records in Wisconsin can be easily accessed and viewed by anyone with internet access). CCAP records related to housing may negatively impact the consideration of an individual’s future housing applications.
The HUD study, “Strategies for Preventing Homelessness” demonstrated the effectiveness of mediation within the court system and showed the ability of mediation to preserve tenancy, even after the landlord has filed for eviction (a success rate of 65% of families and 85% of people with serious mental illness maintained their tenancy through employing mediation strategies).When times get tough, the last thing a poor family needs is to be evicted from the home or apartment they are renting. 32% of those families now staying in shelters are there as a result of court ordered evictions. Addressing eviction issues is clearly one of the best ways to stem the flow of homeless individuals and families into our already overburdened shelter system. A record of eviction limits a family’s future ability to secure adequate and safe housing over time as landlords often reject housing applications with eviction records. Arriving at an accommodation is always better than enduring the eviction process.
So when someone asks, “what do you do over at the Mediation Center?”…..the answer is quite simply: “we change lives!”
In New Haven, a Restorative Approach to School Discipline
By Jennifer Dubin
Just a couple of weeks into this school year, an eighth-grader new to Brennan-Rogers School of Communications and Media was trying to fit in. To impress a group of boys who had known each other for many years and whom he wanted to befriend, the student tried to win them over with humor. In math class, he drew a sexually explicit picture of himself and their teacher, then passed it to them. The image garnered a couple of laughs but also a rebuke from one offended student who threw the drawing back at him.
Hearing the commotion, the teacher walked over and picked up the picture. She was horrified but held onto it and resumed teaching; she did not ask anyone to leave class. After the bell rang, she pulled aside the boy who had drawn the picture to tell him she was hurt and to send him to the principal’s office.
Gail DeBlasio, the principal of the preK–8 school in New Haven, Connecticut, asked the student to wait in her office while she called his mother and asked her to come to the school. When she arrived 10 minutes later, DeBlasio says, “I showed his mom what he had drawn. It did not go well.” The student protested that it was only a joke, but his mother was furious. Since it was already late in the day, DeBlasio sent the student home. She told him to write a reflection about his action and to hand it to her when he returned to school the next day.
“Because he was a new student, he thought it was all done,” DeBlasio says. He didn’t know that his essay was just the beginning of how Brennan-Rogers helps students learn from what they did wrong. Upon the student’s return to school, DeBlasio asked him to sit in a circle with his teacher and the other students he had shared the picture with. “They each had to talk about what harm was done by the note, but also what harm they did by laughing at what they saw,” DeBlasio says. “And then the one child who threw the note back talked about how hurt he was and how embarrassed he was for his teacher.”
The students who laughed took responsibility for their behavior. Then the student who drew the picture burst into tears. “He never really considered how [his teacher] would feel,” DeBlasio says. The conversation enabled him to empathize with her and to feel the remorse and guilt that would prompt him to learn from his mistake.
Had the student attended another public school, DeBlasio says he would almost certainly have received a suspension. In fact, this student had been expelled for behavior issues from his previous school in New Haven, operated by a high-profile charter school chain.
The student came to Brennan-Rogers at a serendipitous time. In recent years, administrators and teachers have shifted from traditional school punishments, such as suspension, to strategies that help students acquire the skills to engage in positive behaviors. To that end, educators in the building have embraced restorative practices, in which students participate in conversations with their teachers and peers to discuss problems at school and at home. These conversations, also known as restorative circles, take place to prevent conflicts between students and to repair relationships after a student has harmed an individual and/or the school community.
Teachers at the school also rely on peer mediation, where students learn to help others resolve arguments. Nearly 25 students from grades 5 through 8 have volunteered to be trained as peer mediators this year. Since Brennan-Rogers’ efforts around restorative practices are still so new, suspension rates at the school have not yet changed significantly. But DeBlasio hopes those rates will decrease this year, given the training in restorative practices that she and her staff have received.
The school’s approach to discipline is not happening in isolation. A burgeoning effort is underway in the New Haven Public Schools to recognize the importance of social and emotional learning. In fact, research shows that suspensions do not help students understand and correct their behavior. (For more on how zero-tolerance policies do more harm than good, see “From Reaction to Prevention” by Russell J. Skiba and Daniel J. Losen.) Research also shows that social and emotional learning improves student behavior and reduces the use of suspensions, which keeps students in school and learning.
