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