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Sunday, Oct 1, 2023

Defusing Disputes

If living creatures are hard-wired to fight or flight when threatened, 21st century bipeds are learning to calm down and compromise. A major player in this growing trend is the San Diego-based National Conflict Resolution Center.

Formerly known as the San Diego Mediation Center, it was founded in 1983 by the University of San Diego Law Center and the San Diego County Bar Association. Now, with some 10,000 cases resolved, the center has evolved into an international leader in mediation training and conflict resolution.

NCRC has three divisions: the Business Center, which maintains panels of dispute resolution specialists; the Training Institute, which provides training in conflict resolution and management to individuals, businesses and government agencies; and the San Diego Mediation Center, which works with neighborhoods and communities to find and resolve disputes at the local level. The NCRC motto is “There is a solution.”

The Business Center features four-hour courses to train business professionals in conflict management in the workplace. Among the clients have been human resource professionals, middle managers from the community colleges, police officers who want help in multicultural communication, and lots of lawyers.

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“We’ve had lawyers from Solar Turbines, the Port District,” said Robin Seigle, director of NCRC’s Business Center. “We also have a lot of real estate professionals, because there is a lot of mediation that goes on with real estate transactions. Many real estate contracts require mediation before people can file lawsuits. That’s why there is so much interest. They want to be mediators or understand what it is.”

What it is, said Seigle, is learning how to listen.

“So often people get into conflicts because of an assumption they make about the other person,” she said. “They’re not always right. When they sit down together, they have a chance to clear things up.”

But, added Seigle, there are those HR professionals who wait a bit too long to ask for help.

“In a lot of workplace situations, there are companies and HR people that see it as something they are supposed to do themselves,” she said. “To call someone from outside seems like they aren’t successful. Unfortunately, they let things go too long and let them escalate. In a lot of cases, earlier is better, before people become entrenched.

“Prevention is always a good thing,” Seigle added. “The cost of litigation is very high. Many people do look for alternatives. Our Superior Court has been sending cases to us and others for mediation for 15 years.”

But, she said, changing the corporate and legal culture can be a challenge.

“Mediation and conflict resolution is becoming more popular, as more corporate executives and attorneys are trained in it,” she said. “We are changing that culture that what you say is wrong, and what I say is right, how we can walk away and minimize the damage to each other , the ideal of being collaborative, rather than competitive.”

The cost of the mediation can range from about $250 to $400 an hour, depending on the mediator. The fee is shared by the parties and, she said, in real estate cases, there might be multiple parties involved.

Compared with hiring an attorney, who might expect a retainer of $1,500 to $2,500, said Seigle, it’s a good deal.

“I don’t think we’ve had more than two clients pay more than $5,000 total,” she said. “Two or three sessions are typical, and some only need one.”

NCRC also has a contract with the county for more than $500,000 to do community work , conflicts between neighbors, landlord-tenants, small claims , and there is no charge for these cases, she said.

Some of the star pupils will continue at the center to earn their own mediation credentials. Brandon Moreno, a corporate HR veteran who three years ago launched his own HR consulting company, Quintech Solutions in San Diego, is now finishing up his course work.

Moreno said he found the initial conflict resolution training “a valuable tool, very interactive.”

“I’m not big on sitting in seminars, but it kept you very engaged in the process. There is a lot of role playing, team feedback and individual feedback,” he added.

The center staff was impressed enough with Moreno’s mediation aptitude that he was invited to sign up for the credentialing program.

“I was really interested in this from a business perspective, because it gives me exposure to all the different possible scenarios of real-life mediation,” he said, “landlord disputes, small claims issues. Once I’m credentialed, my focus will be on employment. With all the military bases, employment disputes have to go through mediation, and there is definitely business in San Diego.”

And what kind of feedback has he received for all of this hard work at NCRC?

