Litigation and mediation need to change in the future. People have new expectations about interacting with professionals, and the wise mediator will make note of these changes and incorporate these new trends in their practice.
Is Mediation the Golden Opportunity to put a Square Peg in a Round Hole?
I learned something last weekend about laws in other nations when I had drinks with a colleague from the U.K. and another from Ontario, Canada at the Board meeting of the International Academy of Mediators. In both of those Countries, the law protects an employee from termination unless there is cause (poor performance or wrongful conduct) or a legitimate financial need to downsize.
Taking a Fresh New Look at Conflict
The New Year is a great time to push “refresh” on all subjects. I spent the last week going through my (now adult) children’s closets and getting rid of the things that we will no longer return to: huge computer systems with no screens or monitors, outdated televisions which can’t play cable, the expensive, must-have tennis shoes that every boy needed in High School a decade ago. I also took the last week or two to purge old paper work (as my son says–no modern businesses even use “file cabinets” these days).
The Golden Sounds of Silence
Once you acquire some skill in mediation, I find one of the hardest things to master is keeping quiet when emotions erupt. Yes, anger, shouting, tears and bluster happen. Our job as mediators is to bring peace and calm into the room, but I find one of the challenges is to remain silent and still without reacting in a “fix it” mode. Eventually, the anger usually blows over once the steam has been let out.
The Trading Zone in Mediation of Employment Disputes
Sometimes I feel like I’m in the middle of a tug-of-war. This week I had the anomolous situation of having two nearly identical full day cases back to back. In the first, the Plaintiff started the demand at $1 million and Defense offered $30,000 (the equivalent to one year of salary). She was alleging age discrimination, though the Company had laid her off in a reduction in force and she was only 42. In the second, Plaintiff started the demand at $200,000.00.
What I Learned from Sitting on the Other Side of the Table
Since 2003, when I quit litigating, I have never attended a mediation as a disputant–until last week. I was asked to help be a part of a mediation. Here are my observations from the other side of the table.
Balancing Fairness with Justice
As an arbitrator (or a Judge) we have limits–on our outward demonstration of compassion, our creativity in crafting appropriate and fair remedies and our moral indignancy where wrongs occur without remedies. As poorly as we may feel about how someone was mis-treated, we are constrained to follow the letter of the law (even where it may be at odds with it’s “spirit”) and dole out remedies only where each element of a given cause of action has been proven by a preponderance of evidence together with actual, credible, available damages. Yet, life is messy.
Using Diplomacy in Negotiation
n my humble opinion, neither missiles nor trials are effective at getting the message across to an unwilling, unreceptive party. Instead, we should choose our negotiating partners wisely by picking the person whom we most trust to carry the message of our people or our cause with the most respect, tact, and reserve, but forcefully and convincingly.
The Hearty Handshake, and Other Lessons From My Father
With more and more mediation hearings occurring before the litigation gets fully underway, many disputants and opposing counsel have never met before the mediation hearing. In a handshake study conducted at the Harvard Business School, subjects were asked to negotiate a mock purchase and sale of a piece of real estate. The control group was requested to begin with a handshake. The other group were seated across the table from one another and most of them entered into an immediate negotiation without bothering to shake hands beforehand.
The Value of a Gesture of Good Faith
This week I learned something from a friend and colleague, Steve Rottman, who, more often than I do, mediates at the lawyer’s offices. He sets up the condition that whoever has the convenience of holding the hearing in their office must pay for lunch and parking for all parties. This article discusses the importance of good faith gestures.
Expanding the Pie with Critical Non-Monetary Concessions
I had the privilege of learning from Professor Peter Robinson of The Straus Institute for Dispute Resolution that a well-articulated apology can go a long distance towards resolving even the most contentious commercial dispute. Yet, it is such a difficult word to summon when being sued by another person, as it may suggest acceptance of blame, guilt and responsibility for some conduct which has legally been “denied”.
People Moving: Using the Dimension of Space to get “Unstuck” in Mediation
I read Ken Cloke’s newest book, “The Dance of Opposites” over the last weekend and then yesterday I attended an excellent training by my friends and colleagues at the IAM, Tracy Allen and Eric Galton at the United States District Court. They reminded me of a concept Tracy calls, “People Moving” as a means to getting the parties out of position that appears to be heading towards impasse or “stuck”. In essence, the concept is simple in both dancing and negotiating: if you stop moving, the dance is over.
Reality Checks: Are Those Nightmare Stories Useful in Mediation?
Mediators and attorneys generally discuss the alternatives to a mediated solution in terms of risk analysis, cost analysis, investments of time and likely verdict potential in litigated cases. But occasionally, a case goes awry in ways that seem unpredictable and aberrant. Are these stories useful to help get cases settled or is it too easy to discard these as hyperbolic nightmares?
Making Assumptions in Mediation
This Saint Patrick’s Day I had a good reminder that a mediator should never make assumptions about matters such as culture, experience or sophistication of the parties before them. The case was brought by a Japanese man who had sued his former employer, an American company, for wrongful termination.
How Effective is Distributive Bargaining when the Parties are Hundreds of Thousands of Dollars apart?
