Post on 16-Oct-2021
The Neutral Volume 5, Issue 2 – October 2020
Florida Dispute Resolution Center Newsletter ▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪▪
The Show Must Go On: Dispute Resolution Center’s 2020 Annual
Conference Goes Virtual by Beth C. Schwartz, Court Publications Writer
For nearly three decades, the Dispute Resolution Center (DRC) has organized and hosted an
annual conference, offering mediators and other alternative dispute resolution (ADR)
professionals from across the state an opportunity to enhance their professional competence
and maintain their Florida Supreme Court mediator certification. Except for 2010, when budget
constraints and a travel freeze forced the cancellation of the yearly event, this late summer
program has been as reliably a part of the season as Labor Day, and mediators have eagerly
looked forward to this occasion for honing their ADR skills, earning continuing mediator
education credits, and networking with their colleagues.
So, in mid-March, when the global pandemic began to erupt in earnest, forcing the
cancellation of all court-related education programs and the discontinuation of all non-essential
business travel, the DRC faced a dilemma. By then, the twenty-eighth annual conference—
slated for August 13–15—had been scheduled for more than a year; the hotel contract had
been signed long before; staff had selected the plenaries, workshop sessions, and pre-
conference trainings; and attendees were counting on the conference to earn their required
continuing education credits.
What to do? Call it off? Or figure out a way to move forward?
Kimberly Kosch, senior court operations consultant with the DRC and a conference veteran
of more than 25 years, recounted that staff initially thought cancelling was inevitable, especially
given the size and complexity of the program: typically drawing more than 1,000 participants,
the conference has grown to comprise five sets of workshop sessions, each with about a dozen
possibilities from which to choose, along with three plenary sessions (not to mention the one or
two pre-conference trainings that are also offered, most years). But Susan Marvin, the DRC
chief, was not ready to give up. She had been one of 554 attorneys who participated in the
American Bar Association’s Dispute Resolution Virtual Twenty-Second Annual Spring
Conference—a mid-May program that had to quickly transition from an in-person to a remote
event—so she had good reason to believe that the DRC conference could also be saved. In Ms.
Kosch’s words, Ms. Marvin was “a champion” with an unflinching, “We can get it done
attitude”—and her staff rallied behind her.
Their first realization was that they would need even more help
than usual. Because the program continues to grow and has so
many moving parts, the DRC began utilizing a conference manager
eight years ago. Hiring a conference manager was a given—
specifically, one who could deftly captain the conversion from an
in-person to a remote event.
And, given the circumstances, they recognized that they also
needed a professional production team to manage all the
underpinning technologies that would come into play. With the
team they selected, the “behind-the-scenes” activity went like this:
before a session began, the various presenters, from wherever they
were, all logged into a virtual “studio,” each via their preferred
platform (e.g., Zoom, Teams, Skype). The production team, much
like an executive producer, picked up the various feeds, included the presenters’ slides and
videos, and added title overlays, closed captioning, a chat box for questions, and any other
needed functionality. Then the team packaged it all together and broadcast it live, via a
separate system, to
viewers. The production
team also provided
training and tips, as
needed, to the various
presenters, many of
whom had never before
conducted a remote
training; ensured
uniformity and ease of
navigation for viewers;
and made sure that the
show would go on, as
smoothly and seamlessly
as possible.
In addition to hiring
professionals to make
sure all the backstage
work would happen
fluently, the DRC did everything it could to ensure that attendees would be able to easily and
AV Media works behind the scenes at the DRC's first virtual conference.
Steven Bonda, Conference Manager
comfortably embrace the virtual experience. For instance, because it’s not feasible to expect
participants to sit, immobile, behind their laptops for a day and a half of content, DRC staff
reconceived the conference design. They began by including 30-minute breaks between each
session. To accommodate the reduction in learning hours, they simplified the conference
agenda, offering fewer workshop sessions than usual (only four blocks of sessions rather than
the usual five, with only seven choices in each block, rather than the usual dozen or so). At the
same time, they added another plenary session, bringing the total to four this year. And they
also made sure to include virtual versions of several beloved conference mainstays: the
greetings from the chief justice, the awards ceremony, a happy hour, and, of course, the
cherished yoga sessions (Friday morning, Friday evening, and Saturday morning).