“Some of my long-term clients said they have seen a difference since I’ve been going to class,” said Moreno. “One said, ‘You almost make everyone calm by interacting with them.’ That technique I didn’t know I was using. It was subconscious. I was always able to calm people down, but what I’m hearing now, from the get-go, is that I’m able to engage people, and get them to open up and build rapport. In the past, it might have taken me more time to do that. Disputing parties really don’t know you’re following a program, but you know where you’re going, and what you’re going to achieve right off the bat.”

The training also has opened up new business possibilities for him.

“I’ve been told, ‘Brandon, you’d be awesome at small claims,’ ” said Moreno. “My style is to get the end result fast. I think I would like to do that. It would expand the diversity of my cases, and help my business, too.”

Henry Bertram, the chief executive officer of San Diego Craftsman Construction, Inc., went through the mediation-training program, acknowledging that he works in a highly contentious profession.

“I’ll use it in contract negotiations, or minor conflicts that arise as a result of perceived problems on the job site,” he said. “These skills come into play every day on the job site, and I am personally involved in all my job sites.

“I’ve been fortunate,” he said. “I don’t advertise, so most of my clients know me or know of me. And I have pre-contract negotiations and discussions. But little things come up, a little bit of friction, expectations that weren’t verbalized.”

Like Moreno, Bertram said he was impressed with the training.

“Through my years in the business world, I’ve taken a number of training classes, and this was very, very well done,” he said. “There is a lot of hands-on training, and I was extremely impressed with the instruction, dedication and passion of the instructors.

“The actual mediation practices that we went through, about seven of them, were very helpful,” he added. “We started with real simple steps, then gradually worked up to real simulations of mediation. The role-playing was expertly done, and I was impressed with the caliber of those in the class , lawyers, social workers, businesspeople. The training level was notched up because of that. I liked the camaraderie, and the comfort level of the class was exceptional. Barbara Filner deserves a lot of credit. She is a warm, experienced teacher.”

Filner describes the program as “a holistic way to address a problem.”

“You hardly ever , in a courtroom, trial, deposition or any kind of discovery , have somebody say to the other person, ‘What were you hoping would happen, what were you thinking about?’ Intent and motivation can make all the difference in working out a resolution that is not punishing, but helpful. Admittedly, this is very idealistic, but you have to start with ideals,” Filner added.

A key benefit of mediation, she said, is that while there are no all-out winners, there aren’t all-out losers either.

“Mediation is not a win-win, but an all-gain situation,” said Filner.

A couple of real-life examples recalled by Seigle:

There were two San Diego doctors who had a lot in common , natives of the same country, now neighbors, and attending the same place of worship. What could be more natural than going into business together? What could possibly go wrong?

But, like any marriage, no one ever goes into a partnership expecting the worst, and when the worst happens, it can often lead to anger, resentment , even all-out war. That’s where the two doctor-partners were headed when their plans to market a health supplement derailed, and it looked as though they’d be heading to court. Instead, they detoured to NCRC. There, with the help of a trained mediator, they licked their wounds and aired their woes.

“They were pointing fingers at one another,” said Seigle. “It was clear that it was going to dissolve. They had lawyers with them.”

But unlike a courtroom, where one party wins and the other loses, these “very bright, sharp, successful, well-to-do people,” as she called them, had the opportunity to find mutual ground. In this case, one of the parties believed that he had invested the most money, but wasn’t getting anything in return.

“We broke the impasse,” she said. “I said to one of them, ‘He’s looking to get reimbursed. Is there anything you might be willing to pay that would benefit him?’ He wasn’t willing to pay him anything, but he was willing to make a donation to his religious institution. The other one did the same, as a statement of good faith for others to see.”

And, she said, in their particular circle, that meant a lot. Did they kiss and make up after that?

“I don’t think they’re friends, they went their separate ways,” she recalled. “But it wasn’t destructive.”

