When and how did you get involved in dispute resolution? I was facing a
turning point in my commercial litigation career in the Spring of 2004, when I
attended the Straus Institute's 42-hour training, Mediating the Litigated
Case. I'd been searching for an
alternative to a pretty grueling insurance coverage and general commercial
practice for some time (aren't all lawyers?)
Though I was a partner at the last firm at which I practiced, I had
never developed my own book of business.
I spent 25 years working on my law firms' institutional clients' cases -
at the now defunct Los Angeles office of the Philadelphia law firm, Pepper,
Hamilton & Scheetz; at Buchalter, Nemer when it was at its largest in the
Sanwa Bank building downtown; and, finally at the Los Angeles office of the San
Francisco-based firm, Hancock Rothert (since merged with Duane Morris).
I was facing a turning point in my commercial litigation career in the Spring of 2004, when I attended the Straus Institute's 42-hour training, Mediating the Litigated Case. I'd been searching for an alternative to a pretty grueling insurance coverage and general commercial practice for some time (aren't all lawyers?) Though I was a partner at the last firm at which I practiced, I had never developed my own book of business. I spent 25 years working on my law firms' institutional clients' cases - at the now defunct Los Angeles office of the Philadelphia law firm, Pepper, Hamilton & Scheetz; at Buchalter, Nemer when it was at its largest in the Sanwa Bank building downtown; and, finally at the Los Angeles office of the San Francisco-based firm, Hancock Rothert (since merged with Duane Morris).
I'm one of those people who loved the law from the first day of law school when I realized it was all about narrative. I was a writer (fiction/poetry/literary non-fiction) and a Literature major. So comparing Mrs. Palsgraf's story of the exploding firecrackers on the Long Island Railroad platform to another narrative with a Rube Goldberg chain of causal events was as natural and compelling to me as the novels of Henry James, D.H. Lawrence, Franz Kafka and the short stories of E.T.A. Hoffman and Chekov. I loved the intellectual puzzle of the law. I was also thrilled to be learning some of society's "temple secrets." I also loved practice, skipping most of my third year classes to work at the law firm I'd clerked for between my second and third years.
I burn my candles bright and fast, however, and by the end of my fourth year of practice I was thinking it was all too stressful; too hard on my (failing) marriage; and, too contentious. I took a full-time teaching job at Cal State Northridge (business law) in 1984. By the summer of 1985, however, I was itching to get back into practice. Though I loved teaching, I missed the stress, frankly, and the energy and intelligence of my attorney colleagues. I took a part-time job practicing in Beverly Hills the first summer of my new teaching career and continued working there until I finally went back to practice full time in 1987.
In a movie, this is where the pages of the calendar are torn from the pad and drift away in the wind.
I continued to enjoy the challenges of progressively more sophisticated litigation as my practice progressed. But there was something missing in my life – the creative spirit I'd been so passionate about in college. To recover some part of that spirit, I began to take fiction writing classes at UCLA during my twelfth year in practice. Two years later, I joined a writers group to which I still belong and began to publish my work in the small literary press. By the Spring of '04, I'd also launched a literary journal, now in its fifth year of publication, the rkvry quarterly. I was working on environmental insurance coverage cases at the time – an excellent practice – but a grotesquely inefficient means of achieving the ultimate goal – cleaning up the environment contaminated by the coal and petroleum-based industries of the twentieth century.
It was after I'd been litigating those cases for nearly a decade that I decided to look into mediation practice by taking the Straus course on Mediating the Litigated Case.
That course ignited a passion in me that I hadn't felt for some time. During that first day of class, I experienced several epiphanies that made it possible for me to envision myself as a mediator rather than a litigator. I realized not only that negotiation is a skill that can be learned, but that I was pretty darn good at it when provided with the necessary tools. The Straus course also covered mediation practice and marketing, something I'd never been good at and had resisted learning through twenty-five years of litigation practice. Learning the “soft sell” in the course of Mediating the Litigated Case, I recovered my inner marketing wizard – something I should have known I possessed having grown up with a father who sold life insurance door to door before he entered law school at the age of thirty-eight. If Mediating the Litigated Case hadn't taught a segment on marketing your mediation practice, I doubt that I would have had the courage to take such a big step.
I immediately signed up to serve on the Superior Court's pro bono panel and applied to the LL.M program at Straus. I was on fire. At Straus, we were required to write case notes on all of our mediations, which got me in the habit of telling mediation stories and evaluating those techniques that worked as well as those that didn't. That's really why I started blogging after I graduated from Straus. I'd become used to writing these small stories. They were satisfying for a fiction-writer. They had drama, character development, sudden shifts, surprising revelations and even, sometimes, the gold standard of mediation – accountability, acceptance, forgiveness, reconciliation and redemption. What southern writer Flannery O'Connor decreed as the holy grail of fiction – for a character to do something that is both within and beyond character by story's end – actually took place in mediation. It was Lit Major and Writer Heaven.
