Saturday, March 29, 2008

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!

Sunday, March 23, 2008

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!

Saturday, March 8, 2008

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?