Then there was the case of the contentious coconut. A denizen of a local health-food store bit into a brownie and broke a tooth on a coconut shell. With the prospects of a long and expensive lawsuit looming, the parties went into mediation and found some common ground.

The key to this resolution had to do with another important tenant of mediation: enlightened self-interest.

“The store ended up giving the woman some money and a $500 gift certificate,” said Seigle. “But it won’t cost them $500. She got more than what it cost them to give it to her. We try to find a way to get people to add psychological value.”

In a trial situation, said Seigle, it might take a very long time for money to change hands in a settlement.

“Money today is worth more than money in two years,” she said. “And in mediation, you avoid risk. If you continue through the legal process, there is risk. You might lose. By resolving something in mediation, it’s done now, rather than later. For some people, that is a big thing, to have it be over with, not having to spend time, money, energy and emotions.”

Another aspect to mediation is lessening tension in the workplace, said Seigle. When people file employment claims, sometimes they remain on the job while the case plods along.

“If you have an action against a supervisor, you have to keep that mind-set going,” she said, “and everything that supervisor does, you have to grab onto, so it doesn’t lessen that claim. You have to keep yourself in that upset, damaged state. It’s not productive in a workplace. That’s why there is a benefit to resolving this early, to get over the hurt.”

The San Diego Superior Court tested that theory beginning in 2000, with a five-year pilot program to gauge the effectiveness of mediation vs. conventional litigation.

“There hadn’t been any definitive, statistically verifiable data concerning mediation and non-mediation,” said Superior Court Judge Charles Hayes, who supervised the pilot program. “The lay opinion was that it was successful, but nobody could say how much or why.”

Under the project, some 75 percent of all cases that met eligibility requirements were assigned to mediation, while the remaining 25 percent served as the control group. All of the players still had access to the court’s judicial arbitration and settlement conference programs.

The bottom line: Of the cases with more than $25,000 in dispute that were referred to mediation, half of them settled at mediation, and an additional 10 percent to 12 percent settled after mediation, said Hayes. For those with disputes under $25,000, three-quarters were settled at or soon after mediation.

“That is a remarkably high number,” he said, adding that the judges in the control group tried an additional 25 percent of cases.

“Judges and lawyers had always thought that what settles cases is a firm trial date, and at the last minute, the case is resolved,” said Hayes. “To some extent, that’s true. Except, if you give them a firm date, and put in mediation, an additional 25 percent will be resolved.

“That’s a huge amount,” he added. “When I got the preliminary statistics in, I said, ‘No, that can’t be true. It’s impossible, way too high. A 25 percent trial reduction?’ ”

That reduction translated into a savings of about 500 judicial days a year, more than $1.5 million in costs, including use of the courtroom, judge and staff, and not including lawyer fees. Even the workplace can benefit, by reducing the need for jurors, said Hayes.

“Frequently, there is a jury sitting there, too, and they don’t have to sit there for all those days, hundreds of thousands of people who don’t have to come in,” he said. “It has a ripple effect.”

The cases were resolved about 10 days earlier than in a trial setting, said Hayes, adding that, “Whenever a case settles earlier, money is saved. You don’t have so many hearings before the judge.”

The pilot program also wanted to measure how satisfied participants were with the mediation process.

“If these savings cause the average taxpayers to be displeased, you haven’t accomplished very much,” said Hayes. “From the information I got back, most all strongly agreed that the mediation process was fair and they were pleased with it. They save money, and people walk away feeling that they were treated fairly.”

His co-chair on the project was Linda Quinn, supervising judge of the Superior Court’s civil division. Quinn said she was equally “amazed” by the findings. One of the keys to its success, she said, was the feeling of empowerment the participants felt during the process.

“They had a hand in the resolution,” she said, “rather than a third party saying, ‘This is how it’s going to be.’ ”

And there was another surprise finding.

“We knew that, from a management viewpoint, we would be happy resolving the cases earlier, fewer trials and motions,” she said. “The element we didn’t know about was how happy the attorneys were with mediating more of their cases.

