On Reflection

I always make a point to do some self reflection at the New Year. This year, I noted in a Journal I've been keeping for my children since 1993 that American's have seen the best of times and the worst of times. I believe that the election of Barack Obama will be an indelible memory for my children and for me forever. Being Jewish, and the Aunt of seven children of mixed races (in two different generations), I am thrilled that our nation has progressed to a point of electing a leader who seems most fit for the job, irrespective of his ethnicity. Being a lawyer who fancies herself somewhat intellectual, I am equally thrilled to have elected a man who is articulate, thoughtful and believes in diplomacy and dialogue, too.

And then it was the worst of times: we watched the value of life savings plummet with the Dow Jones, and watched respected and even elected leaders fall to disgrace and corruption. We braced ourselves for another and deeper recession or depression and wondered how we'd keep the kids in college.

And yet, when I look in the mirror, I feel success and triumph, hope and courage. As I said in the journal, we've got love, we've got our health and we've got hope for the future.

It occurs to me that what I do in mediation is much the same: I help the parties evaluate the facts, apply the law when necessary, and then do a little self-reflection/perspective taking to look towards a better future. I ask them to look to that future with hope and courage. It's surprising what an optimistic outlook can do.

And so I invite you to join me in that glance--inward and then forward. Auld Lang Syne aside, I try not to look back...but to march looking skyward towards a brighter tomorrow.

Sounds a bit trite, but it works. Happy New Year to all and may this be a good year, filled with health and happiness, prosperity and hope.

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. Without revealing any of the facts, the case involved an elderly woman who was evidently wealthy enough and sufficiently uncomfortable about the lawsuit against her to offer more money than a Plaintiff would have normally expected based upon the particular set of facts and legal obstacles involved. I brokered a deal where all were satisfied, or even delighted, but it had a certain thud in my own instinctive gut after it was over.

Does the mediator's personal conscience matter? My conclusion was it does not. If I can't step back and allow the parties to craft a deal in which all parties are comfortable, than my only move should be to withdraw or recuse in advance. I have done that on only one occasion when the factual scenario struck me as not only unfair, but echoed a personal experience with a lawsuit on similar grounds. Otherwise, I'm left to conclude that the mediator's personal conscience has to be checked at the conference door. That's why each party is represented by a lawyer, and I'm delighted to give them the responsibility of both evaluation and conscience over the results of their actions.

Time for Family and Thanks

Towards the end of this luxuriously long holiday weekend, I am mindful of the power of time for reflection and the strength of family ties. In year's past, it has not always been so. Sometimes the crush of a desire for the perfect Thanksgiving feast, the conflict of spending the holiday with one or the other family members, the rush to hit the sales on the day after Thanksgiving have effectively destroyed the opportunity for quiet reflection. This year, none of that got it my way. Perhaps the economic situation, or the massacre in Mumbai colored the long weekend and put our world into perspective. And so, with gratitude for the many blessings I have enjoyed, I offer a moment's reflection and hope that our world, given time, family and an opportunities for thoughtful reflection will improve. For me, I am thankful that we will have a new President in the White House who believes in dialogue and diplomacy, respects family and community and takes time for thoughtful reflection in all matters.

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.

Miller says the top diplomat "needs to be an actor, a teacher, a tactician, an intimidator and a confidant." Sound familiar? He describes the negotiator's mind-set this way: "Teenagers talk on the phone, beavers build dams, and secretaries of state manage crises and solve problems. This means having a smart and tough view of the world, seeing how America's ends and means can fit together, and then knowing how to make them do so." He calls the particular mind-set "the intuitive capacity to see where the deal is, and to put oneself in the middle of the mix to bring it about". This is a perfect description of what a mediator does.

And here's the part I've never seen printed, but that also weighs in heavily in the artful mediation: "Deception is sometimes required and they maneuver constantly, trying to figure out what's necessary to succeed and how to use incentives, pressure, arm twisting and, when necessary, untruthfulness (either by omission or commission) to manage a crisis or close a deal."

So thank you, Aaron Miller, for articulating the true qualities of an artful mediator or Secretary of State. I'm looking forward to reading your thoughts on solving that pesky Middle-East issue next and looking forward to learning of Obama's choice for the role!

A Rare Transformative Experience

Mediation isn't always measured by how much or how little money is exchanged. Last week, I had a wage and hour claim against an employer who was going to be unable to pay even a small percentage of the Plaintiff's demand. Nevertheless, this young woman was a part of the extended family of the former "employer". She had lived with the family for several years when she first came to this country and genuinely endeared herself to the "host" family until they had an apparent falling out--when she disappeared without saying goodbye and without explanation. It became obvious early in the session, that this matter was not going to be settled for anything close to the "value" and that neither side was adequately capitalized to try the case, given the slim prospect of collecting upon any eventual judgment. So I took a chance. I orchestrated a meeting with some of the family members (two sisters) and the Plaintiff. There were no attorneys present (except me) and the session was conducted in a foreign language (which I understood, but in which I did not contribute). There were tears (including mine!) and hugs and an offer to settle which was within a few hundred dollars of the ultimate resolution. Although nobody felt satisfied that the case had to be resolved in this way, it at least offered an opportunity for soothing old hurts, answering unasked questions and most importantly, given people a chance to make a gesture towards restoring relationships which may prove to be mutually beneficial in the future. If you can't get money, it's gratifying to see you can sometimes get hugs, laughter and even tears! This was a rather unique experience in my litigation-driven practice, but ever so rewarding to me and the other participants!