I find that most of the cases that I mediate need a third party neutral because the two sides are evaluating both liability and damages very differently. The mediator is the bridge to some better understanding. But beyond the conceptual, how effective is it to conduct distributive bargaining by way of demand, offer, counter-offer and counter-demand when the parties start out with a demand of something like $1 million and an offer of $5,000.?
How Do You Manage the Unrepresented Party in Litigation?
This week, I had two hearings with unrepresented Plaintiffs. These can be doubly vexing when the Lawyer representing the Defendant attempts to bully the Plaintiff by his/her superior knowledge of the process and the law. Just as on the playground, I find that bullies do not usually win out in life, though they can certainly inflict some pain at the moment.
How Do You Keep the Parties at the Mediation Hearing Until Settlement?
This week, I presided over two hearings where the parties were in a hurry to leave. In one, the case was settled, but in our collective haste, not one of the parties or their lawyers caught the fact that the short-form settlement agreement expressed an agreement to pay $00.00. This left the Plaintiff’s lawyer concerned enough that the following day he sent an email revoking his client’s acceptance of the offer!
Do You Engage Clients in a True Risk/Benefit Analysis?
In the theme of Valentine’s Day, I attended a networking meeting of a group of lawyers today who almost uniformly reported that what they loved about their jobs was bringing solutions to their clients who presented them with a wide array of legal problems, ranging from tax indebtedness to estate planning to white collar crime to divorce.
How Do You Manage Multiple Defendants?
I was up late last night mediating a challenging case where an employee sued her former company after it had been sold to another Company. Though the first company had sold all of it's assets, there was a contract that specifically stated that the successor company did not purchase or assume any of it's liabilities. Luckily, there was some insurance coverage for the old company, since it no longer had any assets and was defunct.
Do Secrets Compromise the Mediator's Neutrality?
Occasionally, I get stuck in a corner where I know that the Defendant in a dispute would pay more than the Plaintiff's "bottom line". Of course, this is revealed to me in confidence, and of course, I maintain that confidence all day long--even after the case settles for something less than the Defense was willing to pay.
Beware the Bully Negotiator
I have just finished reading Professor Dwight Golann's excellent book, "Sharing a Mediator's Powers". It was timely in that last week I mediated a contentious wrongful termination case in which one of the advocates was a notorious "bully".
Know Your BATNA and WATNA
Looking at your BATNA and WATNA, a term that most business students learn, but law students seldom know will make you look smart and may improve the outcome for your client, too.
Begin the Mediation Before the Hearing
Call me old-fashioned, but I think it is critical to have a voice to voice conversation with every lawyer involved in a litigated case before the mediation begins. This week, I failed to follow my own cardinal rule because after the first conversation with the defense lawyer, I knew that my hardest effort would be to get his clients on board with an earnest interest in settling the dispute.
Lessons from Improv Actors for Negotiators
This week, I'm preparing a couple of talks on negotiation skills and conducting some research which has lead me to draw upon improvisational acting class. One of the cardinal rules of improvisational comedy, (as in negotiation), is "offer" and "acceptance".
From Jan Schau
Mediate.com has been an invaluable resource for building my mediation practice over the past ten years. Whether it is connecting me with mediators far away or publishing my own writing and thought, I look forward to my weekly newsletter and depend upon mediate.com for leading the profession to new heights.
Make No Assumptions in Mediation
The problems encountered by the Plaintiff are generally laid bare in pleadings and through discovery by the time of a mediation hearing. After reading and reviewing a comprehensive mediation brief, we mediators can get to a place of thinking we know the darkest secrets which lead to the conflict. But as a wise mediator said to me once, "you don't know what you don't know". For this reason, it's unwise to make any assumptions.
Make No Assumptions
There is some logic to wearing a mask when you are about to commit a crime: you don't want to reveal your true face. We all wear masks from one time to the next. I appear different when I'm at the gym than at the office and even differently when I'm arbitrating a case than doing case follow ups by phone.
View from the Middle of the Road: Book Review
Jan Frankel Schau’s View From The Middle Of The Road: A Mediator’s Perspective On Life, Conflict, and Human Interaction passes the three litmus tests for a good book. Reviewer Jeff Thompson explains why this book is a must-read for mediators.
Developing a Rapport with Every Stakeholder
In mediation, it is always valuable to take a moment to reflect upon the particular cultural customs the disputants may hold and then engage in whatever appropriate methods there are to develop rapport. Sometimes this takes a little small talk until you can find some commonality: a love of pets, or travel or fashion, for example.
The Genius of a Well-Crafted Mediation Brief
I have always loved the written word. I still write handwritten notes and just purchased a beautiful new pen for signing autographs of my book. So I appreciate a well-constructed, clear, concise and abbreviated legal analysis in a brief in advance of the mediation.
The Art of Effective Interviewing
Learning to conduct an effective interview is one of the key techniques for resolving conflict. It creates rapport and conveys understanding. It will often revealing hidden "drivers" that underlie the conflict.
Be an Empty Vessel
I attended the funeral of my esteemed colleague and friend, John Weiss this past week. John epitomized the concept of listening to the parties in a mediation without prejudgment or bias.