Over the course of
the day and a half,
mediators could earn
up to 9.6 hours of
continuing mediator
education credit.
Because all plenary
and workshop sessions
were video recorded,
as a perk, registered
attendees were
invited to access any
of the sessions they
missed (or wanted to see again) for 60 days after the conference ended, meaning they could
earn even more education credits, if they so desired (up to 32 hours of education). All told,
1,230 ADR professionals participated in this pioneering effort—about 200 more than the DRC’s
most well-attended live event!
On the whole, feedback was very enthusiastic. Participants overwhelmingly appreciated
the opportunity to attend virtually (for a variety of reasons, some had never been able to
attend the in-person conferences); they also loved the nominal registration fee ($50 rather than
the usual $195) and the absence of travel and lodging costs. They found the optional, pre-
conference “Tips and Tricks” Zoom session very helpful: hosted by Ms. Marvin and the
production team, this session showed attendees how to maneuver around the website and
have a great virtual experience. Also helpful was the closed captioning, participants said. And
they relished the chat function, which they used to pose questions to presenters and to
communicate with colleagues. Being able to attend whatever session they wanted, without
having to worry that it would fill up, was also a plus. As were the 30-minute breaks between
sessions: knowing they had built-in times to address work or family issues, attendees said they
could focus more fully on the conference itself. And they were thrilled that, as part of their
registration fee, they had access to all the DRC conference sessions for 60 days after the
program ended.
After an inaugural endeavor of this magnitude, however, it is not surprising that attendees
also had some helpful recommendations for improvement. In particular, they requested
enhanced instructions for asking questions to the presenters and for answering the polls. They
pointed out that there was some confusion about session materials—about whether, and
where, the materials were posted. And most important, they noted that in-person trainings
don’t inevitably translate well into a remote environment, and they suggested that DRC staff
provide presenters with resources and feedback for enhancing their online teaching strategies.
In retrospect, Ms. Marvin mused, “We were thrown into the deep end of a pool. We
adapted, we accommodated, we learned—and became Olympic swimmers within a few
months!” As for what the future holds, all sorts of new possibilities beckon, Ms. Marvin and
Ms. Kosch agreed. Perhaps future conferences will be hybrids, both in-person and virtual,
giving people the option. Or perhaps they’ll alternate, in-person one year, virtual the next.
They still have much to learn, they acknowledged. But the bottom line is that, during what is
probably the largest ADR event in the country, “people created new ways to interact, learn
from, and be present for one another” in this very challenging time.
DRC Keynote Address: Some Final Thoughts
We hope you found Barry Goldman’s opening
keynote address at the Conference to be
interesting and thought provoking.
Below are some additional questions posed
to Mr. Goldman regarding his thoughts on
research as it relates to the field of alternative
dispute resolution.
Questions
Can you tell us where to find the research regarding the effect of chocolate M&M’s being
provided to people viewing cartoons? I believe you cited that study as supporting the idea that
warm muffins being provided to participants at mediations could put them in a better mood.
Barry Goldman presenting the keynote address.
Is there a particular aspect of mediation (placebos) you would like to see studied?
Are there studies regarding the effects of the evaluative techniques used by some
mediators?
What mediation studies do you know of that were conducted in the scientific manner you
described. The mediation studies I am aware of involved asking parties and participants to
evaluate their experience in mediation rather than the scientific, blind, random trial approach
you described.
Mr. Goldman’s Response
The research about candy and muffins is part of a larger area of study that goes by the
name "embodied cognition." The idea is that the body and the mind are not separate things.
The state of the body contributes to the state of the mind. There are studies, for instance, that
show people seated in soft, comfortable chairs don't bargain as hard as people in hard chairs.
Or, as I like to say, your butt gets a vote.
The biggest name in this area is John Bargh at Yale. His (quite readable) book on the
subject is Before You Know It: The Unconscious Reasons We Do What We Do, Touchstone 2017.
I should caution that the whole area of embodied cognition is controversial. Several of the
important experiments in the field have failed to replicate. This is part of a larger "replication
crisis" in psychology in general. No one knows how it will all shake out.