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 position by the time the music starts.
2) It is not good enough to get into position and then stand in the same place. You must move your feet.
3) It is not good enough to merely kick or stomp your feet, you must attend to the rhythm of the music and the posture, mood and responses of your dancing partner.
4) It is not good enough to move always in the same direction: ballroom dancing is a give and take, back and forth, sometimes even circular motion--but motion (movement) is critical.
5) It is not your prerogative to dictate the song list: this is done by consensus, or by the band or your host. You've been invited to the dance and accepted the invitation, so be gracious and "go with the flow".
6) Starting the dance but then refusing to finish it if you don't like the tune is unfair. Both your partner and your host will be disappointed and may not invite you to dance again.
7) Ballroom dancing can be a complicated, even unfamiliar and intimidating event, but if you start with a simple box step, you'll be able to work on more complicated steps as the evening wears on. It takes practice, so don't expect mastery in the first lesson!

Okay--you get my point, I hope. Please consider these tips before you get to your next mediation. At the very least, I hope it will cause you to crack a smile when we begin "the dance"!

Good luck!

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 it wrong" and Defendants. On average, Plaintiff's would have done better by $43,000 per case had they taken the settlement offered, whereas Defendants would have saved $1.1 million on average! It certainly gives both sides a hearty incentive to give serious consideration to letting a good mediator take a crack at settling every case: or at least giving the realtiy test to your clients before proceeding to trial.

P.S.: I'm pleased to inform readers that the author of the study, Randall Kiser will be in Los Angeles at the upcoming Southern California Mediation Association's Annual Conference on The Brain and how Neuroscience affects Conflict Resolution. The conference will be on November 5, 2008 at Pepperdine's Straus Institute's Malibu Campus. If you'd like more information, send me an e-mail and I'll make sure you get an invitation.


By JONATHAN D. GLATER
Published: August 7, 2008/The New York Times
Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal. Avoid a trial, Randall Kiser advises.

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The vast majority of cases do settle — from 80 to 92 percent by some estimates, Mr. Kiser said — and there is no way to know whether either side in those cases could have done better at trial. But the findings, based on a study of 2,054 cases that went to trial from 2002 to 2005, raise provocative questions about how lawyers and clients make decisions, the quality of legal advice and lawyers’ motives.

Critics of the profession have long argued that lawyers have an incentive to try to collect fees that are contingent on winning in court or simply to bill for all the hours required to prepare and go to trial.

“What I would want them to look at was whether or not the lawyers had a strong financial incentive to go to trial,” said Cristina C. Arguedas, a criminal defense lawyer in Berkeley, Calif., when told of the study. “I’m not suggesting the answer, because I don’t know, but that would be my question.”

The study, which is to be published in the September issue of the Journal of Empirical Legal Studies, does not directly answer Ms. Arguedas, but it does find that the mistakes were made more often in cases in which lawyers are typically paid a share of whatever is won at trial.

On average, getting it wrong cost plaintiffs at about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million.

“Most of the time, one of the parties has made some kind of miscalculation or mistake,” said Jeffrey J. Rachlinski, a law professor at Cornell who has studied how lawyers and clients decide to go to trial and who is co-editor of the journal. “The interesting thing about it is the errors the defendants make are much more costly.”

The study’s authors have analyzed some data from New York and, after a review of 554 state court trials in 2005, have found parties to lawsuits making the wrong decision at comparable rates.

The findings suggest that lawyers may not be explaining the odds to their clients — or that clients are not listening to their lawyers.

“It’s entirely possible that the attorneys are not giving adequate advice,” said Mr. Kiser, who is also a lawyer but is not practicing. “An attorney could advise a client that they have a strong defense to enforcement of a contract, but that is not the same thing as forecasting what the likely outcome at trial would be.”

As part of the study, which is the biggest of its kind to date, the authors surveyed trial outcomes over 40 years until 2004. They found that over time, poor decisions to go to trial have actually become more frequent.

“It’s peculiar if any field is not improving its performance over a 40-year period,” Mr. Kiser said. “That’s a troubling finding.”

Law schools do not teach how to handicap trials, nor do they help develop the important skill of telling a client that a case is not a winner. Clients do not like to hear such news.

“Most clients think they are completely right,” Michael Shepard, a lawyer at Heller Ehrman in San Francisco. A good lawyer has to be able to tell clients that a judge or jury might see them differently, he continued. “Part of it is judgment and part of it is diplomacy.”