Last year, the New Haven Federation of Teachers (NHFT) received a two-year grant for $300,000 from the American Federation of Teachers Innovation Fund toward this school discipline endeavor. The grant money is used to train teachers in restorative practices and to pay for a project director responsible for helping teachers apply these practices in their classrooms.
David Cicarella, the president of the NHFT, marvels that many of the questions related to student discipline remain the same. “It’s been a little bit of a mission of mine, in a personal sense, because I was a classroom teacher,” says Cicarella, who has worked in education for 36 years. One of those perennial questions is particularly complex and the focus of the AFT grant: What do we do about students, like the new eighth-grader at Brennan-Rogers, who constantly disrupt class?
A Citywide Effort
In 2009, at a time when the NHFT negotiated a groundbreaking contract that received tons of media coverage for its approach to teacher evaluation, the issue of school discipline weighed on Cicarella’s mind. “It would come up in our executive board meetings,” he says. Individual teachers would call him to say they faced incredible challenges because of a handful of disruptive students and that no effective supports were in place to help them teach or their students behave.
Cicarella continued to raise the issue with district officials, but it wasn’t until a few years later that a citywide effort around school discipline started to take shape. In 2013, Garth Harries became superintendent of the New Haven Public Schools, and Toni Harp was elected the city’s mayor. That year, “we had a number of homicides involving school-age kids,” Harries recalls. The deaths shocked both him and Harp and prompted them, he says, “to run toward the problem in the context of engaging students in learning that would prevent the kinds of behaviors that were taking lives.”
To prevent losing children to poverty and crime, the mayor created Youth Stat in the spring of 2014. The program connects officials from the school district and the juvenile justice department, among other agencies, so they can identify and help at-risk youth. Youth Stat consists of weekly to monthly meetings, depending on a student’s grade level, where officials can share information about student attendance and truancy, student achievement, school transfers, and how many times students have made contact with the juvenile justice system. Both Harries and Cicarella have on occasion attended the meetings, which focus on connecting students and their families to appropriate social services and education supports.
Soon after the creation of Youth Stat, the union won the AFT Innovation Fund grant to help teachers implement restorative practices. Cicarella says that the mayor, who also sits on the school board and was elected its president, “was just ecstatic about it.”
Cicarella then hired William Johnson, a former principal of an alternative school for disengaged youth in New Haven, as the grant’s restorative justice project director. Johnson’s focus on social-emotional learning at the school, as well as his later work as a consultant specializing in restorative practices, made him an ideal candidate for the job.
Johnson laid the groundwork for the grant’s first year in 2014. He contracted with the International Institute for Restorative Practices (IIRP), an organization based in Bethlehem, Pennsylvania, to train 37 New Haven teachers in the use of these practices. These teachers, many of whom volunteered to be trained or were asked to go through the training based on their strong rapport with students, would then return to their schools to train their colleagues. These teachers attended two days of training in May 2015, while the district provided substitutes for their classrooms. For their three-day training over the summer, they received a stipend of $28.69 per hour.
While the grant to the union covered the cost of this “train-the-trainer” model, the district paid for principals and assistant principals to attend the IIRP training as well. Their two-day training occurred in August, with more trainings planned for later this year.
Over the summer, when Johnson took a permanent position with the school district as director of instruction, Cicarella needed to find a new project director for the grant’s second and final year. He hired Cameo Thorne, a former English teacher who in 2009 was named New Haven’s Teacher of the Year. Thorne had spent 15 years at High School in the Community, a New Haven public school.
At High School in the Community, in addition to teaching, Thorne handled student discipline. “We had a developmental guidance approach,” she says. It was “meant to help the students tie their choices to their results.” When students did something wrong, she would tell them, “I’m really not interested in taking sides and shaming you. I’m interested in helping you make the choices that you want to make to support your long-term goals.”
To that end, Thorne wants to help teachers learn how to ask neutral questions about misbehavior, an approach at the heart of restorative practices. For instance, asking “What happened?” instead of “Why did you do that horrible thing?” is far more effective, Thorne says, in getting students to share why they misbehaved instead of acting overly defensive.