“In the process, they give up some of the control of how problems are resolved, and they’re taking a bigger risk,” she said. “But they embraced it. It’s a good route to resolving problems and they could see that. They had happy clients, good resolutions that had sustainability. Many verdicts obtain a ‘win,’ but the client says, ‘I can’t get my money.’ ”

And, she said, it avoids endless and costly appeals.

Any downside to mediation? Some critics have complained about the so-called “vanishing trial” syndrome, minimizing the number of important legal precedents, as well as young attorneys who might not get sufficient trial experience. Hayes and Quinn dismissed those assumptions.

“I think there will always be trials,” said Hayes. “But the purpose of the system is not to train lawyers to be lawyers, but to accomplish justice between litigants. To the extent that we can assist them by use of mediation to resolve disputes between them, that’s what we’re supposed to be doing.”

As for Quinn, she considers the vanishing trial argument “losing sight of the goal and the goal is to resolve the problem.”

Going Global

The NCRC is available to mediate across the country and in foreign ports. Sometimes the trainers are taught a particular agency’s conflict management methods, and they, in turn, train the agency’s employees. One case in point is the Transportation Security Administration, which is under the umbrella of Homeland Security. The agency recently brought Seigle to Washington, D.C., to learn the center’s techniques, and pass them on to TSA’s airport screeners.

Since Sept. 11, 2001, there has been so much pressure placed on screeners, that the training not only benefits employer-employee, and worker-to-worker harmony, but helps in sensitive dealings with skittish international travelers, said Steve Dinkin, the president of NCRC.

“It’s such a stressful job, high-pressured, that it creates tension in the workplace,” he said. “This improves skills and works with customers also.”

It’s all part of the global nature of mediation these days, said Seigle.

“Part of the reason we changed our name to the National Conflict Resolution Center is because it reflects our ability to work beyond San Diego,” she said. “Our mediation certification program has a variation provided to Germans through a Munich organization. We also have Italy, Bulgaria. We train them; they get experience; we evaluate them.”

Mediation continues to gain momentum, said Dinkin.

“Years ago, it was used only in labor disputes,” he said. “Now, you see it in different sectors , construction defect issues, homeowner associations, real estate, insurance, personal injury, property damage, equities markets. Often times the majority of cases have been settled before they get to the courthouse. Time and money is being saved and relationships are being preserved.”

Mediation also has taken on global significance in light of the many battles being waged around the world these days , another focus of the NCRC.

The center is hosting its annual Days of Dialogue from March 4-11 at sites throughout the county, and in Tijuana, featuring free workshops in conflict resolution techniques for businesses, schools, divorcing couples and parents and teens.

The center’s 17th annual Peacemaker Awards dinner is set for March 9 at the Mission Valley Marriott, recognizing those who have found creative solutions to conflict.

The center’s first national peacemaker award will be given to the parents of Daniel Pearl, the

Wall Street Journal

reporter who was kidnapped and murdered in Pakistan in 2002. His parents are being recognized for forming the Daniel Pearl Foundation, which promotes cross-cultural dialogue and understanding through worldwide events, journalism internships and more.

The other honorees are Officer Abdiweli Heibeh of the San Diego Police Department, the first policeman in the United States of Somali heritage. He is being recognized for his efforts in helping East African residents and law enforcement bridge cultural gaps. Marisa Ugarte, director of the Bilateral Safety Corridor Coalition, who fights human trafficking , forced prostitution, labor and child pornography , at the U.S.-Mexico border in San Diego. She is being honored for fostering cooperation with public and private agencies. The Petco Park Facility Access Review Committee earned an award for its efforts to accommodate people with disabilities.

“It’s a definite feel-good evening,” said Judge Quinn. “Everybody there is a contributor to so many different disputes. There is such a variety of problem areas, and everyone in the room is active in the goal of resolving some kind of problem the public has.”


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