Preparing for a Successful Outcome
Mediation hearings are not really the best place for surprises. Recently, I was mediating what appeared to be a garden variety single plaintiff wage and hour case. The Defense lawyers, representing a small business, had carefully analyzed the damage exposure to their client and given him advice on the parameters of the value of the case.
Ask the Hard Questions before the Negotiation Begins
Not all lawsuits are motivated by a desire to obtain monetary damages from a party who has aggrieved another. There are, in fact, a myriad of reasons why someone may want to sue another party: to bring a company who they believe has wronged them down, to shame another person, to vindicate one's rights, to be heard, to prove to himself and/or his spouse or the world that he was right in standing up on his own behalf, or even to show someone their personal strength, intelligence and experience in a way that was not previously recognized by the other.
The Importance of Pre-Hearing Telephone Conferences
It's not a new concept, but it always bears repeating. Prior to every mediation, I try to reach the parties to find out what they have discussed by way of settlement before the mediation.
Priming for Likely Range of Outcomes
Sometimes the only way to strike oil is to prime the pump until it begins to flow. It takes some effort and foresight, but the result is all the more satisfying.
Inquire About Each Disputant's Agenda Before you Begin
Litigation is typically a well-orchestrated process which is initiated by a formal "complaint", which includes several distinct "Causes of Action", together with a list of "remedies" and a "Prayer" for damages resulting from whatever misconduct is claimed. In response, Defendants file a formal "answer", usually denying all misconduct and perhaps adding a few "affirmative defenses" to the mix. By the time the case gets to mediation, it is usually less well-defined.
Effective Interviewing Techniques
In mediation, effective interviewing is designed not only to create rapport, but to gain and convey genuine understanding of each disputant's unique perspective. Often, it will reveal hidden drivers that underlie the conflict and ultimately hold the keys to resolving the dispute.
Effective Interviewing Techniques
In mediation, effective interviewing is designed not only to create rapport, but to gain and convey genuine understanding of each disputant's unique perspective. Often, it will reveal hidden drivers that underlie the conflict and ultimately hold the keys to resolving the dispute.
Show Respect and Empathy, Never Judgment
One of the Mediator's Tools outlined in my upcoming book, "View from the Middle of the Road: A Mediator's Perspective" is to summon humanity with a goal of helping people who are suffering reach an end to their conflict in a way that brings them peace and closure. This week in California we had a dramatic and tragic event when a young Police Officer, Christopher Dorner, snapped after years of conflict with his own employment situation, killing 4 innocent people.
Resist the Temptation to Negotiate too Soon
Participants in mediation usually know how it ends: there is a negotiation and one party agrees to pay money to the other. So why not get right to it?
Check the Mediator's Personal Biases at the Door
One of the tools that is most difficult to employ as a mediator is to check your own biases at the door. This week, for example, I had two mediations which challenged me to do just that. The first was a retaliation in employment case brought by a young man who was the same age as my son-in-law.
The Danger of Too Much Pride in Mediation
This week I mediated a whistleblower case where an employee had complained to his Supervisor that another employee was signing his name to documents that were going to the Unemployment office.
Introducing Karina Sterman
As a part of the 97% Series of Interviews, I loved this one: Read on about Karina Sterman's classic move towards a sophisticated business dispute: can you say "lunch"?
Introducing the 97%
It occurs to me that since 97% of cases filed never get to trial, there are lots of brilliant trial lawyers and litigators who must have "seen the light" and found ways to resolve their cases and still make headline news. Why?
Leaning Into Conflict
Last evening we spent a magical evening in my sister's Sukkah. This week marks the Jewish harvest festival where it is tradition to share our joy and bounty by inviting strangers to dine with us in impermanent tents or booths, which are decorated with fruits and vines from the season's bounty.
From Jan Schau
Congratulations to mediate.com on your 400th issue. I can't tell you how it warms my heart when I get feedback on articles I've written over the years after Mediators in Canada or Ireland reveal their appreciation, engage me in dialogue, or relate similar experiences, joys and frustrations. Bravo on raising all of us up in the excellent work that you do so well and so tirelessly. With sincere admiration.
Leading from the Back of the Room
Today I read about a Business leader who spoke of "leading from the back of the room" and I was struck by the notion that I had risen to the position of leadership where I take a seat which is not rightfully my own.
Mediation Ethics Book Review
Mediators are uniquely capable of seeing contradictory versions of the same story and valuing at least two perspectives in a given dispute. We are able to juggle varying competing moral values and daily struggle with achieving the balance between right and just, practical and plausible, peace and conflict and black, white and gray.
What It's Ultimately All About
Once in awhile, we all need to take a break from our day jobs to tend to our life's real work. For me, last week's Commencement from Columbia University, and this euphoric image of our youngest son becoming a College Graduate have fulfilled my life's true purpose.
Mom: The Ultimate Mediation Trainer
There's some debate about whether great mediators are born or made. I say that those of us lucky enough to have Mom's as mediation trainers provide a great model for sound mediation principles. My Mom, Bette, taught me these principles which have guided and eased not only my parenting, but some good instincts which serve me well professionally, too.