Having now written this part of my own story for the first time, I have to tell you that from my limited point of view, it's really a spectacular tale. I regained everything I'd ever loved – people, story, drama, recovery – yet was allowed to retain the intellectual puzzle, strategic problem-solving job I'd enjoyed so much. It was like the farmer says at the county fair – he uses “every part of the pig except the squeal.” I too was now using every part of myself, including a squeal of delight. The mediation career I've carved out for myself include negotiation training (so I get to teach, which I love); writing (blogging and the book that's grown out of it); and, helping people resolve business disputes burdened with justice issues in a way that is far more efficient, effective and creative than the litigation process affords.
I must say here that my husband helped make all of this possible. We met litigating one of those huge insurance coverage cases – that one concerning 500 toxic waste sites in every Canadian province. I represented the “evil” insurance industry and he represented the “evil” petroleum industry. Like Spencer and Tracy, we fell in love. When we married, we were in a financial situation that permitted us to do without my (formerly pretty substantial) income for a few years. I was lucky. I am lucky. And I owe much to more people than I can list. At the top of that list, of course, is my loving and supportive husband who's given up not only my former income, but also much of the time I'd be spending with him if I weren't so busy pursuing this new practice.
When and how did you start your blog?
I started my blog on google’s free blogger (http://settleitnow.blogspot.com) after I saw mediator Jeff Krivis’ blog. Immediately after. Then I “met” Diane Levin, by now a dear friend, who taught me .html via email and telephone. Hard to believe, but all the way back in ‘06 when I started the blog, you needed to understand .html at a very minimal level to make changes to the blogger template. Diane put my blog in her fabulous World Directory of ADR Blogs (here: http://adrblogs.com/) and taught me the folkways of the blogosphere – primarily linking – about which more here: http://www.negotiationlawblog.com/2009/05/articles/blawgs/want-to-appear-in-my-blog-roll-negotiating-the-blawgosphere/
Later, I'd join LexBlog and add an IP ADR Blog (http://ipadrblog.com) with LexBlog as the provider (who I highly recommend). Since that time, I've turned the IP ADR Blog over to fellow blogger, arbitrator and mediator, Eric Van Ginkel and started a more generalized commercial ADR blog at http://bizadr.com, using the free wordpress template.
Do you consider your blog to have a particular voice? Please describe.
The blog is not simply a compilation of ADR case law; negotiation tips or thoughts on mediation theory and practice, although the blog does cover those topics. The blog is deeply personal. I did a series on negotiating end-of-life decisions, for instance, using my experience of my father’s death from Parkinson’s as an example. When the recession hit, I did a series on “negotiating the downturn” using the loss of my job as an associate with a top tier firm in the recession of ‘92/’93 as an example. I use my own personal experiences quite a bit in my blog and I believe that’s one of the reasons that people read it. Whatever people think of me (and I have little idea of that) what they get is authentic, transparent, first person story telling.
As I mentioned before, I’m a writer; a literature major and a poet, so language means a lot to me. Writing is my music and the computer keyboard my piano. I naturally take the reader inside my subjective experience whenever I write about the process of mediation. I’m a stream of consciousness blogger and a confessional one. I forgive myself the public confessional tone by remembering what the poet Galway Kinnell once said – that if we write deeply enough about our own personal experience our voice becomes that of another creature on the planet speaking. That is what I aspire to in my blog, in my mediation practice and in my relationships. I succeed and I fail at this by turns. I hope that once in awhile I actually manage to inspire.
What has been most satisfying about blogging?
I’ve said this so many times before I fear I will begin to bore people. The most satisfying thing about blogging is living in Blogville with mediate.com’s featured bloggers as well as with other legal bloggers I have met (virtually or actually). Bloggers are passionately committed people. They are wise, sharp, opinionated, well-read, thoughtful, and kind. They are the posse on my home planet. I consider myself ridiculously lucky to be plying this trade among them.
It's also been great to become an authority on the topic of negotiation. As a result of my blogging, I've been asked to train small business and Fortune 500 executives and managers how to negotiate better. I've also been asked for my opinion on negotiations and settlements in the news by NPR, the New York Times and even People Magazine. Sometimes my interviews end up on the cutting room floor, but sometimes I appear in print in places I never expected to be. I've also been invited to speak in London as well as here in California and in other U.S. States.
What has been most frustrating with blogging?
