Lawyer Monthly - March 2022

EXPERT INSIGHT 47 MAR 2022 | WWW.LAWYER-MONTHLY.COM About Ann D Carey Ann D Carey graduated cum laude from the University of Delaware and two and a half years later received her JD from Delaware Law School. She is licensed to practice law before the bench and jury in six states, federal and appellate courts. Two of her cases have gone to the Delaware Supreme Court and one to the US Supreme Court. Ann is certified in alternative dispute resolution, Christian counselling and conciliation, and has served as a mediator and arbitrator for court systems as well as the legal, professional, local and Christian communities. About Delphi Dispute Resolution (DDR) Delphi Dispute Resolution (DDR) was founded by judges who know the value that neutrals can bring to a matter and the challenges that courts face. The DDR team includes former judges and prominent attorneys specialised in bringing prompt resolutions to even the most difficult cases. DDR brings decades of judicial and litigation experience to assist with disputes. Ann D Carey Mediator Delphi Dispute Resolution Services Tel: 1-800-759-8917 E: Identifying and mitigating a power imbalance When interviewing or questioning someone, try to identify potential triggers. During mediation in closed sessions, ask questions that will gather important and significant information. Do not ignore risk indicators or expressed fears. A party may suffer PTSD and react strongly under certain conditions. We all ought to be trauma-informed, perceptive listeners. If we fail to be reasonably informed and evaluate the potential challenges, the harm to the receiving party may be irreparable. Depending on the issues, sometimes men and women listen on a different wavelength. During a conflict, a woman’s presence may offer a sense of comfort and security to a female party seated at a table of all men. I have observed this in both business and religious venues. When a possible power imbalance is identified, be smart! Calculate the potential risks. Is there danger of physical, emotional or financial harm? Co-mediation is an option to provide a balance to the parties. At times, men and women make different observations about behaviours that may be important. Create a management and safety plan appropriate to quash any unfair treatment against the disadvantaged party. Think it through. Would it be safer or provide a better result for the disadvantaged party to seek justice through the court system? If so, make that recommendation and provide options to consider for security. The goal ought to be equal treatment and a fair, reasoned and balanced result. What is best for the parties. ADR offers an amazing opportunity for civil litigants to have a voice in their own settlement of the dispute. Personally, I have had judges call me and ask me to “get this case off my desk!” One of these particular cases was a medical malpractice dispute filled with drama. The fear that the complainant carried around was greatly minimised when we entered into ADR. Most of her angst and fight strategies were driven by her fear of the power imbalance in the room. She used her anger to appear stronger in an effort to defend her position. She wanted validation; what happened to her was important. I listened, and I questioned her gently. At the same time, by asking pointed questions that redirected her thinking, I was able to challenge a few of her accusations. In the end, the parties reached a settlement in mediation. Truly, I believe it was simply because I listened to her pain and anguish over the events. In conclusion, it is incumbent upon us to evaluate the best options for protecting a disadvantaged party. When the dispute resolution forum or tribunal provides a measure of physical and emotional safety and security, it creates a remarkable opportunity for a fair and just resolution to the conflict. That is our goal.

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