MAC Blog

Iterative Mediation

By Simon Mole, MAC Professional Member

We all know that if you have a coach, this is a positive thing because you have been pro-active and taken charge of your life.  Conversely, if you are in mediation, we all know that you have real problems.  This article is about the value of multiple short mediation sessions in the age of Zoom.  It is a vision for mediation being more positive, more like coaching.  But first, let’s look back at where we have come from.

A decade ago, back in the dark ages of mediation, “mediation day” was a big thing.  You had to carefully choose a location, and people even considered the size and shape of the table.  All the key players had to be physically present, but not in such close quarters as to foment actual violence.  On occasion parties flew-in to my mediations.  Mounds of documents were produced and assembled by staff into heavy ring-binder exhibit books.  This cost money, lots of it.

Mediation day is almost dead.  The value of mediation day was to present such a trial like deadline as to make anything other than settlement unthinkable.  To come back another time was much harder when drive or flight time was an issue.  Even if rescheduling was possible, all those exhibit books would likely be out of date by then, costing more staff time.  Back in the dark ages attorneys begged to keep mediation hope alive by going long past midnight, even when client sanity became questionable.

Today, my typical mediation lasts for only a single session of two to four hours.  Sure, some mediations do crash and burn, but many cases settle quickly and easily.  However, many cases also fall into a middle ground.  Parties who disagree on substance can often agree on a route to a resolution, such as hiring an expert, but then further progress is stalled until the expert’s report comes in.  Often a case is revealed to be more complex than one or both parties thought.  In these cases, time is needed to gather information or make a legal or emotional reassessment.  These are the cases that need to come back for a second or even a third session.  In post-decree family cases you may see a case again and again over many years.

Back in the dark ages, mediation day was scheduled by the parties, and was usually timed to take place far out into the future.  Time was needed to allow for the full discovery of all information necessary to settlement. This made sense when mediation day was an expensive one-time-only deal.   Circumstances have changed.  In today’s climate of mandatory mediation orders, the courts require mediation early and often, even when parties have imperfect information available.

With Zoom and its screenshare facility, parties can now go online and show each other financial and other information in real time (R.I.P the ring binder of outdated hard copy exhibits).  Early mediations can go further toward settlement than they used to.  Mediators can coach the attorneys and clients to manage their case through the mediated appointments of valuation experts, or child and family investigators etc.  Even case management orders can be mediated and stipulated under CRCP Rule 16.2(c)(1)(C).

As mediators, if we can speed the demise of mediation day, we can become more like coaches, stepping in when needed.  When expert reports arrive, some cases will settle without us because the writing is on the wall, but in others the skill of a mediator may be necessary to help manage fall out from bad news.

To get from where we were a decade ago, to where we could be in the future, we mediators need to adjust our business model. I do try to look for deals on case management when substantive deals seem elusive.  But I also make it inexpensive for parties to come back by never charging a cancellation fee.  I never take money up-front either, so I never have to give re-funds.  Yes, I do get frequent cancellations, but I also get much more new business because lawyers like this model because it is hassle free and it saves money for clients who settle.  I do a two-hour minimum fee each time I start a session, so that recoups some of the loss from cancellations because final sessions are often short when they occur.

Those excruciating all-day and into the evening sessions were very lucrative, but I don’t miss them.  By using Zoom and not wasting time driving to my frequent short sessions I maintain both income and sanity.

Simon Mole, February 2024.

The viewpoints, analyses, and opinions expressed within this blog are solely those of the author(s) and do not represent, nor are they intended to reflect, the official stance, policies, or positions of the MAC either in a formal or professional context. The content herein is presented for informational purposes only and should not be interpreted as an endorsement or official communication of the MAC.

2023 Colorado General Assembly 

The 2023 Colorado General Assembly session ended on May 9th. Legislators introduced 617 individual bills and 474 of these bills ultimately became law. This session was an especially active year for the MAC. The MAC Legislative Committee, Chaired by Mike Maday, successfully lobbied and testified on a number of important bills. 