Of course, not all classroom disruptions rise to the level where teachers need to use restorative practices. Say a student is using his cell phone in class. Thorne learned a long time ago not to look at the student; instead, she has found that looking over the heads of all the students in her class and announcing that now is the time to put all cell phones away actually works best.
When, as a less experienced teacher, Thorne did address the student directly, she found that often the student, embarrassed for having been singled out in front of his or her peers, would simply deny having used the cell phone. At some point, Thorne realized she was inadvertently inviting an argument with the student that detracted from instruction. “I don’t want an argument,” she says. “I’ve got to get through the educational piece.”
Thorne now spends much of her time meeting with teachers and administrators to help them apply restorative practices and other classroom management strategies in their schools. She also meets with officials in the mayor’s office who run the Youth Stat program, as well as members of the city’s Board of Alders, who are interested in how they can support this work.
Thorne keeps in close contact with administrators in the superintendent’s office who focus on the district’s restorative practices effort. That effort is reflected in revisions currently being made to the district’s code of conduct, which now states that “the New Haven Board of Education has adopted a Restorative Practices approach within New Haven schools to address conduct issues. Restorative practices will be applied within schools to address misconduct in most instances.” The code goes on to state, however, that “repeated or severe misconduct may result in suspension, and/or expulsion, and/or referral to police and/or other appropriate agencies.” In other words, for major offenses, stiffer penalties are still in place.
The code categorizes misconduct in four levels and outlines specific examples of offenses and their consequences. For instance, Level 1 is “minor misconduct,” such as “making noise in class” and a “dress-code violation.” These offenses warrant the use of restorative practices such as students sitting in circles to discuss behavior (often referred to as the circle process) and peer mediation.
Even for Level 4’s “major offenses,” such as assault/battery and bringing a weapon to school, which are crimes under state law, the use of restorative practices, along with harsher consequences, is mentioned: “Suspension from school or transportation services is required pending implementation of a restorative practices process or initiation of expulsion proceedings.” The inclusion of restorative practices as an additional consequence for major offenses signals the district’s confidence in them to help even the most challenging students learn from what they did wrong.
These changes to the code, which were made in September and were still in draft at press time (and will likely not take effect until spring 2016), come less than a year after New Haven was cited as one of many school districts across the country that suspended black and Latino students in 2011–2012 “at extraordinarily high rates.” According to the “District Profiles” addendum to Are We Closing the School Discipline Gap?, a report published by the Center for Civil Rights Remedies, in that year “nearly 4 out of 10 Black female secondary students with disabilities (39%) were suspended, as were 35% of all secondary Latino males.”
But the report also noted some positive findings, stating that the district had “made significant progress since 2009–10.” At the secondary level, overall suspension rates decreased. “Roughly 690 students were suspended at least once in 2011–12, a rate of 10.9%. This is a decrease from 18.7% in 2009–10, a decline of nearly 8 percentage points.” Also, during this time, suspension rates decreased significantly for black students, from 24.7 percent to 16.2 percent, and for Latino students, from 19.9 percent to 9.4 percent.
Harries says that so far this year, suspensions of all students are down compared with figures for last year. According to the district’s data department, the number of students with disciplinary incidents (suspensions, expulsions, office referrals, and detentions) has decreased by nearly 26 percent, from 466 in 2014 to 347 in 2015. Harries attributes the drop to the district’s overarching push to implement restorative practices systemically “so that this kind of practice isn’t happening at the margins, but it’s happening at the core of what we do.”
Improving Communication Skills
Long before Youth Stat and the AFT Innovation Fund grant, educators at Brennan-Rogers were gradually making restorative practices part of their school’s core mission. Several of them were hired in 2010 as part of the district’s plan to improve the school, which was one of its lowest-performing. Standardized test scores have improved since then, recently climbing as high as the district’s average.
As part of the turnaround effort, Brennan-Rogers became a magnet school for technology and communications. At first, the school focused more on acquiring iPads, interactive whiteboards, and other technology it lacked than it did on the communications piece. But the staff knew communication skills were also critical for their students. “We wanted to give our students the skills of being able to speak to one another about something they don’t agree on without name calling and getting into fights,” says DeBlasio, who was the school’s magnet resource coach at the time.