Learning a New Perspective at the ABA Conference
Solution Focused Conflict Management
I'm reading such an interesting book, "Solution-Focused Conflict Management" by Fredrike Bannink. It occurs to me that there is an interesting dichotomy between the legal system, which is "problem focused" and the conflict resolution business which aims to be "solution-focused".
I had the privilege of listening to a lecture by Ashok Pannikar, from Banglore, India today at the Mediator's Beyond Borders Congress here in Los Angeles. The talk was called, "Why is Joe the Plumber Peeved? Mediating Minority Rights and Majority Fears". It was a kind of "call to action" for mediators and those engaged in large-scale, global dialogue to reexamine our own biases and outdated world views. He reminded us that we are no longer in the 60's, or even the 90's. In fact, we may not be able to change the world, despite our unfailing optimism
The Devil in Mediator's Clothing
I had a rough week. As a mediator, on occasion, instead of feeling like each side's ally, one or the other side chooses to demonize us. This week, it was a landlord and tenant dispute in which I questioned whether an attorney/tenant would be able to prove a renewal of his lease by virtue of an oral agreement, which did not include an assent as to the material terms, including rent and length of the lease extension.
Balancing Optimism With Realism
The New York Times article by Sheryl Gay Stolberg, refers to President Obama as "The Cheerleader in Chief" in today's Business Section based upon last week's State of the Union address. As a mediator, I find myself required to do much the same.
Thinking Within The Box: Facilitated Dialogue Without The Need For Conflict
My parents, 82 years young, are beginning to recognize that they want the input of their adult children in managing their lives: business investments, tax and estate planning, cooking, driving, traveling. This morning we took advantage of the holiday week to all gather together for breakfast and a business-type meeting.
Civility Or Benevolent Dictatorship?
I have been struggling this week with the objectives of both litigators and mediators in settling challenging commercial cases.
The Power Of Silence
This morning, while tuning into the Sunday morning news broadcasts, I heard one of the commentators talking about an aphorism in journalism about silence. He said the old adage goes: "Let the silence suck out the truth." What a powerful message for mediators! Silence can be among the best tools and yet least appreciated or employed in a mediation.
Is "Settling" A Dirty Word?
I pride myself on settling cases. Most of the time, somewhere near the beginning of the mediation hearing, I explain to the parties that what we're after is a "compromise", not a win. Most of the time, they're satisfied with the outcome: it ends the lawsuit and usually resembles what is legally "right" or at least justifiable financially.
The Wisdom Of My Mentors
I attended the SCMA Fall Conference yesterday for my 9th year. I'll confess that I was less than enthusiastic because for the first time in the past 5 or 6 years, I was neither presenting nor chairing the conference. But my expectations were so far exceeded.
Wedding Planning: The Ultimate Exercise In Mediation
After a 14 month engagement, our little girl got married last weekend to a wonderful young man. During that time, we both came to learn about ourselves and one another in ways that no other exercise in parenting has served to do.
Steering From The Back Of The Boat
Today's New York Times Business Section had an interesting interview of Anne Berkowitch, co-founder and Chief Executive of "SelectMinds", a social networking company in Manhattan. She talked about the keys to effective leadership and listed the most important as "being able to listen to people."
Precious Life: Just Hold On
I had a challenging mediation last week when I was asked to mediate a Conservatorship of an elderly lady, whose two living children could not agree upon the appropriate care for her and could not bear to be in the same room together--leading to an awkward visitation schedule. As a consequence, neither son was "holding on" and both feared she would die alone.
Being Present In The Moment
Mediators talk about "being present" as an effective tool towards helping people we hardly know resolve very personal conflicts.
The Hazards Of A Life As Mediator
This is my tenth year as a mediator. I mediate all kinds of tough business negotiations and painful litigated cases. I spend my days with people in conflict. There, I summon my humbler self to strive towards empathy, creativity and compromise. So it was rough this week when my youngest son (a College Senior) got hit by a man who appeared to be plenty affluent and at least my age in a parking lot.
Unless we're raised in an oppressive or abusive family or society, we generally grow up with a certain confident sense of trust. Some of us are better able to preserve the optimism than others. But it is this sense of trust which, in my view, allows a third party neutral to help settle disputes in matters that cannot be settled directly between the two parties.
Reflections From The Alberta Arbitration And Mediation Society
Sunday, April 25, 2010
Reflections from the Alberta Arbitration and Mediation Society
I was honored to be invited to present two talks at the Alberta Arbitration and Mediation Society's Annual Conference in Edmonton last week. The President, Pat Withers, had heard about my presentation at the ABA Dispute Resolution Section's Conference in 2009 on Ethics and Mediation and was excited to have me do a reprise.
Indecision-Making: Science Helps Explain The Basis For Voluntary Consent
There's an interesting Book Review in this morning's New York Times on "The Art of Choosing" by Sherrna Iyengar. The study is based upon a famous "jam experiment" where shoppers were offered either six different jams to sample or thirty. Surprisingly, although more shoppers stopped by the table with more samples, ten times more sales were made at the table with the limited choices! The new study takes it a step further to look at the role of culture and religion in choice.
The Awesome Power Of A Sincere Apology
Tiger Woods played his hardest match today when he made a public apology to his fans, business partners and supporters. It was humble.
