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
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
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-
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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