Nicholas Kelly

Mediation Practicum Journal

Entry 4
Mediation 3
3/3/2017

This week I had another strange mediation at Daley this week, but at least it

lasted the full 30 minutes with no one quitting. My first mediation was so easy, self -

resolving even, but now Ive had two in a row that were just very frustrating. I know

that I probably shouldnt think of mediations in terms of normal and abnormal, but its

hard to not long for a normal mediation. This one was odd, to say the least.

The initiator was a man named Dennis. He was suing a woman named Ramona

because she was not paying her portion of the rent on their sh ared lease. At first it

seemed like a straight-forward roommate dispute, but then it came out that Dennis and

Ramona had been in a relationship for fourteen years and that that relationship was

ongoing at the time of the mediation; the couple had even been on a date yesterday. I

was kind of shocked, though I dont think I indicated that with my behavior. The

strangeness of that revelation set the tone for the rest of the mediation.

Ramonas behavior was erratic. At the beginning of the mediation she asked i f it

would be alright for her to stand, as sitting would give her a panic attack. She spent

the first half of the mediation pacing the room but then sat down. She also shouted a

great deal during the mediation. It is important to me that a mediation I co nduct be

accommodating of anyones physical or mental health issues and Dennis had no

objection to her pacing, so I was fine with that. Still, it made it difficult to connect early

on and I do think it diminished the conversation quality, though in some wa ys its hard

to say how it would have been otherwise. She was aggressive and frankly unpleasant.
For example, at one point our case manager Sam stuck his head in to check on how the

session was going; after he left, Ramona asked me who the fuck was that? I wasnt

bothered by it and I dont think it impacted me emotionally, but that aggression was

consistent throughout the session and it impeded connection. Dennis seemed unfazed by

Ramonas behavior and at times implied it was typical behavior for her.

Dennis was suing Ramona for back rent and for a commitment to pay the rent

going forward; they had a joint lease, but no further agreement on how to allot

responsibility as to splitting the rent. The reason Ramona was not paying her portion of

the rent was that she did not have enough consistent income to make the payment. She

doesnt have a consistent job and is having trouble finding one. Ramona said that when

she comes into money she often gives it to Dennis and Dennis did not contest that.

When I asked Ramona if there was an amount of money she could consistently pay, she

said there was no amount of money that she was certain she could pay every month. The

interesting thing was that Dennis seemingly agreed. He said he knew that she would

have a lot of trouble getting or keeping a job or even paying a judgment. At one point ,

Dennis even called Ramona judgment-proof. When Ramona and I asked Dennis to

explain what he meant by that, he gave the correct definition and told Ramona that he

knew she would not be able to pay a judgment against her. Given that, the logical

question was to ask why he was suing her.

Dennis didnt have a good answer for why he wanted to sue his judgment proof

girlfriend. At one point, he said that he didnt know what else to do. He said he had the

money to pay the rent on his own, but he didnt know how to get her to contribute

without this step. More than anything, it seemed that he felt taken advantage of. He and
Ramona had a deal and she hadnt kept her end. The fact that she couldnt keep her end

didnt make much of a difference, he felt cheated. However, I had difficulty digging

into his thoughts as much as I would have liked to because Ramona was interjecting

frequently in a combative manner. She called suing her stupid in light of the fact that

she had no money and said Dennis was stupid for suing her when he knew that. That

definitely disrupted the process and led Dennis to withdraw partially.

Ramona in turn seemed to feel like Dennis was asking the unreasonable of her.

She was trying in good faith to get a job and make more money and he didnt appreciate

that effort. Furthermore, Ramona claimed that Dennis had turned off the internet to

punish her, though he disputed that motive. Either way, the lack of internet further

hampered Ramonas job search. Beyond that, Ramona claimed that the landlord had told

her she didnt need to pay half of the rent and that shed been concerned about this

when they signed the lease. It was hard to get a clear picture of what her understanding

was though, because she would frequently change the subject. She frequently

complained about Denniss unreasonable expectations, but was uninterested in

discussing what reasonable expectations would look like. Ultimately Ramona was hard

to talk to because she deflected frequently and was very mercurial. She implied that this

was all due to her anxiety issues. I certainly am not qualified to opine on that, but these

traits definitely made the mediation more difficult than I would have expected. I hope

that in the future I can find ways to more directly communicate with parties or

otherwise bypass these sorts of defense mechanisms in the available time.

Nicholas Kelly
Mediation Practicum Journal
Entry 5
Mediation 4
3/10/2017

I finally got a somewhat normal mediation at the Daley center. It didnt reach a

settlement, but the parties acted in a moderately reasonable and al most respectful

manner, so I was pretty excited about that. I try to not be invested in an agreement

because I know that that sort of fixation can have very negative impacts on the process,

but it is still frustrating to deal with parties that seem incapable of partaking

productively in the process. On the other hand, at least those feel less like my failures.