I have the same questions all mediators do: When should I go to caucus? When should I let
the parties run on about irrelevant stuff and when should I cut them off? When should I make
a mediator's proposal? Many mediators seem to think there are no clear answers to those
questions. People are too complicated, and mediation is an art and not a science. I think that's
wrong. Or at least I believe that the task is no more difficult than the task of medicine must
have seemed in the early days.
I'm not aware of any empirical studies of evaluative mediators or facilitative ones. But I'm
not an academic, and I'm not sure I would know if that kind of work was being done. Every
once in a while I try to look at the academic literature. My experience is the scientific stuff is
unreadable and the subjective stuff is just silly. If I'm wrong, I'd love someone to point me to
the evidence.
DRC’s Annual Award Winners Announced
The Sharon Press Excellence in ADR Award is presented
annually to a person for his or her visionary leadership,
professional integrity, and unwavering devotion to the
field of alternative dispute resolution.
This year’s award was presented to the Honorable
William F. Stone, First Judicial Circuit Court of Florida.
Judge Stone exudes passion for alternative dispute
resolution. From his early days as a contract mediator
for the First Judicial Circuit in the 1990’s through his
ascent to the trial bench, ADR has centered prominently
in his philosophies for serving the citizens of our great
state. He currently serves on the Florida Supreme
Court’s Committee on ADR Rules and Policy and the
Mediator Qualifications and Discipline Review Board.
The Dispute Resolution Center Appreciation Award was
inaugurated 22 years ago to formally recognize individuals
who make outstanding contributions to the field of ADR in
Florida over a significant period of time. This year’s awards
were presented to Dawn Burlison, Julie Hilton, and
Christopher Shulman.
Dawn M. Burlison has provided 30 years of dedicated and
devoted service to the Office of the State Courts
Administrator of which over 27 of those years has been with
the Dispute Resolution Center. Her current duties include
managing the certification and renewal processes for
thousands of certified mediators; providing oversight to
mediation, arbitration, and parenting coordination training
programs; and publishing The Neutral. Dawn has worked
diligently behind the scenes providing excellent customer
service to thousands of Florida mediators over the years with
patience and generosity.
Christopher M. Shulman is an alumnus of Stetson
University College of Law and has been a member of
The Florida Bar for over 27 years. From 1995 to 2001,
Chris mediated on and off, but since January 2002, he
has limited his practice to service as a neutral dispute
resolution professional and has mediated more than
3,500 disputes. He is a Florida Supreme Court certified
County, Family and Circuit Mediator, and a Federal
Court Mediator. He also serves as an arbitrator in a
variety of forums. Chris has served on the Florida
Supreme Court’s Mediator Ethics Advisory Committee,
and in June of this year he completed his final term as a
member of the Committee on ADR Rules and Policy; he
currently serves on the Mediator Qualifications and
Discipline Review Board.
Julie K. Hilton received her undergraduate degree from the University of Florida, an MBA from
the University of Texas and returned to UF’s Levin College of Law to earn her J.D. degree. Julie
is a Florida Supreme Court certified County, Family and Circuit Mediator and has served as a
member of the Mediator Qualifications and Discipline Review Board in the Northern Division
for 28 years. She is a lawyer, mediator, hotelier, and private pilot who loves books on
innovative ways to improve problem-solving for the future.
Message from the DRC
The DRC staff want to take a moment to
send a personal message to our readers to say
that we hope each of you have been able to stay
safe and healthy since our lives all abruptly
changed this past March. During this pandemic,
we have all experienced a new way of life, and
so we decided to share a few thoughts and
observations from our new working days.
We miss the simple things like lunch breaks at Chick-fil-A and Jimmy Johns and
driving by the FSU campus – it was nice to see the students out and about.
We have noticed the return of hand-written envelopes with actual postage
stamps. Forever stamps seem like a good deal right now.
We are becoming more expressive of kindness and have an increased appreciation
for the fact that the mediators and ADR committee and board members are a
wonderful, friendly, supportive, encouraging community. That support was most
evident from your positive comments about the annual conference.
