I once lived in the neatly trimmed suburban neighborhood of litigation. Although bullies sometimes populated the streets, because residents share important values (critical thinking, evidence-based fact-finding, and, the application of the rule of law to competing claims) its streets are clean, its trains run on time and its police force keeps most of the “bad element” out of town. Just as importantly, Litigation Land has many town mayors, those be-robed authority figures who can and sometimes do sanction those attorneys who break the folkways of civility. So you can be an asshole in your dealings with fellow members of the Bar, but the practice is strongly discouraged and subject to sanctions imposed by “Mom and Dad.”
I now live in a much wilder environment, one without a set of standarized rules; one that does not necessarily strip from disputes their unpredictable human complexity, texture and dimensionality in favor of a flattened litigation story to which established rules can productively be applied. There are no rules of evidence governing statements made during mediation, nor any rules of procedure. And unless the mediator features himself the school Principal with virtually unlimited power to suppress or avoid conflict, all manner of disputes may be aired that do not fall strictly within the four-corners of the relatively neat and predictable “causes of action” that govern Litigation Land.
In mediation, anything and everything can and eventually does happen.
One of the common occurrences in mediation is the eruption of emotion in the course of attempting to resolve an active dispute. To suppress or avoid those pesky emotions, many mediators (often retired Judges) revert to Litigation Land form – separating the parties; enjoining everyone to focus on the “facts” and discouraging the expression of the feelings that brought people into litigation in the first place – a bitter dose of injustice; enduring slights; accusations of wrong-doing; shaming, blaming and, of course, claiming.
Early on in my mediation career I wrote a short article entitled The Biggest Lie in the Business: It’s Only about Money.
The social scientists who study these things say that the way in which we respond to adversity “often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished.” Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.
Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully. Although this is particularly true of fiduciary and special relationships such as lawyer-client and business partnerships of all kinds, it also applies to arm’s length business transactions.
Every commercial interaction, we are told, “represents a social exchange and every form of social behavior represents a resource.” Id. People’s satisfaction with the outcome of a commercial transaction therefore “depends highly, and often primarily, on their perception of the fairness of those outcomes.” Id.
No Matter How Vigorously We’ve Monetized a Dispute, It’s Still About Justice
In physics, there’s a phenomenon known as the observer effect. The “observer effect” made its way into pop psychology and sociology to stand for this proposition: observers of human behavior alter that behavior just in the act of observation. Mediators, active or passive, evaluative or facilitative, emotion discouraging or conflict encouraging, settlement-focused or transformation-oriented will affect the negotiated resolution of any dispute that occurs under their gaze.
And though we’re called neutrals, we are not human Switzerlands. Unless we are autistic or schizophrenic or sociopathic, we respond to human feeling with human feeling. We respond to perceived injustice with the desire to “right” it. We form opinions about legal and factual positions and attitudes toward the people – attorneys and clients – who express them. We find some people credible and others not. We find some people difficult, even offensive, and we try, if we are good at our jobs, to deal with them from a position of compassion and an attitude of inquiry.
But sometimes, not often, but sometimes, we get pissed off.
Let me say here that getting pissed off and acting on it are two different things. Acting pissed off while being pissed off based upon our own feelings that we are being treated unjustly or disrespectfully is – by my lights – below the standard of care for mediation professionals. We are, however, human and fallible just like everyone else. The question is not whether we will make mistakes but how and when. The more important question is when we do err, will we fess up and make it right or try to hide our mistakes?
This is my stake in the ground — if we err, if we acknowledge our error, and if we make amends for that error without getting overly remorseful about it (scraping, servile) we set a standard of authenticity and accountability that is an absolute prerequisite for the voluntary resolution of disputes concerning perceived or actual injustice. By frankly acknowledging our error and taking the steps necessary to repair any damage that error has done, we encourage lawyers and litigants alike to do the same. And once everyone is acting as a free agent, acknowledging their own part in whatever miscommunication occurred or misstep made, brain-storming mutually satisfactory resolutions is far easier for everyone. And clients whose injustice issues are resolved, even if their money desires are not met, are clients who are happy both with their legal representation and with their mediator.
Back to the Canary in the LASC Pro Bono Coal Mine
not only between individuals, but in a context, culture, and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu.
For as long as I have been mediating, there has been an active, on-going, often bitter dispute between the Los Angeles Superior Court and most professional (not hobbyist) mediators who are trying to make a living based upon their negotiation and conflict resolution education, training and experience, many of them lawyers with decades of litigation and trial experience. I will not go into the history of the pro bono panel and the disputes about its provision of free mediation services to all comers, but I can provide references if you are interested in exploring the conflict./ *
I am only the most recent canary in the mine shaft of the LASC’s pro bono mediation panel. By canary in this instance I refer to my own keenly felt sense of pride and sensitivity to all forms of injustice, including the economic variety. Though I take my own part in having responded irritably to a request by two AmLaw 100 law firms to mediate their $10 million antitrust action gratis while they charged their clients upwards of $400 per hour, that irritation must be understood not only in the context of the unresolved conflict between the Court and local mediators, but also the undeniable fact that many attorneys and their clients take unfair advantage of the mediators who volunteer their time on behalf of the Court. And that they do so without giving it a second thought.
This canary, who owes so much of her training to the opportunity to serve on the pro bono panel, must now take flight. I’m good at what I do and I have spread the word about the quality of my services far and wide. If I am not able to make what I consider to be a good living as a mediator, I will do what I have always done, find other sources of gainful employment and other streams of income without entirely abandoning what is to so many simply a hobby and to others a desperate attempt to scratch a living out of a fallow field.
Why attorneys are doing themselves and their clients a disservice whenever they permit the Court to simply “assign” them a random mediator (we are not widgets) tomorrow.
*/ A Brief History of the Los Angeles Superior Court’s Mediation Program, authored by the founder and President of the American Institute for Mediation, Lee Jay Berman on behalf of the Southern California Mediation Association.
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