Lessons For Mediators From Corporate Leadership
I was always a bossy little girl. So it was with great interest that I read an interview in this morning's New York Times of Susan Doeherty, who leads the United States Sales, service and marketing of General Motors. Her natural demeanor was instructive for me as a mediator in these ways.
New Employment Case Limits Right To Recover Attorneys Fees
Plaintiff's attorneys will likely be scrutinizing the intake on these cases more thoroughly where the damages are low. Employees who have been wrongly terminated may have less access to quality attorneys to take their cases where damages are small. Indeed, I'm going to assume that more of these cases will be settled earlier and through mediation than assuming the risk and expense of trial in light of this decision.
Does Staying Neutral Require Staying Up In The Air?
I went to the movies last night and saw "Up in the Air". There were so many messages for a mediator, I'm still trying to process them. The story revolves around George Clooney's job flying around the Country to terminate people from their employment for Big Co.
The Stories We Tell
In the mediations over which I preside, I hear so many personal stories of strangers. They are grateful to have someone who will objectively hear them out. What did I do wrong to deserve to be fired from my job? Why didn't he appreciate the loyalty and energy I put into building his business over so many years? Why didn't they like me on the floor of the hospital where I worked? Why didn't they understand that I just needed some more time to heal? Why didn't they know how badly I was hurting? Why didn't they apologize?<
To Avoid A Claim For Malpractice, California Court Says Keep Your Mediator Present At All Times
Both the mediation and legal communities in California are abuzz about the Court of Appeals decision in Cassel v. Superior Court (Cal. App. 2 Dist. November 12, 2009)which held that attorney client communications are not protected from becoming evidence when they take place at mediation if the mediator isn't in the room at the time of the communication.
Mediator's Ethics: Does It Include A Just Outcome For The Disputants?
Yesterday I attended the Southern California Mediation Association's 21st Annual Conference. The piece by Professor/Dean Peter Robinson of The Straus Institute of Dispute Resolution at Pepperdine University really caused me to examine my practice.
Lessons From The International Academy Of Mediators
I attended an excellent Professional Conference this month in London, The International Academy of Mediators, "What Can we Learn from Each Other". During the conference, a full day's mock mediation was staged. It was the first I'd ever seen where professional actors were employed to demonstrate the raw emotionality that so often surfaces in civil mediation.
The Beer Summit
Here's to President Obama and his brave and wise staff who understood the power of mediation this week as he invited the Harvard Professor to confront and discuss his arrest with the Cambridge Police Chief at the White House.
The Value Of A Symbolic Commitment
It occurred to me that when I mediate cases to a settlement, the signing ritual, the handshake, the acceptance of the "proposal" is more than a mere gesture. It also symbolizes a commitment to conform with the legal constraints that go beyond the casual promise or mutual assumptions.
Games People Play
I mediated an interesting case today because the two opposing counsel played poker together with some regularity. What this meant is that they both had a friendly degree of distrust, as well as respect for the other's ability to bluff, on the one hand, and to win on the other.
Fate Is For Juries
I have been struggling with a few Mediator Proposals lately. At the point at which the parties invite me to propose the solution, typically the negotiations have threatened to break down, with a gap that would appear insurmountable.
Book Review: Staying With Conflict: A Strategic Approach To Ongoing Disputes
In his newest book, Staying with Conflict, Bernie Mayer urges 'conflict professionals' to think of ourselves as specialists who are retained as allies in assisting disputants to develop a constructive approach to engaging in enduring conflict, which he contends is both healthy and omnipresent. A word of caution to colleagues who are engaged exclusively in mediating the litigated case: the book, if taken to heart, may call into question your/our own self-limiting roles.
Women and Empathy: Is there a Difference?
I was struck by President Obama's appointment of Judge Sonia Sotomayor as Supreme Court Justice this morning. In choosing her, he affirmed that he was looking for a woman as well as a person who held a "different sense of justice", by which I understood that he was seeking out someone who would listen to the legal issues of the day with a certain empathy that may be harder to attain in a man.
Taking Our Part In Public Dialogue
I had the privilege of watching a screening of "The Soloist" at Sony Pictures in celebration of one of the co-Producers' birthday this weekend. I'm also reading Bernard Mayer's new book: "Staying with Conflict", which urges conflict professionals to think of their role as going beyond conflict resolution. After all, not all conflict can be resolved.
Thumbs Up At The G20
Yesterday I had a difficult mediation which I sensed was heading towards an impasse. I suggested, after 4 tough hours of negotiation, that one of the attorneys (a smart, attractive woman) take a walk outside with opposing counsel--who had remained staunchly committed to his position all day. I won't say it fully resolved the case, but it definitely served to break the impasse and get both parties returning to the negotiation with "thumbs up". So it was with great amusement that I read today's L.A. Times article, "Obama makes a point with 1 word" and was shocked to find that the photo on page 24 appears to have Obama's thumb up, but my google image above appears to be Berlusconi's thumb up!