Many of us feel that managing our time has been easier – which has given us
the ability to better organize and prioritize our work tasks.
We have noticed that people are starting to use email more and we are very
appreciative of your willingness to use this method of communication.
DRC Training News
The DRC’s commitment to offering free local mediator professionalism training for court
mediators across Florida supports a professional, ethical, and skilled judiciary and workforce,
one of the issues highlighted in the Supreme Court’s 2016-2021 Long-Range Strategic Plan. The
DRC is continuing that commitment and has begun conducting virtual continuing education
programs at this time.
The DRC conducted its first virtual continuing mediator education program on May 12,
2020, via Zoom. DRC staff Susan Marvin and Kimberly Kosch presented to a 36-member
audience of certified mediators from the 12th Judicial Circuit. The 3.5 hour training focused on
mediator ethics and online dispute resolution.
ADR News and Updates
Mediation Week 2020
Chief Justice Charles Canady has issued a Mediation Week proclamation for October 11-17,
2020. Originally conceived in 1996 as Mediation Day, this proclamation extends best wishes to
those celebrating the peaceful resolution of disputes through mediation. Over the last 24 years,
your local celebrations have been an integral part of Florida’s statewide celebration, and we
encourage you to send information to the DRC regarding your festivities.
Zoom screen shot of the DRC's first online CME program.
ADR Section of The Florida Bar Offers “Be Well, Stay Well” Seminar
The Alternative Dispute Resolution Section of The Florida Bar is sponsoring a six-part
webinar series, “Be Well, Stay Well.” For more information on registration, visit the ADR
Section’s website. The schedule of completed and remaining events is as follows:
• October 8 at 11 a.m.: Balancing Wellness and Ever-Present Demands of Technology
(Presenter: Ilenia Sanchez-Bryson, Legal Services of Greater Miami)
• October 13 at 12 p.m.: Changing the Paradigm of Who We Are (Panel Members: Deborah
Corbishley & Professor Janet Seitlin)
• October 21 at 12 p.m.: Ethical Considerations When Using Alternative Dispute Resolution to
Bridge the Justice Gap (Presenter: Jayme Cassidy, Legal Services of Greater Miami)
• October 26 at 12 p.m.: Navigating Lawyering and Life: A Roadmap (Panel Members: Bruce
Blitman, Paula Black, Maia Aron, and Karen Lapekas)
• October 29 at 12 p.m.: Happiness For Lawyers Guaranteed…or Your Misery Back (Panel
Members: Arielle Capuano & Mark Eiglarsh)
Mediator Ethics Advisory Committee (MEAC)
The Mediator Ethics Advisory Committee provides ethical guidance to certified and court-
appointed mediators. If you have an ethical question for the Committee, you may address your
question to the Committee c/o Dispute Resolution Center, 500 S. Duval Street, Tallahassee, FL
32399. You can view the most recent opinions on the MEAC Opinion Page.
Featured Guest Articles
De-escalation and Mediation by Gene Presley
I have been a mediator for 14 years and a Florida prison volunteer for 12 years. I decided
to combine these volunteer opportunities to teach peacemaker and Florida mediation skills in
state of Florida prisons. Why? The Florida prisons had the most needs in a violent high conflict
environment and did not have mediation as a process for peaceful solutions. They needed
even more help than people I encountered as a mediator in the court system, in private
practice, and then as First Circuit ADR Director. Many of the inmates have never been taught
how to resolve conflicts by using their words or non-violent communication methods. Most
people living in prison believe you must use your fist to solve problems rather than using more
civil approaches of conflict resolution. I believed the same thing in my younger years when I
was growing up in government housing and other kids stole my toys. I know that I was not
taught de-escalation methods to calm myself and others as I am teaching the guys in prison.
Just as many inmates, I was never taught to calmly work through a problem or difference of
opinion by using mediation until my later years.
To set the mediation teaching stage for you, walking through the gates of a prison gives
you a feeling like no other. When you get through security and hear those cell doors close from
behind, you become hypervigilant and are on alert for your own safety. I am happy at the end
of my day when guards open the door to freedom once more.