Several lawyers were dismissive of the study, noting that the statistics mean nothing when contemplating a particular case, with its specific facts and legal issues, before a specific judge. They stressed the importance of a lawyer’s experience.

But the study tried to account for that possibility and found that factors like the years of experience, rank of a lawyer’s law school and the size of a law firm were less helpful in predicting the decision to go to trial. More significant was the type of case.

For example, poor decisions by plaintiffs to go to trial “are associated with cases in which contingency fee arrangements are common,” according to the report. “On the defense side, high error rates are noted in cases where insurance coverage is generally unavailable.”

The findings are consistent with research on human behavior and responses to risk, said Martin A. Asher, an economist at the University of Pennsylvania and a co-author. For example, psychologists have found that people are more averse to taking a risk when they are expecting to gain something, and more willing to take a risk when they have something to lose.

“If you approach a class of students and say, I’ll either write you a check for $200, or we can flip a coin and I will pay you nothing or $500,” most students will take the $200 rather than risk getting nothing, Mr. Asher said.

But reverse the situation, so that students have to write the check, and they will choose to flip the coin, risking a bigger loss because they hope to pay nothing at all, he continued. “They’ll take the gamble.”

The third co-author of the study was Blakeley B. McShane, a graduate student at the Wharton School of the University of Pennsylvania

Aggressive Diplomacy in Mediation

Barack Obama used a phrase which I thought curious this morning in response to a journalist's inquiry about nuclear capabilities by Iran. The phrase was: "Aggressive Diplomacy". When I was an undergraduate studying International Relations, such a term would have been considered an oymoron. Good diplomats were never "aggressive". Diplomats were clever, cautious, prudent, facilitative, skilled, smooth, adept--but not "aggressive". To the contrary, they were the folks called in to "mediate" when world leaders became or threatened to become aggressive!

My mediation style has followed that early training. I have always seen myself more of a good diplomat than an aggressive purveyor of peace or conflict resolution. Now that I consider it carefully, I might also reach the conclusion that my early training in "diplomacy" at Pomona College got in the way of being a fully aggressive litigator for the couple of decades I tried that approach.

Just for a challenge, I thought I'd exercise Obama's approach and aggressively pursue diplomatic efforts. Today, I mediated a dispute between a brother and sister who had not had much interaction since their mother died 13 years ago and they inherited the family home jointly. There were many moments when the parties, both unrepresented, nearly gave up. In this instance, I had to be "aggressive" in my pursuit of diplomatic relations to reach a detente between them and help them move on. I found myself consciously taking a proactive role in the way Obama outlined in the Middle East.

Coincidentally, I had the pleasure of running into my first "boss" at the office today (participating in another mediation). A colleague introduced me and said jokingly, "She couldn't have been trained by you, she's too nice." His response was "She was mean when she was litigating with me!". So here's the challenge: for thirty days, I'm going to make an effort to "aggressively" mediate every case. I will be more than a dipolomat. I will do whatever I can to settle every case, even those that are lingering on my credenza. I will consciously observe the effect on the litigants and whether they accept my taking on that role. Who knows? This could portend the new world order!

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 mediation in May got a lot closer, the parties were still millions of dollars apart. Then came the daily phone calls, the true "negotiation", and the framing, re-framing, evaluating, re-evaluating for a full month. After one such conversation, the Defense lawyer advised me that he was instructed to put out his top dollar offer in a statutory offer. The negotiation continued. Last week, on the morning of the Final Status Conference, the Plaintiffs accepted the Statutory Offer which had been submitted 4 days before. While I take some credit for working with both parties to get to a number that would ultimately settle the case, I'm quite clear that the timing created by the Court (through both a trial date and a Statutory Offer) allowed the parties to finally end the negotiation and settle the case.

In another case, I was the presiding Arbitrator. The parties had spent hours and hours disputing and debating the claims, the damages and the discovery in advance. Finally, when they came before me last week, my preliminary ruling was to overrule the Plaintiff's objection to the Statutory Offer being used in an arbitration. Then I simply queried: "Would the parties like to take a few minutes to discuss possible settlement in light of that ruling?" Within 2 hours, that case also settled. It was only the urgency created by the actual "trial" (there were about 6 witnesses and an interpreter in the Office prepared to testify that day), that facilitated that settlement. The Court's process (allowing a Statutory Offer to create the threat that the Defendants may have been able to recover their costs if the Arbitration favored their side) facilitated a serious negotiation which ultimately settled the case without the full evidentiary hearing.

My conclusion is that in both cases, the Court process had the paradoxical effect of urging the "independence" of settling these two cases outside the Courthouse. I thought it fitting, on this week of Independence Day, to draw these analogies. Independence is a prize to be cherished, but our partnership with the institutions and organizations that protect and demand accountability sure help to foster true independence!