Cases like this, where the parties seem reasonable enough, can in some ways be more

frustrating because then it feels much more like my failure that is at fault for the lack of

agreement. As I said, I know that these arent productive or even correct feelings, but I

still am troubled by them.

Todays case was initiated by a woman named Mariah. Mariah had signed up to

take a yoga instructor certification course through a school run by the husband and wife

pair Jared and Ellen. The course ran 400 hours, which sounded like an outrageous

amount of time to me. However, I consulted with a yoga instructor friend of mine and

confirmed that this is not an unusual amount of time for such a course. Mariah was told

part way through the course that she had been suspended for 3 months, which seemed to

be long enough that shed essentially have to begin the course again. Mariah felt that

this was effectively depriving her of what shed paid for, which is what led her to sue.

Ellen and Jared insisted that their contract specified that no refunds would be

given after the beginning of the course. This was a difficult point for me to engage with
as a mediator. My legal training makes me skeptical that that sort of agreement can

really be enforced in court. Indeed, when I later was back in the courtroom, I head these

parties having a pretrial conference, during which the judge informed Ellen and Jared

that their agreement would only be binding if the court thought it was reasonable.

However, it was hard for me to approach that point through reality testing. After all,

many people without legal education believe that essentially any contract will be

enforced if it is written down. I believed that before law school. So how do I reality test

someone when the underlying premise of my questions, that not all contracts will be

enforced, is completely unknown to them? More specifically, how can I do that while

maintaining the CCR facilitative posture? I was not effective in reality testing this point.

Jared and Ellen were completely confident in their ability to win and unwilling to

consider any settlement. When I saw the pretrial conference conclude, they had in fact

agreed to pay a settlement, though it was less than what Mariah sought. Its not

surprising that theyd respond more to the same point from a judge than they would

from a mediator.

Mariah felt very ambushed by her suspension. She claimed it was because shed

suggested taking the class to a political activity. Ellen and Jared countered that it was

because shed been taking bottles of water without paying for them and violating yoga

ethics. They went on to explain that the rules had been posted on their websi te and by

violating them Mariah had opened herself up to any suspension they saw fit. The parties

couldnt agree to whether Mariah had been presented with these terms ahead of time.

They also couldnt agree about whether shed been warned about violations, even

though they had extensive correspondence between them. Like in so many other cases,
both parties wanted to show me all of their evidence and I had to tell them to save it for

the judge.

A complicating factor in all this was that though Ellen denied it, she and Mariah

appeared to have become friends. Ellen even gave Mariah a piece of jewelry that

belonged to Ellens dead mother. However, Ellen insisted that this was not a sign of

friendship, but that she gave gifts like this to everyone. Similarly, sh e claimed that the

articles and videos about spirituality that shed sent Mariah were only sent in her

capacity as an instructor, and that they implied no personal connection. It was important

to Ellen to keep the conversation in an impersonal/professional framing. She talked a lot

about being a business owner and about taking pride in her business. She deflected

heavily when confronted with any inconsistencies with that narrative. However, she also

adopted a patronizing tone towards Mariah for much of the intervention. It was subtle

enough that it was difficult to pinpoint, but it was definitely there. In some ways, open

hostility is easier to handle because it can be named and responded to, but this was more

ineffable.

Jared was very much on the same page, though he mostly let Ellen do the talking.

His only real intervention was when things got heated between the two women. He had

only been involved administratively with the suspension. But he and Ellen ran the

school together so he wanted to be there for the mediation and Mariah had no objection.

This is the first case Ive worked on with an uneven number of parties in the room. I

was concerned that Mariah might feel uncomfortable, but she said she was fine with it. I

was glad, because neither person was actually the defendant, the company was. They

had equal entitlement to be there, though Ellens information was more germane.
 As I said, there was no agreement here. Ellen and Jared were firmly convinced

that they had done nothing wrong and that there was no reason for them to negotiate or

pay anything. Eventually the judge convinced them otherwise, so it is hard to not

wonder if I could have done the same, given enough time or better tactics. If I could do

this again, I would refine my reality testing, maybe by asking them if theyve ever had

their refund policy challenged, because their confidence in it seemed to be the core of

the refusal to negotiate.

Nicholas Kelly
Mediation Practicum Journal
Entry 6
Mediation 5
3/08/2017

Today, I mediated for Professor Alyson Carrels negotiation class. I really

enjoyed having Professor Carrel as my mediation professor last semester and she was

the one who encouraged me to take this practicum, so I was excited at the opportunity to

work with her and to help her class. Furthermore, Ashwin is the TA for this class and

was giving them further mediation instruction, so I was excited to assist him with that

process in any way that I could. Finally, I knew this would be one of my few

opportunities to go outside of CCR style requirements and experiment with evaluative

mediation. It is because of this opportunity to experiment with my style that I believe

this experience is worthy of journaling; even though the conflict was fake, the practice

was a real as Im likely to get this semester, assuming no one in my personal life takes

me up on my offer to mediate their disputes.

