The Power Is YoursThe hours are bad, the pay is nonexistent, but mediators are solving some tough problems in our courts and classrooms
by Bill Dockery
The issue sounds suspiciously like a divorce, but it isn't.
Courtney and John, friends since childhood, had lived together for five years as apartmentmates with little romantic relationship. Now Courtney is suing John for $1,600 in Knox County Sessions Court because he moved out with no warning, sticking her with rent on their apartment and taking with him some furniture that both of them had bought.
This evening the pair is meeting with two mediators, Richard Zivi and Amparo Salinero, who are trained in the techniques of conflict resolution. The sessions court judge has suggested that mediation might offer a better solution to the couple's problems than a trial would.
At the start of the session, Courtney is anxious about how she will pay her rent and angry and hurt that John moved out without giving her any notice. John is frustrated at being sued and just wants to get the session over with.
The four spend two and a half hours together exploring their disagreements and looking for a way to reach an agreement that both can endorse. At the end of the session, John and Courtney have settled their monetary disputes, divided their joint property, and even agreed to host their traditional Halloween party together.
Common in other parts of the nation, mediation is a process that has a small but growing place in the landscape of conflict resolution in East Tennessee.
Unheard of in these parts a decade ago, mediation is now being used to broker divorce settlements, resolve disputes between landlords and tenants or business people and their customers, end neighborhood feuds between juveniles, help public school students settle their differences peacefully, and even reconcile victims with people who committed crimes against them.
Seen as an alternative to the adversarial, me-vs.-you framework of the legal system, mediation is a carefully controlled process that aims to help both sides in a dispute craft an agreement they can live with, on the theory that any pact made willingly by two opposing parties will be more durable than a ruling imposed from above by a judge or an arbitrator.
The mediators are highly trained volunteers who have not only studied the process but sat in on hundreds of hours of actual mediations as observers and participants.
Smack in the middle of this emerging movement is the Community Mediation Center, a recently formed nonprofit organization that has absorbed three programs which originally grew from independent mediation efforts. The center has combined the divorce mediation started as the Knoxville Bar Association Mediation Service (affectionately pronounced "K-BAMS") with mediation efforts in juvenile and sessions courts that the University of Tennessee Conflict Resolution Program helped initiate.
"This is the first time we've consolidated all the programs under one umbrella," says Karen Dorn, the center's first full-time director. "This should make it available to a lot more people."
The services are free to anyone who needs them with the exception of divorce mediation; for that service, a sliding-scale fee is charged that is capped at $250. The center is funded entirely by grants.
Dorn says that CMC's 90 volunteer mediators donated roughly 4,000 hours last year.
The commonly accepted fathers of mediation in Knoxville are three University of Tennessee faculty members: Grayfred Gray in the law school, Marcus Armbrester in speech communication, and Steven Martin, who oversees the university's program. They interested UT Knoxville Chancellor Bill Snyder in the topic, and the university now offers various conflict resolution classes in several departments.
The mediation movement is occurring statewide, and the Tennessee Supreme Court is preparing to issue its Rule 31, a policy statement that will govern the uses of alternative dispute resolution in state courts. The rule will lay out the qualifications required of mediators and other neutral parties involved in resolving disputes.
Penny White, the associate Supreme Court justice who recently lost a vote for a full term on the court, has headed up a judicial commission drafting the language of Rule 31.
"The perception in the states where there is alternative dispute resolution is that the public is more satisfied when they have a choice," White says. "It provides a basis for reducing stress and trauma in cases where a relationship has to go on."
White says she has seen unprecedented enthusiasm in the state's legal community for alternative dispute resolution, but she thinks its most important contribution may come from nonlawyers.
"This brings lawyers and nonlawyers together," she says. "It has a chance of bringing new notions into the system from people who aren't in the system.
"If the public response is what is expected, I'd foresee expansion of mediation to other courts and other kinds of cases."
What has people so excited is the process itself.
The mediation between John and Courtney has been staged by the CMC to illustrate this nonjudiciary way of resolving conflicts. The two, who are taking a mediation course at UT, play the role of disputants in the scenario because the confidentiality provisions of the guidelines prevents outsiders from witnessing an actual mediation.
Theirs follows the typical pattern of mediations. Zivi and Salinero introduce themselves, seat the young couple opposite them at a table in the City County Building, and then get down to explaining what the two friends-at-odds will face as they seek a nonjudicial solution for the conflict that has brought them here. Zivi starts.
"Can you make your own decisions?" he asks both people. "Do you need to confer with anyone else to make a decision?"
When they acknowledge they are able, Salinero jumps in.