Lessons on Mediation from Benjamin Franklin
Newsweek published a series of articles on Leadership and I particularly enjoyed Walter Isaacson's, "Benjamin Franklin and the Art of Humility" where he said, "But most important in those tumultuous years, Franklin was sage enough to bring passionate people together, to lead them by listening to them, and to unify them by displaying the humility, or at least the pretense of humility, that is so lacking during eras of hyperpartisanship but remains the essence of liberty and democracy."
The Clash of the Titans: Getting the Best Results in Mediation when Cooperative Negotiator meets Competitive One
California lawyers are now being routinely trained in the benefits of a win/win approach to negotiation by “expanding the pie”. However, the culture of cooperation is often confronted with a more competitive approach in mediation of litigated cases. This article will offer strategies for breaking the impasse this clash of styles presents in mediation as well as offer concrete strategies for litigators to adjust their own styles and thereby maximize their clients’ results.
Personal Conscience Meets Mediator's Ethics
I delivered a Continuing Education Lecture this week on "The Ethics of Negotiation". As always, I learned a lot from my audience, an impressive group of lawyers with an age range from mid-20's to late 50's. I struggled with the message to deliver because my research allows for a considerable amount of deceit in negotiations, which I've come to expect and accept. But this week, I was on alert for these deceptive strategies when I negotiated a transaction which I felt slightly morally reprehensible, or maybe just unfair.
Four Important Qualities for a Mediator
Aaron David Miller's Op-Ed piece in today's Los Angeles Times caught my eye. He calls it "State of Mind" and recounts four important qualities for President-elect Obama to consider in choosing a Secretary of State. Miller worked for six secretaries of state over twenty years and is the author of the book pictured. In brief, he says to succeed a Secretary of State needs the right persona, the President's confidence, a negotiator's mind-set and some balance of deviousness and toughness. I see these qualities as equally vital to the success of a mediator.
A Rare Transformative Experience
Mediation isn't always measured by how much or how little money is exchanged.
Ballroom Dancing for Lawyers
I mediated a couple of cases this week which unfortunately came to me after settlement conversations had begun. In each instance, one side refused to move off their pre-mediation demand by even a dollar. This lead me to the conclusion that lawyers may need legitimate ballroom dancing lessons. During my summer cruise, I actually took ballroom dancing lessons with my 21 year old son, and here are a few tips:1) It is not good enough to get dressed and show up for the dance. You must get into...
Settlement is Better than Trial
I read a fascinating article in last week's New York Times about the benefits of settlement over trial in litigated cases. I've re-published the whole thing here for you to read--but basically it suggests that after studying 600 cases where settlement was discussed, but the attorneys or their clients decided to "go for it" in most instances the results were not as good as they would have gotten at the settlements offered. Interestingly, there was a huge disparity between Plaintiff's "getting...
Independence and Interdependence: The Good Side of Court-ordered Mediations
This week marks the largest settlement I've ever "brokered" and the longest mediation over which I've presided thus far. A month ago, a compelling wrongful death and bad faith case came before me at the strong urgency of the Court. The case had a trial date of June 30, 2008. It was mediated back in 2005 (unsuccessfully and by a different mediator) and then had proceeded to a Motion for Summary Judgment which was granted in favor of the defendant and later reversed on appeal. While the...
Court Ordered Mediations: Is it Time to Be Honest about their Efficacy?
There is an on-going controversy in Los Angeles County about "court ordered" free mediations. On the one hand, the ADR Committee has steadfastly maintained that Los Angeles is under a specific State requirement to make pro bono mediation available in all cases. On the other hand, mediators have experienced frustration in both the challenge of settling these "ordered" cases and the challenge of building a private practice when all cases are afforded an opportunity to mediate in L.A. County for ...
Business and Life Lessons from My Father
The tributes to Tim Russert on today's morning television were so moving, I thought I'd take a shot at compiling a short list of my own favorite bits of advice imparted by my Dad. "Little Art", as he was known for many years to distinguish him from his cousin, Art Mac ("Big Art") was an enormously successful business man. He built an empire of discount stores and retired by the age of 60. He's now a healthy, tennis playing, travelling, driving 81 year old with a big heart and love of life. ...
Publicity and the Limits of Mediation
I had two interesting cases this week that hit me in the forehead with an "Aha" about the limits of mediation. The first was an employment case in which the employee had somehow become the recipient of a copy of the evaluation letter of the employer's attorney. When confronted with this apparent impropriety, she immediately returned the letter, but of course, could not "un-ring" that bell. In the second, the facts had already been highly publicized and the Plaintiff was not bringing the...
The Disclosure Movement in Medical Accident Cases
There was an interesting article in today's New York Times entitled, "Doctors are Beginning to Say 'I'm sorry' long before 'I'll see you in Court' which I've copied below. Although I'd heard of this "movement" on several occasions, I was struck by two pieces in the article: the first, was that the Sunday New York Times chose to feature it on the first page, as though it was news; and the second was that Presidential rivals, Hillary Clinton and Barack Obama co-sponsored a bill which would...
Brain Studies Prove That A Fair Deal is A Happy Deal
Most Mediators are taught to ensure fairness in process above all. After many years, and hundreds or thousands of negotiations, it can sometimes feel tedious and unnecessary to do so. However, at this past weekend's Employment Mediation Conference sponsored by the Southern California Mediation Association, some of the attorneys expressed shockingly disappointing results where the mediator failed to take the time to explain the process and ensure it's fairness. The outcome of the negotiation, ...
