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VOL. 121 | NO. 105 | Thursday, May 18, 2006

Nowadays, Mediation is to Law As Reality Shows are to Prime Time TV

By Andrew Ashby

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TO YOUR CORNERS: Hayden Lait is among a growing number of local attorneys tapping in to mediation as a means of resolving issues out of court and adapting to a changing legal landscape. Although Alternative Dispute Resolution (ADR) tends to be less lucrative than litigating, the state, to an extent, has made it part of the normal legal process. -- Photograph By Andrew Ashby

Although mediation only took off locally in the 1990s, it has become a standard practice to help solve civil and family disputes.

Mediation is an informal process by which a third party helps people reach mutually acceptable agreements out of court.

Jocelyn Dan Wurzburg, who operates Jocelyn Wurzburg Mediation, claims to be Memphis' first professional mediator. After working as a full-time volunteer for various organizations, she became an attorney at age 41 and worked divorce cases at her first job. She didn't enjoy the process.

"I was just heart sickened," she said. "I just thought there had to be an easier way that wasn't so hurtful and degrading."

"I kept trying to tell them that this train had left the station and we attorneys were either going to be the engine or we were going to be the caboose. This was taking off across the country like wildfire."
- Jocelyn Dan Wurzburg of Jocelyn Wurzburg Mediation
On being one of the first Tennessee attorneys to pick up on mediation as an alternative to court battles

Wurzburg started her own practice focusing on uncontested divorces, but read a pamphlet in 1984 about a mediation course in New Orleans. Wurzburg took the course and found mediation to her liking. When she returned to Memphis, she told fellow attorneys about it, but it wasn't well received because it was new and didn't fit what they were trained to do. Also, conflict resolution is less expensive, and lawyers thought it might interfere with their business, Wurzburg said.

"I kept trying to tell them that this train had left the station and we attorneys were either going to be the engine or we were going to be the caboose," Wurzburg said. "This was taking off across the country like wildfire."

Runaway train

In 1991, Wurzburg joined a committee of the Tennessee Bar Association that was exploring the use of mediation and alternate dispute resolution (ADR) in the state court system. TBA professionals studied the issue for a year and then petitioned the Tennessee Supreme Court to study it as well.

In 1992, the court created its own commission, called the ADR Commission, to examine the issue. The state Supreme Court, following the recommendation of the commission, established Rule 31 in January 1996.

Rule 31 is set of judiciary rules establishing the policies and procedures for court-ordered ADR in lesser courts throughout the state.

"Then, all of the sudden, it took off," Wurzburg said.

If It Doesn't Fit, You Must ... Mediate
1991 - Tennessee Bar Association created a commission to explore how Alternative Dispute Resolution (ADR) could be used in the state.
1992 - Tennessee Supreme Court created a commission to study ADR in the state.
January 1996 - Tennessee Supreme Court enacted Rule 31, which established a court-based ADR statewide.
December 1996 - Rule 31 was amended to include more detail regarding credentials and training for mediators.
March 1997 - First list of Rule 31 mediators was sent to state's clerks and judges.

The state Supreme Court then came up with a list of attorneys whom judges could recommend as mediators. To be on the list, lawyers had to go through a designated amount of training.

Mediation is divided into two types: one dealing with general civil cases such as personal injury and employment disputes, and the other dealing with family disputes. To be on the state's mediator list, general civil case mediators need a 40-hour course on civil mediation, while family mediators need either a 46-hour family course or a 40-hour family course with an additional six hours of Tennessee family law education.

To the drawing board

Local mediator Hayden Lait tried commercial, personal injury and domestic lawsuits for 20 years before being introduced to mediation in the early 1990s. After receiving 13.5 hours of training from the American Academy of Attorney Mediators, he said he saw it was a great way for people to resolve their problems. Still, he noticed other lawyers were reluctant to try mediation when it was first being used.

"When I was first invited to take a mediation training course, I didn't know the difference between mediation and arbitration," Lait said.

In arbitration, opposing parties present their cases to a neutral third party and agree to abide by that person's decision. In mediation, the mediator does not make a decision, but helps parties reach an agreement. Rule 31 changed the perception of mediation in Tennessee, making it more common statewide.

"That kind of institutionalized it, and it has become more prevalent," Lait said. "People are becoming used to doing it."

Even so, mediators come up against definite challenges when working with opposing parties.

"You have to give people an opportunity to vent," Lait said. "Sometimes folks come into mediation and they look at it like a lawsuit. In mediation, your jury is the other side, so it's not productive to beat up on them. Sometimes that takes some time for people to understand."

A mediator wants to build rapport and an element of trust with all parties, which can be tricky as well.

"At the end of the day, they may look to the mediator for guidance," Lait said. "A mediator has to be careful not to give that opinion too early because then one party might figure out the mediator is not on their side."

'The order of the day'

In 2005, Lait became a chairman of the state's ADR Commission, which was appointed by the Tennessee Supreme Court to oversee ADR in the state's courts.

The commission approves 20 to 40 people as mediators during each quarterly meeting, he said. Currently, 128 mediators are available to serve Shelby County in general civil matters and 62 are able to serve in family matters, according to the Tennessee Administrative Office of the Courts. The state now has more than 900 court-qualified mediators, which is almost double from five years ago, Lait said.

Over the past year, the commission performed an evaluation to get feedback from courts, lawyers and participants on how effective mediation is and how it's being used. The evaluation looked at 12 counties and consisted of mostly anecdotal information.

"There are mediators available and people seem to be using them," said Mary Rose Zingale, programs manager for the Tennessee Administrative Office of the Courts. "In general, people are positive about mediation."

While the evaluation was favorable to present-day mediators, Wurzburg remembers when the practice wasn't so popular.

"I'm just proud that mediation finally became accepted," Wurzburg said. "It's pretty much the order of the day, where people will try it before they resort to litigation."

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