The class was divided into groups ranging from two to four students; some

groups had clients and attorneys as their roles while others just had attorneys. I had one

of the latter groups, with two students: James and Samantha. James was representing a

fictional art gallery (which he also curated) while Samantha represented the fictional

town government that had controversially defunded the gallery in response to a

controversial piece of art. I had actually seen this problem in my mediation class, but

wed only discussed in the abstract how we would act as an advocate/mediator in this

situation; we didnt roleplay it.

 James was frustrated because he felt that the piece was artistically important and

drawing valuable attention to the museum. It had raised the museums profile and

attracted attention from major figures in the New York City art scene. Furthermore,

some other galleries were interested in acquiring the piece, which would have been very

exciting. Finally, he felt censored and offended that the city was defunding the museum

over the political messages of art.

Samantha, for the city, was concerned with the public backlash the piece had

generated. Many citizens complained to the mayor and didnt like that their tax money

supported that piece; this wasnt about the mayors views, but that of his constituents.

She was concerned with making sure the art didnt reflect poorly on the city. She was

highly concerned with a good PR solution.

As stated, I wanted to experiment with a more evaluative mediation style in this

mediation. I resolved at the outset to look for reasonable solutions to propose. One

solution that quickly suggested itself to me was to restrict future viewings and include

some sort of content warning. The parties eventually agreed to put the piece in a

separate area of the museum, behind a curtain or partition. Anyone who wanted to see it

would have to go past a sign warning that the piece was controversial and political, with

an explanation of the topics. That way, the citys concerns about offended citizens could

be addressed. James liked this idea, especially after I mentioned that it might generate

extra publicity. What was important is that the people who wanted to see the art would

still be able to. Both parties were happy with this suggestion, and it was central to their

agreement.
 On the other hand, some of my evaluative suggestions were not as well received.

For example, James and Samantha wanted to create a citizen board that would review

new artistic projects the city was considering funding. This would in theory prevent this

sort of incident by soliciting citizen feedback and would also create a formal mec hanism

for addressing these problems when they did come up. I mentioned that this might have

some difficulties in implementation, since theyre basically talking about creating new

elected positions. I also noted that its hard to predict how people will r eact to art, so it

seems unlikely that this tool would really solve the issue of having the citizens of the

city involved in the art or understanding how its picked. However, both parties liked

these suggestions and wanted to proceed with them, so we did. I wasnt bothered by

this, though perhaps if it were a real mediation I would have pushed a little harder.

Ultimately, if both parties are confident in their ability to comply, then I dont want to

impede them.

I enjoyed getting to mediate evaluatively. Like many lawyers, I have a fairly high

opinion of my ability to problem solve. It was nice to get to apply that in a mediation

context. Id love a chance to try more mediation in this vein at a later point in my

career. It was also very rewarding to hear the students discuss their take aways from

mediation. The one element I thought was missing was caucuses, but I just didnt think

we had enough time to get to those. In a longer evaluative mediation, I think a caucus

would be very helpful because I can be more targeted in my criticisms without the party

feeling like Im putting them down in front of their opponent.

Nicholas Kelly
Mediation Practicum Journal
Entry 7
Educational Event Special Entry
3/10/2017

Today I attended the JLSP symposium on restorative justice. I had very high

hopes, both due to the subject matter and the caliber of speakers. While I enjoyed the

event, I did not get everything out of it that I would have hoped, and have been left

slightly ambivalent.

The introduction was very nice, I found the indigenous music uplifting and

moving. I think that it is truly wonderful that so many diverse groups were brought in

on this: academics, community members in Chicago, and indigenous peoples from

elsewhere in the country. The introduction concluded with me feeling energized for the

day ahead.

Of the first two events, I chose to attend Trauma-Informed Restorative

Practices with Dr. Mark Umbreit. It appears that Dr. Umbreit is a pretty significant

figure in this field, and it was clear that many in the audience were very excited to hear

him speak. For myself, I found him a little underwhelming in some ways. Dr. Umbreit

repeatedly emphasized the importance of moving beyond procedural frameworks in

mediation and other restorative practices. In our training, Alyson constantly emphasized

that parties controlled the outcome but we as mediators controlled the process. Dr.

Umbreit was, in effect, telling us to cast that aside. He explained that in his view, s tiff

processes can be an impediment to real humanistic connection. He gave the example of

that favorite mediator tool active listening, and told us that he found it could appear

patronizing to many people. I will definitely agree with that observation in p oint of fact,
I have myself found active listening patronizing. When Im upset, I want people to

actually respond and react to what I say, and mirroring it back at me can feel like

theyre only superficially engaging with me. So, I think his point is well taken. That

said, he did not have an alternative framework to offer. He said we should be present

and mindful, but I think its fair to say that anyone who is trying to assist in resolving a

dispute or another restorative goal is already going to do those things. While it may well

be the case that a practitioner of Dr. Umbreits skill can transcend technique, that isnt

true of someone like me. I need that structure or I wont know what to do. Him telling

apprentice (or at best journeyman) mediators to reject all of that procedural structure

couldnt help but feel like he was pulling up the ladder behind him. I have no doubt that

he made great use of processes in getting to where he is today.