The Luxury of Time to Resolve Conflict
This past week I conducted a rare (for me) mediation in an outside office. For the past seven years, I have conducted my hearings in my own offices, or those of ADR Services. In each location, I have access to an office where I can obtain e-mail, voice mail, real mail or more during breaks and before and after the sessions. This one lasted eleven hours, during which I had no access to computer, voice mail or telephone messages. Although all of the participants were drained by the end, it...
Leaving The Narrows
Last night we celebrated the beginning of Passover. During the Seder, we recall the story of Exodus--as the Jews fled Egypt, (where they were slaves) and travelled for 40 years, carrying journey bread, or Matzoh on their backs, until they reached what is now "Israel"--the land of milk and honey. The Hebrew word for Egypt is "Mizrayim" which is also the word for narrow places (loosely translated, I think). And so I considered all of the ways in which parties in conflict are in their own...
Empathy Deficit Disorder in the USA?
I recently borrowed Barack Obama's Book, "The Audacity of Hope" from my 80 year old father. I am intrigued by this articulate and engaging candidate--even though I meet every criteria to be a Hillary Clinton supporter (middle aged, professional, Caucasian woman). In the Chapter he calls "Values", he talks about his mother's simple principle--"How would that make you feel?" as a guidepost for his politics. Then he says, "It's not a question we ask ourselves enough, I think; as a country, we...
The Art of The Spin: Another Benefit of Using Mediation
This week I attended a professional conference where I heard two compelling presentations. The first was on "The Ethics of Negotiation". First, was a thought provoking discussion presented by my colleague, Michael Young, an attorney and mediator here in Los Angeles and former Federal District Judge John Wagner, also now a mediator. The central thesis was that lawyers and negotiators need to use caution and discretion lest their puffery and strategic communication be relied upon as false...
Be Careful What you Wish for: Have the High Costs of Arbitration Succeeded in Diminishing That as a true Alternative?
I attended an excellent Law & Employment Symposium put on by the L.A. County Bar Association this week. My colleague and friend, Lisa Klerman, a full-time mediator specializing in Employment Law chaired the conference. It's now been over a decade (I think) since safeguards were thrust into place to protect employees from the high cost of "mandatory" arbitration in employment matters. Employers eagerly insisted upon every case they could therefore compel to go into Arbitration, a forum in...
It's an interesting thing, mediator ethics. I know that many mediators, particularly those that had a stint as Judges in prior lives, advise the parties before them that they will beat up on each side until they get a settlement. I, on the other hand, tend to prefer to cast the whole event in a more positive light, by letting the parties know I'm there to partner with them to get the best deal--while telling the same to the other side. In the end, we achieve the same result: a settlement...
Cinema as Philosopher
This week's insight comes from last night's movie. We saw the Coen Brother's Excellent new film, "No Country for Old Men". In it, Javier Bardem does a phenomenal job of playing an intense, recalcitrant, violent, mad man out for drugs and money. Tommy Lee Jones, whose role is introspective, thoughtful and restrained, having spent his career seeking law, order, calm and peace, at one point makes the keen observation: "Sometimes you just can't solve every dispute. In those cases, the best you ...
What's Behind the Conflict?
I had an opportunity to deliver a lecture on "Looking at Substance Abuse through a Different Lens: The impact of Drug and Alcohol Use on Legal Practice" this week. In preparation, I did considerable research on the subject. What I found, to my surprise, was that alcohol and drug abuse seemed to be a recurring, but always unstated theme as the driver of conflict and the impediment to resolution in many of the cases I've heard. Living and working in a large, metropolitan, expensive and...
Families in Conflict: A Holiday Super-Challenge!
The holidays present an extra special time of family conflict for so many of us. Children don't grow up expecting this as adults, but as I age I learn that our family is not alone in this dynamic. It's a time when expectations run high and memories deep. Last weekend, I took on an informal mediation between my husband and his mother to see if I could orchestrate a truce or at least change the dynamic between them so that next year may bring a less stressful holiday season. What I am...
Taking Time Out to Gain Perspective
I'm writing this from the cockpit of our new sailboat, "Time Out" on Catalina Island. I can't help but reflect on how taking some "time out" to do some perspective taking is such a healthy exercise. It is really why I ask every party mediating before me to come to my office--away from their usual trappings and try for a few hours to gain some perspective on the conflict their enmeshed in. I also had the pleasure of substitute teaching for a class at the Straus Institute for Dispute...
Private Dialogues on Public Issues
While on vacation last week, I saw the Michael Moore's brilliant new documentary, "SIcko". We've all been there: in the place where we've hesitated about getting needed health care until we can figure out what's covered by insurance. So why isn't America discussing this issue? I've decided it's time for mediators to take a crack at it. I've invited an elite corps of commercial and community mediators together in the Fall to begin to promote public dialogue on the health care system in...