Here I offer you my view of the situations that develop and the mediation techniques and
communication processes I am teaching my prison residence students to use when they
encounter conflict where they live. I have been back in the dorms to visit and mentor my
students and others. To give you an example of how conflict develops quickly inside the wire,
try to understand how the following must feel. Open bay dorm inmates live in crowded
conditions two feet apart in dormitories of 70 men, each with their own ideas and behaviors.
They don’t get to choose who they live with. A misdirected stare, a glance, a bump, a
misperceived smile, a smell and any sign of perceived disrespect, intentional or not, can trigger
and ignite a burning rage within the person next to you.
The factors that lead to potential violence may include lack of respect for anyone, anti-
social behavior, jealousy, lack of literacy or job skills, or other expressed nonconformist
behaviors, values, and attitudes. The anger seen in prison is heightened and more intense with
greater consequences. You never know when the dam will burst. You don’t know what is going
on in someone’s head. There is a huge anger problem in the world as you have seen in your
own mediations when anger starts to take over and clients become unreasonable. Just a few
minutes ago they were speaking calmly, intelligently and with great eloquence. Then,
especially in the prison environment, their voice elevates and becomes louder and louder until
they are just about spitting on each other. Their face turns red and they believe the loudest
person wins the argument. Do you see them move forward in an aggressive stance right in the
other person’s face? Do you see clenched fists ready to strike? Frustration often sets in and
happens due to the closeness of living conditions and confinement. There is never a quiet time
in the dorms. There is always background noise, a TV going, someone singing, or screaming out
in the night.
How do you as the neutral inmate mediator handle these situations? To begin with, you
are someone who lives with these potential combatants and will see them every day, but you
have been taught some new skills that can help calm them down reducing chances of violent
conflict. In these situations, your personal qualities and relationships can make a difference
and impact the mediation process. Value-driven, positive people skills are taught throughout
the mediation class.
According to attorney, mediator, peacemaker, and 2012 DRC Annual Conference plenary
speaker Doug Noll in Peacemaking Practicing at the Intersection of Law and Human Conflict:
We make decisions and begin acting on them more than a half second before we
are even conscious of what we are doing.
In his book De-Escalation How to Calm an Angry Person in 90 Seconds or Less, Mr. Noll
explains what happens when we begin a technique known as affect labeling to help calm
people down:
When we affect label, we are providing the upset person with the emotional
categorization and granularity that they cannot, at the moment, provide for
themselves. We are, in essence, loaning our prefrontal cortex to help another. By
affect labeling, we help an upset person grasp and label her affective and
somatic experience and concretize it into consciousness. Once the emotion
becomes labeled in awareness, the speaker can work with it.
The upset person’s emotions are validated by the mediator using simple, declarative
statements such as “you are (insert the emotion observed)” reflecting back the emotions the
mediator observes. Each response from a party to the conflict should lead the mediator closer
to the rational thinking center of the party’s brain. The process of affect labeling is done in a
caucus or prior to bringing the parties together to begin the mediation. Some conflict coaching
takes place in the prison peer mediation process. The mediations in prison often occur by
shuttling back and forth between parties in discussion in the yard on the recreation fields.
Very recently Department of Corrections Secretary Mark S. Inch wrote a message to
everyone titled “Getting After the Violence” asking for recommendations and solutions to
violence in the Florida prisons. This successful mediation process (PIP) Peacemaking in Prison, a
Conflict Management System was recommended by the institution in which I have been
teaching. This is a fledgling process only taught to a few inmates. It was ready to be expanded
and I was on the way to the prison when I received the shutdown phone call due to the COVID-
19 quarantine in the prisons. Stay tuned!
Gene Presley is a Florida Supreme Court certified county, family, circuit and dependency mediator. He
previously served as ADR Director of the First Judicial Circuit.
The Future of Remote Mediation – Awesome, but not the new normal by Rodney G. Romano
For most mediators that I know, Zoom has been a Godsend. During the Covid-19
quarantine, Zoom has allowed mediators and their clients to stay safe yet productive. Since
March, we have been able to continue our practices remotely and seamlessly and functioning
at nearly full productivity after an initial transition period. We have been able to continue to
contribute to helping our client legal practices and claims professionals maintain their own
productivity and obtain closure for their clients.