This is not to say that I think he is wrong, only that I think his explanation was

not helpful. Dr. Umbreits explanation had a semi-mystical air about it. For example, he

would frequently cite the great skill displayed by many indigenous peoples in

unstructured restorative practices. I do not doubt for a moment that h e was accurately

describing these people and their skills, but he would go no farther than noting

competency. Citing the success of unnamed people without explaining at all what they

did gives about as much evidence for his position as just punctuating his claims with

believe me. Furthermore, I am at times uncomfortable with the exoticized and

mystical language that is sometimes used to discuss restorative practices that have their

roots in indigenous cultures. First of all, I never hear which cultures si tting in circle

comes from? Given the diversity of Native American cultures and the fact that, like all

older societies they lacked our current degree of travel and communication, its hard to
believe they all used circles or something like them. Its especially hard to believe that

there would be enough similarity for anyone to draw a set of synthesized practices. But

the discussions I hear of these practices, including the explanation of Dr. Umbreit, refer

to a nebulous native origin for these practices. The elision of all native tribes,

intentional or not, makes me uncomfortable. I also worry about the othering effect of

conveying a social practice as so inherently mystical. However, in some ways this is

more an issue I have with the general language of certain restorative justice

practitioners, instead of just Umbreit himself.

My final objection to Dr. Umbreit is that the last fifteen minutes of his

presentation was him playing a video of himself speaking. As someone with a

performance background I completely appreciate the value of a really excellent

presentation and understand wanting to show the best version of your work to someone.

That said, it really sucked the energy out of the room. I can watch a video of him

speaking online (presumably), I came to a symposium for the human connection and

dynamic element that comes from occupying the same space as another person. I guess I

also value humanistic connection.

The next speaker was the keynote speaker, Dr. Fania Davis. I didnt realize until

she started speaking that she was the sister of the famous Angela Davis, which got me

even more excited for her presentation. However, I also found this one somewhat

overwhelming. Dr. Davis mostly spoke on her Oakland program, which uses restorative

techniques to reintegrate juveniles that have been incarcerated back into their school

and community. This is a fascinating program and a heartwarming use of restorative

techniques. However, it also does not really live up to the title Restorative Justice: A
Relational, Healing, and Radical Justice. Dr. Davis showed an even longer video

during her presentation, nearly 20 minutes. It was an in-depth demonstration of how the

program worked in practice. This was very interesting, but again, I was hoping to hear

her speak more. I feel that the title of this talk promised some in depth discussion of

how to improve our current justice framework to be more restorative. I have the utmost

respect for Dr. Davis and her work. The program in particular seems wonderful because

it is so focused on engaging community members and giving them a stake in a young

persons future. It is an excellent manifestation of the classic aphorism about how a

village must raise a child. I feel disrespectful questioning her. But I feel how I feel, and

I am curious to hear how Lynn and Marissa and other JLSP people feel about how these

speakers have been. It also doesnt help that I have trouble focusing on videos and much

prefer live speakers.

I missed the next panel due to class; it was the only part of the day that I missed

and I am disappointed that I had to. However, I was back in time for the follow -up,

which was about restorative yoga. I enjoy yoga but rarely make time to do i t, so this was

very exciting. Plus, its always good to move around after a day of sitting and listening.

The presenter, Catherin Ashton, did an excellent job of engaging us. I personally

enjoyed the elements of contact and emotional intimacy with the stra ngers around me,

though I know that that is not for everyone.

My favorite part of the symposium, without doubt, was the circle at the end. I

was so enthralled by hearing all of these different people speak about how they applied

restorative principles in their lives and in their work. Everyone was so dynamic and so

full of hope. The first to speak in depth was Rep. Juliana Stratton. She is an Illinois
state representative who wants to bring restorative frameworks to governance and to

represent a restorative district. I am deeply committed to prison reform, and I found

her story of the inmate Maria very moving. Maria said, I was in prison, then I went to

prison, then I came home to prison. Stratton is clearly very aware of the environmental

and institutional factors that play such a role in our mass incarceration problems. The

fact that she wants to organize circles across her district also speaks to me very

powerfully. Finally, I found her story of making headway with the rural conservative

legislator on the topic of prison reform inspiring, even though I am somewhat cynical on

winning the hearts and minds of many in this country.

Marissa and Lynn spoke so movingly about their mindset on circles in law school

and beyond. Its so pleasing to see the people I meet with every week being a part of

this process and engaging with so many varied stakeholders. It was wonderful to hear

from Quentin about his experiences with Lynn.