Now back to last week's comments. Many of you were confused by the "apology"--so let me explain. After commenting upon the "debate" which was reported by the Daily Journal before the L.A. County Bar Association, I heard privately from Charles Parselle, who demanded a correction and apology. Since I had not correctly or completely reported the event, I simply offered the apology that Charles had asked me to insert. I agree that it should not be a debate, and I had no intention of entering into the debate, but rather commenting upon the sad fact that the matter had to be debated in that way.

I wish you all a Happy Independence Day--but one that is mindful that independence cannot be celebrated without interdependence in its shadows.

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 free. This all came to a head this week at a meeting of the Los Angeles County Bar Association.

According to the Los Angeles Daily Journal article which covered the debate: "Though the debate was civil, Bendix lashed out at the two mediators in a hallway after the meeting. She told Parselle she thought he had been "disingenuous" in the debate when he said low-income litigants would still be able to get free mediation through the court's fee-waiver process if the resolution passed. Bendix told him that his position reflected a "profound misunderstanding" of the fee-waiver process. "I don't want to participate in these discussions with you if you're going to be dishonest," Bendix said sharply. "This is so wrong."

*Let me take this opportunity to apologize to Charles Parselle for suggesting or implying that he made any accusatory or
untoward remarks. On the contrary, the Daily Journal article made it very clear that he was quite puzzled by what had just happened. I have had the opportunity to speak with Mr. Parselle, and he confirms the accuracy of the Journal report and add that in response to the judge's remarks to him, he did not make any response other than to express his puzzlement and repeat that the legislative amendment contemplates that free mediation should remain available to indigent litigants who have obtained a fee-waiver from the court."

Although the Southern California Mediation Association officially took no position on the pending legislative changes when President Nikki Tolt was asked by the reporter for the Daily Journal, the position articulated by Mr. Parselle at this meeting was generally supported by the SCMA last year, when I was the organization's President. I was not present for the LACBA presentation, but I am very familiar with this longstanding dispute and agree personally (and as Past President of SCMA) that change is needed and many cases are "ordered" to mediation and offered free services when the litigants could well afford to pay a mediator for her work. What's more, it is my personal opinion that this would result in higher settlement rates and actually be of greater service to both the court and the litigants!

This week I had the opportunity to co-mediate a case with a colleague who has not accepted a "court-ordered/free" case for five years. He began the day with the following reassurance to each side: "I think this is going to be the day we get this done. It really needs to happen today"...(and to one side: "Amazing things happen between 5 and 6 P.M."). Indeed, the case settled, although it was nearly 7:30 P.M. At its conclusion, he felt triumphant, relieved and tired. I felt something different, after the Plaintiff, who had gotten an excellent settlement, would barely shake my hand. I was left wondering whether we had done justice in achieving the litigators' goal of settling the case that day, but left the plaintiff himself extremely unsatisfied. On the following day, my colleague reminded me cheerfully: "Jan, that's why they hire us. They want us to settle every case, and in the main, I do. It's in at 10:00 A.M. and out with a settlement by 6:00 P.M."

It's taken me several days to process this, but I offer this observation. In court-ordered cases, the parties have no expectation that the mediation date is the day they will settle the case. Indeed, I often begin those hearings by inquiring: "Why are you here?" I do this so that both sides "buy in" to the notion that one possible outcome is settlement, but typically, we all know that there are many other possible outcomes--further discovery, further negotiation or a future settlement date. So it is no surprise that the statistics show that private cases are settled at an 80-90% rate, whereas court-ordered ones are barely more than 50/50.

I'm not so sure it's about who pays for the mediation, but if the parties (and their attorneys) are given free choice and mediation is truly voluntary, chances are greatly improved that the date they choose will be the date each party is ready to resolve the case.

Wouldn't that be a better use of resources for all concerned?

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. But bigger still is his love and support for his family, his friends, his synagogue and community. A broad-chested baritone, he sang as the Cantor for our local Temple while I was growing up; the same Temple where he served as Building Chairman, Brotherhood Chair and President. I imagine that my older sister and brother got a lot more business advice from my Dad than I did, as my sister was the eldest and my brother went into business with my Dad for many years. Still, it was always clear to all of us that we needed to challenge ourselves to do better than others. (All of us have both College and Graduate Degrees.) It was equally clear that family was critical: so each of us have three children and long marriages--ours for 29 years and my sister and brother each for 39 years and counting. My own parents will celebrate their 63rd this year. A lot of my Father's Advice, I think, not only serves me well, but informs the outcome in my mediation practice in so many ways. So here's my list (with my own interpretations):
1. Forget About it. (There's no point in holding a grudge.)
2. Your Handshake should be better than any written contract. (All of your business dealings should be built on trust and fairness.)
3. Once you're in a position where you need to hire lawyers, you're already in trouble. (Negotiation is always the preferred solution in business disputes.)
4. It's a small world, and people have long memories. (Don't do anything you'd be ashamed of later.)
5. Count your blessings. (Don't let the day to day stuff get you down.)
6. Never count anybody else's money. (Jealousy will get you nowhere.)
7. What difference does it make? (Don't be petty.)
8. You can be successful by being decent, honest and kind. (You don't need fancy degrees and a legacy of power or money to succeed in business.)
9. It pays to treat "your people" as you would family. (Everybody deserves to be treated with respect and dignity.)
10. Humor goes a long way. (When all else fails, crack a smile, or even a bottle of gin if you need to thaw cool relationships.)
11. Hard work pays off. (You can do what you set out to if you believe in yourself and work at it every day.)
12. Don't count on luck to get you out of a jam. (Luck is something you can only look at from hindsight. The rest is fortitude, and perhaps prayer (when it comes to health).)
13. Just show up and be there. (In the end, that is the most pure sign of loyalty and caring).

