Mediation safety in spotlight after Arizona shooting

A settlement conference aimed at ending a court conflict unexpectedly turned into a scene of death in Phoenix in late January. The bloody outcome of that meeting has prompted many alternative dispute resolution professionals to take a second look at safety procedures.

As details become available about the Phoenix incident, it appears there were few signs of trouble when an Arizona court appointed lawyer Ira M. Schwartz as a judge pro tempore to conduct a settlement conference in a business dispute.

A business owner had hired Arthur Harmon’s company to refurbish office furniture. Problems developed with the work and a dispute about money led to a lawsuit. The court asked Schwartz to hear both sides and to try to work out an agreement to avoid trial.

The mediation session took place at Schwartz’ law firm. According to police records reviewed by The Arizona Republic, Schwartz kept the two sides apart.

Harmon, 70, did not have a lawyer, but he brought members of his family with him. His adversary, businessman Steven D. Singer, was represented by Phoenix attorney Mark P. Hummels.

For 50 minutes, Schwartz shuttled offers and demands between the two groups in separate rooms. When it became clear Harmon was “unwilling to negotiate in good faith,” the newspaper reported, Schwartz concluded the session and asked Harmon to wait to fill out an evaluation form.

Harmon insisted on first taking his family to their car. Schwartz then asked Hummels and his clients to fill out their evaluation forms, but he told them to wait for Harmon to do the same before leaving.

After several minutes went by and it appeared Harmon was not returning to the office, Hummels and his clients left Schwartz’ office.

Harmon, who had returned to the building with a handgun, opened fire, killing Hummels and Singer. Harmon fled the scene and later took his own life, police said.

The Phoenix incident represents “every mediator’s personal nightmare,” wrote Stephen Kotev, a Washington, D.C., conflict resolution consultant. The shooting “should be a wake-up call to all of us,” he said in a website post.

The incident already has had repercussions here in Virginia.

The shooting led staffers at Warrenton’s Piedmont Dispute Resolution Center to re-examine safety policies, said executive director Lawrie Parker, although she said security has always been a concern.

The service’s normal safety precautions include not meeting at night unless there already has been a daytime session and careful screening of participants, Parker said. The screening includes questions about child abuse or domestic abuse, substance abuse, domestic violence and intimidation or an imbalance of power.

Neutrals have a protocol to follow if there is any suggestion of domestic violence in a dispute resolution session, Parker said.

Mediators are advised to have the parties arrive and leave separately, to never get between the parties and the door, and to immediately call 911 at the hint of trouble, she said.

“We feel that our policies and our precautions are a safeguard that works,” Parker said, noting her staff has had to call the police only three times in 23 years of practice.

Violence can be just below the surface in domestic mediation cases, but – as the Phoenix case demonstrates – general business disputes may pose a risk as well.

“Quite honestly, I see as much potential in civil cases, and maybe more,” said Morna Ellis, president of Richmond’s CMG Foundation, who has been a mediator for more than 18 years.

“Any litigation does encourage emotionalism. People are not at their best and often not thinking as they should,” Ellis said.

Ellis said she screens all participants, regardless of the type of case. Screening starts with phone calls and continues during the first meetings with the parties, she said. “It should be an ongoing process, because things can change,” she said.

Her group provides substantial training in domestic violence and workplace violence, she said. Ellis said CMG is offering a free seminar on domestic violence in the workplace among other sessions marking Mediation Month in March, declared by Virginia Gov. Bob McDonnell.

Screening should include questions about drugs and alcohol, mental health and whether there have been any protective orders involving the parties, Ellis said.

At the session, “the mediator should control the room, the whole setting,” Ellis said. She said a mediation session can be arranged so the parties use different entrances and are escorted separately from the premises.

The staff at the Virginia Supreme Court’s dispute resolution division reminded lawyers this month that the state guidelines for mediators call for assessment of the appropriateness of mediation before and during mediation in all cases, including general cases.

Screening in a general case need not be as deep as for a family case, according to the division’s “Resolutions” newsletter. Parties can be asked about other court matters pending, any history of violence or abuse, whether either party is fearful of the other, and whether the parties have decision-making authority.

The DRS staffers can offer help in creating a screening form and a mediation termination and safety plan, the newsletter said.