I also found Robin Robinson very intriguing, because one doesnt usually think

of the CPD as having restorative practices. But she made a strong case for their value

and argued convincingly that she is making headway in implementing them. I definitely

was glad to hear about that. Distrust of law enforcement is well -warranted in our city,

but it is also disruptive to the rule of law. I read a story recently about a woman who

died from a gunshot years after it happened. She was so disillusioned from a lifetime of

experiences with the police that she never cooperated at any point to help them find out

who shot her, even though the shooter was a stranger. I hope that people like Ms.

Robinson can do more to make the police worthy of citizens trust.

 Reverend Ramirez spoke more generally about love and the process, which I do

value a lot. Its clear that he means it when he says love is key. Circling is one of the

most important things Ive learned about in this class, and it was wonderful to see such

a moving demonstration by such skilled practitioners.

The closing was touching. Im really glad I could spend my day doing this. I

dont know when Ill have a chance to go to something this emotionally and

intellectually stimulating after law school.

Nicholas Kelly
Mediation Practicum Journal
Entry 8
Mediation 6
04/07/2017

Today, I mediated at the Daley center again. I spent spring break in Chicago,

partially in order to mediate. However, I had three trips out to the suburbs and none of

them resulted in a mediation. That was extremely frustrating, as it takes a lot of time to

get out there. Frankly, Im beginning to grow skeptical of the claim that the Daley

center is a less reliable source of mediations than the suburbs. I only have my own

experiences and those of the people Ive asked, but it seems that many mediators go out

to the suburbs and repeatedly get nothing. Given that we need to get just under one

mediation per week, this is difficult for someone like me who has classes that make

some days untenable as mediation days. However, one way or another Ill get them

done, and I can always mediate during finals week if necessary. Luckily, on some days

like today, you get two mediations. Both of my cases today were worthy of journaling

(for very different reasons), so Im going to write about each of them in successive

entries.

My first mediation this week might set some sort of record for shortest

mediation, or perhaps mediation with the least progress (as measured by advancing

through the mandatory steps of mediation). My mediation ended before the parties

signed the CCR policy statement. It was a landlord-tenant dispute, and the landlord,

Elizabeth, was extremely agitated almost as soon as we started. When I checked that the

parties had authority to settle Elizabeth began quite loudly announcing that she was not

here to settle, she was here to get the tenant, Moira, out of the apartment. I eventually
had to essentially interrupt her to explain that I was only asking about authority and to

let her know she didnt have to settle or do anything else if she didnt want to. This

process repeated itself at least three more times trying to get through my introductory

statement.

I have never been comfortable with interrupting people. That discomfort is

confounded when Im dealing with a pair of women who are significantly smaller than I

am. I dislike anything that smacks of aggression, and interrupting Elizabeth or doing

anything else to dominate the room felt very uncomfortable for me. Furthermore, when

being harsh as a mediator, one must always be mindful of the potential to come across

as biased. For this reason, I probably let Elizabeth rant too long, which eventually led to

a rather surprising event: the judge came to check on us.

I dont know if the judges clerk and deputy were absent or if she wanted to

attend to the disruption personally, but the judge came and knocked on the door of the

conference room we were in. She told us we were disrupting the call and that we had to

be quieter. I was mortified that I had let the mediation get to the point where a judge felt

the need to personally involve herself in shutting us up. First of all, I would never want

to do anything to damage the relationship between CCR and the courts. I know its a

long running program that is supported by the court system overall, so I dont imagine

that anything I can do or fail to do will seriously impact it. Still though, I know when

Im mediating Im there not just on behalf of myself but on behalf of CCR.

Furthermore, no future lawyer wants to do anything to irritate a judge, even though the

odds of it impacting me down the road are slim to none. I was very stressed about how

to handle the rest of the mediation. However, that never came up. The last thing
Elizabeth had been yelling in response to before the judge arrived was my mentioning

that mediation was optional. She said if it was optional she was leaving, and then the

judge came in. After the judge left, Elizabeth said she still wanted to leave, and I was

unable to change her mind or address her concerns.

What was particularly frustrating about this interaction is that Elizabeth in some

ways was actually a perfect mediation candidate. A few times when she interrupted the

introductory statement, she said that she had points she was ready to compromise on.

While insisting that she was not there to settle, she also said that she was willing to

waive some of the back rent in exchange for getting Moira out of there as soon as

possible so she could rent it further. She had clearly spent some time thinking about

what her real interests were and what portions of her position were amenable to

compromise. She was being more upfront about that relative flexibility than almost any

other party Ive dealt with. That is what made her aversion to having a conversation so

frustrating. Some people cant or wont budge on anything and are thus unlikely to get

anywhere in mediation. But a party who knows whats important and (more importantly)

what is not so important to them will be able to get farther in the process. However, that

awareness of interests is not enough, as Elizabeth made clear. If youre not in the right

mindset to have a discussion about your priorities, then knowing what they are doesnt

solve anything. It was clear there was a lot of underlying emotional content in this

dispute. A few things that Elizabeth said even made me think that they might be related

somehow, though the early termination made it impossible to confirm that.