"The difference between mediation and court is that here either of you has the power to fashion your own solution," she says. "If you both agree to something different from the judge's law, you are free to do that.
"The power is yours. The agreement you make will be legally binding on both of you."
Zivi then reads over the ground rules for the mediation: Interruptions are not allowed when the other person is speaking. Complete honesty is required. With the exception of revelations of abuse against children or handicapped or older persons, which must be reported by Tennessee law, everything said during the mediation is utterly confidential (mediators can't even be subpoenaed into court to reveal what they have heard). The rules of evidence and of civil procedure do not apply.
The mediators take questions and then ask Courtney and John to sign a document agreeing to these principles. When the signed paper returns to her hand, Salinero says, "Congratulations on reaching your first agreement."
Then the two mediators begin to draw out the source of the conflict between the pair. The students put on a convincing show of disagreeing over bedroom suites, televisions owned in common, and the central problem, the rent difficulties John's unexpected departure has caused Courtney.
Salinero carefully restates the facts of the argument, then probes further for the emotions underlying the dispute. She reflects the feelings back to the couple.
Zivi takes great pains to make sure he understands exactly the financial arrangements concerning the couple's lease and other debts they owe, because any agreement they reach will be a contract binding on both of them. Everything goes on poster papers on the wall so that everyone can keep up with the finances and with the progress of the discussion.
Pointing to the poster, Zivi says, "The problem is that these are facts, but you need to vent emotions. These are the reasons we are here, as far as the court is concerned."
Salinero follows up on Zivi's hint. "We've written nothing about your feelings of loss or the future of your friendship. What do you want your relationship to look like when we're through here?"
"This is an issue we can address that wouldn't be dealt with in court," Zivi says, writing "#6 future relationship" on the paper.
Systematically the mediators lead the pair through the issues, starting with finances and moving toward the ultimate relationship question. Finally all the money matters are settled and the friendship is all that's left on the table.
"I don't know if he still wants to be friends," Courtney says. "I'd like to get together a couple of times a month to eat dinner. After all, we've lived together for five years."
"Be careful," Zivi cautions. "You don't know what your future relationship will be." He points out that either or both of them may develop other relationships that will alter the nature of this one. The couple agrees to cooperate on their traditional Halloween party and see how the rest of the year goes.
With an understanding reached on the relationship, Zivi focuses on performance of the agreement. He points out that the judge will expect dates and details of exactly how the agreement will be achieved. When those matters are settled, the contract is signed and ready to return to the judge.
Larry Gibney is the chief probation officer for the Knox County Juvenile Court, and he is one of the staunchest supporters of mediation. He sees it as a way to stop a dispute dead in its tracks, to keep it from recycling from the neighborhood into the courts and back to the neighborhood in a chain that foils easy solution. "The basic idea is that with kids, any number of situations are just not amenable to litigation," Gibney says. "In court there'll be a winner and a loser, but the dispute goes back out into the community.
"Mediation is a way of bringing a final solution to those kinds of problems."
Most of the cases coming to mediation from juvenile court are assaults--fights between kids. Gibney says the parents come into the picture wanting to win the issue; but even after a judge renders a decision, the conflict rages on in the community.
"A neighborhood dispute can be one of the most costly and time-consuming cases to come to court," he says. "Everyone brings all the people on their side. It can go on all day."
With mediation, the court now mandates that both parties to a dispute sit down together and make a good--faith effort to resolve the issue. One of the key elements of the mediation is, of course, confidentiality.
Efforts at mediation are largely successful, Gibney says. In July, for example, nine cases were referred to mediation. Six of seven assault cases were successfully mediated, and agreements were reached in both vandalism cases. The mediated cases save the cost of an appointed attorney, plus the time of court personnel from judges through clerks.
"If you looked at mediation in this court from a cost-effectiveness standpoint in dollars and time, you could justify hiring someone to do it," he says. "If the mediators disappeared tomorrow, it would be worth looking into hiring someone."
Gibney is working toward establishing a victim-offender reconciliation program but hasn't gotten one off the ground yet, because VORPs take more up--front preparation. What Knox County wants, Anderson County already has a decade of experience with.
The Victim-Offender Reconciliation Program of Anderson County was founded in 1986 by two people--Margaret Burns and Charles Barton--who were working with adult prisoners but wanted to get closer to the roots of the process that put people in prison. They heard of the victim-offender mediation movement and, through the Anderson County Center for Community Justice, developed VORP. The program is the oldest in the state.