No doubt, Zoom is here to stay and will be an important part of quality mediation practices
– and probably court proceedings – going forward. The question is: “With the unexpected
success of remotely mediating, will remote mediation replace in-person mediations?” I don’t
think so and here’s why: Zoom does not provide the same opportunity for non-verbal
communication that occurs when people are in the same room. Zoom cannot provide the
opportunity to observe how mediation participants interact with each other. Zoom comes
pretty close but is not as good as in-person mediation. Our results have been surprisingly
similar, and the participants have exhibited incredibly good humor and patience, but there’s
just something missing.
Perhaps you’ve heard the statement that 90% of communication is non-verbal. That
theory was first articulated by Professor Albert Mehrabian, who postulated that 93% of
communication is non-verbal – 55% is body language, 38% is tone of voice and 7% is words. He
considered this formula more applicable in the presence of incongruities between verbal and
non-verbal communication, which occur in every mediation.
With an in-person mediation, the mediator can listen to what is not being said and gather
immense information from posture, body language, facial expressions, even the way
participants are breathing. The mediator can get a better feel for when to continue exploring
an issue and when to leave it alone.
What’s bad about remote mediation? Here are some issues I have noticed:
1. Significantly diminished access to non-verbal communication/cues;
2. Some people still attend by phone so you still can’t see them;
3. Non-participants can sometimes be seen in a room or passing through; giving rise to
potential confidentiality issues;
4. Unstable connections can cause technical difficulties (although these have not created
any serious issues in our experience);
5. You may have to deal with feedback from non-participants and improperly clothed
people who are not aware they are visible;
6. There can be unexpected distractions;
7. Health of the mediator – so much home time can result in social isolation, less exercise
and more unhealthy eating. Remember to care for your health;
8. Security firewalls can slow digital signing of settlement agreements to 20-30 minutes.
What’s good about remote mediation?
1. Safe from the COVID-19 virus, the mediator has the ability to remain safe yet continue
to earn a living and help others do the same;
2. No travel time or expense;
3. Lower dry-cleaning bills – you only need to dress professionally from the chest up;
4. Arguably people concentrate more because each participant is in the other’s face;
5. Video conferencing is profoundly better than telephone-only appearance, so much so
that a strong argument can be made that courts should only allow remote appearances
by video.
I hope these observations provide some useful insight.
Rodney Romano is a Florida licensed attorney, and current full time Florida Supreme Court certified circuit mediator. He is the founder of Matrix Mediation in South Florida. Since the quarantine, his firm has conducted several hundred mediations. He is an approved primary trainer for circuit mediation training programs. He is the author of Dispute Resolution Field Manual: Negotiating in the Trenches, Page Publishing, 2019.
News From the Field
In Memoriam
Dr. Ronald Evans passed away last July. Dr. Evans was part of the
inaugural faculty of the University of West Florida in Pensacola and later
served as Dean of Arts and Sciences. During his 40 years in academe,
which included extensive travel abroad, he published scholarly books and
articles as well as collections of short stories and poems. Upon retirement
from UWF, he became Director of Mediation Services for the First Judicial
Circuit of Florida from 2004 to 2007. His generosity, ready wit, and charm
will be missed.
Milestones
Christy Foley, chair of the Mediator Ethics Advisory Committee, was recently installed as
Treasurer of the Entertainment & Sports Law Section of The Florida Bar and continues as
Secretary of the ADR Section.
The Mediator Ethics Advisory Committee welcomes new members Jason O’Steen in the
Northern Division and Carmen Polanco in the Southeastern Division.
The Florida Academy of Professional Mediators (FAPM) 2020 Susan F. Dubow Service Award
was presented to Elinor Robin during the Virtual Happy Hour at the DRC’s annual conference.
Mediator Retirements
The DRC would like to acknowledge and send best wishes to the following mediators who have
announced their retirement since our last issue.
Cathy Appleton, Boynton Beach
Joan Burroughs, Ormond Beach
Jane Hunston, Stuart
Kathryn Jens-Rochow, Fort Lauderdale
Leslie Termer, Orange Park