Interest Based Negotiation Applied Effectively
Last week I had the privilege of studying with Randolph Lowry, the President of Lipscomb University and one of the founders of both the Straus Institute for Dispute Resolution and the Southern California Mediation Association, an organization of which I am the current President (18 years later!). Lowry co-taught a course on Advanced Mediation Skills with Judge Jack Etheridge, another founder of SIDR, retired Judge from Atlanta, Georgia. To be honest, the course seemed a bit elementary to me...
California Court of Appeals Affirms Mediation Confidentiality
The Court of Appeals (Second Circuit) issued it's opinion on the Wimsatt v. Kausch writ of mandate and upheld the mediation confidentiality statutes under California Evidence Code Sec. 1119. This was a proud moment for me, because I supported an amicus curiae brief (as President of the Southern California Mediation Association) and was present for the oral argument. In brief, the Plaintiff's were alleging that their own lawyer had committed malpractice by telling the defense counsel in an...
Lessons From Recovery To Mediation
I had an interesting evening this Shabbat at the home of a Prison Rabbi. There, he described the process of "reaching" (with a view towards helping to "uncover" the good self within) of the prison inmates. It occurred to me that in so many instances, a courageous mediator is doing the same "uncovering" process: digging down deep to find the reasons for the behavior that lead to the initial conflict in order to "recover" the relationship or the basis for moving forward in harmony. In looking ...
On Secrets and Blogging
Well, it finally happened. My blog was picked up by google, which was searching for someone (name now confidential!) and lead her to one of my "musings" which apparently revealed far too much of a confidential mediation. Luckily, blogging also carries a "delete" feature--so that entry is now forever zapped away in the stroke of a key. And yet...Mediation is a solitary, secret society. We hold confidences. We try new and innovative ways to resolve conflict, knowing if it fails (or if it...
Mediation Spreads To Law Enforcement At Every Level
I had the privilege of observing a Police/Community mediation this week facilitated by the Western Justice Center Foundation. Without revealing any of the confidential information, it was a fascinating exercise for these reasons. The policemen were heard to explain to the merchants who had made the complaint against them that "In policing, there is no black and white." To the contrary, among the first comments from that Officer was that this community believes in "value based policing: a...
Negotiating Like a Woman - How Gender Impacts Communication between the Sexes
Anyone who has ever been married will admit that men and women argue differently. It should be no surprise to learn that women and men negotiate and communicate differently as well. After many years of practicing law and serving as mediators, the authors believe that there are certain ways than men communicate that are distinct from “a woman’s voice.” Mediators and representatives can utilize their knowledge of gender communication to foster better resolutions between parties.
Authenticity and Angels
This has been an introspective week, colored in large part upon two women mediators who I hardly knew, but touched me deeply. On Tuesday, I heard Linda Meyer speak on "Authenticity" in mediation. Linda urged a group of SCMA members to seek out our true selves and approach every individual with our own humanity. She gave us permission to be "in the room" and a part of the process. She reminded us that settling a case was the easy part of a mediation--but connecting with the parties in...
Doing the Right Thing Correctly
I took a wonderful Class this Week given by Peter Robinson, Dean of the Straus Institute of Dispute Resolution at Pepperdine University and Robert Benjamin from Portland, Oregon. Peter spoke about the role of Apology in Mediation. I was struck by the discordance between what most of us agree is "good" and what most of us agree is "right". He offered the example of a child who throws a ball through the neighbors window. There, most of us would insist that our child go over to the neighbors,...
Mediating In Your Own Backyard: Family Mediation Without Divorce
Summertime can be trying when you’ve got a house full of teenagers at home, and this summer, mine was no different. Conflict abounded and reached a peak one hot August evening when my daughter’s puppy got into my son’s room, destroying his favorite wallet, sunglass case and a $20.00 bill! What’s a mother to do?
Beyond Reason: Using Emotions As You Negotiate (Book Review)
Dealing with emotions has become an inextricable part of high level negotiations in mediation. Yet few writer’s have dared to cross the chasm between the psychological underpinnings for such emotion and the strategic use of emotions in negotiation. And none as brilliantly and insightfully as Roger Fisher (author of the acclaimed 'Getting to Yes') and Daniel Shapiro.
Settling Employment Cases Just Got Easier: New Tax Law Excludes Attorneys Fees’ Portion Of Recovery From Income To Plaintiff
If there is anything that the typical clever lawyer does right, it is to shy away from offering tax advice to his clients. For years, the question of taxability of the attorney’s fee earned on an employment case has been particularly perplexing for two reasons: first, because the fee may be a substantial portion of the recovery, especially if it’s awarded under statute or as a contingency fee in a huge award; and second, because settlement of employment cases is otherwise taxed as earnings to the Plaintiff, unlike other personal injury actions. Few employment litigators, and even fewer employment mediators truly understand the workings of these tax laws.
Secrets And Lies: The Ethics Of Mediation Advocacy And Scrabble
You wouldn’t believe what the attorney told me in last week’s mediation. You wouldn’t, and you shouldn’t: because it was a Lie. What do you do when you are confronted by the scenario in which you suspect either your client or the opposing attorney are lying in the name of “mediation advocacy” to gain advantage in the negotiation? It is the tough moment where the duty of attorney-client confidentiality collides with the ethical considerations of truthfulness in negotiation.