Sandy Snyder, the executive director of VORP, says the program gets between 250 and 300 referrals a year from the Anderson County courts. (Each crime against an individual victim counts as a referral.) Many of the juveniles have committed multiple offenses, and some 70 percent are first-time offenders.
"We have individual and separate meetings with the victim and the offender," Snyder says. "We explain the process in advance, that it has to be a respectful process. There can be some very strong feelings expressed, but they must be expressed in a way that is respectful.
"Then we begin talking about making the situation as right again as possible. Future intentions are written up as a contract, and we monitor the contract."
VORP keeps in touch with the offender to make sure he or she is living up the agreement and turns to the probation officer if problems begin to develop.
"In our 10-year history, we've had only a half-dozen cases go back to court," she says. "Ninety--seven percent of our contracts have been fulfilled successfully."
The program publishes a newsletter that details some of its successes, using fictitious names. There's the letter of apology a group of juveniles wrote to one of their victims after they restored the yard they had vandalized: "Just because we have the urge to do something doesn't mean we have the right to do it. We all had to work together in order to fix what was broken. Property wasn't the only thing damaged; people's trust was damaged. People now fear what things may happen to their property when they sleep. On behalf of the group which participated ... we apologize deeply for our actions."
There's 14-year-old Melanie, caught shoplifting to show off before her friends. She tells of being terrified when three police cars pull up to the store. As a result of the incident she did community service for the court and also did some at the suggestion of the store manager. The incident and her referral to VORP "taught me my actions can hurt other people. It made me think about what I had done. It brought my mother and me closer. Also my grades improved."
The Anderson County group has a full--time director and a part-time worker. The actual mediation is done by 45 active volunteer mediators. "They don't even get mileage," Synder points out.
The program has won recognition for its record of effectiveness and innovation. The Anderson County VORP was the Tennessee nominee for a crime-fighting award from the National Association of Attorneys General.
"Our program is two-pronged. It benefits both the victims and the offenders," she says. "It puts the power back in the hands of the people who are most directly involved."
On a recent September afternoon, a group of middle--schoolers are gathering noisily in the library at Northwest Middle School. Guidance counselor Janet Brown and school social worker Ellen Lawson have called the student mediators together for a refresher to the training they received as last year's peer mediation program wound down. The 1995-96 program, the first year of peer mediation, was heavy on eighth-graders; and of the 27 peer mediators in the room, only three are returnees, so the program will be short on experience until later in the year. Blacks and whites and both sexes are pretty evenly represented in the group.
Audrey, Jill, Roger, and Stephany are assigned to practice with a table with Steve Martin, the director of UT's conflict-resolution program. Martin was instrumental in getting peer mediation started in Knox County schools and still takes an active role in advising the participants.
As Martin watches, the four plow into the first scenario, a disagreement between two girls, one of whom has pushed the other's little brother down steps. Following a simplified written script, the mediators--Stephany and Audrey--introduce themselves, lay out the ground rules, and elicit an agreement to participate from the other two, who are acting as disputants.
One mediator asks the aggrieved party to outline the dispute and then carefully rephrases the complaint for the four. The second mediator then asks the second disputant to respond, then follows the second version with another careful restatement of both the facts and the statements the disputant made about feelings.
Pretending to be the girl who pushed the child, Roger explains why the little brother was pushed and sums up his feelings: "The little kid was kicking me. I'm glad he got what he deserves."
Then the first mediator asks the two disputants to brainstorm for solutions to the dispute. Each is to consider what she can do herself to resolve the conflict, not what the other person can do to make it right.
The mediators work to get palatable solutions out of the pair, writing them down as they go. Finally the two agree to apologize to each other and Roger's character agrees to stay away from the hypothetical little brother. The mediators draft a written agreement and then lead the disputants in a discussion of ways to prevent the controversy from resurfacing in the future.
Real mediations, which are confidential, are much like that practice session. Two student mediators are always used, and an adult trained in the process sits in as an observer.
For guidance counselor Janet Brown, who invited the program into Northwest, peer mediation has been a godsend.
"I was one guidance counselor to a thousand kids," she says. "There was a lot of stress dealing with so many conflicts."
When the program got started, graduate students from UT served as mediators, but last year the students were trained to take over. In its first year with peer mediators, the program handled scores of disputes.
"The students are much more willing to go to other kids instead of adults," Brown says. "They've handled a lot of their own conflicts. Kids can be very insightful."
Brown says that most of the disputes are of the "he said/she said/they said" variety and can be provoked by the hint of a "your mama" statement or an odd glance.