Happy Father's Day to all of my readers, and to my No. 1 subscriber, my Dad!

Good Advice From the Next Generation

A friend of mine sent me a Commencement address given by Journalist, Samantha Power, this year in Claremont , Ca. (I'm an alumna of Pomona College, although this one was at our sister College, Pitzer). I found it particularly compelling. I attach the website here:
http://www.huffingtonpost.com/samantha-power/message-to-graduates-be-a_b_103886.html

What does this have to do with Mediation? The part I loved was about taking time for silence. It is so true that this generation is more interconnected than any before. They have the capability and technology to be in constant communication with one another. And yet, is anyone giving them the advice of the value of taking a few minutes alone? Do any of them listen to their inner voice? Has the Ipod, the Blackberry, Face Book and text messaging supplanted the need for interaction and introspection?

I attended a funeral today where the Rabbi spoke of a concert where Itzhak Perlman broke a string on his violin. Apparently, rather than struggling with the leg braces and crutches he had just removed in order to walk off stage and replace the string, he performed the entire concert on just 3 strings. When asked how he'd accomplished this, and why, his answer was simple: "I'm a musician", he said, "We make music where nothing was there before". My synthesis of these two stories leads me to the conclusion that both participants and mediators can greatly benefit from taking a few key moments during the course of a difficult hearing to themselves. Some quiet, self reflection can unlock the inner yearnings both driving the conflict and blocking it from being resolved.

Next time you feel stuck, try taking a time out by yourself and see!

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 action for the award of damages, but rather the satisfaction of teaching a lesson to the errant defendants on how not to run their company. It occured to me only later that in that case a mediation was bound to be unsatisfying, because I couldn't offer the kind of publicity that the case demanded. To the contrary, because I am bound to strict confidentiality, I cannot offer the satisfaction that a trial can in instances like these.

In this mornings New York Times, there was an interesting article about a blogger in New York--who relishes the opportunity to privately "publicize" facts and impressions via her blog. I was struck by the contrast between my ability to "publicize" and my hard-earned lesson that the blogosphere cannot expect to be kept confidential. Thus, you will get no further disclosure from me on the case I failed to settle this week until the media properly reports it. Some cases need to go through that process in order to be fully "settled". Cases that are mediated are subject to strict confidentiality. Cases that need the traditional media to ultimately satisfy the litigants, will not likely be settled through mediation. That's the limit of mediation: and the promise of this mediator. Maybe I should have gone into journalism as a second career after all...

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 have legislated that such apologies are inadmissible in court back in 2005.

One of the key principles which mediators emphasize in any hearing which includes an apology is the assurance of confidentiality. Apologizing will not become an admission of culpability if it's done in the context of a mediation. What researchers have found is that in most instances, an apology and explanation of the circumstance of the medical accidents reported resulted in the patient or his/her family deciding not to pursue the matter in litigation. I loved that they've given a name to the practice, which is a departure from the old "defend and deny": "the disclosure movement". Contrary to popular press, what the study reveals is that most patients are earnestly concerned about hospital practices that may cause injury in subsequent procedures, and in the explanation, more than the huge damage claim. What's more, they want it soon after the incident, and an offer to fix or repair, rather than subject both sides to protracted litigation aimed at concealing the facts and minimizing the ultimate expense. Interesting stuff, this disclosure movement.

Here's the link to the article: http://www.nytimes.com/2008/05/18/us/18apology.html?pagewanted=1&_r=1&ref=us
"

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, it appears, is not determinative of the parties' ultimate satisfaction.

This morning, our local newspaper, the Los Angeles Times, included an article in the "Health" section, which explains that brain science backs up this effect. It's a good reminder for all of us: and those of you who are tempted to skip that process, in service of making the deal! I've copied the article here, but basically, it concludes that the brain actually responds differently when the studies made a "fair deal" v. merely "a deal" that ends the negotiation. I thought it interesting and informative and have copied it in it's entirety for you below.

Fairness is emotionally rewarding, a study finds
A fair deal activates parts of the brain also stimulated by earning money, looking at attractive faces or eating chocolate, UCLA researchers find.
By Elena Conis, Special to The Times
May 12, 2008
What's new: The sinking feeling that creeps in after you've paid too much for a house, car or new pair of shoes may actually be a hard-wired, neurological response to being treated unfairly.