At Brennan-Rogers, students had always started their day with a morning “crew” meeting. The name “crew” was chosen to reflect the idea that students must all work together (like the crew of a boat, not passengers) to build a positive school community. In the middle school grades, each crew consists of a group of 10 to 12 students that meets for 30 minutes with a single teacher to work on character development. For all other grades, crews consist of a full class, which can be up to 24 students. DeBlasio says that a few years ago, teachers began introducing deeper topics into crew meetings so that students could wrestle with moral and ethical dilemmas, discuss ways to regulate their emotions before the academic day, and resolve conflicts with one another.
Building on these changes to crew, DeBlasio sought out additional help in teaching students communication skills. In 2013, when she became principal, she turned to Joe Brummer, a consultant and trained mediator who specializes in nonviolent communication and restorative justice. Brummer conducted trainings for teachers on how to manage conflicts between students and classroom behavior. The next year, DeBlasio and her staff asked him to help start a peer mediation program for students in grades 5 through 8.
One morning in September, Brummer stands in front of peer mediators gathered in the school’s library for their first day of training. The students, dressed in uniforms of blue polo shirts and khaki pants, are seated in a circle. With a marker in hand, Brummer asks them to define “respect” so he can write their answers on a large sheet of paper taped to a whiteboard. He tells the students the paper is their “respect agreement” between themselves and their teachers. Taking turns, students politely offer the following definitions: “Treat others the way you want to be treated.” “Not talking back.” “Listening to others.”
A few minutes later, Brummer then explains the term “mediation.” It’s “where we bring one group or party of people into a process to help them share their own problems.” In other words, he tells them, their job will be to help classmates “have a conversation they haven’t been able to have.”
At Brennan-Rogers, when students have disagreements with each other, they can request to meet with peer mediators to help them resolve conflicts. DeBlasio says the practice has helped de-escalate many situations at school. “We presume that people are able to resolve differences amicably, and that’s a wrong presumption,” she says. “Many times kids grow up in homes where they hear the yelling and the screaming.” What they don’t hear are the calm words needed to work things out.
Victoria is an eighth-grader who has volunteered to become a peer mediator. (To protect her privacy, I have changed her name.) Wearing a sweatshirt emblazoned with “LOVE” over her blue polo shirt, she pays close attention during the training. Later she tells me she signed up for the program because she wants to help other students. “In my school, there are kids who go through a lot at home.”
Like Victoria, the majority of students at Brennan-Rogers come from low-income homes; nearly all qualify for free or reduced-price meals, and most are black or Latino. Many students live in public housing only a short drive from the school.
For the last two years, Victoria’s mother has frequently been hospitalized for blood clots that she worries will eventually take her mother’s life. This anxiety often prompted her to act out in school; fighting with peers and disrespecting her teachers were routine parts of her day. But as she began participating more in crew and confiding in teachers about her fears of losing her mother, her behavior slowly improved.
On particularly difficult days, “my teacher and my crew talk to me and tell me to calm down, everything’s going to be fine,” and that “relaxes me,” Victoria says. DeBlasio explains that many students don’t connect their anxieties with their disruptive behavior at school. But Victoria is “beginning to catch herself and understand that she’s actually acting out not because she doesn’t like her teacher or her classmates but because she’s upset about what’s going on at home.”
A Different Response
While Brummer trains Victoria and her peers, the rest of Brennan-Rogers’ students meet in their crews. Kelly Kochan, who teaches science to seventh- and eighth-graders, asks her students to take out their journals and write five words to describe themselves. She then asks them to share what they have written. One boy says “helpful” and “humble.” One girl says “baby lover” because she loves babies. Another girl says “mean” but declines to elaborate.
Kochan then steers the conversation to the topic of peer pressure. “Is it hard to be who you are at school versus who you really are?” she asks. “Sometimes I think some of you act differently because of your surroundings or because of what’s going on. Why do we feel at school that we act differently?”
A boy says students may feel they need to be two different people “because they want to show off in front of their friends.”