There were two bills introduced that ultimately became law that specifically required mediation. A basic principle of the MAC’s legislative program is to support legislation that encourages or requires the use of mediation. House Bill 23-1120 requires landlords with more than five properties to engage in mediation prior to filing an eviction suit against a tenant receiving certain types of government assistance. We believe this is the first time ever that mediation would be required by state law prior to filing a lawsuit. Required mediations will be compensated and scheduled through the Office of Dispute Resolution.

Senate Bill 23-105 orders the Colorado Department of Labor to establish a complaint and mediation process for alleged violations of the equal pay statute. The previous law simply allowed the Department to establish a mediation program, but when they failed to do so, this legislation was introduced to require the Department to set up a program. 

There were several bills that dealt with judicial officer training regarding domestic and child abuse in family law cases. House Bill 23-1108 creates a task force to study and develop training requirements for judicial officers, and House Bill 23-1178 requires training. Originally, both bills incorrectly included mediators as judicial officers and the MAC successfully got amendments to correctly reflect the independent role of mediators. At the same time, the MAC was able to explain the crucial role mediators play in resolving family law cases. While we were not able to get a specific requirement to appoint a mediator to the training task force created by HB 23-1108, the MAC will be able to provide testimony once the task force convenes. 

Under House Bill 23-1178, mediators in family law cases will not be subject to a training requirement. However, mediators will be required to provide information on what training they have received. This legislation is a first step toward formal state regulation of mediators, and the MAC believes it is vital that professional mediators take the lead in this process rather than waiting for requirements to be imposed on our profession.

Another example of the MAC promoting mediation was an opportunity presented by House Bill 23-1026. This legislation involved the issue of family time for grandparents. The MAC requested and got an amendment that specifically referenced CDRA in this legislation.

The MAC also supported House Bill 23-1280 that codified the statewide Access to Justice Commission. The Access to Justice Commission has consistently supported mediation as a means of assisting litigants in more efficiently and fairly resolving litigation. The Commission understands and promotes the value of mediation, especially when parties do not have legal representation. 

The MAC would like to build on our successes in 2023 and be even more engaged in legislation in the future. We urge our members to look for further updates and actively add your voice to the legislative process. Your involvement will ensure mediation is understood as a valuable and growing profession!

In order to prepare for the 2023-24 Legislative Session the MAC is holding three working sessions in conjunction with the CBA’s ADR Section to discuss our profession in the Legislative arena for next year. We look forward to having open discussions about what we can prepare for and what to expect as our relative organizations work towards promoting, upholding and growing mediation into the best profession it can be. Those dates/times are: 

  • Tuesday, July 25th at 12PM MST
  • Tuesday, August 22th at 12PM MST
  • Tuesday, October 3rd at 12PM MST

We will provide more details around how to attend these discussions in the coming weeks.

All the best, 

The MAC Legislative Committee

End of Session Report

President’s Message

Dear MAC members and esteemed colleagues,

I am delighted and honored to be nominated as the MAC President. I look forward to getting to know the members and organization so as to better serve you all. I would not be in this position without the incredible efforts and work that has been completed before, and all of the MAC members continued commitment to our organization. Thank you all.

I want to thank Michele Clark for her diligent and hard work in the years prior – in leading the MAC’s engagement with our membership to create and foster a diverse, welcoming and supportive community for professional mediators and for those who want to become professional mediators. I also want to thank our tenured Board Members: Vice President, Toni Ozeroff; Chair of the Legislative Committee, Mike Maday; Membership Chair, Miguel Martinez; and Carolena Steen. I also want to thank Lori Dieckman for her continued support of the MAC.

For those that don’t know me, I am a native Coloradan, and also a mother, attorney, mediator and entrepreneur. Most of all, I am an ardent mediation proponent. I believe that the process of mediation should be more prolific and easy to access for all. I hope that in my time as president I can help increase awareness of our incredible profession, add new members from across demographics and geographies, and perhaps most importantly, expand member benefits. I look forward to working on these goals, and sharing some exciting new benefits soon. Please do not hesitate to reach out. My zoom is open! 