On the flip side, getting a fair deal on that same car or pair of shoes stimulates parts of the brain associated with reward and happiness.

The finding: Researchers at UCLA's Semel Institute for Neuroscience and Human Behavior recently reported in the journal Psychological Science that getting a fair deal activated the same parts of the brain -- the ventral striatum, the amygdala and the ventromedial prefrontal cortex, together known as the reward circuit -- that are stimulated by earning money, looking at attractive faces or eating chocolate (in those who like the stuff).

Lead study author Golnaz Tabibnia, a postdoctoral researcher in the department of psychiatry and biobehavioral sciences, said the findings suggest people care about fairness itself not just because unfairness is unpleasant, but because fairness generates positive emotions. Fairness, in and of itself, she said, is emotionally rewarding -- regardless of how much money may come (or go) in the deal.

How the study was done: The researchers conducted two separate experiments. In both, the study subjects, all UCLA students, played a so-called ultimatum game in which a person called a "proposer" offered to split with them a certain amount of money, say $10. Sometimes the proposer would offer to split the money in half (a fair deal), at other times he or she would offer less than half. If the student accepted, proposer and student kept the money. If the student rejected the offer, proposer and student walked away with nothing.

In the first experiment, the 29 students who played the game were asked to report how happy or upset they were about each offer. In the second experiment, 12 students played the game while their brain activity was monitored using functional magnetic resonance imaging, or fMRI. The fMRI measures changes in blood flow to different regions of the brain, indicating which parts of the brain are more or less active.

When students were offered $5 out of $10, they'd typically accept the offer -- and their reward circuitry would light up. When offered, say, $2, roughly half the students rejected the money, and their brain region associated with disgust would light up. In the half that accepted the meager offer, their disgust region wasn't activated, but neither was their reward circuitry -- instead, the part of the brain that came into play was the region involved in self-control. "It's the neural pattern of what swallowing your pride looks like," Tabibnia said.

Why it matters: Essentially, the results bolster the maxim that money doesn't buy happiness. No matter how much money people make, or lose, in a deal, what determines how they feel at the end of the day, the study suggests, is how fairly they think they've been treated. "Certainly money is rewarding," Tabibnia said. "But more and more research is suggesting that our social relations with other people can also be rewarding, and can be very strong determinants of our happiness and satisfaction."

What we still don't know: Scientists think -- but aren't sure -- that emotional responses to fair or unfair treatment could differ based on gender, cultural background or socioeconomic status. Being poor, for example, conceivably could build tolerance to unfair treatment -- but the idea is pure conjecture.

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 occurred to me what a modern luxury is the gift of a full day "un-wired". Wouldn't we all appreciate having the undivided attention of a professional to spend the day listening to our problems and helping us achieve a satisfactory solution? Wouldn't we love if our spouse or children or parents, our partners or associates would similarly indulge us a full, uninterrupted day to think about how to make us feel better about past issues or relationships? I dare say that even a full day alone--without interruption from PDA's and phones, would go a long way towards helping any of us solve our problems. And so it occurred to me that one of the best features mediation has to offer is the eyes and ears of a professional who dedicates the day to helping the participants to solve their conflict. A full day's commitment to being unwired, unhurried, giving undivided attention to the participants is a wonderful luxury!

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 "narrows"--with walls to the left and to the right and only a glimmer of light between them. The challenge for the mediator is to guide the parties out of their personal narrow places and into a new state. It is the guidance from slavery or tyranny or debt to sweetness and hopefulness and freedom. With freedom, of course, comes a heavy responsibility. It is our challenge to inspire parties caught between only two choices (as in slave holders or slaves) to freedom fighters who, by their own might and imagination dare to visualize a different future and take that chance to achieve it. There are so many profound messages in the Passover story, but for now I wish to merely challenge my readers to dare to imagine a different choice than the obvious. Only then can we hope to transcend our own narrow places!

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 seem to be suffering from an empathy deficit." My own work as a mediator compels me to concur.

Lately, I have been mediating business disputes where employees urge fair treatment from their former employers, or a business deal gone sour demands recompense to make things right. On the other side, I see struggling business people and professionals who cannot afford the inflated demands made of them--even though they may have agreed to those terms (before the costs of litigation were added) in more economically favorable times. And I, standing "in the middle" can simply urge empathy. Obama says, "No one is exempt from the call to find common ground". I am grateful that I listened to the call and act daily in an effort to bring mutual understanding and then action by those in conflict. It's my own contribution towards addressing the Empathy Deficit Disorder from which our country may be suffering.

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 facts. In California and the U.S., there's broad leeway in using exaggeration or puffery and also manipulating the timing and "bottom line" claims in the context of the litigated case. The only bright line offered seems to be the conduct which would otherwise be actionable as a material misrepresentation of fact.

