Sunday, January 27, 2008
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.
Monday, January 21, 2008
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!
Sunday, January 13, 2008
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.
Saturday, January 5, 2008
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"!