Welcome New Board Members!  We are pleased to introduce Kip Kolkmeier and Chuck Woodward who joined us in early 2022, and Jean Stewart and William Mangrun who joined us earlier this year. We are all excited to be on the board and are already hard at work on some exciting MAC projects. 

Chuck was nominated to be our Treasurer of the Board, and we feel honored to have his business expertise. He is also leading the charge in building a MAC mentorship program. Kip is Co-Chair of the Legislative Committee and his experience and knowledge of the legislative session helped guide us in an exciting and active 2022/23 legislative session. We look forward to working with William on connecting us to the mediation community in southwest Colorado.

A bit more about our newer board members:

Chuck’s background is primarily in the business world, where he dealt with inter-company disagreements, numerous negotiations with US and European labor unions, international commercial issues, as well as both local and national political matters. His mediation practice is focused on non-family disputes, with a special interest in mediating contract cases involving diverse nationalities.
 
Kip is a retired attorney who dedicates the majority of his time to volunteering as a mediator in the 1st Judicial District and for the City of Lakewood. His legal career was primarily focused on legislative research, drafting, negotiation, and advocacy. In addition to mediation, Kip is an appointed public board member for both Jefferson County and the City of Lakewood.

Jean brings to her mediations decades of experience as a practicing attorney, trial judge, teacher/mentor and leader at the local and national level. She generally focuses her neutral practice on resolving disputes around wealth transfer and fiduciary liability, frequently involving families in transitions caused by death or disability.

William has practiced mediation in a family business, as a pastor, a professor, and as an independent professional. He has trained with Mennonites, Lawyers, Conflict Professionals, Academics, and Zen Priests. He is trained in Family Systems Mediation, Evaluative Mediation, Interest-Based Mediation, and Transformative Mediation.

I look forward to getting to know the amazing mediation community of Colorado and serving this organization. 

Morgan Tregenza
President, theMAC

RECAP OF 2022 COLORADO LEGISLATIVE SESSION

May 12, 2022

By Kip Kolkmeier

The Colorado General Assembly wrapped up its regular 2022 session on May 11th. Legislators considered over 650 individual bills, and this update summarizes mediation bills and other bills of note that passed.

Three bills passed that referred to mediation services (more description provided below): 

  • Senate Bill 230 requires mediation if county employees reach an impasse in collective bargaining.
  • Senate Bill 19 allows an attorney to review a suppressed court record for mediation.
  • Senate Bill 77 requires disputes under the Interstate Compact for Licensed Professional Counselors to be resolved through mediation or binding dispute resolution.

Other bills of note that passed include:

  • Senate Bill 233 will deliver cash to Colorado taxpayers of at least $400 for single tax filers, and at least $800 to those filing jointly. 
  • Senate Bill 238 will reduce property taxes by $700 million between 2023 and 2024 by limiting property tax assessments. 
  • House Bill 1329 contains the State’s $36 billion budget. The budget increases funding for K-12 education and gives state employees a 3% raise. It also expands efforts to improve public safety and monitor air quality.
  • House Bill 1279 puts in statute the right to abortion and contraception services regardless of how the United States Supreme Court may rule regarding abortion rights. 

There were also bills passed to address water conservation, wildfire mitigation, manufacturer responsibility for recycling, expansion of mental and behavioral health services, and naming Juneteenth as an official State Holiday.

More Detail about the Mediation Bills:

Senate Bill 230 allows county employees to bargain collectively. The bill comprehensively describes the dispute resolution process that the employees’ representative and a county must follow if an impasse arises during the negotiation of a collective bargaining agreement. The Division of Labor Standards and Statistics must partner with the Federal Mediation and Conciliation Service to offer training in interest-based bargaining upon the mutual request of an employee organization and the county. If the parties reach a bargaining impasse, either may request mediation. Mediation may continue for up to sixty days unless the mediator determines that mediation is no longer necessary or useful. Mediators must be chosen from those registered with the Federal Mediation and Conciliation Service.