The following day, the keynote address was delivered by Tony Snow, former Press Secretary to George W. Bush. He spoke of the invasion in Iraq, the surge in troops against popular tide of approval and, in an unabashed claim, his deft management of creating an appearance of the wisdom of staying in the Middle East even in the face of unprecedented negative ratings.

So it occured to me, that in the case of a difficult negotiation, the mediators role in so many instances is to create the spin that will sell the other side on reasons to accept a deal they were unwilling to accept before they engaged the mediator. What's more, the mediator will not likely present facts which will be relied upon (or rejected as untrue), but will merely "reframe" those details which she believes the parties need to highlight in order to make an informed decision about the best outcome they can achieve in the particular negotiation. What's more, the mediator's communication to the parties is confidential, and therefore not actionable. Mediators have ethics, too and won't lie for either party or knowingly present facts which are false. But they certainly will withold facts which they are asked to maintain as confidential!

During the course of this week, for example, I negotiated a re-finance of a home, a claim for attorneys fees rebated, a personal guaranty on a business debt and the proceeds of a fire insurance policy. Each of these negotiations were already attempted before filing a lawsuit and after...but it was only with the benefit of the mediator's "spin" that, like a Press Secretary, the parties were able to see the wisdom in an unpopular war based upon carefully chosen words and artful intervention. Like a figure skater, parties to a negotiation are well advised to bend as far as possible without causing a crack in the ice or skater!

Leap! What Will We Do with the Rest of Our Lives?

I've just finished reading Sara Davidson's "Leap!" and I wanted to share it with my own readers as a kind of broad and deep guidepost for travelling through "the narrows" and onward and upward. She concludes with a reminder that those of us who enjoy writing, should continue to write. In fact, she reminds us that a moral review--as in the narrative I blogged about earlier, is a healthy exercise and that a weekly review of those moral issues and resolutions is also an excellent, self-reflective tool. The work that we do as mediators, the kind of active peacemaking is an invaluable service which has this kind of far-reaching potential as teachers and guides for the good. I'm still processing the book, but I highly recommend it for those still searching for answers to the question of "what is the next decade or two going to look like for me?" Consider it a template of options for aging baby boomers who have had a half century or more of thoughtful engagement with our country, our communities and one another.

So here's my week past: two friends lost their parents (both in their 80's), one friend had a Bat Mitzvah for her 13 year old daughter, one friend is flying back East with her husband of almost 30 years for experimental and aggressive cancer treatment.

Taking a breath, reviewing and restocking and taking time for internal reflection is, indeed not only imperative to each of us--but a useful exercise for those in conflict that come before us for advice, empathy and resolution.

Read the book!

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 which they believed they'd get a lower verdict, based upon an arbitrator being less likely to be carried off onto an emotional or irrational tangent when reaching a verdict on the intangibles, such as emotional distress and punitive damages. Employee's and their lawyers resisted this, demanded the employer pay 100% of the costs, and built in other protections to ostensibly level the playing field. What the employer's lawyers have discovered, however, is that arbitration can be much more expensive than litigation (because the employer assumes the costs of the arbitration from both sides) and no faster. Last evening, I had dinner with a friend who is revising an old family LLC agreement and inquired whether he'd be better off including a binding or non-binding arbitration clause. I had to think for a few minutes (before I finished my margarita!) and honestly respond that I thought he should include a mediation clause, in a family agreement, and omit the arbitration provision. This lead me to do some introspection on whether we've taken this too far in terms of "fairness" and "accessibility". My last case as a litigator was taken out of the court system (over my protest) and sent to a binding arbitration. My client couldn't afford the costs, so I advanced them. We lost the arbitration after 5 days and several thousand dollars in costs alone. We had no right of appeal and no explanation. I still think the retired Judge got it wrong. Has Arbitration outlived its usefulness as a true alternative to Court?

The Value of A Professional Study Group

Over the past couple of weeks, I've attended a couple of different study groups that have really enhanced my practice in small and large ways. The first, hosted by my colleague, Wendy Kramer through the Southern California Mediation Association, was a group of about a dozen mediators. We considered a difficult personality and a bind that one of our members had experienced in a mediation that had not yet been completed. The very next day, I found myself in a quandary about an issue of finalizing a settlement. I called Wendy and suggested the topic for our next monthly meeting. It was a great relief to be able to take that matter off my shoulders, anticipating wisdom, validation or consolation within a matter of weeks from some of my esteemed contemporaries. This past week, I attended an informal gathering of about 17 mediators and a few other professionals, at the home of my friend, Laurel Kaufer. There, we were guided in the art of the story by Stacie Chaiken, about whom I have previously posted (see the Blog about storytelling). I think Stacie has a certain dynamic genius, but more than that, it was again a rich opportunity to take our thinking and practice to a higher level, and our friendships to a deeper one. We all spend plenty of time attending events where clients or potential clients are, but often ignore our inner needs to enrich and unload our own triumphs and challenges amongst a group of professionals who understand them. It may not be a coincidence that the only images I could find on Google to depict study groups were Church groups. So my conclusion is that these groups have the potential, perhaps even promise, of restoring a mediator's soul. The redemption offered by your colleagues' validation or simple understanding is unrivaled. I am grateful to have become a part of each of these groups and urge you to begin one in your town or join in on an existing one. For your sake!