Referrals to the program usually come from the principal. If the dispute flares up after a mediation, officials may look back at the written agreement to see which student has lived up to his or her promises. The school mediation program also has different exceptions for confidentiality: The student mediators promise to hold everything in confidence except information involving drugs, guns, or abuse.
The impact of the program is not limited to the successfully resolved disputes, Martin notes. The peer mediators themselves gain considerably as they ply their new skills. Studies have shown that the mediators have better leadership skills, handle conflict more successfully, develop higher self-esteem, and perform better academically after participation in the program.
"Plus, the whole mediation process helps people think creatively and analytically," Martin says. "Peer mediators don't get the easy ones. It requires good, creative decision-making skills to do it well."
The students are not volunteers; they're recommended by their teachers as children their peers respect. The ones selected for this year were trained before school was out last year and sat in on some mediations.
Other Knox schools have mediation programs, including Sara Moore Greene Elementary, which was invited to make a presentation on peer mediation to the annual meeting of the East Tennessee Education Association last year.
Debbie Almquist, one of the early KBAMS mediators, ultimately opted out of the program in frustration. When she got involved in mediation, she was completing an undergraduate degree at UT as an older student and was looking to gain skills that might make her more employable.
"The training was good, and the program was never misrepresented," she says of the KBAMS program. "I didn't think initially about money-making, but I did think I was getting involved in something important."
Instead she found that the program was logistically disorganized and early directors were seriously overworked and underpaid. "Volunteers put in a lot of time and didn't get much support."
Others, both lawyers and mediators, question the degree of commitment the Knoxville Bar Association has had to the process. One mediator says KBA staffers felt it was their responsibility to serve lawyers, not the general public, and there was no public-service component in the KBA mission. That may have played a role in the folding of KBAMS into the Community Mediation Center. Some mediators say privately--and some lawyers privately agree--that lawyers have a hard time turning loose of paying clients and want divorce mediation programs only to avoid having to take on clients who can't pay.
For most people in Knoxville, mediation is clearly not a career choice. Ann Barker, a lawyer who is active in mediation circles, has supported her mediation habits by offering training, but no other mediators seem to be making a living solely from their dispute-resolution skills. There may also be lawyers who use mediation as part of their services to their clients, but mediation is probably not the primary part of the services provided.
"There are a few mediators listed in the phone book," says Victor Vaughn, the principal mediator in Family Mediation Services of East Tennessee, "but I don't know of any of us who are able to do it full time."
Vaughn, a chemical engineer, has been offering his conflict-resolution services to the public since 1990, shortly after he retired from Martin Marietta Energy Systems in Oak Ridge. Despite the difficulty in making it pay off, Vaughn remains enthusiastic about mediation.
"It's a much more humane, much less stressful way to resolve a conflict," he says. "The agreement is much more durable. When the courts are involved and the clients need to consult with attorneys, the attorneys become advisers rather than advocates.
"The people are the ones working this out. I help them choose the options they want to follow and then help them write it up."
Some lawyers raise another, more philosophical issue. Mark Jendrek, whose wife, Mary, is a CMC mediator, questions whether mediation programs can actually distance themselves from advocacy.
"Who decides what a fair agreement is," Jendrek says. "When the savvy slumlord comes into a dispute with one of his tenants, he can wear he tenant down." In such cases, Jendrek says, the tenant may be entitled legally to much better treatment but may be willing to agree to less just to get a settlement. He maintains that invariably the mediators will try to make the agreement fairer, which is not part of their neutral role in reaching a solution.
If not money, what?
If money doesn't motivate most mediators, then what are the rewards? The answers are as varied as the people answering the question.
For CMC volunteer Richard Zivi, who has a mortgage company, it's the sense of personal satisfaction that comes from seeing a mediation succeed.
"I know I'm taking time away from my business; but when we get an agreement in a mediation, I feel so good," he says. "I'm high for the rest of the day.
"When there's no agreement, I feel lousy for the rest of the day."
For Tamara, one of the up-and-coming peer mediators at Northwest Middle School, the issue is simple: "I'm interested in helping my fellow students with problems."
Amparo Salinero's motivation is similar yet much more complex; it has its roots in a personal crisis. The lawyer describes herself as "a typical hedonistic New Yorker" until she and her husband discovered that one of their three children was autistic.
"I had to say, what is the point to life when you can be so happy one day and the next day your world is destroyed because all your dreams you have placed on one of your children have just collapsed," she says. "You can only ask God 'Why, why, why?' for so long before you think, maybe there is something I need to do.
"Since then, I've tried to make everything in my life as significant as possible. I can go home and see my little boy and say, if I'm making it better for children, then I'm making it better for him."