“Community mediation grew out of the civil rights movement, the idea being that you open up access to justice to everyone, by going into communities and helping people to resolve disputes. You are giving them tools to resolve their disputes as early as possible”
Judith is a Harvard-educated lawyer, ADR professional, certified mediator by the Supreme Court of Florida, serves on the Florida Mediator Qualification and Discipline Review Board, is an arbitrator with FINRA, and is on the AAA Mediator panel. She served as a chief legal officer for two federal agencies, namely Financial Crimes Enforcement Network, and Pension Benefit Guaranty Corporation where she founded a mediation program. On top of that, she served as a lead mediator with Federal Shared Neutrals Program and is currently membership chair of the Dispute Resolution Section of the American Bar Association, having previously served as a co-chair of its Mediation Committee. Judith is currently based in Palmetto, Florida, the US where she co-founded one of the first Community Mediation Centers in the state. Judith is also a co-author of the report on Alternative Dispute Resolution in Federal Agency Administrative Programs published by the Administrative Conference of the United States on how to improve federal agency ADR practices.
At the end of 2019, Judith decided to retire early from the federal government and moved to Florida, where she started mediating – unfortunately, her local career was disrupted by the COVID19 pandemic. Thankfully the courts reopened with the remote court and mediation within a couple of months, and since she was already proficient in using zoom for mediation purposes, she was able to conduct around 500 online mediations over the next two years. Speaking about local mediation types, Judith says that “in Florida, the most important of all the principles of mediation is party empowerment or self-determination; it is very respectful. Not everything that is in court should be in court though, and there are real imbalances of power between creditors coming in with their lawyers, and people that are not represented.” She notes that the most complicated are landlord-tenant situations, resulting from Florida being a pay-to-play state. What that means is that if you are a landlord and your tenant is not paying, you can bring them to the court pretty quickly. Tenants, when they do not pay the money, are facing not only losing in court but also being defaulted. There is no real opportunity for mediation unless there is a dispute about something else than the rent. At some point, Judith realized, that in those cases there is a need for action before the conflict reaches the court, and the opportunity to benefit from alternative dispute resolution for everyone. Earlier this year, Judith joined Mediators Beyond Borders International, being impressed with the programs offered. She hopes the organization members can collaborate more with the American Bar Association.
The adventure with community mediation started in early 2021, when Judith received a message from a fellow mediator, inviting her to discuss the possibility of establishing a community mediation center. “Community mediation is something very new in Florida, our work focuses mostly on the outreach, it’s not established, never been done here before. Since we are one of the first two centers in Florida, it is important to spend time meeting with the local community, and talking to them about what we do, so people can understand what community mediation is, and how it can help and complement what they are doing.” Judith explains. As she recalls, one of the biggest problems with establishing the center was understanding community needs and connecting with communities that needs its help. The National Association for Community Mediation provided both a small grant and and invaluable technical assistance, such as recommending that the center organizers hold listening sessions with organizations and leaders serving the local community. Judith and her fellow organizers held three listening session with representations from two dozen organizations, which was a great education in community needs. In the summer of 2021, the center officially got incorporated, and the campaign to advertise its mission to the local community was launched. In May 2022, Judith was a panelist at the United Way Affordable Housing Summit, where she talked about how mediation and other kinds of alternative dispute resolution can help tenants and landlords work things out early before everybody gets into the court – those cases, between landlords and tenants became the main focus of the center. Another significant achievement was signing a memorandum of understanding with Jewish Family and Children Services to provide mediation services to their clients. “We are very brand new, virtual, and 100% volunteers,” Judith says. The center is trying to identify and get involved wherever its services are needed. In 2022 the center provided a lot of training, for example, conflict management training sessions for 100 case workers, and a number of presentations on the topic to organizations throughout Manatee and Sarasota counties.
Theory vs Practice
“When I graduated law school, I knew I did not want to be in a private practice, focus on making money, and work for corporations. I wanted to be in the government because I felt like you can build up a law that helps people, protects them against fraud, criminals and terrorists, protect their pensions. I felt like I could throw myself into those things, I could believe in it.” When Judith started her career, she thought that the adversary system was great, the theory that is being taught in an American law school is that the clash of opposing viewpoints leads to the truth. Things in the court work a little bit differently. It works for the government when someone wants to establish principles of law, but it is very slow and expensive. The fact that it is adversarial means it is very stressful, and since conflict is already highly stressful, a system that says “you are adversaries”, that just ratchets the stress up. When Judith was a litigator she was excited, but the more she saw, she thought that it might work, but started asking questions how many people want to spend 5 years establishing a principle of law? Why does anyone want to increase the stress level of people who are already stressed? While mediating for federal agencies, she observed that everybody was so stressed out. The charging party because they felt they were right, the charged party because they could not believe what they were being accused of. It took a while just to get the emotions down.
“Being able to do that, that was one of several “aha!” moments. As I was working on putting together my program for the Pension Benefit Guaranty Corporation, researching mediation and dispute resolution, I thought “hmm… this is a lot better.” A couple of years before retirement I thought that I can retire early, and I can just do this. My second “aha!” moment (after retirement) was doing mediation counseling on Zoom, seeing what could work in court and what could not. Some cases could not work for several reasons. Especially in the landlord-tenant cases, I thought that the courts are not for them. Those are the cases that made me think about doing things differently.”
Speaking about obstacles on Judith’s way, the first was getting her PBGC mediation program established. People were very skeptical about it. When she suggested putting together a new program it was a change for her to go in and convince them with data that there is a viable alternative, and that having a mediation program would be a good thing. She worked very hard and is proud of it because it did improve relationships. The second obstacle, after retirement, was being able to get a good Zoom practice going, and work with some very hard cases, people who did not like Zoom and were very nervous. Being able to work with them, and be empathic. Judith also recalls that when starting a new community mediation center, everything is an obstacle. Just making sure that people understand what the center can do, when it can be done, and dealing with lack of understanding. “Educating, networking, pushing past comfort zone, do presentations. It was initially a little bit scary, but it is wonderful when people do see the value of learning how to manage conflict constructively.”
Benefits of Online Mediation
Coming back to the topic of mediation during the COVID19 pandemic, Judith admits that it is different looking at each other through Zoom than it would be while sitting next to each other, but like anything, it is a learning experience. She always had to use zoom for ABA, since the members are all around the country and this is the only way they can communicate regularly (outside of annual conferences). Judith likes Zoom and thinks some cases do better in person, but we can learn to read people online too. If you are in the breakout room with somebody, in a case of high emotion, then you are going to learn everything too. Something that she finds especially important about Zoom, is eliminating geographical boundaries which allow to mediate with people anywhere, bring people together from anywhere, and that saves enormous amounts of time and money. “In my mind, the best possible world would be a hybrid, where people always have a choice. There are challenges, but I think those can be overcome, there is always a way to cope with that. I was very concerned about remote mediation, but it gets easier over time.”
Article by Maciej Witek, MBBI Writer