“Do you think it’s more important to show off to your friends or stay true to yourself?” Kochan asks.
“It’s more important to stay true to yourself,” he says. “If you show off, you might get in trouble.”
“Staying true to yourself,” adds another boy. “If you do something bad as a child or teenager, it can really mess up your future.”
For Kochan, crew enables her to really get to know a handful of students. It’s also a way to start the day on a positive note, she says, “rather than coming in and just jumping straight into academics, where a lot of kids struggle, and so they act out because of that.”
She acknowledges that because it’s still early in the year, encouraging students to share is difficult. For instance, she’ll have to continue to draw out the girl who described herself as mean.
Kochan has taught at Brennan-Rogers for three years. She spent her first year of teaching at another New Haven public school that did not incorporate restorative practices and did not help students learn from their mistakes. Instead, “it was, here’s the consequence, and we’re just going to hope that they didn’t like the consequence enough” to stop misbehaving, she says.
Trying to understand why her students sometimes behave in negative ways and trying not to take that behavior personally can be challenging. “I have to fight the impulse to raise my voice real quickly if something’s not going the way I want it to,” she says. In her time at Brennan-Rogers, Kochan has learned that raised voices rarely lead to improved behavior.
At the same time, she will ask a student to leave class and go to the office if he or she is physically acting out. “If it looks like they are getting up in a student’s face,” or if she feels the safety of other students or her own safety is threatened, “that’s when usually somebody is going out,” Kochan says. She adds that the school’s focus on positive discipline means that she dismisses students from class for such behavior only a couple of times each year.
In cases of physical violence, DeBlasio says the school still suspends students. But in the last couple of years, she and her staff have been requiring suspended students to engage in a restorative circle as part of their reentry into the school. The circle takes place in her office with the parents of the children who were harmed and the parents of the children who did the harm. Parents, too, are affected by suspensions, DeBlasio says.
But circles aren’t limited to her office. Often, the student who committed the offense will also participate in a circle as part of rejoining his or her classroom. “When there’s a fight between two students, it doesn’t just impact those two students,” DeBlasio says. “It also impacts the other students around them.” She adds that the focus is not on singling out the person who was suspended, but on welcoming him or her back to class.
At Brennan-Rogers, restorative circles also occur in the earlier grades, including kindergarten, although kindergartners are not suspended. “I call them fixing circles,” says kindergarten teacher Daron Cyr. With such young students, Cyr works on the foundational part of restorative practices: helping students identify feelings and then sharing those feelings with students who may have pushed them or hurt them in some way, so that students who did harm learn to make things right.
While such practices take time, Cyr says they are a necessary part of instruction. If educators try to teach content over disruptive behaviors or emotions that manifest themselves in negative ways, learning will not and cannot occur. “The kids can’t access the content without knowing that their emotional needs are met first,” she says.
Not that calmly responding to disruptive behavior always comes naturally for educators. “It does take a conscious decision to respond differently,” Cyr says. “Your knee-jerk response is not always to—in a calm, peaceful voice—ask what they’re feeling.” Engaging in restorative practices is ultimately a retraining of a teacher’s response when something is frustrating in the classroom, she says.
* * *
While the AFT Innovation Fund grant ends this year, teachers and administrators in New Haven believe the district’s positive approach to school discipline and its support of educators in this work will continue. “I see this deepening and extending,” says Garth Harries, the superintendent.
Part of what Harries has valued most about the grant is the degree to which it is “solution-driven unionism,” he says, quoting a phrase coined by AFT President Randi Weingarten. He lauds the grant for putting money, energy, and focus toward solving a complicated educational problem.
For now, DeBlasio and her staff will keep refining their approach to restorative practices. And they will work with Thorne, the grant’s project director, to see where she can best support their efforts, which have been going on longer than most in the district.
As for the new eighth-grader who drew the inappropriate picture, DeBlasio says his behavior will not change overnight. Roughly a week and a half after that incident, his gym teacher sent him to the principal’s office for using profanity in class.
“He sat across the table from me, and he was waiting for me to tell him that he was suspended,” DeBlasio recalls. “I looked at him and said, ‘I’m not going to suspend you for this.’ Before he could say a word, he just started crying.” Then he said, “I know what I did was wrong.”
