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Briefs

by Tom Noble ¹
214-692-1888
fax: 692-8577
tnoble28@hotmail.com

A newsletter for attorneys, mediators, financial planners, mental health professionals, and wisdom seekers

7.22.99

Evaluating Family Law Cases
How likely is a judge to divide an estate 50/50? How does the size of the estate become a factor? When will a judge give parents equal access to their children? When divorcing couples know the answers to such questions, they can reach much faster settlements. For that reason, Suzanne Duvall, Leota Alexander, George McKearin, and I developed a questionnaire for local judges on these questions and some others. We are pleased to announce that Judge Craig Fowler is joining our team of "researchers". We will present our findings to the Dallas Bar Association Family Law Section at Belo (2101 Ross Ave, Dallas) on September, 22, 1999, at noon.

Mediator Certification
The Association of Attorney-Mediators ("AAM") is now "certifying" all of its members. To be a member of AAM is to be a "Certified Mediator". According to President Anthony Atwell, certification will provide a "real benefit to our members". But, will it? Or, are we just feeding consumers a bowl of ethereal cereal that will increase confusion about mediators to everyone's detriment?²

What are the criteria for membership in AAM? 8 years as a lawyer, a 40-hour "approved" training course, 2 observations, proper references, 2 pro bono mediations, and adherence to whatever rules AAM imposes.

As a member of AAM, I question what gives us the right to "certify" mediators. If attorney-mediators start certifying mediators, then non-attorneys will follow suit. Then everyone will be certified and then, well, so what?

What does it mean, anyway, to be "certified"? Webster's: "to attest as being true or meeting a standard; to attest officially to the insanity of" (No, not that one - Oh, yeah. OK). So, the dictionary definition is not too helpful. What about common usage?

Certification of professionals is commonplace in our society. We certify accountants, lawyers, doctors, and financial planners, to name a few. But, in each of those professions, certification comes after years of experience, passing one or more written exams, and various other forms of gauntlet running.

For example, anyone can hold himself out as a "financial planner". But, to be "certified" by the organization that owns the trademark to "CFP", you have to take 6 written exams covering the basic expanse of the subject matter. For most that translates into two years of night school once a week.

Board certification of lawyers comes after a stringent written exam, proof of experience in the specific area of certification, and the luck of having the right types of cases.

Under AAM's new policy, which the Board of Directors passed in top-down style without a prior vote by the general membership, any lawyer with 8 years of legal experience can become a "certified mediator" in less than a month. What a deal! Why not just send in 3 box tops for an official mediator decoder ring?

Ignoring the middle class of mediators who have conducted 50-300 mediations, AAM's certification program includes a designation of "Advanced Certified Mediator" for mediators who have conducted more than 300 mediations. Again, AAM imposes no test or criteria other than number of mediations conducted.

I will be facilitating an open forum on the question of mediator certification at Belo on September 23, 1999, at 7:30 a.m. All interested parties are invited.

Grievances and Mentors for Mediators
Consumers may not feel especially reassured by AAM's certification program, but they should feel better knowing that AAM is attempting to institute a system whereby mediators with nominal hands-on experience will have access to venerable mediators who will act as mentors. And, AAM will do something about consumer complaints, even though its power is limited. AAM's new grievance procedures respond to recent rumblings from the Texas Supreme Court indicating that judges are going to start conducting hearings on consumer complaints against mediators.

Improving Communication
There is verbal communication because you and I, both of us, understand English. To communicate with each other properly you and I must be urgent and have the capacity, the quality of intensity, at the same time - otherwise we do not communicate. If you are looking out of the window and I am talking, or if you are serious and I am not serious, then communication ceases. Now, to communicate something which you or I have not gone into is extremely difficult. But there is a communication which is not verbal, which comes about when you and I are both serious, both intense and immediate, at the same time, at the same level; then there is "communion" which is non-verbal. Then we can dispense with words. Then you and I can sit in silence; but it must be not my silence or your silence, but that of both of us; then perhaps there can be communion. But that is asking too much.³

Ethical Investing
According to Kiplinger's,⁴ the best funds that screen out companies knee-deep in alcohol, tobacco, nuclear energy, poor environmental records, and discriminatory employee policies are:

• Citizens Index fund (average annual yield: 34%)
• Domini Social Equity fund (30%)
• Dreyfus Third Century (27%)
• Ariel Appreciation (26%)

The Power of Questions
There's no doubt about it, questions persuade more powerfully than any form of verbal behavior. And this is not just in selling. Studies of negotiations, management interactions, performance interviews, and group discussions - to name just a few of the areas studied by Huthwaite and other research teams - have all come up with the same basic fact. There is clear statistical association between the use of questions and the success of the interaction. The more you ask questions, the more successful the interaction is likely to be.⁵

1. Not Certified by the Texas Board of Legal Specialization
2. One Houston mediator has referred to AAM's certification policy as the "dumbing down" of mediation.
3. Krishnamurti, J. You Are the World (p.18).
4. Kiplinger's Personal Finance Magazine: July, 1999.
5. Rackham, Neil. SPIN Selling (p. 15).