Senate Bill 19 allows an attorney, with the approval of a person named in a suppressed court record, to review the record for specific purposes. One identified purpose is to evaluate whether the matter is suitable for mediation, or in preparation for mediation between the parties included in the court record.

Senate Bill 77 adds Colorado to an Interstate Compact allowing Licensed Professional Counselors to practice in any state joining the compact. The legislation includes the obligation of the governing Commission to promulgate rules to resolve disputes between states through mediation or binding dispute resolution.

As a service to our members, the MAC regularly monitors state legislation affecting the profession. The MAC provides expert testimony before legislative committees, and advises legislators and legislative staff regarding the value of mediation. The MAC encourages legislators to require mediation where appropriate and seeks to expand opportunities for qualified mediation professionals.

Voices of Ukrainian Mediators

Please join us April 14th at 8:30 AM MDT (4:30 PM CET) to hear personal stories and engage in dialogue with mediator colleagues from Ukraine. Svitlana Stadnyk, President of the Association for Family Mediators of Ukraine, and Tatyana Bilyik, co-founder of League of Mediators of Ukraine and the Ukrainian Association of Family Mediators, and other Ukrainian mediators will be our guests.

Register here.

MAC Board Member, Mike Maday, met Svitlana, Anna Zubachova and other mediators from Ukraine through his involvement with MiKK Mediators, a world leader in cross-border mediation and training. Due to that relationship, theMAC has conducted joint Zoom seminars, and MAC members have developed connections with Ukrainian mediators over the past two years.

The brutal war in Ukraine creates challenges difficult to imagine and anticipate. One of our guests, Tatyana Bilyik, tells her story about the struggles she faces and what sustains her.  Read about her here. Our other guest, Svitlana Stadnyk has reached safety in Germany. Colleague Anna Zubachova and her baby are in Poland, and thanks to a fundraiser conducted by MiKK Mediators, Anna’s mother who was gravely injured has  reached safety and is receiving the medical care that she needs.

These colleagues, and many others still in Ukraine, have urgent needs for assistance.  MiKK Mediators has set up a fundraiser for these individual families through betterplace.org.  A link to the fundraiser is here. Please consider making a donation.

Our Connections in Ukraine

As we watch the horrific events occurring in Ukraine, our thoughts are with our mediator colleagues with whom we have been networking over the past couple of years.  The day before Russia attacked Ukraine, we were Zooming with our Ukrainian colleagues, planning another joint education and networking session.  These conversations have been postponed.  Svitlana Stadnyk, Chair of the Association of Family Mediators of Ukraine, who lives in Kyiv, just sent a message that she and her family are in western Ukraine, having escaped the place they initially evacuated to because “it got dangerous, it’s safer here.” 

Like many, we have been searching for ways we can help our colleagues, friends and fellow citizens of the world caught up in this horrific war and its burgeoning humanitarian crisis.  Here are a few resources and suggestions of ways you can help.

Razom’s mission is to foster Ukrainian democracy and civil society through a global network of experts  and organizations supporting democracy activists and human rights advocates throughout Ukraine.
They maintain a relentless focus on the needs on the ground in Ukraine to increase civic engagement and amplify voices from Ukraine in conversations in the United States. Razom’s list of suggested ways to help in Ukraine can be found here

Ukrainians of Colorado is a non-profit organization formed to unite and preserve Ukrainian heritage.  Their Facebook page lists events happening throughout the state.

Support Ukraine NOW describes ways that persons from other countries can help Ukraine, including identifying charitable organizations and sources of reliable news.

TheMAC stands with Ukraine! 

Call for Board Members

 

Are you looking for a unique leadership opportunity? Have you been yearning to put your talents to use in building the professionalism, knowledge and use of mediation in Colorado?

The Mediation Association of Colorado (theMAC) has long been the advocate of high-quality, widespread mediation throughout Colorado, and we are making structural and cultural changes demanded by the social upheaval of recent years.