DeBlasio again called his mother. But this time, she told her there was no need to come in. “I just want you to know what happened,” she said. Then, to his mother’s great relief, DeBlasio added, “I’m not suspending him, because he’s trying.”
Jennifer Dubin is the managing editor of American Educator. Previously, she was a journalist with the Chronicle of Higher Education. To read more of her work, visit American Educator’s
HELPING TO PREVENT HOMELESSNESS IN OUR COMMUNITY
Last year in Wisconsin nearly 18,000 children and youth (more than 3,100 families) were identified as being homeless at some point during the year. That’s roughly the equivalent to filling every seat at a basketball game at the University of Wisconsin–Madison’s Kohl Center. The financial crisis of 2007 and the subsequent spikes in job loss, unemployment, and foreclosures disproportionately affected those at the middle and bottom of the income distribution. For less-educated, low-wage workers and their families, this struggle continues in 2016.
Homeless children experience many stresses which can have implications for emotional and physical health – the inability to attend school, poor school attendance, psychological and social isolation affecting academic performance, stigmatization due to their unstable housing situation and a subsequent increased risk of dropping out of school. Health outcomes are worse for homeless children with noted increases in malnutrition, food insecurity, a greater incidence of mental health problems and lack of access to adequate health care.
When times get tough, the last thing you want is to be evicted from the home or apartment you are renting. 32% of those families now staying in shelters are there as a result of court ordered evictions. Addressing eviction issues is clearly one of the best ways to stem the flow of homeless individuals and families into our already overburdened shelter system. Evictions cause and intensify the instability that can lead to homelessness. A record of eviction limits a family’s ability to secure adequate and safe housing over time as landlords often reject housing applications with eviction records. Arriving at an accommodation is always better than enduring the eviction process.
In Brown County, approximately 500 families each year face eviction and the potential to become homeless. Once an eviction has been filed in small claims court, it is nearly impossible to get it removed from CCAP, which is a public website where all court records in Wisconsin can be easily accessed and viewed by anyone with internet access. CCAP records related to housing may potentially impact the consideration of an individual’s future housing applications.
In Wisconsin, prior to a landlord filing for an eviction of a tenant in the Circuit Courts, a negotiation may occur where the parties arrive at a mutual understanding prior to the creation of a permanent court record of eviction. When a landlord files for an eviction hearing in court, a tenant has an opportunity to fight the eviction and/or try to settle with the landlord. After getting an eviction notice, tenants can move out to avoid going to court, but they often have the chance to fix the problem and stay, without ever going to court.
WHAT WE DO:
During mediations in eviction cases, held every Tuesday afternoon at the Brown County Court House (and subsequent sessions), our 38 trained volunteer mediators work with both landlords and tenants to discuss whether they can arrive at a settlement or go to hearing. Successful mediations often include a payment plan which is agreeable to both parties, avoiding an eviction hearing and helping tenants to maintain their ability to rent in the future, This type of mediation is a large part of the work performed by the Mediation Center of Greater Green Bay. By helping parties clarify and resolve disputes in a manner that is realistic and satisfactory to all, landlords are made financially whole while tenants are assured that they can remain in safe housing and out of the shelter system.
Why Mediation Works
by Michael Roberts
“Traditional litigation is a mistake that must be corrected… For some disputes trials will be the only means, but for many claims trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for really civilized people.”
Chief Justice Warren E. Burger, (Ret.) U.S. Supreme Court.
We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney’s fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. Parties increasingly find that they are spending more to litigate than the cost to settle the matter.
The increasing number of lawsuits filed each year is indicative of the unwillingness or inability of parties and their attorneys to effectively utilize negotiation to resolve disputes.
Because the current legal environment discourages the early settlement of disputes, society is demanding a new approach for resolving disputes more efficiently. That new approach is mediation.
WHAT IS MEDIATION?
Mediation is a process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement. It is an extension of the parties own negotiations and is sometimes referred to as a “supercharged negotiation.”
A mediation session involves a discussion of the dispute by the parties, as opposed to the formal presentation of witnesses and evidence such as takes place in a trial or arbitration. The session will normally be attended only by the mediator, the parties and their attorneys. Because of the informality of the process, a mediation can usually be completed in a day or less.