 I still feel like I could have handled this better, possibly by being more assertive.

Next time we have class Im going to ask my fellow mediators for their thoughts on all

of this.
Nicholas Kelly
Mediation Practicum Journal
Entry 9
Mediation 7
04/07/2017

My second mediation today was between a brother (Ricardo) and a sister

(Miranda). Miranda owns their childhood home, where Ricardo lives. It passed to

Mirandas possession after their mother died about two years ago. Since then, Ricardo

has not been paying his rent consistently and Miranda wanted to evict him. Ricardo

didnt want to leave, both for sentimental and practical reasons. Ricardo is on parole, so

many public assistance options are unavailable to him or are difficult for him to access.

In addition, he is diabetic, which makes it difficult to work and he has only a little

disability income. Therefore, he really wanted to find a way to stay in the house if at all

possible. Early in the mediation, both parties were quietly crying. Not that it matters,

but it was clear that Miranda had come to this point reluctantly.

The dynamic between these parties was interesting because while it was

emotionally fraught and they were in conflict, they were clearly very close. They

arrived together, and when Miranda couldnt find her reading glasses for the policy

statement, Ricardo offered to read the form to her. He also offered to fill out her contact

information on the half sheet. While my certification involved plenty of family heavy

disputes, I didnt expect to see as many in small claims court. I know that family

members sue each other, and I am well aware of the position of courts as the dispute

resolvers of last resort in our society, but still I didnt expect it. Frankly, its probably a

function of a fairly privileged upbringing. Ive never been around the kind of strife that

leads siblings to sue each other. I certainly dont disapprove, I fully believe it is
sometimes necessary. I just need to remain aware of my own privilege in handling

cases.

The parties did reach an agreement that was not too different from what they

seem to have had prior to the law suit. The primary differences were that this agreement

spelled out a formal method of rent collection (time, payment form etc.) and that

Miranda knew she could get an immediate order to vacate Ricardo didnt comply.

Miranda had these deeply conflicting needs: she had to get the money to cover the

maintenance and expenses of the house, but she also wanted to look out for her brother,

especially considering his limited ability to care for himself. She also implied that

Ricardo may have conducted some of his criminal behavior at the house in the past; she

was concerned that this would continue in the future, in which case she did not want

him living there. However, he persuaded her that that was not the case.

This was the first time Ive felt a strong need to reality test both sides to a

potential agreement. I had no doubt that both sides were invested in success, and it was

clear that Ricardo wanted so badly to make this work. However, that was all true before

they got to the point of having a law suit to enforce their rent agreement. So, I probed

and asked about what had led Ricardo to not pay his rent in the first place. It seemed

like the greatest issue was that if he didnt pay the rent right when he got his disability

check, then he would spend it irresponsibly. Ricardo and Miranda had never previously

agreed on exactly when or how rent would be paid, and that was the biggest problem.

This agreement specified the second of every month. Miranda will come to the house to

get the rent from Ricardo in cash and will give him a receipt at that time. He offered to

make it money orders, but Miranda didnt want him to have to pay the processing fees
every month. That was kind of her, because the extremely low rent that they agreed

upon was still about 40% of Ricardos income. I pressed to make sure that Ricardos

budget could handle this consistently, and he maintained that it could.

I am ambivalent about this agreement because I still have my doubts on its

plausibility. Given how affectionate and compassionate Miranda w as towards Ricardo, I

can only imagine that there were many instances of rent issues prior to this suit. If thats

the case, will he really be able to stick to this new agreement? At the same time, they

both wanted to sign the agreement. This is the first time where Ive felt I had to reality

test an agreement against both partners. I almost wish I could see into the future and

find out what happens at their status hearing with the court this summer.

In retrospect, it makes sense that these parties would be almost concerningly

quick to agree. Neither of them wanted to be there, across the table from their beloved

sibling. Its clear they wanted to find a resolution and get out. I just hope I did enough

to reality test what was agreed to. I know at the end of the day it is on them to keep the

agreement, but I feel very responsible for the possibility of an agreement I oversee

falling apart, absent some sort of unforeseen circumstances. I spent all this time

frustrated that I wasnt getting any agreements, and now that Ive gotten another I just

feel skeptical and uncertain. Thats funny in a way, but educational in another, more

significant way.
Nicholas Kelly
Mediation Practicum Journal
Entry 10
Mediation 8
04/21/2017

This is my final mediation-reflection journal entry. Its hard to believe Im

already at eight. This case, like so many cases, was frustrating. It involved the starkest

wealth disparity Ive ever seen between two parties. The initiators, Sebastian and his

wife Julianna, were suing Michelle for damage Michelle did to their car during an

accident. Michelle was undisputedly at fault, but did not have any insurance at the time

of the collision. Michelle was also a student at a public university living in s ubsidized

housing and earning less than $500 a month on work study, without reliable hours. She

was willing to pay the damage to the car, but couldnt pay more than about $200 per

month. Unsurprisingly, Sebastian and Julianna were not satisfied with that r ate of

repayment.

