A quality mediator needs to have expertise in facilitating communication and decision making, being a process expert.
Substance vs. Process
There is a continuing debate about mediator qualifications, about what it takes to be a good mediator. The question is, “Does a good mediator simply need to be an expert on the Process of mediation, executing the procedure or task well, or does a mediator need to also understand or even be an expert on the Substance or subject matter of the dispute?” The answer to this question depends on the role of the mediator; what is the mediator’s central task? The role of the mediator is determined by the foundational elements of mediation – the Definition of Mediation and Mediator Ethics. Once we understand the role of the mediator, we can determine the qualifications needed to fulfill that role.
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Last spring, Director of the White House National Trade Council Peter Navarro responded to a question about the risk of imposing unilateral tariffs saying, “I don’t believe any country is going to retaliate for the simple reason that we are the most lucrative and biggest market in the world. They know they’re cheating us, and all we’re doing is standing up for ourselves.”
Eight months and several rounds of tariffs later, the U.S. and China have failed to come to an agreement on trade between the two nations. While U.S. and Chinese leaders have expressed their interest in reaching a deal at the G20 Summit in Argentina on November 30, a lack of progress on key issues makes a cease-fire increasingly unlikely.
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The ethical pitfalls of non-disclosure agreements have received renewed attention in the wake of the #MeToo movement. Less frequently discussed — but equally problematic for prosecuting sexual harassment and other employment cases — are agreements that prohibit individuals from serving as witnesses in other cases. As Paul Simon (or, depending on your musical sensibilities, perhaps Disturbed) would tell you, “silence like a cancer grows.” Not only is a defendant able to avoid liability for conduct with the settling party, but the defendant may be able to frustrate other attempts to hold it accountable by depriving other plaintiffs of evidence and testimony of previous acts of assault, harassment, discrimination, etc. The next plaintiff is left to walk alone.
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The Wednesday after Hurricane Florence left the state, Smith Debnam partners gathered for their monthly lunch meeting, normally chaired by the law firm’s managing partner, Jerry Myers. Many learned then that Myers’ absence resulted from his accepting a higher calling — delivering supplies in his small airplane to Eastern North Carolina charities.
In this day of drones and helicopters, small planes landing on short runways provided a much needed service to the hurricane survivors. With hundreds of roads, including I-40 and I-95, flooded and closed to delivery trucks, the federal, state and local governments set up shelters, conducted rescues, and assessed damage on a larger scale. But, for the day-to-day lives of most of the population, thankfulness for survival melted into desperation to return to normalcy. Cash does no good when there are no stores open, or no stock on the shelves.
Want to help Hurricane Florence survivors? The North Carolina Disaster Legal Services pro bono program needs volunteers. Find details at ncbar.org/florence.
Smith Debnam Managing Partner Jerry Myers, an NCBA member, stuffed his personal airplane with supplies for Hurricane Florence survivors and flew them into isolated areas after the storm.
Yet there were able-bodied locals who could help deliver bottled water and supplies to people in need. Help with the “who-needs-what.” Recognizing the missing link, Operation Airdrop flew into action after Florence. Connecting the donors, and the donated goods, to charities with volunteers to deliver the donations had been done before in Houston, after the similar disaster from Hurricane Harvey in 2017. A Texas non-profit, volunteer led group, Operation Airdrop is a loose organization of pilots and small airplanes which sought and coordinated volunteers through the internet. Call it a “pop up,” with no true existence until the need arises, Operation Airdrop denotes itself as a “week one disaster response organization.” And, after Florence, the need arose in North Carolina.
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Equitable Distribution, COAA818-11o, Sept. 4, 2018
Thomas Steven Henson v. Robin Black Henson
Cabarrus County
After an equitable distribution hearing, Defendant/Wife (“Wife”) was awarded the value of $51, 524.00 contained in a SEP IRA, which was the value at the date of separation. The SEP IRA had gained $30,000 – $40,000 of passive gains from the date of separation to the date of trial. The court declined to award Wife the passive gains, and only the date of separation value of the SEP IRA.
Wife appealed but did not challenge the trial court’s distribution of the SEP IRA in her appeal.
On June 6, 2017, the COA filed an opinion affirming in part and reversing and remanding in part the trial court’s order. The mandate was issued on June 26, 2017.
On June 2, 2017, four days prior to the court’s opinion, Wife’s counsel sends Husband’s trial and appellate counsel an email of a Domestic Relations Order (“QDRO”) which conveyed the entirety (rather than just the date of separation value) of the SEP IRA account to Defendant Wife.
Here is where it gets interesting: On June 15, 2017 – Counsel for Wife submitted the proposed QDRO to the trial court along with a ‘Verification of Consultation With Opposing Counsel” indicating that Husband’s counsel has not responded, and this proposed judgment/order is submitted for your consideration.” The trial court entered Wife’ s proposed QDRO on June 20, 2017. Important to note that Wife’s counsel also submitted to the trial court a “read receipt” of the email which indicated that counsel for Husband read but did not respond to Wife’s counsel’s email.
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Scholarships are available from the Family Law Section of the North Carolina Bar Association to NCBA members who are members of the Family Law Section and who wish to take the “2018 Essentials of Family Law” CLE on Nov. 1-2, 2018.
An eligible recipient is any Family Law Section Member, in good standing, who: (1) has been practicing law for three years or less; and (2) devotes at least 50 percent of his or her practice to Family Law.
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This week is Duke Law Tech Week, and we’d like to invite members of this committee to take part in some of our events. Here are three that may be of interest. The first two require pre-registration. The last is online only and does not require registration.
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Is there a member of your firm or a fellow attorney who should be recognized for his or her pro bono service this year? Have you participated in pro bono projects throughout the year?
If so, please consider submitting a nomination for the 2018 Bankruptcy Pro Bono Award!
The Pro Bono Committee for the Bankruptcy Law Section is now seeking nominations for the 2018 Pro Bono Award to be presented at the 41st Annual Bankruptcy Institute in Pinehurst Nov. 2-3. The outstanding individual achievement award will be given to at least one Bankruptcy Section member who has actively participated in pro bono activities during 2018. All nominations must be submitted by Friday, Oct. 19, 2018 to Rebecca F. Redwine ([email protected]). Please see the nomination form that can be downloaded via this link for more information. Self and third-party nominations will be accepted. We look forward to honoring this year’s award winner in Pinehurst!
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On July 18, 2018, the EU Commission released a Press Statement,[1] announcing that it had fined Google €4.34 billion (approximately $5.1 billion) for illegal practices concerning Google’s Android mobile operating system. This is a record fine imposed by the EU Commission, and probably a milestone in a series of antitrust fines against U.S.-based technology companies.[2] The Commission also ordered Google to alter its practices within 90 days to comply with EU antitrust law and announced that the company’s failure to do so would result in penalty payments of up to 5 percent of the average daily worldwide revenue of its parent company, Alphabet.
The Commission concluded, “Google has imposed illegal restrictions on Android device manufacturers and mobile network operators to cement its dominant position in general internet search, since 2011.” This is similar to a Section 2 violation of the Sherman Act.
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