The mediation process is entirely voluntary and non-binding. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator’s role is to assist the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them.
A mediation session is private and confidential. It is normally held in a private office or meeting room and no public record is made of the proceedings. If no settlement is reached any statements during the proceedings are inadmissible as evidence in any subsequent litigation.
A mediation session typically begins with a joint meeting of the parties, their attorneys and in some cases, insurance company representatives. The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask the attorneys for each of the parties to make a presentation of their case, identifying the issues in dispute.
Following the joint meeting, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called “caucuses”. In these caucuses, the mediator works with each of the parties to analyze their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached.
Mediation is different from an arbitration in that the mediator does not render a decision. Instead, mediation allows the parties to make their own decisions and fashion their own settlement. The mediator generally doesn’t make recommendations but rather, allows the parties to make their own decisions based on a realistic analysis of their case.
WHY MEDIATION WORKS
The American Arbitration Association reports that over 85% of all mediations result in a settlement. This is true even where all prior attempts at settlement have failed, where the parties are pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for a trial. So why does mediation work, when the parties have been unable to settle the case themselves? There are a number of reasons.
First, negotiations between parties or their attorneys may never take place without the assistance of a third party mediator. Attorneys often fear that the making of any “reasonable” settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations. Mediation provides a safe environment for negotiation because the mediator can control and direct the communications. In this fashion, unproductive discussions can be avoided and concessions or proposals will be communicated only if they are likely to lead to a settlement.
Second, in those cases where some negotiations have taken place, they are often unsuccessful because the parties lack essential negotiation skills. Attorneys are often more interested in posturing, than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. Since the mediator’s job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.
Third, mediation provides the opportunity for all parties to meet at the bargaining table for the express purpose of discussing settlement. All decision-makers necessary to resolve a problem are normally present. These decision-makers, who otherwise may be unavailable or distracted by other business matters, are able to focus their entire attention on reaching a settlement.
Fourth, during the mediation session, each party is given the opportunity to directly educate and influence their opponents in the opening presentation. Important issues can be emphasized and facts can be presented in a more favorable light. Also, the intensity of a party’s feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position (one not filtered through lawyers) and often results in the consideration of settlement proposals that otherwise would have been rejected.
Fifth, mediation allows each side to “test market” a settlement proposal by privately conveying the proposal to the mediator in a caucus. Unless authorized to do so, the mediator will not convey the proposal to the other party. The mediator will, however, be able to receive confidential proposals from the other side. As a consequence, the mediator will be able to determine whether a proposal is feasible without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to “give in”.
Sixth, mediation offers each party a “realistic” look at their case and what results they are likely to achieve in court or arbitration. As the parties become clear on what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible.
Seventh, mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success. Experience demonstrates that attorneys often excel in developing facts that support their positions but bog down when it comes to developing settlement options. The mediator can assist the parties to clarify their real objective and to consider alternatives that might be overlooked by attorneys engaged in battle.
The bottom line is that mediation works! It works because it brings all necessary parties to the bargaining table where they can “realistically” evaluate their positions and safely explore settlement options. It works in settling over 85% of the cases in which it is utilized, including those where the parties have been unable or unwilling to negotiate, or have taken unrealistic or intransigent positions.
Today, parties litigate because they know of no better alternative. However, as the benefits of mediation become more widely recognized, it will undoubtedly become the most utilized tool for resolving civil disputes in the future.
Michael J. Roberts is a full-time professional mediator involved in resolving disputes throughout the United States. He has 36 years of major law firm experience as a senior litigation partner. Since 1985, Mike has served as a mediator and special master in more than 4,000 cases with aggregate settlements in excess of $800 million. Mike’s mediation practice consists primarily of major financial controversies and complex multi-party matters with emphasis on business, real estate, construction, employment and insurance. Mike’s clients include real estate developers, contractors, publicly held companies, institutional lenders, health care providers, educational institutions, governmental agencies, insurance companies and the like. He is a frequent speaker at professional and industry seminars throughout the United States on various topics involving alternative dispute resolution.