There’s actually nothing frustrating about blogging. Writing for publication is frustrating because, for some reason, another more earnest and less well-spoken person arrives for the published article, someone who labors too hard to say the obvious. I tussle with her on a daily basis as I struggle to finish my book – A is for Asshole, the Grownups ABC’s of Conflict Resolution (http://abcsofconflict.com/) There’s something about the blogging form – maybe that it’s formless – that makes it joyous and freeing. I wish I could bottle it.
How about, most embarrassing?
I’m hard to embarrass because I know down to the knuckles of my spine that I can't save my face and my ass at the same time. I spent nearly an entire adult lifetime hiding one thing or another about me. Having given up secrets, there’s nothing I've done or do that shames me. I'm not perfect; I’m simply happily fallible, having given up on perfection. I’ve “converted” to the secular religion of transparency and authenticity. My primary purpose is to stay conscious and help other people achieve consciousness. I don’t have to make a particular sum of money or drive a certain type of car that be happy. That’s not to say that I don’t still have to reckon with the temptations of power, property and prestige. It is to say that I finally have a sense of humor about my own small place on the planet and my need for other people to help me make that planet a better place. I find I can be of the greatest service to my fellows when I stay in the zone of service. It's a place in which one never needs to be embarrassed because we are all imperfect and are all waiting for someone to ring the bell to release us from the burden of pretending we're not.
Do you think Blogging has contributed to the growth of mediation? If so, how?
What would mediation be without blogging? Mediation bloggers (and other authors at mediate.com) are the keepers of the flame. We’re so much farther down the road of mediation theory and practice than are most practitioners that I’d feel as if I were starving and completely alone without blogging and without mediate.com.
How do you see mediation evolving?
Mediation is the future. Litigation is the past. Mediation is power with instead of power over; human and community interests rather than competing rights and remedies that give rise to enduring resentments. Mediation is a asking rather than telling, collaborating rather than fighting, making the personal political and the political personal again.
Mediators who work with lawyers to settle litigation work at the intersection of positional evaluative distributive bargaining and interest-based negotiated problem solving. So I’m on the border of the past and the doorway to the future every working day. Occasionally, I look up from tilling these fields and see that there are others moving in the same direction. Not just mediators but politicians and business people; parents and educators; scientists, for goodness sakes – biologists and physicists. We’re all part of an evolving consciousness about our relationships with one another and the relationship of our species to the natural world and mediation is on the bow wave of that evolution.
I’m unreasonably optimistic at the same time that I despair of change. As a friend who’s a biologist once said to me, “if someone told you that from a fish we would get a human being, you would have told them they were crazy. But that’s what happened, one “manageable stretch” at a time over the course of millions of years.”
Mediators are the manageable stretch between the adversarial system and a far richer, more transparent, collaborative problem-solving dispute resolution technology. The old technology – imagineered in the 16th and 17th centuries, cannot resolve the problems of the 21st. It’s too inefficient, too expensive and too procedurally encrusted. We are the future.
What advice would you give a fellow mediator who is considering blogging?
Do it. Blogging is a way of creating yourself as the best you can be in collaboration with others who are doing the same thing. By blogging you throw a line out to your future practice and you thereby become what you say you now are. This is not a lack of authenticity, but a truer means of moving toward a goal than pretending you are not already better, richer, deeper, and more able to transform yourself and your world than you feel yourself to be today. Web 2.0 put the means of artistic production back into the hands of the people (and out of the hands of the gatekeepers). This is like a rip in the space-time continuum. We have no idea how long it will stay open before the supervisors arrive and recess is declared to be over. Seize the opportunity. Now.
What are your favorite blogs, dispute resolution and beyond?
Mediate.com has collected my favorite ADR blogs in one place so I don't have to go much farther than that. I also read Legal Blog Watch, specialty legal blogs like the IP Asset Maximizer (http://ipassetmaximizerblog.com/) and the Likelihood of Confusion (http://www.likelihoodofconfusion.com/); as well as local blogs like The California Blog of Appeal (http://www.calblogofappeal.com/); my husband's Catastrophic Insurance Coverage Blog (http://policyholder.blogspot.com/); and my good friend Faith Pincus' blog, Continuing Legal Education Today (http://www.continuinglegaleducationtoday.com/)
I'm a “sherpa” or guide for the Carnival Law Blogs – Blawg Review – so I probably scan at least 200 blogs a week on my google reader to provide Blawg Review Hosts with some of the best legal blog posts for that week to include in their Blawg Review. Obviously, I'm a big fan of Blawg Review (http://blawgreview.blogspot.com). I also read the Wall Street Journal Law Blog (http://blogs.wsj.com/law/), Law is Cool (http://lawiscool.com), Law 21 (http://law21.ca) , What About Clients (http://www.whataboutclients.com/) MyShingle (http://www.myshingle.com/), and the Solo Practice University Blog - http://solopracticeuniversity.com/blog - where I teach deposition practice).