Sebastian was the only one of the initiators in the room for a majority of the

mediation. Julianna was parking the car, and didnt arrive at the conference room until

more than twenty of the thirty minutes in the mediation had elapsed. This was good in

some ways because it limited the degree to which Michelle could be ganged up on .

Sometimes I find that a second person on one side or the other can temper their

companions harshness, but Julianna and Sebastian were essentially in lock ste p on their

positions. On the other hand, strictly speaking Julianna should have been the one there,

since she was driving during the accident. I decided to proceed anyway, because there

was no dispute over the facts of the accident. Everyone agreed that Mi chelle had caused

it and was fully at fault, so it didnt seem important to have Julianna there if she was ok
with having her husband be there in her stead. Generally, though, parties should really

make sure that they get to court on time and give themselv es time to park. Sebastian

mentioned working downtown, so its not like he doesnt know about traffic .

Sebastian and Julianna were clearly middle class or higher. The car in question

was expensive, which is why minor repair would still cost $1400. Sebast ian kept making

references to property purchases he was planning to make, and said that this cash

shortage was making it hard for that to proceed. He also complained of having to wait to

get the car fixed. He said he had insurance, but didnt want to have to pay a potential

premium increase; he didnt think this was at odds at all with his complaints about not

wanting to wait to get his car fixed.

The wealth disparity permeated the discussion. Sebastian and later Julianna

seemed to have trouble grasping the difficulty that Michelle would have paying them

back at the rate they desired ($400 per month). Even when we broke down Michelles

budget, they were unpersuaded. I tried to reality test with Sebastian; I asked him what

would happen if he got an order that Michelle couldnt actually pay. He agreed shed

probably default, and then hed probably have to file again to get it enforced. He even

agreed that it might take longer overall than just going with the payment plan she was

proposing or trying to negotiate it some more. But he maintained that he wouldnt budge

on his number. He said that if she didnt pay and he sued her she might get her license

suspended

What really surprised me was that at one point Sebastian revealed that hed been

in a very similar situation to Michelles as a young man. Hed damaged another car in

an uninsured accident and lost his license. He was about to enter the military at the time
and had to get the situation fixed when he got out. However, this didnt lead him to

sympathize with Michelle. Instead, he said that since hed recovered from that situation

and gone on to become successful and earn more than $100,00 a year, clearly this

wasnt going to pose too much of a problem for him. This was a new issue for me.

Usually I see people just not respond to flip-siding because they dont relate to the

scenario. Sebastian just didnt agree that it was necessarily a problem. Ill admit I was

somewhat flummoxed on this point.

I shouldnt be too negative towards Sebastian and Julianna, having to wait

several months to be made whole must surely be frustrating. But its also frustrating to

watch a party in a negotiation insist on terms that are just not practicable for the other

party to meet. They seemed to be negotiating in good faith, but they just couldnt accept

that they were effectively asking the impossible. I still feel like I should have reality

tested further. However, Sebastian and Julianna clearly put a lot of thought into their

figures, so it may just be that they couldnt bring themselves to accept more, regardless

of what I said to them.

I wish I knew more about insurance, but I havent ever owned a car. I felt like

there was room to reality test Sebastian and Julianna on their refusal to use their

insurance and how the judge would interpret that, but I also was concerned about losing

credibility with them if I asked questions they knew were baseless. Its clear that I still

have plenty of learning to do.

Nicholas Kelly
Mediation Practicum Journal
Entry 11
Interview
05/07/2017

I interviewed Gail Eisenberg, a lawyer at the firm where I may be clerking this

summer. Stowell and Friedman is a plaintiffs employment firm. They handle many

discrimination cases. Gail has only been there eight months, but she has had three

mediations so far. I decided to interview her because she previously worked in big law

and I thought that it would be useful to hear about her transition into a practice that

incorporated mediation and her thoughts on it so far. Her relationship with mediation

and her work as an advocate in mediation is still developing.

Gail has had a mediation in a race discrimination case, a gender discrimination

case, and a veteran-status discrimination case. One of those cases was done with a

private mediator before litigation commenced, the others were mediators assigned by

the magistrate judge who was overseeing the pretrial procedure. Gail says that generally

the magistrate mediations are more common because a law suit has a way of getting

people into the room. When she has gotten a private mediator, it was through JAMS.

