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2 TortSource 1 (1999-2000)

handle is hein.journals/tortso2 and id is 1 raw text is: P. Vol. 2, No. 1 Fall 1999 American Bar Association The Goals of Peer Mediation: Are We Merely Solving Problems, or Are We Changing the World? Richard Birke and Loren Podwill his article looks at the ABAS high school peer mediation program, Project Out-Reach, as ehicle for exploring a hotly debated issue within the mediation community: Should medi- focus on satisfaction or transformation? Mediation and Peer Mediation Mediation is probably the most widely used dispute resolution tool in the American civil justice system. It resolves disputes much more frequently than does litigation. Today, civil ver- dicts are few and far between, but mediated resolution of civil cases occurs hour after hour. In the last 20 years, mediation has begun to work its way into the mainstream public edu- cation system. The vehicle it has taken is called peer mediation. This is a method by which disputing parties gather with a person trained in mediation, called a neutral, in an effort to resolve a pre-existing conflict. The neutral has no authority to choose a solution, but has exclusive responsibility for guiding the conflict resolution process. Mediation is generally vol- untary While attendance at some mediations may be mandatory, reaching final agreement is always up to the parties and not the mediator. In the high school setting, mediation is typically conducted on site by and between high school students in a confidential setting. Mediators work in pairs and mediations last any- where from 30 minutes to several class periods. They involve two or more parties, and they may deal with anything from very serious issues, like fighting, to small problems between friends. Project Out-Reach Project Out-Reach began in 1996, when TIPS, the ABAs Young Lawyers Division (YLD), and the Section of Dispute Resolution formed a working partnership almost unprecedented within the ABA. The three entities created ABA Project Out-Reach to promote the strength- ening of existing school-based conflict resolution programs and the creation of new pro- grams. Since that time, TIPS, YLD, and the Dispute Resolution Section have worked coop- eratively to train over 100 attomey members of the association from 27 communities to assist in peer mediation programs in the schools. ABA Project Out-Reach has been recognized with the Best of the Sections Award and has prompted both the U.S. Attorney General, Janet Reno, and Associate Justice of the U.S. Supreme Court Sandra Day O'Connor to sing its praises. The programs primary goal is to reduce societal conflict and school violence. The pro- gram provides students with peaceful means to resolve disputes, diminishing the likelihood of school violence recently experienced in some schools. Currently, Project Out-Reach programs are operat- ing in 14 school systems across the coun- ytry; two new sites will be added for the 1999-2000 school year. At each site, a trio of ABA volunteers- from each of the entities involved- attends a session at which they learn to train students to be peer mediators. Instruction includes a day each of media- tion training, how to teach mediation, and logistics about how to set up and run a program. When the school year begins, the trained volunteers conduct a multi- continued on page 5 ADR in ERISA Claims: TIPS Funds Pilot Pension Project Linda E. Rosenzweig ,ision laws confer important legal rnghts to millions of older Americans. iHowever, many individuals cannot enforce their rights because litigation is the only impartial dispute resolution mechanism provided by ERISA, the federal private pen- sion law. The legal fees incurred in bringing an ERISA claim to trial typically far out- weigh the monetary benefits at stake, and older participants are often reluctant to subject themselves to the delay, stress, and other nonpecuniary transaction costs of court proceedings. Lawyers are often reluctant to agree to handle such litigation because of - the difficulty of explaining complex ERISA concepts to judges; - the disinterest shown by many courts in small, highly individualized benefit claims; and - judicial reluctance to exercise their discretion under ERISA to award attomeys' fees to a prevailing participant. Consequently, there is a significant and serious gap in the delivery of legal services in this area. No program currently exists that addresses this nationwide problem. Paving the Way with an Early Expert Evaluation Program A logical choice for addressing this defi- ciency is an alternative dispute resolution program. The objective of the TIPS pilot pension project is to ascertain the feasibii- ty of a voluntary, nonbinding alternative dispute resolution program for pension claims. The concept of implementing a volun- tary, nonbinding ADR approach using expert neutrals has been the subject of con- siderable discussion within the ERISA bar, as well as on Capitol Hill. TIPS Employee Benefits Comnittee members have met informally with members of four of the ABA Employee Benefits Committees to dis- cuss the elements of such a program. As envisioned by this group, the pro- gram would be an Early Expert Evaluation program established by federal legislation and administered by the Labor Department, together with a private sector board of dispute resolution experts and pension professionals. The group has also met with counsel and staff for the Senate Special Committee on Aging to discuss the Pension Tools Act. The Act addresses the establishment of a dispute resolution program for pension claims. It was introduced by Sen. Charles Grassley (R-IA), Chair of the Senate Special Committee on Aging, and Sen. John Breaux (D-LA). Legislation has not yet been enacted. A major obstacle has been the unwillingness of a private bar group to take responsibili- ty for developing and maintaining the ros- ter of expert neutrals, and to provide for their training. This innovative pilot project would directly address this problem and pave the way for development of a nation- wide program. Who's Involved? The Project will develop and test a model voluntary nonbinding method of resolving pension disputes that will meet the needs of plan participants and plan sponsors. The project will invite private bar ERISA experts to serve as neutral eval- uators. The TIPS Employee Benefits Committee will maintain the roster of the participating lawyers, who will be given training in Early Expert Evaluation tech- niques. Potential clients for the program will be identified by the Pension Information and Counseling Demonstrating Program of the continued on page 5

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