Mediator Ethics

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 that both parties can live with. But what I hope to achieve is a settlement in which both parties are satisfied, whereas those that take the "beating up" approach tend to go after the settlement where both parties are equally unhappy. Is that a violation of my mediators ethics? I attended a training this week with the LA Superior Court in which the Judge very plainly cautioned that we must never allow a litigant to have reason to believe we are biased towards (or against) them. Yet I know it is common practice in our community for mediators to treat clients to meals, sporting events and concerts. Even a bottle of wine or cigar at the conclusion of a settlement is not unheard of! So are our ethical constraints different than a Judges? And if so, is it time for us to revisit them? I'm still considering this one...with no answers this week, only questions.

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 can do is put a tourniquet on the wound and let it go."

I won't spoil the movie for you, because I do highly recommend it...but there was certainly a metaphoric lesson for mediators there. It particularly struck me because a case I tried to mediate was "settled" this week by the court granting a Motion for Summary Judgment. Whereas I had an offer of a "tourniquet" (far below the actual medical specials, but at least a gesture of good faith by a defendant who earnestly believed it had no legal exposure), the parties chose instead to try to solve the dispute by taking their best shot before a Judge. Amongst "old men" perhaps, there are enough ups and downs that this particular case didn't strike as hard as it did for the minor Plaintiff and his family...but for me, the two were inextricably related and ultimately made me appreciate the philosophy of the cinema in order to put things into perspective.

THE POWER OF STORY IN MEDIATION

A couple of weeks ago, I had an interesting meeting with an actor who is interested in Storytelling as a tool for mediators. Last weekend, I accepted her challenge to write out a two page "story" of my own history. It was a self-reflection in which I rarely indulge.

Over the past two decades, I have succeeded in maintaining a home and marriage, and, together with my high school boyfriend, and husband of almost thirty years, raised three extremely competent, wonderful human offspring. So it was not so easy for me to look inwards at my own professional accomplishments for this purpose and to put them into a publishable perspective. My surprise, however, was not from the story, but from how powerfully the exercise itself has affected me. Somehow, putting the "story" into writing has given it a loud voice in my head and on my computer. I've yet to share it with anyone, but still can't put it away. I can only imagine how powerful such a tool could be in a difficult, personal and emotion-laden mediation!

In the meanwhile, I read an interesting account of a gentleman who is engaged in just such a process with prison inmates. By giving them the tools and space to write their own accounts, he can set them free to atone, to revise and edit, to grow and to earn peace within and outside the prison walls. It is an awesome tool and if she'll allow me to do so, I shall gladly reveal the individual who has inspired me after a more formal gathering we have planned in early February. In the meanwhile, I encourage you to give storytelling a try. Begin with your own story and see if it has the same effect on you that I have shared here. I'd love to get your feedback!

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 competitive place like Los Angeles, I've seen evidence of substance abuse in business, real estate construction, employment and personal injury cases. It's no surprise, since the statistics suggest that abusers are generally both more aggressive and less likely to accept blame or responsibility for their own actions. Those that have access to attorneys to fight their battles consequently become regular clients in litigation. Whether the conduct is driven by substance abuse, or the litigation is confounded by it, mediator's and lawyers would be well advised to routinely investigate whether substance abuse plays into the conflict they're asked to resolve. The next time you have an inexplicable or intractable conflict, think about it through the lens of a drug abuser or alcoholic and see if that doesn't help you to understand why, for example, the story keeps changing, the recollection of facts has so faded, or the client refuses a reasonable settlement offer which will mean the end of their legal fight, representation and medical treatment on liens.

Watch Your Language!

Sometimes the informality of a mediation can be counter-productive. Recently, I had one that lasted late into an evening. At a certain point we were reaching an impasse that would have included an agreement to postpone certain discovery. I invited the attorneys to speak about this directly to one another, and instead of making that agreement, in frustration, one of them expressed his anticipation that the partner in charge of the case would respond with an "@*&% YOU". I believed that his comment was meant to be an incentive to keep the negotiation going, but it in fact had the opposite effect. I didn't know it at the time, (and thankfully the case got settled the following day), but that one choice reference to an "expletive" (which really was deleted!) completely undermined the negotiation that had been going on all day up until that moment. The Corporate clients, two very savvy business women (one general counsel of a huge conglomerate) took such offense to this that by the time I returned to the other room, they had packed up and were on their way out the door! Rudeness, crudeness, and crassness has no place in a mediation--even in the most informal moments. Next time you fear the worst language being tossed in for flavor or emphasis, take your mother's words into account and "Watch Your Language"!