She says in all cases her mediators were nice old white men. She definitely recognizes

a diversity issue in the profession and credits it to the fact that so many mediators are

retired judges.

Gails prior job was a big law litigation associate. She never thought much about

mediation before starting this job; she says that her old firm generally employe d a

highly adversarial mindset and shes not sure how well mediation would have worked.

The negotiations that did occur tended to take place over long stretches of time rather
than all at once, and she said it was hard to guess how a condensed discussion like

mediation would have gone. Also, a lot of cases were really old financial disputes, and

in her estimate the parties tended to be very entrenched.

Gail says the biggest difference between advocacy in court and advocacy as a

mediator is the performance element. Clients are absent from most pretrial events,

including many negotiations. When your client is there, you need to act a certain way to

manage their emotional needs. You also need to be comforting. In light of the potential

for emotional drama, Gail finds that the mediations she goes to are almost entirely

shuttle-caucus mediations. There may be a crosstalk at the beginning for the plaintiff to

make a statement, but then the parties separate. Sometimes the lawyers and mediators

will meet without their clients, which I found very interesting. Gail noted that in the

context of discrimination law the stakes are particularly high because many defendants

are resentful at being accused of harboring or enabling bias. You can avoid these

emotional reactions by having the mediator present the other sides positions in a highly

neutral way. In generally, Gail finds that mediators with a judicial background are more

evaluative; what shes looking for will depend on the goals and on the case. A very

helpful service that mediators offer is mediators proposals, because they can really help

stimulate settlement discussions.

Gail says that her big take away from her mediations is the emotional element.

Sometimes the zealous advocacy of the courtroom can be overkill in mediation, because

youre trying to elicit an emotional response from the other party that will be sooth ing

to your client. You need to strike that balance between being your clients champion and

being their comforter.

 When I asked Gail for her final thoughts on mediation, she said mediators are

expensive, court is way more expensive. She appreciates th e potential for efficiency

and that a client wont have to relive and engage with their trauma over and over for the

years a court case can take to resolve. She definitely appreciates everything it offers to a

lawyer in her field.

Nicholas Kelly
Mediation Practicum Journal
Entry 12
Final Reflection
05/10/2017

I finished my final mediation a few weeks ago, but I decided to write this journal

entry on the very last day because I wanted as much time as possibl e to think about this

semester and the progress Ive made.

First, the bad news. I was kind of hoping to become a really great mediator, and I

dont feel like Im there yet. Ive improved a lot, and Im so much more comfortable

around conflict, but I still feel very stiff. As much as I criticized Dr. Umbreit in my

journal entry about the symposium, I do often feel the limitations of a stiffer mediation

process and wish I felt more comfortable with my instincts. Obviously CCR has its

required model, but I still know that I can, and hopefully will become more fluid in that,

so that I dont need to constantly check my binder. At the end, I guess my

dissatisfaction comes from the fact that I dont have too many cases where Im

confident I made a positive contribution. I dont think I messed anything up too badly,

but ideally, I want to leave the parties better than I found them. By that I mean that I

want to have at least prompted them to think some more about their needs and interests

and maybe help open up communication between them. There are a number of cases

where I am not confident I did that. Looking back, I see that my go al was to help people

reach good outcomes. I definitely did that in some cases. In other cases, like my five-

minute mediation, that probably wasnt possible. However, there are cases in the middle

where I feel like a better mediator could have done a better job.
 Part of the problem is that I meet so many talented people in this program. Some

of my peers are just phenomenal. Furthermore, we have such talented instructors and

speakers. I know that comparing my success in the short model to other peoples

outcomes in the long model is misguided, but there I am. We had so many great role

models in this course, with all sorts of different practices.

The good news is that I do believe that my skills have improved significantly.

Im much more mindful and present in the moment than I was at first. That is a big win

for me, as my mind has an awful tendency to wander. Furthermore, I am infinitely more

comfortable identifying needs and interests. Ive started to employ some mediation

techniques in my personal life, and I think theyve improved my communication

significantly. Ive also just used some insights. If Ive learned anything from mediation,

its that what people are asking for is rarely what they want. In light of that, I have

become more conscientious about determining the root of my own desires and trying to

frame my requests in those terms. Being a mediator doesnt make me more emotionally

intelligent than anyone else, but it might make me more aware of how emotionally

dumb many people can be, myself included. In terms of my own progress this semester,

Id give myself an 8/10. I feel like Ive grown a lot, but that I can also grow much more.

I plan to stick around Chicago, so hopefully I can keep on mediating and keep growing.

Beyond my own personal growth, this class has helped me a lot this semester.

Law school can be lonely. I dont have a lot of school friends and I broke up with my

long-term partner last fall. Ive got a good social support network, but most of them are

not very helpful on law school specific issues. Having this group to talk with about my
problems and fears has been invaluable. I feel like Ive grown much closer to the people

in this group and that theyve done so much for me. Ill always appreciate that.