TheMAC is looking for active-minded, forward-thinking members to join our board of directors. The time commitment is 3-5 hours per month.

We are looking for members with talents and/or demonstrated interest in:

  • Building and strengthening a culturally competent community
  • Supporting and promoting members
  • Developing new mediators
  • Increasing demand for mediation
  • Developing business and community relations

 
We are looking for members who bring a wider range of backgrounds, perspectives and information than has been on the Board in the past.

We are looking for members who can expand theMAC’s linkages, opportunities and increase the diversity of membership.

We are looking for members who have ideas and/or experience in removing barriers to Board and Association participation.

We are looking for energetic and motivated mediators, who are not already overextended with other commitments, and who are eager to put their enthusiasm for changing the world of mediation to work.

If you meet these criteria, please email a 1-2 page letter and your resume to: themac@coloradomediation.org explaining your qualifications and interest. The deadline for these Letters of Interest is Sunday, February 6, 2022.

The Board will review the Letters of Interest, ask questions of those interested, and distribute ballots to members no later than February 24, 2022. Members will vote on the ballot at the Annual Member Meeting on March 26, 2022.
 

President’s Message

President’s Letter

August 2021

Dear Members and Friends,

Thank you for all you do to advance the profession and professionalism of mediation!

New Board Members!  We are pleased to introduce Carolena Steen and Miguel Martinez, our two newest Board members. They are eager and ready to serve! Carolena has agreed to head up the Multicultural Committee, and Miguel is enthusiastic about putting his perspectives as a newer mediator to work as he joins the Membership Committee.

Carolena, a Licensed Clinical Social Worker, has mediated special education, Section 504, ADA, divorce, and employee disputes via her business, Resolution Options. Carolena’s passions center around the value of mediation as a practice, embracing diversity and culture, and expanding our practitioner base. See her bio for more information.

Miguel holds a dual degree in economics and business administration and formerly worked as a senior executive of a Fortune 500 company. Miguel has developed numerous programs and executive trainings on intercultural issues; he has worked as a certified court interpreter; and he continues to apply his expertise about cultural and linguistic differences as a bilingual mediator.  See his bio for more information.

On a related note, Rogelio Hernandez-Flores has agreed to serve in a non-Board member capacity as the MAC’s Multicultural Advisor.

September MAC Chat – Date TBA.  Stay Tuned for details on our next MAC Chat via Zoom. We’ll hear from and chat with a few MAC members who have built successful practices – “I Did It – So Can You!” More to come . . . .

Outreach. Interested in promoting mediation? Look around your social and professional circles: Do they know you mediate? Do their next degrees of connection know you mediate? Have you made connections with people from different cultures than yours? Be brave and take the steps to expand!

Until next time!

Michele M. Clark
President, theMAC

President’s Message

My Illuminating Conversation With Rogelio Hernandez-Flores 

By Michele Clark, MAC President

Rogelio Hernandez-Flores

 

 

My illuminating conversation in May 2021 with Rogelio Hernández-Flores about multiculturism and diversity [paraphrased].

Michele:  I’ve been using the terms “diversity, equity and inclusion” to focus theMAC’s work on expanding the backgrounds and perspectives of our mediator community. You use terms like “multiculturalism” and “cross-culturalism.” What’s the difference?

Rogelio:  What we are really talking about is changing the culture of mediation, no matter the words we use. But, the more we talk about what the words mean, the better our understandings.

A multicultural society contains several cultural or ethnic groups who co-exist but don’t necessarily have engaging interactions with each other. A cross-cultural society goes a little deeper, trying to understand more about each other’s cultures. Finally, an “intercultural society” tries to remove the norms imposed by a dominant culture, creating mutuality, reciprocity and equality.

Michele’s Reflections:  After this exchange, my first thought was that we could use diversity, equity and inclusion as tools in moving toward interculturalism. Then, I had one of those perspective-shifting moments – does thinking about our change in terms of equity, diversity and inclusion suggest assimilating all other cultures into the dominant culture?